FATIMA BIBI Vs. BOARD OF REVENUE

JUDGEMENT

(1.) By means of this writ petition the defendant petitioner has prayed for quashing the judgments and orders of the subordinate autho rities contained in Annexures 3 to 5 attached with this writ petition. Necessary facts giving rise to the present writ petition are that the con testing opposite party No. 2, Smt. Madina Bibi in the present writ petition, had filed a suit for declaration of her right and ejectment of the defendant peti tioner under Section 229-B/209 of the U. P. Zamindari Abolition and Land Reforms Act. One of the pleas in defence raised by the defendant petitioner is that the plaintiffs' suit is barred by the provisions of Section 49 of the U. P. Consolidation of Holdings Act. The trial Court has framed necessary issues. Before the trial Court an application was moved by the defendant petitioner that the issues regarding bar of Section 49 of the U. P. C. H. Act should be decided as a preliminary issue. The trial Court passed the following order on 17-11-1978 (See Annexure 'iii'): "this point will also be considered at the time of judgment. " Against the abovementioned order of the trial Court the defendant petitioner preferred a revision petition which has been dismissed through Annexure "iv" attached with the writ petition. Thereafter the defendant petitioner filed a revision petition before the Board of Revenue, U. P. at Allahabad and the latter also dismissed the revision petition through Annexure 'v attached with the writ petition. Now the defendant-petitioner has approached this Court under Article 226 of the Constitution and has prayed for quashing the orders of the trial Court and those of the revisional Court as mentioned above. The learned counsel for the petitioner has contended before me that in view of the amended provision of Order XIV, Rule 2, C. P. C. , the revenue Courts have patently erred in not deciding the issue as a preliminary issue, hence according to him the orders of the revenue Courts should be quashed. The learned counsel for the contesting opposite party has refuted the contentions raised on behalf of the petitioner. According to him the orders passed by the revenue Courts are eminently just and fit orders and they should not be interfered with in writ jurisdiction. The amended provision of Order XIV, Rule 2 of the Code of Civil Procedure reads as below:- " (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2) pro nounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an Issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. " The main emphasis of the learned counsel for the petitioner before me was that in sub-clause (1) of Rule 2 of Order XIV C. P. C. it has been pro vided that the Court shall subject to the provisions of sub-rule (2) pronounce judgment on all issues. According to the learned counsel for the petitioner when the question of jurisdiction was raised or maintainability of a suit under some provision of law was challenged, it was mandatory for the trial Court to decide that issue as a preliminary issue. To my mind the contentions raised on behalf of the petitioner are not well founded. Sub-clause (2) of Rule 2 of Order XIV of the C. P. C. provides that the Court may try that issue first if that relates to the jurisdiction of the Court or maintainability of the suit under some provision of law for the time being in force. When in sub-clause (1) of the aforesaid provision the word "shall" has been used whereas in sub- clause (2) the word "may" has been used. I think this is within the discretion of the Court to try an issue of jurisdiction or bar of maintainability of the suit as a preliminary issue. If the trial Court had indicated its mind that the point will also be considered at the time of judgment it has not at least manifestly erred in indicating its mind. The aforesaid order of the trial Court dated 17-11-1978 has been confirmed by the revisional Court on the ground that the order passed by the trial Court was purely discretionary order and that the order passed by the trial Court did not amount to a case decided. I think the grounds given by the revisional Courts are perfectly correct and do not suffer from any manifest error of law. I have already indicated above that the order passed by the trial Court was within its discretion and that the order passed by the trial Court does not amount to a case decided in view of a ruling reported in Malkhan v. Mahar Chand and others A. I. R. 1955 All. 307, A division bench of this Court has observed in paragraph 14 of the ruling as below: "it cannot be said that by determining certain issues under Order 14, Rule 2 as preliminary issues, the lower Court can be said to have decided any case the record of which can be sent for by the High Court under Section 115 and corrected under the provisions of that section. Sub-clause (2) of Order XIV Rule 2 of the Code of Civil Procedure (amended) is substantially the same as the provisions of Order XIV Rule 2 C. P. C. (unamended), hence, in my opinion the revisional Courts have not patently erred in dismissing the revision petitions filed by the defendant petitioner. The learned counsel for the petitioner vehemently contended before me that in the circumstances of the present case it was imperative on the part of the plaintiff opposite party to have agitated her claim under Section 12 of the U. P. Consolidation of Holdings Act and in this connection he has referred to the ruling reported in Mangat Singh v. Board of Revenue, U. P. , Allahabad and others 1974 U. R. C. 184, as well as the ruling reported at page 567 of the same Volume, viz, Yad Ram Singh and others v. Board of Revenue, U. P. , Allahabad and others. In this connection it would be sufficient to mention that the plaintiff opposite party had filed an application for mutation of her name which was considered as a proceeding for mutation of names only as is evident from Annexure C. A. I. attached with the counter- affidavit. It is also well established that an erroneous decision between the parties is final between them and a party is estopped from challenging the correctness of erroneous decision in subsequent proceedings. However, in the present case it is necessary to mention the ruling reported in Karbalai Begum v. Mohd. Sayeed and another A. I. R. 1981 (S. C.) 77, wherein vide paragraph 12 of the ruling it has been mentioned as below;- "it was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalization and publication of the scheme under Section 23, is not a matter in regard to which an application could be tiled "under the provisions of this Act" within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of the bar of the civil Courts' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no subs tance. " In view of the above observations of their Lordships of the Supreme Court, I do not see eye to eye with the learned counsel for the petitioner that the jurisdiction of the revenue Courts is so patently barred that I should quash their judgments and drop the proceedings. Section 51 of Act No. XII of 1965 reads as below:- "for Section 49 of the Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1958, the following shall be substituted and be deemed always to have been substituted, namely- 49. Where consolidation operations are pending in any unit at the commencement of this Act. (i) if the operations are at the stage of examination of the land records under Section 7 of the (ii) principal Act, then the Assistant Consolidation Officer shall complete the preparation of the statement mentioned in that section as if this Act had not come into force, and such revision and preparation of statement shall thereupon be deemed to be the revision and preparation of statement mentioned in Sections 7 and 8 of the amended Act, and thereafter all further proceedings shall be conducted und concluded in accordance with the provisions of the amended Act, beginning with the proceedings under Section 9 thereof: (ii) if the operations are at the stage of proceedings under Section 8 of the Principal Act, or at any later stage, then all further proceedings shall be continued and concluded in accordance with the principal Act as if this Act had not come into force. Explanation.-In this section "amended Act" means the principal Act as amended by this Act. " I have mentioned the rulings relied upon by the learned counsel for the petitioner in support of his contention and I have also mentioned the relevant law concerning the maintainability of the suit but I refrain from expressing any concluded opinion as the learned counsel for the petitioner did not want me to express the same and the trial Court has also observed that the points will be considered at the time of judgment but I am quite sure that the trial Court shall hear the counsel for the parties on the aforesaid point and decide the claims of the parties strictly in accordance with law keeping in view the observations made by their Lordships of the Supreme Court and the provisions of Act XII of 1965. In the result, the writ petition fails and is hereby dismissed. Parties are directed to bear their own costs. It is expected that the trial Court shall decide the suit expeditiously as the hearing of the suit has been unnecessarily delayed. .