CHANDRIKA MISIR & ANR. versus BHAIYA LAL

CHANDRIKA MISIR & ANR.

v. BHAIYA LAL luly 31, 1973 LD. G. PALEKAR AND A. ALAGIR!SWAM!, JJ.J

U.P. Zamirnlari Abolition arnl Larnl Reforms Act, 1951 and Rules-Sectio11s 209 and 331-Whether Cii•il Court had iurisdiction to entertain the suit-Limi-tation.

Appellants brought this suit against the present respondent for possession of certain Bhumidhari plots. The plots had been purchased in the name of the appellant's uncle. After the death of the uncle who died issueless, the plots were recorded in the name of his widow. The widow died in 1948. The appellants as the next reversioners claimed-title to tl1e plots. The respondent contended that the suit was barred by limitation. The couits below were unanimously of the opinion that the plaintiffs had title to the property and the defenElant had none. The leam:-d Munsiff h'Jwever dismissed the suits as being barred by limitation. In appeal, the learned Addi-tional Civil Judge reversed the finding and decreed the suit. In second appeal the High Court was of the view that the period, Of limitation was not the one which was prescribed under the Limitation Act~ but the one which was provided in· Appendix 2 of the U.P. Zamindari Abolition and l,and Reforms Ru1es, 1952, which was 2 vears from 1-7-1952. Since the suit -was filed on 5-9-1955, it was I) barred by limitation.

Dismissing the appea1,

HELD: (i) Sections 209 and 331 of U.P. Zamindari Abolition and Land Reforms Act 1951, when. read together,· showed that suit, like the present one, had to be fiJed in Special Court created under the Act within period of limita-tion specially prescribed under the Rules made under the Act, and the jurisdic-tion of the ordinary Civil Courts to entertain the suit was absolutely barred.

Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction because of special provisions of the U.P. 1 Zamindari Abo1i· !Ion and Land Reforms Act 1951, the present appeal filed by the appellant• had to be dismissed. [2938) CIVIL APPELLATE JURISDICTION :-Civil Appeal No. 2032 of 1968. Appeal by certificate from the judgment and decree dated Janu-ary 31, 1968 of the Allahabad High Court in Second Appeal No. 2128 of 1963.

Yogeshwar Prasad and M. Veerappa, for the appellants. Uma Mehta, S. K. Bagga and S. Bagga; for the respondent. The Judgment <:>f the Court was delivered by

PALEKAR. J .-This is an appeal by special leave against the Judgment and decree of the Allahabad High Court in Second Apoeal No. 2128 of 1963. The plaintiffs brought the suit a~ainst one Bhaiya Lal, the present respondent, in respect of certain Bhumidari plots. The plots had been purchased in the name of one Markandey-the uncle of the plaintiffs. After the death of Markandey. who died with-out issue, the plots were recorded in the name of his widow Jagdamba. Jagdamba died in 1948. The plaintiffs as the next reversioners claimed

title to the property. They alleged that the respondent was interfer-ing with their p0ssession and hence they prayed for permment in· junction. In the alternative, they also asked for the relief of pos-session. The suit was filed on 5-9-1955.

Several pleas were taken on behalf of the defendant one of th~m being plea of limitation. The courts were unanimously of the opinion that the plaintiffs, being the next heirs, had sufficient title to the property while the defendant had none whatsoever. The learned Munsif in whose court the suit was filed however, held that the suit was barred by limitation. In appeal the learned Additional Civil Judge, Varanasi, held that the plaintiffs claim was not barred by limitation. Accordingly, possession was decreed in favour of the plaintiffs.Jn second appeal the High Court found that the question of limit-c ation could not be properly determined unless there was specific finding on two issues one relating to the commencement of the pos-session of the plots in 1951-52. The finding on the second issue was Chandrika Misir, at the time of filing the suit. The High Court re· manded these two issues to the First Appellate Court for finding. The finding on the first issue was that the defendant took actual pos-session of the plots in 1951-52. The finding on the second issue was that plaintiff No. 1 Chandrika Misir was minor when Jagdamba died in 1948 and that he attained majority in the year 1955 and not before that.

When the case again came before the learned Chief Justice for the disposal of the appeal, these findings were accepted as they were findings of fact. The only point that the High Court had to decide was whether the suit which bad been filed on 5-9-1955 i.e. the year in which the plaintiff no. 1 had attained majority was in time, In an ordinary suit filed in Civil Court for possession on the ground of dispossession the question of limitation, on the above facts, would have hardly arisen. Jagdamba bad died in 1948 and plafotiff no. 1 the next reversioner came of age in 1955. The period of limitation would be 12 years and the suit would be obviously in time. But the High Court was of the view that the period of limitation was not the one which was prescribed in the Limitation Ac.I but the one which was laid down in the Appendix to The Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 which was two years from 1-7-1952 which was the date of vesting under the U.P. Zamindari Abolition and Land Reforms Act (Act No. 1 of 1951). The High Court further held that the fact that the plaintiff no. 1 was minor at the time of filing of the suit did not help him because section 6 of the Indian Limitation Act, 1908 did not govern suits falling under U.P. Act No. 1 of 1951.

Accordingly, the suit was dismissed.

It is from this Order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in Civil Court· for possession and the Limitation Act will be the Act which will govern such suit It is not the case that U.P. Act No. 1 of 1951 authorises the filing of the suit in Civil Court and prescribes period of limitation for granting the relief of possession

superseding the one prescribed by the Limitation Act. It was, there-fore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass decree for possession in favour of the plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such contention with regard to the juris-diction had not been raised by the defendant in the Trial Court but where the court is inherently Jacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogheshwar Prasad, even in execution proceedings on the ground that the decree was nullity. If one reads sections 209 and 331 of the U.P. Act No. 1 of 1951 together one finds that suit like the one before us has to be filed before Special Court created under the Act within period of limitation specially prescribed mlder the roles made under the Act and the jurisdiction of the ordinary civil Courts is absolutely barred. Section 209 so far as we are concerned reads as follows :

"209 Ejectment of persons occupying land without title

(1) person taking or retaining possession of land other· wise than in accordance with the provisions of the law for the time being in force, and-

( a) where the land forms part of the holding of bhumidhar, sirdar or asami, without the consent of such bhumidhar, sirdar or asami, and

(b) ............................. .

shall be liable to ejectment on the suit in cases referred to in clause (a) above, of the bhumidhar, sirdar or asarni con-cerned,

and shall also be liable to pay damages.

(2) To every suit relating to land referred to in clause (a) of sub-section ( 1) the State Government shall be impleaded as necessary party."

In the present case it has been held that the defendant has been re-that the land is bhumidhari land and the plaintiffs are bhmnidhars. taining possession of the land contrary to law being trespasser; Therefore, the suit was of description falling under section 209. Section 331 so far as it is relevant is as follows :

"331. Cognizance of suits, etc;., under this Act.

(1 ) Except as provided by or under this Act no Court than Court mentioned in Column 4 of Schedule II shall, notwithstanding anythin~ contained in the Civil Procedure Code, 1908, take cogniimce of any suit, application, or pro· ceedings mentioned in column 3 thereof."

Schedule II at serial no. 24 shows that suit for ejectment of per-sons occupying land without title under section 209 should be filed in !he oourt of the Assistant Collector, Frrst Class, which is des-cribed as the Court of Original Jurisdiction. In view of Section

331 (1) quoted above it is evident that the suit made cognizable by special court i.e. the Court of the Assistant Col1ector, First Class, cowd not be filed in Civil Court and the Civil Court was, therefore, 'inberentty lacking in jur1sdiotion to entertam such suit. It is u,1fortu· nate that . this position in law was not noticed in the several Courts through which this litigation has passed, not even by the High Court which had specifically come to the conclusion that the period of limi-B tation was the one laid down by the rules under U.P. Act No. 1 of 1951. Sinoe the Civil Court which entertained, the suit suffered from. an inherent lack of jurisdiction, the present appeal filed by the plain~ will have to be dismissed.

As regards costs, we do not think that this is fit case in which the defendant should get his costs in any of the courts. Though he had no title to the property, he was trying to set up title. But his attempt was negatived by all the courts. He did not urge also the contention with regard to the jurisdiction of the court at any stage except . in this Court. Therefore, while dismissing the appeal we further direct that the plaintiffs and the defendant shall bear their own costs throughout.

Appeal dismissed.