PUTTOO LAL Vs. RAM SEWAK

JUDGEMENT

(1.) THIS appeal is direct ed against the decision of the Additional Civil Judge, Mainpuri. The material facts for the decision of this appeal are as fol lows. On 22nd March, 1955 the plaintiff filed the suit against the defendant and Gram Sabha concerned for partition of cer tain agricultural plots of land under Sec tion 176 of the U. P. Zamindari Abolition and Land Reforms Act in die Court of Munsif Mainpuri. A preliminary decree was Eassed in the suit on 4th March, 1957. ots were thereafter prepared by the Reve nue Authorities concerned on 16th June, 1958. Thereafter a final decree was order ed to be drawn up on 19th November, 1959, and it was actually drawn up on 10th Feb ruary, 1961. The decree-holder filed an exe cution petition for possession and it appears that possession was delivered to him in pur suance of the final decree so passed. An application was thereupon filed under Section 47, Civil Procedure Code by Puttu Lal judgment-debtor, inter alia, con tending that the final decree passed by the Civil Court was a nullity inasmuch as the Civil Court had no jurisdiction on 19th November, 1959, to pass such a decree in the matter. It was, therefore, pleaded that the dec ree was not executable and possession should not have been delivered to the decree-hol ders in pursuance of such a decree. This ob jection did not find favour with the Munsil who rejected the application under Sec. 47, Civil Procedure Code on 30th September, 1964. The judgment-debtor filed an appeal from the said order. That appeal was also dismissed by the Additional Civil Judge, Mainpuri. Aggrieved by the said decision the judgment-debtor has come up to this Court in execution second appeal.

(2.) THE learned Counsel for the ap pellant argued that in view of the amend ment made in the relevant provisions of the U. P. Zamindari Abolition and Land Re forms Act by Act XXXVII of 1958 the Civil Court had no jurisdiction to pass the final decree in the case and as such the final decree was a nullity. There is great force in this submission. A similar question arose in the case of Nathu Singh v. Dular Singh, 1970 All LJ 923 in which a Division Bench of this Court considered the effect of the amendments introduced by the aforesaid Amendment Act of 1958 upon a suit already pending. It was held that in view of the amendment introduced by the Amendment Act of 1958 the suit for partition was main tainable in the Revenue Court and was governed entirely by the provisions appli cable to suits tried by the Revenue Courts. It was the Revenue Court which would declare the rights of the several parties, and the partition of the holding or separation of the shares therein would also be effected by the Revenue Court. Referring to Section 182-B of the Act it was observed that when Section 182 pro vides that the partition of a holding or sepa ration of share shall be made by the Court it refers the Court which entertains the suit and that is the Revenue Court. Therefore, after the Amendment Act of 1958 a suit for partition of Bhumidhari holding lies in the Revenue Court, which declares the rights of the parties and finally partitions the hold ings or separates the shares therein. In re gard to the cases which were already pend ing at the time of the enforcement of the Amendment Act it was observed that after passing the preliminary decree the jurisdic tion of the Civil Court had exhausted. There was nothing in the law to empower the Civil Court to partition the holding. That was a matter falling entirely within the scope of the Collector's jurisdiction. It was also observed that whether the un-amended Section 182-B or the amended Section 182-B applied it was clear that the Civil Court will have no jurisdiction to par tition the holding. In the instant case the final decree was obviously ordered to be drawn up and in fact actually drawn up after the enforcement of the Amendment Act, 1958. The Civil Court had, therefore, no jurisdiction to pass the final decree in the case. Its jurisdiction was exhausted on the passing or the preliminary decree. In my opinion the final decree passed by the Civil Court in the present case was, there fore, without jurisdiction and a nullity.

(3.) APPLYING these principles to the facts of the present case we find that on 19th November, 1959 when the final decree was ordered to be drawn up the Civil Court did not have the jurisdiction to pass such a decree. The validity of the decree could, therefore, be challenged in execution proceedings in an objection under Sec. 47 of the Code of Civil Procedure. The Courts below were, therefore, not justified in re jecting the objection of the appellant. How ever, in order to do justice in the case it would be proper to quash the execution proceedings which were based on a final decree which was a nullity and direct the Trial Court to send the case to the compe tent Revenue Court for proceeding in ac cordance with law. This course appears to be quite reasonable as well.