In the circumstances, we reject the contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or 16 otherwise of a customary easement (relating to right of way or right to take water, to a person's land). The decision of the Tahsildar after a summary enquiry with reference to the `previous custom' and with due regard to the conveniences of all parties, under section 131(1) of the Code, is open to challenge in a civil suit and subject to the decision of the civil court. The jurisdiction of the civil court to try any suit relating to easements is not affected by section 131, 242 or section 257 of the Code. In view of the above, this appeal is allowed and the judgments and decrees of the courts below are set aside and it is declared that the civil court has the jurisdiction to try the suit filed by the appellants

                                             1



                                                                               Reportable

                     IN THE SUPREME COURT OF INDIA


                       CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 4922 OF 2011

                     [Arising out of SLP [C] No.8497 of 2007]




Smt. Ramkanya Bai & Anr.                                             ... Appellants


Vs.


Jagdish & Ors.                                                       ... Respondents




                                   J U D G M E N T





R.V.RAVEENDRAN, J.




       Leave granted.


2.     The   appellants   claim   to   be   the   owners   of   lands   bearing   Khasra


Nos.29/2/2 and 29/1. The first respondent Jagdish claims to be the owner of


Khasra Nos.36/3 and 36/4. The first respondent made an application to the


Naib Tahsildar, Tappa Betma, Depalpur, Indore District, under section 131


of   the   Madhya   Pradesh   Land   Revenue   Code,   1959   (`Code'   for   short)


claiming a right of way over Khasra Nos.29/2/2 and 29/1 of the appellants,


to   reach   his   lands   bearing   Khasra   Nos.36/3   and   36/4.   The   Naib   Tahsildar


made on order dated 25.10.2001, under section 131 of the Code, holding that


                                                2



first   respondent,   with   his   agricultural   equipments,   bullock-cart   etc.,   was


entitled to pass through the Government Road, Khasra No.21 (East to West)


of the  village   Salampur  and thereafter  pass  through  Khasra  Nos.  29/1 and


29/2/2   belonging   to   the   appellants,   for   reaching   his   land   bearing   Khasra


Nos.36/3 and 36/4 and the appellants shall not obstruct such passage. The


appeal by the appellants filed against the said order under section 44 of the


Code   was   dismissed   and   the   subsequent   revision   filed   by   the   appellants


under section 50 of the Act was also dismissed.




3.      Thereafter appellants filed Civil Suit No.66A/2002 on the file of the


Civil Judge (Class II), Depalpur, Indore district for the following reliefs : (a)


a   declaration   that   the   first   respondent   did   not   have   any   right   of   way   over


their  lands  bearing   Nos.29/2/2  and 29/1  to reach  his  lands  bearing  Khasra


Nos.36/3 and 36/4 and that they are entitled to enjoy their lands without any


interference from first respondent; (b) for a declaration that the order dated


25.10.2001   passed   by   the   Tahsildar   creating   a   new   passage,   over   khasra


Nos.29/1   and   29/2/2,   was   illegal;   and   (c)   for   a   consequential   injunction


restraining   first   respondent   from   creating/   constructing   any   new   passage,


over their lands. The said suit was dismissed by the trial court, by judgment


dated 4.12.2004 on the ground that having regard to section 131 read with


section 257 of the Code, the revenue court (Tahsildar) alone had jurisdiction


                                                     3



to grant relief on the basis of custom and convenience of parties, and it did


not   have   any   jurisdiction.   The   appeal   (Appeal   No.3-A/2005)   filed   by   the


appellants   was   dismissed   by   the   first   appellate   court   on   19.4.2005.   The


subsequent second appeal filed by the appellants was also dismissed by the


High   Court   on   19.1.2007.   The   said   judgment   is   under   challenge   in   this


appeal by special leave.




4.      On the contentions urged by the parties, the following questions arise


for our consideration:


(a)     Whether   the   jurisdiction   of   the   civil   court   to   entertain   a   suit   for

declaration or injunction, claiming a customary easement of right of way or

right to take water, through the land of a servient owner, is barred by section

257 of the Code, on the ground that it is a matter which the Revenue Officer

(Tahsildar) is empowered to decide under section 131 of the Code?


(b)     Whether  the civil  court has no jurisdiction  to entertain  a suit by the

owner   of   a   land   for   a   declaration   that   the   defendant   does   not   have   an

easementary right, customary or otherwise, over his property and the order

of Tahsildar under section 131 of the Code recognizing such right, is illegal

and erroneous?




5.      Section   131   of   the   Code   deals   with   rights   of   way   and   other   private


easements. It is extracted below :


        "131. Rights of way and other private easements.--(1) In the event of a

        dispute arising as to the route by which a cultivator shall have access to his

        fields or to the waste or pasture lands of the village, otherwise than by the

        recognized roads, paths or common land, including those road and paths

        recorded  in the village Wajib-ul-arz prepared  under section  242 or as  to

        the   source   from   or   course   by   which   he   may   avail   himself   of   water,   a

        Tahsildar may, after local enquiry, decide the matter with reference to the


                                                          4



            previous custom in each case and with due regard to the conveniences of

            all the parties concerned.


            (2)        No   order   passed   under   this   section   shall   debar   any   person   from

            establishing such rights of easement as he may claim by a civil suit."




Section   257   deals   with   the   exclusive   jurisdiction   of   revenue   authorities   in


regard   to   revenue   matters   under   the   Code,   and   bar   of   jurisdiction   of   civil


courts   in   regard   to   such   matters.   The   relevant   portion   thereof   is   extracted


below :


            "257.  Exclusive   jurisdiction   of   revenue   authorities.--Except   as

            otherwise provided in this Code, or in any other enactment  for the time

            being   in   force,   no   Civil   Court   shall   entertain   any   suit   instituted   or

            application  made  to   obtain  a   decision   or  order  on  any  matter   which   the

            State   Government,   the   Board,   or   any   Revenue   Officer   is   by   this   Code,

            empowered   to   determine,   decide   or   dispose   of,   and   in   particular   and

            without prejudice to the generality of this provision, no Civil Court shall

            exercise jurisdiction over any of the following matters--


            (a) to (z-2)      xxxxx      [not extracted as not relevant]"




6.          An analysis of section 131 of the Code shows that it provides for the


adjudication by the Tahsildar, in respect of disputes raised by a cultivator,


relating to any of the following three private easementary rights:-


      a)            the route by which a cultivator shall have access to his fields;


      b)            the   route   by   which   a   cultivator   shall   have   access   to   waste   or

                    pasture lands of the village; and


      c)            the route by which a cultivator shall have access to the source from

                    which, or the course by which, he may avail himself of water.


                                                 5



Section 131 provides that such disputes shall be decided in each case, by the


Tahsildar, after a local enquiry, with reference to the previous custom and


with   due   regard   to   the   convenience   of  all   parties   concerned.   The   disputes


relating   to   recognized   roads,   paths   or   common   land   including   those   roads


and paths recorded in the village Wajib-ul-arz prepared under section 242 of


the Code are expressly excluded from the scope of section 131 of the Code.


It is thus clear that what could be decided under section 131 of the Code is a


dispute   relating   to   a   claim   for   a   customary   easement   over   a   private   land,


relating to a right of way or right to take water, which is not recognized and


recorded as a customary easement in the village Wajib-ul-arz.





7.      The  definition of different  easements,  the manner  of imposition  and


acquisition   of   easementary   rights,   the   incidents   of   easements   and   the


remedies in case of interference or disturbance with easements are governed


by the provisions of the Indian Easements Act, 1882. Easement Act refers to


the different methods by which easements are acquired or imposed, that is,


namely   easements   by   grant,   easements   of   necessity,   easements   by


prescription and customary easements. Acquisition of an easementary right,


by   any   of   the   aforesaid   methods,   requires   fulfillment   of   the   conditions


prescribed under the Easements Act. A private easement, including a right of


way   to   a   person's   land   or   right   to   take   water   from   a   source   to   his   land,


                                                   6



cannot   be   acquired   in   a   manner   not   contemplated   or   prescribed   by   the


Easement   Act.   Easements   by   grant   require   a   grant   by   the   owner   of   the


servient   heritage.   Easements   of   necessity   are   based   on   implied   grants   or


reservations   made   by   the   owner   of   a   servient   heritage,   at   the   time   of


disposition  such   as  transfers  and  partitions.  Easements   by  prescription  can


be acquired only by peaceable and open enjoyment, without interruption for


twenty years. Customary easement can be are acquired by virtue of a local


custom.





8.     Having   regard   to   section   9   of   the   Code   of   Civil   Procedure,   a   civil


court can entertain any suit of civil nature except those, cognizance of which


is  expressly  or impliedly  barred. In  Kamala  Mills  Ltd. v. State of Bombay


[AIR 1965 SC 1942] this court held :


       "The normal rule prescribed by section 9 of the Code of Civil Procedure is

       that the courts shall (subject to the provisions contained in the Code) have

       jurisdiction to try all suits of a civil nature excepting suits of which their

       cognizance is either expressly or impliedly barred......... Whenever it is

       urged before a civil court that its jurisdiction is excluded either expressly

       or by necessary implication to entertain claims of a civil nature, the Court

       naturally   feels   inclined   to   consider  whether   the   remedy   afforded   by   an

       alternative   provision   prescribed   by   a   special   statute   is   sufficient   or

       adequate. In cases where the exclusion of the civil Courts' jurisdiction is

       expressly provided for, the consideration as to the scheme of the statute in

       question and the adequacy or the sufficiency of the remedies provided for

       by   it   may   be   relevant   but   cannot   be   decisive.  But   where   exclusion   is

       pleaded as a matter of necessary implication, such considerations would

       be very important, and in conceivable circumstances, might even become

       decisive. If it appears that a statute creates a special right or a liability and

       provides for the determination of the right and liability to be dealt with by

       tribunals specially constituted in that behalf, and it further lays down that


                                                       7



        all questions about the said right and liability shall be determined by the

        tribunals so constituted, it becomes pertinent to enquire whether remedies

        normally associated with actions in civil Courts are prescribed by the said

        statute or not."

                                                                              (emphasis supplied)





In  Dhulabhai   v.   State   of   Madhya   Pradesh  -   1968   (3)   SCR   662,   a


Constitution Bench of this Court held that exclusion of the jurisdiction of the


civil   court   is   not   readily   to   be   inferred   with,   unless   the   following,   among


other conditions apply :


        "(1)       Where   the   statute   gives   a   finality   to   the   orders   of   the   special

        tribunals the civil court's jurisdiction must be held to be excluded if there

        is adequate remedy to do what the civil courts would normally do in a suit.

        Such   provision,   however,   does   not   exclude   those   cases   where   the

        provisions   of   the   particular   Act   have   not   been   complied   with   or   the

        statutory   tribunal   has   not   acted   in   conformity   with   the   fundamental

        principles of judicial procedure............


        (2)        Where  there is an express bar of the jurisdiction  of the court, an

        examination of the scheme of the particular Act to find the adequacy or

        the   sufficiency   of   the   remedies   provided   may   be   relevant   but   is   not

        decisive to sustain the jurisdiction of the civil court.



        Where there is no express exclusion, the examination of the remedies and

        the   scheme   of   the   particular   Act   to   find   out   the   intendment   becomes

        necessary and the result of the inquiry may be decisive. In the latter case,

        it is necessary to see if the statute creates a special right or a liability and

        provides   for   the   determination   of   the   right   or   liability   and   further   lays

        down   that   all   questions   about   the   said   right   and   liability   shall   be

        determined by the tribunals so constituted, and whether remedies normally

        associated with actions in civil courts are prescribed by the said statute or

        not."





9.      The Code nowhere bars the jurisdiction of civil courts to decide upon


easementary   rights   relating   to   agricultural   or   other   lands.   The   Madhya


Pradesh   Land   Revenue   Code   neither   creates   nor   recognizes   any   new


                                                8



category of private easementary rights either by way of right of way or right


to take water, which is not covered by the provisions of the Easements Act


or   which   is   not   required   to   fulfill   the   requirements   prescribed   by   the


Easements   Act.   An   easement   cannot   be   acquired   otherwise   than   in   the


manner   provided   in   the   Easement   Act.   Section   131   of   the   Code   does   not


provide for or recognize a new type of easement which is not contemplated


or recognized in Easement Act, but merely deals with customary easements


covered   by   section   18   of   the   Easements   Act.   Nor   can   it   be   said   that   the


elements of an easement required to be fulfilled under the Easement Act are


not required in respect of a private easement under section 131 of the Code.


Apart   from   the   fact   that   section   131   of   the   Code   does   not   deal   with


acquisition of any special easement by some method which is not referred in


the   Easements   Act,   sub-section   (2)   of   section   131   expressly   provides   that


irrespective   of   any   order   passed   by   the   Tahsildar   under   section   131,   any


person can establish any right relating to an easement by a civil suit. There is


nothing in section 131 or any other provision of the Code, which makes the


decision   of   the   Tahsildar   final   and   not   open   to   question   in   a   civil   court.


Therefore, the decision of the Tahsildar will not bar a subsequent civil suit


by either party to a proceeding under section 131 of the Code, in respect of


the easement claimed in the proceedings under section 131 of the Code.


                                              9



10.    When a person (dominant owner) has  an easementary  right, and the


servient owner disturbs, obstructs or interferes with his easementary right, or


denies   his   easementary   right,   the   remedy   of   the   dominant   owner   is   to


approach   the   civil   court   for   the   relief   of   declaration   and/or   injunction.


Similarly, when a person who does not have an easementary  right, tries to


assert  or exercise any easementary  right over another's  land, the owner of


such   land   can   resist   such   assertion   or   obstruct   the   exercise   of   the


easementary   right   and   also   approach   the   civil   court   to   declare   that   the


defendant   has   no   easementary   right   of   the   nature   claimed,   over   his   land


and/or that the defendant should be prevented  from asserting such right or


interfering with his possession and enjoyment.





11.    Section   257   relates   to   the   exclusive   jurisdiction   of   the   revenue


authorities.   Any   statutory   provision   ousting   the   jurisdiction   of   civil   courts


should be strictly construed. A suit for enforcement of an easementary right


or for a declaration that the defendant does not have any easementary right


over plaintiff's property or a suit for injunction to restrain a defendant from


interfering   with   the   possession   of   plaintiff   or   exercising   any   easementary


right over plaintiff's property, is not barred by the Code. Such suits do not


fall under any of the excluded matters enumerated in clauses (a) to (z-2) of


section 257 of the Code. Section 257, no doubt, also provides that no civil


                                                   10



court shall entertain any suit instituted to obtain a decision or order  on any


matter   which   the   State   Government,   the   Board   or   any   Revenue   Officer   is


empowered to determine by the provisions of the code. But this is subject to


the opening words of the section "except as otherwise provided in this Code


or   in   any   other   enactment   for   the   time   being   in   force".   We   have   already


noticed that sub-section (2) of section 131 of the Code reserves and retains


specifically the jurisdiction of the civil court to entertain suits relating to any


easements,  irrespective  of the decision of the Tahsildar  on a similar  issue.


Sub-section (2) of section 131 provides that no order passed under section


131 shall debar any person from establishing such rights of easements as he


may claim by a civil suit. Therefore the right to decide upon the nature of


easements and enforcement of easements is expressly preserved for decision


by   a   civil   court   in   a   civil   suit.   The   two   fold   object   of   sub-section   (2)   of


section 131 is to declare that section 131(1) of the Code does not deal with a


matter which is in the exclusive province of revenue authorities and also to


enable either party to approach the civil court in regard to any easementary


right, irrespective of the decision under section 131(1) by the Tahsildar. The


effect of section 257 and section 131(2) is that the enquiry and decision by


the Tahsildar based on "previous custom" and "conveniences of parties" in


regard to any private easementary rights relating to right of way or right to


water will always be subject to the decision of the civil court in any civil suit


                                               11



by any party relating to that matter. Therefore it has to be held that section


257 providing for exclusion of jurisdiction of civil court in regard to certain


matters,   does   not   apply   to   any   suit   involving   or   relating   to   easementary


rights.





12.     But   some   decisions   of   the   Madhya   Pradesh   High   Court   have


proceeded on the assumption, rather erroneously and without any basis, that


the private easements including right of way referred under section 131 of


the Code, are not the easements which are dealt with in the Indian Easement


Act, but are a new type of easement unknown to general law of easements,


which   require   to   be   decided   by   the   Tahsildar   only   with   reference   to   the


previous customs and conveniences of parties. A distinction is sought to be


drawn by those decisions, between easements under the Easement Act and


easements under section 131 of the Code, by holding that the Easement Act


deals with easements perfected by prescription, whereas section 131 of the


Code   refers  to  private  easements,   which  are  not  perfected  by  prescription.


They   also   proceed   on   the   basis   that   in   view   of   section   131   of   the   Code


providing   for   a   Revenue   Authority,   that   is   a   Tahsildar,   to   deal   with   the


special type of private  easements provided for in section 131 of the Code,


civil   courts   will   have   no   jurisdiction   to   entertain   or   decide   any   matter


relating to such type of private easements, having regard to the bar contained


                                                      12



in section 257 of the Code; and consequently any decision of the Tahsildar


under section 131 of the Code is amenable only to an appeal and thereafter a


revision  provided  under  the  Code  itself,  and   is  not  open  to  challenge   in  a


civil   suit   [See   :  Nathuram   v.   Siyasharan  -   1969   JLJ   115   and  Rambai   v.


Harchand - 1979 RN 532].





13.    On the other hand, other decisions of the Madhya Pradesh High Court


have taken the view that a civil court is not barred from entertaining suits for


declaration   and/or   injunction,   against   a   person   who   has   secured   an   order


under section 131 of the Code, to declare such order of Tahsildar as illegal


and   not   binding   or   to   restrain   the   defendant   from   exercising   the   right


recognized  by the Tahsildar [Gopidas (Mahant) v. Ram Krishna Pandey  -


1971 JLJ 825 and Fakka v. Hariram - 1984 RN 422]. In Gopidas  (supra), a


learned Single Judge of the Madhya Pradesh High Court (A.P. Sen, J., as he


then was) explained the position succinctly, thus:




       "The scheme underlying the section, envisages a suit under section 131(2)

       by   the   claimant   for   the   establishment   of   his   right,   if   such   right   is   not

       recognized by the Tahsildar. This necessarily implies that the correctness

       of the finding reached by the Tahsildar may be questioned in subsequent

       legal proceedings in the ordinary Courts of law. No doubt, the language of

       section 131(2) is susceptible of the construction suggested by the learned

       counsel that the right of a suit is confined to the claimant. This, however,

       does not result in the consequence that a person, on whose property a right

       of way is declared  by Tahsildar to exist, should have no remedy for the

       protection   of   his   rights   in   property,   against   an   arbitrary   or   erroneous

       assumption of jurisdiction by the Tahsildar."  


                                                     13





We   respectfully   agree   with   the   said   observations.   The   decisions   in


Nathuram and Rambai are not good law.





14.    At this juncture we may refer to the relevance of  Wajib-ul-arz  while


dealing with cases of customary easements. Section 242 of the Code deals


with Wajib-ul-arz and is extracted below :


       "242. Wajib-ul-arz.--(1) As soon as may be after this Code comes into

       force, the Sub-Divisional Officer shall, in the prescribed manner, ascertain

       and record the customs in each village in regard to -


                (a)       the right to irrigation or right of way or other easement;

                (b)       the right to fishing;


       in   any   land   or   water   not   belonging   to   or   controlled   or   managed   by   the

       State Government or a local authority and such record shall be known as

       the Wajib-ul-arz of the village.


       (2)      The   record   made   in   pursuance   of   sub-section   (1),   shall   be

       published   by   the   Sub-Divisional   Officer   in   such   manner   as   may   be

       prescribed.


       (3)      Any   person   aggrieved   by   any   entry   made   in   such   record   may,

       within one year from the date of the publication of such record under sub-

       section (2), institute a suit in a civil court to have such entry cancelled or

       modified.


       (4)      The   record   made   under   sub-section   (1)   shall,   subject   to   the

       decision of the civil court in the suit instituted under sub-section (3), be

       final and conclusive.


       (5)      The (Sub-Divisional Officer) may, on the application of any person

       interested or on his own motion, modify an entry or insert any new entry

       in the Wajib-ul-arz on any of the following grounds :


                (a)                       That all persons interested in such entry wish

                to have it modified; or


                                                         14



                    (b)                       That   by   a   decree   in   a   civil   suit   it   has   been

                    declared to be erroneous; or


                    (c)                       That being founded on a decree or order of a

                    civil   court   or   on   the   order   of   a   Revenue   Officer   it   is   not   in

                    accordance with such decree or order; or


                    (d)                       That   being   so   founded,   such   decree   or   order

                    has subsequently been varied on appeal, revision or review; or


                    (e)                       That   the   civil   court   has   by   a   decree

                    determined any custom existing in the village."





Rules   have   been   made   under   section   242   relating   to  Wajib-ul-arz  vide


notification dated 2.2.1966, Rule 2 thereof is extracted below :


        "2. Customs under sub-section (1) of section 242 shall be ascertained and

        recorded in the Wajib-ul-arz under the following heads, namely : -


            (i)                     Right to irrigation;

            (ii)                    Other water-rights;

            (ii)                    Right to fishing;

            (iv)                    Rights   of   way,   village   roads,   paths,   drains   and   the

            like;

            (v)                     Rights of persons of other villages over the lands of

            the village;

            (vi)                    Rights of the villagers over the lands of other villages;

            (vii)  Other easement - (a) Burial and cremation ground, (b) Gaothan,

                      (c)                   Encamping-ground,   (d)   Threshing-floor,   (e)

                                            Bazars,   (f)   Skinning-grounds,   (g)   Rights   to

                      graze and take fuel, (h) Manure and rubbish;


            (viii)                  Other miscellaneous rights."




15.     Wajib-ul-arz is thus the record of customs in a village in regard to (i)


easements   (including   the   right   to  irrigation   and  right   of  way);   and  (ii)   the


right to fishing in privately owned/held lands and water bodies. The entries


therein   could   be   modified   in   the   manner   provided   in   sub-section   (5)   of


                                               15



section 242 of the Code. Though the Code provides for maintaining a record


of   all   customary   easements   imposed   upon   privately   held   lands   and   water


bodies, significantly the Code does not provide the remedies available in the


event of disturbance or interference with such easements recorded in Wajib-


ul-arz, as the remedy is only way of a suit before the civil court. Customary


easements are the most difficult to prove among easements. To establish a


custom, the plaintiff will have to show that (a) the usage is ancient or from


time immemorial;  (b) the usage is regular and continuous; (c) the usage is


certain and not varied; and (d) the usage is reasonable. If the  Wajib-ul-arz


(where   such   a   record   is   maintained)   records   or   shows   the   customary


easement, it would make the task of civil courts comparatively easy, as there


will be no need for detailed evidence to establish the custom. Be that as it


may.   If   the   remedy   for   violation   of   a  customary   easement   recognized   and


recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that


in regard to violation of a customary easement  not recognized or recorded


in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry


by the Tahsildar under section 131 of the Code, and not by a suit, before the


civil court.


Conclusion


16.     In the circumstances, we reject the contention that Tahsildar alone has


the   jurisdiction,   and   not   the   civil   court,   to   decide   upon   the   existence   or


                                                 16



otherwise of a customary easement (relating to right of way or right to take


water,   to   a   person's   land).   The   decision   of   the   Tahsildar   after   a   summary


enquiry with reference to the `previous custom' and with due regard to the


conveniences   of   all   parties,   under   section   131(1)   of   the   Code,   is   open   to


challenge in a civil  suit and subject to the decision  of the civil  court.  The


jurisdiction   of   the   civil   court   to   try   any   suit   relating   to   easements   is   not


affected   by   section   131,   242   or   section   257   of   the   Code.   In   view   of   the


above,  this  appeal is  allowed and the judgments and decrees  of the courts


below are set aside and it is declared that the civil court has the jurisdiction


to try the suit filed by the appellants. The trial court is requested to dispose


of the suit expeditiously.





                                                                      ............................J

                                                                            [R. V. Raveendran]





                                                                      ............................J

                                                                                 [A. K. Patnaik]

New Delhi;

July 4, 2011.

when an order is passed under Order 22 Rules 3 and 5 of the Code, dismissing an application by a person claiming to be a legal representative on the ground that he is not a legal representative and consequently dismissing the suit, it will not be a dismissal under Rule 9(2) of Order 22 which is amenable for an appeal under section 104 read with Order 43 Rule 1(k) of the Code. It therefore follows that an order under Order 22 Rule 3 and 5 is not appealable under section 104 or Order 43 Rule 1 of the Code.

                                              1



                                                                                  Reportable

                      IN THE SUPREME COURT OF INDIA


                       CIVIL APPELLATE JURISDICTION


                         CIVIL APPEAL NO. 4923 OF 2011

                     [Arising out of SLP [C] No.15113 of 2008]




Mangluram Dewangan                                                      ... Appellant


Vs.


Surendra Singh & Ors.                                                   ... Respondents





                                    J U D G M E N T





R.V.RAVEENDRAN, J.


        Leave granted.


2.      One   Prannath   filed   a   suit   against   the   respondents   for   declaration,


possession   and   damages   on   4.8.1989   in   regard   to   an   immovable   property.


Prannath died on 12.11.1994 during the pendency of the suit. The appellant


filed an application under Order 22 Rule 3 of the Code of Civil Procedure


(`Code'   for   short)   on   27.1.1995   to   be   added   and   substituted   as   the   legal


representative of Prannath, claiming that he was the sole legatee under the


registered will dated 10.10.1994 executed by Prannath. The said application


was   contested   by   the   respondents-defendants.   They   denied   the   allegation


                                              2



that   deceased   plaintiff   Prannath   had   executed   any   will   in   favour   of   the


appellant.   They   contended   that   the   appellant   was   not   the   legal   heir   nor


legatee of Prannath and therefore not entitled to be added as a party, as the


legal representative  of the deceased plaintiff.  In view of the contest to the


application,   the   appellant   examined   one   Balwant   who   was   an   attesting


witness to the will. After considering the documentary and oral evidence, the


trial   court   (IV   Civil   Judge,   Class   II,   Bilaspur)   made   an   order   dated


31.8.1996, holding that there was no acceptable evidence to prove the will


and therefore the appellant could not be held to be the legal representative of


the plaintiff. The trial court held that the application by the appellant under


Order   22   Rule   3   of   the   Code   could   not   be   entertained   or   accepted   and


consequently in the absence of any legal heir of the plaintiff dismissed the


suit.





2.       Feeling aggrieved the appellant filed an appeal in the court of the V


Additional District Judge, Bilaspur. The appellate court allowed the appeal


by   order   dated   28.1.1998.   It   held   that   the   registered   will   was   proved   by


examining one of the attesting witnesses; that deceased Prannath himself had


submitted an application in court in the pending suit on 25.10.1994 referring


to the execution of his will dated 10.10.1994 and praying that his evidence


                                               3



may be recorded without delay; and that therefore the appellant was entitled


to   be   impleaded   as   the   legal   representative   of   the   deceased   plaintiff.   The


appellate court rejected the contention of the respondents-defendants that the


appeal   was   not   maintainable.   It   held   that   the   order   of   the   trial   court


dismissing the suit as a consequence of the rejection of the application under


Order   22   Rule   3   of   the   Code   would   fall   within   the   definition   of   "decree"


under section 2(2) of the Code. The appellate  court therefore set aside the


order dated 31.8.1996 passed by the trial court, permitted the appellant to be


brought   on   record   and   continue   the   suit   as   legal   representative   of   the


plaintiff and remanded the suit to trial court under Order 41 Rule 23 of the


Code for deciding the matter on merits.




3.      Respondents   1   and   2   filed   a   miscellaneous   appeal   before   the   High


Court,   under   Order   43   Rule   1(u)   of   the   Code   against   the   said   appellate


judgment.  A   learned   Single   Judge   of   the   Chhattisgarh   High   Court,   by   the


impugned order  dated 15.4.2008 allowed the said appeal and set aside the


order dated 28.1.1998 passed by the appellate  court and restored the order


dated 31.8.1996 passed by the trial court. The High Court held that the order


dated 31.8.1996 of the trial court did not amount to a decree and therefore


the appeal by the appellant before the appellate court was not maintainable.


The   High   Court   held   that   an   order   can   be   a   "decree"   if   it   conclusively


                                              4



determined the rights of parties, with regard to all or any of the matters in


controversy   in   the   suit.   The   question   whether   Prannath   executed   a   will   in


favour of appellant and thus appellant was a legal representative of Prannath


was   not   an   issue   in   controversy   in   the   suit,   but   arose   incidentally   for


determination in view of the application of appellant  for being brought on


record   as   the   legal   representative   of   Prannath.   An   order   on   such   an


application did not decide all or any of the matters in controversy in the suit


and not a `decree' as defined under Order 2(2), and therefore, only a revision


would be a remedy against such an order and not an appeal. The High Court


after holding that the appeal was not maintainable also considered the matter


on   merits   and   held   that   the   trial   court   was   justified   in   dismissing   the


application under Order 22 Rule 3 of the Code by holding that the will was


not proved.




4.     The   said   order   of   the   High   Court   is   challenged   in   this   appeal   by


special   leave.   The   following   questions   arise   for   consideration   on   the


contentions urged :




(i)    Whether an order of the trial court rejecting an application filed under

Order 22 Rule 3 of the Code, by a person claiming to be the legatee under

the will of the plaintiff and consequently dismissing the suit in the absence

of any legal heir, is an appealable decree?  


                                                      5



(ii)    Whether the High Court was justified in upholding the decision of the

trial court that the will was not proved and rejecting the application  under

Order 22 Rule 3 of the Code?




Re : Question (i)




5.      Order 22 deals with death of parties. Rules 1, 3, 5 and 9 of order 22 of


the   Code   have   a   bearing   on   the   issue   and   relevant   portions   thereof   are


extracted below :


        "1. No abatement by party's death if right to sue survives.--The death

        of a plaintiff or defendant shall not cause the suit to abate if the right to

        sue survives.


        3.  Procedure   in   case   of   death   of   one   of   several   plaintiffs   or   of   sole

        plaintiff.--(1)  Where  one of two or more plaintiffs dies and the right to

        sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole

        plaintiff or sole surviving plaintiff dies and the right to the sue survives,

        the   Court,   on   an   application   made   in   that   behalf,   shall   cause   the   legal

        representative   of   the   deceased   plaintiff   to   be   made   a   party   and   shall

        proceed with the suit.  


        (2)  Where   within   the   time   limited   by   law   no   application   is   made   under

        sub-rule   (1)   the   suit   shall   abate  so   far   as   the   deceased   plaintiff   is

        concerned, and, on the application of the defendant, the Court may award

        to him the costs which he may have incurred in defending the suit, to be

        recovered from the estate of the deceased plaintiff.  


        5.  Determination   of   question   as   to   legal   representative.--Where   a

        question   arises   as   to   whether   any   person   is   or   is   not   the   legal

        representative   of   a   deceased   plaintiff   or   a   deceased   defendant,  such

        question shall be determined by the Court:   x x x x x

       


        9.  Effect   of   abatement   or   dismissal.--(1)   Where   a   suit   abates   or   is

        dismissed   under   this   Order,   no   fresh   suit   shall   be   brought   on   the   same

        cause of action.


        (2) The plaintiff or the person claiming to be the legal representative of a

        deceased plaintiff or the assignee or the receiver in the case of an insolvent


                                                      6



        plaintiff  may apply for an order to set aside the abatement or dismissal;

        and   if   it   is   proved   that   he   was   prevented   by   any   sufficient   cause   from

        continuing   the   suit,   the   Court   shall   set   aside   the   abatement   or   dismissal

        upon such terms as to costs or otherwise as it thinks fit".


        x x x x x

                                                                              (emphasis supplied)





A combined reading of the several provisions of Order 22 of the Code makes


the following position clear:




(a)     When   the   sole   plaintiff   dies   and   the   right   to   sue   survives,   on   an


application made in that behalf, the court shall cause the legal representative


of the deceased plaintiff to be brought on record and proceed with the suit.



(b)     If the court holds that the right to sue does not survive on the death of


the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.



(c)     Even   where   the   right   to   sue   survives,   if   no   application   is   made   for


making the legal representative a party to the suit, within the time limited by


law   (that   is   a   period   of   90   days   from   the   date   of   death   of   the   plaintiff


prescribed for making an application to make the legal representative a party


under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule


3(2) of Order 22 of the Code.



(d)     Abatement occurs as a legal consequence of (i) court holding that the


right to sue does not survive; or (ii) no application being made by any legal


representative of the deceased plaintiff to come on record and continue the


suit. Abatement is not dependant upon any formal order of the court that the


suit has abated.


                                                  7



(e)     Even though a formal order declaring the abatement is not necessary


when the suit abates, as the proceedings in the suit are likely to linger and


will not be closed without a formal order of the court, the court is usually to


make   an   order   recording   that   the   suit   has   abated,   or   dismiss   the   suit   by


reason of abatement under Order 22 of the Code.



(f)     Where   a   suit   abates   or   where   the   suit   is   dismissed,   any   person


claiming to be the legal representative  of the deceased plaintiff may apply


for setting aside the abatement or dismissal of the suit under Order 22 Rule 9


(2)   of   the   Code.   If   sufficient   cause   is   shown,   the   court   will   set   aside   the


abatement or dismissal. If however such application is dismissed, the order


dismissing such an application is open to challenge in an appeal under Order


43 Rule 1(k) of the Code.



(g)     A   person   claiming   to   be   the   legal   representative   cannot   make   an


application   under   rule   9(2)   of   order   22   for   setting   aside   the   abatement   or


dismissal, if he had already applied under order 22 Rule 3 for being brought


on   record   within   time   and   his   application   had   been   dismissed   after   an


enquiry   under   Rule   5   of   Order   22,   on   the   ground   that   he   is   not   the   legal


representative.



6.      We may next consider the remedies available to an applicant whose


application under Order 22 Rule 3 of the Code, for being added as a party to


the suit as legal representative  of the deceased plaintiff, has been rejected.


The normal remedies available under the Code whenever a civil court makes


an order under the Code are as under:


                                                 8





    (i)      Where the order is a `decree' as defined under section 2(2) of the


             Code,   an   appeal   would   lie   under   section   96   of  the   Code   (with   a


             provision for a second appeal under section 100 of the Code).



    (ii)     When   the   order   is   not   a   `decree',   but   is   an   order   which   is   one


             among those enumerated in section 104 or Rule 1 of Order 43, an


             appeal would lie under section 104 or under section 104 read with


             order 43, Rule 1 of the Code (without any provision for a second


             appeal).



    (iii)    If   the   order   is   neither   a   `decree',   nor   an   appealable   `order'


             enumerated in section 104 or Order 43 Rule 1, a revision would lie


             under   section   115  of  the   Code,   if   it  satisfies   the   requirements   of


             that section.



When a party is aggrieved by any decree or order, he can also seek review as


provided in Section 114 subject to fulfillment of the conditions contained in


that   section   and   Order   47   Rule   1   of   the   Code.   Be   that   as   it   may.   The


difference   between   a   `decree'   appealable   under   section   96   and   an   `order'


appealable under section 104 is that a second appeal is available in respect of


decrees in first appeals under section 96, whereas no further appeal lies from


an order in an appeal under section 104 and Order 43, Rule 1 of the Code.


The   question   for   consideration   in   this   case   is   whether   the   order           dated


31.8.1996 of the trial court dismissing an application under Order 22 Rule 3


                                                    9



and consequently dismissing the suit is an order amenable to the remedy of


appeal or revision. If the remedy is by way of appeal, the incidental question


would   be   whether   it   is   under   section   96,   or   under   section   104   read   with


Order 43, Rule 1 of the Code.





7.      Section 96 of the Code provides that save where otherwise expressly


        provided   in the  body  of  the  Code  or by  any  other   law for  the  time


        being in force, an appeal shall lie from every decree passed by any


        court exercising  original  jurisdiction  to the court  authorized  to hear


        appeals from the decision of such court. The word `decree' is defined


        under section 2(2) of the Code thus:


        "decree" means the formal expression of an adjudication which, so far as

        regards the Court expressing it, conclusively determines the rights of the

        parties with regard to all or any of the matters in controversy in the suit

        and may be either preliminary or final. It shall be deemed to include the

        rejection of a plaint and the determination of any question within section

        144, but shall not include -


        (a)   any   adjudication   from   which   an   appeal   lies   as   an   appeal   from   an

             order, or

        (b)  any order of dismissal for default.


        Explanation.--A decree is preliminary when further proceedings have to

        be  taken  before  the  suit  can  be  completely  disposed  of.  It is  final  when

        such   adjudication   completely   disposes   of   the   suit.   It   may   be   partly

        preliminary and partly final;"


                                                   1



A   reading   of   the   definition   of   decree   in   Section   2(2)   shows   that   the


following   essential   requirements   should   be   fulfilled   if   an   order   should   be


treated as a `decree' :


      (i)        there should be an adjudication in a suit;


      (ii)       the   adjudication   should   result   in   a   formal   expression   which   is

                 conclusive so far as the court expressing it;


      (iii)      the adjudication should determine the rights of parties with regard

                 to all or any of the matters in controversy in the suit; and


      (iv)       the adjudication should be one from which an appeal does not lie

                 as   an   appeal   from   an   order   (under   section   104   and   order   43

                 Rule 1 of the Code) nor should it be an order dismissing the suit

                 for default.

                                                                           (emphasis supplied)




8.            There   is   no   dispute   that   the   order   dated   31.8.1996   made   on   the


application   under   Rules   3   and   5   of   Order   22   of   the   trial   court   satisfies


requirements   (i)  and  (ii).  The   question  is  whether  it satisfies   the  third  and


fourth   requirements.   We   may   first   consider   the   fourth   requirement.   No


appeal is provided against an order under Order 22 Rule 3 and 5 of the Code,


either under section 104 or Order 43 Rule 1 of the Code. Clause (k) of Rule


1 of Order 43 of the Code however provides that an appeal shall lie under


Section 104 of the Code, from an order under Rule 9 of Order 22 refusing to


set   aside   the   abatement   or   dismissal   of   a   suit.   Sub-Rule   (2)   of   Rule   9   of


Order 22 permits a legal representative of a deceased plaintiff to apply for an


                                                 1



order to set aside the abatement or dismissal under Order 22 of the Code. An


order under Rule 9(2) refusing to set aside an abatement or dismissal of the


suit is contemplated, only where there is abatement or dismissal under order


22 and an application has been made by a legal representative to set aside


such   abatement   or   dismissal.   But   where   a   person   claiming  to   be   the   legal


representative had already filed an application under Order 22 Rule 3 within


the   period   of   limitation,   and   such   application   has   been   dismissed   on   the


ground   that   he   is   not   a   legal   representative,   there   is   no   question   of   such


applicant  under Order 22 Rule 3, filing an application under Rule 9(2) for


setting aside the abatement or dismissal. An application under Rule 9(2) can


be filed only if there is abatement or dismissal under Order 22 on account of


no application being made. Therefore when an order is passed under Order


22   Rules   3   and   5   of   the   Code,   dismissing   an   application   by   a   person


claiming   to   be   a   legal   representative   on   the   ground   that   he   is   not   a   legal


representative and consequently dismissing the suit, it will not be a dismissal


under Rule 9(2) of Order 22 which is amenable for an appeal under section


104 read with Order 43 Rule 1(k) of the Code. It therefore follows that an


order under Order 22 Rule 3 and 5 is not appealable under section 104 or


Order 43 Rule 1 of the Code.


                                               1



9.      Having   found   that   the   order   under   Order   dated   31.8.1996   complied


with requirements (i), (ii) and (iv), what remains to be considered is whether


it fulfils requirement (iii) also, so that it will answer the definition of decree


in section 2(2) of the Code.   Requirement (iii) is that the adjudication must


determine the rights of the parties with regard to all or any of the matters in


controversy in the suit. The applicant in an application under Order 22 Rule


3 is not a party to the suit. An application under Order 22 Rule 3 is by a non-


party requesting the court to make him a party as the legal representative of


the   deceased   plaintiff.   Necessarily   unless   the   applicant   in   the   application


under Order 22 Rule  3 allowed and the applicant  is permitted  to come on


record as the legal representative of the deceased, he will continue to be a


non-party to the suit. When such an application by a non-party is dismissed


after a determination of the question whether he is a legal representative of


the   deceased   plaintiff,   there   is   no   adjudication   determining   the  rights   of


parties to the suit  with regard to all or any of the matters in controversy in


the suit.  It is determination of a collateral issue as to whether the applicant,


who   is   not   a   party,   should   be   permitted   to   come   on   record   as   the   legal


representative of the deceased. Therefore an order dismissing an application


under   Order   22   Rule   3   after   an   enquiry   under   Rule   5   and   consequently


dismissing the suit, is not a decree.


                                              1



10.     As   the   order   dated   31.8.1996   is   neither   a   `decree'   appealable   under


section 96 of the Code nor an order appealable under section 104 and Order


43 Rule 1, the remedy of the applicant under Order 22 Rule 3, is to file a


revision.   The   High   Court   was   therefore,   right   in   its   view   that   the


adjudication   of   the   question   whether   an   applicant   in   an   application   under


Order 22 Rule 3 was a legatee under a valid will executed by the deceased


plaintiff in his favour, was not a not a decree and therefore the remedy of the


applicant was to file a revision.





11.     The   appellant   submitted   that   even   if   the   rejection   of   an   application


under Order 22 Rule 3 after an enquiry under Rule 5, may not amount to a


decree, the consequential dismissal of the suit on the ground that there is no


legal   representative,   is   a   denial   of   the   substantive   rights   claimed   by   the


plaintiff against the defendant in the suit. This contention is clearly flawed.


If the court orders that suit has abated or dismissed the suit as having abated,


as a consequence of rejection of an application under Order 22 Rule 3 of the


Code, as noticed above, there is no determination of rights of parties with


regard to any of the matters in controversy in the suit and therefore the order


is not a decree. But if an order declares that the suit has abated, or dismisses


a suit not as a consequence of legal representatives filing any application to


                                                     1



come on record, but in view of a finding that right to sue does not survive on


the death of sole plaintiff, there is an adjudication determining the rights of


parties in regard to all or any of the matters in controversy in the suit, and


such order will be a decree. But that is not the case here. Similar contention


raised   before   various   High   Courts   have   repeatedly   negatived   by   different


High   Courts.   It   is   sufficient   to   refer   to   two   of   them   with   which   we


respectfully agree.





12.    A full Bench decision of the Lahore High Court in  Niranjan Nath v.


Afzal Hussain - AIR 1916 Lahore 245 held as follows:




       "After examining the matter  carefully we consider that if a court passes a

       purely   formal   order   recognizing   the   abatement,   which   is   a  fait   accompli,

       such   an   order,   though   virtually   disposing   of   the   suit,   does   not   adjudicate

       upon any rights, and cannot be treated as a decree. An order of this nature,

       as observed already, merely records an abatement, which has already taken

       place by reason of the lapse of six months*,  after the death of the plaintiff,

       and does not contain any decision arrived at by the court. In a case of this

       kind Order 22, Rule 9 allows the legal representative to make an application

       for   the   revival   of   the   suit,   and   the   only   question   the   court   is   thereupon

       required   to   determine   is   whether   the   applicant   was   prevented   by   any

       sufficient   cause   from   continuing   his   suit,   and   if   the   decision   is   in   the

       negative, the aggrieved party is entitled to prefer an appeal against that order

       under Order 43 Rule 1(k). The decision of the appellate court is, however,

       made final and a second appeal is not competent.


       The language of Order 22, Rule 9(2) when carefully examined, leads us to

       the conclusion that it is confined to cases in which the abatement takes place

       by reason of an application not having been made within the time permitted

       by law  to implead  the  legal  representative  of the  deceased  plaintiff or the

       deceased defendant, and that it has no applicability to cases in which the suit

       has abated on account of some other cause. This view receives support from

       the decision of the Madras High Court in Subramania Iyer v. Venkataramier


                                                        1



       (1915) 31 I.C. 4. Suppose, the sole plaintiff in a suit dies, and in spite of an

       application within six months*  by his legal representative  the court holds

       that   the   right   to   sue   does   not   survive,   and   consequently   directs   the

       abatement of the suit. An abatement of this character obviously stands on a

       different footing. It does no take place ipso facto. The court does not record

       a merely formal order reciting a past event, as in the case of an abatement in

       consequence of an application not having been made within the prescribed

       period  to  implead  the  legal   representative,  but  it  exercises   its mind   in the

       determination of a matter in controversy. The decision of the court directing

       the abatement of the suit is, in our opinion, a decree, because the right to

       represent  the deceased is a point in controversy between  the claimant  and

       the opposite party, and the adjudicator determines their rights with respect

       thereto,   and   puts   an   end   to   the   case,   there   being   no   appeal   from   the

       adjudication as an appeal from an order. An application under Rule 9 is, as

       observed above, incompetent and it is difficult to believe that the Legislature

       intended that the decision of a matter, which concludes the suit, should be

       final and that the aggrieved party should have no remedy whatever.


       (*what   is   referred   as   `six   months'   is     three   months,   under   Article   120   of

       Limitation Act, 1963).


                                                                                 (emphasis supplied)




13.    In  Mitthulal   vs.   Badri   Prasad  -   AIR   1981   Madh.   Pradesh   1,   a   full


Bench of the Madhya Pradesh High Court held as follows :




       "There seems to be a general consensus of judicial opinion that all orders

       of abatement are not decrees. Only those orders of abatement are decrees

       in which the Court comes to the conclusion that the right to sue does not

       survive   on   the   death   of   the   sole   plaintiff   or   on   the   death   of   one   of   the

       plaintiffs to the surviving plaintiffs. The orders of abatement which follow

       consequent   on   the   failure   of   the   legal   representative   of   plaintiff   to   be

       brought on record within the period allowed by law or due to the Court

       deciding that a particular applicant is not the legal representative, such

       orders do not amount to decree.  The reason being that  the abatement  is

       automatic   consequent   on   the   failure   of   the   legal   representative   to   be

       brought on record within the period of limitation  and no formal order is

       necessary. So there is no adjudication on the rights of the parties in the suit

       or   appeal   by   such   an   order.   An   order   under   Order   22,   Rule   5   cannot

       obviously be said to fall within the definition of decree for the following

       reasons   (i)   the   order   is   made   only   for   the   purpose   of   determining   who

       should   continue   the   suit   as   brought   by   the   original   plaintiff.   It   is   not

       intended to determine and it does not, in fact, determine the rights of the


                                                         1



        parties   with   regard   to   any   of   the   matters   in   controversy   in   suit.   The

        question that arises for decision and actually decided is not one arising in

        the suit itself but is one that arises in a collateral proceeding and has to be

        got   decided   before   the   suit   can   go   on;   and   (ii)   In   order   to   operate   as   a

        decree,  the   adjudication   must  be   one  between   the  parties   to  the   original

        suit   or   their   legal   representatives,   and   with   regard   to   only   matters   in

        controversy between the original parties and, therefore,  cannot include  a

        decision   of   the   question   as   to   whether   certain   individual   is   or   is   not

        entitled to represent one of such parties. In cases where the Court comes to

        the   conclusion   that   the   right   to   sue   does   not   survive   consequent   on   the

        death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs,

        there is final adjudication of the rights of the parties and the order amounts

        to decree."

                                                                                  (emphasis supplied)





Re: Question (ii)




14.     The trial court concentrated upon the evidence of the attesting witness


(Balwant) to the will, and found it inadequate and therefore held that the will


not   proved.   But   the   appellate   court,   in   addition   relied   upon   the   fact   that


deceased   plaintiff   himself,   when  he  was  alive,  had  filed   an  application  on


25.10.1994   where   he   referred   to   the   execution   of   the   will.   The   appellate


court   concluded   that   the  evidence   of  the  attesting   witness   when   read   with


statement/admission   of   the   deceased   plaintiff   himself,   established   due


execution of the will and that the appellant was the legatee under the will of


plaintiff.   Thus,   the   appellate   court   had   given  cogent   reasons  for   accepting


the   appellant   to   be   the   legal   representative   of   the   deceased   plaintiff,   in


pursuance of the will. The High Court, after holding that the appeal filed by


appellant   under   section   96   of   the   Code   before   the   District   Court   was   not


                                                  1



maintainable,  should not have proceeded to consider  the matter on merits.


But the High Court chose to examine the merits of the matter, in a brief and


casual manner and held that the finding of the trial court was preferable and


finding of the first appellate court was erroneous. The High Court failed to


consider all the facts and circumstances  considered by the appellate  court.


Having held that the appellate court could not have entertained the appeal,


the High Court was not required to examine the matter on merits. If it chose


to do so, it ought to have done in thoroughly, which it did not.




Conclusion




15.     In   view   of   the   above,   the   finding   of   the   High   Court   that   the   order


dated 31.1.1996 passed by the trial court, was not appealable is upheld. The


finding   of   the   High   Court   that   the   will   was   not   proved   and   therefore,   the


appellant was not a legal representative is set aside as the said finding was


not   warranted   without   consideration   of   the   entire   evidence.   As   a


consequence,   it   will   be   open   to   the   appellant   to   challenge   the   order   dated


31.8.1996 in a revision petition before the High Court and if such a revision


is   filed,   the   period   spent   till   now   in  bona   fide  litigation,   shall   have   to   be


excluded for purposes of limitation.


                                              1



16.     We accordingly allow this appeal in part and set aside the finding of


the High Court on the merits of the matter. As we have upheld the finding of


the   High   Court   that   the   order   dated   31.8.1996   was   not   a   decree   and   not


appealable, we uphold the setting aside of the judgment dated 28.1.1998 of


the appellate court, but reserve liberty to the appellant to challenge the order


dated 31.8.1996 in revision. If a revision is filed within 90 days from today,


the High Court will condone the delay in view of pendency of the matter till


now.





                                                        ................................J.

                                                        (R V Raveendran)





New Delhi;                                              ................................J.

July 4, 2011.                                           (A K Patnaik)            

a joint development agreement dated 18.2.2007 was entered into between "Father A.John Bosco, President, The Gaunellian Society" as the owner, and the appellant as the developer, in regard to three acres of land and that clause 18 of the said agreement provided for settlement of disputes arising out of the said agreement by arbitration. It is further alleged by the appellant that on 20.2.2007, the said Father A. John Bosco, President, The Guanellian Society, executed a power 2 of Attorney in favour of the appellant in connection with the development of the said property with power to enter into agreements of sale and also to transfer and convey an extent of 70% undivided share in the said property.

                                               1



                                                                                  Reportable

                      IN THE SUPREME COURT OF INDIA


                       CIVIL APPELLATE JURISDICTION


                         CIVIL APPEAL NO. 4926 OF 2011

                     [Arising out of SLP [C] No.3835 of 2010]




Khivraj Motors                                                          ... Appellant


Vs.


The Guanellian Society                                                  ... Respondent





                                    J U D G M E N T





R.V.RAVEENDRAN, J.




        Leave granted. Heard.


2.      The   appellant   alleges   that   a   joint   development   agreement   dated


18.2.2007 was entered into between "Father A.John Bosco, President, The


Gaunellian   Society"   as   the   owner,   and   the   appellant   as   the   developer,   in


regard   to   three   acres   of   land   and   that   clause   18   of   the   said   agreement


provided   for   settlement   of   disputes   arising   out   of   the   said   agreement   by


arbitration. It is further alleged by the appellant that on 20.2.2007, the said


Father A. John Bosco, President, The Guanellian Society, executed a power


                                                2



of Attorney in favour of the appellant in connection with the development of


the   said   property   with   power   to   enter   into   agreements   of   sale   and   also   to


transfer and convey an extent of 70% undivided share in the said property.




3.           The Gaunellian Society, (`Society' for short) the respondent herein, at


its   Extraordinary   Meeting   held   on   10.1.2008,   passed   a   resolution   that   the


Managing Committee of the Society had not authorized its President to deal


with the property and therefore the joint development agreement and general


power of attorney executed by him were null and void and not binding on


the Society. On 17.4.2009 the respondent Society filed an application under


section 11 of the Arbitration and Conciliation Act, 1996 (`Act' for short) for


appointment   of   an   arbitrator   for   resolution   of   the   disputes   between   the


Society and the appellant.





4.           The appellant resisted the said petition alleging that the application by


the Society was not maintainable for the following reasons :




      (a)       the lands was purchased and owned by Father A.John Bosco, in his

                individual capacity and not as the President of the Society;


      (b)       Father   A.   John   Bosco   entered   into   the   joint   development

                agreement in respect of the property in his individual capacity and

                not as the President of the Society.


                                                    3



       (c)       Though the joint development agreement contained a provision for

                 arbitration,  as the respondent  society  was not a party to the joint

                 development   agreement   containing   the   arbitration   agreement,   the

                 petition under section 11 by the Society was not maintainable.




5.            A designate of the Chief Justice of the Karnataka High Court by order


dated   26.10.2009   allowed   the   said   application   and   appointed   a   retired


District   Judge   as   the   sole   arbitrator.   The   High   Court   held   that   the   joint


development agreement was executed between the Society and the appellant


and   that   Father   A.John   Bosco   had   signed   the   said   agreement,   only   in   his


capacity   as  the   President   of the  Society  and  not  in  his   individual   capacity


and therefore the application under section 11 of the Act by the Society was


maintainable.





6.            The   said   order   is   contested   by   the   appellant,   inter   alia,   on   the


following grounds :




(i)           The   joint   development   agreement   was   entered   into   between   Father


A.John Bosco, as the owner of the property and the appellant, as developer.


As the Society was not a party to the joint development agreement, there is


no privity of contract between the Society and the appellant. The arbitration


clause in the said agreement could not therefore be invoked by the Society


for resolving any dispute relating to the joint development agreement.


                                              4



(ii)    Even if the Society is a party to the joint development agreement, as


the   Society   had   alleged   that   the   appellant   had   adopted   unfair   means   and


exercised   undue   influence   over   Father   A.John   Bosco   to   get   the   joint


development agreement executed by him, it would not be appropriate for an


arbitral tribunal, a private forum, to adjudicate upon such serious allegations.


The   civil   court   alone   should   decide   such   serious   allegations   so   that   the


appellant could vindicate itself.





The   appellant   also   attempted   to   raise   several   other   contentions   relating   to


title  and  merits  of  the  dispute,  which   are   wholly  alien   to  the   scope  of  the


proceedings   under   Section   11   of   the   Act   and   therefore   need   not   be


considered.




7.      In the special leave petition, the appellant specifically contended that


the Society was not a signatory or party to the joint development agreement.


Though, a typed copy of the joint development agreement is produced as an


annexure to the special leave petition, it did not show who signed the joint


development   agreement   as   owner   of   the   property.   In   view   of   the   said


averment   in   the   special   leave   petition,   this   Court   directed   notice   on   the


petition   on   15.2.2010.   The   respondent   society   has   produced   alongwith   its


counter,   a   photocopy   of   the   registered   joint   development   agreement   dated


18.2.2007 and the registered power of attorney dated 28.2.2007 executed in


                                              5



favour of the appellant. The appellant does not dispute the correctness of the


said copies produced by the respondent society.




8.     An examination of the photocopy of the joint development agreement


shows   clearly   that   it   was   not   executed   by   Father   A.John   Bosco   in   his


individual   capacity.   The   document   describes   `Father   A.John   Bosco,


President, Gaunellian Society' as the first party or the owner. The signature


of the first party/ owner on each page of the document is as under:




                                 "For The Gaunellian Society

                                 [Sd/- Fr. A.John Bosco]

                                 President"




The said agreement is also signed by Mr. Pushpchand Chordia as the power


of attorney holder of the partners of the appellant. There are only the said


two   signatories   to   the   agreement,   that   is   the   Society   represented   by   its


President and the appellant represented by its Attorney Holder.   Fr. A.John


Bosco   has   not   executed   the   joint   development   agreement   in   his   personal


capacity.  The  power  of  attorney  is  also  executed  by  the Society.  Thus  the


respondent Society is the first party under the joint development agreement


and   not   Father   A.John   Bosco.   We   may   also   note   that   if   Father   A.   John


Bosco   was   executing   the   joint   development   agreement   in   his   personal


capacity, there was no need for him to describe himself as the "President of


                                              6



the   Gaunellian   Society"   and   sign   the   document   for   and   on   behalf   of   the


Gaunellian Society, as its President. Therefore the application under section


11 of the Act filed by the Society against the respondent was maintainable as


the  petitioner   and  the  respondent   in  the   application   under  section  11  were


parties   to  the   joint   development  agreement   containing   a   provision   (Clause


18) for settlement of disputes arising out of the agreement by arbitration.




9.     The appellant has raised a contention that the owner of the property is


not the Society and that Father A.John Bosco in his personal capacity was


the owner and that he had entered into a joint development agreement and


executed   a   power   of   attorney   in   his   personal   capacity   in   favour   of   the


appellant. But as noticed above, Father A.John Bosco has neither executed


the joint development agreement nor the power of attorney in his individual


capacity   and   the   executant   is   "The   Gaunellian   Society"   represented   by   its


President Father A.John Bosco.   If the contention  of the appellant that the


owner is Father A. John Bosco, and not "The Gaunellian Society", is taken


to   its   logical   conclusion,   the   effect   would   be   that   there   is   no   joint


development agreement or power of attorney by the owner of the property in


favour of the respondent and the joint development agreement and the power


of attorney signed by a party who is not by the owner would be worthless


                                             7



papers. Be that as it may. We have referred to this aspect only to show the


absurdity of the contention raised by the appellant.




10.    The respondent Society has no doubt contended that the contract was


concluded   with   unconscionable   and   unfair   terms   and   that   the   Managing


Committee of the Society had not authorized its President -- Father A.John,


Bosco to enter into any such joint development agreement. These allegations


no doubt relate to the validity of the joint development agreement, but will


have no bearing on the validity of the arbitration agreement (Clause 18 of


the agreement), which is an independent agreement incorporated and rolled


into   the   joint   development   agreement.   The   Arbitrator   will   examine   the


validity   and   binding   nature   of   the   joint   development   agreement.   There   is


nothing   in   the   claims   and   contentions   of   the   Society   which   excludes   the


operation of the arbitration agreement or necessitates rejection of the request


for appointment of an arbitrator.




11.    The appeal is therefore dismissed with costs of Rs.25,000/- payable by


the appellant to the respondent. We find that the arbitration has been delayed


for nearly one and a half years on account of the pendency of this special


leave petition. We therefore request the Arbitrator to proceed with the matter


expeditiously.


                                          8





12.    We make it clear that what we have considered is the limited question


as to who is the executant of the agreement. We have not pronounced upon


the question whether Father A.John Bosco was authorized to execute such a


joint   development   agreement.   Nor   have   we   considered   the   contentions


relating to the title to the property.





                                                ................................J.

                                                (R V Raveendran)





New Delhi;                                      ..............................J.

July 4, 2011.                                   (A K Patnaik)