State of Uttar Pradesh v. Salamullah — 1981 DIGILAW 751 (ALL)

JUDGMENT R.S. Verma, Member. - Sri K.C. Sexena, learned Additional Commissioner, Allahabad, on 31.1.1975, made recommendation to this Board that the revision, filed by the U.P. State and the Gaon Sabha, against the order dated 7.5.1975 passed by the Tahsildar-cum-Assistant Collector or Ist Class, Chali, Allahabad in a case under Rule 115-C of the U.P.Z.A. & L.R. Rules, be allowed and the order of the trial court discharging the notice in Form 49-Ka, Z.A. Rules, be set aside and the order of the ejectment of Salamullah and Mahboobulla from Gaon Sabha plot no. 234 be passed. 2. The learned Additional Commissioner held that the order of the trial court suffered from illegality and perversity. He had not mentioned as to how the order of the trial court was perverse. In such a case, the revisional power of this court cannot be exercised. At this stage, I may mention that the memo of revision itself did not disclose the existence of circumstances which necessitated revisional interference. 3. There is an impression prevailing that the revisionist court can interfere whenever it finds that the order of the trial court is wrong or incorrect. This is not the correct legal position. For the revision to succeed there must be an error relating to jurisdiction committed by the lower court(a) either by way of assumption of jurisdiction which it does not have, or (b) failure to exercise a jurisdiction which it has or(c) by exercising its illegality or with material irregularity. The reivisional court must keep in mind three question- (i) Whether the lower court had exercised as jurisdiction not vested in it by law ? or 2. Whether the lower court had failed to exercise a jurisdiction vested in it by law ? 3. Whether the lower court had acted, in the exercise of its jurisdiction illegally or with material irregularity ? If the answer to any of these three question is in the affirmative, the revisional court gets power to interfere, otherwise not. 4. When a court has no legal authority to enter upon an enquiry in question at all, but inspite of the proceeds to do so under an erroneous construction of the law or a misapprehension of facts, it exercises a jurisdiction not vested in law. In the case before me there is no such allegation. 5. 4. When a court has no legal authority to enter upon an enquiry in question at all, but inspite of the proceeds to do so under an erroneous construction of the law or a misapprehension of facts, it exercises a jurisdiction not vested in law. In the case before me there is no such allegation. 5. When a court has jurisdiction to enter upon the enquiry in question, but erroneously thinks under a misapprehension of law or facts, that it has no such jurisdiction and so declines to exercise that jurisdiction there is a failure to exercise the jurisdiction vested in it. In the case before me no such allegation has been made. 6. The third eventuality in which the revisional court can intervene is when the lower court has "acted in the exercise of its jurisdiction illegally or with material irregularities. This clause (c) of Section 115 (1) C.P.C. is most misunderstood, and consequently, most misused clause by which the revisional courts interfere with the orders of the lower courts. They law on the the point has been settled by the highest court of this land and yet, due to ignorance or somethings due to the zeal for correcting wrong orders, the revisional courts forget their own limited power given by section 333 of the U.P.Z.A. & L.R. Act or section 115 C.P.C. 7. In Amir Hassan Khan v. Sheo Bux Singh, 11 Indian Appeal, 237 P.C. the party Council observes as follows:- "The question then is did the judges of the lower courts in this case, in the exercise of their jurisdiction act illegally or with material irregularity.......whether they decide it rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity". 8. When the law has prescribed the manner in which a jurisdiction has to be exercised, and the court acts in violation of the provision, it can be said that the court acted illegally or irregularly in the exercise of its jurisdiction. But if the court exercises its jurisdiction according to the provisions of law but arrives at an erroneous decision on question of law or of fact, it cannot be held that the court acted illegally or with material irregularity. But if the court exercises its jurisdiction according to the provisions of law but arrives at an erroneous decision on question of law or of fact, it cannot be held that the court acted illegally or with material irregularity. The word acted in clause (c) of section 115, C.P.C. gives a clue to the correct interpretation of this clause. Where the court having jurisdiction, violates a rule or law or of procedure prescribing the mode in which a jurisdiction has to be exercised, then alone it would be said that it acted illegally or with material irregularity. 9. The Hon'ble Supreme Court in A.I.R. 1953 S.C. 23, and also in A.I.R. 1971 S.C. 2324, discussed this point. In the latter case (A.I.R. S.C. 2324) it held as follows:- "The words illegality and with material irregularity as used in this clause do not cover either errors of fact or of law, they do not refer to the decision arrive at but merely to the manner in which it was reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law, after the prescribed formalities have been complied with". 10. If there is an illegality in the exercise of the jurisdiction the order of courts become void, and the revisional court will interfere without further reasoning. But when there is an irregularity in the exercise of jurisdiction such irregularity must be shown to be a material one, i.e. one which would have affected the decision of the case on merits. The 'illegality' or the 'material irregularity must be in the procedure adopted by the court but no of either law or fact. Where the law expressly prohibits a thing to be done, a violation of such a provision amounts to an illegality. In A.I.R. 1949, P.C. 156, the Privy Council construed the word 'acted illegality' to mean acting in breach of some provision of law and the words acting with material irregularity to mean committing some error of procedure which is material so as to affect the ultimate decision. In A.I.R. 1968 S.C. 1355 the Hon'ble Supreme Court approved this construction..... 11. Now, the facts of this case may be narrated briefly. The objector no. In A.I.R. 1968 S.C. 1355 the Hon'ble Supreme Court approved this construction..... 11. Now, the facts of this case may be narrated briefly. The objector no. 1 Salamullah is Pradhan of the Gaon Sabha and was a former Zamindar of the dispute plot. The objector no. 2 Mehboob ul-ullah is a kurk-amin and is the real brother of Salamullah. The Lekhpal made a report against these two alleging that they have wrongfully trespassed upon Gaon Sabha land namely, plot no. 234 and 742. The two objectors filed an objection. They did not claim any right in the plot no. 742, but claimed sirdari rights in plot no. 234 on the ground that they were in possession of that plot from before the date of vesting. Apart from the witnesses, examined by the objectors, the Lekhpal himself stated on oath that the objectors were in possession of the land from before also filed copies of khasra extracts 1349F, 1351F, 1354F and 1355F, in which they were recorded as occupants over plot no. 1104/2 which was the old number of plot no. 234. In the back drop of such oral and documentary evidence, the learned trial court held that it appeared that a bona fide question of title' was involved in the case and therefore, it according to old section 122-B(2) U.P.Z.A. & L.R. Act, as it stood at that time, did not proceed with the enactment of the objector, and discharged the notice given in Form 49-Ka. 12. The learned trial court had jurisdiction to try the case and had also the authority to discharge the notice. The trial court, therefore, did not act illegally or with material irregularity. The order of the trial court may be wrong or incorrect but that can not be a ground for interference, unless the conditions laid down in clause (a) (b) and (c) of section 115 C.P.C. are fulfilled the revisional court will not have the power to reveres the order of the trial court. The learned Additional Commissioner has not said that the trial court either (a) exercised a jurisdiction not vested in it or (b) failed to exercise a jurisdiction so vested or (c) acted illegality or with material irregularity in the exercise of its jurisdiction. The learned Additional Commissioner has held that the order of the trial court is illegal but that is quite another thing. The learned Additional Commissioner has held that the order of the trial court is illegal but that is quite another thing. The arriving at a conclusion or decision is only a mental operation and the court can not be said, in such a case, to be act in in so coming to a conclusion on a question of law or fact. I do not agree the order of the trial court is illegal. The court had power to draw a certain inference from the facts. The inference drawn may be wrong, but not illegal. 13. The learned Additional Commissioner's finding was that the dispute regarding title was not bona fide because(a) the objectors were recorded as trespassers only since 1369. Fasli and on that basis they could never be declared sirdars and (ii) that there was consolidation proceeding in the village but the objectors did not put forward any claim regarding the said land. I am in full agreement with the finding of the learned Additional Commissioner; but even then this revisional court will not have power to reverse the order of the trial court. The reason is that, as I have discussed above, the order may be wrong but the procedure adopted by the trial court not defective and hence it cannot be said that the trial court acted in the exercise of its jurisdiction illegally or with material irregularity. 14. The learned Additional Commissioner observed that the order of the trial court was perverse. He has not elaborated on this point. The order of the learned trial court can not be termed as perverse, more so, because two learned judges of the Allahabad High Court also held the same view. Sri K.P. Singh, Judge, held in 1980 A.W.C. 583 that Revenue Court are not to entertain proceeding under Section 122-B irrespective of the fact whether tenureholder's claim of tenancy rights may not be sustainable in view of consolidation proceedings or bar of section 49, U.P.C.H. Act Shri. A N.Verma, judge in 1981 Revenue Judgment, 220, relying on the ruling given by Shri K.P. Singh (Supra) came to the same conclusion. Here, I may make my own observation that the existence of bonafide dispute of the title is always a question of fact and the trial court is free to come to its own conclusion on the facts of each particular case. Here, I may make my own observation that the existence of bonafide dispute of the title is always a question of fact and the trial court is free to come to its own conclusion on the facts of each particular case. In the instant case, as well as in the cases covered by the rulings of the High Court referred to in this paragraph the courts below had given a finding that there was a bonafide dispute about title and yet the revisional courts disregarding the findings of the lower courts. It must be emphasized once again that the revisional courts can not interfere if the order of the lower court is incorrect in law or in facts; the precondition for interference is the existence of circumstance mentioned in section 115, C.P.C. 15. I hold that the order of the trial court, even if it may be incorrect according to our view of the circumstances of this case, is not such as to come within the mischief of section 115 C.P.C. Therefore, the recommendation of the learned Additional Commissioner can not be accepted. So I dismiss this revision petition. 16. The revisionist is directed to file a suit for declaration of his title in a court of competent jurisdiction within a period of three months from the date of this order. The provision of section 122-B (4-D) and 122-3 (4-DD) U.P.Z.A. & L.R. Act will apply as the case may be.