Jagdamba v. Gram Samaj — 1976 DIGILAW 454 (ALL)

JUDGMENT : T.S. Misra, J. This appeal by the Plaintiffs arises out of their suit against the State of U.P. and Gram Sabha for a declaration that the land in dispute is not the land of public utility or a graveyard or grazing land and that the plaintiff's are the Sirdars of the said land on the basis of a Patta. The Plaintiffs also claimed possession of the land. They further prayed that the proceedings taken u/s 212-A of the UP ZA & LR Act, hereinafter called the Act, were illegal and inoperative. 2. The Plaintiffs alleged that they had acquired the said land on the basis of a Patta dated 30-6-1951 executed by Badri Prasad Singh. The Gram Sabha, however, initiated proceedings u/s 212-A of the Act against the Plaintiffs for their eviction asserting that the said land was a graveyard, grazing land and land of public utility. The Gram Sabha succeeded in those proceedings and the Plaintiffs were ejected from the land in dispute on 14-12-1962. The Plaintiffs had firstly filed a suit for possession in the Court of Judicial Officer Sadar, Sultanpur on 16-4-1963. The plaint was, however, returned to them on 30-4-1964 for prosecution before the Civil Court. The Plaintiffs, therefore, claimed the benefit of Sections 5 and 14 of the Indian Limitation Act. 3. The suit was resisted by the Defendants on a variety of grounds pleading, inter-alia, that the same was not maintainable in the Civil Court. An issue was accordingly struck on that plea and it was tried as a preliminary issue. The learned Munsif held that the suit was not maintainable in the Civil Court and directed that the plaint be returned to the Plaintiffs for presentation before the proper court. On appeal by the Plaintiffs against that decision the learned District Judge, Sultanpur set aside the order of the trial court holding that the suit was cognizable by the Civil Court. He, therefore, directed that the suit be tried on merits by the Munsif. The learned Munsif then framed as many as six issues. Issue No. 5 was whether the suit was within time? This issue was decided in favour of the Plaintiffs. The learned Munsif also decided other issues in favour of the Plaintiffs and decreed the suit. 4. Aggrieved by that decision the Defendants preferred an appeal. The learned Munsif then framed as many as six issues. Issue No. 5 was whether the suit was within time? This issue was decided in favour of the Plaintiffs. The learned Munsif also decided other issues in favour of the Plaintiffs and decreed the suit. 4. Aggrieved by that decision the Defendants preferred an appeal. The appellate court below accepted the contention that the suit was barred by time and reversing the finding recorded by the trial court in that behalf held that the suit was barred by time, and dismissed the same. The Plaintiffs have now come up to this Court in second appeal. 5. For the Appellants it was urged that the appellate court below had erred in holding that the suit was barred by lime. The principal question for determination, therefore, in this appeal is whether the suit filed by the Plaintiffs for reliefs mentioned hereinabove was barred by time or not. The Defendants had taken proceedings for ejectment of the Plaintiffs from the land in suit u/s 212-A of the Act. An order for eviction of the Plaintiffs was made in those proceedings and in consequence thereof the Plaintiffs were evicted from the said land on 14-12-1962. The Plaintiffs then filed a suit under Sub-section (7) of Section 212-A of the Act on 16-4-1963 in the Court of Judicial Officer Sadar, Sultanpur. The plaint was, however, returned to them on 30-4-1964 for presentation to the Civil Court, The Plaintiffs then presented the plaint in the court of Munsif South, Sultanpur on 7-5-1964. 6. The period of limitation prescribed for a suit u/s 212-A(7) of the Act is six months from the "date of the order of ejectment". The proceedings u/s 212-A were decided by S.D.O. Amethi on 18-11-1960. The Plaintiffs filed a revision against that order and the Additional Commissioner by his order dated 10-3-1961 recommended to the Board of Revenue to allow the same. The Plaintiffs had deposed that they did not receive any notice from the Board as to the date of hearing, or the date when the decision was to be made by them. It was only on 14-12-1962 when the Plaintiffs were dispossessed from the land in question that they came to know that their revision had been dismissed on 10-10-1961. The Plaintiffs had deposed that they did not receive any notice from the Board as to the date of hearing, or the date when the decision was to be made by them. It was only on 14-12-1962 when the Plaintiffs were dispossessed from the land in question that they came to know that their revision had been dismissed on 10-10-1961. The Plaintiffs, therefore, contended that the period of limitation of six months for filing a suit u/s 212-A(7) commenced to run from 14-12-1962 and not 10-10-1961 and as they had filed the suit before the Judicial Officer within six months their suit was well within time. They also claimed the benefit of Section 14 of the Indian Limitation Act on the ground that they had been prosecuting diligently their case in the court of Judicial Officer and they filed the plaint in the Court of Munsif as soon as it was returned to them by the court of Judicial Officer. The question which, therefore, arises for determination is whether the limitation for filing a suit Under Sub-section (7) of Section 212-A of the Act commenced to run on 10-10-1961 when an order dismissing the revision was passed by the Board of Revenue, or on 14-12-1962 when the Plaintiffs came to know of that order. 7. An order for ejectment was passed against the Plaintiffs u/s 212-A of the Act. Against that order the Plaintiffs preferred a revision u/s 333 of the Act which provides that the Board may call for the record of any suit or proceeding decided by the subordinate court in which no appeal lies and the Board may pass such order in the case as it thinks fit. Admittedly no appeal lies against an order passed u/s 212-A of the Act; hence a revision would lie u/s 333 of the Act. The revision is presented before the Commissioner. u/s 333-A of the Act, the Commissioner may reject the revision. However, if the Commissioner becomes of the view that the impugned order should be varied, cancelled or reversed, he shall refer the revision to the Board with his recommendation. The revision is presented before the Commissioner. u/s 333-A of the Act, the Commissioner may reject the revision. However, if the Commissioner becomes of the view that the impugned order should be varied, cancelled or reversed, he shall refer the revision to the Board with his recommendation. Rule 188 of the Revenue Court Manual provides that if after perusing the application or the record, or hearing the applicant it appears to the Commissioner that there are prima facie grounds for reporting the case for the orders of the Board, he shall issue notice to the parties, and after hearing them, may either dismiss the application or forward the record to the Board with his recommendation after informing the party against whom his recommendation is made that an objection to the Board may be filed within one month of the date of the recommendation. Rule 189 provides that on receiving a recommendation from the Commissioner the Board shall proceed to pass orders and shall not be bound to hear the parties before doing so, provided that where the Board proposes to vary or reverse orders sought to be revised, an opportunity shall be given to both the parties to be heard (1) in the case of revision applications presented direct to the Board Rule 186 and (2) in the case of revision application received by the Board under Rule 188 when an objection to the Commissioner's recommendation is received within one month of that recommendation. 8. An appeal is a continuation of the suit and so is the revision - See Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, AIR 1970 SC 1 . The filing of an appeal or revision puts the impugned decree or order in jeopardy. When the aid of Board of Revenue is invoked u/s 333 of the Act it is done because the Board is a superior Court and it can interfere for the purpose of rectifying the error of the court below. The jurisdiction which the Board exercises is a part of the general appellate jurisdiction of the Board as a Superior Court. It is only one of the modes of exercising power. The principle of merger of orders of inferior courts in those of superior courts is, therefore, clearly applicable whether the order is passed by the superior court on a petition for revision or on appeal. It is only one of the modes of exercising power. The principle of merger of orders of inferior courts in those of superior courts is, therefore, clearly applicable whether the order is passed by the superior court on a petition for revision or on appeal. This principle of merger was considered by the Supreme Court in U.J.S. Chopra Vs. State of Bombay, AIR 1955 SC 633 . In the majority judgment it was held that a judgment pronouncer by the High Court in the exercise of its appellate or revisional jurisdiction after issue of notice and a full hearing in the presence of both the parties would replace the judgment of the lower court and thus constitute the judgment of the High Court, the only final judgment to be executed in accordance with law by the court below. This principle was reiterated in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, AIR 1970 SC 1 . 9. When a revision is filed u/s 333 of the Act the Board may pass such orders in the case as it thinks fit. Obviously, the Board of Revenue has to pass a speaking order. This principle was reiterated in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, AIR 1970 SC 1 . 9. When a revision is filed u/s 333 of the Act the Board may pass such orders in the case as it thinks fit. Obviously, the Board of Revenue has to pass a speaking order. In Haji Manzoor Ahmad v. State of U.P. 1968 AWR 524 a Full Bench of this Court laid down that : Where an order of an inferior authority is carried in appeal or revision before a superior authority, and in disposing of the appeal or revision the superior authority makes an order in the exercise of quasi-judicial jurisdiction (1) In all cases where the superior authority interferes with the order of the inferior authority, the order of the superior authority must set out its reasons (2) In cases where the superior authority merely affirms the order of the inferior authority and (a) where the order of the inferior authority does not set out its reasons, the superior authority must disclose its reasons in its order; (b) Where the order of the inferior authority sets out the reasons- (i) Where the superior authority finds the reasons of the inferior authority acceptable to it, it need not specify the reasons in its order but may merely refer to the reasons given by the inferior authority or give an outline of the process of reasoning by which it finds itself in agreement with the inferior authority; (ii) Where the superior authority does not find the reasons of the inferior authority acceptable to it the superior authority must set out its own reasons in its order. 10. The view of the Full Bench was reaffirmed by a larger Bench in Ram Murti Saran v. State 1970 AWR 789 as well as Prem Prakash Virmani v. State 1970 AWR 475. Again in Nanha and Another Vs. 10. The view of the Full Bench was reaffirmed by a larger Bench in Ram Murti Saran v. State 1970 AWR 789 as well as Prem Prakash Virmani v. State 1970 AWR 475. Again in Nanha and Another Vs. Deputy Director of Consolidation, Kanpur and Others, AIR 1976 All 91 a Full Bench of this Court held that in cases where the superior authority dismisses the appeal or revision after oral hearing, it can safely be assumed that the parties must have placed before the authority the evidence on record as it supported their cases and since the superior authority is not required to independently state reasons for affirming the finding, the omission to refer to contrary evidence in its order, will not mean that it has not been considered. 11. Further, the parties to the lis have a right to know what the decision is. They must have a notice of the order. This is the requirement of Rule 1 of Order XX of the CPC as well. It provides that the court after the case has been heard, shall pronounce judgment in open court either at once or soon thereafter as practicable on some future date and when the judgment is to be delivered on a future date the court shall fix a date of which due notice shall be given to the parties or their pleaders. The object of giving notice obviously is to enable the parties to conform to the law in respect of the period of limitation. If a judgment or order is pronounced without previous notice to a party and on a subsequent date information as to the judgment is sent to a party or its pleader, the later date must be taken to be the date of the delivery of the judgment for the purpose of computing limitation - See Sewa Singh v. S.S. Singh 1967 AWR 277. The principle is applicable to all Tribunals performing judicial or quasi-judicial functions. 12. The expression 'date of the order' came to be construed by the Supreme Court in Madan Lal Vs. State of U.P. and Others, AIR 1975 SC 2085 . The Appellant in that case was a claimant of same land sought to be included in the area for reserved forest. 12. The expression 'date of the order' came to be construed by the Supreme Court in Madan Lal Vs. State of U.P. and Others, AIR 1975 SC 2085 . The Appellant in that case was a claimant of same land sought to be included in the area for reserved forest. His claim was opposed, inspection made and order recorded by the Forest Settlement Officer on 9-5-1955 u/s 11(1) of the Indian Forest Act that the Appellant had proved his case. There was no notice to the State of this order and it became aware of the order on 24-4-1956. Thereupon the State filed an appeal against the orders u/s 17 which prescribes a limitation period of three months for the filing of appeals. The appellate tribunal held that the period of limitation should run from 24-4-1956 and not from the date of the first order. The High Court held that the impugned order should be deemed to have been passed on 24-4-1956 when the Forest Department came to know of the order and the right of appeal to the department should be granted on that very basis. This view of the High Court was upheld by the Supreme Court. In paragraph 8 of the judgment the Supreme Court observed: The Act we are concerned with does not state what would happen if the Forest Settlement Officer made an order u/s 11 without notice to the parties and in their absence. In such a case, if the aggrieved party came to know of the order after the expiry of the time prescribed for presenting an appeal from the order, would the remedy be lost for no fault of his? It would be absurd to think so. It is a fundamental principle of justice that a party whose rights are affected by an order must have notice of it. This principle is embodied in Order XX, Rule 1 of the Code of Civil Procedure; though the Forest Settlement Officer adjudicating on the claims under the Act is not a court, yet the principle which is really a principle of fair play and is applicable to all tribunals performing judicial or quasi-judicial functions must also apply to him. The point has been considered and decided by this Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, AIR 1961 SC 1500 . The point has been considered and decided by this Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, AIR 1961 SC 1500 . This was a case under the Land Acquisition Act, 1894 and the court was considering the question of limitation under the proviso to Section 18 of that Act. u/s 18 of the Land Acquisition Act a person who has not accepted the Collector's award can apply to the Collector requiring him to refer the matter for the determination of the court. This application has to be made within six months from the date of the Collector's award in the case where the person interested was not present or represented before the Collector at the time when he made his award or had received no notice from the Collector of the award. Construing the expression "the date of the award" this Court observed: The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to Section 18 in a literal or mechanical way...where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned. 13. The view expressed by the Supreme Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer 1961 AWR 500 was followed by this Court in Mata Prasad Vs. Dewakar Bharti and Others, AIR 1964 All 228 . 14. In the case in hand the rights of the Plaintiffs were affected by the order of the Board of Revenue. The remedy is prescribed by Sub-section (7) of Section 212-A by filing a suit to establish the right claimed by the Plaintiffs in the disputed land. The limitation prescribed for filing such a suit is six months from the date of the order. The remedy is prescribed by Sub-section (7) of Section 212-A by filing a suit to establish the right claimed by the Plaintiffs in the disputed land. The limitation prescribed for filing such a suit is six months from the date of the order. The making of the order must, therefore, mean either actual or constructive communication of the order to the party concerned. It was not disputed in the case in hand that the Board of Revenue had not pronounced its order in the presence of the parties or their counsel. It had also not given due notice to the parties concerned that the order would be pronounced on a particular date. The Plaintiffs came to know of the order on 14-12-1962 when they were dispossessed from the land in question. 15. The order of the Board of Revenue should, therefore, be deemed to have been passed on 14-12-1962 for the purpose of computing the period of limitation. The period of limitation, therefore, commenced running from 14-12-62. The Plaintiffs filed the suit in the revenue court on 16-4-63 i.e., within six months from the date of the knowledge of the order. The revenue court held that it had no jurisdiction to decide the suit and passed an order on 30-4-1964 for return of the plaint for presentation to the proper court. The Plaintiffs, therefore, filed the suit in civil court on 7-5-1964. The entire period during which the Plaintiffs had been prosecuting their case with due diligence and in good faith in the court of the Judicial Officer was, therefore, liable to be excluded u/s 14 of the Limitation Act. Excluding that period the suit filed by the Plaintiffs in the civil court was clearly within limitation. The appellate court below had, therefore, erred in holding that the suit was barred by time. 16. In the result, the appeal is allowed. The decree passed by the appellate court is set aside and the decree passed by the trial court is restored.