MURAT BARDI AND OTHERS Vs. BHAWANI PRASAD MISRA

JUDGEMENT

(1.) This second appeal, which came up for hearing before Mr. Justice Upadhya, has been referred to a larger Bench because an important question of law was involved in it.

(2.) The brief facts are these: The appellants and others were admitted as tenants in respect of various parcels of land by Brij Bahadur and Bhagwat, the then mortgagees of the proprietary rights in the land. Subsequently, the mortgages were redeemed by the mortgagor. The mortgagors then called upon the appellants and others to relinquish possession and on their refusal they instituted the suit giving rise to this appeal on 25-11-1949 for their ejectment in a civil court. The suit was contested by the appellants on several pleas, including the plea that the jurisdiction of the civil court was barred by the provisions of Secs. 242 and 180 of the U.P. Tenancy Act. They subsequently gave up this plea and the suit was heard and decreed by the trial court on 31-5-1952. On 1-7-1952 the Zamindari Abolition and Land Reforms Act came into force. On 14-7-1952 the appellants preferred an appeal from the decree and on 26-5-1953 applied to the appellate court for an amendment of the written statement, claiming the benefit of Rules 4 and 5 of the Zamindari Abolition and Land Reforms Rules and Adhivasi rights under Sec. 20(b) of the Zamindari Abolition and Land Reforms Act. The amendment was allowed but the appellate court held that the suit did not abate under Rule 4 and dismissed the appeal on 7-2-1954. Then the appellants preferred this second appeal.

(3.) As regards the Adhivasi rights claimed by the appellants learned counsel has frankly conceded that in view of this Court's decision in Ram Dular Singh Vs. Babu Sukhu Singh, 1963 A.L.J. 667 they cannot claim them. Learned counsel, however, pressed that the suit should have been abated by the lower appellate court under R. 4. Rule 4 is to the effect that a suit of a certain nature (it may be conceded that the instant suit is of that nature) "pending in any court for hearing on the date of vesting" shall be stayed and Rule 5 is to the effect that "any suit stayed under R. 4 shall together with the appeal, if any, be abated by the court before whom it was pending after notice to the parties and hearing them." The question before us is whether the suit can be said to have been pending in any court on 1-7-1952, the date of vesting. The whole argument of learned counsel for the appellants is that an appeal is a continuation of a suit and that consequently the instant suit must be deemed to have been pending on 1-7-1952 because it was pending up to 7-2-1954 and is pending even now in second appeal. Actually no suit was pending on 1-71952 at all. The original suit came to an end on 31-5-1952. Even if it be said that an appeal is a continuation of the suit it does not mean that it is a continuation of the suit without any break and all that can be said in this case is that the suit again continued from 14-7-1952 to 7-2-1954. There can be interrupted continuity. Rule 4 cannot apply to a suit that was not pending on 1-7-1952 or that became pending on a subsequent date. The words "pending . . . . for hearing on the date of vesting "mean that it must actually be pending in one form or another on that date and that some court must have had seizen over it, and must have jurisdiction to decide it, on that date. Here there was no suit pending at all on that date because the appeal had not been preferred and the proceedings in the trial court had come to an end. We, therefore, hold that Rule 4 did not apply and the suit was not required to be stayed under Rule 4 and could not abate under Rule 5.