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Dhyan Singh Vs. Indra Pal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 111 of 1971
Judge
Reported inAIR1973All243
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 331(1) and 331(1A); Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1961; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantDhyan Singh
Respondentindra Pal Singh and ors.
Appellant AdvocateShambhu Pd. and ;K.H. Sinha, Advs.
Respondent AdvocateRamesh Sharma, Adv.
DispositionRevision allowed
Excerpt:
.....reforms act, 1951 (amended 1961) - section 331 (1) even after amendment not applicable to pending partition suits of bhumidari holdings - held, jurisdiction of civil courts barred in such cases. - - --(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 had 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. ' 13. the 1956 as well..........to hear and determine the partition suit. so, the partition decree passed on 11-2-1963 in civil suit no. 190 of 1958 was without jurisdiction in view of the amending act no. 37 of 1958. it was held that since the partition decree was void, it cannot be said that the share of the defendants had been determined to be .49 acre only, and the plaintiff cannot claim refund of any part ofthe sale consideration. the appeal was allowed and the suit was dismissed. aggrieved, the plaintiff came up to this court in revision.5. the questions argued by learned counsel were whether the preliminary partition decree passed by the civil court was void and whether an objection of this nature could be raised by the defendants for the first time in appeal.6. section 176, u. p. zamindari abolition.....
Judgment:

Satish Chandra, J.

1. A learned Single Judge has, in view of a conflict between two Division Benches in Basdeo Singh v. Bharat Singh : AIR1949All542 and Bal-bodh v. Mahabir, 1970 All LJ 1145 referred this civil revision to a Full Bench.

2. Indrapal Singh, defendant Opposite Party No. 1 and Janakpal Singh, father of defendant Opposite Parties Nos. 2 to 4, were co-sharers in a bhumidhari holding. They, by two sale deeds dated 19th September, 1956 and 26th September, 1957, transferred 2.30 acres out of this holding in favour of the plaintiff-applicant. One Lakhan Singh, a co-sharer in the holding, filed Suit No. 190 of 1958 for partition in the court of the Munsif, Etah. The transferors and the transferee (namely the plaintiff-applicant) were both impleaded as parties to the partition suit. The learned Munsif passed a decree on 11th February, 1963, declaring the share of the transferors at .49 acre. Thereupon the transferee filed the present suit for recovery of Rs. 1,000/-. He claimed that out of the area of 2.30 acres sold to him only .49 acre has remained with him. The balance 1.81 acres has gone away from him because his transferors were declared as having no interest in that area. He claimed refund of Rs. 551/-which represented the proportionate sale consideration and Rs. 449/- as interest.

3. The defendants opposite parties contested the suit. They denied that the sale deed was without consideration. They alleged that the plaintiff had acted negligently in defending the partition suit, otherwise the defendants' share would have covered the entire area sold to him. The right of the plaintiff to interest was denied. It was also pleaded that the suit was barred by time. No plea as to the jurisdiction of the civil court to entertaining and deciding the suit for partition was taken in the written statement.

4. The trial court repelled the various pleas in bar and decreed the suit. The defendants appealed. At the hearing of the appeal the defendants raised an additional plea that the decree for partition was void because the civil court had no jurisdiction to partition the bhumidhari holding. The learned Civil and Sessions Judge, Etah, repelled the various pleas urged on the merits of the case but upheld the plea of jurisdiction. Relying on 1970 All LJ 1145 he hold that in view of Section 331 of the Zamindari Abolition Act, as it stood after its amendment in 1961, the civil court had no jurisdiction to hear and determine the partition suit. So, the partition decree passed on 11-2-1963 in Civil Suit No. 190 of 1958 was without jurisdiction in view of the Amending Act No. 37 of 1958. It was held that since the partition decree was void, it cannot be said that the share of the defendants had been determined to be .49 acre only, and the plaintiff cannot claim refund of any part ofthe sale consideration. The appeal was allowed and the suit was dismissed. Aggrieved, the plaintiff came up to this Court in revision.

5. The questions argued by learned counsel were whether the preliminary partition decree passed by the civil court was void and whether an objection of this nature could be raised by the defendants for the first time in appeal.

6. Section 176, U. P. Zamindari Abolition and Land Reforms Act provided for partition of holding of a bhumidhar or sirdar. Section 331 (1) of the Act, as originally enacted, provided:--

'331. (1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application or proceeding mentioned in column 3 thereof.'

Schedule II as originally enacted did not contain any entry in regard to a suit for partition mentioned in Section 176. The effect was that suits for partition of holdings of a bhumidhar or sirdar were cognizable by the Civil Courts alone.

7. The U. P. Land Reforms (Amendment) Act 20 of 1954 (which came into force on 10th October, 1954), introduced Sections 182-A and 182-B in the principal Act. These sections provided:--

'182-A. The provisions of Section 54 and Order XX and Rule 18, Code of Civil Procedure, 1908, shall apply to a suit for partition of a holding under Section 176.'

'182-B. Except as provided in Sections 178 to 182 the partition of a holding or the separation of the share therein of a bhumidhar or sirdar shall be made by the Collector in accordance with the principles that may be prescribed.'

The result was that suits for partition by a bhumidhar or sirdar were entertainable by civil Courts alone. But the final decree for partition could be passed only by the Collector.

8. The U. P. Land Reforms (Amendment) Act No. 18 of 1956 (which came into force on 28th May, 1956) repealed and re-enacted Schedule II to the Act. In the re-enacted Schedule II, Entry 16 referred to Section 176 and mentioned 'suit for the partition of a holding by a sirdar.' Thus, with effect from 28th May, 1956, suits for the partition of a holding of a sirdar were entertainable by the revenue court alone, but suits for partition of the holding of a bhumidhar continued to be cognizable by the civil Court. Section 23 of this Amending Act provided the saving clause. Under it, any proceeding instituted or commenced before any Court or authority prior to the commencement of that Act was to be continued to be heard and decided by the said Court or authority notwithstanding any amendment made by it. Pending suits forpartition of a holding of a sirdar could validly be continued in the civil Court.

9. The U. P. Land Reforms (Amendment) Act No. 37 of 1958 amended Section 176 by substituting the word 'division' for the word 'partition' occurring in it. Section 182-A was repealed. Section 182-B was amended as follows:--

(1) for the words 'Except as provided in Sections 178 to 182' the words 'subject to the provisions of Sections 178 to 182' shall be substituted;

(2) for the word 'partition' the word 'division' shall be substituted; and

(3) for the word 'Collector' the word 'Court' shall be substituted. Suits for partition were now to be called suits for division. The final decree in a suit for division was now to be passed by the Court in which the suit was pending instead of by the Collector. Entry No. 16 in Schedule II was also modified. For the words 'suit for the partition of a holding of a sirdar' the words 'suit for the division of a holding of a bhumidhar or sirdar' were substituted. Henceforth suits for division of a bhumidhari holding also became cognizable by the revenue court alone.

10. Section 87 of the Amending Act of 1958 provided the saving clause as follows:--

'87. Savings--(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 proceedings 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.'

Thus, pending suits were to continue to be heard and decided by the Court where they were pending uninfluenced by the amendments made by the 1958 Act.

11. The U. P. Land Laws (Second Amendment) Act No. 28 of 1961 added the following words at the end of Sub-section (1) of Section 331 : 'or of a suit, application or proceeding based on a cause of action in respect of which any such relief could be obtained by means of any such suit or application'. It also added the fol' lowing explanation:--

'Explanation:-- If the cause of action is one in respect of which relief may be granted by the Revenue Court, it is immaterial that the relief asked for from the Civil Court may not be identical to that which the Revenue Court would have granted.'

12. To complete the legislative history, the U. P. Land Laws (Amendment) Act No. 4 of 1969 inserted Sub-section (1-A) in Section 331. It stated:--

'(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 had 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.'

13. The 1956 as well as the 1958 Acts were enacted to amend the U. P. Za-mindari Abolition Act in various respects. Section 23 of the 1956 Act and Section 87 of the 1958 Act provided the saving clauses. The amendments, inter alia, transferred partition suits from the civil to the revenue courts. But these saving clauses prevented pending suits from being affected by the amendments. 'In substance, these saving clauses operated as a proviso or exception to the various amendments made in the different sections of the Act and entries in the Schedule.

14. A similar question arose before a Full Bench in Ramesh Chand v. Board of Revenue : AIR1973All120 . The U. P. Tenancy (Amendment) Act 10 of 1947 by Sections 2 to 26 and 32 and 33 made amendments in various sections of the U. P. Tenancy Act. Section 27 provided for reinstatement of certain classes of tenants. The provisions of this section were not bodily incorporated in any particular section of the principal Act. It was held that Section 27 was in substance a proviso to Sections 175, 171 and 180 of the principal Act. It will be deemed to be a part of the present Act. On the same line of reasoning, the two saving claused will be deemed part of the Zamindari Abolition Act.

15. Section 331 (1) opens with the clause 'except as provided by or under this Act'. So, the bar created by this provision including the amendments made in it in 1961, operates subject to any exception provided by any other provision of the Act. It has been seen that the saving clauses of the 1956 and 1958 Amending Acts were part of the principal Act. In so far as they provide for the continuance of pending suits in the civil Courts, they make an exception within the meaning of Section 331 (1); and so the bar created by Section 331 (1) even after its amendment in 1961 will not apply to the civil Court in relation to such pending suits.

16. The partition suit was filed ob 15-4-1958. It was pending in the civil court when the Amending Act of 1958 came into force, on 7-1-1958. The savins clause was applicable. The civil Court validly passed the preliminary decree on 11-2-1963. Thelower appellate Court acted with material irregularity in holding that the partition decree was without jurisdiction and void.

17. The decision of Balbodh v. Mahabir, 1970 All LJ 1145 was rendered in ignorance of the saving clause. The actual decision that the suit could not be heard and determined by the civil Court after the coming into force of the 1961 Amending Act was incorrect. In our opinion, there is really no conflict between the decision in : AIR1949All542 and the decision in Bal-bpdh's case, 1970 All LI 1145. Basdeo Singh's case related to a suit under Section 180 of the Tenancy Act. It was held that the amendments made in Section 180 by the Amending Act 10 of 1947 were not retrospective. In that light the provisions of Section 242 of the U. P. Tenancy Act were interpreted by that Bench as not depriving the civil Courts of their jurisdiction to continue to hear and determine suits which were pending when the Amending Act of 1947 came into force. In Durgapal Singh v. Kunwar Jahan Singh : AIR1957All257 a Division Bench took the view that the amendments introduced in Section 180 by the Act of 1947 were retrospective and that the civil Court lost powers to continue to hear and decide suits which were pending when 1947 Act came into force. There is thus a conflict between Basdeo Singh's case, 1970 All LI 1145 and Durgapal Singh's case : AIR1957All257 . Since the question relating to the amendments made in Section 180 of the U. P. Tenancy Act does not arise in the present case and since the language of Section 242 was materially different than that of Section 331 (1) of the Zamindari Abolition Act, we deem it unnecessary to express an opinion on the correctness of either of these two decisions.

18. Sub-section (1-A) of Section 331 debarred a litigant from raising the question of jurisdiction either of the civil or the revenue court in an appellate or revisional court unless the two conditions mentioned in it are satisfied. In our opinion this provision applies to an objection taken in the same proceeding but in an appellate or re-visional court. It governs objections to the jurisdiction of the trial Court to entertain the same case. It does not apply where an objection to the jurisdiction of a court to try a suit is taken in some subsequent proceeding where the decision in the previous suit is relied upon. In the present case the objection was that the previous partition suit was decided by the civil Court without jurisdiction. This objection is being taken in a subseauent suit. Sub-section (1-A) is not applicable. It could not debar this court from entertaining and deciding such an objection in accordance with law. Since we have held that the civil Court had juris-diction, it is unnecessary to decide whether the defendant was debarred from raising such an objection on the ground that this plea was not taken in the partition suit andso it was barred by the might and ought rule of res judicata.

19. In the result, the revision succeeds and is allowed. The decree of the lower appellate Court is set aside and that of the trial Court restored with costs throughout.


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