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Chitranjan Prasad Varma and ors. Vs. the Additional Commissioner of Varanasi Division and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 584 of 1960
Judge
Reported inAIR1967All375
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 17 and 21; Uttar Pradesh Agricultural Tenants (Acquisition of Privileges) Act, 1949 - Sections 12 and 12(1)
AppellantChitranjan Prasad Varma and ors.
RespondentThe Additional Commissioner of Varanasi Division and ors.
Appellant AdvocateV.K.S. Chaudhary, Adv.
Respondent AdvocateS.N. Sahai, ;S.C. Asthana and ;Chaturbhuj Sahai, Advs.
DispositionPetition allowed
Excerpt:
.....filed a suit for declaration that the gift was a forged document - court passing the decree and ordered person could not ejected till the 'praman patras' cancelled by the competent court - thereafter donee under the gifts filed an application for cancellation - objection raised such proceeding hit by provision of res-judicata - held, decision of the court is not res-judicata. - - lal kumari devi was decreed by the 2nd additional sub judge, arrah on 31st july, 1964. the decree included property situate in bihar as well as in district ballia. no objection as to the place of suing shall be allowed by any appellate or revisional court unless such 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..........bhagwati kunwar who also died in 1946 leaving three daughters, namely smt. barmati devi, smt. lal kumari devi and smt. prem kumari devi. smt barmati devi executed a deed of gift in favour of petitioner no. 1 sri chitranjan prasad varmn and others and divested herself of the interest in the plots.after the death of bhagwati kunwar, widow of mahabir prasad, smt. lalita kumari and smt. ramanandi devi, co-widows of one gajadhar prasad, pre-deceased son of mahabir prasad, look possession of the plots in dispute left by smt bhagwati kunwar allegedly under the deed of gift dated 6th february, 1946. smt. lal kumari devi, thereupon, filed a suit in the court of the sub judge, arrah, bihar for a declaration that the deed of gift dated 5th february, 1946 alleged to have been executed by smt......
Judgment:
ORDER

D.D. Seth, J.

1. This petition under Article 226 of the Constitution arises out of the following circumstances. One Mahabir Prasad, father of Smt Lal Kumari Devi, deceased was the occupancy tenant of the plots in dispute which art situate in the district of Ballia After Mahabir Prasad's death in 1928 he was succeeded bv his widow Smt. Bhagwati Kunwar who also died in 1946 leaving three daughters, namely Smt. Barmati Devi, Smt. Lal Kumari Devi and Smt. Prem Kumari Devi. Smt Barmati Devi executed a deed of gift in favour of petitioner No. 1 Sri Chitranjan Prasad Varmn and others and divested herself of the interest in the plots.

After the death of Bhagwati Kunwar, widow of Mahabir Prasad, Smt. Lalita Kumari and Smt. Ramanandi Devi, co-widows of one Gajadhar Prasad, pre-deceased son of Mahabir Prasad, look possession of the plots in dispute left by Smt Bhagwati Kunwar allegedly under the deed of gift dated 6th February, 1946. Smt. Lal Kumari Devi, thereupon, filed a suit in the court of the Sub Judge, Arrah, Bihar for a declaration that the deed of gift dated 5th February, 1946 alleged to have been executed by Smt. Bhagwati Devi in favour of Smt. Lalita Kumari and Smt. Ramanandi Devi was a forged document. Smt. Lal Kumari Devi also prayed for possession over the properties in dispute. It may be stated here that a major portion of the properties belonging to Mahabir Prasad are situate within the territorial jurisdiction of the Sub Judge, Arrah.

2. The suit filed by Smt. Lal Kumari Devi was decreed by the 2nd Additional Sub Judge, Arrah on 31st July, 1964. The decree included property situate in Bihar as well as in district Ballia. The learned Additional Sub Judge while passing the decree in favour of Smt. Lal Kumari Devi, further ordered that Smt. Lalita Kumari and Smt. Ramanandi Devi could not be ejected till the Praman Patras granted under the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, hereinafter called the Act, were cancelled by a competent court. No appeal was filed against the decree passed by the Additional Sub Judge, Arrah. After the decree of the Arrah Court the petitioners filed an application under Section 12 of the Act and prayed for cancellation of five Bhumidhari Sanads obtained by Smt. Lalita Kumari Devi and Smt. Ramanandi Devi. The learned Tahisildar of Ballia by his order dated 30th of September, 1958 held that the decision of the 2nd Additional Sub Judge. Arrah was not res judicata between the parties and succession to the occupancy tenancy of Mahabir Prasad was governed by the provisions of the U. P. Tenancy Act and dismissed the petitioner's application.

3. Against the decision of the Tahsildar the petitioners preferred an appeal which was dismissed by the Additional Commissioner, Varanasi in November. 1959.

4. Feeling aggrieved the petitioners came to this Court under Article 226 of the Constitution and prayed that certiorari be issued and the orders passed by the Additional Commissioner and the Tahsildar, Ballia be quashed. It is further prayed that the Additional Commissioner and the Tahsildar, Ballia be ordered to cancel the five Bhumidhari Sanads by allowing petitioner's application under Section 12 of the Act.

5. Smt. Lal Kumari Devi, who was petitioner No. 1, died and her heirs and legal representatives have been substituted.

6. Counter-affidavits and rejoinder-affidavit have been filed.

7. I have heard Sri V.K.S. Chaudhry, the learned counsel for the petitioners and Sri Chaturbhuj Sahai, the learned counsel appearing for opposite parties Nos. 3 and 4.

8. Sri. V.K.S. Chaudhry submitted that there is an error of law apparent on the fact of the record in the orders passed by opposite parties NOS. 1 and 2 inasmuch as they erred In holding that the 2nd Additional Sub Judge, Arrah had no Jurisdiction to entertain a suit Involving properties situate in district Ballia. The learned counsel next submitted that the decision of the Arrah court was res judicata between the parties and that the revenue courts were bound to cancel the Bhumidhari Sanads on the basis of the decree of the Arrah Court.

9. There is force in these submissions.

10. Section 17 of the Code of Civil Procedure is relevant and reads as follows:

'Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose Jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.'

11. It has already been mentioned above that the bulk of property belonging to Mahabir Prasad was situate within the territorial Jurisdiction of Arrah Court. Smt. Bhagwati Devi had executed only one deed of gift and hence a suit for setting aside that deed lay only in one court and the deed could not be challenged piecemeal in different courts. In any case opposite parties Nos. 3 and 4 should have raised the question of jurisdiction before the Additional Sub Judge, Arrah. In the absence of any objection on the part of opposite parties Nos. 8 and 4 the decree of the Arrah Court became final.

12. Section 21 of the Code of Civil Procedure deals with objections to jurisdiction and says:

'No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such 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.'

In the absence of an objection regarding jurisdiction being raised in the Arrah court the view of law taken by the Additional Commissioner and the Tahsildar, Ballia is wrong. It was held in Ram Kishan v. Om Parkash AIR 1941 Lah 347 that property situated in British India, though outside the jurisdiction of a court, can be included in a suit with property situated within such court's jurisdiction.

13. It must, therefore, be held that the Arrah court had jurisdiction to entertain the suit Instituted by Smt. Lal Kumari Devi and the learned Additional Commissioner and the Tahslldar, Ballia were wrong in taking a contrary view.

14. Since opposite parties Nos. 3 and 4 did not raise the question of jurisdiction before Arrah court and the decree of the Arrah court having become final the decision is res judicata between the parties. Section 11 of the Code of Civil Procedure deals with res judicata and says:

'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit in the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I... .. . ..

Explanation II. .. .. .. ..

Explanation III. .. .. .. ..

Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V. .. .. .. ..

Explanation VI . .. .. .'.

15. It must be assumed that the Arrah court decided that it had jurisdiction to entertain the suit instituted by Smt. Lal Kumari Devi and, therefore, under Explanation IV to Section 11 C. P. C. the matter is res judicata between the parties.

16. Section 12 of the Act deals with cancellation of the declaration granted under Section 6 of the Act and says:

'(1) A declaration granted under Section 6 may, on the application of any person interested, be cancelled or modified by the Assistant Collector for any of the following reasons namely:

(a) . .. .. ..

(b) .. .. .. ..

(c) that a decree or order passed by a competent court in a suit or other proceeding with respect to the holding for which the declaration has been granted shows that the applicant under Sections 3, 3-A, 3-B and 3-C was not entitled to the declaration under Section 6.

(2) .. .. .. Provided that .. .. .. ..

17. A competent court having given a, decision in a suit insituted by Smt. Lal Kumari in her favour the revenue courts were bound under Section 12 (1) (c) of the Act to order cancellation of the Praman Patras granted in favour of opposite parties Nos. 3 and 4

18. No other contentions were raised by the learned counsel for the parties.

19. The result is that this petition isallowed with costs and the orders passed bythe Tahsildar, Ballia dated 30th September,1968 and the learned Additional Commissioner,Varanasi dated 26th November, 1959 arequashed. The Tahsildar, Ballia is directed toentertain the petitioners' application underSection 12 of the Act and to cancel the fiveBhumidhari Sanads in favour of opposite parties Nos. 3 and 4.


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