NAINSINGH versus KOONWARJEE AND OTHERS

Citation: [1971] 1 S.C.R. 207 · Decided: 02-04-1970 · Supreme Court of India · Bench: J.C. SHAH

Judgment (excerpt)

• 
A 
B 
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 i

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