MIRZA RASHID BEG Vs. INAYATULLA KHAN

JUDGEMENT

(1.) PETITIONER Shri Mirza Rashid Beg executed four sale-deeds of certain land and a house on part of that land in favour of respondent inaytulla Khan. These sale-deeds are dated 25-4-1957, 15-8-1957 and the two are dated 3-9-1958. By one of these sale-deeds dated 3-9-1958 is sold a house along with the land. The petitioner has filed a suit on 17-1 1-1975 against the respondent inaytulla Khan claiming title over the lands covered by the sale-deeds alleging that the documents executed as sales in fact did not transfer property to respondent Inaytulla Khan. He claimed to be in possession of a part of the land and, therefore, claimed possession of the remaining land in suit. He also claims injunction in that suit restraining the respondent to interfere with his possession. During the pendency of that suit, an application was also made for grant of temporary injunction in respect of the part of the land said to be in possession of the petitioner. Civil Revision No. 1546 of 1982 pending decision in this Court, arises out of those proceedings taken for grant of temporary injunction.

(2.) MEANWHILE the State Legislature passed the Madhya Pradesh Samaj Ke kamjor Vergaon Ki Krishi Bhumi Dharkon Ki Udhar Dene Walone Ke Bhumi hadapane Sambandhi Kuchakorn Se Paritran Tatha Mukti Adhiniyam,1976 (Act No. 3 of 1977) which came into force on 31-1-1977. The petitioner, therefore, availed of the remedy provided under that Act and filed an application before the Sub-Divisional Officer (respondent No. 3) under Section 5 of the Act. It was claimed that the petitioner belongs to the weaker section of the Society, the transactions evidence by the aforesaid four sale-deeds were governed by the Act, the transactions in fact evidence advance of certain loans to the petitioner by the respondent No. 1, that the transactions were subsisting on the date the Act came into force, and, therefore, claimed to be discharged. The application was opposed and the Sub-Divisional Officer, vide order dated 1-6-1979 (Annexure P/1), declared sale-deeds void and confirmed the title and possession over the land. Pursuant to this order, on 1-7-1979 the petitioner was put in possession. The respondent No. 1 appealed and the Additional Collector who heard the appeal, vide order dated 10-3-1980 (Annexure P/ 2), allowed the appeal, set aside the order of the Sub-Divisional Officer and remanded the case for fresh decision according to law. After remand, the Sub-Divisional Officer reconsidered the petitioner's application in the light of the remand order (Annexure P/2) and by order dated 18-6-1982 (Annexure P/3) rejected the petitioner's application. The petitioner then took up the appeal before the Collector who by order dated 14-3-1983 (Annexure P/5) dismissed the appeal. The petitioner is aggrieved by the orders of the Sub-Divisional Officer and the Collector (Annexures P/3 and P/5)and prays for quashing of those orders. The consequent prayer is that the application filed before the Sub-Divisional Officer under section 5 of the Act be allowed.

(3.) SHRI Ravish Agarwal, appearing for the respondent Inaytulla, raised a preliminary objection that the application filed by the petitioner under the Act is not tenable. The argument is that since on the date when the Act came into force, i. e. , 31-1-1977, a civil suit in respect of the same land and for the similar reliefs was pending before a civil Court, the authority under Act gets no jurisdiction to adjudicate upon that matter. Shri Pande, learned counsel for the petitioner, objected to raising of such an objection by the respondent on the ground that such a plea was never raised before the Sub-Divisional Officer and, therefore, could not be considered by the Collector in appeal and also should not be permitted to be raised in this petition under Articles 226 and 227 of the constitution. It appears from the order of the Sub-Divisional Officer (Annexure p/1) that although the claim of the petitioner was denied, yet such precise objection was not taken then. However, the Additional Collector while passing the order (Annexure P/2) and remanding the case back to the Sub-Divisional officer, had taken note of Section 11 of the Act and in his opinion, the Sub-Divisional Officer did not lose jurisdiction to entertain the proceedings in spite of the pending suit. When the matter again went to the Sub-Divisional Officer, he was of opinion that it was competent for him to entertain and decide the application. The present case is, therefore, not the one where the party claiming writ of certiorari under Articles 226 and 227 of the Constitution has not raised the question of jurisdiction before the Lower Tribunal whose order is sought to be quashed. The matter appears to have not only been urged before the lower tribunals but has been specifically decided in favour of the petitioner. For this reason the decision relied upon by the learned counsel for the petitioner in manrakhanlal v. S. N. Chaturvedi, 1961 M. P. L. J. 761 is distinguishable for in that case the question of jurisdiction of the lower Tribunal to entertain the action was not raised by the party who was seeking a writ of certiorari in those proceedings to quash the order of the lower Tribunal Shri Pande also relied on a decision of the supreme Court in Avery India Ltd. v. Second Industrial Tribunal West bengal, AIR 1972 S. C. 1626. There it has been ruled that the High Court cannot allow even a respondent to support the action of the lower Tribunal on a ground neither raised before that Tribunal nor in the counter affidavit to the petition. The following observations in that decision are pertinent :