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Mirza Abid Kazim HusaIn and ors. Vs. Mirza Nasir HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 61 of 1962
Judge
Reported inAIR1977All201
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Uttar Pradesh Tenancy Act, 1939 - Sections 230
AppellantMirza Abid Kazim HusaIn and ors.
RespondentMirza Nasir HusaIn and ors.
DispositionAppeal dismissed
Excerpt:
civil - res judicata - section 11 of code of civil procedure, 1908 and section 230 of u.p. tenancy act, 1939 - finding by civil court that case to be heard by revenue court - also found that rights of plaintiff do not exist - finding of rights of plaintiff not binding over revenue court. - - certain propositions of law are well established: district judge was perfectly correct hi holding that the finding, if any, recorded by the civil court in the earlier suit will not operate as res judi-cata in the subsequently instituted suit in the revenue court......and, therefore, they were not entitled to any profit. it was further held that the suit being a suit filed by co-sharer in respect of the profits of the mahal against the lumbardar, it lay within the jurisdiction of the revenue (prem prakash j.) [prs. 1-3] all. 201 court, under section 230 of the u. p. tenancy act. having reached these two principal findings the suit was dismissed. thereafter, the plaintiff filed another suit in the court of the judicial officer. luck-now, on 19th august, 1960, taking the plea that the defendant-appellant was the lumberdar of the mahal and in that capacity he was realising the profits of the mahal including those arising from the parti land over which the buildings stand. in the written statement it was contended that the civil court having negatived.....
Judgment:

Prem Prakash, J.

1. This First Appeal from Order is directed against an order of the Addl. District Judge Lucknow, setting aside the decree passed by the Judicial Officer. Lucknow, dismissing the suit and remanding the case back to the revenue court for trial.

2. The relevant facts are these: the respondents (filed a suit in the year 1956 in terms of the U. P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order, 1952, for recovery of Profits in respect of thedr share in Mahal Kar-bala Talkatora of village Harchandpur, Tahsil and Distt. Lucknow, contending that the defendant Hazi Mirza Mohd. Askari Khan was their agent; it was alleged that defendant, as their agent, had been realising profits from the Mahal which consisted also of abadi and parti land with buildings standing thereon. The defendant, inter alia, pleaded that the suit was not within jurisdiction of the Civil Court, he being the lumber-dar of the Mahal, The learned Civil Judge upon a scrutiny of the evidence held that the plaintiffs 'had no interest in the said Mahal and, therefore, they were not entitled to any profit. It was further held that the suit being a suit filed by co-sharer in respect of the profits of the Mahal against the lumbardar, it lay within the jurisdiction of the revenue (Prem Prakash J.) [Prs. 1-3] All. 201 court, under Section 230 of the U. P. Tenancy Act. Having reached these two principal findings the suit was dismissed. Thereafter, the plaintiff filed another suit in the court of the Judicial Officer. Luck-now, on 19th August, 1960, taking the plea that the defendant-appellant was the lumberdar of the Mahal and in that capacity he was realising the profits of the Mahal including those arising from the parti land over which the buildings stand. In the written statement it was contended that the civil court having negatived the alleged title of plaintiffs and the main issue having thus been decided against them, they were estopped from taking a contrary stand in the revenue court. In this way the bar of res judicata was pleaded by the defendant. The learned Judicial Officer accepted the contention, but the Addl. District Judge in appeal set aside that order holding that since a suit under Section 230 of the U. P. Tenancy Act was not cognizable by the Civil Court, any finding given by the Civil Court in the prior suit would not constitute res judicata. Having taken that view, he sent back the case for trial to the revenue court.

3. Learned counsel for the parties have addressed me at length on the question of the applicability of the bar of res judicata contained in Sec, 11 of the Code of Civil Procedure, to the present. Certain propositions of law are well established: (1) a Court, which declines jurisdiction, cannot bind the parties by its reasons for declinnig jurisdiction: such reasons are not decisions and are certainly not decisions by a Court of competent jurisdiction. Consequently, where the Court for deciding the main issue whether it has jurisdiction to entertain the award filed under Schedule 2, para 20 construes the award and comes to the conclusion that it has no jurisdiction the construction of the award is not res judicata under Section 11. It is the decision as to lack of jurisdiction which is res judicata and not the reasons for that decision (vide Upendra Nath Bose v. Lall Unless the Court, which decided the former suit, was competent to decide not only the issue, which arose in the subsequent suit but also the subsequent suit itself, the decision in the former suit of the question of proprietary right will not be res judicata in the subsequent suit on the same question (vide Mst. Gulab Bai v. Manphool Bai : [1962]3SCR483 . Having regard to the legislative background of Section 11, there can be no hesitation in holding that the word 'suit' in the context must be construed liberally and it denotes the whole of the suit and not a part of it or a material issue arising in it.

4. Applying these rules to the present case, it would appear from a perusal of the plaint that substantially it is a suit under Section 230 of the U.P. Tenancy Act, brought by the co-sharers of a Mahal against the lumberdar. Obviously a suit under Section 230 on account of the bar created by Section 242 of the U. P. Tenancy Act was not within the competence of the civil court to entertain and decide. That being so, the present suit, which was filed by the plaintiffs against the defendant in his capacity as lumberdar was not a suit which could be tried by the civil court. Such a suit was not within the competence of the civil court even in the year 1956. When once the court had come to the conclusion that the civil court was not competent to try the suit, an adverse finding of the court on the rights of the plaintiffs cannot constitute a ground so as to enable the defendant to plead the bar of Section 11 of the Code. It may be that the issue of proprietary title was decided by the civil court in that case, but since one of the important requirements of Section 11, C.F.C. is that the court, which decided the former suit, was competent to decide the subsequently instituted suit, the finding, if any, given by the learned Civil Judge will not attract the applicability of Section 11 of the Code. The whole of the suit as at present fell within the ambit of Section 230 of the U. P. Tenancy Act and that being so, the learned Addl. District Judge was perfectly correct hi holding that the finding, if any, recorded by the civil court in the earlier suit will not operate as res judi-cata in the subsequently instituted suit in the revenue court.

5. For the discussion in the above, I see no force in the appeal which is hereby dismissed. In the circumstances, costs shall be borne by the parties.


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