FAQIR (DEAD) THROUGH SHYAM DEO v. KISHORI @ LALLOO AND ANR.

The Judgment of the Court was delivered by

D S. SAGHIR AHMAD, J. The correctness of the decision of this Court in Chandrika Misr v. Bhaiya Lal and Others, AIR (1973) SC 2391 is Jr questioned in this appeal on the ground that an important statutory provision relating to the jurisdiction of Civil or Revenue Court, as con- tained in the U.P. Zamindari Abolition and Land Reforms Act, 1951 E (hereinafter referred to as ZA & LR Act) was not brought to the notice of the Court and, therefore, the decision was rendered per incuriam. It is also questioned on the ground that decision was based on a wrong conces- sion made on a question of law by the counsel appearing on behalf of one of the parties to the appeal.

F This question has arisen in the circumstances set out hereinbelow.

On the initiation of proceedings under the U.P. Consoli<lation of Holdings Act, plots of Khatas No. 156 and 266 situated in Village Chibila Pargana Mahaich, District Varanasi, were found recorded in the name of G Faqir, who died during the pendency of proceedings in the High Court, and has since been substituted by his legal representatives. There were other Khatas also in dispute but for the purpose of the present appeal we need not look to the respective claims concerning those Khatas.

Kishori @ Lalloo, who is respondent No. 1 in this appeal, filed H objections under Section 9A(2) of the U.P. Consolidation of Holdings Act

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(hereinafter referred to as the 'Consolidation Act') setting out therein that A '\ the land of the said two khatas was his Sir and khudkhast land even before the enforcement of the ZA&LR Act and, therefore, on the date of vesting, he became its Bhumidhar. It was also set out therein that since Faqir, who was respondent No. 4 before the High Court, was trying to interfere with his possession, he filed Regular Suit No. 5 of 1954 in the Court of Munsif B on 5.1.54 for a decree for permanent injunction to restrain Faqir from interfering with his possession and in the alternative for possession over the plots in question but the suit was dismissed by the trial Court viz. the Munsif, on 10th October, 1956. He, viz., Kishori, then filed an appeal which was allowed by the Civil Judge on 29th October, 1958 and a decree was passed against Faqir and "Dakhal Dehani" was obtained by him on 19th C November, 1957. Faqir then filed Second Appeal No. 2328 of 1957 in the High Court at Allahabad but it was dismissed on 12th July, 1961. The Special Appeal No. 323 of 1961 filed thereafter by Faqir before a Division Bench of the High Court was also dismissed on 9th July, 1965. These decrees, it was claimed, operated as res judicata. It was indicated in the D objections that inspite of the aforesaid decree and "Dakhal Dehani", the revenue entries continued in the name of Faqir and, therefore, he had to file a suit for declaration of his bhurnidari rights and for expunction of the. entries existing in favour of Faqir. This suit was filed under Section 229-B of the ZA & LR Act, but the suit abated as the village in the meantime, was notified for consolidation operations under Section 4 of the Consolida- E tion Act on 15th May, 1971. It was prayed by him before the Consolidation Officer that the entries existing in the revenue record, in favour of Faqir may be expunged.

Faqir in his reply denied the claims of Kishori and contended that F the decree passed by the Civil Court was a nullity as the Civil Court had no jurisdiction to entertain the suit for permanent injunction or for the alternative relief of possession and that such a suit could be filed only before the Revenue Courts.

The Consolidation Officer by judgment and order dated 13th G December, 1972 dismissed the objections filed by Kishori and maintained the entries in favour of Faqir. This decision was challenged by Kishori in an appeal which was dismissed on 21st December, 1973 by the Assistant Settlement Officer, Consolidation. The Revision, which was thereafter filed by Kishori, was dismissed by the Deputy Director of Consolidation. H

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A Kishori, then filed Civil Miscellaneous Writ Petition No. 4714 of 1975 in the High Court which was allowed by judgment and order dated 11th December, 1986 and the judgment and order passed by the Consolidation Authorities were quashed with the direction that the entries existing in favour of Faqir in respect of Khatas No. 156 and 266 be expunged. It is against this judgment that this appeal has been filed. B Learned counsel appearing on behalf of the appellant has contended that the High Court was in error in not following the decision of this Court in Chandrika Misr v. Bhaiya Lal and Others, AIR (1973) SC 2391 in which it is clearly laid down that the Civil Court had no jurisdiction to entertain C the suit of the nature involved in that case in respect of agricultural plots and that such a suit could be filed only before the Revenue Courts.

Learned counsel for the respondent, on the contrary, has contended that the High Court was justified in not following the decision of this Court in Chandrika Misr's case as that decision was based on a concession, on a D vital question of law, made by the counsel appearing in this case as also on the ground that the relevant provisions of the ZA&LR Act, relating to the jutisdiction of the Civil or revenue Courts were not brought to the notice of the Court. It was contended that the judgment passed by this Court was, therefore, a judgment rendered per incuriam and had no binding effect. E A perusal of the judgmer.t passed by the High Court shows that the High Court did not follow the decision in Chandrika Misr's case for two reasons: the first being that it was based on a concession made by the counsel in that case on a question of law which was not correct and the second being that the judgment was rendered per incuriam. F So far as the concession made by the counsel on the question of law is concerned, we may observe that the concession was not the basis of the judgment. The observation of the Court in that regard may oe quoted below:

G "But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdiction had not been raised by the defendant in the Trial Court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it H is conceded by Mr. Yogeshwar Prasad, even in execution proceed-

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ings on the ground that the decree was a nullity. A The portion extracted above would indicate that what was conceded by the counsel in that case was that the question of lack of jurisdiction in the trial Court could be raised even at the execution stage. The question that the Civil Court had no jurisdiction to entertain the suit and that the suit could be entertained only by the Revenue Court was not conceded and that question was decided by the Court itself on merits.

Let us now proceed to examine the decision of this Court in Chandrika Misr's case (supra) to find out whether the decision was rendered on due consideration of relevant statutory provisions relating to the question of jurisdiction of Civil or Revenue Court in entertaining a suit of the nature, filed by Kishori (respondent no. 1), against Faqir in whose favour the revenue entries existed in the records, even on the date of initiation of consolidation proceedings.

The basis of the decision of this Court in Chandrika Misr's case D (supra) is the statutory provision contained in Section 331 as also Schedule II of the U.P. Zamindari Abolition and Land Reforms Act. This Court quoted the provisions of Section 331 and discussed its relevancy in the light of Schedule II as under:- 11 Section 331 so far as it is relevant is as follows : E "331. Cognizance of suits, etc., under this Act.

(1) Except as provided by or under this Act no Court other than a Court mentioned in Column 4 of Schedule II shall, not- withstanding anything contained in the Civil Procedure Code, 1908, F take cognizance of any suit, application, or proceedings mentioned in column 3 thereof."

Schedule II at serial no. 24 shows that a suit for ejectment of persons .occupying land without title under s.209 should be filed in the court of the Assistant Collector, First Class, which is described G as the Court of Original Jurisdiction. In view of Section 331 (1) quoted above it is evident that the suit made cognizable by a special court i.e. the Court of the Assistant Collector, First Class, could not be filed in a Civil Court and the Civil Court was, therefore, inherently lacking in jurisdiction to entertain such a suit. It is H

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A unfortunate that this position in Jaw was not noticed in the several Courts through which this litigation has passed, not even by the 1' ' High Court which had specifically come to the conclusion that the period of limitation was the one laid down by the rules under U .P. Act No. 1 of 1951. Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction, the pt esent appeal B filed by the plaintiffs will have to be dismissed."

It is ~et out in para I of the report that the Suit was filed on 5th September, 1955. It will be seen from the portion of the decision extracted above that this Court proceeded to hold that the Suit under Section 209 C for ejectment of persons occupying land without title could be filed only in the Court of the Assistant Collector, First Class, which was described as the Court of original jurisdiction as serial no. 24 of Schedule II of the Act.

U .P. Zamindari Abolition and Land Reforms Act came into force in 1952 and Schedule II, as it originally existed in the Act, did not contain any D entry pertaining to the suits under section 209 of the Act. This entry was introduced for the first time by the U.P. Land Reforms (Amendment) Act No. 18 of 56 with effect from 28th May, 1956 which repealed U.P. Land Reforms (Amendment) (Second) Ordinance, 1956. Another entry viz. entry relating to "Suit for injunction or for the repair or waste or damage" E contemplated by Section 208 of the Act was also included in Schedule II by the aforesaid Amendment Act, with effect from the same date, namely, from 28th May, 1956. Section 23 of the Amendment Act provides as nnder:

'Saving : (1) Any amendment made by this Act shall not effect the validity, invalidity, effect or consequence of anything al- F ready done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised and any proceeding in- stituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein by such court or authority. G (ii) An appeal, review or revision from any suit or proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, lis to the H Court or authority to which it would have laid if instituted

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or commenced before the said commencement." A In view of the above saving provision, the conferment of exclusive jurisdiction on the Revenue Courts by the Amending Act did not affect the pending Suits or right of appeal, review or revision available under the original provisions. ) B The statutory provisions including the entries in Schedule II as originally contained in the Act, were not brought to the notice of this Court in Chandrika Misr's case nor was it brought to its notice that exclusive -, jurisdiction on the revenue Courts was conferred by the amendment intro- duced in the Act by U.P. Act No. 18 of 1956. Consequendy it proceeded to lay down that a suit which was filed on 5th September, 1953 could be C filed only in the Court of the Assistant Collector, First Class and not in the Civil Court.

This error was caused on account of non-consideration of the statutory provision as they existed on the relevant date. Since the Suits D under 209 of the Act were made cognizable by the Revenue Court only with effect from 28th May, 1956, the suit in Chandrika Misr's case which was filed on 5th September, 1955 was, therefore, cognizable by the Civil Court and not by the Revenue Court.

In the instant case, as pointed out earlier, the suit was filed by Kishori E on 5th January, 1954. On that date, in view of the provisions contained in Section 331 as also in Sch.II as they stood then, the suit could be filed only in the Civil Court and not in the Revenue Court. Consequently, the decree passed in that suit by the trial Court, which was upheld by the lower Appellate Court as also in the High Court by the Single Judge and thereafter by the Division Bench, were binding on Faqir against whom the F suit was filed and the consolidation Courts were not justified in ignoring those decrees on the ground that this Court in Chandrika Misr's case (supra) had laid down that a suit under Section 209 could be filed only in the Revenue Court and a decree passed by the Civil Court was a nullity. The High Court, in our opinion, was, therefore, right in allowing the Writ G Petition and quashing the orders passed by the consolidation authorities.

The appeal having no force is, therefore, dismissed. There will be no order as to costs.

R.P. Appeal dismissed.