Allahabad High Court
Shri Niwas & 10 Others vs State Of U.P. & 5 Others on 20 February, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 AFR Case :- MATTERS UNDER ARTICLE 227 No. - 609 of 2017 Petitioner :- Shri Niwas & 10 Others Respondent :- State Of U.P. & 5 Others Counsel for Petitioner :- Paras Nath Singh; Amit Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Manoj Misra, J.
Heard learned counsel for the petitioner and perused the record.
The instant petition has been filed under Article 227 of the Constitution of India assailing the order dated 19.10.2016 passed by the Civil Judge (Jr. Div.), Court No.10, Deoria in Misc. Case No. 11 of 2013, whereby objection of the petitioners, under Section 47 C.P.C., has been rejected. The petitioners have also assailed the order dated 07.01.2017 passed by the Additional District Judge, Court No.2, Deoria in Civil Revision 64 of 2016 by which the revision preferred against the order dated 19.10.2016, has been dismissed.
Briefly stated the facts which are relevant for the purpose of deciding this petition are as follows:
Original Suit No. 1206 of 1969 was instituted by one Radha Krishna (predecessor-in-interest of the respondents 4 to 6), against predecessor-in-interest of the petitioners for cancellation of a sale-deed dated 31.10.1968 executed by Lalji in favour of predecessor-in-interest of the petitioners as also for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the land in suit. The suit of the plaintiff was decreed on 22.01.1975. Against which an appeal was filed which was dismissed and the decree has since become final. When the decree was put to execution, the petitioners filed an objection, under Section 47 C.P.C., inter alia, on the ground that the decree was a nullity inasmuch as the civil court lacked jurisdiction to deal with the subject matter of the suit, which was an agricultural land and as such the suit was barred by section 331 of the U.P. Z.A.& L.R. Act. Both the courts below rejected the objection taken by the petitioners, inter alia, on grounds: (a) that from the evidence brought on record it appeared that the plaintiff-decree holder was recorded as an occupant along with the defendant and since relief for cancellation of a sale-deed could only be granted by the civil court, the jurisdiction of the civil court was not barred by section 331 of the U.P.Z.A.& L.R. Act; and (b) that objection as regards jurisdiction, though raised, was given up before the trial court, therefore, the said plea cannot be raised because, by virtue of sub-section (1-A) of section 331 of the U.P.Z.A.& L.R. Act, the plea as regards jurisdiction of the civil court should not only be raised at the earliest possible stage but for it to succeed at the appellate or revisional stage it has to be established that there had been consequent failure of justice. It was thus held that the execution court cannot go behind the decree and, in any case, it was not a case where the Court that decreed the suit lacked jurisdiction.
Learned counsel for the petitioners has assailed the order passed by the courts below on the ground that since the plaintiff claimed himself to be recorded as an occupant, which does not correspond to any of the tenures mentioned in section 129 of the U.P.Z.A.& L.R. Act, the plaintiff ought to have sought declaration of his rights before the revenue court which alone had jurisdiction, and, as such, the suit was not maintainable in a civil court. It has been submitted that since the plea of jurisdiction was raised in the written statement, the Court ought to have decided the plea of jurisdiction on its own even if it was not pressed by the defendant and, in any case, once the plea of jurisdiction was raised before the execution court, the Execution Court ought to have considered the said plea and drop the execution proceeding holding the decree void. It has been submitted that cancellation of the sale-deed was sought by claiming it to be void, therefore the main relief was for declaration of right, which could have been granted by revenue court alone and as such cancellation of the document was just an ancillary relief as the plaintiff's right could have been declared by ignoring the sale deed. Hence, the suit was barred before the Civil Court by section 331 of the U.P.Z.A.& L.R. Act and the decree so passed is null and void. It has been submitted that where a decree is null and void on account of lack of jurisdiction, the decree is a nullity and the plea of it being null and void can be raised at any stage even during execution proceeding. Therefore, the decision of the courts below rejecting the objection, under Section 47 of the Code of Civil Procedure, requires to be set aside.
In support of the above submissions, the learned counsel for the petitioners has placed reliance on the following decisions: (a) Chandrika Misir and others : Bhaiya Lal : (1973) 2 SCC 474 wherein it was held that a suit for permanent prohibitory injunction and in alternative for possession would lie before a Revenue Court and not before a Civil Court and objection as regards jurisdiction can be raised at any stage even during execution proceeding; (b) Kharbhan Yadav and another v. Ramagya Yadav : 2016 (130) RD 636 wherein it was held that where the name of the defendants is recorded in the revenue record then seeking cancellation of sale-deed would be an ancillary relief, particularly, when, according to the allegation, the sale-deed is void, therefore, the proper course for the plaintiff is to institute a suit in a Revenue Court for declaration and as such the suit before the Civil Court would be barred by section 331 of the U.P.Z.A. & L.R. Act.; (c) Ram Awalamb v. Jata Shankar : 1969 AIR (All) 526 (FB) which lays down the general principles as to when the suit would lie in a Revenue Court or Civil Court. In addition to the above, the learned counsel for the petitioners has placed reliance on few decisions i.e. (i) State of Haryana and another v. Kartar Singh (D) through L.Rs. : 2013 (1) AWC 996 (SC); Harshad Chiman Lal Modi v. DLF Universal Ltd. : 2006 All. C.J. 57; Chandrabhai K. Bhoir & Ors. v. Krishna Arjun Bhoir & Ors. : AIR 2009 SC 1645 on the general proposition that where the judgment and decree is without jurisdiction, the same is a nullity and a challenge to the same can be laid even at the execution stage and the plea of waiver and acquiescence would not apply.
I have given thoughtful consideration to the submissions of the learned counsel for the petitioners.
The contention of the learned counsel for the petitioners that the courts below lacked inherent jurisdiction cannot be accepted because a suit for cancellation of a sale-deed can be instituted only in a Civil Court. No doubt, where the plaintiff does not have his name recorded in the revenue record and his possession on the date of the institution of the suit is also not reflected by way of an entry in the revenue record, and the sale deed in question is either executed by some third party affecting the interest of the plaintiff or the plaintiff claims the sale as void for the reasons disclosed in the plaint, the appropriate course for such a plaintiff would be to seek a declaration in respect of his right because that would be the main relief and cancellation would be ancillary and, therefore, in such a case the suit would be cognizable by a Revenue Court and such a suit before a civil court would be barred by section 331 of the UPZA & LR Act. Because the Revenue Court, in such cases, can grant declaratory decree or such other relief, which it is empowered under the provisions of the U.P.Z.A.& L.R. Act, by ignoring the void document on the principle that a void document is non est and its cancellation is not essential. But where a person is recorded in the revenue record he cannot be denied right to seek cancellation of a document merely on the ground that he could get a declaration of his right from the Revenue Court. Because every person has a right to remove the cloud on his title by seeking cancellation of an instrument which casts a shadow on his title. The above view finds support from a decision of the Apex Court in the case of Sriram v. Ist ADJ: (2001) 3 SCC 24.
In the instant case, the courts below have found that the revenue record reflected the name of the plaintiff - Radha Krishna as an occupant. Further, relief for permanent prohibitory injunction was also sought on the basis of possession and it was not a case where possession was sought as an alternative to injunction as in Chandrika Misir's case (supra). Accordingly, this Court is of the view that the suit of the plaintiff was not barred by section 331 of the U.P.Z.A. & L.R. Act.
There is another reason on which the objection of the petitioners against the execution cannot be sustained.
By U.P. Act No. 4 of 1969, sub-section (1-A) was inserted in section 331 of the U.P.Z.A.&L.R. Act, Sub-section (1-A) of Section 331 provides that: "(1-A) Notwithstanding anything in sub-section (1), an objection, that a court mentioned in column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the 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." Clause 19 of the Bill in respect of the Amending Act provided that amendment was considered necessary in order to curtail frivolous and technical pleas in litigation.
Consequent to the insertion of sub-section (1-A) in section 331 of the U.P.Z.A.& L.R. Act, the plea as regards maintainability of a suit before the Civil Court has to be raised in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement. Further, no such plea is to be entertained by an appellate court or a revisional court unless there has been a consequent failure of justice. The insertion of sub-section (1-A) in section 331 of the U.P.Z.A. & L.R. Act signifies that in absence of an objection, the Civil Court would not lack jurisdiction to decide the suit.
No doubt, a plea as regards complete lack of jurisdiction in a court to try the subject matter of suit can be raised at any stage even in the execution proceeding but by addition of sub-section (1-A) in section 331 of the U.P.Z.A. & L.R. Act, the legislative intent is clear that where no objection is taken as regards jurisdiction of the civil court at the appropriate stage in the trial, the trial court's decision is not to be assailed before the appellate court or the revisional court on ground of lack of jurisdiction and, in a case where the objection as regards jurisdiction is taken at the appropriate stage, the challenge in that regard is to be entertained by the appellate court or revisional court, as the case may be, when it is demonstrated that there has been a consequent failure of justice.
By the aforesaid amended provision, what becomes clear is that the decree of the civil court would not be liable to be set aside by the appellate or revisional court on claim of lack of jurisdiction of the court to deal with the subject matter of suit unless it could be demonstrated that the objection in respect of jurisdiction was taken at the appropriate stage of the proceedings and that there has been consequent failure of justice. As a natural consequence thereof, if no objection to the jurisdiction of the civil court is taken in the trial proceedings at the appropriate stage, or if taken before the trial court but given up, and, thereafter, not raised before the appellate court or the revisional court, as the case may be, the decree would not be assailable on ground of lack of jurisdiction in a collateral challenge. Because, it is the appellate court or the revisional court, as the case may be, which has jurisdiction to examine whether on account of rejection of the plea as regards jurisdiction there has been any consequent failure of justice.
The judgment of the Apex Court in the case of Chandrika Misir (supra) does not consider the import of sub-section (1-A) of section 331 of the U.P.Z.A.&L.R. Act and it appears from the report that it related to proceedings instituted much prior in point of time than the insertion of sub-section (1-A) in section 331 of the UPZA & LR Act by U.P. Act No. 4 of 1969, inasmuch as, the appeal before the Apex Court had arisen from a decision in second appeal of the year 1963. Accordingly, the judgment relied upon by the learned counsel for the petitioners cannot be applied to the facts of the present case inasmuch as the suit out of which present proceedings arise was instituted in the year 1969, in which written statement was filed on 30.05.1970 (see Annexure 3, at page 33-35 of the paper book), and, thereafter, the suit was decided several years later.
For the reasons mentioned above, this Court is of the view that the courts below have rightly rejected the objection of the petitioners under Section 47 of the Code of Civil Procedure. No other point was pressed. The petition is dismissed.
Order Date :- 20.2.2017 Sunil Kr Tiwari