RAM LAGAN SINGH Vs. RAM PYARE

JUDGEMENT

(1.) This appeal which came up for hearing before Mithan Lal, J. has been referred by him to a larger Bench because it involves a question of importance and reconsideration of the decision in Kallu Khan Vs. Kamrulnisa, 1962 ALJ 1039 . The appellant is aggrieved by the decree passed for his ejectment under Sec. 209 of the Zamindari Abolition and Land Reforms Act in a suit instituted by the respondent in a revenue court on 9.9.1957. The trial court framed issued on 28.10.1957 anyone of them was whether the plaintiff respondent was bhumidhar of the land in dispute. The Act then contained Sec. 332 which required that an issue regarding bhumidhari rights arising in a suit pending in a revenue court should be remitted by it to a civil court that the civil court should determine it and send its finding to the revenue court and that the revenue court should after taking it as the finding on the issue framed by it decided the suit. In accordance with this provision of the revenue court remitted the issue on 28.10.1957 to a civil court. While the civil court was considering the issue the Zamindari Abolition and Land Reforms Act was amended by Act No. 37 of 1858 which came in to force on 7.11.1958 and which deleted Sections 332, 332-A and 332-B. In spite of the deletion of Sec. 332 the civil court recorded evidence on 11.3.1959 and decided the issue on 13.4.1959 in favour of the respondent and returned the record to the revenue court with its finding. It was not contended before on it behalf of the appellant or the respondent that the deletion of Sec. 332 deprived it of its jurisdiction to determine the issue and that it should return the record to the revenue court without determining it. When the revenue court receiving upon it and after deciding other issued decreed the suit against the appellant. Before it also it was not contended on behalf of the appellant that the finding given by the civil court on the issue was without jurisdiction and that the revenue court was no longer required to be found by it and ought to determine the issue itself along with other issues and then decided the suit. The appellant preferred an appeal from the decree which was dismissed by the District Judge and he came up to this Court in second appeal. Even in the appeal before the District Judge he did not challenge the jurisdiction of the civil court to decide the issue and the jurisdiction of the original revenue court to accept the civil court finding as the finding on the issue. The question has been taken up for the first time in this second appeal.

(2.) Sec. 331 bars the jurisdiction of a civil court in respect of any suit, application or proceedings mentioned in columns 3 of the Schedule II of the Act and an appeal from a final order will lie to the court or authority mentioned in Col. 5 Sec. authority mentioned in Col. 5 Sec. 332 as originally enacted. laid down that it in ja suit instituted in revenue court a question arose regarding the title of any party to the land in dispute it could stay the suit and direct a party to file a suit within a certain time in a a civil court having jurisdiction. Sec. 332 was amended by Act No. XVI of 1953 which provided that in such a suit the revenue court would frame an issue on the question of title and submit the record to the competent civil court for its decision on that issue only that the civil court would decide the issue and return the record together with its finding to the revenue court that the letter would decide the suit accepting the finding of the civil court on the issue referred to the civil court on the issue referred to it and that an appeal from the revenue court decree in such a suit would lie to the District Judge or the High Court depending upon the valuation. Sec. 332-A was added with effect from 6-8-1954 laying down that a question whether a person as adhivasi or asami of the land in dispute would not be deemed to raise a question of title. Sec. 332-B was also added by the same Act, No. XX of 1954, with effect from 6.8.1954 and laid down that it in a suit relating the land institute in a civil court a question arose whether any party was adhivasi or asami it would frame an issue and submit the record to the Collector for decision or it that the Collector for decision of it that the collector would decide the issue and return the record with his finding and that the civil court would proceed to decided the suit accepting the collector finding, which would be deemed to be a part of the civil court finding for the purpose of appeal. Sections 332-A and 332-B were amended by U.P. Land reforms Amendment Act No. 18 of 1956 and the word "sirdar" was added just before the words "adhivas or asami" Sec. 331-A was added by the U.P. Land Reforms amendment Act No. 37 of the 1958 and lays down that if in a civil court in respect of land held by a bhumidhar the question arises whether it is or is not used for agricultural purposes the court should frame an issue on the question and send the record to the Sub Divisional officer for his decision on it. By the same Amendment Act Sections 332, 332-A and 332-B were deleted. This Amendment act of 1958 came in to force on 7-11-1958 but Sec. 87(1) provides that "any amendment made by this court shall not affect the validity effect or consequence of anything already done or suffered or any right title obligation or liability already acquired accrued or incurred or any jurisdiction already exercised and any proceeding instituted or commenced before any Court prior to the commencement of this Act shall commencement of this Act notwithstanding any continue to be heard and decided by such court."

(3.) On 28-10-1957 the revenue court framed an issue regarding bhumidhari rights as was required by Sec. 332 which was then in force and referred it to a civil court for its decision thereon. While the civil court was considering the issue Sec. 332 was decided and the question at once arose whether the civil court could still decided the issue since Sec. 87 (1) of the Amendment Act of 1958, which deleted Sec. 332. laid down that the deletion was not affect that validity effect or consequence of anything already done or any jurisdiction already exercised it follows that the reference of the issue to the civil court and the assumption by the civil court of jurisdiction over it remained unaffected by the deletion in other words the civil court was bound to decide the issue as if Sec. 332 had not been deleted. The Civil courts deciding the issue was a proceedings commenced before it prior to 7.11.1958 and Sec. 87 (1) of the amendment act required it to be continued to be heard and decided by it notwithstanding the deletion of Sec. 332. Again when the civil court decision on the issue was received by the revenue court the question arose whether it was required to accept the civil courts decision and to decide the suit on its basis, Sec. 332 was deleted but again Sec. 87(1) provided that it would not affect the effect or consequence of the reference of the issue to the civil court made before the deletion or the right acquired by one party to have the suit decided on the basis of the civil courts finding and the liability incurred by the other party to be governed by the civil court finding. In other words the revenue court was bound to decide the court finding as if Sec. 332 had not been deleted. If the civil court was allowed to decided the issue it must have been with purpose that its decision should be accepted by the revenue court and that it should decide the suit on its basis. The revenue court was no account of the deletion no longer bound to accept the civil court finding it would have been useless for the legislature's allowing the civil court to decide the issue after the deletion. This legal position was rightly understood by the appellant and his counsel and that explains why they did not challenge the civil court's jurisdiction to decide the issue and the revenue court's jurisdiction to accept the civil court's decision on the issue and decide the suit on its basis.