Ram Lakhan v. Mahant Sewa Das — 1979 DIGILAW 891 (ALL)

JUDGMENT I.B. Singh, Member. - This is a defendant's second appeal against the judgment and decree dated 29.4.1974 of Ld. Additional Commissioner, Jhansi Division allowing the appeal regarding damages only and dismissing the appeal regarding other respects against judgment and decree dated 5.8.1971 passed by judicial Officer (B)/Asstt. Collector Ist Class Banda decreeing the suit field by Mahant Sewa Das u/s 209 of Act I of 1951 for ejectment of the appellant defendant from an area of 55 feet x 5.4 feet specified in the site plan towards north-east in plot no. 255. 2. The plaintiff claimed to be bhumidhar in possession of whole plot no. 255 area 18 biswas of village Kotra, Khambha, Pergana Mau, district Banda and alleged that on the disputed area shown by the letters A, B, C, D in that plot the defendants took forcible possession by constructing a wall in March 1966 i.e. 1373 fasli; hence the suit for ejectment and damages was filed. 3. The defendants had contested the suit on the ground that they had not constructed upon the land of the plaintiff that they had only constructed pucca will in place of the old mud wall of their Gaushala (cattle shed) which stood there since prior to the abolition of zamindari; that the suit was barred by Section 11 C.P.C.; that the land was not identifiable; that they have become sirdars of the disputed land. 4. The trial court had decreed the plaintiff's suit for ejectment of the defendants and for Rs. 100/- as damages. 5. I have heard the Ld. counsel for the parties at length and have perused the record. 6. It was argued that the suit is barred by res judicata in view of the Civil Suit No. 160 of 1966 of the plaintiff having been dismissed on 8.5.1968. It was replied that the suit was dismissed not on merits but on the plea of the defendant that the Civil Court had no jurisdiction, therefore, it is not barred by res judicata. This argument was given up by the Ld. counsel for the appellant and he rightly conceded that the suit was not barred by Section 11 of the C.P.C., hence it is held accordingly. 7. This argument was given up by the Ld. counsel for the appellant and he rightly conceded that the suit was not barred by Section 11 of the C.P.C., hence it is held accordingly. 7. The next point agitated vehemently had been that as the disputed land is covered by building, therefore, the main relief is for demolition and the relief for possession is only an ancillary relief, therefore, the revenue court has got no jurisdiction. Reliance was placed on Ram Avalamb v. Jata Shankar, 1968 R.D. 470 and Ram Shankar Prasad and another v. Sarabjeet and others, 1975 R.D. 38. In reply it has been argued that the defendant had taken the plea of jurisdiction in the Civil Court also in suit No. 160 of 1966 and his plea was upheld by judgment of the Civil Court dated 8.5.1968, therefore, he is estopped from taking that plea of jurisdiction again in the Revenue Court. Reliance has been placed on Hari Narain and others v. Ram Raj and others, 1969 R.D. 33(H.C.). It has been further argued that in view of Section 331 (1-A) of Act I of 1951 unless the defendant proves that there has been a consequent failure of justice which cannot be equated; with the error of the a finding recorded by the wrong forum, Reliance has been placed on Raj Bahadur Singh & others v. Smt. Gaura alias Ram Pyari, 1977 R.D. 165 Bashir Uddin & others v. Ch. Ram Swarup & others, 1978 R.D. 298 (H.C.) and A.I.R. 1978 N.O.C. No. 103, Allahabad reported at p. 50. 8. Lastly it was argued on behalf of the appellate that the judgment of the lower appellate court is not in accordance with the provisions of Order XLI, Rule 31 read with Order XX, Rule 5 of the C.P.C. and para 37 of the Revenue Court Manual. Because no appraisal of evidence and determination of points was at all done by the first appellate court and on this ground alone the judgment of the Ld. Additional Commissioner is liable to be set aside and also that evidence on record was not scrutinized. In reply it was argued that the judgment of the first appellate court was of affirmance and the first appellate court agreed with the view of trial court on evidence, therefore, there was on need to restate effect of evidence or reiterated reasons given by trial court. In reply it was argued that the judgment of the first appellate court was of affirmance and the first appellate court agreed with the view of trial court on evidence, therefore, there was on need to restate effect of evidence or reiterated reasons given by trial court. Expression of general agreement with reasons given by court the decision of which is under appeal would ordinarily suffice. Reliance has been placed on Girja Nandini Devi v. Brijendra Narain Chaudhari, A.I.R. 1967 S.C. 1124 and Baqui Hasan v. Pulu, 1976 R.D. (2) 288. 9. It is now well settled that a party cannot be allowed to take in-consisted positions regarding jurisdiction in court, if his plea of want of jurisdiction either in Revenue Court of Civil Court was accepted he cannot be permitted to take the plea of want of jurisdiction again in the other court and he will be estopped from taking that plea again. In this case the defendant-appellant is estopped from taking the plea of want of jurisdiction in the Revenue Court as his plea in this respect in the Civil Court was accepted. 10. It is well settled that jurisdiction has to be determined primarily according to the pleadings in the plaint. In this case the plaintiff has averred that a well was constructed by the defendant on his land. It is now well settled that if the primary relief is only for possession of agricultural land and the ancillary relief is also for demolition only Revenue Court has jurisdiction. In Rama Shankar Prasad and another v. Sarabjeet and others (supra) It has been held that if encroachment on agricultural land is only of the area of land covered by wall then primary relief will be only of demolition and the Civil Court will have the jurisdiction but if there is vacant land beyond the constructed wall and possession is claimed also of the vacant land then primary relief is for possession and ancillary relief is for demolition and in such cases only Revenue Court will have jurisdiction. In the present case cause of action was regarding construction of a well and beyond that will possession of vacant land was also claimed, therefore, only Revenue Court had jurisdiction. 11. According to amendment of Section 331(1-A) of Act I of 1951 the two conditions are to be fulfilled only then the objection regarding jurisdiction can be entertained. In the present case cause of action was regarding construction of a well and beyond that will possession of vacant land was also claimed, therefore, only Revenue Court had jurisdiction. 11. According to amendment of Section 331(1-A) of Act I of 1951 the two conditions are to be fulfilled only then the objection regarding jurisdiction can be entertained. It is true that the objection can be raised at any time but the Legislature has incorporated a specific provision regulating the manner in which an objection with regard to the jurisdiction can be raised and due to this Section 331(1-A) which reflects on the intention of the Legislature not to permit such objection except on the fulfilment of conditions laid down in this sub-section. Hence although in this case the first condition that objection regarding jurisdiction was taken at a first opportunity the second condition that there has been failure of justice on account of jurisdiction exercise has no been fulfilled, therefore, this plea is not justified. The purpose of this amended sub-section is not to allow the plea of want of jurisdiction unless it is shown that prejudice has been caused and there has been failure of justice in consequence of the trial in the wrong forum and it is not to be equated with the error in the finding recorded by the wrong forum. As no prejudice has been shown to have been caused in any way, therefore, this plea cannot be entertained and further more as mentioned according to the above mentioned facts only the Revenue Court has got the jurisdiction in the present case. 12. The judgment of the first appellate court is certainly not according to the provisions of Order XLI, Rule 31 and Order XX, Rule 5 of the C.P.C. and para 37 of the Revenue Court Manual which required the first appellate court to mention in its judgments the point for determination; the decision therefore, the reasons for decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The judgment should contain findings on each point separately after considering the view of the lower court; arguments of the counsel before appellate court; the evidence on record. The judgment should contain findings on each point separately after considering the view of the lower court; arguments of the counsel before appellate court; the evidence on record. In the present case the lower appellate court after narrating the case of the parties upheld the judgment of the trial court in the following words:- "No new point or new ground of attack on the judgment has been taken before me. All these points which have been argued before me had already been taken in the lower court which has discussed them in its judgment in detail. I agree with the findings arrived at any the Id. lower court." As a matter of fact this is bald statement to agree with the findings arrived at by the Id. lower court. The duty case upon the first appellate court in writing judgment which is the last court for deciding facts in very great which should be discharged in a judicious manner as provided in the provisions of the C.P.C. and the Revenue record Manual as mentioned above. Even in cases of affirmance, the first appellate court will be failing in its duty of writing a proper judgment by stating only baldly, to accord with the findings arrived at by the trial court. This does not amount even to expression of general agreement with the reasons given by the court decision of which was under appeal. The judgment of the first appellate court at least must show specifically that it had really applied its mind to the points raised and had appraised the appraisal of evidence by the trial court. In the present case the first appellate court does not appear to have even generally approved of the reasons adduced by the trial court. Even by generally approving of the the reasons of the trial court there must be a discussion about it. The first appellate court need not consider all evidence and reiterate the entire evidence, but at least there must be general discussion of the reappraisal of evidence by it, where it is only a bald statement of the first appellate court having agreed with the findings of the trial court it cannot be said that it had applied its mind and had generally approved reasons adduced by the trial court in support of its conclusions. Such bald statement does not amount to expression given by agreement with the reasons given by the court's decision of which was under appeal. Such bald statements lead to know other conclusion than that the lower appellate court did not consider the evidence at all. In these circumstances in my considered opinion such judgments do not fulfil the requirements of law and cannot be upheld. 13. In view of the above, appeal is allowed the judgment and decree of the first appellate court are hereby set aside and the first appeal is remanded to the first appellate court for fresh decision after hearing the parties and to write the judgment in conformity with the provisions of law mentioned above. The parties shall appear in the court of Consolidation Jhansi Division on 27th September, 1979 as at present the post of Additional Commissioner Jhansi Division is in abeyance. If the post of Additional Commissioner is filed the Id. Commissioner can transfer the appeal for disposal.