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2003 DIGILAW 2056 (ALL)

Sheel Chand v. Town Area Dataganj

2003-09-08

PRAKASH KRISHNA

body2003
JUDGMENT : Prakash Krishna, J. 1. The present appeal arises out of an order of remand passed by the court below in Civil Appeal No. 114 of 1980. The court below by the said order framed additional issues as to whether "civil court" has jurisdiction to try the suit. The Court was of the opinion that this issue goes to the very root of jurisdiction of the civil court. Hence, it is to be decided first and the judgment and decree of the trial court were consequently set aside. 2. The Plaintiffs of Suit No. 407 of 1975 have preferred this appeal. The Plaintiffs instituted a suit for permanent injunction restraining the Defendant from interfering in their possession. The suit was instituted on the pleas inter alia that the Plaintiffs are recorded bhumidhar of the old plot No. 44. (New plot No. is 113) having an area of 14 Biawas. It was pleaded that the consolidation authorities allotted new plot numbers of the Defendants who are owner and bhumidhar of Plot No. 113 are trying to interfere in the possession of the Plaintiffs. 3. The suit was contested on the pleas, inter alia that the Defendants have no concern with Plot No. 113. The adjoining plot which is in the shape of pond. The said plot belongs to the Town area. The town area in order to increase its income has proposed construction of shops in the said plot and the Plaintiffs have no concern with the same, which is pond. The plea of insufficiency of court fee and valuation etc. were also raised. The boundaries of Plot No. 113 have not been correctly described by the Plaintiffs in the plaint. 4. At the instance of Defendant the issue as to whether the suit is barred by Sections 27 and 49 of Consolidation of Holdings Act was also struck. 5. The trial court by judgment and decree dated 2.8.1980, decreed the suit for permanent injunction directing the Defendants not to convert the disputed land in abadi and not to interfere in possession of the Plaintiffs. The trial court recorded a finding that Sections 27 and 49 of Consolidation of Holdings Act do not bar the suit. It has also recorded a finding that the Plaintiffs are bhumidhars of the disputed land. The trial court recorded a finding that Sections 27 and 49 of Consolidation of Holdings Act do not bar the suit. It has also recorded a finding that the Plaintiffs are bhumidhars of the disputed land. It has also recorded a finding that indisputably the Plaintiffs are bhumidhar of old Plot No. 400 to which new Plot No. 113 has been allotted. The Defendants challenged the aforesaid decree by filing appeal before the court below. The court below instead of deciding the issue on merits framed additional Issue No. 12, which reads as under : Whether this Court has no jurisdiction to try the suit. And remanded the matter to the trial court. This order of remand is the subject matter of appeal. 6. Heard learned Counsel for the parties and perused the record. 7. The court below has passed the impugned order with a view to determine as to whether the suit is cognizable by the civil court or Revenue Court. Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act provides the suit cognizable by the Revenue Court. Sub-section (1) provides that no Court other than the Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Code of Civil Procedure, take cognizance of any suit, application or proceedings mentioned in Column 3 thereof. Column 3 of IInd Schedule provides the nature of suit cognizable by Revenue Court. Sub-section (1A) of Section 331 is very relevant for the purposes of present case. It provides the objection that the matter is not cognizable by the civil court but is cognizable by the Revenue Court, shall not be entertained by any appellate or revisional court unless objection was taken in the Court on first instance at the earliest possible opportunity and in all cases where the issues are settled at or before such settlement and unless there has been consequential failure of justice. It appears that this provision was not brought to the notice of the Court below. There is neither mandates of this provision that objection regarding jurisdiction as to whether suit is cognizable by a civil court or Revenue Court shall not be entertained by appellate or revisional court. There is a further rider that such an objection must have been taken in the written statement at any time before the settlement of the issue in the Court on first instance. 8. There is a further rider that such an objection must have been taken in the written statement at any time before the settlement of the issue in the Court on first instance. 8. Now let us apply the aforesaid provision of law, in the facts and circumstances of the case. Admittedly, no such plea was raised in the written statement nor the trial court struck down any such issue. For the first time during the course of argument in appeal, the Defendants raised this plea. This Court below being of the opinion that it is a question of jurisdiction, it goes to the root of the matter without even considering as to whether such plea could be raised at this stage, permitted the Defendants to raise the plea. However, every question of jurisdiction does not go to the very root of the matter. Now it is well-settled that the question of territorial jurisdiction and of pecuniary jurisdiction if not raised at the earliest opportunity cannot be raised for the first time in appeal or revision. 9. The Legislature prohibited raising of aforesaid question of jurisdiction as to whether the cause is triable by Revenue Court or civil court have enacted Section 331 (1A) in the Zamindari Abolition and Land Reforms Act. In view of this the judgment and order of the court below cannot be sustained. The court below has committed illegality in permitting to raise the said question at the appellate stage. The judgment of the court below runs counter to Sub-section (1A) of Section 331 of the Act. Twin conditions are required to be fulfilled under the aforesaid section. The Defendants have also failed to prove both the conditions. How there would be consequent failure of justice in case a civil court tries the suit, has been established. On this count also the order of the court below cannot be sustained. 10. Learned Counsel for the Respondents has placed reliance upon two judgments: (i) K. Muthuswami Gounder Vs. N. Palaniappa Gounder, AIR 1998 SC 3118 and (ii) National Insurance Company Limited v. T.M.T. Raj Kumari and Anr., 2002 (2) TAC 382 (Mad). None of the aforesaid rulings have any application to the controversy involved in the present case. 11. In view of the above appeal is allowed. The order of the court below is set aside. N. Palaniappa Gounder, AIR 1998 SC 3118 and (ii) National Insurance Company Limited v. T.M.T. Raj Kumari and Anr., 2002 (2) TAC 382 (Mad). None of the aforesaid rulings have any application to the controversy involved in the present case. 11. In view of the above appeal is allowed. The order of the court below is set aside. Civil Appeal No. 114 of 1980 is restored back to its original number. The court below shall hear and decide the appeal on merits. The present appeal is allowed and the order of the court below dated 24.12.1983, is set aside.