RAM DAS Vs. JATAN SWARUP

JUDGEMENT

(1.) OUT of these two Second Appeals, the first one arises from suit No. 9 of 1962, which had been originally filed as an objection under Section 47 of the Code of Civil Procedure as Misc. Case No. 42 of 1961, but was later on converted into a regular suit and tried as such. The other, an execution second appeal, arises from a similar objection under Section 47 of the Code of Civil Procedure which was Misc. Case No. 76 of 1961 in the same Execution Case. The plaintiff in the suit is Ramdas, while the objectors in the execution case are his father Chhidda and two others, Smt. Surjiya, widow of Hira and the latter's minor son, Bhajan Lal. The said Chidda, Surjiya, and Bhajan Lal are defendants Nos. 6, 7, 8 in the suit, and are defendants-respondents Nos. 7, 8, 9 in the Second Appeal in this Court. Of the other parties in the two appeals, namely, the respondents Nos. 1 to 6, the respondent No. 1 Jatan Swarup was the first defendant in suit No. 9 of 1962 giving rise to the Second Appeal No. 1386 of 1966. Jatan Swarup was, the plaintiff-decree holder in suit No. 539 of 1955 of the Court of Civil Judge Bulandshahar, which has given rise to the Execution Case in which the objec tions under Section 47 of the Code of Civil Procedure had been filed. Res pondents No. 2 to 4 and 6 were defendant Nos. 5, 6 and 7 respectively in that suit, Chhidda son of Dabua, is different from Chhidda son of Ballu, caste Yadava, who was defendant No. 6 in suit No. 9 of 1962 filed by Ramdas. The only allegation against him in the plaint of suit No. 9 of h62 is that he was a party to the decree in suit No. 539 of 1955 of the Court of Civil Judge, Bulandshahar, but a perusal of the certified copy of the final decree in that suit, which was put into execution, shows that Chhidda, son of Dabua, caste Saini, was not a judgment debtor in that suit. The decree in suit No. 539 of 1955, which had been put into execution was a final decree for sale of plot No. 1350. 1346, 1352 and 1344 at Sikandara-bad, Mohal Bilayat Ali, for the recovery of Rs. 4699-14 As., and costs amoun ting to Rs. 5-12 on the foot of mortgage. The second defendant Ganga Ram was the mortgagor. The case set up by Ramdas, the plaintiff-appellant in Second Appeal No. 1386 of 1966 and by Chhidda and others the defendant-objector-appellants in Second Appeal No. 1387 of 1966, was that the first respondent decree holder, Jatan Swarup and the respondent Ganga Ram were friends and the decree in Suit No. 539 of 1955 was procured by collusion between them, and the decree holder Jatan Swarup had got the plot No. 1346, which was the plot claimed by Ramdas, the plaintiff in suit No. 9 of 1962, and plots Nos. 1344 and 1350 which were claimed in the objection filed by Chhidda and others, fraudulently sold in execution of that decree. It was claimed that the said three plots alongwith some other plots of land had been fictitiously mortaged without consideration by Ganga Ram in favour of Jatan Swarup. The said mortgage was kept secret and in Consolidation proceedings while Ganga Ram was found to be the Bhumidhar in possession of plot No. 1346, the defendant-objector-appellants, Chhidda, Surjiya and Bhajau Lal, were found to be the Bhumidhars in possession of plots Nos. 1344 and 1350. Ganga Ram had sold, again fictitiously, plot No. 1346 to his wife Smt. Ganga Devi. No effect was given to that sale in the revenue records and after obtaining permission from the consolidation authorities on 27th April, 1959. Ganga Ram sold the said plot No. 1346, on 14th May, 1959, to the plaintiff-appellant Ramdas for a consideration of Rs. 500/-. It was claimed that the proceedings in suit No. 539 of 1955 were wholly without jurisdiction as the subject matter of that suit was within the jurisdiction of the consolidation authorities in the proceedings which were pending since 1954, that is, since before the institu tion of suit No. 539 of 19i5. It was further alleged that the requirements of rules 106 to 109 of Order 21, C. P.C. were not observed and the sale was void on that account. The relief claimed in suit No. 9 of 1962, giving rise to the Second Appeal No. 1386 of 1966 was that the decree in suit No. 539 of 1955 of the Court of Civil Judge, Bulandshahar (Jatan Swarup v. Ganga) decided on 13th October, 1959 and the sale of plot No. 1346 in execution of that decree may be declared to be without jurisdiction, against law, and void. The same relief was claimed in the objection under Section 47 giving rise to the Second Appeal No. 1387 of 1966 with reference to plots No. 1344 and 1350. Suit No. 9 of 1962 and the objection Misc. case No. 76 of 1961, arising out of execution Case No. 34 of 1960, were consolidated and tried together, and dismissed by a common judgment of the Court of the Civil Judge, Bulandshahar, dated 13th February, 1964. The District Judge Bulandshahar, dismissed the two appeals therefrom by a common judgment dated 22nd March, 1966. The relevant facts which are no longer in dispute are that the mortgage of the three plots of land in dispute was executed by Ganga Ram in favour of Jatan Swarup on 31st March, 19M. It was a simple mortgage. Zamindari having been abolished on 1st July, 1952, Ganga Ram became Bhumidhar of these plots of land and was in possession. The consolidation of holdings proceedings in the village where the three plots of land in dispute are situate, started in the year 1954. The suit No. 539 of 1955 was filed by Jatan Swarup on 28th September, 1955. Permission to transfer plot No. 1346 had been obtained by Ganga Ram from the consolidation authorities on 27th April, 1959 and his Bhumidhari rights in that plot were sold to Ramdas, the plain tiff appellant in Second Appeal No. 1386 of 1966 on 14th May, 195V. Suit No. 439 of 1955 was decreed on 30 h October, 1959. The final decree for sale in that suit, however, was passed on 30th August, 1960. The three plots in dispute, were sold to the decree holder Jatan Swarup on 17th April, 1961 for Rs. 3500/-. The objections under Section 47 C. P. O. were filed later on. The only question, which has been raised in these Second Appeals is whether the decree in suit No. 539 of 1955 was null and void, in view of the' fact that consolidation operations were going on in the village where the land which was the subject-matter of the suit was situate. It is common ground that the proceedings in that suit were not stayed on account of the pendency of consolidation operations. Mr. N. S. Singhal, learned counsel for the appellants relied on Section 49 of the U. P. Consolidation of Holdings Act. The provision as it originally stood before its amendment by the Act No. 38 of 1958 reads as under: "49. Bar to Civil Court Jurisdiction: No person shall institute any suit or other proceeding in any Civil or Revenue Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act." Suit No. 539 of 1955 was a suit for sale of the land on the foot of the mortgage, in case the amount secured by mortgage was not paid by the defen dants within the time prescribed by preliminary decree in that suit. The question whether the defendants were tenure holders of the land was not raised in that suit and a decree for the recovery of the amount secured by the mortgate could not have been passed by any application made or proceedings taken under the U. P. Consolidation of Holdings Act. That has been the exclusive jurisdiction of the Civil Courts. Mr. Singhal, however, contended that under Section 31 (1) of the U. P. Consolidation of Holdings Act, as it then stood and which has been deleted by U. P. Act No. 8 of 1963, "if a holding brought under the scheme of consolidation is burdened with any lease, mortgage or other encumbrance such lease, mortgage or other encum brance shall bi transferred and attached to the corresponding holding under the scheme or to such part of it as the Assistant Consolidation Officer may have determined to preparing the Scheme and thereupon the lessee, mortgagee or other encumbrance, as the case may be, shall cease to have any right in or against the land from which the lease or other encumbrance has been transferred." It also provided that the Assistant Consolidation Officer shall, if necessary, put any lessee, mortgagee or other encumbrance entitled to possession, in possession of the holding or part of the holding to which his lease or other encumbrance has been transferred under sub-section (1). It may be here noted that in the present case there was no change in the plots in question as a result of the consolidation of holdings operations, and Section 31 did not come into play. But the point raised by Mr. Singhal was that the provisions of Section 31 show that the Consolidation Authorities had jurisdiction to entertain the claim by the mortgagee in respect of the land which was the subject-matter of consolidation and to adjudicate upon and decide such a claim in case of any dispute between the tenure-holder and the mortgagee. The learned counsel further relied on Rule 34 as it then stood. He urged that after C H. Form 20, was prepared it was published in the village, and any person could file an objection within 30 days of the said publication. The Assistant Consolidation Officer was required to submit his report thereon to the Consolidation Officer, who could hear and decide the same, unless it was a case requiring to be referred to the arbitrator under sub-section (4) of Section 12 of the Act, and a person aggrieved by the order of the Consolidation Officer could file an appeal within 15 days from the date of his order before the Settlement Officer (Consolidation). He then referred to C. H. Forms Nos. 23, 24, 25 which provided for specification of the encum brances attached to the holdings and even the names of the encumbrances with the address, nature and conditions of the encumbrances. Learned counsel urged that all these show that the consolidation authorities had juris diction to adjudicate upon (he extent of disputed encumbrances on land which was the subject-matter of the Consolidation of holdings operations He further urged that the question whether the Bhumidhari right in a holding was encumbered with a preexisting mortgage coming on from before the abolition of the Zamindari, or the affect of a mortgage by a tenure-holder of his rights in land, whether permitted by law or not, did raise a question of title and in either of these two contingencies such a question of title was referable to arbitrator under the then Section 12 of the Consolidation of Holdings Ace, The suit was, according to the contention raised by the learned counsel, liable to be stayed under suo-section (5) of section 12 of the U. P. Consolidation of Holdings Act alter publication of the statement under Section 11 of the said Act. Sri Santosh Kumar, learned counsel for the contesting respondent urged that even if it were assumed that the proceedings in suit No. 539 of 1955 were liable to be stayed on any of the grounds put forward by the learned counsel for the appellants, the decree in that suit could not be said to be null and void, or such as may be liable to be cancelled in the suit giving rise to the Second Appeal No. 1386, of 1966, or to be ignored as a nullity, in the objection under Section 47 C. P. C. He relied on several cases. The last one of them, in point of time and the most authoritative is the decision of a Full Bench of this Court in Bikrama Singh and others v. The State of J7. P. and others, A.I.R. 1970 Alld. 344. The question referred to the Full Bench in that case, as reframed by the bench, was: "Whether the judgment and decree of the learned Additional Civil Judge was a nullity when a notification under Section 4 of the U. P. Consolidation of Holdings Act in respect of the land in dispute in the appeal before him was made during the pendency of the appeal and that fact had been brought to his notice: and he had recorded decision that the provisions of Section 5 did not apply in the facts of the case. 1' The bench answered the question by saying "inasmuch as the learned Addi tional Civil Judge had given a decision that the provisions of Section 5 of the Act did not apply to the facts of the case and that decision had been allowed to become final between the parties, the decree passed by the learned Addi tional Civil Judge, after the publication of the notification under Section 4 of the Act, and after that fact had been brought to the notice of the Courts, is not a nullity." The basis on which the full bench proceeded to say was that a Civil Court, seized a suit has the jurisdiction to decide whether it was liable to be abated under Section 5 of the U. P. Consolidation of Holdings Act in view of the pendency of consolidation operation in the village in which the land in suit is situate, and the decision of the Civil Court whether right or wrong is binding and could be set aside only on an appeal or revision there from. The mere fact that the decision is wrong, does not render it a nullity. A perusal of the judgment dated 30th October, 1959 of the Court of the Civil Judge Bulandshahar in suit No. 539 of 1955 shows that the fact that consolida ion proceedings were pending was known to the Court. Indeed the Vllth issue in the suit raised the question "what is the effect of the proceedings under the Consolidation of Holdings Act on the rights of the parties ?'' This question was answered by the leariaed Civil Judge by saying that the consoli dation proceedings had no effect or bearing on the case or the ground that it was a mortgage suit said was not affected by the U. P. Consolida tion of Holdings Act. This finding appears to have been recorded on the ground that the issue was not pressed before the learned Civil Judge in so far as the defendant other than Chhidda son of Dabua was concerned. We are not concerned with the case of Chidda son of Dabua who was originally defendant No, 4 in the suit but was exempted on the ground that sirdari rights claimed by him were subject-matter of the Consolation proceedings and the suit could not, therefore, proceed against him. the decision of the learned Civil Judge that the suit No. 539 of U55 being a suit on the foot of the mortgage was not affected by the pendency of the Consolidation of Holdings operations may have been right or may have been wrong, but it was allowed to become final. The ratio of the Full Bench Decision in Bikrama Singh's case, therefore, squarely applies to the facts of the present case and it was not open to the appellant to question the excitability of the decree in suit No. 539 of 1955 on the ground that it was a nullity. There is no merit in the other ground on which the validity of the sale in execution of the decree was challenged namely the alleged want of compli ance with rule 106 of Order 21 of the Code of Civil Procedure requiring the certificate of encumbrances from the Sub-Registrar, which was duly filed along with the list 7C on 8th October, 1960 and is on the record of the Execu tion Case No. 34 of IVandO as paper No. 8, that satisfied the requirement of Rules 106, 107, 108 and 109 and have become obsolete with the deletion of Sections 68 to 72 of the Code of Civil Procedure Act No. 66 of 1956. In the result, both the appeals fail and are dismissed with costs.