SATYAWATI Vs. RAMESHWAR DAYAL

JUDGEMENT

(1.) By means of this writ petition the petitioner has prayed for quashing the judgment of the Second Appellate Court dated 30-8-1975/9-9-1975 in Second Appeal No. 32 (Z) of 1971-72 Farrukhabad Rameshwar Dayal v. Smt. Satyawati. Brief facts giving rise to the present writ petition are that Rameshwar Dayal had filed a suit claiming Sirdari right in the disputed land. He had alleged that he along with Anokhey had filed a suit against the defendant under Section 59/180 of the U. P. Tenancy Act which was dismissed by the trial Court on 26- 6-1958 but his suit was decreed on 1-6-1959 by the first appellate Court and the judgment of the appellate Court was confirmed by the second appellate Court through its judgment dated 22-7-1961. According to the plaintiff the defendant had trespassed over the disputed land in June, 1964, hence the suit for ejectment against the defendant under Section 209 of the U. P. Z. A. and L. R. Act. The defence in the case was that the defendant had been in possession over the disputed land since 15- 11-1950 when the disputed property was released in her favour and that she had continued in possession over the property and had acquired right under Section 210 of the U. P. Z. A. and L. R. Act. Various other pleas were also taken. It was also urged that the plaintiff's suit was barred by the provisions of Order 2 Rule 2 C. P. C. and that the defendants had become Adhivasi and Sirdar of the disputed land. The first two Courts dismissed the plaintiffs' suit but in second appeal the plaintiff's suit has been decreed by the second Appellate Court through the impugned judgment. Now, the defendant- petitioner, has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner has contended before me that the second Appellate Court has patently erred in decreeing the plaintiff's suit and allowing his second appeal specially when it observed in paragraph 12 of the impugned judgment that the suit was clearly barred by Order 2 Rule 2 C. P. C. It his also been stressed that the defendants had acquired Sirdari right in the disputed land on the basis of their possession for more than statu tory period. The Learned Counsel for the contesting opposite party has submitted in reply that no futile writ should be issued by this Court and if the impugned judgment is to be quashed, it would be better that all the judgments should be quashed and the case should be sent back to the trial Court for fresh decision. During the course of argument it has been stressed that in the earlier suit it had been observed that the plaintiff had been in possession all along hence the plaintiff's possession would be deemed on the date of decision given by the First Appellate Court as well as the Second Appellate Court in the earlier litigation. When the finding on the question of possession till the date of the decision by the Second Appellate Court is accepted, the defendants' claim was rightly negatived by the Second Appellate Court in proceedings arising out of a suit giving rise to the present writ petition, hence the impugn ed judgment should not be interfered with. I find that the Second Appellate Court has patently erred in allowing the appeal and decreeing the plaintiff's suit when it observed that the suit was clearly barred by Order 2 Rule 2 C. P. C. The Learned Member has patently erred 5n appreciating the facts and law involved in the present case, hence his judgment deserves to be quashed. The real question 'involved in the present writ petition is whether the plaintiff's claim was barred by time. The trial Court held that the suit was not within time. The appellate Court in its judgment vide paragraph 7 has held as below:- ". . . . . . . . . lam, therefore, of opinion that virtually no cause of action arose in 1964 and the plaintiff has remained continuously out of posses sion from 1950. " The Second Appellate Court in its Judgment in paragraph 11 while deal ing with the question of limitation has observed as below;- ". . . . . . . . . The fact of merger of the trial Court's decree is that in the eye of law it dies a civil death. The Trial Court's decree loses its identi ty. It has only one reckoning in the eye of the law: It is not enforceable or executable. The decree of the Court of final jurisdiction alone operates between the parties. In view of this authoritative pronounce ment, I have absolutely no hesitation in holding that the instant suit was well within time. " But while dealing with the question of the applicability of Order 2 Rule 2 C. P. C. the Second Appellate Court in paragraph 12 of its judgment has observed as below:- ". . . . . . . . . In the instant case the cause of action in the first suit arose when the S. D. M. in the course of proceeding under Section 145 Cr. P. C. held Smt. Satyawati to be in possession of the land. As observed earlier the S. D. M. 's order was passed on 15-11-1950 and the first suit regarding the disputed property was filed on 17-1-1951. In that suit the trial Court also came to the same conclusion as the S. D. M. and the Sessions Judge who endorsed the S. D. M. 's finding of possession, but the trial Court's allegation that cause of action arose in June 1964 when the defendants trespassed over the land has not been believed by the two Courts below and being a finding of fact it cannot be challenged at this stage. Thus the real cause of action arose in 1950 when the plaintiff lost his case before the S. D. M. under Section 145 Cr. P. C. and filed the previous suit on 17-1-1951. " From the above extracts of the impugned judgment I infer that the Second Appellate Court has recorded contradictory findings and has not correctly appreciated the facts involved in the present case. The knotty ques tion under consideration is that in proceedings under Section 145 Cr. P. C. the possession of the petitioner was held by the Criminal Court in the year 1950. It is not very clear as to whether the petitioner had actually taken possession from Criminal Courts after the decision in her favour. It is note worthy that the contesting opposite party had filed a suit for declaration of his tenancy right and for recovery of possession but in that case it was found that the contesting opposite party (plaintiff in the revenue suit) was in posses sion hence the plantains' claim for declaration was only decreed. In appeal and second appeal arising out of earlier suit filed by the opposite party it was observed that the plaintiff had all along been in possession. Relying on the aforesaid observation it has been contended before ms by the learned counsel for the opposite party that the possession of the plaintiff was found till the dates when the first appeal and the second appeal were decided, hence the plaintiff's claim is well within time and it has been rightly observed by the second appellate Court in the circumstances of the present case. To my mind the findings recorded by the second appellate Court are contradictory and incorrect. The findings recorded by the first appellate Court and the second appellate Court in the earlier suit would mean that the plaintiff was in possession on the date when declaratory suit was filed by him. According to me the result of the findings of the first appellate Court and the second appellate Court in the earlier suit would be that the plaintiff opposite party was held in possession on 17-1-1951 though this finding does not appear as correct in the circumstances of the present case. The plaintiff opposite party had claimed relief of possession against the petitioner in the earlier suit and the possession of the present petitioner was found by the Criminal Court in the year 1950 and that finding has been completely ignored by the revenue Courts while decreeing the plaintiff's suit for declaration only and did not grant the relief by possession to the plaintiff as according to them the plaintiff was in possession. But the very fact that the plaintiff had to institute a second suit for possession under Section 209 of the U. P. Z. A. and L. R. Act against the petitioner indicates that the petitioner was really in possession over the disputed land and in order to get the possession over the disputed land the plaintiff was obliged to bring another suit giving a fresh cause of action regarding trespass by the petitioner in the year 1964. It is well known that even wrong decision between the parties operates as res judicata hence at the most it can be said that the plaintiff was in possession over the disputed property on 17-1-1951 but I am not prepared to accept the contention raised on behalf of the opposite party that the possession of the plaintiff would be accepted till the date of decision by the first appellate Court and the second appellate Court in appeals arising out of the plaintiff's earlier suit. The finding recorded by the second appellate Court holding the plaintiff's present suit well within time appears to me patently erroneous. On the basis of the evidence on record it is to be examined as to weather the plaintiff came into possession over the disputed land in some manner by ejecting the defendant petitioner when her possession was found by the Criminal Court. If the fact remains that the defendant petitioner was really not ejected by the plaintiff opposite party soon after the decision on question of possession by the Criminal Court in favour of the defendant petitioner how the suit giving rise to the present writ petition by the plaintiff can be held within time. If the cause of action regarding trespass by the defendant petitioner Is found incorrect how the plaintiff's suit can be decreed. These two questions do not appear to have been properly appreciated and examined by the second appellate Court hence its judgment deserves to be quashed. During the course of argument the learned counsel for the opposite party suggested that a futile writ should not be issued by this Court in the exercise of its powers under Article 226 of the constitution a number of cases were referred by the learned counsel for the opposite party but the only relevant case I find is Durga Gita Vidyalava Association v. State of Uttar Pradesh and others, 1962 A. LJ. 326 wherein a Full Bench of this Court has observed as below in the paragraph 15 of the ruling:- ". . . . . . . . . While exercising writ jurisdiction under Act 226, the High Court in India do not ascertain an advisory capacity and however fascinating might appear to be the form in which a party is able to present a legal question before the Court the latter should resist the temptation of entering into this alluring regime unless the legal question passed before it can be shown to be directly related to the specific right sought to be asserted or enforced in the writ petition itself. The primary purpose of Article 226 seems to be till enforcement of legal rights and obligations and not their declaration in vacuo. " In the present case do not think that the question of issuing futile writ arises. The claim of the defendant petitioner has been negatived by the second appellate Court on the ground that the plaintiffs suit was within time whereas the first two Courts has accepted the claim of the defendant peti tioner recording a finding on the question of limitation in her favour. The second appellate Court has failed to consider an important aspect as to whether the plaintiff opposite party ever came into possession over the disputed land after the decision of the Criminal Court in favour of the defendant petitioner. Moreover, the findings recorded by the second appellate Court are contradic tory and the findings have proceeded on wrong premise that the possession of the plaintiff would be construed till the date of decision of the appellate Court in the earlier suit whereas according to me it should have been inter preted as till the date of the institution of that suit only. No question of declaration in vacuo arises in the circumstances of the present case. Rather, the determination of legal right of the defendant petitioner is involved hence I am not prepared to accept the contention of the learned counsel for the opposite party that the writ should not be issued in the present case as it would be futile one. The Learned Counsel for the opposite party also sent two rulings Goon Sabha v. Parchti Pam, I. L. R. 7 Alld. 718=1973 R. D. 61 but they are inapplicable to the facts and circumstances involved in the present case and they have no bearing upon the questions under my consideration in the present case, hence the contesting opposite party cannot derive any benefit out of them in the present litigation. In the result, the writ petition succeeds and the impugned judgment of the second appellate Court dated 30-8-1975/9-9-1975 in Second Appeal No. 323 (Z) of 1971-72 Farrukhabad Rameshwar Dayal v. Smt. Satyawati, is hereby quashed and the second appellate Court is directed to re-examine the claims of the parties in the light of the observations made above and strictly in accordance with law. Parties are directed to bear their own costs. .