Bisesar Misir v. Bal Bachan — 1979 DIGILAW 558 (ALL)

JUDGMENT G.S. Sial, Member. - This is a plaintiff's second appeal under section 60/180 of the U.P. Tenancy Act. 2. The plaintiff's case was that he and the husband of the defendant first set Nand Kishore were the joint Sir holders of the plot along with other plots is that the husband of the defendant no. 1 sold away some minijumla area of certain sir plots in favour of the defendants, but no ex-proprietary rights were claimed or carved out in favour of defendant first set i.e. vendors. Therefore, the plaintiff being joint sir holders become sole sir holders of the area of the plots in dispute and are in possession as such; The defence of the defendant second set was that they are the sole sir holders of he plot in dispute and that the plaintiff has no concern. The trial court decreed the suit. The learned Additional Commissioner reversed the orders of the trial court and hence the appeal by the plaintiff. 3. The facts of the case in brief are that the Zamindari in this area was abolished in 1974 i.e. 1381 F. The findings of the trial court are that the Lekhpal had wrongly carved out a new khata in the khatauni of 1369 F in favour of the defendant second set and that the defendant second set are not the tenure-holders and the plaintiff is the sole sir holder and is in possession, and that the defendant second set were recorded in the papers without any orders the khatauni of 1369F, and that defendants are not in possession, and that the land in identifiable. The findings of the lower appellate court are that there appears to be a private partition between the plaintiff and the defendant first set and that defendant second set was in possession of the share of the defendant first set and allowed the appeal for plots of Schedule D. 4. The first sale deed shows that an area of 1.96 acres out of 8 minjumla plots were purchased by the defendant second set and the second sale deed shows that an area of 1.30 acres out of 4 minjumla plot was sold. Thus under the two sale deeds, the area sold came to 3.26 acres, consisting of minjumla plots, some of which were sole entirely and others only partly. Thus under the two sale deeds, the area sold came to 3.26 acres, consisting of minjumla plots, some of which were sole entirely and others only partly. In the khatauni of 1369F a new holding has been carved out in the name of defendant second set, of the minjumla numbers as given in the sale deed, against which there is an endorsement with red ink saying that the entry appears to be Mashkook or doubtful. In the khasra of 1371F the names of the plaintiff and defendant first set are recorded but there is no mention of the names of the defendant second set. In the khatauni of 1374F the name of the defendant second set is recorded as sir Malikan. 5. The learned counsel for the appellate stated that according to the U.P. Tenancy Act in a joint sir if one of the sir holders sells always his share but does not claim ex-proprietary rights than the remaining sir holders become sir holder vide R.D. 1963 page 110, R.D. 1942 page 99 and R.D. page 30. The ruling says that when one of the joint sir holders transferred his rights the holding became sir of the remaining sir holders, if ex-proprietary tenancy is carved out after the sir rights have been sole then he cannot transfer the land according to section 27 of the U.P. Tenancy Act for a period of six months. 6. The learned counsel referred to para 11 of the written statement of the defendant second set wherein the defendant has claimed that the suit was not maintainable in revenue courts as the parties were claiming proprietary rights. Issue no. 3 was framed and the trial court held that the revenue court has jurisdiction to decide the case. In appeal defendant again raised this point in paragraph 11 of the grounds of appeal. On 3.3.75 an amendment application was moved to the effect that this ground may be deleted. The amendment was allowed on 7.3.75. The learned counsel referred to section 265(3) of the U.P. Tenancy Act which read was follows:- "An appeal shall lie to the District Judge from the decree of an Assistant Collector Ist Class or of Collector in all suits in which the question of jurisdiction has been decided and is in issue in appeal". Thus when the appeal was filed the Commissioner had no jurisdiction to entertain the appeal. Thus when the appeal was filed the Commissioner had no jurisdiction to entertain the appeal. Likewise he had no jurisdiction to allow any amendment application. This order has been challenged in revision and is pending before the Board of decision. The learned Commissioner thereafter proceeded to decide the appeal itself which also was beyond his jurisdiction. The question of jurisdiction can also be taken in the appeal and being of vital importance has to be decided by this court. 7. The learned counsel for the respondent supported his contention with two rulings namely R.D. 1944 page 449 and 1943 Allahabad page 210 headnote (c). The learned counsel stated that once the question of jurisdiction has been decided by the trial court and is taken as an issue in appeal then at that very time the jurisdiction of the Commissioner would cease and the appeal would lie to the District Judge. Subsequent withdrawal was not permissible before the learned Additional Commissioner and therefore he has no jurisdiction to deiced the case. The word 'lie' is equivalent to entertain-able or admissible. 8. As regards the merits of the case the learned counsel stated that questions pertaining to sir could be decided only by a suit for partition in the civil court. A suit on 311 of 1952 was filed by the defendant first set for partitioning the sir land but the suit was never proceeded with. There is no effective partition decree. Hence the findings of the trial court on the point of partition are corrects and should be upheld. The learned counsel also pointed out that the observation of the learned Additional Commissioner that the land in dispute was defendant's khudkasht was wrong. In the written statement or the statement before the court they had never claimed the land to be khudkasht. The learned counsel also stated that the observation of the Additional Commissioner that the Lagan had not been paid and therefore the plaintiffs were not in possession, has no basis. Under the law a sir holder is not bound or entitled to pay Large. 9. The learned counsel for the respondent in reply admitted that the plots in dispute pertained to Schedule B in this case i.e. the area covered by the two sale deeds. Under the law a sir holder is not bound or entitled to pay Large. 9. The learned counsel for the respondent in reply admitted that the plots in dispute pertained to Schedule B in this case i.e. the area covered by the two sale deeds. The plots in Schedule A were not taken up in the second appeal before the Board hence that decision is final and is not in issue before the Board. The learned counsel stated that a reading of the plait will clearly show that the plaintiffs did not claim ex-proprietary rights and nor were ex-proprietary rights carved out in favour of the defendant first set. The learned counsel stated that the plain fact of the matter is that there are certain minjumla plots held in the name of the plaintiff and defendant first set and that the defendant first set sold away minjumla plots mentioned in Schedule B with an area of 3.26 acres defendants second set. The three points to be decided are firstly what are the legal consequence of the sale i.e. whether the same of minjumla plots in favour of the vendors creates any rights in their favour and the second points is whether there was a private partition between Nand Kishore and defendant first set, the third points is the question of jurisdiction. The learned counsel in respect of the third point stated that there was no force in this contention at all. The learned counsel stated that observations of the trial court in respect of issue no. 13 is no decision in respect of jurisdiction and therefore the issue of jurisdiction and not been really decided by the trial courts. The question posed in the written statement was " ;g fd nkok oknh ftl rkSj ij rgjhj gS rlyhe ugh gS vkSj nknjlh ls budkj gSA" The learned counsel contended that when the plaint case clearly makes out that it was a case falling under Schedule B in respect of which an appeal lies only to the Commissioner and not to the Civil Court, then in that case the appeal can be properly filed before the Commissioner alone and he had the jurisdiction to decide the case. The learned counsel claimed that the plaint makes out a case under section 60/180 of the U.P. Tenancy Act which are triable by an Assistant Collector Ist Class and against which an appeal lies to the Commissioner, according to Schedule B, group (b) item no. 4, 6 and 80, and therefore there is no other forum to take up the appeal. There is every likelihood in the case that if the same problem is posed before the District Judge, he will throw it out saying that the appeal lay before the Commissioner. The learned counsel referred to decision in the case of Ewaz Singh v. Umari Singh, 1919 (17) A.L.J. page 189. He also referred to I.L.R. 40 Allahabad page 177 in which the same view has been taken by the Division Bench. The learned counsel submitted that in view of these two decisions the appeal lay only to the Additional Commissioner and not at all to the District Judge and therefore the appeal has been correctly decided by the Additional Commissioner. The plea of jurisdiction in the written statement was raised in a foolish manner and it should be deemed as if no such plea was raisable. Both these are Division Bench rulings. The ruling quoted by the learned counsel for the opposite party pertain to sections 286(4) and not in respect of section 265(3) secondly the learned counsel submitted in this behalf that if the plea of jurisdiction absurdly or foolishly taken in the appeal, but an appeal did in fact lie to the Additional Commissioner in that case the question of jurisdiction would really not be in issue. The learned counsel further submitted that a point can be only said to be in issue when the adjudication of the court is sought then the point is no longer in issue. If even in this case, a compromise had been entered into or there was a default in attendance, the appeal would have been dismissed then in that case the question of jurisdiction could not be decided at all of raised subsequently. The learned counsel also referred to section 286(1)(2) and stated that only bonafide questions of proprietary right will oust the jurisdiction of the Revenue court but not a mere plea which is clearly entertainable by the Revenue Courts. 10. The learned counsel also referred to section 286(1)(2) and stated that only bonafide questions of proprietary right will oust the jurisdiction of the Revenue court but not a mere plea which is clearly entertainable by the Revenue Courts. 10. Answering the first question namely the legal rights of the parties, in this case the only question is what will be the effect of transfer by Nand Kishore of plot of schedule B to the vendees having made no claim of ex-proprietary rights. It is admitted that ex-proprietary. It is admitted that ex-proprietary rights arise because of the operation of law when a sale is made. The rulings on the point clearly make out that such rights arise immediately after sale. The question is what happens when such ex-proprietary rights are not claimed within the period of limitation. All the rulings quoted are of the Board of Revenue. The High Court has clearly taken the view of that if ex-proprietary rights are not claimed, then the rights get passed on to the remaining co-shares by survivorship. He referred to the Full Bench decision of the High Court in 1952 Allahabad page 251. The Hon'ble High Court have held that as soon as the sale is made the sir holder will become ex-proprietary tenant and the rights will not pass on to the remaining co-shares. in a case where an ex-proprietary does not cultivate the land and lets the cultivation done by the vendees they would become the sir holder. In this behalf he quoted 1971 A.W.R. page 5. In this case the Commissioner has come to the finding that Nand Kishore after transferring his sir rights also transferred ex-proprietary tenancy rights to the vendees. This finding of fact has been arrived at upon the oral evidence of the respondent. Since the learned Additional Commissioner has given the finding of fact the appeal has no force. 11. I have considered the arguments recorded above and gone through the record of the case. The point for decision is what happens as a sequel to the transfer by a co-sharer of Sir plots who does not claim ex-proprietary rights therein. Since the learned Additional Commissioner has given the finding of fact the appeal has no force. 11. I have considered the arguments recorded above and gone through the record of the case. The point for decision is what happens as a sequel to the transfer by a co-sharer of Sir plots who does not claim ex-proprietary rights therein. The law has been laid down in clear terms in 1971 A.W.R. page 7 as follows:- "The law on the point is that when a co-shares of sir plots transfers his proprietary right there is an automatic accrual of ex-proprietary tenancy in favour of the transferor qua his share. The Dy. Director has followed the view of the Board of Revenue wherein it has been held that on such a transfer the sir becomes the sir of the remaining co-shares, but his view has not been accepted by this court vide Jokhu Lal v. Gopi Mal, (1952 A.W.R. 18 (F.B.)). The view of this court is that on the transfer by a co-sharer the sir of such sharer becomes his ex-proprietary tenancy and if within time he does not claim ex-proprietary tenancy and the transferee enters into possession the land ceased to be sir qua the share of the transferor and becomes Khalsa land and if the transferee continues in possession over the share of the transferor he becomes the khudkasht holder qua the share of the transferor. This is the legal correct position which the Dy. Director has ignored." The facts of this case are on all fours with the facts with reference to which the above ruling has been given by the Hon'ble High Court. Under the circumstances there is no option but to declare that when the transferees entered into possession the land in dispute ceased to be sir qua the share of the transferor and the transferee became the khudkhasht holders qua the share of the transferor. This is also the view taken by the learned Additional Commissioner and it is correct and calls for no interference by this court. The rulings cited by the learned counsel for the appellant in this behalf are not applicable and are bad law. 12. This is also the view taken by the learned Additional Commissioner and it is correct and calls for no interference by this court. The rulings cited by the learned counsel for the appellant in this behalf are not applicable and are bad law. 12. The next point to be examined in this case is whether in view of section 265(3) of the U.P. Tenancy Act the orders of the lower appellate court deserve to be set aside and the case be remanded with the direction that the appeal lies before the District Judge. It is true that the question of jurisdiction was raised in the trial court and it was decided by the trial court in the following words: "As the plaintiffs have sought declaration under section 60/180 of the U.P.T. Act the suit is cognizable by the court. So this issue is decided in affirmative." 13. A perusal of Schedule 4 of the U.P. Tenancy Act clearly shows that a suit under section 60 is triable by an Assistant Collector Ist Class, and appeal will lie to the Commissioner. Similar is the position in respect of a suit under section 180 of the U.P. Tenancy Act. Thus according to the case made out in the plaint, clearly the jurisdiction to hear the appeal was that of the Commissioner and not of the District Judge. According to section 265 only in respect of cases failing in group A of the 4th Schedule, an appeal lies to the District Judge from the decree of an Assistant Collector I Class. The case under appeal does not fall under group A of the 4th Schedule. Therefore it is not understandable how the jurisdiction of the Additional Commissioner is being sought to he ousted. The main ground taken by the learned counsel for the appellant is that when the question of jurisdiction has been taken as an issue under appeal then, from very moment, the jurisdiction of the Commissioner would cease and the appeal will lie to the District Judge. The mistake was realised by the appellants before the Additional Commissioner and they immediately moved an application seeking permission to withdraw the point questioning the jurisdiction and this application was allowed by the Additional Commissioner. The learned counsel's argument is that this withdrawal was not permissible as the issue had been raised at the time of filing of the appeal. The mistake was realised by the appellants before the Additional Commissioner and they immediately moved an application seeking permission to withdraw the point questioning the jurisdiction and this application was allowed by the Additional Commissioner. The learned counsel's argument is that this withdrawal was not permissible as the issue had been raised at the time of filing of the appeal. I am not able to appreciate the point made by the learned counsel. In case they had any serious objection they should have raised the point before the Additional Commissioner at the time when he allowed the amendment to the grounds of appeal. This was not done. The appeal was argued out and when the decision went against them they have sought to raise objection before this court. Even if I were to accept their point of view, for the sake of argument, then an appeal would be filed before the district judge who will not be entitled to proceed with the case because the case pertains to Schedule B and not in respect of Schedule A. In fact, in my opinion, there is no other forum to hear the appeal. Therefore I am of the view that an appeal in this case lay only to the Additional Commissioner and not at all to the District Judge and therefore, the Additional Commissioner has correctly allowed the amendment to the grounds of appeal and also correctly decided the appeal. The fact of the matter is that the question of jurisdiction was not at all in issue even before the trial court and there is nothing wrong with the decision of the trial court. In fact no adjudication was at all necessary. Had the plea of proprietary rights being raised, the revenue court was bound to frame an issue on the question of proprietary rights and submit it to the Civil Court for the decision of that issue only vide section 286 of the U.P. Tenancy Act. Even to the section a rider had been added in explanation I saying that a plea of proprietary rights which is clearly untenable and intended solely to oust the jurisdiction of the revenue courts shall not be deemed to raise a question of proprietary rights. In this case no plea of proprietary rights was raised. Otherwise the trial court was bound to frame an issue and submit it to the Civil Court. In this case no plea of proprietary rights was raised. Otherwise the trial court was bound to frame an issue and submit it to the Civil Court. Thus I am of the view that by merely raising the question of jurisdiction and then withdrawing it before the appeal is decided will not oust the jurisdiction of the Revenue Court. The Additional Commissioner in any case had to apply his mind whether the facts of the case made it out that the case fell within the ambit of section 265(3) and then decide whether he was competent to hear the appeal. He could not throw-out the appeal as soon as it was filed before him without examining the question. That is certainly not the intention of law. Therefore I do not find any force in this contention of the learned counsel for the appellant and the ruling cited by him are not applicable to the facts of the case. Accordingly I find that the orders of the Additional Commissioner are sound and no interference in second appeal is warranted. 14. In the result, the second appeal stands dismissed with costs and counsel's fees Rs. 50/-. This order will govern in Revision No. 20(c) of 74-75 Ballia also.