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Maharaja Dharmendra Prasad Singh and anr. Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 29 of 1961
Judge
Reported inAIR1973All174
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 332, 332A and 332B; Uttar Pradesh Land Reforms (Amendment) Act, 1958 - Sections 87(1); Court-fees Act, 1870 - Sections 13; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 23; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act
AppellantMaharaja Dharmendra Prasad Singh and anr.
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateS.N. Naziruddin and ;S.M. Fakhruzzaman, Advs.
Respondent AdvocateCf. Standing Counsel
DispositionAppeal allowed
Excerpt:
(i) property - effect of deletion of section 332 - section 332 of u.p. zamindari abolition and land reforms act, 1951 - retrospective effect in change in procedure - deletion of section 332 by amending act relates to procedural matter - suits filed before amendment will be governed by amended procedure. (ii) return of court fees - section 13 of court fees act, 1870 and order 41 rule 23 of code of civil procedure, 1908 - after amendment certificate under section 13 can be granted by appellate courts when the decree granting court has disposed the suit on preliminary point and decree is reversed in appeal and case is remanded - also when decree of court below is reversed and court intends to remand case in interest of justice - preliminary point is point of determination - expression not.....om prakash trivedi, j. 1. this first appeal has been filed by maharaja dharmendra prasad singh and maharani raj lakshmi kumari devi against the judgment and decree passed by the judicial officer (assistant, collector, first class) gonda dated 1-12-1960 in the following circumstances:on 21-11-1956 maharaja sir pateshwari prasad singh, proprietor of the then balrampur raj, filed a suit in the court of the judicial officer balrampur, district gonda under section 209 of the u. p. zamindari abolition and land reforms act. the plaintiff claimed to have acquired bhumidhari rights under section 18 of the said act over plots nos. 1647, 1648, and 1977 in village baghelkhand, pergana tulshipur, tahsil balrampur, district gonda, the plaintiff having claimed also to have planted trees over the said.....
Judgment:

Om Prakash Trivedi, J.

1. This first appeal has been filed by Maharaja Dharmendra Prasad Singh and Maharani Raj Lakshmi Kumari Devi against the judgment and decree passed by the Judicial Officer (Assistant, Collector, First Class) Gonda dated 1-12-1960 in the following circumstances:

On 21-11-1956 Maharaja Sir Pateshwari Prasad Singh, proprietor of the then Balrampur Raj, filed a suit in the Court of the Judicial Officer Balrampur, district Gonda under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. The plaintiff claimed to have acquired bhumidhari rights under Section 18 of the said Act over Plots Nos. 1647, 1648, and 1977 in village Baghelkhand, Pergana Tulshipur, Tahsil Balrampur, district Gonda, the plaintiff having claimed also to have planted trees over the said land and being owner thereof. It was alleged that the State of Uttar Pradesh had illegally and without any right or title forcibly got the trees cut down and wood removed from the plots having dispossessed the plaintiff Maharaja from the disputed plots. A decree for recovery of possession as also Rs. 82,892/- as damages was prayed for. The suit was contested by the respondents who denied that the plaintiff was bhumidhar of the land or that the ownership of the trees belonged to him. The suit was resisted also on the ground that no notice as required by law had been given to the defendant-respondents; that the suit is not cognizable by the Revenue Court; that the court-fee paid was insufficient and that the land in suit had become vested in the Gaon Sabha after the passing of Act I of 1951. The following issues were framed by the Judicial Officer:

1. Is the plaintiff a bhumidhar of the land in suit?

2. Is the suit within time?

3. Are the defendants trespassers of the land in suit?

4. Whether the court-fee stamps are sufficient?

5. Is the suit cognizable by this court?

6. Is the suit bad for want of valid notice?

7. To what relief and damages, if any, is the plaintiff entitled?

8. Has the land in suit vested in Gram Samaj after passing of Act I of 1951?

2. By an order dated 11-12-1959 the Judicial Officer remitted issue No. 1 to Munsif Gonda for decision and the latter by an order dated 22-7-1960 recorded the finding that the plaintiff is not the bhumidhar of the suit land. On the basis of this finding under issue No. 1 the Judicial Officer found that the plaintiff is not proved to be the bhumidhar of the land in suit. On issues 2, 3, 7 and 8 the Judicial Officer felt not called upon to record any findings in view of the conclusion returned by the Civil Court that the plaintiff is not bhumidhar of the land in suit and therefore did not record any findings on those issues. On issues 4, 5 and 6, however, he gave findings against the defendant-respondents and in favour of the plaintiff. The suit was in the result dismissed with costs.

3. We have heard Mr. S. Naziruddin and Mr. S. M. Fakhruzzaman for the appellants and Mr. K. S. Varma, learned Chief Standing Counsel. The first submission of the learned counsel for the appellants is that the finding of the Munsif on issue No. 1 was without jurisdiction because there was no jurisdiction left in the Judicial Officer to remit that issue to the Civil Court on 11-12-1959 after amendment of the U. P. Zamindari Abolition and Land Reforms Act by the U. P. Land Reforms (Amendment) Act (No. 37 of 1958) which came into force on 7-11-1958. The point raised by the learned counsel for the appellants makes it necessary to trace the various changes and development in the law by amendment of the U. P. Zamindari Abolition and Land Reforms Act No. 1 of 1951 (hereinafter referred to as the Principal Act). In the Principal Act as it stood amended after the U. P. ZamindariAbolition (Amendment) Act (No. 16 of 1953) the policy initially appears to have been that all questions of title should be decided by the Civil Court only. There was Section 332 in the Act which provided as follows:--

'332. Procedure when question of title is raised- (1) Notwithstanding anything contained in Section 331, if in any suit or proceedings mentioned in column 3 of Schedule II, a question is raised regarding the title of any party to the land which is the subject-matter of the suit or proceeding and such question is directly and substantially in issue the court shall, unless the question has already been decided by a competent Court, frame an issue on the question of the title and submit the record to the competent Civil Court for the decision of that issue only.'

4. Thus, at the stage if a question of title arose whether relating to Adhivasi, Asami, Sirdari or Bhumidhari right in a suit instituted in the Revenue Court then that Court was required under Section 332 to frame an issue on the question of title and refer the same for decision to the competent Civil Court.

5. This position was modified by U. 'P. Land Reforms (Amendment) Act (No. 20 of 1954) which came into force on 10-10-1954, By this Act two new provisions were added in the form of Sections 332-A and 332-B in the following words:

'332-A. Where in any suit or proceeding relating to land under this Act or under any other law, for the time being in force, a question is raised whether a person is or is not an Adhivasi or Asami of any land it shall not be deemed to raise a question of title.'

'332-B (1). If in any suit relating to land instituted after the commencement of the U. P. Land Reforms (Amendment) Act, 1954, in a Civil Court, or if instituted before the said commencement a decree had not already been passed, the question arises or is raised whether any party to the suit is an Adhivasi or Asami of the land and such question has not previously been determined by a court of competent jurisdiction, the Civil Court shall frame an issue on the question and submit the record to the Collector for the decision of that issue only.'

By this amendment the right to decide on Adhivasi or Asami right was taken away from the Civil Court and jurisdiction to decide on these rights was conferred on the Revenue Court and by Section 332-B it was provided that if in any suit relating to land instituted after commencement of Act 20 of 1954 in a Civil Court or if instituted earlier a decree had not already been passed the question whether a party to the suit is an Adhivasi or Asami is raised then the same shall be referred by the Civil Court to the Collector for decision. Then came U. P. Land Reforms (Amendment) Act, (No. 18 of 1956) with effect from 28-5-1956. By Section 19 of this Act both Sections 332-A and332-B were amended and for the words 'Adhivasi or Asami' occurring in the two sections words 'Sirdar, Adhivasi or Asami' were substituted with the result that on the Revenue Courts was conferred exclusive jurisdiction to decide questions relating to Sirdari, Adhivasi and Asami rights and the jurisdiction of the Civil Court was confined only to bhumidhari rights. After this further amendment was made in the Principal Act by the U. P. Land Reforms (Amendment) Act (No. 37 of 1958) which came into force on 7-11-1958. By Section 79 of this Act Sections 332, 332-A and 332-B of the Principal Act were deleted with the result that after 7-11-1958, there was no provision left in the Principal Act requiring the Revenue Court to refer the question of bhumidhari right for decision to the Civil Court should such a question be raised in a suit instituted before it and vice versa, there was no provision left in the Principal Act requiring the Civil Court to refer for decision to the Revenue Court issue or issues involving determination of a question relating to Sirdari, Adhivasi or Asami rights with the result that after deletion of the provisions contained in Sections 332, 332-A and 332-B both the Revenue and Civil Courts were left free to decide questions of title to land arising in suits filed before them and it was no longer necessary for either class of Courts to refer any of these questions for decision to the other class of Courts. There was, however, a saving provision contained in Section 87 of Act 37 of 1958 in the following words:

'87 (1) Except as provided in Sections 85 and 86, any amendment made by this Act shall not affect the validity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised, and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such court or authority.

(2) 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, lie to the Court or authority to which it would have laid if instituted or commenced before the said commencement.

(3) If at the commencement of this Act any suit or legal proceeding is pending before any court or authority to which the Gaon Sabha is a party, the Gaon Samaj shall, notwithstanding anything hereinbefore contained be deemed to be substituted for the Gaon Sabha in such suit or proceeding.'

Learned Chief Standing Counsel argued that the Judicial Officer had jurisdiction notwithstanding the deletion of Section 332 of the Principal Act to refer the issue of bhumidhari right to the Munsif as in virtue of Section 87 (1) the procedure contained in Section 331 of the Principal Act was saved and preserved in respect of all pending suits. Similar question arose in a Full Bench case of this Court in Kallu Khan v. Kamrunisa, 1962 All LJ 1039. In that case certain suits were filed in the Civil Court prior to 28-5-1956 when Act No. 18 of 1956 came into force and were pending on that date. A question of title regarding sirdari right was raised in the suits and was decided by the Civil Court referring the same to the Revenue Court. The matter was taken in appeal. The same having been dismissed the matter came in second appeal before the High Court where it was argued that the U. P. Land Reforms (Amendment) Act (No. 18 of 1956) having come into force on 28-5-1956 and the suits having been filed before that date the Civil Court had no jurisdiction to decide the issue relating to sirdari right and the same should have been referred to the Revenue Court under the amended Section 332-B. From the other side the contention was that as the suits in question were 'pending suits' the procedure which obtained at the time of coming into force of Act 18 of 1956 was saved by the saving clause contained in Section 23 (1) of Act 18 of 1956 with the result that the Civil Court could decide the question of sirdari and was not bound to refer the same to the Revenue Court in view of the amended procedure introduced in Section 332-B by Act 18 of 1956.

In deciding this question the Full Bench had to interpret not only Section 23 (1) of 1956 Act but also Section 87 (1) of the Principal Act as amended by Act 37 of 1958, the latter being in pari materia with the former. The Full Bench held that jurisdiction of the Court for deciding sirdari issues is governed by the law applicable on the date of decision of the suit and not by the one in force on the date of its institution and further that the issues relating to sirdari rights became referable to the Revenue Court by the amendment of Section 332-B of the Act because the saving clause incorporated in Section 23 (1) of U. P. Land Reforms (Amendment) Act No. 18 of 1956 was not applicable to suits. This decision of the Full Bench is completely determinative of the point raised in this case and answers in the negative the learned Chief Standing Counsel's submission that the procedure obtaining under the Principal Act at the time of coming into force of Act 37 of 1958 will apply to suits instituted before the date of commencement and pending at the time in the negative. As was held by the Supreme Court in the case of Anant Gopal Sheorey v. State of Bombay, ATR 1958 SC 915 no person has a vested right in procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the modality of procedure is altered he has no other rightthan to proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right it is not prospective. There can be no manner of doubt that the amendment in the Principal Act introduced by Act 37 of 1958 by deletion of Sections 332, 332-A and 332-B related to procedural matter. It was so held by the Full Bench of this Court in the case of Kallu Khan, 1962 All LJ 1039 (supra). Singh, J., speaking for the majority observed at page 1044 of the report:

'We are of opinion that no substantive rights are affected by the amendment which concerns a pure question of procedure. ......The question whether the issue relating to such rights was heard and decided by the Civil Court or the Revenue Court would be a matter of mere procedure, as it does not in any way, affect their rights in the land or their rights to have the dispute in respect of such rights determined in accordance with the law applicable to them.'

6. The amendment by which Sections 332, 332-A and 332-B were deleted being therefore in respect of procedural matter it will take effect retrospectively unless by express words or necessary intendment it was enacted to apply prospectively. I am unable to discover anything in the language of the saving clause contained in Section 87 (1) of the Act which may indicate that in respect of pending actions i.e., suits or proceedings instituted or commenced before 7-11-1958, the date of coming into force of Act 37 of 1958, the procedure obtaining at the time of enforcement of the amendment was saved or in other words that the new procedure will not apply to such pending suits or proceedings but they continue to be governed by the procedure existing on 7-11-1958 with particular reference to Sections 332, 332-A and 332-B. Apart from the absence of express words in Section 87 (1) to have the existing procedure in respect of pending suits or proceedings there is this additional fact: What is saved by Section 87 (1) is not the procedure pending on 7-11-1958 but only the forum for hearing and decision of proceedings instituted or commenced prior to the commencement of this Act. The first part of Section 87 (1) saves and protects the validity, effect and consequence of anything already done or suffered or any right, title, obligation or liability held, acquired, accrued or incurred or any jurisdiction already exercised prior to the commencement of the Act and by the second part it provides that any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall notwithstanding any amendment herein made continue to beheard and decided (emphasis is mine) by such court or authority. The intention of the Legislature expressed in the second part of Section 87 (1) therefore clearly is that those proceedings which were instituted or commenced prior to the commencement of ActNo. 37 of 1958 shall continue to be heard and decided by such court or authority. The phrase 'such court or authority' plainly refers to the court or authority before whom the proceedings were instituted or commenced prior to the commencement of this Act By the second part of Section 87 (I) the Legislature ensured that the forum of such pending proceedings shall remain undisturbed by the amendment and that such proceedings shall continue to be heard and decided in the forum which obtained before the amendment.

The argument of Sri K. S. Varma, learned Chief Standing Counsel is that the pending suits were saved by Section 87 (1) of Act No. 37 of 1958 with the result that such suits continued to be governed by the procedure which obtained under the Principal Act even after coming into force of Amending Act No. 37 of 1958. The argument is that the words 'any proceeding' occurring in Section 87 (1) should have been interpreted in the majority judgment of the Full Bench in Kallu Khan's case, 1962 All LJ 1039 to include any suit instituted or commenced prior to the commencement of this Act as was held by Beg, J., in the minority judgment and we were persuaded to hold that the Full Bench decision in the said case needed reconsideration by a larger Bench. Having given deep thought to the argument of the learned Chief Standing Counsel I have remained unconvinced that there is any ground for a reconsideration of that decision which was arrived at in the majority judgment in Kallu Khan's case. The arguments which were advanced by Sri K. S. Varma before us were precisely the arguments before the Full Bench in Kallu Khan's case. Whereas there appears to be substance in the submission that the word 'proceeding' in Section 87 (1) of Act No. 37 of 1958 was used in a wide and generic sense so as to include a suit and not in a narrow sense for reasons which I proceed to state shortly, the main conclusion of the Full Bench in Kallu Khan's case, namely, that the procedure existing in the Principal Act before its amendment by Act No. 37 of 1958 was not saved, with great respects appears to be correct and there is no scope for its reconsideration. A perusal of Section 83 of Act No. 37 of 1958 shows that by amendment made by Act No. 37 of 1958 in Schedule II of the Principal Act the forum for institution of some kinds of suits, applications and objections was altered.

Before amendment of the Principal Act by Act No. 37 of 1958 under serial No. 11 of Schedule II of the Act applications for declaration under Sections 143 and 144 of the Act lay before the Assistant Collector Incharge of Sub-division and the appeal before the Commissioner. Section 83 of Act No. 37 of 1958 amended the entry against Serial No. 11 of Schedule II and changed the forum for an appeal in respect of the said application. The Collector was invested with jurisdiction to hear the first appeal fromthe order of the Assistant Collector and instead of the Board of Revenue jurisdiction to hear the second appeal was conferred on the Commissioner. Under Entry No. 14 of Schedule II of the Principal Act before the amendment the forum for a suit for ejectment of a transferee under Section 163 of the Act was the court of Assistant Collector Incharge of Sub-Division. By Section 83 of Act No. 37 of 1958 this forum was changed and it was provided that a suit for ejectment of a transferee shall be heard and decided by an Assistant Collector, First Class. Under Serial No. 16 of Schedule II of the Principal Act before the amendment for forum for a suit for partition of a holding of a sirdar under Section 176 was the court of Assistant Collector, First Class. An amendment was made in this entry also to provide that a suit for division of a holding by a bhumidhar or sirdar shall also He before the Assistant Collector, First Class as in the case of a suit for partition for the holding of a sirdar before the amendment. Under Entry No. 28 of Schedule II of the Principal Act before the amendment an objection under Section 213 of the Act against fixation of rent by Gaon Sabha lay before the Assistant Collector Incharge of the Sub-Division. Section 83 of Act No. 37 of 1958 amended this entry and changed the forum for such an objection. After the amendment such objections were to lie before the Tahsildar. Under Entry No. 30 of the same Schedule under the Principal Act before the amendment the forum for a suit for commutation of rent under Section 218 of the Act was the court of the Assistant Collector Incharge of Sub-Division. By Act No. 37 of 1958 this forum was also changed and jurisdiction to hear and decide such suits was conferred on the Tahsildar in place of the Assistant Collector.

Amending Act No. 37 of 1958 having thus effected changes in forum not only for certain category of suits but also for applications and objections the Legislature must have considered whether the proceedings arise on applications, objections or suits in respect of which changes in the forum had been effected and which proceedings whether arising in suits, applications or objections instituted or commenced before coming into force of Act No. 37 of 1958 were to continue to be heard and decided by the Court before whom they were instituted or commenced or whether they were to be heard and decided by the courts on whom jurisdiction had been conferred under the changed provisions. A reading of the saving clause contained in Section 87 (1) of Act No. 37 of 1958 shows unmistakably, that the Legislature intended to save and preserve the forum for proceedings whether arising from a suit or application or objection before the commencement of Act No. 37 of 1958 to continue to be heard and decided by the Court or authority before whom such proceedings were instituted or commencedbefore coming into force of the amending Act. When we consider the wordings of Section 87 (1) in this background the import of the following part of Section 87 (i) is appreciated:

'............ any proceeding instituted orcommenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such court or authority.'

It is equally clear that what was saved and preserved by the Legislature in Sub-clause (1) of Section 87 was the forum for the continuance, hearing and decision of proceedings which had been instituted or commenced prior to the commencement of the amending Act and not the procedure which obtained in the Principal Act before commencement of the amending Act. The view which I with respects take, commended itself also to Desai, C. J., in Ram Lagan Singh v. Mst. Ram Pyara, 1964 All LJ 54. In that case also the effect of the saving clause contained in Section 87 (1) after the amending Act No. 37 of 1958 arose for consideration. In that connection at page 58, Desai, C. J., observed while referring to the second part of section 87 (I) of the Act:

'The object behind the second clause was that if the forum of a suit was changed by the amendment Act after its institution, the court in which it was instituted would retain the jurisdiction notwithstanding the change.'

Referring to the decision of the Full Bench in Kallu Khan's case to the effect that the word 'proceeding' in part 2 of Section 87 (1) did not cover a suit, Desai, C. J., further observed as follows:--

'They observed at pages 1046 and 1048 that the word 'proceeding' used in Section 87 (1) of the Amendment Act of 1958 also does not include a suit. I have great doubts about the correctness of their view that the word 'proceeding' is not wide enough to include a suit and means a proceeding other than a suit, but it is not necessary for me to suggest reconsideration of the view by a larger Bench because even if the word 'proceeding' in Section 87 (1) did not include suit, it only meant that the second clause of it was not applicable in the suit.'

7. But even though I am inclined to agree with the argument that the word 'proceeding' in the second part of Section 87 (1) of the Act is used in a wide and not a narrow sense so as to include a suit as urged by the learned Chief Standing Counsel, the fact remains that the final and ultimate decision of the Full Bench in Kallu Khan's case, 1962 All LJ 1039 with profound respects, was correct in so far as they held that after the coming into force of Act No. 37 of 1958 on 7th November, 1958 the procedure contained in Sections 332, 332-A and 332-B of the Act was not saved by Section 87 (1) of the Act and if in a pending suit an issue relating to sirdari rights hadnot been referred under Section 332-B of the Act to the collector by the Civil Court before 7th November, 1958, it was no longer necessary or possible to refer such an issue to the Collector for a finding after coming into force of Act No. 37 of 1958, Section 332 having been deleted. The argument of the learned Chief Standing Counsel is that if the word 'proceeding' in the second part of Section 87 (1) of the Act was wide enough to cover a pending suit then for the purpose of such a suit the procedure contained in Sections 332, 332-A and 332-B which obtained in the Principal Act before the Amendment will operate having been, according to his submission, saved by Section 87 (1) of the Act. This argument cannot be accepted even after the contention that the word 'proceeding' in Section 87 (1) of the Act is held to be wide enough to cover a suit because it is clear from the language of the second part of Section 87 (1) extracted above which is in terms plain and unambiguous that what was saved was only forum with respect to pending proceedings and not the procedure.

Similar argument was advanced by the learned Chief Standing Counsel before the Full Bench also in Kallu Khan's case. This argument was rejected in the majority judgment as it involved the addition of certain words to the second part of Section 87 (1) which was not permissible unless the words of the statute were vague and ambiguous. Before the Bench in Kallu Khan's case in advancing the argument that the word 'proceeding' included a suit Sri K. S. Varma had submitted (vide discussion in para 43 of the report at page 1049) that the words 'after making a reference to the Revenue Court' should be added at the end of Sub-section (1) of Section 87. The discussion in paras 43 and 44 disclosed that this argument was rejected on the ground that no words can be added to the Statute unless the text was ambiguous. The argument advanced by the learned Chief Standing Counsel before us that if the word 'proceeding' includes a suit then notwithstanding the amendment made by Act No. 37 of 1958 the pending suits will continue to be heard and decided by the court according to the procedure obtaining before the amendment clearly implies the addition of certain words to Section 87 (1). If the argument of the learned Chief Standing Counsel is accepted then Section 87 (1) will read somewhat as follows:

'87 (1). Except as provided in Sections 85 and 86, any amendment made by this Act shall not affect the validity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised, and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such court or authority according to the procedure prevailing before the amendment.'

As there is no ambiguity in the wordings of Section 87 (1) and as the text is explicit no such words can be added.

8. Wherever' the Legislature intended that the procedure existing before the amendment should be preserved for pending suits or proceedings it always provided this either by express terms or by necessary intendment. To mention an illustrative case Section 49 of the U. P. Consolidation of Holdings (Amendment) Act, 1958 (Act No. 38 of 1958) was amended by the U. P. Land Laws (Amendment) Act, 1965 and provided as follows:

'49. Where the consolidation operations are pending in any unit at the commencement of this Act:

(i) if the operations are at the stage of examination of the land records under Section 7 of the principal Act, then the Assistant Consolidation Officer shall complete preparation of the statement mentioned in that section as if that Act had not come into force, and such revision or preparation of statement shall thereupon be deemed to be the- revision and preparation of statement mentioned in Sections 7 and 8 of the amended Act, and thereafter all further proceedings shall be conducted and concluded in accordance with the provisions of the amended Act, beginning with the proceedings under Section 9 thereof;

(ii) if the operations are at the stage of proceedings under Section 8 of the principal Act or at any later stage, then all further proceedings shall be continued and concluded in accordance with the Principal Act as if this Act had not come into force.' (emphasis mine).

There was a similar saving clause in U. P. Consolidation of Holdings (Amendment) Act, 1958 (Act No. 38 of 1958), Section 49 of the amending Act read as follows:

'49. Notwithstanding the amendment of the Principal Act by this Act all proceedings commenced prior to, and pending on the date on which this Act comes into force-

(i) relating to correction of records under Section 7 of the Principal Act shall be completed in accordance with the provisions contained therein, and shall be deemed to be proceedings taken under Sections 7 and 8 of the Principal Act as amended by this Act. All future proceedings thereafter shall be conducted and concluded in accordance with the provisions of the Principal Act as amended by this Act;

(ii) under section 8 and the subsequent sections of the Principal Act shall, subject to the provisions of Section 50 of this Act, be conducted and concluded in accordance with the provisions of the principal Act, as if this Act had not come into force.' (emphasis mine).Consequently I see no substance in the submission of the learned Chief Standing Counsel that the Full Bench decision in Kallu Khan's case, 1962 All LJ 1039 deserves reconsideration.

9. Similar question arose in the case of Ram Lagan Singh v. Mst. Ram Pyare (supra). The following observations which are in point were made in that case:

'The 1958 amendment Act being equally a procedural law took effect at once and applied to the suit even though it had commenced earlier. After the deletion of Section 332-B by it, it became no longer necessary for the Civil Court to refer the sirdari issue to a Revenue Court for its decision. If it had already referred it, the reference would have been saved by the first clause of Section 87 (1) but since it had not referred it there was nothing to be saved by the first clause. ............ The Revenue Court ceasedto have jurisdiction since the date of the deletion but the deletion did not take away the jurisdiction already acquired by it.'

10. In the case of Sanwal Singh T. Jwala, 1962 All LJ 384, Munsif West, Hardoi had remitted certain issues relating to the question of Sirdari for decision to the Revenue Court under Section 332-B of the Act, A question arose whether in view of changes made in the Act by Act No. 18 of 1956 and Act No. 37 of 1958 the issues should have been decided by the Munsif himself or he could refer the same to the Revenue Court under Section 332-B of the Act as it stood before coming into force of the amending Acts. The suit out of which the issues arose was filed on 8-7-1958, that is, before coming into force of amending Act No. 37 of 1958. The argument was that the suit was governed by the old procedure which was in force when it was filed and not by one prescribed by law during the pendency of the suit. This argument was rejected and it was held that the change in law being procedural took effect retrospectively and that the suit would be governed by the new procedure and the Munsif had no jurisdiction to refer the issues to the Revenue Court for decision and should instead have decided the same himself.

11. In view therefore of the decision in Kallu Khan's case, 1962 All LI 1039 we must conclude that after amendment of the Principal Act by Act No. 37 of 1958 on 7th November, 1958, by which Sections 332, 332-A and 332-B were deleted there was no provision left on the Statute Book under which a reference of the issue of bhumidhari could be made by the Judicial Officer to the Civil Court. He not having made reference of this question to the Civil Court by 7th November, 1958 there was no provision under which he could do so subsequently. The order dated 11-12-1959 passed long after coming into force of amending Act No. 37 of 1958 by which issue No. 1 relating to Bhumidhari right was referred by him to the Munsif was therefore without jurisdiction with the result that the finding of the Munsif on the question of bhumidhari right was itself without jurisdiction and therefore a nullity.

12. The next submission of the learned counsel for the appellant is that if this appeal is allowed and the suit is remanded for a second decision by the lower court a certificate should be granted under Section 13 of the Court-Fees Act authorising the appellant to receive back from the Collector full amount of court-fee paid on the memorandum of appeal. Section 13 of the Court-Fees Act is in the following terms:

'13. If an appeal or plaint, which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or it a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the Full amount of fee paid on the memorandum of appeal.'

13. The reference to Section 351 of the Code of Civil Procedure in Section 13 of the Court-Fees Act should now be read as Order 41, Rule 23 of the Code of Civil Procedure, 1908 (see Chandra Bhushan Misra v. Smt. Javatri Devi, AIR 1969 All 142 (FB) and Raja Virendra Shah Ju Deo v. State of Uttar Pradesh, 1964 All LJ 868.

14. Order 41, Rule 23 of the Code of Civil Procedure is in the following words:

'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred with directions to readmit the suit under its original number in the register of civil suits and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions be evidence during the trial after remand.'

15. By Notification No. 43/VII-d-29, published in U. P. Gazette on 1-6-1957 Rule 23, of Order 41 of the Code of Civil Procedure has been amended by the Allahabad High Court in such a way that after the words 'and the decree is reversed in appeal the following words were inserted: 'Or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it. By virtue of this amendment it follows that a certificate under Section 13 can be granted by the appellate court not only where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary pointand the decree is reversed in appeal and the case is remanded but also where the decree of the lower court is reversed and the court intends to remand the case in the interest of justice.

16. Section 351 of the Code of Civil Procedure, 1859 which was in force in 1870 when the Court-Fees Act was passed was in the following terms:

'If the lower Court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the Appellate Court essential to the rights of the parties, and the decree of the Lower Court upon such preliminary point shall be reversed by the decree in appeal, the Appellate Court may, if it thinks right, remand the case, together with a copy of the decree in appeal to the Lower Court, with directions to restore the suit to its original number in the Register and proceed to investigate the merits of the case and pass a decree therein.'

Section 352 of the Code of Civil Procedure, 1859 provided:

'It shall not be competent to the Appellate Court to remand a case for a second decision by the Lower Court, except as provided in the last preceding section.'

The Code of 1859 was repealed and replaced by the Code of 1877 (Act No. 10 of 1877). The argument of the learned Chief Standing Counsel Sri K. S. Verma is that in order to entitle the appellant to a certificate under Section 13 of the Court-Fees Act the order of remand should have been on the ground contained in Section 351 of the Code of 1859 and not on the grounds mentioned either in the unamended terms of Order 41, Rule 23 of the Code of Civil Procedure of the terms as amended by the Allahabad High Court. The argument is based on the reasoning that in Section 13 of the Court-Fees Act reference to Section 351 of the Code does not contain any words to imply reference to any corresponding provision in the current Code of Civil Procedure. For this argument the learned counsel seeks support from the dissenting opinion recorded by Jagdish Sahai, J., in the Full Bench case of AIR 1969 All 142 (FB) and submits that the decision of the Full Bench in the case of Chandra Bhushan Misra should be referred by us to a larger Bench for reconsideration. Having given due consideration to the arguments addressed by the learned Chief Standing Counsel I am unable to find anything which may justify a reconsideration of the decision recorded by the Full Bench in Chandra Bhushan Misra's case, AIR 1969 All 142 (FB). The majority judgment took full note of the line of reasoning which commended itself to Sahai, J., in the minority judgment and gave its own opinion. The matter stands concluded by decision of the Full Bench in the aforesaid case to the effect that whenever an appeal is remanded by the High Court under Order 41, Rule 23 (as amended in U. P.) on the ground that it isin the interest of justice to do so, the appellant is entitled to a refund of the court-fee paid on the memorandum of appeal.

In coming to this conclusion the view earlier expressed by this Court in the case of 1964 All LJ 868 was endorsed. Upon the view which I take on the first point discussed above, the appeal will have to be allowed and the case remanded for rehearing according to law but for reasons which I proceed to state shortly this order of remand will be occasioned by the fact that the case was decided by the court on a preliminary point and will not be (sic) induced by the interest of justice. Learned Chief Standing Counsel, however, maintained that the trial Court cannot be found to have decided the case on a preliminary point inasmuch as it had decided a number of issues and had not disposed of the case on a single point or issue. This is not to my mind a correct view of law. The judgment of the Judicial Officer shows that he recorded findings on issues Nos. 1, 4, 5 and 6 and left undecided only issues Nos. 2, 3 and 8 in view of the finding returned by the Civil Court on the question whether the plaintiff was a bhumidhar. Issue No. 2 related to the question of limitation; issue No. 3 to the question whether the defendants were trespassers; issue No. 7, relief and issue No. 8 to the question whether the land had become vested in the Gaon Samaj.

In Bai Bai v. Mahadeo Maruti, AIR 1960 Bom 543 it was observed that the expression 'preliminary point' does not mean the same thing as a 'preliminary issue' and that a 'preliminary point' means a point, the determination of which enables the trial Court to pass a decree and relieves it from the necessity of determining the other points involved in the suit and even though the point decided by the trial Court happens to be a point of fact, if the test is satisfied that the point was such that a decree could have been granted by the trial Court on the basis of its decision on that point, then, it would be a preliminary point within the meaning of Order 41, Rule 23. The expression is not confined to a point of law or point of jurisdiction. I am in respectful agreement with this view. In that case one of the issues before the Court was whether a certain adoption was valid. The court recorded a finding on issues Nos. 1 and 3. The first issue related to the question whether the plaintiff had proved his adoption. The third issue was whether Santabai was competent to adopt. The other issues were whether the registered deed of adoption was proved and whether the suit was in time. The trial Court did not record its finding on issues Nos. 2 and 4. It had recorded its finding on issues Nos. 1 and 3 and held that the alleged custom not to adopt was not proved. On the first issue however it was found that the plaintiff had failed to establish that the actual giving and taking had taken place and found issue No. 1 in the negative. Having doneso, it was not considered necessary to record its findings on issues Nos. 2 and 4 and on the basis of finding on issue No. 1 the suit was dismissed.

17. In the case of Abdul Gani V. Devi Lal, AIR 1960 Raj 77 it was held that the words 'preliminary point' should not be narrowly construed so as to be confined to pleas like limitation and res judicata but should be given a liberal meaning so as to include any point connected or not connected with the merits of the case, a decision of which in some particular manner results in the disposal of the suit without the necessity of deciding other points actually arising in the case which, or at any rate some of which, must necessarily be decided for the disposal of the case in the event of a different decision on preliminary point not resulting in the disposal of the suit.

18. In Ratanlal Saligram v. Nathulal Pankarji Namdeo, AIR 1961 Madh Pra 108 also the view taken was that the narrow interpretation that a preliminary point is one which does not relate to the merits of the case is unwarranted and that a preliminary point is not restricted to points like limitation, jurisdiction and res judicata and may be either collateral to the merits which precludes their determination altogether or a point which, though relating to the merits, precludes their general determination. It is a point which when determined against the plaintiff brings the suit to an end leaving other issues undetermined. I therefore hold that in any view of the matter upon an order of remand being passed in this appeal the appellant is entitled to a certificate under Section 13 of the Court-fees Act.

19. These were the only points canvassed in the appeal which stand concluded on the conclusions reached above. I would therefore allow this appeal with costs throughout against respondent No. 1, the chief contesting respondent, set aside the judgment and decree of the court below and remand the case for a fresh decision of the case according to law.

U.S. Srivastava, J.

20. I agree with the order proposed and there is nothing that I can usefully add.


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