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Mst. Nazira Begum Vs. Syed Ali Zaheer - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 10472 of 1972 in Second Appeal No. 1694 of 1972
Judge
Reported inAIR1974All104
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 4(2), 5 and 49; Code of Civil Procedure (CPC) - Order 41, Rule 11; Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1958
AppellantMst. Nazira Begum
RespondentSyed Ali Zaheer
Appellant AdvocateSripat Narain Singh, Adv.
Respondent AdvocateV.K. Misra, Adv.
Excerpt:
.....consolidation of holdings act,1954 - civil court or revenue court barred to entertain appeal - word 'entertain' means proceed to consider or adjudicate upon and not receiving or filing. (ii) abatement of appeal - section 4 (2) and section 5 ( b)( i) of u.p. consolidation of holdings act, 1954 - proceedings deemed to be pending during subsistence of right to appeal - appeal filed prior to notification under section 4 (2) of act - held, appeal and suit stands abated by notification. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of..........(2) of section 5 of the said act inasmuch as an order for abatement can be passed only when a suit, appeal or revision is pending in a competent court. this contention is sought to be based on the provisions of sections 49 and 5 of the said act.2. to appreciate the argument, i may begin by quoting section 49 of the said act. it is as follows:--'49. bar to civil court jurisdiction --notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under sub-section (2) of section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to havebeen taken under.....
Judgment:

T.S. Misra, J.

1. This is an application for abatement of the appeal and the suit which has given rise to the appeal. The material facts for the purposes of this application may be briefly stated. The plaintiff filed a suit for cancellation of a sale-deed dated 15th June, 1964, executed by him and Ali Kabir in favour of the defendant in respect of the property detailed at the foot of the plaint so far as it pertained to his share therein. The Trial Court dismissed the suit; but in appeal, it was decreed and the sale-deed in question was cancelled to the extent of the plaintiff's share in the property in dispute. The decision of the appellate court below was given on 18th May, 1972. Against that decision, the defendant filed a second appeal in this Court on 11th July, 1972 However, before the second appeal was filed a notification under Section 4 of the U. P. Consolidation of Holdings Act was published on 21st May, 1972, in respect of the village where the land in dispute is situated. The appellant, therefore, filed an application that the suit and the appeal be ordered to have abated under Section 5 of the said Act. The plaintiff-respondent in his counter-affidavit has admitted the publication of a notification under Section 4 of the said Act, under which the village where the land in question is situated, has been brought under the consolidation operations. It was, however, urged on behalf of the respondent that as the said notification had been issued before the filing of the second appeal, this Court had no jurisdiction to entertain the appeal, and the appeal would, therefore, not be deemed to be pending. Hence no order for abatement can be passed under Sub-section (2) of Section 5 of the said Act inasmuch as an order for abatement can be passed only when a suit, appeal or revision is pending in a competent court. This contention is sought to be based on the provisions of Sections 49 and 5 of the said Act.

2. To appreciate the argument, I may begin by quoting Section 49 of the said Act. It is as follows:--

'49. Bar to Civil Court Jurisdiction --Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under Sub-section (2) of Section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to havebeen taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.'

Section 49 provides that the declaration and adjudication of rights of tenure-holders in respect of land lying in an area for which a notification has been issued under Section 4 shall be done in accordance with the provisions of the Act, and debars a Civil or Revenue Court to entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under the Act. In other words, the provisions of this section require that no suit or proceeding shall be entertained by a Civil or a Revenue Court with respect to rights in a land which is situated in a village which has been brought under consolidation operations, for which a proceeding could or ought to have been taken under the said Act. A question thus arises what is the meaning of the word 'entertained' in this context. Does it mean that no appeal shall be 'received' or 'filed' or does it mean that no appeal shall be admitted or beard and disposed of

3. According to the learned counsel for the respondent the word 'entertained' connotes that no appeal shall be 'received' or 'filed'. In my view this would not be a correct interpretation of that word. If the legislature intended that the word 'filed' or 'received' was to be used it could have easily used that word. In fact in some of the statutes such expressions have been used. For instance, under Rule 1 of Order 41 of the Code of Civil Procedure it is stated that a memorandum shall not be 'presented' unless it is accompanied by a copy of the decree appealed from and of the judgment on which it is founded. Similarly in Section 6 of the Court Fees Act the words used are 'filed' or 'shall be received'. So also in Section 17 of the Provincial Small Cause Courts Act the expression used is 'at the time of presenting his application'. Similarly in Section 49 of the Registration Act the expression used is 'received as evidence'. The newly substituted proviso to Order 21, Rule 90 of the Code of Civil Procedure also, inter alia, provides that no application to set aside a sale shall be entertained unless the applicant deposits etc. etc. Section 49 of the U. P. Consolidation of Holdings Act, as it originally Stood, required that no person shall 'institute' any suit or other proceeding in any Civil Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be 'filed' under the provisions of this Act. This Section 49 was, however substituted by the present section by the U. P. Act No. XXXVIII of 1958 which,as indicated heretofore, provides that no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act. It would thus appear that the Legislature was not at a loss for words if it wanted to express in the manner, as is contended by the learned counsel for the respondent, and it must be accepted that it has used the word 'entertained' advisedly.

4. The meaning of the word 'entertain' was examined by this Court in a number of cases. See Bawan Ram v. Kunj Behari Lal, AIR 1962 All 42; Dhoom Chand Jain v. Chaman LaJ Gupta AIR 1962 All 543; Kundan Lal v. Jagan Nath Sharma, AIR 1962 All 547; Haji Rahim Bux & Sons v. Samiullah & Sons, AIR 1963 All 320 and Smt. Jaggi v. Ram Autar, 1965 All LJ 1135. In the case of Dhoom Chand Jain (supra) while dealing with the provisions of Order 21, Rule 90, Civil Procedure Code it was observed:--

'The dictionary meaning of the word 'entertained' is to deal with, to admit to consideration. In its application to Clause (a) the word bears the meaning admitting to consideration.....Accordingly while theCourt cannot refuse to take an application which is not backed by deposit or security, it cannot judicially consider it.'

Again the word 'entertain' as used in the proviso to Order 21, Rule 90, Civil Procedure Code came to be considered by a Division Bench of this Court in Kundan Lal's case (supra). In para 5 of the judgment it was observed:--

'The expression 'entertain' in our opinion does not mean the same thing as the filing of the application or the admission of the application by the Court. The dictionary meaning of the word 'entertain' is to deal with or to take a matter into consideration. A court hearing an application under Rule 90 of Order XXI, Civil Procedure Code can only be said to entertain the application when it is actually disposing of the application on the merits. It, therefore, follows that the mere filing of the application by the judgment-debtor would not be its entertainment by the court and, therefore, what is contemplated by the proviso to Rule 90 of Order XXI is that conditions which are prescribed by the proviso have to be complied with by the judgment-debtor before the court comes to dispose of the application on the merits.'

In para 7 of the judgment it was observed:

'The use of the word 'entertain' in the proviso to Rule 90 of Order XXI denotes a point of time at which an application to set aside the sale is heard by the Court.'

The ruling reported in Bawan Ram's case (supra) was overruled.

The word 'entertain' again came up for consideration in Haji Rahim Bux & Sons' case (supra). While dealing with theprovisions of Order XXI, Rule 90, Civil Procedure Code it was held that the word 'entertain' in the proviso did not mean receive or accept but 'proceed to consider on merits' or 'adjudicate upon'. Similar interpretation was given to the word 'entertain' in the case of Smt. Jaggi (supra).

5. Keeping in view the above noted judicial interpretation of the term 'entertain' I am of the opinion that this word, as used in Section 49 of the U. P. Consolidation of Holdings Act must mean 'proceed to consider' or 'adjudicate upon'. When the section speaks of entertainment of a suit or proceeding it means that the suit or proceeding such as was filed will not be admitted to consideration or adjudicated upon by a Civil or Revenue Court, as the case may be. Obviously entertainment would relate to the point of time when the appeal is being con-sidered, i.e., the first occasion on which the Court takes up the matter for consideration which may be the admission stage after the appeal has been filed in the Court. Section 49 thus debars the Court from taking into consideration for the purposes of the admission of the appeal the merits of the case if the appeal is with respect to such rights as are referred to in that section in a land which is situated in a village which has been brought under consolidation operations.

6. It was next contended on behalf of the respondent that as the notification under Section 4 had been published before the institution of the second appeal in this Court, the appeal would not be deemed to be 'pending'; hence no order for abatement can be passed under Sub-section (2) of Section 5 of the said Act. The argument was that an order for abatement can be passed only when a suit, appeal or revision is 'pending' and not otherwise; and as, in the instant case, the second appeal was not 'pending' when the notification was issued under Section 4 of the Act, no order for abatement can be passed. In my view, this contention has no merits. In the instant case, the decision of the first appeal was made on 18th May, 1972. Admittedly, on that date, no notification under Section 4 of the Act pertaining to the area in which the land in dispute is situated, existed. The defendant, against whom the first appeal was decided, had a right to file a second appeal under Section 100, Civil Procedure Code, and he could exercise that right within the period prescribed under the Indian Limitation Act. His aforesaid right to prefer a second ap-peal has not been abridged or taken away by the provisions of the U. P. Consolida-tion of Holdings Act Section 49 of the said Act, as pointed out above, does not debar an aggrieved person to tile a second appeal. It merely puts a fetter on the jurisdiction of the Court to proceed to consider at the admission stage under Order 41, Rule 11, Civil Procedure Code. It is settled law that the institution of a suit carries with it the implication that the rights of appealthen in force were preserved to the parties thereto till the suit was finally decided. The right of appeal is a vested right which can only be taken away by a subsequent enactment if it so provides expressly or by necessary intendment. (See Garikapathi Veeraya v. Subbiah Chaudhary, AIR 1957 SC 540). There is nothing in the U. P. Consolidation of Holdings Act which, either expressly or by necessary implication, takes away the right to file a second appeal. It is equally settled that on the institution of the appeal, the proceedings which were commenced by institution of the suit continue. In other words, appeal is a continuation of the suit. The proceedings which become dormant on the decision of the suit revive on the institution of the appeal. In that view of the matter the proceeding would be said to be 'pending' during the subsistence of the right to ap-proach the superior court in appeal. On the exercise of that right, the proceedings would be deemed to be pending (see Dilawar Singh v. Gram Samaj, AIR 1973 All 411 and Gopi Singh v. Dy. Director of Consolidation, 1967 All LJ 439). In the present case, the appeal was presented on 11th July, 1972, and an order to admit and register it was passed by the Registrar on the same day. This appeal must, therefore, be deemed to be pending for the purposes of Section 5 (2) of the U. P. Consolidation of Holdings Act oh llth July, 1972. (See Jagdeo v. Lauhar, 1970 All WR (HC) 532 and Sheo Achal Misra v. Ram Bali Misra, 1971 RD 339). In the circumstances, this application is competent. As the village where the land in question is situated has been brought under consolidation operations the appeal as well as the suit which has given rise to the appeal abate under Section 5 (2) of the U. P. Consolidation of Holdings Act It is ordered accordingly.


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