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Shabbar Ali Khan and anr. Vs. Mardan Ali Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3769 of 1965
Judge
Reported inAIR1974All353
ActsUttar Pradesh Abolition of Zamindari and Land Reforms Act, 1951 - Sections 331(1A)
AppellantShabbar Ali Khan and anr.
RespondentMardan Ali Khan and anr.
Appellant AdvocateK.C. Saxena and ;M. Katzu, Advs.
Respondent AdvocateK.M. Sinha, Adv.
DispositionAppeal dismissed
Excerpt:
.....down that both these conditions must be satisfied. 3. further, it has not been shown to me how there was any failure of justice on account of the trial of the suit in the civil court......now, in the present case though an objection was taken to the jurisdiction of the court to try the suit the same was founded on the ground of valuation and not on the ground that the subject-matter of the suit was triable by the revenue court alone. this is clear from the trial court's finding on issue no. 3. further, it has not been shown to me how there was any failure of justice on account of the trial of the suit in the civil court. the supreme court in kiran singh v. chaman paswan, (air 1954 sc 340) has laid down that prejudice must be apart from the finding recorded by the court in the suit and, therefore, i have to be shown how the trial in the civil court caused any prejudice to the defendants. therefore, i hold that it is not open to the defendants to set-up a plea under.....
Judgment:

M.P. Mehrotra, J.

1. This is the defendant's second appeal arising out of a suit for partition. The plaintiff claimed half share in the suit plots on the basis that he was a co-tenure-holder. The defence was that the defendants were the sole Bhumidhars and that the plaintiff had no interest in the plots in question. The trial court decreed the suit holding that the plaintiff's claim to be the co-bhumidhar of the plots in question was correct. The defendants filed an appeal and the same was dismissed on the ground that the defence was barred by Section 49 of the Consolidation of Holdings Act inasmuch as the rights of the parties stood finally determined in the consolidation proceedings. It may be stated here that in the consolidation proceedings Form No. 25 was issued disclosing the share of the plaintiff to be half and the remaining half share to the defendants. No objection was filed before the consolidation authorities and, therefore, the lower appellate court took the view, that it was not open to the defendants to set up a claim to be the sole Bhumidhar of the land in suit. The lower appellate court did not go into the merits of the case.

2. In the second appeal Shri K. C. Saxena, the learned counsel for the appellants, has sought to argue that the suit was not maintainable in the civil court and only the revenue court had the exclusive jurisdiction to try the same. The suit is, therefore, said to be not maintainable under Section 331 of U.P. ActNo. 1 of 1951. In 1969 Sub-section (1-A) was added to Section 331 and the said sub-section lays down as under:--

'(1-A). Notwithstanding anything in Sub-section (1), an objection that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which has no jurisdiction, with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto, shall not be entertained by any appellate or revisional court unless the 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 settlement, and unless there has been a consequent failure of justice.' Now, this sub-section lays down two conditions before an objection regarding the lack of jurisdiction shall be entertained by any appellate or revisional court. The two conditions are:--

(i) the objection must be taken in the court of the first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement and,

(ii) there has been a consequent failure of justice.

The Full Bench in Dhyan Singh v. Indrapal Singh, 1973 All LJ 193 = (AIR 1973 All 243) (FB) has laid down that both these conditions must be satisfied. Now, in the present case though an objection was taken to the jurisdiction of the court to try the suit the same was founded on the ground of valuation and not on the ground that the subject-matter of the suit was triable by the revenue court alone. This is clear from the trial court's finding on issue No. 3. Further, it has not been shown to me how there was any failure of justice on account of the trial of the suit in the civil court. The Supreme Court in Kiran Singh v. Chaman Paswan, (AIR 1954 SC 340) has laid down that prejudice must be apart from the finding recorded by the court in the suit and, therefore, I have to be shown how the trial in the civil court caused any prejudice to the defendants. Therefore, I hold that it is not open to the defendants to set-up a plea under Section 331 of the U. P. Act No. 1 of 1951.

3. No other point has been canvassed before me and the appeal is dismissed. In the circumstances, I make no order as to costs.


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