Patna High Court
Mohan Lal And Anr. vs The Charge Officer And Ors. on 1 March, 1974
Equivalent citations: AIR1974PAT275, AIR 1974 PATNA 275
JUDGMENT H.L. Agarwal, J.
1. Petitioners have filed this writ application under Articles 226 and 227 of the Constitution of India for quashing of the judgment (Annexure 2) of the Assistant Settlement Officer, Purnea (respondent No. 2) as also the judgment (Annexure 3) passed by the Charge Officer, Purnea (respondent No. 1) on appeal by the petitioners before the said authority against the judgment and decree of respondent No. 2, in the following circumstances :
The petitioners had filed a title suit in the Court of the Munsif, Sadar Purnea, for declaration of their title and confirmation of possession or in the alternative, for recovery of possession over the suit land, which was registered as Title Suit No. 3783 of 1964. The plaintiffs' case, as made out in the said plaint, is that the disputed lands are their ancestral properties with which the defendants had no manner of concern. During the last revisional survey, a wrong entry was made in favour of respondent Nos. 3 to 7 against the existing conditions, who have been recorded as Bataidars. A further prayer for declaring the petitioners as the raiyats of the suit land has also been made in the plaint.
2. During the pendency of the title suit aforesaid, Section 109 of the Bihar Tenancy Act was replaced by a new section by the Bihar Tenancy (Amendment) Act 1970 (Act 6 of 1970) by which a bar of jurisdiction to Civil Courts was created and it was provided that Civil Court shall not entertain any application or a suit in which correctness of any entry in any such record or roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved, and such suits or applications were to be instituted before the Collector or any Revenue Officer specially empowered by the State Government by notification in this behalf. A provision for filing an appeal was also made before the Revenue authority to be specially empowered by the State Government by notification in this behalf. In pursuance of the above amendment, the Civil Court transferred the suit of the petitioner to the Revenue Court and, as already stated above, was decided by the respondent No. 2 and on appeal by the petitioners, against the said judgment, by respondent No. 1.
3. A large number of writ applications challenging the constitutional validity of the aforesaid provisions of the Bihar Act 6 of 1970 as well as various civil revision applications against the order of the Civil Court transferring title suits to the Revenue Courts were filed in this Court. The matter was ultimately referred to a Full Bench and this Court in the case of Nand Kumar Roy v. State of Bihar, (1973 BBCJ 841) = (AIR 1974 Pat 164 FB) on consideration of various aspects of the amendments, struck down Clause (d) of Sub-section (1) and Sub-section (2) of the new Section 109 of the Bihar Tenancy Act, introduced by the Bihar Act 6 of 1970, as being constitutionally invalid and expressly observed that suits pending in Civil Courts for declaration of title, confirmation of possession or recovery of possession would remain pending in Civil Courts and be triable only by them even though the entry in survey was challenged expressly or implledly.
4. In view of the declaration of this Court in the aforesaid decision, learned counsel for the petitioners submitted that the judgments of the Revenue authorities in the original suit as well as in the appeal, which were the result of the aforesaid amending provisions of Bihar Act 8 of 1970 i.e. under the new Section 109 of the Bihar Tenancy Act were consequently invalid and without jurisdiction, as the suit and the appeal were entertained by the said authorities and disposed of by them under an invalid enactment and, therefore, when the said provision was itself declared unconstitutional by this Court, the jurisdiction created in respondents Nos. 2 & 1, also became ipso facto non est and the two judgments, therefore, must be held to be invalid, without jurisdiction and inoperative. There seems to be a great force in the contention of learned counsel and it must be accepted. It is well settled that if a Court or an authority has got no jurisdiction in law to entertain a dispute and erroneously proceeds to determine the rights of the parties, no amount of consent or acquiescence of the parties themselves will create the jurisdiction in the said Court or authority and the inherent lack of jurisdiction in the said authority will not in any way be cured or supplied on account of the act of the parties themselves. If any authority is needed, in support of the proposition, I may refer to a Bench decision of this Court in the case of Raghuraj v. Basudeo, (AIR 1950 Pat 318). Accordingly, it must be held that the respondent No. 2 and respondent No. 1 never had any authority or jurisdiction to decide the suit or the appeal of the petitioners and the said' decisions having been give by an authority who were inherently lacking jurisdiction were invalid. Simply because no objection was taken by the parties themselves during the course of the trial or the hearing of the appeal, would not cure the defect of the jurisdiction in the said authorities. It is equally well settled that the Court trying a suit must be competent to try the same, otherwise the decision has got no binding force or effect.
5. From the above discussions, I do not feel any difficulty in holding that the judgment passed in the title suit by respondent No. 2 as well as that passed in appeal by respondent No. 1 are wholly without jurisdiction and, therefore, inoperative in the eye of law. It is also manifest that the title suit of the petitioners was transferred by the Civil Court to the Revenue authority under an erroneous impression created by the provisions or Bihar Act 6 of 1970, and, therefore, the order transferring the title suit of the petitioners was itself without jurisdiction which resulted in the prosecution of the two proceedings before incompetent authorities. Of Course, the petitioners should have taken steps earlier by coming to this Court before actually suffering the two decisions, but in view of the utter lack of jurisdiction in the Revenue authorities, as already indicated above, they must be held entitled to the disposal of their title suit instituted in the Civil Court, by the Civil Court itself.
6. In the result, the application succeeds and the rule issued by this Court is made absolute. Annexures 2 and 3 are hereby held to be without jurisdiction and inoperative and are accordingly quashed. The respondents are also directed to transmit the records of the title suit back to the Court from which they were received with all possible speed for its disposal by the Civil Court in accordance with law. On the facts and circumstances of this case as also for the reasons that the defendants-respondents have not appeared to oppose this application, there will be no order for costs.
Shambhu Prasad Singh, J.
7. I agree.