Allahabad High Court
Dr.Prem Narain And Others vs Board Of Revenue And Others on 12 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 A.F.R. Case :- WRIT - B No. - 31554 of 1999 Petitioner :- Dr.Prem Narain And Others Respondent :- Board Of Revenue And Others Counsel for Petitioner :- Sankatha Rai,Dr. V.K. Rai,Pradeep Kumar Rai,Rakesh Pandey Counsel for Respondent :- C.S.C.,B.D. Tripathi,M.K. Tripathi Hon'ble J.J. Munir,J.
1. This writ petition has been filed from an order of the Board of Revenue, U.P. at Allahabad dated 30.03.1999 passed in Revision Nos.2 and 3 of 1996-97, both titled M/s. Mahamaya General and Finance Company Ltd. Vs. Dr. Prem Narain and others. By the said order, the Board has allowed both the Revisions aforesaid filed from an order of the Additional Commissioner, Meerut Division Meerut, dated 16.09.1996 passed in Revision No.42 of 1995-96 and Revision No.16 of 1995-96 filed by M/s. Mahamaya General and Finance Company Ltd., and held that the preliminary and final decrees dated 15.01.1992 and 12.05.1993 passed in Suit No.6 of 1987 are both without jurisdiction, as also the consequential orders of auction of the suit property, passed under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act (for short 'the Act').
2. The proceedings leading to the impugned orders passed by the Board of Revenue, in the two connected Revisions, are these: The petitioners, who filed this writ petition were four in number, some of whom are now represented by their legal representatives. They filed Suit No.6 of 1987 on 12.10.1987, under Section 176 of the Act for the relief of partition and khaas possession. The claim of the petitioners, who were plaintiffs to the suit, was that they are bhumidhars of a half share in the suit property, comprised of khasra no.188, admeasuring 15 Biswa, 5 Biswans and khasra no.191 admeasuring 13 Biswa, both part of Khata no.68, situate in village Chikambarpur, Pargana Loni, Tehsil Dadri, District Ghaziabad. The said property is hereinafter referred to as the 'suit property'. Shorn of unnecessary details, the petitioners claim to a half share in the suit property was to the effect that the other half share belonged to M/s. Mahamaya General and Finance Company Ltd., respondent no.3 to this writ petition.
3. It appears that the suit proceeded ex parte and was decreed vide judgment and decree dated 15.01.1992, passed by the Sub-Divisional Officer, Dadri. The said judgment and decree was a preliminary decree, that declared a half share for the petitioners on one hand and the other half for the third respondent. On the basis of the aforesaid preliminary decree, proceedings for preparation of a final decree commenced and the Trial Court called for a report from the Lekhpal asking him to draw lots, in terms of which shares of parties would be separated by metes and bounds and khaas possession delivered. The Lekhpal submitted his report and the Trial Court vide its judgment and order dated 12.05.1993 confirmed the lots drawn up by the Lekhpal, directing drawing up of a final decree in those terms.
4. It is the petitioners' case that respondent no.3, Mahamaya General and Finance Company Ltd., did not file any restoration application seeking to set aside the preliminary decree, and the preliminary decree became final. It is the further case of the petitioners that the third respondent, however, filed a restoration application on 26th May, 1993 to set aside the final decree dated 12.05.1993, and prayed that opportunity of hearing be afforded to them with permission to file objections against drawing of lots. The plaintiffs, that is to say, the petitioners filed objections dated 30th June, 1993 to the said application for restoration, dated 26.05.1993 made on behalf of respondent no.3, as aforesaid. The Restoration Application brought by respondent no.3 was allowed on 22.09.1993, and the order dated 12.05.1993 directing a final decree to be drawn up, was set aside. The matter was posted to 20.09.1993 for the purpose of hearing parties regarding preparation of a final decree. The Sub-Divisional Officer, while hearing the application for preparation of the final decree vide his order dated 06.07.1995 held that the total area of the land in dispute is 1 Bigha, 15 Bishwa, 5 Biswansi, which is less than 3-1/8 acres, and therefore, the provisions of Section 178 of the Act would come into play. He, accordingly, ordered the suit property to be sold by auction, and the proceeds of the auction sale to be rateably distributed, according to the share of parties.
5. At this stage, learned counsel appearing for respondent no.3, Sri M.K. Tripathi, points out that the character of the land on spot was not vacant land, and that houses etc. had been constructed over it. It was abadi, and therefore, could not be partitioned. He also noticed that on perusal of the records, there was a report from the Tehsildar, Dadri, dated 13.01.1994, which says that on spot there were houses, that were in existence. At the same time, the Sub-Divisional Officer also noticed that in khasra and khatauni, there was no mention of any recorded abadi. He, therefore, proceeded to determine the application for preparation of the final decree in accordance with the provisions of Section 178 of the Act, discarding whatever kind of objection was raised before him to the jurisdiction of the Revenue Court. In consequence of the order dated 06.07.1995, passed by the Sub-Divisional Officer, directing auction sale of the suit property, an order dated 04.12.1995 was passed under Section 178/179 of the Act, determining the valuation of the suit property. By the order dated 04.12.1995, no final valuation of the property was arrived at, though a valuation report of the Lekhpal was filed and certain directions were given.
6. Challenging the orders dated 06.07.1995 and 04.12.1995, two Revisions were filed by the third respondent to the Commissioner, Meerut Division, Meerut, that were numbered as Revision no.42 of 1995-96 and Revision no.16 of 1995-96. Both the Revisions were consolidated, heard together and decided by means of a common judgment and order dated 16.09.1996, whereby both the Revisions were dismissed, and the orders dated 06.07.1995 and 04.12.1995 passed by the Trial Court in proceedings for preparation of the final decree were approved, including the proceedings for auction of the suit property.
7. The third respondent persisted in their challenge to the course of action taken by the Trial Court and the Commissioner, Meerut Division, Meerut in Revision. They filed two Revisions from the Revisional Order dated 16.09.1996 to the Board of Revenue, U.P. at Allahabad, that were numbered as Revision nos.2 and 3 of 1996, under Section 333 of the Act. It may be mentioned here that these Revisions were filed before Section 333 was amended vide U.P. Act no.20 of 1997, that barred the right of a party to file a second revision, having availed it once. Both the Revisions were again consolidated by the Board, heard together and decided by means of a common judgment and order dated 30.03.1999. The Board allowed the Revisions and set aside both the orders as hereinbefore detailed, passed by the Courts below, holding them to be without jurisdiction.
8. The order of the Board is founded on the evidence, that was brought before the Board through an affidavit to say that the suit property was, in fact, a residential colony called Rampuri Colony. It was, therefore, beyond the jurisdiction of the Revenue Court to partition, in a suit under Section 176 of the Act. The Board held that from a perusal of the 12 Yearly Khasra presented along with an affidavit and other evidence on record, it is clear that the defendant had no notice or opportunity of hearing before the Trial Court, where the decrees were passed. It was in effect held that because of denial of opportunity before the Trial Court, the Revisionist could not point out that the suit property was, in fact, not agricultural land and amenable to the jurisdiction of the Revenue Court, but abadi land, that was beyond the jurisdiction of the Revenue Courts. He further held that in the restoration matter, the point was raised, but the Sub-Divisional Officer did not bestow any attention to the aforesaid issue that goes to the root of the Revenue Courts' jurisdiction. The Board also held that so far as the question of filing of a written statement is concerned, that never arose as the third respondent, who was the defendant to the suit, remained ex parte until the preliminary decree and the final decree were passed in the first instance. The Board also held that all the decisions, therefore, rendered by the Courts below were related to an abadi land where a certain Rampuri Colony is recorded in the khasra. It was, therefore, concluded that the orders passed by both the Courts below, in all the proceedings arising from a partition suit under Section 176 of the Act, were without jurisdiction, and he set aside all the proceedings taken by the Revenue Courts, from whose determination the Board heard two Revisions.
9. Aggrieved by the order of the Board of Revenue aforesaid, the present writ petition has been filed.
10. Heard Sri A.K. Rai, learned counsel for the petitioners, Sri M.K. Tripathi, learned counsel appearing on behalf of respondent no.3 and Sri Kuldeep Kumar Srivastava, leaned Standing Counsel appearing on behalf of respondent no.1. No one has appeared on behalf of Nagar Panchayat, respondent no.2.
11. Parties have exchanged affidavits in the present writ petition.
12. The submission of Sri A.K. Rai, learned counsel for the petitioners is that the third respondent does not, in point of fact, dispute that the petitioners and the third respondent, both have a half share in the suit property/ khata. He further submits that no objection in this regard, or steps to set aside the preliminary decree were ever taken by the third respondent, which in his submission attained finality. He submits that it is case where there is no objection to the preliminary decree passed by the Revenue Court and to the final decree also. The objection has been raised for the first time through a restoration application, where also wholesome evidence to prove the fact that the suit property is not agricultural land, but abadi, was led. The said plea that was virtually raised as an argument during the hearing of the restoration matter before the Trial Court and then before the Board of Revenue, cannot avail the third respondent in urging that the entire proceedings before the Revenue Court are without jurisdiction, as the character of the suit property is abadi, and not agricultural.
13. Sri Rai has further submitted that unless an agricultural land is declared to be an abadi, in accordance with the provisions of Section 143 of the Act, it cannot be held to be an abadi in the course of deciding a suit; a declaration under Section 143-A is a sine qua non. He submits that the only other course of action open is that where a Court is seized of a suit relating to land held by a bhumidhar, and the question arises whether the land in dispute is or is not used for the purposes connected with agriculture, regarding which no declaration under Section 143 has been made, the Court hearing the suit shall frame an issue on the question and send the records to the Assistant Collector, In-charge of the Sub-Division for decision of that issue only. The Assistant Collector after he returns a finding on the issue in the manner laid down for making of a declaration under Section 143 of the Act, will return the record together with his finding to the Court trying the suit. The Court shall then proceed to decide the suit acting on that finding of the Assistant Collector. He submits, therefore, that a plea that the recorded agricultural land that is bhumidhari is, in fact, abadi, cannot be determined during the course of the trial of the suit by the Court trying it. He submits, therefore, that the Sub-Divisional Officer, before whom the suit for partition was pending, could not have himself gone into the question whether the land was, in fact, abadi or not, contrary to its recorded character in the Revenue Courts in the absence of a declaration under Section 143 of the Act, or a reference of the issue made for the purpose to the Assistant Collector, In-charge of the Sub-Division, under Section 143 of the Act aforesaid. In support of his contention, he has placed reliance upon a decision of the Supreme Court in Chandrika Singh vs. Raja Vishwanath Pratap Singh, (1992) 3 SCC 90, where it has been held in paragraphs 9, 10, 11, 12 and 17 of the Report thus:
"9. The aforesaid provisions show that under Section 331(1) exclusive jurisdiction in respect of suits, applications and proceedings referred to in Schedule II of the Act has been conferred on the courts specified in the said schedule and the said proceedings, suits and applications cannot be entertained by the civil courts. The proviso to Section 331(1) lifts the said bar in relation to any holding or part thereof where a declaration has been made under Section 143. Section 143 empowers the Assistant Collector after making enquiry as may be prescribed, to make a declaration that a holding or part thereof is being used or held by a bhumidar for purposes not connected with agriculture, horticulture or animal husbandry. Where such a declaration is made in respect of a part of the holding, the Assistant Collector is required to demarcate the said part. The effect of the grant of such a declaration is that the provisions of Chapter VIII (except Section 143) cease to apply to the bhumidar with transferable rights with respect to such land.
10. Section 331-A deals with a situation where a suit relating to land held by a bhumidar has been instituted in any court and a question arises or is raised whether the land in question is used or is not used for purposes connected with agriculture, horticulture or animal husbandry and a declaration has not been made in respect of such land under Section 143 or 144 of the Act. Since there is no declaration under Section 143 the proviso to sub-section (1) of the Section 331 would not be applicable and the bar to the jurisdiction of the court placed under sub-section (1) of Section 331 would be operative. Section 331-A is intended to serve the same purpose as Section 143 and this is done by requiring the court to frame an issue on the said question and send the record to the Assistant Collector in charge of the sub-division for the decision on that issue only and by laying down that the Assistant Collector shall decide the said issue in the manner laid down for making a declaration under Section 143 or Section 144, as the case may be. The court in which the suit is pending has to decide the suit accepting the finding recorded by the Assistant Collector in charge of the sub-division on the issue referred to it but the said finding can be challenged in appeal against the decision of the said court. This would mean that when there is no declaration under Section 143 the bar to jurisdiction of courts placed under sub-section (1) of Section 331 can be lifted by following the procedure laid down in Section 331-A.
11. In respect of Abadi land it is implied that the land is not being used for purposes connected with agriculture, horticulture or animal husbandry and in view of the definition of ''land' contained in Section 2(14) of the Act such land is not land for the purpose of the Act. In order to exclude the applicability of the Act on the ground that the land is Abadi land it is necessary to determine whether the said land is or is not being used for purposes connected with agriculture, horticulture or animal husbandry. Such a determination is envisaged by Sections 143 and 144 and where such a determination has not been made in accordance with those provisions and this question arises before a court in a suit, it is required to be determined in accordance with the provisions of Section 331-A. The scheme of the provisions contained in Section 143, Section 144 and Section 331-A is that the question whether a particular land is or is not used for the purposes connected with agriculture, horticulture or animal husbandry has to be determined either under Section 143 or Section 144 and where no such determination has been made, it should be determined by following the procedure laid down in Section 331-A. It is not open to a court dealing with a suit in which the said question arises to bypass the provisions of Section 331-A and to proceed to determine the said question itself.
12. In order that Section 331-A may be invoked the following conditions must be satisfied:
(i) The suit must relate to land held by a bhumidar;
(ii) the question whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry should arise or be raised in the said suit; and
(iii) a declaration has not been made in respect of such land under Section 143 or Section 144.
17. It was, therefore, not open to the Civil Judge to decide, on its own, the question whether the said land was held or occupied for purposes connected with agriculture, horticulture or animal husbandry and after holding that it is not so held refuse to follow the procedure laid down in Section 331-A on the ground that the said provision has no application to the land in dispute. The only course which was open to the Civil Judge was to frame an issue on the question whether the land in dispute is or is not used for purposes connected with agriculture, horticulture or animal husbandry and send the record to the Assistant Collector in charge of the sub-division for decision on that issue and decide the suit in the light of the finding recorded by the Assistant Collector on that issue. By deciding this question himself the Civil Judge has exercised jurisdiction not vested in him by law and in not following the procedure laid down in Section 331-A he has committed illegality in exercise of his jurisdiction which error was required to be rectified by the High Court in exercise of its revisional jurisdiction under Section 115 CPC."
14. Learned counsel for the petitioners, therefore, submits that the Board of Revenue while hearing a Revision under Section 333, or for that matter the Trial Court while trying a partition suit, could not have proceeded to record a finding that the suit property on whatever evidence was led before them, was not agricultural land, but abadi. If at all that course of action had to be adopted, it had to be done in the manner prescribed under Section 331 of the Act by making a reference to the Assistant Collector, In-charge of the Sub-Division, who would then determine the issue in accordance with Section 143 of the Act. He submits that there is admittedly no declaration under Section 143 of the Act put in evidence by the third respondent so as to obviate the necessity to resort to the procedure under Section 331-A (supra).
15. Sri Rai submits that, therefore, the Board of Revenue has gone utterly wrong in surreptitiously holding the suit property to be abadi, and declaring the Revenue Court to have acted without jurisdiction in passing a partition decree, both preliminary and final.
16. Sri M.K. Tripathi, learned counsel for the respondent has refuted the aforesaid contention, and submitted that it is a case where the suit property is recorded as agricultural land. If he had been given opportunity before the Trial Court and evidence led anterior in time to the passing of a preliminary decree, he would have led evidence, both documentary and oral to demonstrate the character of the land as abadi.
17. This Court has considered the aforesaid contention of the parties. No doubt, there could be no quarrel about the proposition laid by their Lordship's regarding an agricultural land that can be dealt with as an abadi by a Court, and the procedure required to be adopted for the purpose. It cannot be done surreptitiously during the course of hearing of a suit, or by the higher fora in appeal or revision. It can be done in case the land is declared to be an abadi under Section 143 of the Act, but not where it is recorded as abadi when the suit is instituted, or if it has lost that character during hearing of the suit or not so recorded even at the time of institution of the suit. In the latter contingency the trial Court has to make a reference under Section 331-A of the Act to the Assistant Collector, In-charge of the Sub-Division. Thereafter, the Assistant Collector would be obliged to follow the procedure under the law, and return his finding as envisaged under Section 143 of the Act. The Court seized of the suit would be bound by this finding as to the character of the land, and would have to proceed accordingly.
18. In the present case before the Trial Court, the stage never came where the defendant could establish that at the time when the suit was filed, the character of the suit property was, in fact, abadi, and not agricultural. The issue, therefore, whether the land was abadi, and, therefore, the Revenue Court had no jurisdiction to partition the suit property was never raised for trial. The defendant had no opportunity to discharge his evidential burden on the point to take the issue to trial which would then have to be referred to the Assistant Collector, In-charge of the Sub-Division for a determination. The defendant also did not have opportunity to demonstrate that on the date when the suit was filed, in fact the land was recorded as abadi in the revenue records, in which case it would not require further determination under Section 143 of the Act. This course of proceedings is that before the Trial Court came about as there was no opportunity to the parties to suit this issue whether the character of the suit property is abadi or agricultural, on which could depend the result whether the Revenue Court has jurisdiction to try the suit. At the same time, there is no doubt about the matter that the Board of Revenue seized, as it was of a revision arising from orders passed during proceedings for preparation of the final decree, could not have jumped to the conclusion, on whatever evidence was led before it, that the land is agricultural, and therefore, the Revenue Court had no jurisdiction in the matter. It could not have recorded a conclusive finding on the issue on the state of evidence as it stood before the Board, and as it stands before this Court. The only course of action open to the Board was to have remanded the matter to the Trial Court for a trial de novo, where both parties would have liberty to raise requisite pleas, including the issue about the character of land and the jurisdiction of the Court. In support of those pleas, they would lead evidence and the Trial Court would determine, amongst other issues, the issue as to the jurisdiction as a preliminary issue. This would have been the right direction to make for the Board. Certainly, the Board could not have finally concluded against the jurisdiction of the Revenue Court.
19. Sri Rai has further assailed the determination made by the Board of Revenue on ground that since the preliminary decree passed by the Trial Court was never challenged, the edifice of the entire challenge based on the final decree, could not afford basis to the higher fora, including the Board, to set aside the entire proceedings of a suit and hold that the Revenue Court had no jurisdiction in the matter. This could only has been done in case the preliminary decree had been challenged through some competent proceedings, like a restoration or appeal. For the purpose, he has relied upon a decision of this Court in Mahabeer Vs. State of U.P. and others, 2017 (3) ADJ 553, where the Court was confronted with a question whether proceedings for a final decree had not been taken, the suit would abate upon notification being issued under Section 4 of the U.P. Consolidation of Holdings Act (for short the ''Consolidation Act'). In the context of the aforesaid Statute, this Court after survey of extensive authority, held in paragraph 19 of the Report thus:
"19. In the present case after the passing of the preliminary decree the same was not challenged even though it had been passed on 01.03.1986 and the notification under Section 4 of the Act, 1953 had been published only on 26.07.1986, therefore, the said preliminary decree was liable to be given effect during consolidation proceedings between the parties under Section 9 of the Act, 1953 in view of the pronouncement in Mool Chand's Case(supra)."
20. Sri Rai relies on the aforesaid decision to submit that likewise in the present case, the preliminary decree had never been challenged by parties, the same has attained finality and would, therefore, the issue about ouster of question of jurisdiction of the Revenue Court being not there, cannot be raised in these proceedings that have travelled to the Board from the final decree.
21. This Court is of opinion that the aforesaid contention of Sri Rai cannot be accepted. It is for the reason that abatement of the proceedings of a suit on account of issue of a notification under Section 4 of the Consolidation Act, is an entirely different matter from an issue of lack of jurisdiction. In the decision of this Court in Mahabeer vs. State of U.P. and others (supra), the question was regarding abatement of proceedings, and also the consequent nullification of the preliminary decree passed by the Revenue Court, which it was urged not to be of any consequence, while deciding objections under Section 9 of the Consolidation Act. It was held that since the preliminary decree was never challenged and had been passed before the notification under Section 4 of the Consolidation Act was published, the preliminary decree was liable to be given effect to, while determining objections under Section 9. For one, on facts in that case, the preliminary decree had been passed on 01.03.1986 and the notification under Section 4 of the Consolidation Act was published on 26.07.1986, that is to say, afterwards, which makes the law work differently in the two situations. Even if it be assumed that the preliminary decree had been passed after the notification under Section 4, and that had not been challenged, the law in Mahabeer vs. State of U.P. and others (supra), if applied to such a decree for the sake of argument, cannot be extended to a case of inherent lack of jurisdiction in a Court.
22. There is difference between abatement of proceedings of suit pending before the Court and the inherent lack of jurisdiction with that Court in dealing with the proceedings before it. In the opinion of this Court, the petitioners, therefore, cannot derive any assistance from the decision in Mahabeer vs. State of U.P. and others (supra).
23. Sri M.K. Tripathi, on the other hand submits that the proceedings before the Revenue Court relating to land, that is recorded abadi, where a colony in the name of Rampuri Colony is recorded, and it was also recorded in the plaint giving rise to the suit, the Revenue Court cannot have any jurisdiction. All proceedings before the Revenue Court are a nullity, and the Board of Revenue were right in holding the proceedings to be nonest, and setting aside all orders passed by the Revenue Court as without jurisdiction. He submits that the jurisdiction which relates to subject matter of a suit is something which goes so deep to the root of the matter, that it can be raised at any stage of proceedings, by any party, who claims the Court not to have jurisdiction. In support of his contention, he has placed reliance on a decision of the Supreme Court in Devasahayam (Dead) by LRs. vs. P. Savithramma and others, (2005) 7 SCC 653. He has particularly placed reliance on paragraph 42, 43, 44, 45 & 46 of the Report in Devasahayam (Dead) by LRs. (supra), which reads thus:
"42. It is now well settled that a decree passed by a court having no jurisdiction is a nullity. The civil court had no jurisdiction to pass a decree for eviction only on the basis that the tenant had denied their title. The matter might have been different if the civil court had otherwise jurisdiction to entertain a suit. The legislature has created new rights and liabilities for both the landlord and tenant in terms of the provisions of the said Act and provided a forum therefor. The jurisdiction of the civil court having been barred except in a situation where the proviso appended to sub-section (1) of Section 10 would be attracted, the civil court had no jurisdiction to entertain a suit for eviction on a ground envisaged under Section 10(2)(vi) of the A.P. Buildings (Lease, Rent and Eviction) Control Act. The civil court, thus, had no jurisdiction to entertain the counterclaim.
43. In Kiran Singh v. Chaman Paswan [(1955) 1 SCR 117 : AIR 1954 SC 340] it was stated: (SCR p. 121) "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
44. In Bihar State Mineral Development Corpn. v. Encon Builders (I) (P) Ltd.[(2003) 7 SCC 418] this Court held: (SCC p. 426, para 31) "31. ... An order which lacks inherent jurisdiction would be a nullity and, thus, the procedural law of waiver or estoppel would have no application in such a situation."
45. In Dwarka Prasad Agarwal v. B.D. Agarwal [(2003) 6 SCC 230] it was opined: (SCC p. 245, para 37) "37. It is now well settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such."
(See also Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1] and MD, Army Welfare Housing Organisation [(2004) 9 SCC 619].)
46. In Church of North India v. Lavajibhai Ratanjibhai [(2005) 10 SCC 760 : JT (2005) 5 SC 202] this Court observed: (SCC p. 788, para 82) "82 [78]. The provisions of the Act and the scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question, and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of the law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question." "
24. In the said decision of their Lordships, the issue was about the jurisdiction of a Civil Court where that jurisdiction was ousted under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. It was held in that connection that a decree passed by a Court having no jurisdiction is a nullity. There is no quarrel with the proposition that inherent lack of jurisdiction or lack of jurisdiction as to subject matter can be raised at any stage of the proceedings, and where it is claimed with some semblance of worth that the Court has no jurisdiction as regard the subject matter, howsoever belated a plea and at whatever stage it is taken, has to be entertained, adjudicated and determined. If it is found that the Court has no jurisdiction, then all proceedings taken, howsoever extensive, are all a nullity. Sri Tripathi has also relied to the same effect upon a decision of the Supreme Court in Chief Engineer, Hydel Project and others vs. Ravinder Nath and others, (2008) 2 SCC 350, where he has placed reliance on paragraphs 24, 25, 26 and 28 of the Report:
"24. In our considered opinion, it cannot be said that there was no question of law involved as we have pointed out that the issues squarely fell in the area covered by the Industrial Disputes Act and were, therefore, specifically barred. The question is whether this issue regarding the jurisdiction could be allowed to be raised before us. The question of jurisdiction came up before this Court in Harshad Chiman Lal Modiv. DLF Universal Ltd. [(2005) 7 SCC 791] The Court therein was considering the question raised whether the Court had jurisdiction under Section 16(d) CPC to deal with the matter in question. In short the Court was considering whether the amendment could have been allowed raising objection to the territorial jurisdiction. This Court in para 30 observed as under: (SCC pp. 803-04) "30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity."
25. The Court then proceeded to rely on Bahrein Petroleum Co. Ltd. v. P.J. Pappu [AIR 1966 SC 634 : (1966) 1 SCR 461] and observed in para 32 that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. The Court further observed that: (Harshad Chiman Lal case [(2005) 7 SCC 791] , SCC p. 804, para 32) "32. ... It is well settled and needs no authority that ''where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing'. A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice."
26. The Court also relied upon the decision in Kiran Singh v. Chaman Paswan[AIR 1954 SC 340 : (1955) 1 SCR 117] and quoted (in Harshad Chiman Lal case[(2005) 7 SCC 791] , SCC pp. 804-05, para 33) therefrom: (Kiran Singh case [AIR 1954 SC 340 : (1955) 1 SCR 117] , AIR p. 342, para 6) "6. ... It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ... strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
Though in the aforementioned decision these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity.
28. Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, first appellate or the second appellate stage. It must, therefore, be held that the civil court in this case had no jurisdiction to deal with the suit and resultantly the judgments of the trial court, the first appellate court and the second appellate court are liable to be set aside for that reason alone and the appeal is liable to be allowed. In view of this verdict of ours, we have deliberately not chosen to go into the other contentions raised on merits. We, however, make it clear that we have not, in any manner, commented upon the rights of the respondent-plaintiffs, if any, arising out of the labour jurisprudence."
25. Here, also was a case where the question as to jurisdiction was allowed to be raised at a highly belated stage as it was held that the Civil Court had no jurisdiction to entertain the dispute, in view of the provisions of the Industrial Disputes Act. There is no quarrel about this proposition, already indicated hereinbefore. Generally speaking, a plea of lack of jurisdiction can be of three kinds: (i) it could be about territorial jurisdiction, (ii) pecuniary jurisdiction, and (iii) jurisdiction as to subject matter. In the first two kinds of pleas, the law by far well settled that objections as to territorial or pecuniary jurisdiction of the Court, are to be taken at the earliest. If not taken, that plea is lost, and the Court may proceed to determine on merits. However, as far as, a plea as to jurisdiction based on the subject matter is concerned, it can be raised at any stage, even belatedly, but, it has to be proved that, indeed, there is no jurisdiction on account of the Court not being empowered to deal with the subject matter. Here, again a distinction would arise in cases where the jurisdiction is barred on the face of the matter, going by the nature of the controversy and the statutes involved. For instance in the decision of their Lordships in Chief Engineer, Hydel Project and others (supra), the issue of jurisdiction did not have much quarrel about it on facts, as the petitioner was a workman employed under the Chief Engineer, Hydel Project, and going by the nature of his relationship, that was of an employer and workman, the jurisdiction of the Civil Court was held ousted under the Industrial Disputes Act, 1947. Cases as the one above referred do not require investigation into facts so as to determine whether the Court has jurisdiction over the subject matter or not, but there are other cases where determining the issue whether the Court has jurisdiction over the subject matter, requires investigation into facts and the question is one that classically makes it what is called a mixed question of fact and law. In all kinds of situations where the issue involves some investigation into facts, it is not that wherever the plea is raised, it can be answered finally. It is trite that a plea of inherent lack of jurisdiction, or lack of jurisdiction about subject matter, must be entertained wherever it is raised. It is quite another matter that it cannot be determined finally at every stage and in every proceeding, after being entertained. If there is prima facie substance in the plea, the parties ought to be relegated to the appropriate stage of proceedings, where the plea can be appropriately determined by the competent forum, with reference to the evidence on record, after a necessary investigation of facts that are imperative to decide a plea of the kind raised.
26. In the facts of the present case, this Court finds that, indeed, the third respondent was not heard at all by the Trial Court where the preliminary decree was passed without appearance by the defendants, or opportunity to file a written statement, much less lead evidence. It is of no consequence that the third respondent does not dispute the fact that the petitioners have a half share in the suit property, and the third respondent accepts they have that half share. There is always a difference about the parties taking a case that the Court has jurisdiction to decide and the Court deciding that it has jurisdiction. Jurisdiction is not a matter of consent. Here, is a case where the parties may acknowledge that they have a certain share in the suit property, but it is not yet certain whether the Revenue Court has jurisdiction to try the suit, and determine the question. It is equally not clear whether the Revenue Court does not have that jurisdiction.
27. Nevertheless, the third respondent has come with a plea that the land in dispute is abadi, over which the Revenue Court has no jurisdiction with evidence enough that has convinced the Board into setting aside the decree and all proceedings before the Revenue Court on ground that the land is abadi over which the Revenue Court have no jurisdiction. This Court thinks that, that was not the appropriate course of action. In this regard, this Court has already expressed itself in the earlier part of its judgment. This matter is required certainly to be gone into by the Trial Court by putting the parties' back to the position where proceedings commenced before the Revenue Court, where both parties would have a right to file pleadings and lead evidence. However, considering the fact that the matter is fairly old and what is primarily to be decided is the issue of jurisdiction, the Trial Court shall frame a preliminary issue regarding jurisdiction over the subject matter and decide the same as soon as the third respondent has filed his written statement, and issues have been framed. The third respondent will file his written statement within 15 days of date, whereafter issues will be struck within 15 days thereafter. The issue of jurisdiction will then be decided as a preliminary, after full opportunity to the parties to lead evidence about the nature of the suit property vis-a-vis the question of jurisdiction of the Revenue Court to try the suit. It goes without saying that the nature of the property to be determined and the evidence as to its nature would be judged with reference to the time when the suit was filed, and not on account of any subsequent development over the land. In the event, the Court considers it appropriate on the evidence available, it will refer the question about the character of the land being abadi or agricultural under Section 331-A of the Act to the Assistant Collector, In-charge of the Sub-Division, who will promptly decide the matter and return his findings to the Trial Court, seized of the partition suit. In the event the issue is finally decided in favour of the jurisdiction of the Revenue Court, the preliminary decree as initially granted, shall stand revived, and further issues need not be tried. In the event, however, it is finally held that the suit property is, in fact, abadi over which the Revenue Court has no jurisdiction, the Court will pass appropriate orders in accordance with law leaving parties free to approach Court of competent jurisdiction for partition of the suit property, It is also clarified that in the event the preliminary decree of the Revenue Court is revived in consequence of the first contingency about the conclusion of the Trial Court, the proceedings for preparation of the final decree shall be taken afresh. The impugned orders dated 30.03.1999 in Revision nos.2 & 3/ 1996-97, shall stand set aside as also the orders of the Commissioner dated 16.09.1996, and that of the Trial Court dated 06.07.1995. The matter will be determined de novo by the Trial Court, in terms of the directions made above.
28. All proceedings shall be concluded by the Trial Court within a period of eight months from the date of receipt of a certified copy of this order.
29. The writ petition is allowed in part to the extent indicated above. Costs easy.
Order Date :- 12.7.2019 Anoop/NSC