Ram Singh v. Board of Revenue, U. P. , Allahabad — 1985 DIGILAW 168 (ALL)

ORDER K.P. Singh, J. - This is a writ petition filed by the defendants against the judgments of the revenue courts. 2. Necessary facts giving rise to the present writ petition are that the opposite party 6, Smt. Muliya in the present writ petition had filed two suits for ejectment of the defendants- petitioners on the allegations that she being widow of Kundan Singh was entitled to the disputed plots and that the defendants have taken possession over the property unlawfully, hence they were liable to be ejected and were also liable to pay damages. The claim of the plaintiff-opposite party was contested by the defendants-petitioners on the allegations that Smt. Muliya was not the widow of Kundan Singh hence she was not entitled to the property in suit and that the plaintiffs suits were barred by time and that in the circumstances of the case the plaintiff was not entitled to get benefit of S. 14, Limitation Act, and that simpliciter suits under S. 209, U.P.Z.A. and L.R. Act, against the defendants were not maintainable and various other pleas were taken. 3. It is noteworthy that the trial court through its order dated 2-3-1968 (sic) ultimately decreed the suits. In appeals decrees were substantially maintained. Second Appeals against the judgments in first appeals were also dismissed. Thereafter the petitioners filed review petitions which have been dismissed by the second appellate court through its order dated 8-5-1984. Now the petitioners have approached this Court under Article 226 of the Constitution. 4. The learned counsel for the petitioners has assailed the judgments of the revenue courts before me on the following grounds : Firstly the finding recorded by the revenue courts about Smt. Muliya being widow of Kundan Singh is patently wrong, illegal and against the weight of evidence on record. Secondly the plaintiff-opposite party Smt. Muliya was not entitled to the benefits of S. 14, Limitation Act, in the circumstances of the present case. In this connection the learned counsel for the petitioner has suggested that S. 14, Limitation Act, would be inapplicable to the proceedings before the revenue courts. He has also emphasised that essential ingredients entitling a person to claim benefit under S. 14, Limitation Act, have not been established, hence the plaintiff-opposite party was wrongly given benefit under that section by the revenue courts. Therefore, their judgments should be quashed. He has also emphasised that essential ingredients entitling a person to claim benefit under S. 14, Limitation Act, have not been established, hence the plaintiff-opposite party was wrongly given benefit under that section by the revenue courts. Therefore, their judgments should be quashed. Thirdly it has been contended that simpliciter suits under S. 209 U.P.Z.A. and L.R. Act, against the defendants petitioners were not maintainable yet the revenue courts have patently erred in granting relief to the plaintiff-opposite party. Fourthly the plaintiff-opposite party could not get decree unless she succeeded in challenging the bhumidhari sanad in favour of the petitioners. In this connection the petitioners claimed benefit under S. 199, U.P.Z.A. and L.R. Act. Fifthly it has been contended that the revenue courts have patently erred in awarding damages to the plaintiff-opposite party in the circumstances of the present case against the plaintiffs pleadings. Sixthly it has been contended that the revenue courts have misread and misconstrued the pleadings with regard to the number of the plots involved in the suits and they have exceeded their jurisdiction in granting relief to the plaintiff-opposite party. Lastly it has been contended that the second appellate court has acted illegally in dismissing the review petitions; it should have reopened the matter and sent the case back to the trial court for deciding the claims of the parties strictly in accordance with law and pleadings. 5. The learned counsel for the contesting opposie parties has tried to support the impugned judgments. According to him the impugned judgments have done substantial justice between the parties and it is not a case where interference should be made with the impugned judgments. He has supported his submissions that the plaintiff-opposite party was fully entitled to the benefits of S. 14, Limitation Act. The contentions raised on behalf of the petitioners in this regard being unsound in law should not be accepted. He has emphasised that even if there are some technical defects in the pleadings as the parties knew their stand. The impugned judgments should not be interfered with on technical grounds. If the decree mentioned plots not subject matter of the suits the petitioners can agitate that matter before the execution court or they can get effective relief with regard to those plots which are not subject matter of the suits in a separate suit. The impugned judgments should not be interfered with on technical grounds. If the decree mentioned plots not subject matter of the suits the petitioners can agitate that matter before the execution court or they can get effective relief with regard to those plots which are not subject matter of the suits in a separate suit. In short there is an alternative remedy open to the petitioners, therefore, no interference should be made with the impugned judgments. 6. Heard counsel for the parties at length. 7. The learned counsel for the petitioners has not been able to satisfy me that the findings recorded by the revenue courts to the effect that Smt. Muliya is widow of Kundan Singh suffer from any patent error of law. The findings recorded by the revenue courts on the aforesaid point are supported by earlier decisions between the parties before the revenue courts as well as civil courts. Therefore, the contentions of the learned counsel for the petitioners are not acceptable to me and his contentions regarding the aforesaid findings are hereby repelled. All the revenue courts have relied upon the findings recorded in a suit under S. 59, U.P. Tenancy Act, as well as the findings recorded in a partition suit in civil courts, therefore, their findings are based on good evidence and cannot be termed as suffering from any error of law much less patent error of law. 8. The learned counsel for the petitioners has suggested that S. 14, Limitation Act, would not apply to the proceedings before the revenue courts. The main emphasis of the learned counsel for the petitioners before me was that the aforesaid S. 14, Limitation Act, speaks about the "Civil proceedings" hence the revenue courts have patently erred in giving benefit of S. 14, Limitation Act, to the plaintiff-opposite party. The suits giving rise to the present writ petition were filed under S. 209, U.P.Z.A. and L.R. Act. Section 341, U.P.Z.A. and L.R. Act, provides that the provisions of the Limitation Act would apply to proceedings under the Act. Therefore, think that the contentions raised on behalf of the petitioners are wholly devoid of merits. 9. The second appellate court in dismissing the review petitions has given cogent reasons for the applicability of S. 14, Limitation Act, to the facts of the present case. Therefore, think that the contentions raised on behalf of the petitioners are wholly devoid of merits. 9. The second appellate court in dismissing the review petitions has given cogent reasons for the applicability of S. 14, Limitation Act, to the facts of the present case. However, in AIR 1962 Orissa 100, Ramanarayan Singh v. Kubera Sahu, a learned single Judge of that Court has indicated that in proceedings for ejectment of a trespasser under Tenancy Act before the Sub-Divisional Officer would be proceedings before a court as contemplated under S. 14, Limitation Act. In this state also when a person claims right before a revenue court he asserts his civil right in the land and the proceedings, for enforcement of that right would be civil proceedings as contemplated by the provisions of S. 14, Limitation Act. Keeping in view the provisions of S.341, U.P.Z. A. and L.R. Act and prevailing state of affairs before the revenue courts under the Tenancy Laws I do not agree with the contentions of the learned counsel for the petitioners that S. 14, Limitation Act, would not apply to the proceedings before the revenue courts. To my mind the contentions raised on behalf of the petitioners in this regard are baseless. 10. Second limb of the arguments under this head is that the essential ingredients contemplated by S. 14, Limitation Act, were not fulfilled by the plaintiff-opposite party, hence the revenue courts have patently erred in giving benefit of that section to her. 11. The learned counsel for the petitioners has cited a large number of rulings namely AIR 1971 SC 2313 , India Electric Works Ltd. v. James Mantosh; AIR 1972 SC 730 ; AIR 1977 SC 640 , Gurdit Singh v. Munsha Singh; AIR 1978 All 117 , Shiv Shiv Tiwari v. Ganesh Prasad Misra and 1984 All LJ 994. 12.. The learned counsel for the petitioners has emphasised that the plaintiff-opposite party did not implead State of U.P. in the suits under S. 209, U.P.Z.A. and L.R. Act, despite a plea raised on behalf of the petitioners, hence the plaintiff-opposite party did not act bona fide and in good faith. Therefore, the revenue courts patently erred in holding her suits within time giving benefit of S. 14, Limitation Act. Therefore, the revenue courts patently erred in holding her suits within time giving benefit of S. 14, Limitation Act. In this connection the learned counsel for the petitioners invited my attention to the ruling reported in AIR 1972 SC 730 , Rabindra Nath Samual Dawson v. Sivakami and has emphasised Head Note (B) which reads as below : "A person who has resisted to the objection regarding non-joinder of parties at the initial stage and also at the revisional stage and run the risk of proceeding with the suit without impleading the necessary parties cannot be said to act in good faith because he cannot be said to have acted with due care and attention. Consequently such person will not be entitled to benefit of S. 14 of the Act for excluding the time spent by him in that proceeding in a fresh suit". 13. In the present case the contesting opposite party Smt. Muliya had filed suits under S. 209, U.P.Z.A. and L.R. Act, in the year 1958, which were dismissed on 31-8-1962 on the ground that the plaintiff had not impleaded the State of U.P. as a party to the suits. Due to the amendment of the provisions of U.P.Z.A. and L.R. Act in the year 1962 the State of U.P. became necessary party in suits under S. 209, U.P.Z.A. and L.R. Act. In this State a controversy had arisen whether non- impleadment of State of U.P. in a pending appeal shall be fatal or not. A Full Bench of this Court in 1967 Rev Dec 413, Ram Baksh v. Board of Revenue had clarified the law. It appears that when the plaintiffs suits were dismissed on 31-8-1962 the plaintiff filed two suits giving rise to the present writ petition on 9-1-1963. In the aforesaid circumstances the question has arisen as to whether the plaintiff- opposite party is entitled to the benefit of S. 14, Limitation Act. In my opinion the plaintiff had acted bona fide and in good faith in filing the suits giving rise to the present writ petition. The ruling relied upon by the learned counsel for the petitioners and reported in AIR 1972 SC 730 , Rabindra Nath Samual Dawson v. Sivakami is inapplicable to the facts and circumstances of the case and the petitioners cannot derive any benefit out of the aforesaid ruling. The ruling relied upon by the learned counsel for the petitioners and reported in AIR 1972 SC 730 , Rabindra Nath Samual Dawson v. Sivakami is inapplicable to the facts and circumstances of the case and the petitioners cannot derive any benefit out of the aforesaid ruling. To my mind the petitioners cannot attack the judgment of the second appellate court on the ground that it gave benefit of S. 14, Limitation Act, to the plaintiff- opposite party on erroneous ground. 14. The learned counsel for the petitioners has also assailed the judgments of the revenue courts on the ground that the earlier decisions were dismissed for non-joinder of necessary parties hence the defect of non-joinder of necessary parties could not be termed as a defect of jurisdiction or other cause of allied nature in view of Explanation (3) to S. 14(2). Limitation Act, which reads as below :- "Explanation - For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." 15. According to the learned counsel for the petitioners non-joinder of parties had not been mentioned in Explanation (3) hence the plaintiff opposite party was not entitled to the benefit of S. 14, Limitation Act. In this connection the learned counsel for the petitioners relied upon the observation in para 6 of the ruling reported in AIR 1971 SC 2313 , India Electric Works Ltd. v. James Mantosh. 16. If the aforesaid ruling is read as a whole I think that the contentions raised on behalf of the petitioners are ill-founded. The perusal of para 7 of the aforesaid ruling would indicate that when by reason of an infirmity or defect of jurisdiction there was no adjudication of the claims on merits; the plaintiff is entitled to benefit of S. 14, Limitation Act, provided that he or she had acted diligently and in good faith. 16A. In AIR 1921 Sind 13, Ibrahim v. Ghulam Hussain, a Division Bench of that Court has indicated as below : "....Misjoinder and non-joinder are only variations of the same defect, namely, the omission to have the proper parties or causes of action included in a suit or application. Misjoinder is joining persons who should not be joined, and non-joinder is not joining persons who should be joined. Misjoinder is joining persons who should not be joined, and non-joinder is not joining persons who should be joined. Expressed mathematically, it is only a difference of plus and minus...... and I-see nothing that requires us to make an absolute distinction between cases of misjoinder and non-joinder in regard of S. 14, Limitation Act." 17. I respectfully agree with the aforesaid observations and I have no hesitation in repelling the contention of the learned counsel for the petitioners that the case of non-joinder of necessary parties is not contemplated by the provisions of S. 14, Limitation Act. In my opinion the revenue courts rightly gave benefit of S. 14, Limitation Act, to the plaintiff- opposite party. 18. The learned counsel for the petitioners has assailed the judgment of the second appellate court dated 8-5-1984 on the ground that it wrongly held that the limitation will be counted from 1-7-1957 whereas the limitation should be counted from 1-7-1956 because the husband of the plaintiff had died in December 1955 and since then the defendants had been in possession. For the sake of arguments even if the limitation is computed from 1st July, 1956 as alleged by the learned counsel for the petitioners the plaintiffs suit was rightly held within time by giving benefit of S. 14, Limitation Act. Previous suits were pending between the years 1958 and 31st August 1962. Therefore, the plaintiff was entitled to addition of more than three years to the ordinary six years rule of limitation. Hence even from the date of trespass alleged by the defendants petitioners the plaintiffs suits were rightly held within time with the help of S. 14, Limitation Act. 19. The third contention raised on behalf of the petitioners has no force in the circumstances of the present case. In a suit for ejection the plaintiffs title is determined and in the present case her title has been determined. All the necessary parties in a declaratory suit are parties to the suits giving rise to the present writ petition. Therefore, the determination of plaintiffs tenancy in the disputed land is a good determination by the revenue courts. It is not necessary for a plaintiff to seek declaration of title before maintaining a suit for ejectment of the trespasser. All the necessary parties in a declaratory suit are parties to the suits giving rise to the present writ petition. Therefore, the determination of plaintiffs tenancy in the disputed land is a good determination by the revenue courts. It is not necessary for a plaintiff to seek declaration of title before maintaining a suit for ejectment of the trespasser. Though determination of plaintiffs title in the disputed land before granting decree for possession is necessary, but it is not obligatory for the plaintiff to seek declaration of title in a suit for ejectment. If the plaintiffs title to the disputed land is not established the suit must fail, but the suit cannot be dismissed on the ground that the plaintiff had failed to seek declaration of title to the disputed land. In my opinion the third contention of the learned counsel for the petitioner has also no force. 20. Section 199, U.P. Zamindari Abolition and Land Reforms Act, provides that no bhumidhar shall be liable to ejectment from holding except as provided in this Act. 21. It is well known by now that mere possession of bhumidhari sanad does not confer bhumidhari right upon the holder of bhumidhari sanad. The holder of bhumidhari sanad should be sirdar of the land in respect of which he or she obtained bhumidhari sanad. In the present case on the finding of fact that the plaintiff-opposite party Smt. Muliya was widow of Kundan Singh and she was tenure- holder of the disputed land. The defendants-petitioners could not legally acquire bhumidhari sanad and if they are possessed of Bhumidhari sanad, it would be void document and would confer no title upon them, hence the petitioners are not entitled to seek shelter behind S. 199, U.P.Z.A. and L.R. Act. The petitioners are not bhumidhars of the disputed land. The fourth contention of the learned counsel for the petitioners in this regard fails as well. 22. As regards the fifth contention there is no doubt that the plaintiffs pleadings are a little vague and ambiguous regarding the claim of damages. 23. The area in dispute is 19 bighas and odd and the petitioners had been in unlawful possession since Dec. 1955 according to their allegations, hence on the basis of common experience the award of damages to the plaintiff-opposite party is not excessive. 23. The area in dispute is 19 bighas and odd and the petitioners had been in unlawful possession since Dec. 1955 according to their allegations, hence on the basis of common experience the award of damages to the plaintiff-opposite party is not excessive. While granting stay order to an appellant or the petitioners this Court awarded normally Rs. 100/- per bigha with a view to compensate the successful party even in the years 1955 to 1958 and viewing the award of damages from that standard I find that the revenue courts have not patently erred in awarding damages to the plaintiff-opposite party. Even if they have acted illegally in not pinning down the plaintiff-opposite party to her pleadings. they have at least passed just and most equitable order. In writ jurisdiction it is not proper to interfere with the impugned judgments on technicalities when they have advanced substantial justice between the parties. The technical arguments raised on behalf of the petitioners in this regard are hereby repelled in the name of just and most equitable order passed by the revenue courts in fixing the damages to the plaintiff-opposite party. 24. Regarding sixth contrition it is noteworthy that in the plaint plot number mentioned is 19 whereas it should be 19-M in one suit. I do not think that the defendants- petitioners can assail the impugned judgments on technical and clerical mistake. My attention was drawn to para 52 of the writ petition wherein a complaint has been made that respondent for the reasons best known to it wrongly referred the disputed land as 19-M in place of plot 19 mentioned in the plaint; but I think that in the circumstances of the present case it has taken reasonable view and I am not inclined to accept the contention of the learned counsel for the petitioners in this regard. Technicality should not be given undue weight while exercising powers under Article 226 of the Constitution. Therefore, the contentions of the learned counsel for the petitioners on those points also fail. 25. Technicality should not be given undue weight while exercising powers under Article 226 of the Constitution. Therefore, the contentions of the learned counsel for the petitioners on those points also fail. 25. As regards the last contention of the learned counsel for the petitioners to the effect that there were mistakes about the number of plots mentioned in the suit and the decree granted and on that score respondent I should have remanded the case, I think that the submission of the learned counsel for the contesting opposite party would be correct; if there is any mistake in the decree against the plaint culminating in the decree and the petitioners could agitate the points in execution department or the petitioners can seek requisite relief in a fresh suit by seeking relief of injunction in a competent court. In short there is an alternative remedy for the petitioners to seek appropriate relief with regard to the plots which might be termed as not subject matter of the suits in which the impugned judgments and decrees were passed. 26. In the result all the contentions raised on behalf of the petitioners fail and in my opinion the impugned judgments cannot be assailed on the ground of patent errors of law therein. Moreover, substantial justice has been done between the parties in the circumstances of the present case by the impugned judgment of the second appellate court. I am not inclined to exercise my powers under Article 226 of the Constitution in favour of the petitioners on technical grounds indicating some mistakes here and there. 27. For the foregoing discussions the writ petition fails and is hereby dismissed. There would be no order as to costs.