Harnarain Ahir v. Raghubir Rai — 1979 DIGILAW 542 (ALL)

JUDGMENT P.N. Goel, J. - These 13 connected appeals arise out of one judgment dated 27-5-1967 passed by Civil Judge Ballia in 18 Civil Appeals arising out of 18 Original Suits decided by Munsif Ballia East on 13-11-1959. The first 9 appeals have been filed by the defendants and the last 4 appeals have been preferred by the plaintiffs. 2. In Second Appeal No. 3073 of 1967 the plaintiffs have filed cross-objection. 3. In the district of Ballia, village Indarpur is to the east of river Sarju and village Cheruiyan is to the west of river Sarju. The defendants are residents of village Cheruiyan. The plaintiffs are residents of village Indarpur. They are zamindars or fixed rate tenants. The dispute relates to several agricultural plots which used to go under water in the rainy season when river Sarju used to be in spate. Therefore, only Rabi crop was used to be sown in the suit plots. The tenure holders were not used to have Kharif crop in the plots. 4. It is undisputed that these plots were originally parts of village Indarpur and the plaintiffs were zamindars and fixed rate tenants thereof. In the year 1953 the plaintiffs brought suit for injunction against the defendants of village Cheruiyan with the allegations that in the year 1941 river Sarju diverted from its previous route and began to flow through the limits of village Indarpur, with the result that the suit plots wen.t to the west of river Sarju. The defendants wanted to interfere with their possession in or about November 1952. Therefore, the plaintiffs were compelled to file suits for injunction. 5. The contention of the defendants was that as the disputed plots became to the west of river Sarju, the plots belonged to them, that they were in actual cultivatory possession of the suit plots since a very long time, that they have become hereditary tenants of the suit plots and that after the coming into force of the U. P. Zamindari Abolition, and Land Reforms Act they had become their adhivasis. 6. Munsif East Ballia found in favour of the defendants and consequently dismissed the suits. The plaintiffs preferred appeals before the District Judge which were decided by the Civil Judge on 25-5-1961 against them. The plaintiffs then filed Second Appeals in this Court which were decided on 8-7-1974. 6. Munsif East Ballia found in favour of the defendants and consequently dismissed the suits. The plaintiffs preferred appeals before the District Judge which were decided by the Civil Judge on 25-5-1961 against them. The plaintiffs then filed Second Appeals in this Court which were decided on 8-7-1974. The judgments and decrees dated 25-5-1961 passed by the Civil Judge were set aside and all the cases were remanded to the Civil Judge for deciding again in, light of the observations and directions made by this Court. This case is now a reported one vide Kapildeo Rai v. Har Narain, AIR 1965 All 313 . The Civil Judge decided the appeals again on 27-5-1957. Several suits were decreed and some suits were dismissed Therefore, these 13 appeals arise. In the earlier decision this Court set at rest three points: - (1) Land appearing on the side of village Cheruiyan as a result of the action of the river would still remain the property of the plaintiffs if it is identifiable as having belonged to the plaintiffs when it was on Indarpur side of the village whether the change in the course of the river was abrupt or gradual. The Civil Judge has recorded a clear finding on an appraisal of the evidence of the parties that the land is identifiable. This finding has not been assailed by the learned counsel for the defendants appearing in this Court. It means that the disputed plots belonged to the plaintiffs. (2) It is well established that sub mersion of land under water puts an end to the possession of the person who was in wrongful possession of it before the submersion and restores the land to the possession of the rightful person, who is deemed to be in. constructive possession of it during the period of submersion. This principle is applicable even to suits under Section 44 Agra Tenancy Act 1946 and Section 180 of U. P. Tenancy Act 1939. (3) Defendants did not become Adhivasis under the provisions of the U. P. Zamindari Abolition and Land Reforms Act. 7-8. Sri L. N. Pandey, learned counsel for the defendants has firstly contended that in view of the provisions of Sections 209, 229 and 331 of the U. P. Zamindari Abolition and Land Reforms Act the Civil Court did not have jurisdiction to try the suits. 7-8. Sri L. N. Pandey, learned counsel for the defendants has firstly contended that in view of the provisions of Sections 209, 229 and 331 of the U. P. Zamindari Abolition and Land Reforms Act the Civil Court did not have jurisdiction to try the suits. He contended that the rebel of injunction entails, declaration oi live 'plaintiff as bhumidhars. He further contended that as the defendants were in wrongful possession of the suit plots, the remedy of the plaintiffs was to have sued for ejectment under Section 209. This contention of the learned counsel for the appellants cannot be sustained for the reasons hereinafter mentioned: (1) Section 21 of the Code of Civil Procedure lays down 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, a consequent failure of justice. A perusal of the trial courts judgment shows that the jurisdiction of the Civil Courts was challenged by the defendants. But this plea was not pressed before the trial court. It will further be noticed that this plea was not pressed/taken before the Civil Judge and that this point was also not pressed in Second Appeals which were decided by this Court on 8-7-1964. The learned counsel for the appellants contended that as the question of jurisdiction wen.t to the root of the matter, he could urge this plea now in these Second Appeals. In support of his contention he placed reliance on four cases: - (1) Kiran Singh v. Chaman, Paswan, AIR 1954 SC 340 :(1954 All LJ 551). In this case it was observed that it was a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it was sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings, and that a defect of jurisdiction, whether it was pecuniary or territorial or whether it was in respect of the subject matter of the action, struck at the very authority of the Court to pass any decree and such a defect could not be cured even by consent of parties. (2) Ram Chandra v. Muneshwar, 1961 All LJ 991: (AIR 1912 All 248). In this case it was observed that question of jurisdiction, even if raised for the first time in second appeal, should appropriately be not only permitted to be raised but should be determined. (3) Chandrika Misir v. Bhaiya Lal, 1973 RD 365 : ( AIR 1973 SC 2391 ). In this case it was observed that where the Court is inherently lacking in jurisdiction the plea may be raised at any stage and even in execution proceedings on the ground that the decree was a nullity. (4) Kishori Lal v. Shambhu Nath, 1979 RD 37: (1978 All LJ 1273). In this case the plaintiff claimed injunction on the ground that he was a Bhumidhar of the suit land. It was held that the suit was not maintainable in Civil Courts. It was further held that this objection could be taken even in second appeal. 9. The position that follows from the above is that if the Civil Courts had absolutely no jurisdiction to entertain the suit, the plea of jurisdiction can be raised even in the second appeal. Its obvious reason is that a decree granted by a Court which had absolutely no jurisdiction to entertain the suit is a nullity. 10. It is correct to urge that the relief of injunction claimed in the present suits implies declaration of rights of the plaintiffs as Bhumidhars. Section 229-B U. P. Zamindari Abolition and Land Reforms Act provides that a bhumidhar can bring a suit for declaration of his rights. This section was introduced by Ordinance No. II of 1954 which came into force from August 6, 1954. Prior to this section there was simply Section 229 which permitted a Gaon Sabha to institute a suit for a declaration of the right of a tenure holder. The present suits were filed before Section 229-B came into force. On the dates on which these suits were filed Section 229-B was not enacted. Therefore, on the dates of the filing of the suits there was no provision in the II. P. Zamindari Abolition and Land Reforms Act under which the plaintiffs could seek a declaration of their rights as Bhumidhars. In view of this, the plaintiffs had every right to file suits in the Civil Courts. 11. Therefore, on the dates of the filing of the suits there was no provision in the II. P. Zamindari Abolition and Land Reforms Act under which the plaintiffs could seek a declaration of their rights as Bhumidhars. In view of this, the plaintiffs had every right to file suits in the Civil Courts. 11. The result of what has been stated above is that it is not correct to say that on the date of the filing of the suits the Civil Courts did not have jurisdiction to entertain the suits. 12. The next contention of the appellants counsel is based on Section 209. This section lays down that a Bhumidhar can file suit for possession against a person taking or retaining possession of land illegally. The appellants counsel referred to relief (B) claimed on Original Suit No. 6 of 1954. This suit was filed on 2-1-1953. It was stated in para 9 of the plaint that the cause of action arose on 1-11-1952. Relief (B) stated that if the plaintiff was found out of possession in the view of the court, then decree for possession be passed in his favour. In the plaint it was nowhere stated that the defendants had come in possession of the land. The only averment in the plaint was that the defendants were threatening to interfere in plaintiffs possession. It would thus be prima facie seen that the plaintiffs did not claim possession, nor they alleged that the defendants had trespassed over the land. 13. In this connection it may be repeated that in the earlier second appeals this Court clearly held that "submersion of a land under water puts an end to the possession of the person who was in wrongful possession of it before the submersion and restores the land to the possession of the rightful person who is deemed to be in constructive possession of it during the period of submersion". 14. It shall be noticed that the Civil Judge has clearly found that the suit plots get submerged every year. No Kharif crop is raised in these plots. Therefore, in November 1952 there could only be a threat by the defendants to come in possession. It means that prior to the filing of the suit the defendants had not trespassed on the plots. No Kharif crop is raised in these plots. Therefore, in November 1952 there could only be a threat by the defendants to come in possession. It means that prior to the filing of the suit the defendants had not trespassed on the plots. An attempt was made by the defendants to prove that the suit plots were not used to get submerged every year in the Kharif crop, but this attempt completely failed, and the Civil Judge, on an appraisal of the oral evidence of the parties, clearly concluded that the land used to get submerged every year in the rainy season/Kharif crop. There is no reason not to accept this finding which is a finding of fact. 15. The learned counsel for the appellant referred to the statements on oath of Sahdeo Singh plaintiff (P.W. 1). Sahdeo Chaudhary, one of the defendants, Dhanna, Jagdish Narain, and Rama Kant Lal Lekhpal of village Cheruiyan (D. Ws. 2, 3, 8 and 1). Sahdeo Singh clearly stated that the defendants were threatening to take possession in or about November 1052 and that previously the plaintiffs were continuously in possession of the plots. On the other side the witnesses of the defendants attempted to prove that the defendants were in actual possession in the years prior to 1952. Their statements do not appear believable because according to them the defendants came in possession even before the suit land, by the action of river Sarju went towards village Cheruiyan. Therefore, the learned counsel for the appellant cannot place reliance on the evidence of the defendants witnesses. In this connection the appellants counsel referred to the finding recorded by the trial court to the effect that the plaintiffs were out of possession on the suit land. The main basis of this finding is entries in the Khasras of village Cheruiyan made by Rama Kant Lal Lekhpal. The appellants counsel pointed out that the lower appellate court did not disturb this finding. It is not correct to say. The Civil Judge has impliedly reversed this finding. The Civil Judge clearly held that entries in the Khasras of village Cheruiyan were not in accordance with law, and the defendants could not be deemed occupants of the suit lands. This observation of the Civil Judge is well founded. Villages Indarpur and Cheruiyan are in the same district. The Civil Judge has impliedly reversed this finding. The Civil Judge clearly held that entries in the Khasras of village Cheruiyan were not in accordance with law, and the defendants could not be deemed occupants of the suit lands. This observation of the Civil Judge is well founded. Villages Indarpur and Cheruiyan are in the same district. Sec. 28 of the U. P. Land Revenue Act lays down that the Collector shall maintain a map and field-book of each village of his district and shall cause to be recorded all changes in the boundaries of each village, or field and shall correct any errors which are shown to have been made or shown in such map or field-book. It will thus be seen that if the limits of village Cheruiyan had increased by the land of village Indarpur on account of the action of river Sarju, the Collector would have taken action under the above section. But there is absolutely nothing on record to indicate that the Collector directed that the suit land be considered as part of village Cheruiyan. It means that the suit land continued to remain part of village Indarpur. In this aspect of the matter the Lekhpal of village Cheruiyan was wholly incompetent to make entries in respect of the land of village Indarpur. The appellants counsel referred to para 66 of the Land Records Manual to justify the action of the Lekhpal of village Cheruiyan. This paragraph lays down that on fresh land being added to the village by alluvion or otherwise, the series of the field numbers will be carried on and the new land recorded under new numbers and if the land was lost by diluvion an entry to that effect will be made in column No. 22 opposite the plots affected. This rule goes on the assumption that a fresh land was added to the village by alluvion. Then Lekhpal can record new numbers. But in the instant case there is no direction by the Collector that the fresh land had added to village Cheruiyan by alluvion. Therefore, the Lekhpal of village Cheruiyan had no right to record new numbers. The position that follows is that no reliance, can be placed on the entries made by the Lekhpal of village Cheruiyan. The Civil Judge has taken right view of the matter and. Therefore, the Lekhpal of village Cheruiyan had no right to record new numbers. The position that follows is that no reliance, can be placed on the entries made by the Lekhpal of village Cheruiyan. The Civil Judge has taken right view of the matter and. the trial court based its findings on entries which were made not in accordance with law. Therefore, the appellants cannot rely on the findings recorded by the trial court on the question of possession. 16. The above discussion leads to the necessary conclusion that the defendants were not in actual possession of the suit plots. The plaintiffs did not claim possession. They claimed possession if they were found out of possession. It was clearly alleged in the plaint that the defendants were threatening to interfere with the plaintiffs possession. The Civil Judge, clearly stated that - "I may mention that a mere threat for the taking of possession by a set of trespassers would be no adequate cause of action for the relief of possession. At best, it could motivate the filing of a suit for injunction which cannot possibly be barred by time." For what has been discussed above, the plaintiffs could not have brought an action under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. 17. In view of the findings arrived at above, it is not correct to say that' the Civil Courts had no jurisdiction to try the suits. 18. The learned counsel for the appellants then raised following contentions: (1) As the defendants were in actual possession of the plots since a long time the suits were barred by time. (2) The defendants had acquired rights of hereditary tenants under Section 180 (2) of the U. P. Tenancy Act. (3) As the land went under water, the rights of fixed rate tenants came to an end and the land escheated to the zamindars. (4) The defendants had become Adhivasis under the provisions of Land Reforms (Supplementary) Act. 19. The first two points are wholly without force in view of the finding of possession recorded above and the observation of this Court made in the earlier second appeals. 20. (4) The defendants had become Adhivasis under the provisions of Land Reforms (Supplementary) Act. 19. The first two points are wholly without force in view of the finding of possession recorded above and the observation of this Court made in the earlier second appeals. 20. There is no force in the third contention because the fixed rate tenants would be considered in constructive possession of the plots during the period of submersion and their rights would revive when the land is restored and the water of river Sarju receded. 21. The fourth contention is also without substance because the learned counsel for the appellants based his contention on the entries made by the Lekhpal of village Cheruiyan. It has been indicated above that the Lekhpal of village Cheruiyan was not competent to make any entry in the Khasra. Therefore, the defendants did not became Adhivasis under the provisions of (J. P. Land Reforms (Supplementary) Act and the finding of the Civil Judge on this point is well founded. 22. The learned counsel for the appellant did not raise any other point. 23. The result is that there is no merit in the first 9 appeals filed by the defendants. It may be added here that in pursuance of the decision of this Court in earlier second appeals the Assistant Records Officer has passed order on 13-10-1969 in favour of the plaintiffs. Thereafter there have taken place entries in the revenue records of village Indarpur in favour of the plaintiffs. Cross Objection in Second Appeal No. 3073 of 67, 24. Sahdeo Singh and other plaintiffs claimed injunction in respect of 7 plots. The Civil Judge has not accepted their case in respect of 3 plots i.e. 288/2, 319 and 320/2. 25. Plot No. 288/2 was entered in the name of Baldeo Singh in 1336 Fasli as well as 1359 Fasli. Its new numbers are 169 and 170. On these new numbers the names of Sahdeo Singh appellant is entered. Plot No. 319 was entered in the name of Janki Singh and Gaya Singh in 1307 Fasli. The names of these persons were also entered on plot No. 320/2. Then the names of Ram Bali and Raghunath were entered on plot No. 320/2 in 1334 F. In this case Raghunath and Ram Bali are plaintiffs. Plot No. 319 was entered in the name of Janki Singh and Gaya Singh in 1307 Fasli. The names of these persons were also entered on plot No. 320/2. Then the names of Ram Bali and Raghunath were entered on plot No. 320/2 in 1334 F. In this case Raghunath and Ram Bali are plaintiffs. Both these plots 319 and 320/2 are now included in new plot No. 326 upon which names of Ram Bali and Jai Narayan are entered. In view of these facts the plaintiffs should get a decree for injunction in respect of these three plots also. Second Appeal No. 3015 of 1967 26. In this case the plaintiffs claimed 8 plots i.e. 280/1, 290, 292, 293, 298, 305, 315 and 487. The new numbers of these plots are 159, 171, 182, 179, 178, 187, 223 and 241 Kha respectively. Out of these plots the name of Meera appellant is entered on plot Nos. 159, 171, 179, 178 and 305. His name is also entered along with Ragvindra on plot No. 241 Kha. Thus this suit is also liable to be decreed in respect of six plots. Second Appeal No. 3016 of 1967 27. In this case the Civil Judge has not accepted the plaintiff's case in respect of plot No. 299. The new numbers of this plot are 176, 189 and 190. On these new plots the name of Parmanand appellant is entered. Therefore, this suit is also liable to be decreed in respect of plot No. 299. Second Appeal No. 3017 of 1967. 28. In this case Lakhan Rai son of Ganpat Rai was the appellant. He has died. His son Chandraka has been substituted in his place. In revenue records the name of Ram Lakhan Rai was entered up to the year 1359 Fasli. The Civil Judge was of the opinion that Ram Lakhan Rai could be another person. There is affidavit of Chandraka in support of the substitution application in which he has shown his fathers name as Lakhan Rai as well as Ram Lakhan Rai. In this circumstance the suspicion of the Civil Judge stands removed. 29. The new numbers of disputed plots Nos. 316, 514 and 492 are 224Ka, 240 and 260 respectively. The name of Chandraka is entered thereon along with others. In view of the above this suit is also liable to be decreed. In this circumstance the suspicion of the Civil Judge stands removed. 29. The new numbers of disputed plots Nos. 316, 514 and 492 are 224Ka, 240 and 260 respectively. The name of Chandraka is entered thereon along with others. In view of the above this suit is also liable to be decreed. Second Appeal No. 3034 of 1967. 30. In this case the Civil Judge has not accepted the plaintiffs case in respect of 5 plots Nos. 469, 470, 760, 755 and 757. Their new numbers are 229, 273, 262, 263 and 264. On plot No. 229 Parmanand and others are recorded in recent record operations. In respect of other plots no Khasra has yet been filed. Thus the names of the appellants do not get linked with these plots. Therefore, this appeal cannot succeed. 31. After having admitted additional papers under Order 41, Rule 27, Civil P. C. it was not considered necessary to give opportunity to the defendants to give evidence in rebuttal because the defendants, being residents of village Cheruiyan, have no concern what- soever with the suit plots. 32. For the entire discussion on the material on record, the result is: Second Appeals Nos. 3073 of 1967, 3090 of 1967 3104 of 1967, 3103 of 1967, 431 of 1969, 1956 of 1970, 1302 of 1972, 2681 of 1971 and 852 of 1971 filed by the defendants are dismissed with costs. 33. Cross-objection in Second Appeal No. 3073 of 1967 is allowed and the plaintiffs suit No. 20 of 1953 for injunction in respect of plots Nos. 288/2, 319 and 320/2 will also stand decreed and the judgment and decree of the Civil Judge will stand modified to that extent. Parties shall bear their own costs incurred in this Court in cross objection. 34. Second Appeal No. 3015 of 1967 is partly allowed in this way that suit No. 78 of 1953 will stand decreed for injunction in respect of plots Nos. 280/1, 290, 293, 298, 305 and 487, and will stand dismissed in respect of plots Nos. 292 and 315. The judgment and decree of the Civil Judge will stand modified to that extent. Parties shall bear their own costs incurred in this Court. 35. Second Appeal No. 3016 of 1967 is allowed and Original Suit No. 15 of 1953 will stand decreed for injunction in respect of plot No. 299. 292 and 315. The judgment and decree of the Civil Judge will stand modified to that extent. Parties shall bear their own costs incurred in this Court. 35. Second Appeal No. 3016 of 1967 is allowed and Original Suit No. 15 of 1953 will stand decreed for injunction in respect of plot No. 299. The judgment and decree of the Civil Judge will stand modified to that extent. The appellants will get costs of this appeal from the contesting respondents concerned. 36. Second appeal No. 3017 of 1968 is allowed and Original Suit No. 13 of 1953 will stand decreed for injunction in respect of plots Nos. 31(6, 514 and 492. The plaintiff-appellant will get half of the costs incurred in all the courts from the respondent concerned. 37. Second Appeal No. 3034 of 1967 is dismissed with costs. 38. This judgment shall be kept on the record of Second Appeal No. 1302 of 1972.