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2023 DIGILAW 1082 (ALL)

Suresh Chandra Srivastava v. S. D. O.

2023-04-20

NEERAJ TIWARI

body2023
JUDGMENT : 1. Heard Sri Bajinder Singh, Advocate, holding brief of Sri Vinod Kumar, learned counsel for the petitioners, learned standing counsel for respondent Nos. 1 & 2 and Sri Shashi Nandan, learned Senior Counsel assisted by Sri K.P. Tiwari, learned counsel for private respondents. 2. Present petition has been filed with the following prayers: “i. issue a writ, order or direction in the nature of certiorari calling for record and quash the order dated 22.02.2014, so far as it is against the petitioners. ii. Issue a writ, order or direction in the nature of mandamus commanding Sub Divisional Officer to issue fresh warrant and Parwana Amaldaramad and put the petitioners into possession over the entire area of plots comprising in Khewat No. 22 including entire area of plot no. 1380.” 3. The case was heard on 3.07.2019 and the Court has passed the following order: “Learned counsel for the petitioners submits that a supplementary affidavit has been filed in March 2018 and the substitution application has been filed in March 2019, however, the same are not on record. Office is directed to trace out and place the same on record. By means of present petition, the petitioner has sought a relief for handing over the possession of the land in question by Sub- Divisional Magistrate, Jhansi pursuant to the order and decree of the revenue court dated 20.07.1996 and 24.07.1996 respectively which have stood affirmed upto the highest court of appeal under the revenue law of the State. An order of Sub- Divisional Magistrate, Jhansi dated 12.12.2011 has also been annexed as Annexure No. 9 to the writ petition, whereunder the then Sub-Divisional Magistrate, Jhansi considered all aspects of the matter and directed for execution of the order and decree dated 20.07.1996 and 24.07.1996 respectively and consequential action was directed to be taken in respect to the revenue entries of the land as well. However, it transpires that subsequently on some objections filed by the contesting respondents, the Sub-Divisional Magistrate came to pass an order dated 22.02.2014 by which it virtually rejected the request of petitioner for carrying out the order dated 12.12.2011 and hence this petition was preferred challenging the said order as well. However, it transpires that subsequently on some objections filed by the contesting respondents, the Sub-Divisional Magistrate came to pass an order dated 22.02.2014 by which it virtually rejected the request of petitioner for carrying out the order dated 12.12.2011 and hence this petition was preferred challenging the said order as well. However, it is admitted to the parties that subsequently, during pendency of the present writ petition, the Additional Commissioner (Administration), Jhansi Division, Jhansi allowed the revision filed by the judgment debtors themselves and set aside the order dated 22.02.2014. In view of the above fact emerging out of the pleadings raised by the parties as far as the prayer no. 1 of the present writ petition is concerned, it has got rendered infructuous. The question is now for consideration before this Court regarding execution of judgment and decree still standing in favour of the petitioner as far as revenue courts are concerned and the land admittedly being agricultural land, under the state revenue laws, it is contended that the revenue courts are the ultimate authorities. A counter affidavit has been filed on behalf of the respondent nos. 1 & 2 namely the Sub-Divisional Officer, Tehsil Sadar, Jhansi and Tehsildar, Tehsil Sadar, Jhansi sworn by Tehsildar Rajendra Bahadur himself in which vide para 19 it has been stated in quite unequivocal terms that the respondents have been dispossessed by the state authorities and the possession of the land in question has got vested with the Sub Divisional Officer and memo of possession to that effect dated 08.04.2013 has been filed. In the face of facts that the order of Sub Divisional Magistrate, Jhansi dated 22.02.2014 has already been set aside by the Additional Commissioner in Revision No. 3/35 of 2013-14 vide order dated 10.11.2017 and the possession memo also shows that the land has been in possession of the Sub Divisional Officer concerned, this Court fails to understand as to why and under what circumstances, no further action has been taken, more especially when the earlier order of the Sub Divisional Officer, Jhansi dated 12.12.2011 is still surviving. Let the Sub Divisional Officer, Jhansi file his personal affidavit before this Court by the next date fixed explaining as to what further course of action has been adopted by him after the order dated 22.02.2014 passed by him has come to be set aside by Additional Commissioner in revision. Let the Sub Divisional Officer, Jhansi file his personal affidavit before this Court by the next date fixed explaining as to what further course of action has been adopted by him after the order dated 22.02.2014 passed by him has come to be set aside by Additional Commissioner in revision. List this matter on 29.07.2019 peremptorily. A certified copy of this order be supplied to Sri Rahul Malviya, learned Advocate free of cost, within 48 hours, for necessary compliance.” 4. Pursuant to order of this Court dated 03.07.2019, compliance affidavit dated 25.07.2019 has been filed by respondent No. 2 and it is stated in para 12 of the said affidavit that against the order dated 20.07.1996, passed by Sub-Divisional Officer, Jhansi, an Orginal Suit No. 319 of 2010 has been filed before Additional Civil Judge(J.D.), Court No. 11, Jhansi and vide order dated 10.04.2015, the said suit was allowed declaring the order dated 20.07.1996 as null and void. Against the order dated 10.04.2015, Civil Appeal No. 31 of 2015 has been filed by the petitioner-defendant which has also been dismissed by the appellate court, i.e. Additional District Judge, Jhansi vide order dated 8.4.2021. 5. The facts mentioned hereinabove as well as in order dated 03.07.2019 of the Court have not been disputed by the counsel for the parties. 6. Learned counsel for the petitioner-defendant firmly submitted that present dispute is covered under Section 242 of the U.P. Tenancy Act, 1939(hereinafter referred to as, 'Act of 1939') and therefore, Civil Suit No. 319 of 2010 is not maintainable. He also submitted that during the pendency of the execution proceeding, Section 47 of Code of Civil Procedure, 1908 (hereinafter, referred to as, 'C.P.C.') bars for filing a fresh suit for the same cause of action. The sole argument of learned counsel for the petitioner is that once the Civil Court is having no jurisdiction, any order passed by the Civil Court cannot be given effect and once the order of Revenue Court has attained finality up to Board of Revenue, it is required on the part of revenue authorities to comply the same. 7. The sole argument of learned counsel for the petitioner is that once the Civil Court is having no jurisdiction, any order passed by the Civil Court cannot be given effect and once the order of Revenue Court has attained finality up to Board of Revenue, it is required on the part of revenue authorities to comply the same. 7. He next submitted that during the course of execution proceeding, once the possession has been taken by the respondent No. 1, S.D.M. it is required on the part of respondent No. 2, Tehsildar to hand over the possession to petitioner-defendant ignoring the order of Civil Court dated 10.04.2015 and order of Appellate Court dated 08.04.2021. 8. He also submitted that question of jurisdiction can be raised at any stage of proceeding as it goes to the root cause of dispute. 9. In support of his contention, learned counsel for the petitioner placed reliance upon the judgment of Apex Court in Civil Appeal No. 658 of 2008: Chief engineer, Hydel Project & Ors. Vs. Ravinder Nath & Ors. decided on 24.01.2008, Civil Appeal No. 1346 of 2010: Milkhi Ram Vs. Himachal Pradesh State Electrity Board, decided on 08.10.2021, Civil Appeal 5617 of 1999: Balvant N. Vishwamitra And Ors. Vs. Yadav Sadashiv Mule (D) Through LRs. And Ors., decided on 13.08.2004 Judgment of Patna High Court in Shiva Poojan Dubey And Anr. Vs. Baban Lal And Ors: AIR 1959 Pat 13 . 10. Sri Shashi Nandan, learned Senior Counsel for the private respondents firmly submitted that there is no dispute on the point that Civil Court vide order dated 10.04.2015 passed in Suit No. 319 of 2010 has declared the order dated 20.7.1996 as null and void, against which Civil Appeal No. 31 of 2015 was filed by the petitioner, which has also been dismissed by the appellate court vide order dated 8.4.2021. In Suit No. 319 of 2010, an issue was framed that as to whether order dated 20.07.1996 passed by Deputy Collector, Jhansi in Case No. 1/93-94 : Suresh Chandra Vs. Ram Dayal under Section 80 of U.P. Tenancy Act was illegal or a nullity due to lack of jurisdiction. The question was decided in favour of plaintiff-respondent. The order dated 10.04.2015 was affirmed by the Appellate Court vide order dated 8.4.2021, therefore, the only remedy available to the petitioner is to file second appeal under Section 100 of C.P.C. 11. Ram Dayal under Section 80 of U.P. Tenancy Act was illegal or a nullity due to lack of jurisdiction. The question was decided in favour of plaintiff-respondent. The order dated 10.04.2015 was affirmed by the Appellate Court vide order dated 8.4.2021, therefore, the only remedy available to the petitioner is to file second appeal under Section 100 of C.P.C. 11. He also pointed out that civil suits are filed under Section 9 of the C.P.C., which clearly provides that unless there is any specific bar, Civil Court has jurisdiction to try all suits of civil nature. 12. He further submitted that Section 47 of C.P.C. is only applicable for civil suits filed under the provision of C.P.C. and is not applicable in the suits filed under Act of 1939. He reiterated that unless orders of Civil Courts dated 15.042015 and 8.4.2021 are holding the field, execution proceeding cannot be proceeded and possession of the land in question cannot be given to petitioner-defendant. 13. I have considered the submissions made by learned counsel for the parties, perused the record as well as judgment so relied upon. 14. There is no dispute on the point that order dated 20.7.1996 has attained finality up to the highest Court of appeal under the revenue law of the State and it is also not disputed that the very same order i.e. dated 20.7.1996 has been declared null and void by the Civil Court in its order dated 10.04.2015, which has been affirmed by the Appellate Court vide order dated 8.4.2021. 15. The facts of the first case, i.e. Chief engineer, Hydel Project & Ors(Supra) relied upon by the learned counsel for the petitioner is that the Suit is to be decided on the issues which are within the domain of Industrial Disputes Act, 1947 and, therefore, Civil Court is having no jurisdiction to try the suit, as it was expressly barred and the suit could only be adjudicated by the Labour Court. In this case, the Apex Court ultimately declared the order of Civil Court without jurisdiction. 16. This case is of no use in the present controversy for the very same reason that order of Civil Court after disposal of appeal has attained finality against which no second appeal has been preferred by the petitioner-defendant. In this case, the Apex Court ultimately declared the order of Civil Court without jurisdiction. 16. This case is of no use in the present controversy for the very same reason that order of Civil Court after disposal of appeal has attained finality against which no second appeal has been preferred by the petitioner-defendant. Further, an issue of jurisdiction of S.D.M. was before the Civil Court, in which it was held that S.D.M. has no jurisdiction to pass order dated 20.7.1996. 17. The Second judgment relied upon by the learned counsel for the petitioner is Milkhi Ram(Supra). This case is also having a different fact, i.e. Civil Court has no jurisdiction to entertain the claim based upon the Industrial Disputes Act, 1947 and further if any decree is passed by the Court without jurisdiction, the same shall have no force of law. In that matter, decision of Civil Court was under challenge and in the present case, the same is lacking as the order of appellate court dated 8.4.2021 has never been challenged and the same has attained finality. Therefore, this case is also of no use. 18. The third judgment relied upon by the learned counsel for the petitioner is Balvant N. Vishwamitra And Ors.(Supra) about the argument made by learned counsel for the petitioner with regard to void ab initio or voidable. This judgment is also not coming in the rescue of the petitioner for the reason that the Civil Court vide order dated 10.04.2015 has declared the order of S.D.M. Jhansi dated 20.07.1996 as null and void after framing the issue of jurisdiction and the same has also been affirmed by the Appellate Court vide order dated 8.4.2021. Therefore order of Civil Court dated 10.4.2015 and order of Appellate Court dated 8.4.2021 cannot be said to be void ab initio without its reversal from the Higher Court and the same cannot be ignored by the Revenue Authorities. 19. So far as fourth judgment of Patna High Court in the matter of Shiva Poojan Dubey(Supra), relied upon by the learned counsel for the petitioner is concerned, that also says that during the pendency of execution proceeding, Section 47 of C.P.C. bars for filing any civil suit, therefore suit No. 319 of 2010 is not maintainable. 19. So far as fourth judgment of Patna High Court in the matter of Shiva Poojan Dubey(Supra), relied upon by the learned counsel for the petitioner is concerned, that also says that during the pendency of execution proceeding, Section 47 of C.P.C. bars for filing any civil suit, therefore suit No. 319 of 2010 is not maintainable. This judgment is also not applicable to the case of the petitioner for the very same reason that during the pendency of execution proceeding, a fresh suit has not been filed for the same cause of action, but order of Sub Divisional Magistrate dated 20.07.1996 has been challenged before the Civil Court and the Civil Court vide order dated 10.04.2015 has declared the order dated 20.07.1996 as null and void. Therefore this judgment is also of no use. 20. Further, Section 9 of the C.P.C. provides for filing of suit unless barred expressly or impliedly and Section 47 of C.P.C. shall not be applicable in the suits covered under the provision of Section 242 of Act of 1939. 21. Once it is undisputed that the order of Revenue Court dated 20.07.1996 has been declared null and void by the Civil Court vide order dated 10.04.2015, which has been affirmed by the Appellate Court vide order dated 8.4.2021, no relief can be granted to petitioner. 22. In views of the facts and circumstances of the case, no mandamus can be issued for grant of possession to petitioner as prayed. 23. The petition lacks merit and is accordingly dismissed. 24. No order as to costs.