KAILASH PRASAD NAIK Vs. MOHAN LAL SEHGAL

JUDGEMENT

(1.) This is a judgment-debtor's execution second appeal arising out of a decision of the 1st Temporary Civil and Sessions Judge, Gorakhpur, dated October, 4, 1. 967 allowing an appeal of the decree holder- respondent, dismissing an objection of the judgment debtor filed under Section 47 of the Code of Civil Procedure. The facts briefly stated are these:- Smt. Rani Dhandi Kunwar was the Zamindar and owner of the disputed land which were plot No. 376 area 4 dismal and 377 area 36 dismal of Mohalla Sheikhpur, Gorakhpur City. The property of Rani Dhandi Kunwar was taken over under the Court of Wards Act, as a result thereof, the management of the properties vested in the Collector. On 7th October, 1952 the Collector executed a lease in respect of the aforesaid two plots in favour of the appellant Kailash Prasad. Since Kailash Prashad did not pay the rent agreed to by him under the aforesaid lease deed, suit No. 285 of 1956 was filed against him for recovering the same. The suit was decreed. However, it appears that thereafter Kailash Prasad made another default. This led to the filing of another suit No. 232 of 1963. The relief claimed in this suit was (1) for recovery of arrears of rent and damages; and (2) for recovery of possession. The suit was decreed exparte on 23. 10. 1963. The judgment debtor appellant moved an application for setting aside the exparte decree but he failed in getting the decree set aside. Consequent upon the decree having become final, the decree holder-respondent moved an application for execution. The prayer made was for recovery of Rs. 1448 p. 75 and possession over plot No. 376 area 04 acre and 377 area. 36 area of Mohalla Sheikhpur, Gorakhpur. The judgment-debtor appellant filed an objection to the execution of the decree. One of the objections was that since the land in dispute was demarcated under Section 8 of the U. P. Urban Area Zamindari Abolition and Land Reforms Act as agricultural area, the rights of the decree-holder had extinguished and the respondent was not entitled to get possession of the plots which had been demarcated as agricultural area. The objection was contested by the decree holder. On October, 4, 1967 the 1st Additional Civil and Sessions Judge, Gorakhpur allowed the objection of the judgment debtor partly and rejected the application for execution filed by the decree-holder, respondent in respect of the aforesaid two plots. He, however, held that the decree-holder respondent was entitled to get the amount recovered from the judgment debtor-appellant which had also been decreed. Being aggrieved the decree-holder-respondent preferred an appeal before the District Judge which was transferred to the 1st Temporary Civil and Sessions Judge. In the appeal, the main question argued was about the applicability of the provisions of U. P. Urban Zamindari Abolition and Land Reforms Act and its consequences. The learned Additional Civil Judge went into the merits of the argument raised on behalf of the judgment debtor and having found that the plot in dispute was not agricultural area, allowed the appeal and set aside the order of the executing Court. Being aggrieved the judgment debtor filed the present appeal. The main question to be considered in this appeal is with regard to the determination of the plot numbers 377 and 376 as agricultural area The entire area of these plots which was the subject matter of the decree had been demarcated as agricultural area in the proceedings uuder the Urban Area Zamindari Abolition and Land Reforms Act. After these proceedings had been completed under rule 14 of the Rules framed under the Act, a separate Khasra and Khatauni for the agricultural area demarcated under Section 8 was prepared in U. A. Forms 3 and 4 respectively. As the consequence of the demarcation was that under Section 8 of the Act, the area demarcated stood vested in the State Government, under Section 10 of the said act the rights, title and interest of all the intermediaries in such area which is declared as demarcated agricultural area are extinguished. As a result of the extinction of rights the intermediary becomes entitled to get compensation and is not entitled to get possession of the area demarcated as agricultural area from the person to whom the right under the Urban Area Zamindari Abolition and Land Reforms Act accrues. Reverting to the facts of the present case, the two plots had been demarcated as agricultural area. The Court below, however, found that the demarcation of this area was factually incorrect and as such the decree-holder-respondent was entitled to execute the decree and get possession of the land in respect of which the decree had been obtained by him. For arriving on this finding, the Court below relied upon the decision which had been given between the parties upon in the suit No. 2853 of 1956 filed by the Collector for recovery of Rs. 176/- as arrears of rent. Of that case, the copy of the written statement was filed as Ext. 10. In the said written statement the judgment debtor had claimed himself to be a tenant. The argument of the judgment debtor was repelled and the suit was decreed for recovery of Rs. 1050/- from the judgment of the said case holding that the land was not agricultural and that the judgment debtor acquired no rights over the same. From the oral evidence of the parties led in this case also th-lower appellate Court concluded that the disputed area was not an agricultural area within the meaning of this Act and as such the decree- holder was entitled to get the decree executed. . . The view taken by the Court below appears to be erroneous. It may be correct that the proceedings in suit No. 2853 of 1956, the area in dispute was not considered as land but that did not prohibit the authorities appointed under the U. P. Urban Area Zamindari Abolition and Land Refer ns Act from examining the whole thing de novo and to come to their own conclusion about the nature and character of the land. The question as to whether a particular plot is an agricultural area and is liable to be demarcated as such, is to be decided with reference to a particular date specified in Section 2 of the aforesaid Act. The controversy involved in Civil suit. No 2853 of 1956 was altogether different. The Court below was not called upon to decide the question relating to determination of agricultural -area with reference to the provisions of U. P. Urban Area Zamindari Abolition and Land Reforms Act. The U. P. Urban Area Zamindari Abolition and Land Reforms Act was special Act having a different scheme and made for a different object. The decision given therefore, in the Civil Suit was wrongly taken into account by the learned Additional District Judge in coming to the conclusion that the land was not agricultural area. The second thing which is required to be mentioned is that if the pro ceedings have become final and the area demarcated as agricultural, the Civil Court has no jurisdiction to go behind the determination made by the authorities under the U. P. Urban Area Zamindari Abolition and Land Reforms Act to hold that the decision given therein was erroneous, Even if the determination was erroneous, the Civil Court would not investigate into the factual aspects and come to a finding or conclusion different to that arrived at in the proceedings under the Act. In such an event the jurisdiction of the Civil Court is of a limited nature and it can ignore a judgment given by an authority appointed under an Act only when some mandatory provisions have been ignored or that mandatory proceedings provided has not been complied with. In the present case, such is not the position. The lower appellate Court took upon itself the job of Court of appeal over the proceedings of the authorities appointed under the U. P. Urban area Zamindari Abolition and Land Reforms Act and acting as such held that the land could not be demarcated as agricultural area. This was beyond the jurisdiction of the lower appellate Court. It is settled by a long series of authorities which need not be cited in this judgment that in a matter like the presjnt, the civil Court has no jurisdiction to interfere. It may be pointed out here that the lower appellate Court did not find that the authority had committed any mistake of the nature which could invoke the Civil Court's jurisdiction entitling it to interfere but considered the evidence led before it and held that the land was not agricultural. Sri U. K. Misra counsel for the decree-holder-respondent invited my attention to the preamble of the U. P. Urban Area Zamindari Abolition and Land Reforms Act as well as to the definition of the expression "agricultural area" and Section 10 of this Act. Referring to these provisions the learned counsel urged that the Act could only apply to a case of agricultural area and the present being not the agricultural area it could not be applied. There is no quarrel with the proposition advanced by the learned counsel for the respon dent. It is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point upon which its jurisdiction depends, but this does not entitle a Civil Court to substitute its own decision given on the merits of the case by a Court of limited jurisdiction. To ask a Civil Court to decide a case on merits is to convert it into a Court of appeal over the tribunal. Section 78 of the Act makes the decision of the authorities appointed under the Act final and conclusive. As a result of the extinction of rights of the decree holder respondent and its vesting in the State, the Court below has no longer any right to get the decree executed for possession of the land demarcated as agricultural area. Counsel also urged that under Section 2 (1) (d) only that area could be considered as agricultural area within the meaning of the Act which had been taken for growing crops and planting a grove. But where as here the lease was taken only for the purpose of construction the land is not covered by the definition given in Section 2 (1 ). The submission made is not acceptable. In S. P. Patel v. State of U. P. A. I. R. 1973 S. C. 1239 a similar argument was advanced before the Supreme Court to argue that Article 31- A of the Constitution did not apply and as Article 31-A did not apply, the appellant of that case was entitled to challenge the validity of the Act. The Supreme Court repelled the contention of the appellant In doing so, it was also required to interpret Section 2 (1) (d ). Interpreting Section 2 (1) (d) the Supreme Court observed: ''having regard to the context already pointed out and the object of the Act is seems to us that Section 2 (1) (d), though apparently expressed in wide language, is limited to lands which are on the relevant date being used for growing crops or as grove or as pasture land. It does not apply to lands which are not being so used. " It is, therefore, clear that even if lease has been taken before July, 1955 but it is shown to be in the use for agricultural purposes on the relevant date, the area under cultivation could be demarcated as agricultural land. The mere fact of taking a piece of land for making a construction was not conclu sive in itself to determine the question as to whether it was an agricultural area or not. Sri U. K. Mishra also urged that since in the instant case the finding recorded was that the building and huts had been constructed over a mayor portion of the land in dispute, the area could not be considered as agricultural. That may be so, but the question still is as to whether this Court was competent to record a finding on this controversy. If the decree-holder respondent was aggrieved by the determination of the land as agricultural area the proper remedy lay in challenging the determination either by preferring an appeal provided by the Act or filing a writ petition against the same. That was not done. It is not possible to accept the argument of the learned counsel for the respondent. Sri U. K. Mishra also contended that since the decree passed in his favor had become final the appellant could not challenge his right to execute the same on the ground stated above. The submission made is not correct. In the present case I have already stated above that the decree was passed in favor of the respondents in the year 1963 whereas the notifi cation under Section 8 of the U. P. Act No. 9 of 1967 was published in the Official Gazette dated 22 June, 1956. Consequently this new fact which came into existence after the decree could be taken into consideration. In the result, the appeal succeeds and is allowed. The judgment of the lower appellate Court is set aside and that of the first Court is restored. In the circumstances, the parties shall bear their own costs. .