# NAINSINGH v. KOONWARJEE AND OTHERS

- **Citation:** [1971] 1 S.C.R. 207
- **Court:** Supreme Court of India
- **Decided:** 1970-04-02
- **Bench:** J. C. Shah, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nainsingh-v-koonwarjee-and-others-4990
- **Pages:** 4

## Headnote

207
Code of Civil Procedure (5 of 1908) s. 151 -No appeGI againSl uder
vf re111and-Scope of r.ppellate Court's power on appeal on findi11r;5 efter
ren1<vnf.
Jagir Abolition Act. 1951-Rights of Jagirdar to property in •cpect
C
of 1Vhic!1 suit filed before enactn1ent of rhe Act.
D
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The tenant of the appellant-a Jagirdar, died without leaving any CHale
issues.
His distant relations-the respondents, took possession of his ;'ro·
perties.
Thereupon the appellant brought a suit claiming posscssicn of
the properties as he \vas the O\\ ner.
The trial court dismissed the suit
holding that the civil court has no jurisdiction to entertain the suit, <.~nd
that in view of the Jagir Abolition Act, 1951 which was enacted <luring
the pendency of the suit and with the vesting of the suit properties i~ the
State, the appellant was not entitled to claim.
The first appellate court
reversed these findings and held that though the suit properties had w<!ed
in the State. it \\'as for the State to get itself impleaded, and as the State
had not got itself implcaued. it was open to the appellant to press the rnit.
In Yicw of these conclusions, the appellilte court remanded the sui! to
\.lecidc the other undecided issues.
After the remand, the trial court ~f"ga ..
tivcJ the rcspondents-c..lefcnJants contention and decreed the suit. Jn
appeal that decree was affirme<l.
In second appeal, the High Court apeed
\Vith the courts belo''' on all i!'sues except that relating to the effect of
"bolition of Jagirs.
It held that under the Jagir Abolition Act, the .crpel·
lant lost his title to the' suit properties.
In its view that issue \\:3S not
concluded by the decision of the appellate court made before remand as
the same had not been appealed against, since the court had
inht~rent
power to consider the correctness of that order. In appeal. this Court :
HELD : The case must be remanded for determination of the right
of all the parties afte'r impleading the State as a party.
The correctness of the rcn1and orde!' \\'as not open to revie\v l'y the
High Court. The order in question was made under rule 23, Orde; 41,
Civil Procedure Code. That order was appealable under Orde'r 43 of that
Code. As the same \\·a5 not appealed r:igainsti its correctness was no more
open to examination in view of s. 105 ( 2) of the Code which lays down
that where any party aggrieved by an order of remand from which an
appeal lies does not appeal therefrom he shall thereafter be precluded lrom
disputing its correctness.
The High Court has misconceived the soore of
its inherent po\vers.
Under the inherent power of courts recognise<i bv
s. 151. Civil Procedure Code. a court has no power to do that which
is prohibited by the Code. Inherent jurisdiction of court must be exerri,ed
subject to the rule that if the Code does contain specific provisions which
would meet the necessities of the case. such provisions should be folkwed
and inherent jurisdiction should not he involved. In other words the c our!
cannot make use of the special provisions of s. 151 of the Code .... here
a party had his remedy provided ehewhere in the Code and he nerlected
208
'"
[1971] 1 S.C.R.
SUPREME COURT REPORTS
to av;lt-hiinself of the same. Further the power under s. 151 of the Code
A
cannot be exercised as an appellate power.
The appellant-Jagirdar had not lost all rights in the suit properties.
The suit properties vested in the State in view of the Jagir Abolition Act.
-But it was conceded at the bar that if the appellant was proved to have
'beeu. the owner of the suit properties on the day the Jagir Abolition Act
cani'(! into fo:rce, he was entitled to the compensation provided in that Act.
Therefore the appellant was interested in establishing that on the date
J agir Abolition Act came into force, he was the full owner _ _of the suit
··properties. [210 CJ
Himatrao v. Jaikishandas and Ors. [1931] 3 S.C.R .. 815; followed.
CIVIL APPELLATE JurusoicnoN: Civil Appeal No. 1460 of
1966.
Appeal by special leave from

## Text

•
A
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NAINSINGH
v.
KOONWARJEE AND OTHERS
April 2, 1970
[J. C. SHAH AND K. S. HEGDE, JJ.]
207
Code of Civil Procedure (5 of 1908) s. 151 -No appeGI againSl uder
vf re111and-Scope of r.ppellate Court's power on appeal on findi11r;5 efter
ren1<vnf.
Jagir Abolition Act. 1951-Rights of Jagirdar to property in •cpect
C
of 1Vhic!1 suit filed before enactn1ent of rhe Act.
D
E
F
G
The tenant of the appellant-a Jagirdar, died without leaving any CHale
issues.
His distant relations-the respondents, took possession of his ;'ro·
perties.
Thereupon the appellant brought a suit claiming posscssicn of
the properties as he \vas the O\\ ner.
The trial court dismissed the suit
holding that the civil court has no jurisdiction to entertain the suit, <.~nd
that in view of the Jagir Abolition Act, 1951 which was enacted <luring
the pendency of the suit and with the vesting of the suit properties i~ the
State, the appellant was not entitled to claim.
The first appellate court
reversed these findings and held that though the suit properties had w<!ed
in the State. it \\'as for the State to get itself impleaded, and as the State
had not got itself implcaued. it was open to the appellant to press the rnit.
In Yicw of these conclusions, the appellilte court remanded the sui! to
\.lecidc the other undecided issues.
After the remand, the trial court ~f"ga ..
tivcJ the rcspondents-c..lefcnJants contention and decreed the suit. Jn
appeal that decree was affirme<l.
In second appeal, the High Court apeed
\Vith the courts belo''' on all i!'sues except that relating to the effect of
"bolition of Jagirs.
It held that under the Jagir Abolition Act, the .crpel·
lant lost his title to the' suit properties.
In its view that issue \\:3S not
concluded by the decision of the appellate court made before remand as
the same had not been appealed against, since the court had
inht~rent
power to consider the correctness of that order. In appeal. this Court :
HELD : The case must be remanded for determination of the right
of all the parties afte'r impleading the State as a party.
The correctness of the rcn1and orde!' \\'as not open to revie\v l'y the
High Court. The order in question was made under rule 23, Orde; 41,
Civil Procedure Code. That order was appealable under Orde'r 43 of that
Code. As the same \\·a5 not appealed r:igainsti its correctness was no more
open to examination in view of s. 105 ( 2) of the Code which lays down
that where any party aggrieved by an order of remand from which an
appeal lies does not appeal therefrom he shall thereafter be precluded lrom
disputing its correctness.
The High Court has misconceived the soore of
its inherent po\vers.
Under the inherent power of courts recognise<i bv
s. 151. Civil Procedure Code. a court has no power to do that which
is prohibited by the Code. Inherent jurisdiction of court must be exerri,ed
subject to the rule that if the Code does contain specific provisions which
would meet the necessities of the case. such provisions should be folkwed
and inherent jurisdiction should not he involved. In other words the c our!
cannot make use of the special provisions of s. 151 of the Code .... here
a party had his remedy provided ehewhere in the Code and he nerlected
208
'"
[1971] 1 S.C.R.
SUPREME COURT REPORTS
to av;lt-hiinself of the same. Further the power under s. 151 of the Code
A
cannot be exercised as an appellate power.
The appellant-Jagirdar had not lost all rights in the suit properties.
The suit properties vested in the State in view of the Jagir Abolition Act.
-But it was conceded at the bar that if the appellant was proved to have
'beeu. the owner of the suit properties on the day the Jagir Abolition Act
cani'(! into fo:rce, he was entitled to the compensation provided in that Act.
Therefore the appellant was interested in establishing that on the date
J agir Abolition Act came into force, he was the full owner _ _of the suit
··properties. [210 CJ
Himatrao v. Jaikishandas and Ors. [1931] 3 S.C.R .. 815; followed.
CIVIL APPELLATE JurusoicnoN: Civil Appeal No. 1460 of
1966.
Appeal by special leave from the judgment !illd decree dated
April 30, 1965 of the Madhya High Court, Indore Bench in Second
Appeal No. 209 of 1962.
G. L, Sanghi, P. C. Bhartari, for the appellants.
c
Rameshwar Nath, for respondents Nos. 1 to 4.
D
The Judgment of the Court was delivered by
Hegde, J. _The only question that falls for decision in this
appeal by special leave is as to the application of s. 151, Civil Procedure Code to a remand order falling within s. 105 ( 2) of that
Code.
The facts leading upto the point under consideration may
now be stated. The appellant was the Jagirdar of the suit properties. One Bhagirath was his tenant. The said Bhagirath died
in the year 1947 leaving behind no male issues.
His wife had
predeceased him.
Re had two daughters who were living at the
time of his death. After his death, defendants Nos. 1 to 5 who
are his distant relations took possession of the suit properties and
got the reveriue records changed in their names. Thereafter the
appellant brought the suit under appeal seeking the following
reliefs:-
·
(1 ) to declare that he is the owner . of the suit properties; ( 2)
to quash the order of the Tehsildar dated November 8, 1949 transferring the khata relating to the suit properties to the names of
Defendants 1 to 5; ( 3) to grant possession of those properties to
him and ( 4) other usual incidental reliefs.
The defendants resisted the plaintiff's claim. They contended
inter alia that ( 1) the civil court had no jurisdiction to entertain
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the suit; (2) the plaintiff had lost right over the suit properties in
B
view of the Jagir Abolition Act, 1951 which came into force on
December 4, 1952 during the pendency of the suit and (3) the
1st defendant being the adopted son of Bhagirath is entitled to
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G
H
NAINSINGH v. KOONWARJEE (Hegde, I.)
209
the possession of the suit properties. In the suit several issues
were raised. It is not necessary to refer to them in view of the
limited scope of th~ appeal. The trial court dismissed the suit
upholding the contention of the defendants on two issues viz. ( 1)
that the civil court had no jurisdiction to entertain the suit and (2)
that in view of the Abolition of Jagirs and the vesting of the suit
properties in the State, the plaintiff can claim no relief. The first
appellate court reversed the findings of the trial court on those
issues. It came to the conclusion that the civil court had jurisdiction to entertain the suit. It further held that though in 'view of
the abolition of the jagirs, the suit properties had vested in the
State, it was for the State to get itself impleaded if it is interested
in this litigation and as the State had not chosen to get itself impleaded, it was open to the plaintiff to press the suit. In view of
those conclusions, the appellate court set aside the d.ecree of the
trial court and remanded the suit to the trial court for deciding
the other issues left undecided.
After the remand, the
trial
court negatived every one of the contentions taken by the defendants and decreed the suit as prayed for.
In appeal
that
decree was confirmed. In second appeal the High Court of
Madhya Pradesh agreed with the trial court and the appellate
court on the findings given on all issues excepting the issue relating
to the effect of abolition of the jagirs on the suit. On that issue,
it came to the conclusion that in view of the abolition of jagirs
under the Jagir Abolition Act, the plaintiff had lost his title to the
suit properties and therefore he could not get a decree for possession of the suit properties. Ii rejected the contention of ihe plaintiff that that issue is concluded by the decision of the appeilate court
made before remand as the same had, not been appealed against.
, It opined that the court had inherent power to consider the correctness of that order.
It accordingly allowed the appeal and dis•
missed the suit.
The High Court, in our opinion, erred in holding that the
correctness of the remand order was open to review by it. The
ord.er in question was made under rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that
Code. As the same was not appealed against, its correctness was
no more open to examination in view of s. 105 (2) of the Code
which lays down that where any party aggrieved by an order of
remand from which an appeal lies does not appeal therefrom he
shall thereafter be precluded from disputing its correctness. The
High Court has misconceived the scope of its inherent powers.
Under the inherent power of courts recognised by s. 151, Civil
Procedure Code, a court has no power to do that •vbich is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provi-
210
SUPREME COURT REPORTS
[1971] 1 S.C.R.
sicns which would meet the necessities of the case, such provisions
A
should be followed and inherent jurisdiction should not be invoked.
In other words the court cannot make use of the special provisions
·Of s. 151 ?f the Code where a party had his remedy provided
elsewhere m the Code and he neglected to avail himself of the
same. Further the power under s. 151 of the Code cannot be exercised as an appellate power.
B
We are also of the opinion that the High Court is not right in
holding that in view of the abolition of the Jagirs, the pfaintiff. bad
lost all rights in the suit properties. It is true that in view of the
provisions of the Jagir Abolition Act, the suit properties vested
in the State. But it was conceded at the bar that if Pie plaintiff is
prov~d to have been the owner of the suit properties on the day
the Jagir Abolition Act came into force, he is entitled to the ccm·
pensation provided in that Act. Therefore the plaintiff is interest·
ed in establishing that on the date Jagir Abolition Act came into
force, he was the full owner· of the suit properties. The facts of
this case fall within the rule laid down by this Court in Himatrao
v. Jaikishandas and Ors.('). On the facts of this case the interests
of justice would have been better served if the High Court had
ordered the impleading of the State of Madhya Pradesh in· the
appeal before it and determined the rights of all the parties finally.
Hence we set aside the d~cree of the High Court and remand the
cas~ to that Court with a direction that the State of Madhya
Pradesh should be impleaded and the rights of all the patties
decided in accordance with law. In the cirnumstances of the case
we make no order as to costs of this appeal.
Y.P.
Case remanded.
/;}1) (19631 3 S.C..L BIS.
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