ALAVI v. RADHA VARASYARAMMA — 1976 DIGILAW 204 (KER)

Judgment :- 1. when the Second Appeal came up for hearing before that learned judge, referred this case to a Division Bench since the question raised by the appellants arose in other cases also and those cases bad been referred to the Division Bench In view of the importance of the question raised, the appeal has been referred by the Division Bench to the Full Bench. 2. Relying upon certain observations in the Full Bench decision of this Court in Ananthanarayana Iyer v. Paran,1976 KLT. 403 and that in the Full Bench decision in C.M.A.No. 70 of 1975, (1976 KLT.571) the appellants in this case, contended that the decrees of the courts below have to be vacated on the sole ground that S.125(3) of the Land Reforms Act, 1963 has been violated, in that notwithstanding the plea of the defendant in the written statement that he was a tenant, no reference was made to the Land Tribunal. The finding on the issue framed in the case whether the defendant was a tenant entered by the trial court, it was urged, was therefore without jurisdiction. So it was contended that the decree passed by the trial court was incompetent and that the decree was a nullity. Counsel for the appellants prays for a remit of the matter to the trial court after setting aside the decrees of the Courts below with direction to refer the matter to the Land Tribunal constituted under the provisions of the Kerala Land Reforms Act 1 of 1964 as amended by Act 35 of 1969 (hereinafter referred to as the Act.) 3. Defendants 1 and 2 in the suit are the appellants in this appeal. The suit was one for perpetual injunction to restrain defendants 1 to 7 from trespassing upon the plaint property or interfering with the plaintiff's possession. The case of the plaintiff was that the plaint schedule property belonged to the tarwad of the plaintiff, that in the suit for partition of the tarwad properties it was allotted to the plaintiff's tavazhi and that in the tavazhi partition, allotted to the plaintiffs and defendants 9 to 12, who it is contended, arc in actual possession. The case of the plaintiff was that the plaint schedule property belonged to the tarwad of the plaintiff, that in the suit for partition of the tarwad properties it was allotted to the plaintiff's tavazhi and that in the tavazhi partition, allotted to the plaintiffs and defendants 9 to 12, who it is contended, arc in actual possession. The case of possession was contested by defendants 1 and 2, according to whom though the earlier lease was surrendered to the plaintiff's family under Ext Al de d of surrender in 1951 a few months later the property was leased to the first defendant and ever since then the first defendant and second defendant under him were holding the property under the lease. The lease alleged is not evidenced by any deed. 4. The parties went to trial on the question of possession which was material in determining whether the plaintiff was entitled to the injunction prayed for. Defendants 1 and 2 attempted to prove the lease and in support of that plea adduced evidence. The trial court found that the lease alleged was true and non-suited the plaintiff. The decree was passed on 27th July, 1971 long after the Kerala Amendment Act 35 of 1969 came into force. The said Amendment Act came into force on 1-1-1970. It is the provision in S.125(3) of the Act as amended by Act 35 of 1969 that is now relied on in support of the plea that the issue as to tenancy ought to have been referred to the Land Tribunal. No such case was urged in the written statement or at any time before the suit was finally disposed of and consequently the trial court had no occasion to consider a plea that the matter should be referred to the Land Tribunal. The plaintiff appealed against the trial court decree to the District Court of Palghat. That court went into the merits of the plea and held that the plaintiff's case of possession was true. The case of lease set up by defendants 1 and 2 was not accepted. Even before the appellate court there was no case for defendants 1 and 2 at any time that the suit ought to have been decided only after referring the issue as to tenancy to the Land Tribunal and getting the opinion of the tribunal on that issue. Even before the appellate court there was no case for defendants 1 and 2 at any time that the suit ought to have been decided only after referring the issue as to tenancy to the Land Tribunal and getting the opinion of the tribunal on that issue. The plea was raised for the first time in this Second Appeal by defendants 1 and 2. Whether this court should interfere with the decrees of the courts below and direct the trial court to refer the issue as to the plea of tenancy to the Land Tribunal is the question to be considered. 5. It may be profitable to extract S.125 of the Act as amended by Act 3: of 1969 before we proceed to discuss the controversy in this case: "125. Bar of jurisdiction of civil courts (1) No civil court shall hall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government: Provided that nothing contained in this sub-section shall apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment). Act, 1969. (2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act. (3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. (4) The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the civil court. (4) The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the civil court. (5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. (6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court. (7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled. (8) In this section, "civil court "shall include a Rent Control Court, as defined in the Kerala Buildings (Lease and Rent Control) Act, 1963." 6. This Court has consistently taken the view that S.125 (1) is only prospective in its operation and that the bar under that sub-section will apply only to cases instituted after 11 1970. On that there is no controversy before us. It has been held by a Full Bench of this Court in Ananthanarayana Iyer v. Paran, 1976 KLT. 403 that subsection (3) of S.125 of the Act both by its language and its purpose, indicates that it covers suits instituted before the commencement of the Act. If in such suits any question regarding rights of a tenant including the question whether a person is a tenant or not arises such question should be decided by the Land Tribunal. The view taken earlier in some cases decided by this Court that S.125 (3) should be read as a proviso to sub-section (1) of S 125 and that S.125 (3) has to be read in the light of S.125 (1) and so read would apply only to cases instituted after 111970 was held in a later Full Bench decision in CMA. 70 of 1975 (1976 KLT 571) to be not the correct view to take. 70 of 1975 (1976 KLT 571) to be not the correct view to take. It was held by the Full Bench that S.125 (1) and 125 (3) dealt with different matters. The correctness of the view taken by the Full Bench is rightly not under challenge before us. But the aspect emphasised was that when a decision is taken by a civil court on an issue relating to tenancy even in the absence of a request from either of the parties for reference of the question to the Land Tribunal such a decision by the court of first instance is without jurisdiction and hence the finding and the decree based on it are nullity and therefore when the appellate court either confirms or reverses the decree on the merits the appellate decision would also be a nullity. It makes no difference whether even before the appellate court this plea was specifically taken or not. It was therefore urged that when the point is taken before this Court in Second Appeal the decrees of the courts below have to be vacated and the trial court ought to be directed to act in accordance with S.125 (3) of the Act. 7. Sub-section (4) of S.125 imposes an obligation on the Land Tribunal to decide the question referred to it by the Civil Court under sub-section (3) of S.125 of the Act and return the records together with its decision to the Civil Court. It is the civil court which has to decide the suit or other proceedings in which the question had arisen. The Civil Court has to accept the decision of the Land Tribunal on the question referred to it and decide the case on that basis. The appellate court before which the suit may come up in appeal is competent to reverse, alter or modify the finding of the Land Tribunal. When once the finding of the Land Tribunal is accepted by the civil court, for the purpose of the appeal it is as if the finding is by the civil court itself. The appellate court is therefore free either to accept or to reject the decision reached by the civil court on the basis of the decision of the Land Tribunal. It appears to us that the scheme contemplated by S.12: of the Act envisages decisions in the suits or other proceedings only by a civil courts. The appellate court is therefore free either to accept or to reject the decision reached by the civil court on the basis of the decision of the Land Tribunal. It appears to us that the scheme contemplated by S.12: of the Act envisages decisions in the suits or other proceedings only by a civil courts. S.125(3) imposes an obligation to refer the question only as long as the suit or proceeding was pending in the court of first instance or before the authority competent to deal with it in the first instance. The appellate court, as is clear from S.125(1), is competent to decide the question itself and even reverse the finding of the trial court though based on the finding of the Land Tribunal. It is evident that if a suit had been decided prior to the commencement of the Amending Act on 111970 by the trial court no question of reference to the Tribunal by that court would have arisen before it and naturally no such question can arise in appeal either. This has been so held by a Full Bench of this Court in S.A. 792 of 1973 (1976 KLT SN. 87) Even in a case where the suit was decided after 111970 if any question arises regarding the right of a tenant or a kudikidappukaran in the appeal, sub-section (3) does not cast an obligation on the appellate court to refer the question to the Land Tribunal. 8. The court before which the suit or proceeding is pending has to decide all questions arising for its decision including the question relating to the rights of a tenant pleaded by the defendant and whether the defendant is a tenant of not. But the process of reaching such a decision is to be as indicated in S.125(3) (4) and (5). It is not as if the competency of the court to entertain and try the suit between the parties and to make a final decision thereon is taken away by the statute. But in reaching that final decision the court has to adopt the procedure prescribed in the Act. That is one of reference to the Land Tribunal and on the reference being answered, the obligation to decide in accordance with the decision reached by the Tribunal so far as it concerns the question referred. But in reaching that final decision the court has to adopt the procedure prescribed in the Act. That is one of reference to the Land Tribunal and on the reference being answered, the obligation to decide in accordance with the decision reached by the Tribunal so far as it concerns the question referred. The subject-matter of the suit or proceeding as well as the parties to such suit or proceeding continue to be subject to the jurisdiction of the civil court. 9. Any court which has jurisdiction over the subject-matter and the parties to the cause cannot be said to have rendered a void decision merely because it does not adopt the procedure prescribed by statute for reaching the final decision. The failure to act in accordance with the procedure contemplated by the statute would be a violation of the provision in the Act. Such a decision would be erroneous is law. Even so the decision is arrived at by a court with jurisdiction and though erroneous in law it cannot be a nullity as the decision in such case would not be one by a court which had no competence to entertain a suit or proceeding or one where though it could have entertained a suit or proceeding it had no competency to decide it. 10. The Privy Council in Ledgard v. Bull, I. L. R.1887 (9) All. 191 at 203 said: "When the judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit." The question there arose in the context of a plea by a defendant in a suit that the court had no jurisdiction to try it as it was instituted before a court incompetent to entertain the suit and that court made an order for transfer which was also incompetently made. The suit, thus received on transfer, was tried by the District Judge, who if the suit had been instituted before him would have been perfectly competent to entertain and try it. It is in that context that Their Lordships observed that in such a case a defendant may be barred by his own conduct from objecting to irregularities in the institution of the suit. 11. S.3 of the Indian Limitation Act is peremptory and it obliges the court to ascertain for itself whether a suit instituted before it is within time and not to entertain the suit in case it is found to be instituted beyond the period specified by the Limitation Act. Notwithstanding this provision a court decreeing a suit barred by time would be committing only an illegality and the decree passed cannot be ignored as null and void It is true that the court has a duty to ascertain whether the suit is barred by the provisions of the Limitation Act and to dismiss the suit in case it is so. But if it fails to advert to this or makes a patently erroneous decision the court is merely acting erroneously in law and the party is free to take up the matter in appeal and get the judgment corrected. The provision in S.11 of the Code of Civil Procedure barring trial of a suit or issue which has been tried and adjudicated upon earlier by a court of competent jurisdiction in a case between the same parties, is similarly peremptory. But nevertheless omission of a court to notice this bar or an erroneous decision on the question will not render the decision of the court a nullity. In this context we may quote a passage from Law of Evidence by Woodroffe and Ameer Ali, 13th Edition, Volume 2 at page 1210: "The competency of a court cannot depend on, whether a point which it decides has been raised or argued by a party or counsel. It cannot be said that, whenever a decision is wrong in law or violates a rule of procedure, the Court must be held incompetent to deliver it. It has never been and could not be held, that a court which erroneously decrees a suit which it should have dismissed as time barred or as barred by the rule of resjudicata, acts without jurisdiction and is not competent to deliver its decree. It has never been and could not be held, that a court which erroneously decrees a suit which it should have dismissed as time barred or as barred by the rule of resjudicata, acts without jurisdiction and is not competent to deliver its decree. This section and S.41 recognize that, given the competency of the court, even error or irregularity in the decision is a lesser evil than the total absence of finality which would be the only alternative. There is a distinction between an order which a court is not competent to pass and an order which, even if erroneous in law or in fact, is within the court's competency. As pointed out by the Full Bench in the case of Hriday Nath v. Ramachandra, there is a fundamental distinction between existence of jurisdiction and exercise of jurisdiction. The circumstance that jurisdiction has been exercised in an irregular manner does not destroy the jurisdiction, for as Lord Hobhouse said in Malkarjun v. Narhari, a court has jurisdiction to decide wrong as well as right; if it decides wrong, the wronged party can only take the course prescribed by law for setting matters right, and, if that course is not taken, the decision, however wrong, cannot be disturbed. It is very trite and very familiar that a challenge of the method of the exercise of the jurisdiction of a court can never in law justify a denial of the existence of such jurisdiction." The above statement of law is founded mainly on the judgment of the Chief Justice of the Allahabad High Court, Sir Arthur Strachey in the case of Caston v. Caston, ILR. (1899) 22 All. 270. In that case a decree absolute of nullity of marriage pronounced by the High Court was contended to be null and void because it was pronounced before six months had elapsed from the date of the decree of the District Judge which it confirmed. S.17 of the Indian Divorce Act IV of 1869 provides that confirmation should only be after the expiry of the period of 6 months. The learned Chief Justice expressed the view that if the question whether the confirmation could have been made had been raised before the court and argued and the court had erroneously decided that it could be confirmed, it could not be said that the court was not competent to deliver the judgment since... The learned Chief Justice expressed the view that if the question whether the confirmation could have been made had been raised before the court and argued and the court had erroneously decided that it could be confirmed, it could not be said that the court was not competent to deliver the judgment since... "if competent to consider and decide the question, it cannot be supposed that the court was "competent" to decide it in one particular way only." 12. The Supreme Court had occasion to consider the plea that a decree passed in a suit which was barred by time must be treated as a nullity and ignored in a subsequent litigation. Mudhokar J., speaking for the court, said in Ittyavira Mathai v. Varkey Varkey, AIR. 1964 S.C. 907 thus at page 910. "If the suit was barred by time and yet the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 P. C. 85 and contended that since the court is bound under the provisions of S.3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that S.3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. 13. Nathu Ram v. Kalian Das. I. L. R.26 (1904) All. 522 was a case where a similar question as to the effect of a decree decided in a suit which was barred by Limitation arose for decision by the Allahabad High Court and the same view as was expressed by the Supreme Court later was expressed by the learned Judges in that case. 14. S.11 of the Suits Valuation Act 1887 and S.21 of the Code of Civil Procedure recognise the principle of waiver on the part of a defendant to the jurisdiction of a court These provisions of law only reflect a general principle and even to cases where these provisions may not apply the principle may be capable of application. Where the court has no seizin of the case waiver on the part of the defendant cannot counter jurisdiction on the Court. But where the court has inherent jurisdiction over the subject-matter of the suit and the parties to the case, the defendant cannot challenge the decision as devoid of jurisdiction when he goes to trial without objection. Statutory provisions relating to procedure no doubt call for compliance. But non-compliance with them will only result in a decision that would be wrong in law as being contrary to the provisions which call for such compliance. A party may, by his silence, waive his objection to the procedure adopted. Statutory provisions relating to procedure no doubt call for compliance. But non-compliance with them will only result in a decision that would be wrong in law as being contrary to the provisions which call for such compliance. A party may, by his silence, waive his objection to the procedure adopted. Where he had occasion to raise the plea as to the non-compliance with a procedure but fails to do it and allows the trial to proceed the decision cannot be attacked as wanting in jurisdiction This principle was stated by the High Court of Madras as early as in the decision in Rajagopala v. Tirupathia Pillai, AIR. 1926 Mad. 421. Venkatasubba Rao, J. speaking for the Bench, said: "First, the defendant did not object to the jurisdiction of the Court, and on the principle underlying S.21, the objection must be deemed to have been waived. It is a settled principle that where a Court has no inherent jurisdiction over the subject-matter of a suit, no waiver on the part of the defendant can confer jurisdiction upon it. But where the court has jurisdiction over the subject matter, but there are irregularities in the initial procedure, the defendant who without objection goes to trial upon the merits cannot subsequently dispute the jurisdiction of the Court, See Ledgard v. Bull. Here then is the rule as well as the exception. Turning to the Indian Statute Law, S.99, Civil P. C., embodies the rule. The exceptions to the rule are contained inter alia in S.11 of the Suits Valuation Act and S.21 of the Civil P. C. by virtue of these sections, certain defects of jurisdiction are put on a par with "irregularities in the initial procedure." In regard to the pecuniary jurisdiction of a Court, S.11 of the Suits Valuation Act and in regard to its territorial jurisdiction, S.21 Civil P. C , recognizes that there may be a waiver on the part of the defendant and that the absence of jurisdiction does not render the decree a nullity. As Mr. Varadachariar contends, S.21 does not in terms apply; but the rule has been held to be of general application and the principle underlying S.21 has been applied to cases which do not strictly fall within its terms." 15. As Mr. Varadachariar contends, S.21 does not in terms apply; but the rule has been held to be of general application and the principle underlying S.21 has been applied to cases which do not strictly fall within its terms." 15. That the objection to the local jurisdiction of the court does not stand on the same footing as the objection to the competence of the court to try a case since in the latter case there is a question of lack of inherent jurisdiction is a principle stated by the Supreme Court in the decision in Hira Lal v. Kali Nath, AIR. 1962 S. C. 199. The court said: "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 case because the subject-matter was wholly foreign to the 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 or over the parties to it." Again the court said: "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." The Supreme Court in the decision in B. Petroleum Co. v. P. Pappu, AIR. 1966 S. C. 634 at page 636 adverted to the same rule in these terms: "As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court otherwise incompetent to try the suit. But S.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 cognizable by the courts under the Code may be waived under the section. The waiver under S.21 is limited to objections in the appellate and revisional courts. But S.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 cognizable by the courts under the Code may be waived under the section. The waiver under S.21 is limited to objections in the appellate and revisional courts. But S.21 is a statutory recognition of the principle that the defect as to the place of suing under S.15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it" 16. Coming to the case before us we have already indicated that S.125 (1) has no application as it is not a suit instituted after 11 1970. It is S.125 (3) that applies We have also indicated that S.125 (3), (4) and (5) - indicate the procedure to be adopted by the Civil Court and the Land Tribunal to which reference is made by the Civil Court. There is no inherent lack of jurisdiction in the civil court to decide the suit. In fact it is the civil court alone which can finally decide the matter. The non-adherence to the procedure does not render a decree passed by the civil court a nullity. Moreover, it was open to the party to have raised the objection concerning the procedure adopted and not go to trial before the civil court without raising such objection. Any possible objection to the procedure adopted by the civil court had evidently been waived by the defendant. No such objection was urged even before the appellate court. We are unable to hold that nevertheless the plea here should succeed. 17. Counsel for the appellants based his attack mainly on certain observations of this court in the two full Bench decisions mentioned in this judgment. Two of us were parties to the Full Bench decision in C.M.A. 70 of 1975 (1976 KLT 571) and one of us, the learned Chief Justice was a party to the later decision of a Bench of five Judges, Ananthanarayana Iyer v. Parat.1976 KLT.403. It has to be borne in mind that in both these cases the question of the effect of a decision rendered in contravention of the provision of S.125(3) did not arise for consideration nor did this court purport to deal with such a question. It has to be borne in mind that in both these cases the question of the effect of a decision rendered in contravention of the provision of S.125(3) did not arise for consideration nor did this court purport to deal with such a question. It was only the question whether a reference to the Land Tribunal was called for under certain circumstances that arose in those cases and it is in that context that the observations relied on by the learned counsel as supporting the case urged by him here happened to be made. In the judgment in C M.A. 70 of 1975 (1976 KLT 571) and connected cases this court, while analysing sub-sections (3) and (4) said thus: "It appears that for the application of sub-section (3) it is unnecessary that the Act by other provisions should have provided or required that the question that may arise under sub-section (3) should be settled, decided or dealt with or determined by the Land Tribunal. By virtue of the provision in sub-section (3) itself it is required that such questions should be referred to the Land Tribunal and by virtue of sub-section (4) the Land Tribunal has been given the right to decide the question referred under sub-section (3). The combined effect of sub-section (3) and (4) is a bar on the civil court to try the question and a conferment of power on the Land Tribunal to decide. This amounts to an ouster of the jurisdiction of the civil court and a conferment of the jurisdiction on a different Tribunal. It appears that there is an express bar by virtue of the provisions in sub-section (3; read with sub-section (4) of S.125. Even if there is no express bar, there is certainly an implied bar. We must hasten to add that this ouster of jurisdiction is only as regards the court of first instance. That court has to accept the decision of the Land Tribunal on the question and then proceed to decide the suit (S. 124(5)). But the decision of the Land Tribunal has to be treated as a finding of the civil court for the purpose of the appeal S.124(6). The appellate court can therefore consider the correctness of that finding." It is true that reference was mad to ouster of jurisdiction. But the decision of the Land Tribunal has to be treated as a finding of the civil court for the purpose of the appeal S.124(6). The appellate court can therefore consider the correctness of that finding." It is true that reference was mad to ouster of jurisdiction. But the term 'jurisdiction' has not been used in that decision in the strict senses of competency of the court to decide the suit. The finding on the question which arises under S.125(3) has to be only by the Land Tribunal and the civil court bad to decide the case accepting that finding of the Land Tribunal. To that extent the power of the civil court to find on the issue has been substituted by the power conferred on the Land Tribunal. The term ‘ouster of jurisdiction of the civil court' has been used only to emphasise the aspect of "conferment of power on a different Tribunal" to try and to find on the question. In other words the jurisdiction to enter a finding on the disputed question, in the first instance, has been given to the Tribunal and to that extent that power has been taken away from the civil court. That is the limited scope or extent of the 'ouster'. In view of the provision in S.125(5) enabling the court and enjoining the court to finally decide the suit between the parties, it is not possible to spell out an ouster of jurisdiction to decide the suit finally. Before the Full Bench the question whether the decision of a suit by the trial court without complying with S.125(3) would be null and void did not arise and no such question was considered or decided. 18. In the decision of the Full Bench in Ananthanarayana Iyer v. Paran, 1976 KLT. 403, in Para.7, the court considered the question whether sub-s. (3) of S.125 operates only in respect of suits and proceedings filed after 1 1 1970 as S.125(1) does or whether it operates even in respect of -suits and proceedings instituted even before that date It is while discussing that question that the court observed: "Although sub-section (1) bars the cognizance of the Civil Court only prospectively from 111970, sub-section (3) comprehends even suits instituted prior to that date, in which any question regarding the rights of a tenant including the question whether a person is a tenant-arises. Such question should be decided by the Land Tribunal. A decision by the Civil court of the said controversy, whether on prima facie satisfaction or on pucca proof of the status of a tenant, would therefore be barred." The last sentence in the passage extracted cannot be understood divorced from the rest of the above paragraph in which it appears. That refers only to the procedure prescribed by the Act and indicates the requirement of the Act that the decision on the question of status of tenant would necessarily be with the Land Tribunal What would be the consequence where a Land Tribunal does not decide and a civil court pronounces on the question is, here again, not a matter on which the Court could be taken to have spoken in the passage extracted above. The reference made in Para.12 of the judgment that "...the court is of the view that in view of the provisions of S.125(3) the question whether a tenancy should be proved on prima facie considerations or on pucca satisfaction, is itself out of bounds for the civil court". has only to be understood as limited to the finding to he reached by the Land Tribunal and not as referring to the final decision in the suit or other proceeding so as to render the decision of the court a nullity. 19. It would be well to remember the illuminating passage in the judgment of the Supreme Court in A. D. M. Jabalpur v. S. Shukla, AIR. 1976 SC. 1207, which must strike a note of caution whenever and wherever undue emphasis placed on observations made in judgments without at the same time bearing in mind the question which was decided by the court and with reference to which the observations were made: "'Moreover it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless be makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and obscurity as regards the case in hand." 20. To sum up: A judgment or order of a court in suit or other proceeding passed without compliance with the provisions of S.125(3), (4) and (5) is is not a nullity and it cannot be ignored as void. Non-compliance with a provision of law relating to procedure to be adopted by a court may render the decision erroneous in law. But the decision does not become void for that reason if otherwise the court was competent to try the suit. A court would be competent to entertain and dispose of the suit if it had jurisdiction over the subject-matter and the parties to the case. Any objection except the objection as to the inherent lack of jurisdiction of the court is capable of being waived by a party to the suit S 125(3) does not take away the jurisdiction of the civil court to finally decide a suit. In the case before the Full Bench in C. M. A. 70 of 1975 (1976 KLT 571) and Ananthanarayana Iyer's case (1976 KLT. 403) the question whether the decision of the Civil Court made without compliance with the provision in S.125(3) was void never arose for decision and those decisions cannot be taken to have spoken on that question When, for the first time, the objection that the decision of the trial court should have been reached after reference to the Tribunal is taken in Second Appeal, this court is not called upon to reopen the decisions of the court below in order to enable the trial court to refer the matter to the Land Tribunal. Since we have already found that the decree of the trial court or of the appellate court is not void and the Full Bench decisions of this court on which reliance was placed by counsel for the appellants do not support the stand taken by him the only question left concerns the course we should adopt in this appeal. Since we have already found that the decree of the trial court or of the appellate court is not void and the Full Bench decisions of this court on which reliance was placed by counsel for the appellants do not support the stand taken by him the only question left concerns the course we should adopt in this appeal. We have already indicated that by failure to raise the plea before the trial court that the question of tenancy should be referred to the Tribunal and that court having tried that issue and rendered a decision and the party having even failed to raise the question in the appellate court, it is not open to the appellants to contend here that nevertheless the decrees of the courts below should be reopened and the trial court should be directed to refer the case to the Land Tribunal. Such a course is not called for and this court is competent, to decide the appeal on the merits. Since the reference was made to the Full Bench only because this important question is raised and now that we have answered the question, we direct the case to be posted before a single judge of this Court for disposal of the Second Appeal on the merits.