SUMITRA DEVI Vs. ARJUN

JUDGEMENT

(1.) The sole question in the present revision is whether the civil Court or the revenue Court had jurisdiction to try the suit in question. The suit was for an injunction. It related to some plots of agricultural land. The plaintiffs allege that they were in adverse possessjon of the plots for a long time and they have acquired Sirdari rights. The defendants, without any right, were interfering with their possession. In defence it was pleaded that the Gaon Sabha had allotted the plots in dispute to the defendant- applicant and she was hence entitled to remain in possession. It was, inter alia, pleaded that the civil Court had no jurisdiction to try the suit. The trial Court framed an issue on this point and upheld this objection. He directed that the plaint be returned to the plaintiffs for presentation before the appropriate Court. On appeal, the finding was reversed. The learned 1st Additional Civil Judge held that the suit was maintainable in the civil Court. Aggrieved; the defendant-applicant has come to this Court in revision. It appears that the plaintiffs had earlier filed a suit for an in junction against some other persons in respect of the same plots of land. That suit was decreed and the decree became final in that suit. It was held that the plaintiffs have become owners of the plots in dispute. It also appears that the plaintiffs filed an application for cancellation of the order of allotment granted in favour of the defendant- applicant by the Gaon Sabba That application failed. It further appears that on the basis of the order of allotment passed by the Gaon Sabha, the defendants applied for mutation. The plaintiffs objected to it. The objection was rejected. The plaintiffs then went up in revision to the Additional Commissioner. The Additional Commissioner held that the Gaon Sabha does not appear to be the owner oi the land. It had no jurisdiction to allot the land to any one. He recommended to the Board of Revenue that the allotment order be quashed. I am informed that the Board of Revenue has not yet disposed of the matter. The learned 1st Additional Civil Judge has also mentioned in his judgment that paper No. 11c-2 is a copy of the Khasra in which Arjun, Nanak and Baroo (some of the plaintiffs) are shown in possession of the land. Learned Counsel for the applicant points out that in this Khasra the three of the plaintiffs have been recorded as trespassers in column 9 over two out of the seven plots in dispute. The position is that the plaintiffs claim to be the Sirdars. This claim has pot yet been accepted either by the State or by the Gaon Sabha, Inasmuch as the revenue papers do not indicate that the plaintiffs have ever been recorded as Sirdars. The copy of the Khasra filed by the plaintiffs only show that they have been recorded in possession as trespassers over two of the plots. That is no, recognition by the revenue authorities of the claim of title of the plaintiffs. To so far as the allotment of the land in favour of the defendant is concerned, the proceedings are still pending. The allotment order has not yet been quashed. So long as it is not quashed or set aside, it will remain in operation where under the defendant can legitimately claim some title. The plaintiffs' claim of title is neither settled nor recognised. They have to obtain a declaration of their title. Declaration of title as Sirdars can be made only by the revenue Courts. The civil Courts have no jurisdiction to grant that kind of declaration. The previous suit referred to by the Court below was a suit in the civil Court. In that case some finding about the ownership of the plaintiffs is recorded. As noticed above, the civil Court has no jurisdiction to grant a declaration as Sirdar of agricultural plots of land. That finding hence cannot be used to hold that the plaintiffs have been declared to be Sirdars of the land by any competent Court. In my opinion on the facts and circumstances appearing, the suit was not maintainable in the civil Court The trial Court has rightly returned the plaint for presentation to an appropriate revenue Court. The learned 1st Additional Civil Judge has referred to the proviso to Section 331, Explanation (1-A) (2) of the U. P. Zamindari Abolition and Land Reforms Act and has held that since the defendants have failed to establish that there is a consequent failure of justice if the suit is tried by the civil Court, the objection about civil Courts jurisdiction cannot be entertained. The learned 1st Additional Civil Judge has misapprehended the scope of this Explanation. Explanation (1-A) to Section 311 runs as follows: "notwithstanding anything in sub-section (1), an objection that a Court mentioned in Column 4 of Schedule II, or, as the case may be, a civil Court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional Court unless the objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a conseqent failure of justice. " This sub-section postulates that if a suit has been filed in the civil Court and the defendant raises an objection that the civil Court has no jurisdiction, such an objection can be taken before the trial Court. But if it is taken or reiterated before an appellate or revisional Court, two conditions need satisfaction. One is that the objection had been taken in the trial Court at the earliest opportunity and the other condition is that there has been a consequent failure of justice. In the present case, the first condition is satisfied because the objection was taken before the settlement of the issues in the trial Court. The question is whether the second condition is attracted. In the instant case, the trial Court has only disposed of the issue relating to its jurisdiction. It has not yet decided any other issue in the case. Against the decision of the issue relating to jurisdiction of the Civil Court, the plaintiffs filed an appeal. The question is, what is ambit of the jurisdiction of the appellate Court in such circumstances. Sub-section (1-A) debars an appellate or revisional Court from enter taining an objection that the civil Court has no jurisdiction. In the present case, the plaintiffs had not taken such an objection in the appeal. Their sub mission was that the civil Court had jurisdiction to try the suit and the trial Court was in error in holding otherwise. So strictly speaking sub-section (1-A) was not attracted to an appeal before the lower appellate Court. In the next place, the second condition precedent to the entertainment of such an objection by the appellate or revisional Court, is that it shall not entertain such an objection unless there has been consequent failure of justice. The relevant and material words in this phrase are 'has been' and 'consequent'. The phrase 'has been' suggests that 'failure of justice' has in fact occurred and which the party wishing to take an objection before the appellate or revisional Court, is liable to establish before that Court. Normally there cannot be failure of justice by the trial done by a particular Court unless the trial has in fact taken place. The use of the word'consequently'in the phrase 'consequent failure of justice' also tends to that conclusion because the word 'consequent' in the context seems to emphasise that failure of justice has occasioned because of the trial of the suit in the civil Court. All these aspects seem to indicate that the bar to the appellate or revisional Court from entertaining an objection to the jurisdiction of the civil Court to entertain a suit will attract the second condition precedent about failure of justice, only when the trial has in fact taken place in the civil Court. If the trial Court only decides the issue relating to its jurisdiction and that finding is taken up in appeal, the condition precedent relating to the failure of justice will not bj attracted. In such a situation, the appellate Court will be entitled to go into the question whether the civil Court had jurisdiction to try the suit at the instance of either party. Learned counsel invited my attention to cases in Nasiruddin and others v. Ram Swamp and others 1978 A. L. J. 1316 and Sabha Chand and others v. Narayan Singh and others 1981 A. W. C. 161. In both these decisions the trial had infact taken place in the trial Court and the appeal etc. were filed against the decree. Such a situation is directly covered by sub-section (1-A) and is not helpful for resolving the difficulty that has arisen in the present case. Here, an appeal was filed against the finding relating to jurisdiction alone and before the case had in fact been tried by the trial Court. These cases are distinguishable. In the result, the revision succeeds and is allowed. The judgment of the lower appellate Court is set aside and that of the trial Court is restored with costs. .