MAHARAJA SRI PATESHWARI PRASAD SINGH Vs. ABDUL KARIM

JUDGEMENT

(1.) This second appeal arises out of execution proceedings. The appellant, who is the proprietor of the Balrampur estate, is the decree-holder, and he filed an application in the Court of an Assistant Col lector of the First Class for the execution of a decree which had been passed in his favour by that Court on 31st May 1985, for the recovery of a sum of money which was in excess of Rs. 500. The Assistant Collector granted the application and ordered execution to proceed. The judgment-debtors, respondents before us, then filed an appeal in the Court of the District Judge in accordance with the provisions of the Agra Tenancy Act of 1926. The learned Additional District Judge, who heard the appeal, held that the revenue Court, which had passed the decree sought to be executed, "had no jurisdiction to pass such a decree and only a civil Court was competent to pass a decree like that" and that "the decree in that respect was a nullity," and could not, therefore, be executed. He accordingly allowed the judgment-debtors appeal and dismissed the application for execution.

(2.) The material facts are these : It is common ground that one Amir Mahton had been the the kadar of village Phulpur, Mahal No. 1, on behalf of the zamindar, viz., the appellant or his predecessor-in-interest. On the death of Amir Mahton, the respondents, who are the surviving members of his family, remained in possession of the Mahal in question and continued to realise the rents from the tenants and to make payments to the zamindar. The suit, which resulted in the decree now sought to be executed, was instituted on 18 July 1934, against Maula Baksh, a brother of Amir Mahton, and Abdul Karim, a grandson of Amir Mahton. It was for the recovery of RS. 1976-11-0 on the allegation that that was the balance of the theka money due from the defendants in respect of the years 1339, 1340 and 1341 faslis. It was alleged in the plaint that a fresh deed of lease had been executed in favour of the defendants after the death of Amir Mahton, and reliance was placed upon a deed purporting to be such a lease. The defendants contested the suit on certain grounds bat did not question the jurisdiction of the Court. The issues framed by the learned Assistant Collector, who tried the suit, so far as the question raised by this appeal is concerned, were as follows: (1) Are the defendants thekadars of the plaintiff of village Phulpur? (2) Is rent for the years in suit (1339, 1340 and 1341), due from the defendants as thekadars? He took up these issues together. He said in his judgment that it was admitted by the parties that Amir Mahton was thekadar of the disputed Mahal in 1336 fasli (1928-9 A.D.) and that Amir died at the end of 1336 fasli. He said further that the defendants case was that, after the death of Amir Mahton, proceedings had been taken by the zamindar for the cancellation of the theka and that since then they, the defendants, had; had nothing to do with the plaintiff's Mahal in suit. The finding of fact arrived at by the Assistant Collector was thus expressed: It is clear from the evidence of these witnesses that the defendants and their sons and Karinda had realised rent from the tenants in the years in suit and that they had been in exclusive use and occupation of the entire Mahal in those years. The registers of the Balrampur estate are kept in a very regular and systematic way. The plaintiff had filed the following registers and papers which prove satisfactorily that the defendants had been in possession of the disputed Mahal as the thekadars of the estate in the years in suit. He then gave a list of the registers filed by the plaintiff and discussed the entries in those registers. He also found that the amount claimed by the plaintiff was due to him from the defendants. He, however, held that the deed relied upon by the plaintiff, though genuine, was not valid under the law and gave certain reasons for that view into which it is not necessary for the purposes of this appeal to enter. He next held that as no valid deed of lease had been executed in favour of the defendants, the basis on which he could decree the suit was that the defendants were liable to pay to the plaintiff the sum claimed by way of compensation for use and occupation of the plaintiff's property. He accordingly decreed the suit. The defendants did not appeal, although, if they chose so to do, they could have appealed to the District Judge in accordance with the provisions of Section 242, Tenancy Act of 1926. The result was that the decree became final.

(3.) The application for execution out of which this appeal has arisen was filed in June 1939. The application was admittedly filed within time. Maula Baksh had by that time died and the decree-holder took the proceedings against Abdul Karim, who was one of the original defendants and against the other members of Amir Mahton's family who were, on the decree-holder's application, brought on the record as representing the interest of Maula Bakhsh deceased. It is common ground that the present respondents represent the interests of the original defendants-judgment-debtors. The respondents contested the application for execution on various grounds but did not allege or contend that the Court which had passed the decree had no jurisdiction to entertain the suit and that the decree was consequently a nullity and could not be executed. The substantial plea which they raised was that by an order of Government all rents for the years 1339, 1340 and 1341 faslis had been remitted and that the decree-holder was, therefore, not entitled to recover anything from them. The Assistant Collector overruled the judgment-debtors objections and, as has been stated above, ordered execution to proceed. The judgment-debtors, as we have said above, appealed against the order of the Assistant Collector and it was then that for the first time they stated in their memorandum of appeal that the decree was not executable as it had been passed by a Court which had no jurisdiction to entertain the suit and was, therefore, a nullity. The learned Judge of the lower appellate Court considered that point alone and, accepting the judgment-debtors contention, held that the decree could not be executed. The ground of his decision was that the Assistant Collector had held on the evidence that the defendants "were in use and occupation of the land and passed a decree by way of compensation."