1. This order will dispose of R. S. As Nos. 746 and 960 of 1965. These are cross-appeals and have arisen in the following circumstances:--
2. A suit under Order 1, Rule 10 of the Code of Civil Procedure was filed by Rabi Ram and others, who are Ramdasias of village Rahaun, Tehsil Samrala, District Ludhiana, for a declaration that the site in dispute consisting of Khasra Nos. 1259, 1260, 1020, 1062 and 118 entered in the Jamabandi of 1945-46 is the exclusive property of the Ramdasias and they have been in adverse possession thereof and thus became the absolute owners of the same. It was further urged that in view of the provisions of the Wajib-ul-arz the property was not partible as it was being used as a graveyard, a pond, a thoroughfare and a place where cattle are tethered and dung-cakes are made. It was also claimed that the defendant had no right to evict the plaintiffs. Permanent injunction restraining the defendants from ejecting the plaintiffs was prayed for.
3. The suit was contested by Dalip Singh, the Khanna Co-operative Society Khanna, the Custodian of Evacuee property and the Union of India. The case set up by the defendants was that the plaintiffs were not in possession and therefore, their suit for injunction could not be maintained. It was claimed that the property in dispute was evacuee property and its allotment by the Custodian to defendant No. 1 Dalip Singh could not be questioned in a Civil Court. The other contentions of the plaintiffs were controverted.
4. On the pleadings of the parties the following issued were framed:--
1. Has this Court no jurisdiction?
2. Is the suit maintainable in the present form?
3. Is the suit barred under Section 11 and by Order 2, Rule 2, Code of Civil Procedure?
4. Is the suit liable to be stayed under Section 10, Code of Civil Procedure?
5. Is the suit correctly valued for purposes of Court-fee and jurisdiction?
6. Have the plaintiffs been in adverse possession in the manner claimed; if so, for how long and with what effect?
7. If issue No. 6 is not proved, are the plaintiffs entitled to the user of the site and are not liable to be evicted?
8. Is the suit not within limitation if the plaintiffs are found in possession?
9. Are the plaintiffs entitled to challenge the order of the Custodian General passed between the parties in case?
5. It was held on the basis of concession that the civil Court had jurisdiction to try the suit, and that the suit was maintainable in the present form. The third and the fourth issues were not pressed. On the fifth issue, it was found that the suit was properly valued for purposes of Court-fee and jurisdiction. On the crucial issue, that is, issue No. 6 it was found that the possession of the plaintiffs was not adverse, so as to confer title on them with regard to the land comprising of Khasra Nos. 1259, 1260 and 1062, but it was not so with regard to Khasra No. 1020, of which they had become owners by adverse possession. On issue No. 7, it was found that the plaintiffs were entitled to keep only that portion of the land which is shown yellow in the plan Exhibit C-1 and which is used as a graveyard and that they were not entitled to the use of any other portion of the land in suit.
Regarding the pond, it was ruled out that the in-flow of the rain-water could not be restricted by the defendant. The suit was held to be within limitation because the plaintiffs were found to be in possession of the site in dispute at the time of the institution of the suit. On issue No. 9, the decision was that the order of the Custodian could be impugned. The result was that the plaintiffs' suit was decreed in part as already indicated. Against this decision, both the parties filed an appeal and both the appeals were rejected by the Senior Subordinate Judge, Ludhiana. Both the parties, i.e., the plaintiffs and defendant No. 1, have come up in second appeal to this Court.
6. Mr. Gokal Chand Mittal, learned counsel for the plaintiffs, raised the plea that the decision of Mr. Justice Dua, in this very suit, was that the Civil Court had jurisdiction to decide whether the property in dispute was evacuee property or not. There is no force in this plea. When the suit was filed, objection to the jurisdiction of the Civil Court was taken. The trial Court held that the Civil Court had no jurisdiction to try the suit in view of Section 46 of the Administration of Evacuee Property Act (no. 31) of 1950. This decision was affirmed on appeal. On further appeal to this Court, Mr. Justice Dua took the view, and rightly so, in view of the Full Bench decision of this Court in Mst. Jafran Begum v. Custodian of Evacuee Property, Punjab, Jullundur, 1962-64 Punj LR 708=(AIR 1963 Punj 40)(FB), that the Civil Court had jurisdiction to determine whether the property in dispute was evacuee property or not. In this view of the matter, the learned Judge remanded the case to the trial Court for decision on merits.
The trial Court has come to the conclusion that the plaintiffs have become owner by adverse possession of Khasra No. 1020, but not of Khasra Nos. 1259, 1260 and 1062. Regarding the pond, it has been found that the plaintiffs are not entitled to the flow of the rain-water and sullage water from their houses into it and the defendants are not entitled to raise the height of the pond so as to obstruct the flow of said water. This decision has been affirmed on appeal by the lower Appellate Court. The defendant-appellant has attacked the decision with regard to Khasra No. 1020. The argument is based on the decision of the Supreme Court in Custodian of Evacuee Property, Punjab v. Jafran Begum, 70 Punj LR 1=(AIR 1968 SC 169). This decision has reversed the decision of this Court on which Mr. Justice Dua relied. The question whether Khasra No. 1020 has been acquired by adverse possession by the plaintiffs and thus it ceased to be evacuee property fell for determination before the Custodian Department in view of the decision in Jafran Begum's case. Therefore, the Courts below had no jurisdiction to decree the plaintiffs suit with regard to Khasra No. 1020.
7. It is in this situation that Mr. Gokal Chand Mittal pressed into service the contention that the decision of Mr. Justice Dua, though erroneous on the question of jurisdiction, would operate as res judicata in as much as that decision had become final and no letters patent appeal had been preferred.
8. The short question that arises for determination is whether a decision on a question of jurisdiction can operate as res judicata. There are two types of decisions which relate to jurisdiction. The first type is where a Court holds that it had jurisdiction but in fact has no inherent jurisdiction to try a matter and the other type is where a Court acts illegally or with irregularity in the exercise of its jurisdiction. Where the Court acts illegally or irregularly in the exercise of its jurisdiction, certainly the decision thereon will operate as res judicata. To this extent, the contention of Mr. Mittal would be correct. But where the Court lacks inherent jurisdiction to try a matter, its decision would operate as res judicata. In this connection reference may be made to Upendra Nath Bose v. Lall, AIR 1940 PC 222, particularly to the following observations:--
'It would indeed be strange if on a dispute as to the jurisdiction of a Court to try an issue, that Court by its reasons for holding that it had no jurisdiction, could, upon the principle of res judicata, decide and bind the parties upon the very issue which it was incompetent to try.'
It is also well settled that where a Court lacks jurisdiction its decision is a nullity. The parties to such a decision can ignore the same. Nullity means what is not est. In P. Krishnan Nair v. Ramchandra Vithal Sanghavi, AIR 1956 Bom 268, Mr. Justice Shah, observed:--
'It is, however, well settled that a Court by an erroneous decision as to its jurisdiction cannot clothe itself with powers to adjudicate upon matters which it cannot on a true interpretation of the limits of its jurisdiction, and the adjudication cannot be regarded as binding upon the parties in other proceedings.'
9. Mr. Gokal Chand Mittal then relied upon the Supreme Court decision in Mohanlal Goenka v. Benoy Krishna Mukherjee, AIR 1953 SC 65, for the contention that a decision of question of jurisdiction is res judicata. This decision certainly does not support the contention raised. In the case before the Supreme Court, there was no inherent lack of jurisdiction. I have already said that if there is no inherent lack of jurisdiction but mere irregular or illegal exercise of jurisdiction, the decision would certainly operate as res judicata. But that is not true, where there is complete want of jurisdiction in the Court. In the latter case the decision cannot operate as res judicata. In this view of the matter, there is no substance in the contention of Mr. Mitra that the Civil Courts could determine whether Khasra No. 1020 was evacuee property or not. If the plaintiffs had perfected their title by adverse possession to this Khasra number, they should have raised this plea before the Custodian and it was for the Custodian to determine whether the property was still evacuee property or it had ceased to be evacuee property by reason of adverse possession.
10. For the reasons recorded above, I have to allow the defendants' Second Appeal No. 960 of 1965 (Dalip Singh v. Rabbi Ram and others), only to the extent that Khasra No. 1020 is evacuee property and has been rightly allotted to the defendants. I am not called upon to determine in the present litigation as to whether the plaintiffs have acquired any right of easement or user before or after the property had been rightly allotted to Dalip Singh. This is a matter which has to remain open till such time a controversy arises between the parties with regard to it.
11. So far as Regular Second Appeal No. 746 of 1965 is concerned, it must fail so far as Khasra Nos. 1259, 1260 and 1062 are concerned. These Khasra numbers are evacuee property and have been rightly allotted to the defendants and the plaintiffs have no concern with the same. Mr. Mitra, however, raised the contention that he was entitled to an injunction against the defendants so far as the pond is concerned. The pond is situated in Khasra Nos. 1259 and 1260. Though these Khasra numbers belong to the defendants, yet both according to the Civil Courts as well as the Custodian's Department, the plaintiffs have a right to the flow of rain water as well as the sullage water from their houses into the pond situate in the said Khasra numbers and this cannot be obstructed by the defendants. They cannot raise the embankment on the pond or fill the pond so as to negative the right of the plaintiffs. I accordingly allow Regular Second Appeal No. 746 of 1965 to the extent that the plaintiffs are granted an injunction restraining the defendants from interfering with the right of the plaintiffs in the flow of the rain-water from their houses into the pond situated in Khasra Nos. 1259 and 1260, or obstructing its flow in any manner.
12. In the circumstances of the case, the parties are left to bear their costs in both the appeals.
13. Appeals partly allowed.