Munir Ali v. Phundan — 1974 DIGILAW 9 (ALL)

JUDGMENT Jagmohan Lal, J. - The brief facts of the case giving rise to this second appeal were that Srimati Phundan, plaintiff-respondent No. 1 and the predecessor of the plaintiff-respondents 2 to 5 were occupancy tenants of certain agricultural plots which they mortgaged to one Sher Ali predecessor the defendant-appellants Nos. 1 to 3 under a registered mortgaged deed dated June 12, 1931 in lieu of a sum of Rs. 1,246/-. It was a possessory mortgage and the mortgagee entered in possession of the mortgaged plots. The duration of the mortgage, as mentioned in the mortgage-deed, was fifteen years. It appears that during the time of mortgage Sher Ali let out some of the mortgaged plots to his sons who are the defendant-appellants 1 to 3 and some other plots to the defendant-appellants 4 to 7 who began to cultivate those plots. Subsequently, Sher Ali mortgagee died leaving the defendant-appellants 1 to 3 as his only heirs. 2. The plaintiffs filed a suit on March 3, 1955 in the court of Munsif East, Hardoi against the defendant-appellants with the allegation that after the abolition of the Zamindari, Sher Ali mortgagee became as Asami of these plots and that the entire mortgaged money had been satisfied from the usufruct of the mortgaged property. As such, the defendants 1 to 3 as successors of the original mortgagee, and the remaining defendants who were in possession of some of the mortgaged plots holding from the original mortgagee, were liable to ejectment. 3. The suit was contested by the defendants on various grounds. In brief, they challenged the jurisdiction of the civil court to entertain the suit and pleaded that they were Sirdars of these plots and not merely Asamis and as such, they were not liable to ejectment. 4. The learned Munsif at first referred the issue about the defendants being Asamis of the plot in dispute to the Revenue court under the provisions of the U.P. Zamindari Abolition and Land Reforms Act (to be hereinafter called as the Act). But subsequently when the Act was amended in 1956 the issues relating to the Sirdari rights, as claimed in this land by the defendant-appellant as well as by the plaintiff-respondents were also referred to the Revenue Court. The Revenue Court returned findings to the effect that the defendant-appellants were only Asamis of the land in dispute and they were not Sirdars. The Revenue Court returned findings to the effect that the defendant-appellants were only Asamis of the land in dispute and they were not Sirdars. On the other hand, the plaintiff-respondents were the Sirdars of these plots. After that the learned Munsif accenting these findings, proceeded to decide the remaining Points of dispute. He held that on March 3, 1955 when the suit was filed the Civil Court had jurisdiction to entertain the suit. He further found that the entire mortgage money had been satisfied out of the usufruct of the property. While the suit was still pending in the court of Munsif, consolidation proceedings also started in this village under provisions of the U.P. Consolidation of Holdings Act, 1953 (to be hereinafter called as the Consolidation Act). During these proceedings also there was a dispute between the parties regarding their respective rights in the land in dispute and the dispute was finally decided by the consolidation authorities in favour of the plaintiff-respondents by holding them to be Sirdars of the plots in dispute and declaring the defendant-appellants as Asamis thereof. The trial court, therefore, passed a decree for possession against the defendant-appellants. 5. Against that decree the defendants filed an appeal before the District Judge which was also dismissed. The defendants then filed the present second appeal in this court. 6. I heard the learned counsel for the parties. It was urged on behalf of the appellants that the suit was not cognisable by civil courts in view of Section 331 read with Schedule II of the Act. It is not disputed that the suit out of which this second appeal has arisen was the nature of a suit contemplated by Section 202 (c) which at this time is exclusively cognisable by revenue court on account of its being mentioned at serial No. 21 Schedule II. But this Schedule, as it stood in the year 1955, did not include a suit under Section 202 (c) which was at that time cognisable by Civil Court. It was only by a subsequent amendment made in the year 1956 that this suit was also made cognisable exclusively by the revenue court. But this Schedule, as it stood in the year 1955, did not include a suit under Section 202 (c) which was at that time cognisable by Civil Court. It was only by a subsequent amendment made in the year 1956 that this suit was also made cognisable exclusively by the revenue court. But that amendment was not retrospective and did not affect the suits which had already been filed in Civil Court prior to the date on which that amendment came in force, as was held by this court in Janki Koori v. Jamuna Koori, 1962 R.D. 328. The courts below have, therefore, rightly held that the suit was cognisable by civil court when it was filed and the subsequent amendment in the Act did not oust its jurisdiction to decide that suit. 7. The next point that was urged by the learned counsel for the appellants was that in this case the issues regarding the Sirdari rights claimed by the defendant-appellants ought not have been referred to the revenue court but the same should have been decided by the civil court itself. As stated in the earlier part of the judgment originally the learned Munsif had not referred the issues about Sirdari rights to the revenue court and had made a reference only with regard to the Asami and Adhivasi rights to that court, but in view of an amendment made in the Act by means of U.P. Act No. XVIII of 1956, which came in force on May 7, 1956, it became necessary for the civil court to refer the issue about Sirdari also to the revenue court as this amendment was applicable even to the suits filed earlier which were still pending as was held by a Full Bench of this court in Kalu Khan v. Kamar-un-nisa, 1962 R.D. 293. In view of this amendment in law the Munsif rightly referred the issues about Sirdari rights that were claimed in the land in dispute by the parties to the revenue court. The revenue court then returned findings on all these issues which were in favour of the plaintiffs and against the defendants. These findings were to the effect that the plaintiff-appellants were only Asamis thereof. Those findings were returned in the year 1957. The revenue court then returned findings on all these issues which were in favour of the plaintiffs and against the defendants. These findings were to the effect that the plaintiff-appellants were only Asamis thereof. Those findings were returned in the year 1957. With effect from November 7, 1958 the Act was again amended by means of the U.P. Act No. XXXXVIII of 1958 which repealed Section 332-B of the Act under which these issues used to be referred to the revenue court in a suit filed in civil court The learned counsel for the appellants argued that in view of this sub-sequent amendment the Munsif himself ought to have decided the issue relating to Sirdari rights and should not have based his decision on the findings returned by the revenue court. This proposition is, however, not supported by the Full Bench decision referred to above on which reliance is placed by the learned counsel for the appellant. That decision only lays down that after November 7, 1958 no reference could be made to the revenue court even in a pending suit because Section 332-B was taken off from the statute after that date and so there was no authority to make such reference. But that decision does not lay down that if a reference about Sirdari rights had been made to the revenue court and that court had returned a finding before November 7, 1958, that finding could be ignored by the civil court. On the other hand, it was clearly laid down in that decision that between May, 1956 when the U.P. Act No. XVIII of 1956 was passed and November 7, 1958 when U.P. Act No. XXXVIII of 1958 was passed a reference on the question of Sirdari rights to the revenue court was necessary. In that case such a reference was not made and the issue about Sirdari rights was decided by the civil Court. When the second appeal was decided by the Full Bench in 1962 it was held that though it was in irregularity on the part of the lower courts, it could not be cured at that stage by remanding the case to the trial court and directing it to refer that issue to the revenue court because by that time Section 332-B had ceased to exist on the statute book. So that Full Bench decision is of no help to the appellants in propounding the proposition that in this case the finding on the issue of Sirdari rights returned by the revenue court in the year 1957 should have been ignored by the civil court simply because the suit was actually decided after November 7, 1958. 8. Moreover, this finding of Sirdari rights returned by the revenue court itself becomes of secondary importance in view of the consolidation proceedings that intervened while the suit was still pending. After these proceedings had started the suit had to be stayed awaiting the result of the decision of the consolidation authorities regarding the dispute whether the defendant-appellants were the Sirdars of the land in dispute or merely Asamis thereof. The suit could not be abated because the consolidation authorities were not competent to eject the Asamis from the land in dispute as was held by this court in Smt. Ram Kali v. Deputy Director of Consolidation, 1966 R.D. 373. All that the civil court could do was to stay the suit and then decide it in accordance with the final decision of the consolidation authorities on that matter under the provisions of the Consolidation Act. The consolidation authorities were competent to decide this dispute and declare that the defendant-appellants were only Sirdars of the land. This dispute was finally decided by the Deputy Director (Consolidation) under his judgment dated April 10, 1959, a certified copy of which is exhibit-10 on the record. It was held that the plaintiff-respondents were the Sirdars of the land in dispute while defendant-appellants were simply Asamis thereof. That decision is binding on the parties and they cannot get away from it in view of Section 49 of the Consolidation Act. 9. The next point that was urged by the learned counsel for the appellants was that the defendant-appellants Nos. 1 to 3 who are sons and heirs of the original mortgagee Sher Ali were not in possession of this land simply as heirs of the mortgagee but that they were also holding some of these plots under a valid lease made by Sher Ali in their favour in October, 1950 which Sher Ali was competent to do under the terms of the mortgage deed. By virtue of that lease the defendant-appellants would become at least sub-tenants of this land under the U.P. Tenancy Act and would acquire rights as an Adhivasi in these plots under Section 20 of the Act. This plea is no more open to them in view of Section 40 of the Consolidation Act and it is not necessary for us to go into the merits of this controversy. The learned counsel for the appellants, however, argued that before the consolidation authorities the defendant-appellants were litigating in their capacity as successors of the mortgagee and not in their independent right as leases holding the land in dispute from the original mortgagee under a lease made by him in October 1950. Both, these pleas were open to them when that dispute was litigated before the consolidation authorities and if the defendant-appellants failed to make that plea there, the bar of constructive res judicata would come in their way and they cannot get over that decision by taking up this plea in this second appeal. I accordingly hold that in view of the decision of the Consolidation authorities the status of the defendant-appellants was no better than that of Asamis who were liable to ejectment under Section 202(c) of the Act. No other point was pressed by the learned counsel for the appellants. 10. The appeal is dismissed with cosh in the contesting respondents.