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Beerappa Vs. Yeshwantrao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 154 of 1967
Judge
Reported inAIR1972Kant338; AIR1972Mys338; (1972)2MysLJ123
ActsCode of Civil Procedure (CPC), 1908 - Sections 21; Evidence Act, 1872 - Sections 40, 41, 42 and 44; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 91
AppellantBeerappa
RespondentYeshwantrao and ors.
Appellant AdvocateK.S. Desai, Adv.
Respondent AdvocateN. Santosh Hegde, Adv.
DispositionPetition dismissed
Excerpt:
.....of the act. hence, impugned order was set aside. - section 21 reads as follows :objections to jurisdiction -no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such a settlement, and unless there has been a consequent failure of justice. even when such an objection is taken and is overruled in order to get rid of the decree, it should be shown that there has been failure of justice. the above view is further supported by the construction placed by courts on section 44 of evidence act which authorises a party to take a plea that a judgment which is otherwise relevant under sections 40, 41 and..........and agricultural lands act, 1950 filed against the order dated 19-9-1969 on the file of the deputy commissioner, gulbarga. in file no. 241/apl./60-61. 2. the petitioner and respondent no. 1 gave a joint petition to the assistant commissioner. gulbarga, requesting to accord permission for the alienation of a land bearing survey no. 448 in baswantvadi kadaganchi village. taluka aland. the first respondent claimed to be its owner and the petitioner intended to buy the same from the first respondent. before the said petition was disposed of by the assistant commissioner, two persons by name rama rao hanumantrao filed an objection petition before the assistant commissioner, gulbarga requesting him not to grant permission for alienation. on 23-9-1959, respondents 2 and 3 herein, namely......
Judgment:
ORDER

E.S. Venkataramiah, J.

1. This is a Revision Petition under Section 91 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 filed against the order dated 19-9-1969 on the file of the Deputy Commissioner, Gulbarga. in File No. 241/Apl./60-61.

2. The petitioner and respondent No. 1 gave a joint petition to the Assistant Commissioner. Gulbarga, requesting to accord permission for the alienation of a land bearing Survey No. 448 in Baswantvadi Kadaganchi village. Taluka Aland. The first respondent claimed to be its owner and the petitioner intended to buy the same from the first respondent. Before the said petition was disposed of by the Assistant Commissioner, two persons by name Rama Rao Hanumantrao filed an objection petition before the Assistant Commissioner, Gulbarga requesting him not to grant permission for alienation. On 23-9-1959, respondents 2 and 3 herein, namely. Geethabai and Gangabai filed another objection petition before the Assistant Commissioner stating that they filed a suit against respondent No. 1 and had obtained a decree in Suit No. 152/1/1959-60 on the file of the Additional Munsiff, Gulbarga, declaring that they were the owners of the land in question and restraining the first respondent from alienating it. On a subsequent date i.e. on 24-1-1961, the first respondent filed a petition before the Assistant Commissioner admitting that a decree had been passed against him as stated by Respondents 2 and 3. He. therefore, pleaded before the Assistant Commissioner that he could not alienate the property in favour of the petitioner.

The Assistant Commissioner, after hearing the parties refused to grant the prayer made by the petitioner in the application which he had filed jointly with respondent NO. 1. Against the said order, the petitioner preferred an appeal before the Deputy Commissioner, Gulbarga, who by his order dated 16-10-1961, dismissed it. Against the order of the Deputy Commissioner, a civil revision petition was filed before this court. In that petition, the order of the Deputy Commissioner was set aside and the case was remanded to him with a direction to give a finding on the question raised by the petitioner with regard to the jurisdiction of the Munsiff's Court Gulbarga. and to decide the case. After the case was remanded, the Deputy Commissioner, considered the matter again and dismissed it by his order dated 19-9-1966. Against that order, the present petition is filed by the petitioner.

3. The contention urged by the petitioner before the Deputy Commissioner and in this court is that the land in question was situated within the territorial jurisdiction of the court of the Munsiff at Aland and therefore the decree obtained by Respondents 2 and 3 in a suit filed in the Munsiff's Court, Gulbarga, is unenforceable. In other words, it is contended that the decree passed by the court having no territorial jurisdiction, is a nullity and cannot be acted upon.

4. It is no doubt that it is the general rule that a decree passed by a Court without jurisdiction is of no effect and that the jurisdiction of a court depends upon the place, value or the nature of the subject-matter. But Section 21 of the Code of Civil Procedure is an exception to that rule. Section 21 reads as follows :--

'Objections to jurisdiction -- No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such a settlement, and unless there has been a consequent failure of justice.'

A reading of Section 21 shows that a decree passed by a Court having no territorial jurisdiction over the matter would not always be a nullity. It is stated therein that if an objection to the territorial jurisdiction of the court is not taken at the earliest opportunity before the Court trying the suit, such an objection cannot be raised in appeal or in revision. Even when such an objection is taken and is overruled in order to get rid of the decree, it should be shown that there has been failure of justice. It follows from what is contained therein that an objection to the validity of a decree on the around of want of territorial jurisdiction cannot be permitted to be raised in a collateral proceeding as in this case. The above view is further supported by the construction placed by courts on Section 44 of Evidence Act which authorises a party to take a plea that a judgment which is otherwise relevant under Sections 40, 41 and 42 of that Act should not be acted upon if it is one delivered by a court 'not competent to deliver it'. It is well settled that Section 44 does not apply to cases where a decree is passed by a court having no territorial jurisdiction but applies only to cases where there is inherent lack of jurisdiction (Vide Hiralal Pathi v. Kali Nath, : AIR1955All569 .

5. In the instant case, the only contention of the petitioner who was not a party to the suit is that the court of Munsiff at Gulbarga had no territorial jurisdiction over the land. The defendant in that suit namely, respondent Ho. 1 herein on whom the decree is binding, has no such grievance. Hence it cannot be said that the decree on which respondents 2 and 3 relied is a nullity, in so far as these proceedings are concerned. The first respondent has been restrained by that decree from alienating the property. It is also seen that it has been held therein that Respondents 2 and 3 are the owners. The petitioner cannot therefore compel the first respondent to alienate the property in his favour. The order of the Deputy Commissioner rejecting the application of the petitioner for granting permission to .alienate the land in question has. therefore, to be upheld.

5. In the result, this revision petition fails and it is dismissed with costs. Revision petition dismissed.


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