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Sheo Ji Singh and ors. Vs. the Deputy Director of Consolidation, U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 1200 of 1969
Judge
Reported inAIR1974All261
ActsConstitution of India - Article 227; Uttar Pradesh Tenancy Act, 1939 - Sections 59; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951
AppellantSheo Ji Singh and ors.
RespondentThe Deputy Director of Consolidation, U.P. and ors.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateV.K.S. Chaudhary, Adv.
DispositionAppeal dismissed
Excerpt:
.....rai filed a writ petition in this court which failed. it is well settled that parties cannot by consent confer jurisdiction upon a court. 100/- so that the compromise required registration before it could effectively pass title. they are transferees from daroga rai as well as..........section 59 of u. p. tenancy act claiming to be the sole tenants of the land. this suit ended in a compromise decree dated 30th april, 1952. under it smt. fatengana was recognised to be the holder of a half share in the holding while daroga rai and harihar rai were declared to be the owners of the balance half. the compromise further recognised the transfers executed by smt. fatengana in relation to 1.30 acres of the holding as well as the transfer executed by daroga rai and harihar rai in relation to 5.255 acres of the holding.2. on 1st december, 1952, smt. fateneana filed another suit for declaration under section 59 of the u. p. tenancy act. this suit also ended in a compromise dated 30th august, 1954. under this compromise decree smt. fatengana was given 4.12 acres of this holding in.....
Judgment:

Satish Chandra, J.

1. Baij Nath Daroga Rai and Harihar were fixed rate tenants of holding No. 139 measuring 9.56 acres. On 17th September, 1951, Smt. Tapesara and Smt. Rangbasi, two widows of this family executed a deed of sale of .62 acres of this holding in favour of respondents Nos. 18, 19 and 20. Some time before that in 1950 Baij Nath had died and his widow Smt. Fatengana laid claim to a half share in the holding as the heir of Baij Nath. This led to some disputes whereupon Harihar Rai and Daroga Rai filed a suit for a declaration under Section 59 of U. P. Tenancy Act claiming to be the sole tenants of the land. This suit ended in a compromise decree dated 30th April, 1952. Under it Smt. Fatengana was recognised to be the holder of a half share in the holding while Daroga Rai and Harihar Rai were declared to be the owners of the balance half. The compromise further recognised the transfers executed by Smt. Fatengana in relation to 1.30 acres of the holding as well as the transfer executed by Daroga Rai and Harihar Rai in relation to 5.255 acres of the holding.

2. On 1st December, 1952, Smt. Fateneana filed another suit for declaration under Section 59 of the U. P. Tenancy Act. This suit also ended in a compromise dated 30th August, 1954. Under this compromise decree Smt. Fatengana was given 4.12 acres of this holding in lieu of maintenance allowance. The balance was agreed to be the bhumidhari of Daroga Rai and Harihar Rai.

3. In the basic year the name of Daroga Rai alone appeared as the bhumidhar of the holding. Smt. Fatengana filed an objection claiming a half share in the holding. The Deputy Director ultimately held that the compromise of 1952 decided the title of the parties with the result that Smt. Fatengana would have a half share in the holding. He also held that the sales executed by both the parties will be adjusted against their shares. Aggrieved, Daroga Rai filed a writ petition in this Court which failed. Hence the present appeal.

4. For the appellants it was urged that the compromise decree dated 30th August, 1954, was binding between the parties and so the lady had only a right to possession of the specific plots in lieu of her maintenance allowance. In Shital Prasad v. Board of Revenue, 1962 All LI 90 a Division Bench of this Court held that a suit for declaration of tenancy rights is not competent under the Tenancy Act after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act. The suit filed by Smt. Fatengana on 1st December, 1952, was, therefore, incompetent. The revenue courts are courts of special jurisdiction. They have no jurisdiction to entertain suits of any kind except those with regard to which jurisdiction has been expressly conferred by statute on them. If they had no jurisdiction to entertain a suit of this nature after the date of vesting, a decree passed by them would be a nullity. The compromise decree hence created no right or obligation between the parties because it was void.

5. For the appellants reliance was placed upon a decision of a learned single Judge in Chet Ram v. Director of Consolidation. 1970 All WR (HC) 775. There it was observed that there is a difference between jurisdiction of a court and maintainability of a suit. What this Court has held in Shital Prasad v. Board of Revenue, 1962 All WR (HC) 96 is that a suit for a declaration of tenancy right is not maintainable in the Revenue Court after the passing of the Zamindari Abolition and Land Reforms Act, This decision is not an authority for the proposition that the revenue court had no jurisdiction for declaring a person as a tenant. We are unable to agree with this proposition. When it is held that a suit is not maintainable in a revenue court because no such suit could be filed under the statute, it obviousiy means that the court had no jurisdiction to entertain a suit of that nature. It was further observed in Chet Ram's case that if a suit for declaration was filed and the question of jurisdiction was not agitated, lather the claim of the plaintiff was admitted and a decree is passed, such a decree is binding on the parties and neither party in such a case can assert that the decree is not binding on him. This, in our opinion, does not lay down correct law. It is well settled that parties cannot by consent confer jurisdiction upon a court. Existence of jurisdiction is not a matter dependent upon the assent of parties. It is only in those cases where the exercise of jurisdiction in a particular mode is irregular that the consent of parties cures the irregularity. Here the revenue courts had no jurisdiction to hear a suit for declaration of tenancy rights after the date of vesting. This is not a case of exercise of jurisdiction. Therefore, the fact that the question of lack of jurisdiction was not agitated before the revenue court will not make the decree valid.

6. On the strength of Jokhan v. Rami Deo, AIR 1967 All 212 it was stressed on behalf of the appellants that even if a compromise decree is invalid, the antecedent compromise upon which it was passed does not fall. The compromise still continues to hold the field and can be enforced. There is no quarrel with this proposition. But if the appellants desired to place reliance upon the antecedent compromise they should have taken such a plea. If such a plea had been taken, the respondents would have been in a position to meet it, e.g., they could have proved that the value of the property which was the subject-matter of the compromise was above Rs. 100/- so that the compromise required registration before it could effectively pass title. Since the plea was not taken, no findings upon the various factual aspects governing it have been recorded. It is, therefore, not open to the appellants to rely upon the antecedent compromise for the first time in this Court.

7. In our opinion, the compromise decree of 30th August, 1954, was void and valueless. The consolidation authorities were right in ignoring it.

8. In the next place it was urged that the direction of the Deputy Director that the transfers executed by the parties will be adjusted against their shares was invalid. This is not a case of transfer by the karta of a Hindu undivided family. Smt. Fatengana had a half share as a widow. She could not claim membership of any coparcenary. She was a co-tenant and not a coparcener. There is no allegation that Daroga Rai executed the transfers with the consent of all the co-sharers or for their benefit. Under the circumstances, the Deputy Director was justified in directing that the transfers would be adjusted against the respective shares of the parties. In the compromise decree of 1952 the various transfers were recognised. It was specifically agreed there that the transfers executed by Smt. Tapesara and Smt. Rangbasi will be deemed to be transfers made by Smt. Fatengana. In spite of it Smt. Fatengana was given a half share in the holding. That would mean that the holding was the property of the family at the time of the compromise. The direction of the Deputy Director that the transfers by the parties will be adjusted against their shares recognises this factually agreed position.

9. Respondents 6 and 13 to 20 were not served with the summons of the appeal. They are transferees from Daroga Rai as well as Smt. Tapesara and Smt. Rangbasi. Since the appeal fails on the merits, it is unnecessary to decide the effect of their absence on the constitution in the appeal.

10. In the result, the appeal fails and is accordingly dismissed with costs.


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