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CHANDRIKA MISIR & ANR versus BHAIYA LAL

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1973 AIR 2391 1974 SCR (1) 290 1973 SCC (2) 474

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CHANDRIKA MISIR & ANR V. BHAIYA LAL [1973] RD-SC 125 (31 July 1973)

PALEKAR, D.G.

PALEKAR, D.G.

ALAGIRISWAMI, A.

CITATION: 1973 AIR 2391 1974 SCR (1) 290 1973 SCC (2) 474

ACT:

U.P. Zamindari Abolition and Land Reforms Act, 1951 and Rules-Sections 209 and 331-Whether Civil Court had Jurisdiction to entertain the suit-Limitation.

HEADNOTE:

Appellants brought this suit against the present respondent for possession of certain Bhumidhari plots. The plots had been purchased in the name of the appellant's uncle. After the death of the uncle who died is sunless, the plots were recorded in the name of his widow. The widow died in 1948.

The appellants as the next reversions claimed title to the plots. The respondent contended that the suit was barred by limitation.

The courts below were unanimously of the opinion that the plaintiffs had title to the property and the defendant had none. The learned Munsiff however dismissed the suits as being barred by limitation. In appeal, the learned Addi- tional Civil Judge reversed the finding and decreed the--suit. In second appeal the High Court was of the view that the period of limitation was not the one which was prescribed under the Limitation Act, but the one which was provided in Appendix 2 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, which was 2 years from 1-7-1952.

Since the suit was filed on 5-9-1955, it was barred by limitation.

Dismissing the appeal,

HELD : (i) Sections 209 and 331 of U.P. Zamindari Abolition and Land Reforms Act 1951, when read together, showed that a suit, like the present one, had to be filed in a Special Court created under the Act within a period of limitation specially prescribed under the Rules made under the Act, and the jurisdiction of the ordinary Civil Courts to entertain the suit was absolutely barred.

[292C] Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction because of special provisions of the U.P. Zamindari Abolition and Land Reforms Act 1951, the present appeal filed by the appellants had to be dismissed. [293B]

CIVIL APPELLATE JURISDICTION :-Civil Appeal No. 2032 of 1968.

Appeal by certificate from the judgment and decree dated January 31., 1968 of the Allahabad High Court in Second Appeal No. 2128 of 1963.

Yogeshwar Prasad and M. Veerappa, for the appellants.

Uma Mehta, S. K. Bagga and S. Bagga, for the respondent.

The Judgment of the Court was delivered by PALEKAR. J.-This is an appeal by special leave against the Judgment and decree of the Allababad High Court in Second Appeal No. 2128 of 1963. The plaintiffs brought the suit against one Bhaiya Lal, the present respondent, in respect of certain Bhumidari plots' The plots had been purchased in the name of one Markandey the uncle of the plaintiffs.

After the death of Markandey. who died without issue, the plots were recorded in the name of his widow Jagdamba.

Jagdamba died in 1948. The plaintiffs as the next reversioners claimed 291 title, to the property. They alleged that the respondent was interfering with their possession and hence they prayed for a permanent injunction. In the alternative, they also asked for the relief of possession. The suitwas filed on 5- 9-1955.

Several pleas were taken on behalf of the defendant one of them being a plea of limitation. The courts were unanimously of the opinion that the plaintiffs, being the next heirs, had sufficient title to the property while the defendant had none whatsoever. The learned Munsif in whose court the suit was filed however, held that the suit was barred by limitation. In appeal the learned Additional Civil Judge, Varanasi, held that the plaintiffs claim was not barred by limitation. Accordingly, possession was decreed in favour of the plaintiffs.

In second appeal the High Court found that the question of limitation could not be properly determined unless there was a specific finding on two issues one relating to the commencement of the possession of the plots in 1951-52. The finding on the second issue was Chandrika Misir, at the time of filing the suit. The High Court re: manded these two issues to the First Appellate Court for a finding. The finding on the first issue was that the defendant took actual possession of the plots in 1951-52. The finding on the second issue was that plaintiff No. 1 Chandrika Misir was a minor when Jagdamba died in 1948 and that he attained majority in the year 1955 and not before that.

When the case again came before the learned Chief Justice for the disposal of the appeal, these findings were accepted as they were findings of fact. The only point that the High Court had to decide was whether the suit which had been filed on 5-9-1955 i.e. the year in which the plaintiff no.

1 had attained majority was in time, In an ordinary suit filed in a Civil Court for possession on the ground of dispossession the question of limitation, on the above facts, would have hardly arisen. Jagdamba bad died in 1948 and plaintiff no. 1 the next reversioner came of age in 1955. The period of limitation would be 12 years and the suit would be obviously in time. But the High Court was of the view that the period of limitation was not the one which was prescribed in the Limitation Act but the one which was laid down in the Appendix to The Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 which was two years from 1-7-1952 which was the date of vesting under the U.P.

Zamindari Abolition and Land Reforms Act (Act No. 1 of 1951). The High Court further held that the fact that the plaintiff no. 1 was a minor at the time of filing of the suit did not help him because section 6 of the Indian Limitation Act, 1908 did not govern suits falling under U.P.

Act No. 1 of 1951.

Accordingly, the suit was dismissed.

It is from this Order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a Civil Court for possession and the Limitation Act will be the Act which will 'govern such a suit. It is not the case that U.P. Act No. 1 of 1951 authorises the filing of the suit in a Civil Court and prescribes a period of limitation for granting the relief of possession 292 superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in fayour of the Plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdiction had not been raised by the defendant in the Trial Court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogheshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads sections 209 and 331 of the U.P. Act No. 1 of 1951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary civil Courts is absolutely barred. Section 209 so far as we are concerned reads as follows "209 Ejectment of persons occupying land without title (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and- (a) where the land forms part of the holding of a bhumidhar, sirdar or asami, without the consent of such bhumidhar, sirdar or asami, and (b)..............................

shall be liable to ejectment on the suit in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami concerned, and shall also be liable to pay damages.

(2) To every suit relating to a land referred to in clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party." In the present case it has been held that the defendant has been re that the land is bhumidhari land and the plaintiffs are bhumidhars. taining possession of the land contrary to law being a trespasser; Therefore, the suit was of a description falling under section 209. Section 331 so far as it is relevant is as follows :

"331. Cognizance of suits, etc., under this Act.

(1)...Except as provided by or under this Act no Court than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof." Schedule II at serial no. 24 shows that a suit for ejectment of persons occupying. land without title under section 209 should be filed in the court of the Assistant Collector, First Class, which is described as the Court of Original Jurisdiction. In view of Section 293 331 (1) quoted above it is evident that the suit made cognizable by a special court i.e. the Court of the Assistant Collector, First Class, could not be filed in a Civil Court and the Civil Court was, therefore,, inherently lacking in Jurisdiction to entertain such a suit. it is unfortunate that this position in law was not noticed in the several Courts through which this litigation has passed, not even by the High Court which had specifically come to the conclusion that the period of limitation was the one laid down by the rules under U.P. Act No. 1 of 1951. Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction, the present appeal filed by the plaintiffs will have to be dismissed.

As regards costs, we do not think that this is a fit case in which. the defendant should get his costs in any of the courts. Though he had no title to the property, he was trying to set up a title. But his attempt was negatived by all the courts. He did not urge also the contention with regard to the Jurisdiction of the court at any stage except in this Court. Therefore, while dismissing the appeal, we further direct that the plaintiffs and the defendant Shall bear their, own costs throughout.

Appeal dismissed, S. N.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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