Duiji v. Deputy Director of Consolidation, Deoria — 1980 DIGILAW 1080 (ALL)

ORDER R.S. Singh, J. - This writ petition is directed against the order of the Dy. Director of Consolidation dated 31st May 1979, dismissing the revision of the petitioners. 2. The facts of the case in brief are that on khata No. 93, in the basic vear khatanui, the names of the petitioners and the contesting opposite party, IInd set (hereinafter referred to as respondents) were recorded as co-tenure holders. An objection u/s. 94 (2) U.P. Consolidation of Holdings Act was filed on behalf of the respondents claiming to be sole tenure-holders and for the expunction of the names of the petitioners on the ground that in suit No. 116 of 1953 u/s. 59/61 U.P. Tenancy Act (hereinafter referred to as Act 1) which was filed on 10-7-1953 in the Revenue Court, on behalf of the petitioners against the respondents, the suit was dismissed on 23-10-1974 and the respondents were declared to be sole-tenure-holders. In pursuance of this order. In a proceeding u/s 33/39 U.P. Land Revenue Act, the order of expunction of the names of this petitioners was passed by the Revenue Court and this order was affirmed by the Board of Revenue by its order dated 24-12-1966. An objection was also filed by the petitioners claiming to be co-tenure-holders on the ground that the land in dispute was ancestral and further that the decree dated 30-10-1954 was without jurisdiction as the Revenue Court had no jurisdiction to entertain a suit u/s. 59/61 of Act 1. The petitioners claimed themselves to be the co-tenure-holders along with the respondents on the basis of entries and possession as well. Both the parties adduced oral and documentary evidence in support of their respective claim. The Consolidation Officer accepted the objection of the respondents and declared them to be the sole tenure-holders and he ordered for the expunction of the names of the petitioners. The order of the Consolidation Officer was affirmed in appeal and also in revision by the Settlement Officer (Consolidation) and the Dy. Director of Consolidation respectively. The petitioners have challenged the orders of the consolidation authorities in the present writ petition before this court. 3. The learned counsel for the petitioners contended that the decree dated 23-7-1954 passed in a suit u/s. 59/61 Act 1 is without jurisdiction and has got no effect on the title of the petitioners. Director of Consolidation respectively. The petitioners have challenged the orders of the consolidation authorities in the present writ petition before this court. 3. The learned counsel for the petitioners contended that the decree dated 23-7-1954 passed in a suit u/s. 59/61 Act 1 is without jurisdiction and has got no effect on the title of the petitioners. In support of his contention he placed reliance on decisions in this case. It was further contended that the petitioner's names have been recorded for more than 12 years in the revenue papers. They have been paying rent and they are in possession and therefore, they are co-tenure-holders on the basis of estoppel and acquiescence. But the Dy. Director of Consolidation has failed to consider the oral and documentary evidence of the petitioners adduced on this point. 4. It has been contended by the learned counsel for the respondents that the decree dated 23-10-1956 passed u/s. 59/61 of the Act 1 was binding on the petitioners as it was filed on behalf of them and that decree was not subsequently challenged by them. Therefore, the petitioners have got no concern and the respondents are in possession as bhumidhars. 5. One of the questions for consideration is this case is whether the decree passed by the Revenue Court in a suit u/s. 59/61 of Act 1 for declaration of tenancy rights after the vesting of U.P.Z.A. & L.R. Act (hereinafter referred to as Act 2) is valid ? The next question is that even if the aforesaid decree is without jurisdiction, it is binding on the petitioners as the suit was filed by themselves and the decree was not subsequently challenged by them ? 6. In Radhey v. Koka Ram, (1956 Rev Dec 157) (FB), the Board of Revenue has taken the view that the suit filed under Section 59/60 of Act 1 after the date of vesting in a case where cause of action has accrued before the date of vesting, the suit is maintainable in the Revenue Court. In Gopi v. Moti Chand (1965 Rev Dec 3), the Board of Revenue has taken the view that the decree passed by the Revenue Court in a suit under Section 59/61 of Act 1 is binding on the plaintiff as he himself invoked the jurisdiction of the Court and subsequently did not challenge the decree. In Gopi v. Moti Chand (1965 Rev Dec 3), the Board of Revenue has taken the view that the decree passed by the Revenue Court in a suit under Section 59/61 of Act 1 is binding on the plaintiff as he himself invoked the jurisdiction of the Court and subsequently did not challenge the decree. In Kali Charan v. Joint Director of Consolidation (1968 Rev Dec 118): (1967 All LJ 1026), the single Judge of the Court has held that the suit filed in 1981 the Revenue Court under Section 59/180 Act 1 on 3-10-1951 is maintainable even after passing of the Act 2. In Lal Das v. Board of Revenue (1972 Rev Dec. 280): (1972 All LJ 98), it has been held that the decree passed after vesting of the Act 2 in a suit filed in May 1951 under Section 59 Act 1 based on compromise, is valid. Bujharat v. Dy. Director of Consolidation (1974 Unreported Revenue Case 350) is also to the same effect. 7. In Shital Prasad v. Board of Revenue, (1962 Rev Dec 132): (1962 All LJ 90), it has been held by the Division Bench of this court that the suit filed under Section 59 of Act 1 in the Revenue Court after the date of vesting is not maintainable as the tenancy right has also been converted into the sirdari right for which declaration can be granted under Section 229B of Act 2. In Shivji Singh v. Director of Consolidation (1973 Rev Dec 247) and in Bhurey v. Pir Bux, (1973 All LJ 312) it has been held that the suit for declaration of tenancy right under Section 59 is not maintainable in the Revenue Court after the date of vesting. Therefore, the compromise entered into could be void and valueless. It has been further held that the parties cannot confer any jurisdiction on the Court and there is no estoppel against the statute. 8. Therefore, the compromise entered into could be void and valueless. It has been further held that the parties cannot confer any jurisdiction on the Court and there is no estoppel against the statute. 8. From the discussion of the aforesaid decision, I am of the view that any suit filed after the vesting of Act 2 for declaration of tenancy right under Section 59/61 Act 1 in the Revenue Court was not maintainable even if it was based on cause of action which had accrued prior to enforcement of Act 2 as on the date of the institution of the suit, the tenancy right had converted into sirdari right or bhumidhari right under the provisions of Act 2. 9. In the instant case, there is no averment that Suit No. 116 of 1953 filed on 10-7-1953 was based on old cause of action. In any view of the case, when the suit was filed, tenancy right had already been converted into bhumidhari or sirdari right under the provisions of Act 2. Therefore, decree passed on 23-10-1954 was without jurisdiction. 10. Coming to the next question; whether the decree is binding on the petitioners even if it is without jurisdiction in case if it was not subsequently challenged by them. There are various decisions on this point wherein it has been held that it is well-settled that parties cannot by consent confer Jurisdiction upon a Court. Existence of jurisdiction is not a matter dependent upon the assent of the parties. If the Revenue Court had no jurisdiction to hear a suit for declaration of tenancy right after the date of vesting and when a court lacks jurisdiction, it is a forum-non-judice and its judgment and decree is a nullity. 11. In view of the aforesaid discussion, I held that the view taken by the consolidation authorities is erroneous in law. The consolidation authorities have also committed an error in not considering the case of the petitioners regarding their title on the basis of estoppel and acquiescence. According to the learned counsel for the petitioners, a large number of documentary evidence proving continuous possession of the petitioners, the payment of rent and the oral evidence have not been considered by the Consolidation Authorities. According to the learned counsel for the petitioners, a large number of documentary evidence proving continuous possession of the petitioners, the payment of rent and the oral evidence have not been considered by the Consolidation Authorities. From the judgments of the consolidation authorities, it appears that the case of the petitioners based on estoppel and acquiescence and adverse possession has been totally ignored by the consolidation authorities. There is no discussion of the oral and documentary evidence adduced by the parties on that point. Therefore, in this view of the matter also the order of the Consolidation Authorities are not liable to be sustained but the end of justice will be met if the case is only sent back to the Dy. Director of Consolidation, which is the court of fact as well as law. 12. In the result, I allow this writ petition, quash the order of the Dy. Director of Consolidation dated 31st May 1979 and direct him to decide the case afresh according to law and in the light of the observations made above. However in the circumstances of the case, the parties shall bear their own costs.