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Allahabad High Court · body

2009 DIGILAW 3287 (ALL)

Pyare Lal Mishra v. Sri Bare Mahadevji Mahraj

2009-10-14

V.K.SHUKLA

body2009
JUDGMENT Present second appeal has been filed against the judgment and decree dated 24.11.1975 passed by Civil Judge, Jhansi in Civil Appeal No. 2 of 1966 arising out of judgment and decree passed by Munsif Jhansi dated 03.12.1964 in Original Suit No. 412 of 1963 (Bade Mahadeviji Maharaj Vs. Dr. Pyare Lal Misra. 2. Brief background of the case is that plaintiff filed Original Suit No. 412 of 1963 on 14.05.1963 before Munsif Jhansi contending therein that land shown by red colour and marked as letter ABCDEFGHIJKLMNO in the map appended to the plaint and area of which is about two acres formed part of plot no. 873 situated within the municipal limit of Mauranipur was Abadi land and the plaintiff was the owner in possession of the said land. On 25.10.1956 defendant of the suit illegally occupied the said land and in this background Original Suit No. 383 of 1957 was instituted in the court of Munsif Jhansi for ejectment of defendant from the said land. Said suit in question after its institution was transferred for disposal to Munsif, Lalitpur. On 09.08.1958 a consent decree was passed in the said suit and on the strength of said consent decree defendant was permitted to remain in occupation of the land as tenant on payment of annual rent of Rs. 10/-. It was agreed in between parties concerned that defendant would pay rent for each of the year in the month of February and in default of payment of rent the plaintiff would would have right to get the defendant ejected. Thereafter as defendant had failed to pay rent therefore suit was filed before Judge Small Cause Court (Munsif) Jhansi being Suit No. 44 of 1961 for recovery of rent. Said suit was decreed exparte. Said decree in question was not obeyed and the rent due has not been paid in this background plaintiff again served with the notice of demand to quit on 29.08.1962 and by means of said notice defendant was asked to vacate the disputed land after expiry of period prescribed. Defendant had choosen not to vacate the premises in question, in this background suit in question had been filed for ejectment from the disputed land and damages which is subject matter of present second appeal. Defendant had choosen not to vacate the premises in question, in this background suit in question had been filed for ejectment from the disputed land and damages which is subject matter of present second appeal. In the said suit written statement was filed and plea was taken that defendant was in possession and further plea was taken that he was hereditary tenant of the said disputed land and plaintiff was neither owner in possession thereof. Land existed within the limit of Mauranipur Municipal Board and at that point of time Zamindari in the said area has not abolished. Land has been obtained for agricultural purpose in the year 1364 fasli on annual Lagan from Zamindari concerned. Suit for ejectment could have only been filed in Revenue court and the Civil court has no authority or jurisdiction to try the same and the decree passed on earlier occasion are null and void as court who has passed the said decree in question had no jurisdiction to try the suit. In this background defendant was not at all liable to vacate the land in question. 3. During the pendency of suit learned Munsif framed issue as to whether defendant was the hereditary tenant of the land in suit and for this purpose remitted the said issue for finding to the Revenue court. Revenue court gave decision in affirmative. Based on the same learned Munsif took the view that plaintiff was not the landlord of the disputed land and decree which has been passed on earlier occasion did not effect the defendant's right, in this background suit in question was dismissed. Aggrieved by the said finding of learned Munsif, plaintiff filed appeal and said appeal was also dismissed by IInd Additional Civil and Session Judge, Jhansion 31.03.1965 by holding that civil court has no jurisdiction to try the suit by virtue of Section 242 of U.P. Tenancy Act. Against the said judgment and decree plaintiff preferred Second Appeal before this Court being Second Appeal No. 3002 of 1965. This Court on 29.09.1973 allowed the said appeal and set aside judgment and decree passed by lower appellate court and remanded the matter back to the lower appellate court for fresh decision keeping in view the observation made in the body of the judgment. This Court on 29.09.1973 allowed the said appeal and set aside judgment and decree passed by lower appellate court and remanded the matter back to the lower appellate court for fresh decision keeping in view the observation made in the body of the judgment. Relevant extract of the said judgment passed by this Court is being quoted below: "It was argued in reply by the learned counsel for the respondent that even if the conditions put forward on behalf of the appellant are assumed to be correct, this court should not interfere unless it was shown that the Civil Court really had jurisdiction to entertain the suit after the Act came in to force in Mauranipur. It was pointed out that by section 64 of the Act Chapter VIII of the U.P. Zamindari Abolition & Land Reforms Act was made applicable to 'Agricultural areas' acquired under the act and under the section 82 of the act besides other sections, Section 331 of the U.P. Zamindari Abolition & Land Reforms Act has been made applicable to suits applications etc. filed under the Act. It was argued that under the circumstances it appears that even after the U.P. Tenancy Act stood repealed in Mauranipur, the plaintiff would have had to file to suit in the revenue court as according to the finding recorded by the lower appellate court the land in suit is 'agricultural land'. This contention as was pointed out on behalf of the appellant, does not appear to be sound. There is no material on record of this case to show that the disputed land lies in agricultural area or 'agricultural area' acquired under this Act. A perusal of section 3 to 5 will show that the words 'agricultural area' acquired under this Act mean an agricultural area acquired as laid down in Chapter I and II of the Act. Therefore, it could not be said from the material on the record whether section 64 of the Act would be applicable to the land in suit thereby making the provision of section 220 read with section 331 of the U.P. Zamindari Abolition & Land Reforms Act applicable to the facts of this case. In order to decide as to whether even after abolition of the U.P. Tenancy Act because of the Act coming into force in Mauranipur, the suit could be filed in the Civil Court or not. In order to decide as to whether even after abolition of the U.P. Tenancy Act because of the Act coming into force in Mauranipur, the suit could be filed in the Civil Court or not. It has to be considered whether the land in suit has been acquired as an agricultural area' with in the meaning of the Act otherwise the question involved in this case being of civil nature would be cognizable by the Civil Court under Section 9 of the Code of Civil Procedure. In view of the reasons discussed, I consider a fit case which should be remanded back to lower appellate court for fresh decision on the question of jurisdiction and if necessary on merit also after taking into consideration the effect of the abolition of the U.P. Tenancy Act by the coming into force of the Act in Mauranipur with effect from 01.07.1964. It would be open to the lower appellate court to give an opportunity to the parties to adduce evidence on the question as to whether the land in question was acquired as agricultural land within the meaning of the act while the suit was still pending in the trial court. Accordingly the appeal is allowed. The judgment passed by the lower appellate court is set aside and the case is remanded back to the lower appellate court for the fresh decision keeping in view the observation made above. Costs in this court shall abide the final decision in the case." After appeal in question has been remanded background, parties to the dispute adduced additional evidence, in the shape of oral as well as documentary evidence and thereafter lower appellate court on 24.11.1975 allowed the appeal and the judgment and decree under appeal has been set aside and the suit has been decreed for recovery and possession and for recovery of arrears of rent. At this juncture present Second appeal has been filed. 4. At this juncture present Second appeal has been filed. 4. Sri S.K. Chaturvedi, Advocate appearing for the legal heirs and representative of defendant-appellant contended with vehemence that in the present case the substantial question of law arises for consideration is that lower appellate court totally misdirected itself by setting aside the judgment and decree passed by trial court by coming to the conclusion that Civil court had jurisdiction to try the suit and further in coming to the conclusion that land in question was not "agricultural area", ignoring the status of appellant of being hereditary tenant as such judgment and decree passed by court below i.e lower appellate court is unsustainable in the eyes of law and same is liable to be set aside by this Court. Countering said submission Sri B.N.Agarwal, Advocate contended with vehemence that plea which has been sought to be raised by the appellant are unsustainable on the face of it, in view of compromise decree which has been entered upon on earlier occasion and validity of which has never been questioned at any point of time and further after enforcement of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, once land in question not being declared as agricultural area by following requisite procedure then it cannot be accepted as agricultural area appellant has not at all acquired status of hereditary tenant and in this background there is no infirmity whatsoever in the decree passed by lower appellate court and second appeal being concluded by pure finding of fact is liable to be dismissed. 5. After respective arguments have been advanced factual position which is emerging in the present case is that earlier matter travelled up to this Court and this Court in Second Appeal No. 3002 of 1965 had remanded the matter back by categorically mentioning therein for deciding the matter afresh keeping in view the observation made above i.e. in the body of the judgment. It was mentioned in the body of the judgment in order to decide even after abolition of U.P. Tenancy Act, because of Act coming into force the suit could be filed in Civil court or not. It was mentioned in the body of the judgment in order to decide even after abolition of U.P. Tenancy Act, because of Act coming into force the suit could be filed in Civil court or not. It has to be seen as to whether land in question in suit has been acquired as an agricultural area within the meaning of the Act other wise the question involved in this case being civil nature would be cognizable by the civil court under Section 9 of Code of Civil Procedure. The matter has to be decided on the question of jurisdiction and if necessary on merits also after taking into account the effect of abolition of the U.P. Tenancy Act and by coming enforcement of the Act in Mauranipur with effect from 01.07.1964. Further to also decide the issue as to whether land in question was acquired as agricultural land within the meaning of the Act, while the suit was still pending. The first question to be looked into, is the authority of Civil court to entertain the suit and decide the same i.e. the issue of jurisdiction. 6. The factual position is that suit No. 385 of 1957 was instituted in the court of Munsif for ejectment of the predecessor of the appellant from the land in question by the plaintiff, clearly describing the same as abadi land and for cancellation of patta. Said suit in question was transferred to learned Munsif, Lalitpur and on 09.08.1958 a consent decree had been passed in the said suit wherein patta was cancelled and the predecessor of the substituted appellant was permitted to remain in occupation of the land as tenant on payment of annual rent of Rs. 10/-. It was also agreed in between parties that defendant's would pay rent for each of the year in the month of February and in the event of default, plaintiff would have right to get the defendant ejected. Passing of the said decree has not been disputed on the basis of compromise, however, an attempt has been made to contend that as said decree has been passed by the court which has no jurisdiction and competence to pass such decree as such it is void decree and has to be treated as without jurisdiction. 7. Hon'ble Apex Court in the case of Sneh Gupta Vs. 7. Hon'ble Apex Court in the case of Sneh Gupta Vs. Devi Sarup and others reported in 2009 (2) ARC 445 while considering the binding effect of compromise decree has clearly taken the view that compromise decree is binding on the parties even if compromise decree is void same has to be set aside and for said purpose provision contained in the Limitation Act would also be applicable. Relevant extract of the said judgment is being quoted below: "42. There cannot be any doubt that even if an order is void or voidable, the same must be set aside, as has been held by this Court in M. Meenakshi v. Metadin Agarwal [ (2006) 7 SCC 470 ] and Sultan Sadik v. Sanjay Raj Subba [ (2004) 2 SCC 377 ]. 43. It is not a case where the Court lacked inherent jurisdiction. It had jurisdiction with regard to subject matter of appeal. In Rajasthan State Road Transport Corporation and others v. Zakir Hussain [ (2005) 7 SCC 447 ], this Court held : "21. It is a well-settled principle of law as laid down by this Court that if the court has no jurisdiction, the jurisdiction cannot be conferred by any order of court. This Court in the case of A.R. Antulay v. R.S. Nayak, AIR paras 40 to 42 wherein it is, inter alia, held and observed as under: ''38[40]. ... This Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction.... 39[41]. ... The power to create or enlarge jurisdiction is legislative in character.... Parliament alone can do it by law and no court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal. ... 40[42]. ... But the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. See Rubinstein's Jurisdiction and Illegality.'" The limitation, however, in a case of this nature would not begin to run from the date of knowledge. In State of Punjab and Others v. Gurdev Singh [ (1991) 4 SCC 1 ], this Court held: "10. See Rubinstein's Jurisdiction and Illegality.'" The limitation, however, in a case of this nature would not begin to run from the date of knowledge. In State of Punjab and Others v. Gurdev Singh [ (1991) 4 SCC 1 ], this Court held: "10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for." 44. Mr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the date. 45. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. {[See Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. [ (1996) 7 SCC 767 ]}. Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter. 8. In respect of abadi land, civil court had full authority and jurisdiction to entertain the suit, and to accord requisite relief. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter. 8. In respect of abadi land, civil court had full authority and jurisdiction to entertain the suit, and to accord requisite relief. In suit No. 383 of 1957, land in question was clearly described as abadi land, and said fact was admitted by defendant of the said suit, and compromise decree was passed. The Court which passed compromise decree didn't lacked inherent jurisdiction, with regard to subject matter of suit. 9. Effect of the said compromise decree is that once it is accepted and validity of the same has not at all been questioned by filing suit that it was void decree passed without jurisdiction then inter se parties it has binding effect as such in the fact of the case decree in question has binding effect and cannot be permitted to be ignored. 10. Lower appellate court has not accepted the land in question to be land falling within agricultural area and the land in question being agricultural land. This much is true that on the date of institution of the suit the provision of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 has not at all been enforced in Mauranipur wherein property in question is situated. On the institution of suit in question, the civil court had remitted the matter on issue to be answered by the Revenue court and the Revenue court gave its decision in affirmative on 17.08.1964 holding therein that defendant was the hereditary tenant of the land in suit whereas during the pendency of the suit provision of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 were made applicable in Maurainpur w.e.f 01.07.1964 and in this background it is to be seen as to what was the effect of abolition of the U.P. Tenancy Act in the said area. 11. Enforcement of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 had been made with the objective for the abolition of zamindari system in agricultural areas situated in Urban areas and for the acquisition of the rights, title and interest of the intermediaries between the tiller of the soil and the State in such areas and for the introduction of the land reforms Act. After enforcement of U.P. Act No. IX of 1957 as far as agricultural area within municipal limit is concerned it can be treated as agricultural area only in the manner as provided for under Chapter II and III of the said Act. Demarcation of the agricultural areas is to be carried out in consonance of the provision as contained under Sections 3,4,5 and 8 of the U.P. Act No. IX of 1957, which is self contained in itself. 12. Division Bench of this Court in the case of Arun Prakash Vs. Vishwanath Prasad and others in First Appeal No. 274 of 1975 decided on 8th September, 1988, reported in 1989 RD, 37 has clearly taken the view that there is procedure to declare any land as agricultural area under U.P. Act No. IX of 1957 and once no such procedure has been taken then it cannot be treated as agricultural area. Relevant extract of the said judgment is being quoted below: "Apart from the above, before any area can be declared as agricultural area, it is necessary that it should be demarcated as such under Section 3. Any land can become agricultural area only after necessary proceedings under Sections 3 and 4 have been taken a final demarcation is notified under Section 5(2) of the Act. It is obvious that no such proceedings have been taken place in respect of the land in question and for this reason also it was not proper on the part of the trial court to hold that this land had vested in the State as an agricultural area. We, therefore, have no hesitation in holding that the land in dispute belongs to the appellants and defendants first set and the same had not vested in the State of U.P." Hon'ble Apex Court in the case of Rajeshwar Dayal and others Vs. Avneesh Kumar Avasthi and others reported in 2002 (2) AWC 1307 (SC) has held as follows: 5. During pendency of second appeal No. 425 of 1960 the Uttar Pradesh Urban Areas -zamindari Abolition and Land Reforms Act (UP Act No. IX of 1957) (hereinafter referred to as 'the Act') came into force in the city of Meerut. The land in dispute was declared as agricultural area and a notification under Section 8 of the Act was issued by the Government of Uttar Pradesh. The land in dispute was declared as agricultural area and a notification under Section 8 of the Act was issued by the Government of Uttar Pradesh. The trust filed an appeal in the High Court praying for quashing of the notification issued under Section 8 of the Act. The appellants in the second appeal which was pending before the High Court filed application for abating the appeals since the area was declared agricultural areas under Section 8 of the Act. The High Court allowed the application and the suits and the appeals arising therefrom were abated. Against the order of abatement the trust filed special leave petition before this Court which gave rise to civil appeal Nos. 1402/69 and 1403/69 (wrongly stated as 1492 and 1493) and also a writ petition bearing No. 185/69 (wrongly stated as 105/69) for quashing the Government Notification dated 16-6-1964 under Section 8 of the Act. A Constitution Bench of this Court by the judgment reported in 1973 (2) SCC 238 . AIR 1973 SC 1293 (S. P. Watel and Ors. v. State of U.P.) allowed the writ petition and quashed the Notification dated 16-7-1964 under Section 8 of the Act in respect of the lease in dispute and issued certain directions to the State Government. The operative portion of the judgment reads as follow: "In the result, we allow the writ petition and quash the Government notification under Section 8 of the Act, dated June 16, 1964, with respect to the land in dispute. We direct the Government to proceed afresh with respect to the land in dispute in accordance with Sections 3, 4, 5 and 6 of the Act. If it is found in the course of enquiry under Sections 3, 4 and 5 that the land in dispute was an "Agricultural area" and was being used for agriculture or horticulture on the relevant date, it will be open to the Government to issue a notification with respect to it under Section 8 if, on the other hand, it is found in that enquiry that it was not an "agricultural area" on the said date, no notification under Section 8 should be issued with respect to it. The appeals are also allowed. The orders of the High Court abating the appeals and the suits are set aside. The High Court will restore the appeals and the suits to their original numbers. The appeals are also allowed. The orders of the High Court abating the appeals and the suits are set aside. The High Court will restore the appeals and the suits to their original numbers. The appeals will be decided on merits when the appropriate authority under Section 5 of the Act has held that the land in dispute is not an "agricultural area". If it is held by him that the land in dispute is an "agricultural area" and the State Government issues a notification under Section 8 of the Act which respect to the land, the appeals will be disposed of in accordance with the provisions of the Act. In the circumstances of this case parties shall bear their own costs." 12. In the appal filed by Rajeshwar Dalay and others against the order of the Commissioner Meerut Division App. No. 93(-)M 2000-2001 the Member, Board of Revenue, dismissing the appeal, by his order dated 19-11-2001 made the following observations: "The main dispute in this case is that whether the disputed land is being used by Pt. Bateshwar Dayal Sharma and his legal heirs for the purpose of agriculture or plantation or not. For determination of this fact, on perusal of the evidence adduced on the record of file, it is clear that in the Reports dated 5-4-1976 and 13-11-2000 of Demarcation Officer, in this regard, it is clearly mentioned that the disputed land is not being used for agricultural purpose. In this respect, I am fully in agreement with the view of Commissioner, Meerut Division, Meerut that the assessment of the disputed land is to be determined on the basis of prescribed year 1956 and the evidence adduced on the record by Rajeshwar Dayal and Ors. is related to after the year 1956. In such circumstances, I am fully in agreement with the conclusion of the Commissioner, Meerut Division and I uphold the order dated 1-5-2001 passed by him and do not consider any need of interference of any kind. The present appeal being devoid of any substance, is liable to be dismissed. In view of the above discussion, this appeal is dismissed. Order dated 1-5-2001passed by the Commissioner, Meerut Division is confirmed." 13. The present appeal being devoid of any substance, is liable to be dismissed. In view of the above discussion, this appeal is dismissed. Order dated 1-5-2001passed by the Commissioner, Meerut Division is confirmed." 13. From the discussions in the foregoing paragraphs the position that emerges is that the revenue authorities i.e. Commissioner, Meerut Division and the Member, Board of Revenue, have in compliance with the directions issued in the Judgment of the Constitution Bench in S. P. Watel case (supra) have determined the question whether the land in dispute was 'agricultural land' on the relevant date. They have concurrently held that the land was not being used as agricultural land on the relevant date. In view of such concurrent findings the question of Government issuing a notification under Section 8 of the Act abolishing the intermediary interest held by the trust in the property does not arise. The consequential position that follows is that the appellants who are in unauthorized occupation of the land since the expiry of the period of the lease have no valid reason to resist the claim of the trust for recovery of possession of the property. Therefore the judgment of the High Court dismissing the second appeals filed by the appellant herein is unassailable." 13. In the present case position is that after enforcement of U.P. Act No. IX of 1957 in Mauranipur, as to whether land in question can be treated to be agricultural area has to be decided on the parameter of U.P. Act No. IX of 1957 and only said land can be treated as agricultural area of land in reference to which as provided under Chapter II, demarcation of agricultural areas has been done as provided for under Sections 3, 4 and 5 of the Act and Section 8 of Chapter III. Parcel of the land which is being claimed by the defendant as agricultural land cannot be accepted as agricultural land on the relevant date i.e. 01.07.1964 for the simple reason that on enforcement of U.P. Act No. IX 1957 at no point of time any demarcation has been carried out nor any notification has been made under Section 8 to declare the said land as agricultural area, in this background land in question cannot be accepted as agricultural area land. After repeal of U.P. Act No. 17 of 1939, U.P. Tenancy Act only that land can be accepted as agricultural area, qua which there is declaration in terms of Section 3,4,5 and 8 of Act. 14. In the present case finding of fact has been returned by lower appellate court that in the documentary evidence which was filed therein at all point of time it was shown as Abadi land. In this regard documentary evidence taken into account are Ex.6, Khatauni for the year 1363 F, showing plot no. 873 area 41-14 2/3 acres abadi land. Paper No. 15101, Khasra of settlement year 1348 F, same also shows that total area of plot no. 873 was abadi land. Fard Mutahiquat paper no. 15201 showing previously the number of plot was 666/1 (873). Paper No. 159 C I Khasra of the year 1297 F, recording plot no. 666 as abadi land. Defendant has tried to contend that manipulations have been made in the said documents and there are long standing entries in the their favour. Entries in revenue record do not create, right or title nor it has any presumptive value on title, and whenever issues are raised the same is decided on its own independent assessment of evidence. It has been categorically recorded that entries made in favour of appellant were on the basis of patta which already stood cancelled and too which appellants predecessors had agreed to and qua the same even Kamlapat never came forward to question its validity. Here on overall assessment of evidence, including the factum of earlier compromise decree, and the fact that U.P. Tenancy Act had been repealed w.e.f. 01.07.1964, Appellate Court has clearly taken the view that land in question was abadi land, and on 17.08.1964, declaration could not have been made, that defendant had become hereditary tenant. Said view is correct view in the facts of the present case. Further finding of fact has also been returned that land in question was land appurtenant to temple and in term of provision as contained in proviso to sub-section (1) of Section 2 of U.P. Act No. 1957 it was not at al an agricultural area. Viewed from any point of view land in question cannot be accepted as agricultural land. 15. Viewed from any point of view land in question cannot be accepted as agricultural land. 15. Consequently in the facts of the case once matter had been remanded back for deciding afresh after taking into account the effect of abolition of provision of U.P. Tenancy Act including the transitory provision then for the reasons stated above inevitable conclusion is that after enforcement of U.P. Act No. IX of 1957, as to whether land in question belongs to agricultural area or not has to be decided on the parameter provided for under U.P. Act No. IX of 1957. Hon'ble Apex Court also in the case of Sudhir G. Angur and others Vs. M. Sanjeev and other reported in 2006 (1) SCC 141 , has taken the view that court is bound to take notice of change of law and is bound to administer the law as it was when suit comes up for hearing. Here in the present case on the said parameter and even on other parameters finding of fact has been returned that it was not an agricultural area and in this background civil court has got full authority and jurisdiction to try the suit. Once civil court has got full authority and jurisdiction to try the suit and default has been admittedly found then in this background finding of fact which has been returned is not at all liable to be interfered with. 16. Consequently present second appeal being concluded by pure finding of fact, as such is dismissed.