Allahabad High Court
Smt. Madeena vs State Of U.P. And 5 Others on 28 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2024:AHC:96808 Reserved on: 10.05.2024 Delivered on: 28.05.2024 Court No. - 49 Case :- WRIT - B No. - 1596 of 2024 Petitioner :- Smt. Madeena Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Krishna Kant Dwivedi Counsel for Respondent :- Abhishek Kumar Yadav,Bhola Nath Yadav,C.S.C.,Deepak Gaur Hon'ble Manish Kumar Nigam,J.
1. Heard Sri Krishna Kant Dwivedi, learned counsel for the petitioner, Sri Abhishek Kumar Yadav, learned counsel appearing for the respondent no. 5, learned Standing Counsel for the State-respondents and perused the record.
2. This writ petition has been filed for following reliefs:-
"i. issue a writ, order or direction in the nature of Certiorari Quashing the impugned order dated 21.12.23 passed by the respondent no. 2 in Revision no. 3434/2023 (Ann. 1 to the writ petition) and order dated 21.08.23 passed by the respondent no. 3 in Case no. 1987/ 2023 (Ann. 7 to the writ petition).
ii. issue a writ, order or direction in the appropriate nature directing and commanding the Tehsildar, Tehsil Mauranipur, District Jhansi, i.e. respondent no. 4, to stay the further proceeding going on by him in Case no. 6802/2023, Meharban Singh Vs. Smt. Sandal."
3. Brief facts of the case as mentioned in the writ petition are that the land in dispute i.e. land no. 1362 area 0.3820, 1260 area 1.4320, 1363 area 0.1080 situated as Mauza Dewari Singhpur, Tehsil Mauranipur, District Jhansi was recorded in the name of one Noor Khan. After the death of Noor Khan, the property came to his son, namely, Natthu. Natthu was married to Smt. Sandal. Petitioner is the daughter of Natthu and Smt. Sandal. After the death of Natthu, the recorded tenure holder, name of Smt. Sandal was recorded in the revenue record being widow of Natthu. The petitioner was minor at the time of death of her father namely, Natthu. The mother of the petitioner Smt. Sandal contracted, second marriage with Sakur Khan, son of Ilahi Khan on 11.04.1975 after the death of her husband, Natthu and because of the second marriage, Smt. Sandal, the widow of Natthu was left with no right, title or interest in the land in question. Name of Smt. Sandal continued in revenue records and taking advantage of the same Smt. Sandal executed a sale deed dated 31.08.2017 of land number 1260, area 1.4320 in favour of respondent no. 5. After coming to know about the sale deed executed by Smt. Sandal in favour of respondent no. 5, the petitioner instituted Original Suit No. 114 of 2017 for cancellation of the sale dated 31.08.2017, executed by Smt. Sandal in favour of respondent no. 5. The aforesaid suit is pending and the trial court i.e. Civil Judge (Junior Division) Mauranipur, Jhansi by its order dated 23.08.2022 has directed the parties to maintain status quo. After the execution of sale deed on 31.08.2017 by Smt. Sandal in favour of respondent no. 5, the respondent no. 5 moved an application under section 34 of the UP Revenue Code, 2006 (hereinafter referred to as 'Code') for mutation of his name over the land in dispute on the basis of the registered sale deed dated 31.08.2017 in the court of Naib Tehsildar, Rewan, District- Jhansi. The aforesaid case was transferred by order dated 26.04.2018 passed by Additional Commissioner (Administration), Jhansi to the court of the Tehsildar, Garautha, District- Jhansi on an application moved by the respondent no. 5. The Tehsildar, Garautha, District-Jhansi by an order dated 04.03.2023 has rejected the mutation application filed by the respondent no. 5. Against the order dated 04.03.2023 passed by Tehsildar, Garautha, the respondent no. 5 preferred an appeal under Section 207 of the Code before the Sub- Divisional Officer, Mauranipur, District-Jhansi. The appeal filed by the respondent no. 5 was allowed by the S.D.M., Jhansi by its order dated 21.08.2023 and order passed by the Tehsildar, Garautha dated 04.03.2023 was set aside and the court below was directed to consider the case afresh on merits after providing an opportunity of hearing to all parties. The petitioner filed a revision before the Board of Revenue- respondent no.2 against the order dated 21.08.2023 passed by S.D.M., Jhansi, which was registered as Revision No. 3434 of 2023, Smt. Madeena versus Meharban Singh and others. By order dated 21.12.2023, the respondent no. 2 dismissed the revision filed by the petitioner. Hence, the present petition.
4. Primary contention raised by the counsel for the petitioner is that once the order dated 04.03.2023 was passed by the Tehsildar, Tehsil Garautha, District- Jhansi rejecting the application for mutation filed by the respondent no. 5, the appeal filed by the respondent no. 5 before the S.D.M., Mauranipur, District- Jhansi was not maintainable as it was only the S.D.M., Garautha had the jurisdiction to entertain the appeal against an order passed by Tehsildar, Garautha. It has also been contended that the S.D.M., Jhansi had erroneously allowed the appeal filed by the respondent no. 5 against the order dated 04.03.2023 passed by Tehsildar, Garautha ignoring the objection, which was taken by the petitioner in his written submissions as to the maintainability of appeal. In this regard, learned counsel for the petitioner has relied upon the judgment of this Court in case of Shabbar Husain and others Vs. Dy. Director of Consolidation Muzaffarnagar and another reported in 2019 (4) ADJ 88. It is further contended by learned counsel for the petitioner that against an order passed under Section 34 of the Code, an appeal lies under Section 35(2) of the Code. In the present case, the appeal has been filed by the respondent no. 5 under Section 207 of the Code and not under Section 35(2) of the Code and therefore, the appeal as filed by the respondent no. 5 is not maintainable.
5. Per contra, learned counsel for respondent no. 5 submitted that the property in dispute is situated within the jurisdiction of Tehsil- Mauranipur, District- Jhansi and as the application filed by the respondent no. 5 under Section 34 of the Code was transferred by the order of Additional Commissioner, Jhansi to the court of Tehsildar, Garautha, the same was decided by Tehsildar, Garautha. It has been further submitted that since part of cause of action arose at Tehsil, Mauranipur, the appeal filed by the respondent no. 5 was maintainable before the S.D.M., Mauranipur, District- Jhansi. It has also been submitted by the counsel for the respondent no. 5 that objection as to the territorial jurisdiction of S.D.M., Mauranipur was not taken by the petitioner in his objections filed to the appeal filed by the respondent no. 5. It was only in the written arguments the said objection was taken. It is also contended by learned counsel for the respondent that petitioner herself filed Transfer Application No. 384 of 2023 (Smt. Madeena Vs. Meharban Singh and others) under Section 212(2) of the Code. The aforesaid transfer application filed by the petitioner was allowed by order dated 18.05.2023 passed by Commissioner Jhansi and appeal was transferred to the court of S.D.M., Jhansi and it was only thereafter, the appeal was decided by the S.D.M., Jhansi by order dated 21.08.2023. It has been pointed out by learned counsel for the petitioner that this fact regarding moving of transfer application as well as order dated 18.05.2023 passed on the transfer application moved by the petitioner has not been mentioned in the writ petition.
6. Learned counsel for the respondent has produced the photocopy of the certified copy of the order dated 18.05.2023 passed on transfer application filed by the petitioner in Case No. 384 of 2023 (Smt. Madeena Vs. Meharban Singh and others) which is taken on record. It has also been contended by learned counsel for the respondent that once the appeal was transferred on the application filed by the petitioner from the court of S.D.M., Mauranipur, District- Jhansi to the court of S.D.M., Jhansi such an objection cannot be taken by the petitioner as to the territorial jurisdiction of the S.D.M., Jhansi to entertain and decide the appeal.
7. Before considering the rival submissions raised by the counsel for the parties, it would be appropriate to look into the relevant provisions of the U.P. Revenue Code, 2006. Section 35 of the Code provides for mutation in cases of succession or transfer. Section 35 of the Code is quoted as under:-
"35. Mutation in cases of succession or transfer.---(1) On the receipt of a report under Section 33 or Section 34, or upon facts otherwise coming to his knowledge, the Tahsildar shall issue a proclamation and make such inquiry as appears to be necessary and -
(a) if the case is not disputed, he shall direct the record of rights (Khatuani) to be amended accordingly; and [***] [(c) if the case is disputed, he shall decide the dispute and direct, if necessary, the record of rights (khatauni) to be amended accordingly.] [(2) Any person aggrieved by an order of the Tahsildar under sub-section (1) may prefer an appeal to the Sub-Divisional Officer within a period of thirty days from the date of such order.]"
8. Section 207 of the Code provides for first appeals and is quoted as under:-
" 207. First appeal--(1) Any party aggrieved by a final order or decree passed in any suit, application or proceeding specified in 1(column 2) of the Third Schedule, may prefer a first appeal to the Court or officer specified against it in 2(column 4), where such order or decree was passed by a Court or officer specified against it in 3(column 3) thereof.
(2) A first appeal shall also lie against an order of the nature specified -
(a) in Section 47 of the Code of Civil Procedure, 1908; or
(b) in Section 104 of the said Code; or
(c) in Order XLIII Rule 1 of the First Schedule to the said Code.
(3) The period of limitation for filing a first appeal under this section shall be thirty days from the date of the order or decree appealed against.
9. Section 212 of the Code provides for transfer of cases and the same is quoted as under:-
"212. Power to transfer cases.--(1) Where it appears to the Board that it will be expedient for the ends of justice to do so, it may direct that any case be transferred from one revenue officer to another revenue officer of an equal or superior rank in same district or any other district.
(2) The Commissioner, the Collector or the Sub-Divisional Officer may make over any case or class of cases arising under the provisions of this Code or any other enactment for the time being in force, for decision from his own file to any revenue officer sub-ordinate to him and competent to decide such case or class of cases, or may withdraw any case or class of cases from any such revenue officer and may deal with such case or class of cases himself or refer the same for disposal to any other revenue officer competent to decide such case or class of cases."
10. Section 214 of the Code provides as under:-
"214. Applicability of Code of Civil Procedure, 1908 and Limitation Act,1963.- Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceedings under this Code."
11. Rule 33 of the U.P. Revenue Code Rules, 2016 is reproduced below:-
"33. Report regarding transfer (Section 34.) (1) Every report by or on behalf of a person obtaining possession of any land by transfer referred to in section 34 shall, as soon as possible, be made in R.C. Form-11.
(2) The provisions of sub-rules (3) to (6) of Rule 29 shall mutatis mutandis apply to every report submitted under this rule.
(3) While submitting a report under this rule, the applicant shall also file an affidavit to the effect that the transfer under reference does not contravene the provisions of section 89 of the Code, but where such declaration has been made in the deed, the affidavit under this sub-rule would not be required.
(4) The transferee submitting report for mutation on the basis of transfer shall pay the mutation fee fixed by Government Order issued from time to time."
12. Rule 29 of the U.P. Revenue Code Rules, 2016 is quoted as under:-
"29. Report regarding succession (Section 33(1))---(1) Every report by or on behalf of a person obtaining succession possession of any land by succession referred to in section [Section 33(1)] shall be made, as soon as possible, in R.C. Form-9.
(2) In the application/report for mutation on the basis of Will or intestate succession, the deceased shall not be impleaded as opposite party. In the case of report on the basis of Will, the heir of clause (a) of section 108 or section 110 as the case may be and if there is no heir of the aforesaid clause and in the case of intestate succession, the heir of the succeeding clause of section 108 or section 110 as the case may be, shall be impleaded as opposite party.
(3) Separate reports shall be made for each village and if the land lies in more than one Tahsil, the Collector shall decide in which Tahsil, the proceedings shall be held.
(4) The aforesaid report may be submitted to the Revenue Inspector through the Lekhpal. The Lekhpal shall immediately issue a receipt therefor. No stamp duty is required to be paid for such report.
(5) If the person obtaining possession by succession is a minor, then such report may be submitted by his guardian or through next friend.
(6) If more than one person jointly obtain possession over the land by succession, a report by any one of them shall be deemed to be sufficient compliance for the purposes of section 33(1)."
13. Rule 188 of the U.P. Revenue Code Rules, 2016 is quoted as under:-
" Provisions of the Code to apply (Section 214)--Where in relation to any suit, application or proceedings under the Code, any express provision has been made in the said Code or these rules or Regulations made thereunder, the provisions of the Code, these rules or regulations will apply, notwithstanding anything contained in the Code of Civil Procedure, 1908, or the Limitation Act, 1963."
14. Rule 192 of the U.P. Revenue Code Rules, 2016 is as under:-
"192. Deterimination of questions in summary proceedings (Section 225 A). (1) All the questions arising for determination in any summary proceeding under this Code or these rules shall be decided upon affidavits.
(2) The following proceedings shall be treated as summary proceedings, namely:
Section Particulars 24 Demarcation proceedings.
25 Proceeding regarding rights of way and other easements.
26 Proceeding regarding removal of obstacle.
30(2) Proceeding regarding physical division of minjumla number. 31(2) Proceeding regarding determination of shares.
32 Proceeding regarding correction of records.
35 Mutation proceedings.
38 Proceeding regarding correction of error or omission.
49 Proceeding regarding revision of map and records.
58 Proceeding regarding dispute arising in respect of any property referred to in sections 54, 56 or 57. 66 Proceeding regarding inquiry into irregular allotment of Abadi sites. 67 Proceeding regarding eviction of unauthorised occupants. 80 Proceeding regarding declaration for non-agricultural use. 82 Proceeding regarding cancellation of declaration.
98 Proceeding regarding permission to transfer Bhumidhari land to person other than Scheduled Caste. 101 Proceeding for exchange.
105(2) Proceeding for possession of Land.
128 Proceeding for cancellation of allotment and lease.
149 & 150 Proceeding for eviction of Government lessee.
193
Proceeding to set aside sale for irregularity.
195Proceeding for setting aside of sale by Collector or Commissioner.
212Proceeding for transfer of cases.
(3) The State Government or the Board may declare any other proceeding except the suits under the Code or these rules as the summary proceeding.
(4) The procedure for disposal of summary proceedings is contained in Revenue Court Manual."
15. R.C. Form -11 is reproduced as under:-
R.C. FORM-11 [See Rule-33(1)] Report regarding transfer of land u/s 34 of U.P. Revenue Code, 2006 To, The Tahsildar .........................Tahsil .......................District
1. Name, parentage and address of applicant........................
2. Particulars of land acquired by transfer (including area and land revenue.................)
3. Name, parentage and address of transferor...................................................
4. Name, parentage and address of other transferee if any ............
5. Nature of transfer (sale, gift etc................)
6. Date of execution and registration of deed of transfer...............
7. Amount of consideration........................................
8. Any other details.
Date:
......................................
Signature of applicant
16. The judgment in the case of Shabbar Husain (supra) relied upon by the petitioner deals with revision filed under Section 48 of the U.P. Consolidation of Holdings Act, 1953 therefore,s it will be useful to look into provisions of Section 48 of the U.P. Consolidation of Holdings Act. Section 48 of the U.P. Consolidation of Holdings Act, 1953 provides for revision and reference under the U.P. Consolidation of Holdings Act, 1953 and the same is quoted as under:-
"48. Revision and reference. - (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order (other than an interlocutory order) passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).
Explanation (I) For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation (II) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding.
Explanation (III). - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."
17. In the case of Shabbar Husain (supra) the following question was referred to the Full Bench of this Court, which is quoted in para 2 of the judgment and the same is reproduced as under:-
"The question for determination is thus stated in the referring order:
"Whether the territorial jurisdiction to entertain/decide appeal or revision, against the order passed on the objection or appeal transferred outside the district will be at the transferred district or at the district where the subject matter of dispute/unit situates?"
18. Interpreting the provisions of the U.P. Consolidation of Holdings Act, 1953 the aforesaid question was answered by the Full Bench in following terms:-
"35. If an appeal or objection is transferred outside of the district, an application (revision) under section 48 of the Act would lie before the Deputy Director of Consolidation of the same District, where the matter was transferred and not in the District where holding or unit situates."
19. In paragraph 14 of the judgment in the case of Shabbar Husain and others Vs. Dy. Direction of Consolidation Muzaffarnagar and another (supra); this court has held as under:-
"....the Director of Consolidation may call for and examine the record of any case or proceeding taken by any subordinate authority. The word 'subordinate' in the section assumes significance. It clearly denotes that the revisional court can correct the order of its subordinate authority. Therefore, the Deputy Director of Consolidation of the district, where the case was transferred can correct the order of the Settlement Officer, Consolidation, who is his subordinate authority. In case revision is filed in the district where the holding (unit) situates, the revisional authority, in our opinion, has no jurisdiction to correct the judgment of the appellate authority of another district, who is not his subordinate authority."
20. The judgement in case of Shabbar Husain (supra) will not apply to the present proceedings as the Full Bench was interpreting a provision i.e. Section 48 of the U.P. Consolidation of Holdings Act, 1953, which is different than the Section 35 of the Code. Under Section 48 of the U.P. Consolidation of Holdings Act, word 'subordinate authority' has been used whereas in the Section 35(2) of the Code, it has been provided that a person aggrieved by an order of the Tehsildar under sub-Section (1 ) may prefer an appeal to Sub-Divisional Officer. Word 'subordinate' has not been used in the Section 35 of the Code, therefore, the judgment in case of Shabbar Husain (supra) will not apply to an appeal filed under Section 35(2) of the Code.
21. Unlike Code of Civil Procedure, (hereinafter referred to as C.P.C.), (Section 15 to Section 21), the U.P. Revenue Code, 2006 does not provide for place of suing, but from the reading of provisions of Sections 34, 35, Rule 33 and RC Form 11, it is apparent that an application or the report has to be submitted to the Tehsildar of the Tehsil, within whose jurisdiction the land is situated.
22. Thus, it is the place where the property i.e. land lies, an application has to be made to the concerned Tehsildar having jurisdiction over the area. Section 214 of the Code quoted above provides that the provisions of C.P.C. will apply to every suit, application or proceedings under this Code. Rule 186 of the U.P. Revenue Code Rules, 2016 provides that the provisions of C.P.C. shall not be applicable to the summary proceedings under the Code or these Rules, but the principles enshrined in the C.P.C., 1908, shall be observed in the disposal of such proceedings. Rule 192 of the U.P. Revenue Code Rules, 2016 provides that the proceedings under Section 35 of the Code shall be treated as summary proceedings and therefore, even if the provisions of the C.P.C. are not to be applied, the principles enshrined in the C.P.C. have to be followed while deciding the proceeding under Section 35 of the Code.
23. Section 21 of the C.P.C. provides that no objection as to place of suing shall be allowed by any Appellate or Revisional court unless such 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.
24. Section 21 of the C.P.C. is quoted as under:-
"4[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such 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.
2.....
3....."
25. Section 206 of the Code provides for jurisdiction of civil court and the revenue courts. Section 206 of the Code is quoted as under:-
"206. Jurisdiction of civil court and revenue courts.---(1) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of this Code, no civil court shall entertain any suit, application or proceeding to obtain a decision or order on any matter which the State Government, the Board, any Revenue Court or revenue Officer is, by or under this Code, empowered to determine, decide or dispose of.
(2) Without prejudice to the generality of the provisions of sub-section (1), and save as otherwise expressly provided by or under this Code-
(a) no Civil Court shall exercise jurisdiction over any of the matters specified in the Second Schedule; and
(b) no Court other than the revenue Court or the revenue officer specified in 5(column 3) of the Third Schedule shall entertain any suit, application or proceeding specified in 6(column 2) thereof.
(3) Notwithstanding anything contained in this Code, an objection that a Court or officer mentioned in sub-section (2)(b) had or had no jurisdiction with respect to any suit, application or proceeding, shall not be entertained by any appellate, revisional or executing Court, unless the objection was taken before the Court or officer of the first instance, at the earliest opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice."
26. Sub-clause 3 of Section 206 of the Code provides that objection as to jurisdiction that a court or officer mentioned in sub-Section 2 (b) has or has no jurisdiction with respect to any suit, application or proceeding, shall not be entertained by any appellate, revisional or executing court, unless the objections is taken before the court or officer of the first instance, at the earliest opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. Though, Section 206 of the Code deals with the jurisdiction of the Civil Court viz. a viz. Revenue Court, but the principle underlying the said provision will also apply to the facts of the present case.
27. The Supreme Court in the case of Hira Lal Patni Vs. Sri Kali Nath reported in AIR 1962 SC 199, in paragraph no. 4 has held as under:-
"4. The only ground on which the decision of the High Court is challenged is that the suit instituted on the original side of the Bombay High Court was wholly incompetent for want of territorial jurisdiction and that therefore, the award that followed on the reference between the parties and the decree of Court, under execution, were all null and void. Strong reliance was placed upon the decision of the Privy Council in the case of Ledgard v. Bull, 13 Ind. App. 134 (P. C.). In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction in the Bombay High Court where the suit was instituted by the plaintiff-decree-holder. The plaint had been filed after obtaining the necessary leave of the High Court under Cl. 12 of the Letters Patent. Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution stage. The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit in over the parties to it. But in the instant case there was no such inherent lack of jurisdiction. The decision of the Privy Council in the case of 13 Ind. App. 134 (P. C.) is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. In that case, the suit had been instituted in the court of the subordinate Judge, who was incompetent to try it. By consent of the parties, the case was transferred to the Court of the District Judge for convenience of trial. It was laid down by the Privy Council that as the Court in which the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction on a court which was incompetent to try the suit. That decision has no relevance to a case like the present where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under Cl. 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through Court, he would be deemed to have waived his objection to the territorial jurisdiction of the Court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S. 21 of the Code of Civil Procedure."
28. The objection has to be taken at the earliest possible opportunity and if the same is not taken, the objection cannot be taken before the appellate or the revisional court. Apart from this, the party raising the objection has to demonstrate that because of irregular exercise of jurisdiction has resulted in failure of justice. Keeping in view the provisions of Section 206 of the Code as well as Section 21 of the C.P.C., the objection as to place of suing has to be taken at the first opportunity and failure to take such an objection will result that the person/party cannot take this objection at appellate or revisional stage.
29. In the facts of the present case, the original application under Section 35(2) of the Code was moved within the jurisdiction of Tehsildar, Tehsil- Mauranipur, where the property in dispute was situated. On a transfer application moved by the respondent no. 5, the application under Section 35 of the Code filed by the respondent no. 5 was transferred to the court of Tehsildar- Garautha, another sub-division of District-Jhansi where the said proceedings were decided. Being aggrieved by the judgment passed by the Tehsildar- Garautha, respondent no. 5 filed an appeal before the S.D.M. Mauranipur under Section 35(2) of the Code.
30. Learned counsel for respondent no. 5 submitted that it was open to the defendants to waive the objection and if they did so, they could not subsequently take the objection. The petitioner has failed to take objection at the earliest possible opportunity as to the jurisdiction of Sub-Divisional Officer, Mauranipur to entertain the appeal has forfeited his right and he cannot be permitted to take such objection at this stage or before the revisional court. It has also been pointed out by learned counsel for the respondent that it was only on a transfer application moved by the petitioner herself being Case No. 384 of 2023 under Section 212(2) of the Code, appeal which was filed before the S.D.M. Mauranipur was transferred to the court of S.D.M., Jhansi. It is the S.D.M., Jhansi which has ultimately decided the appeal. Once the appeal itself has been transferred on an application filed by the petitioner to the court of S.D.M., Jhansi, now it is not open for the petitioner to challenge that the S.D.M. Jhansi or S.D.M. Mauranipur has no jurisdiction to entertain the appeal and it was only the S.D.M. Garautha has jurisdiction to decide the appeal as the order was passed by the Tehsildar, Garautha. The factum of filing transfer application has not been denied by the petitioner rather in his written submissions made before the Tehsildar- Jhansi which are filed along with the supplementary affidavit, this fact has been admitted in paragraph number (झ)of the written submissions that the appeal was transferred from the court of S.D.M. Mauranipur to the court of S.D.M., Jhansi, by order passed by the Commissioner, Jhansi, Mandal-Jhansi, Jhansi. When the appeal was filed in the court of S.D.M., Mauranipur, no such objection was taken by the petitioner. Rather taking an objection in this regard, the petitioner choose to file a transfer application and got the appeal transferred from the court of S.D.M., Mauranipur to the court of S.D.M., Jhansi. At the stage of final hearing, the petitioner submitted written submissions before the S.D.M., Jhansi wherein this objection has been taken for the first time by the petitioner.
31. The submission of learned counsel appearing for the respondent no. 5 is well founded. As a general rule, neither consent nor waiver (sis), acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit or appeal. But Section 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits/ appeals cognizable by the Courts under the Code may be waived under this section. The waiver under Section 21 is limited to the objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Section 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.
32. In case of Pathumma and Ors. Vs. Kuntalan Kutty Dead by Lrs. And Ors. Reported in AIR 1981 SC 1683, in paragraph no. 3, the Supreme Court has held as under:-
"3. We have heard learned counsel for the parties on the question of jurisdiction. An unfortunate aspect of this litigation has been that although that question has been agitated already in three courts and has been bone of contention between that parties for more than a decade, the real provision of law which clinches it was never put forward on behalf of the appellant before us nor was adverted to by the learned District Judge or the High Court. That provision is contained in sub-section (1) of Section 21 of the Code of Civil Procedure which runs thus:
21 (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such 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.
In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential:
(1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
(3) There has been a consequent failure of justice.
All these three conditions must co-exist. Now in the present case conditions Nos. 1 and 2 are no doubt fully satisfied; but then before the two appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out."
33. In case of R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Vallabh Glass Works Ltd. Reported in AIR 1993 SC 2094, the Supreme Court has held as under:-
"...It may be further noted that the Learned Single Judge trying the suit had recorded a finding that the Bombay Court had jurisdiction to entertain and decide the suit. Sub- sec.(1) of Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such 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 consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional court subject to the following conditions :-
(i) That such objection was taken in the Court of first instance at the earliest possible opportunity;
(ii) in all cases where issues are settled then at or before such settlement of issues;
(iii) there has been a consequent failure of justice.
8. In the present case though the first two conditions are satisfied but the third condition of failure of justice is not fulfilled. As already mentioned above there was no dispute regarding the merits of the claim. The defendant has admitted the deposit of Rs. 10,00,000 by the plaintiff, as well as the issuing of the five cheques. We are thus clearly of the view that there is no failure of justice to the defendant decreeing the suit by the Learned Single Judge of the Bombay High Court, on the contrary it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction is to be maintained as allowed by the Division Bench of the High Court in its appellate jurisdiction."
34. It has also been contended by learned counsel for the petitioner that while deciding the appeal as well as revision, the courts below have not recorded any finding on the objection raised by the petitioner as to the fact that the appeal was not maintainable before the S.D.M., Mauranipur or S.D.M., Jhansi as the order was passed by Tehsildar, Garautha, the appeal was maintainable before the S.D.M., Garautha.
35. Per contra, it has been contended by the learned counsel appearing for the respondent no. 5 that since the objection was not taken by the petitioner at the very early stage and it was only at the time of hearing, the said objection was taken in the written submissions filed by the petitioner, the said objection is deemed to have been waived by the petitioner. The contention of learned counsel for the petitioner is misconceived. In this regard a reference may be made to judgment of this Court in Rakhi and Ors. Vs. 1st Additional Distict Judge, Firozabad and Ors in AIR 2000 All 166, paragraph no. 26 of the judgment is quoted as under:-
"In the present case, it is admitted that such objection was not taken in the written statement. It is also admitted that no issue was framed. It is also admitted that this objection was raised at the time of argument. It is further admitted that this objection was dealt with by the learned trial court. Admittedly, if no issue is framed in that event, it had sprung surprise on the respondents when raised at the bar at the time of argument. In as much, the applicant had no opportunity to take objection to it. It could be argued by Mr. Diwakar that the applicant did not have any opportunity to adduce sufficient evidence to defend such objection. The Court was never called upon to decide the issue. Unless an issue is framed, it cannot be said that it was in issue. Then again, the absence of objection does not make the decision by the Court wholly without Jurisdiction. It is an irregularity and not an illegality affecting the merit or the validity of the decree. One may acquiesce to the jurisdiction. Therefore, in the present case, the objection raised and adverted to by the Court would not cure the mischief of Section 21 of the Code. On the other hand by reason of Section 21 of the Code such objection would not hit at the root of the decree that have been passed and Could not be said to be without jurisdiction. Therefore, the omission of the appellate court to advert to the question is not fatal. It was neither an objection properly raised in terms of Section 21 of the Code of Civil Procedure nor was in issue. Therefore, the Courts were not called upon to decide the same."
36. As per the judgments of the Supreme Court referred above, all the three conditions must co-exist i.e. firstly the objection has to be taken in the court of first instance, secondly, the objection has to be taken at the earliest possible opportunity and thirdly, there has been a consequent failure of justice. I called upon the learned counsel for the petitioner to point out to me even at this stage any reason why I should hold that a failure of justice has occurred by reason of entertainment of appeal by the S.D.O., Jhansi but he was unable to put forward any.
37. In this view of the matter, I must hold that the appellate court and the revisional court has rightly not entertained the objection whether or not it was otherwise well founded.
38. So far as contention of learned counsel for the petitioner that appeal filed by the respondent no. 5 was under Section 207 of the Code whereas the appeal ought to have been filed under Section 35(2) of the Code and as such the appeal filed by the respondent no. 5 was not maintainable is also misconceived. Section 35(2) of the Code provides for filing of an appeal against an order passed by Tehsildar under sub-Section 1 of Section 35 of the Code. Section 207 of the Code provides for an appeal by any party aggrieved by final order or decree passed in a suit, application or proceedings specified in column 2 of the Third Schedule, may prefer a first appeal to the Court or officer specified against it in Column 4, where such order or decree was passed by a Court or officer specified against it in Column 3 thereof.
39. From the perusal of the Third Schedule, it is clear that in mutation cases, against an order passed by the Tehsildar, the first appeal has to be filed before the Sub-Divisional Officer. Thus, in my view, there is no illegality in filing an appeal under Section 207 of the Code, merely mentioning of a section whether Section 207 or Section 35(2) of the Code will not make any difference as both the sections provide for filing an appeal against the orders passed by Tehsildar in mutation cases.
40. In the facts of the case, since the petitioner has got herself transferred the appeal, by moving a transfer application before the Commissioner from the court of S.D.M., Mauranipur to S.D.M., Jhansi and further she has taken objection as to jurisdiction only at the time of final hearing while submitting the written submissions, this plea is not open for the petitioner to be raised either before the revisional court or before this Court. Further the petitioner has also failed to demonstrate that any failure of justice has occurred because of entertainment of appeal by the S.D.M., Jhansi or by the S.D.M.,Mauranipur. Since the property in dispute was situated in Tehsil- Mauranipur, though the order in mutation proceedings were passed by the Tehsildar- Garautha as the mutation case was transferred to the court of Tehsildar- Garautha, part of cause of action was there for the respondent no. 5 to file an appeal before the S.D.M., Mauranipur. Thereafter, the appeal was transferred to the court of S.D.M., Jhansi on an application moved by the petitioner herself and ultimately the appeal was decided by the S.D.M., Jhansi. From the perusal of the orders impugned i.e. the appellate order as well as the revisional order, it appears that though, the petitioner has taken objection before the appellate court in the written submissions and before the revisional court in paragraph no. 18 of the memo of revision, but the same has not been pressed by the petitioner either before the appellate court or before the revisional court as there is no mention of such objection being taken by the petitioner in the judgment. Even in the writ petition there is no averment by the petitioner that the objection which was taken by the petitioner was pressed before the appellate court as well as before the revisional court and the same has not been considered by the courts below.
41. In view of the same, I am of the opinion that the appellate court as well as the revisional court have committed no illegality in not considering the plea of the petitioner that the appeal was not maintainable before S.D.M., Mauranipur or Jhansi and it was only maintainable before the S.D.M., Garautha.
42. Accordingly, the writ petition fails and is dismissed.
Order Date: 28.05.2024 Nitika Sri. (Manish Kumar Nigam,J.)