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PETITIONER: CHANDRIKA MISIR & ANR.

       Vs.

RESPONDENT: BHAIYA LAL

DATE OF JUDGMENT31/07/1973

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. ALAGIRISWAMI, A.

CITATION:  1973 AIR 2391            1974 SCR  (1) 290  1973 SCC  (2) 474

ACT: U.P.  Zamindari  Abolition and Land Reforms  Act,  1951  and Rules-Sections   209   and  331-Whether  Civil   Court   had Jurisdiction to entertain the suit-Limitation.

HEADNOTE: Appellants brought this suit against the present  respondent for  possession of certain Bhumidhari plots.  The plots  had been purchased in the name of the appellant’s uncle.   After the  death of the uncle who died is sunless, the plots  were recorded in the name of his widow.  The widow died in  1948. The  appellants as the next reversions claimed title to  the plots.  The respondent contended that the suit was barred by limitation. The  courts below were unanimously of the opinion  that  the plaintiffs  had title to the property and the defendant  had none.   The learned Munsiff however dismissed the  suits  as being  barred by limitation.  In appeal, the  learned  Addi- tional   Civil  Judge  reversed  the  finding  and   decreed the--suit.  In second appeal the High Court was of the  view that  the  period of limitation was not the  one  which  was prescribed  under the Limitation Act, but the one which  was provided  in Appendix 2 of the U.P. Zamindari Abolition  and Land  Reforms Rules, 1952, which was 2 years from  1-7-1952. Since  the  suit  was filed on 5-9-1955, it  was  barred  by limitation. Dismissing the appeal, HELD : (i) Sections 209 and 331 of U.P. Zamindari  Abolition and Land Reforms Act 1951, when read together, showed that a suit,  like  the present one, had to be filed in  a  Special Court  created under the Act within a period  of  limitation specially prescribed under the Rules made under the Act, and the  jurisdiction of the ordinary Civil Courts to  entertain the suit was absolutely barred. [292C] Since  the Civil Court which entertained the  suit  suffered from  an  inherent lack of jurisdiction because  of  special provisions of the U.P. Zamindari Abolition and Land  Reforms Act 1951, the present appeal filed by the appellants had  to be dismissed. [293B]

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION :-Civil Appeal  No.  2032  of 1968. Appeal  by  certificate from the judgment and  decree  dated January  31.,  1968 of the Allahabad High  Court  in  Second Appeal No. 2128 of 1963. Yogeshwar Prasad and M. Veerappa, for the appellants. Uma Mehta, S. K. Bagga and S. Bagga, for the respondent. The Judgment of the Court was delivered by PALEKAR.  J.-This is an appeal by special leave against  the Judgment  and decree of the Allababad High Court  in  Second Appeal  No. 2128 of 1963.  The plaintiffs brought  the  suit against  one Bhaiya Lal, the present respondent, in  respect of certain Bhumidari plots’ The plots had been purchased  in the  name  of  one Markandey the uncle  of  the  plaintiffs. After  the death of Markandey. who died without  issue,  the plots  were  recorded  in the name of  his  widow  Jagdamba. Jagdamba   died  in  1948.   The  plaintiffs  as  the   next reversioners claimed 291 title,  to the property.  They alleged that  the  respondent was interfering with their possession and hence they  prayed for  a permanent injunction.  In the alternative, they  also asked for the relief of possession.  The suitwas filed on 5- 9-1955. Several  pleas were taken on behalf of the defendant one  of them   being  a  plea  of  limitation.   The   courts   were unanimously  of the opinion that the plaintiffs,  being  the next  heirs, had sufficient title to the property while  the defendant had none whatsoever.  The learned Munsif in  whose court  the  suit was filed however, held that the  suit  was barred  by  limitation.  In appeal  the  learned  Additional Civil  Judge, Varanasi, held that the plaintiffs  claim  was not  barred  by  limitation.   Accordingly,  possession  was decreed in favour of the plaintiffs. In  second appeal the High Court found that the question  of limitation could not be properly determined unless there was a  specific  finding  on  two issues  one  relating  to  the commencement of the possession of the plots in 1951-52.  The finding on the second issue was Chandrika Misir, at the time of  filing  the suit.  The High Court re: manded  these  two issues  to  the First Appellate Court for  a  finding.   The finding  on  the  first issue was that  the  defendant  took actual  possession of the plots in 1951-52.  The finding  on the  second issue was that plaintiff No. 1  Chandrika  Misir was a minor when Jagdamba died in 1948 and that he  attained majority in the year 1955 and not before that. When  the case again came before the learned  Chief  Justice for the disposal of the appeal, these findings were accepted as they were findings of fact.  The only point that the High Court  had  to decide was whether the suit  which  had  been filed  on 5-9-1955 i.e. the year in which the plaintiff  no. 1  had  attained majority was in time, In an  ordinary  suit filed  in  a  Civil Court for possession on  the  ground  of dispossession  the  question  of limitation,  on  the  above facts, would have hardly arisen.  Jagdamba bad died in  1948 and  plaintiff  no.  1 the next reversioner came of  age  in 1955.   The period of limitation would be 12 years  and  the suit would be obviously in time.  But the High Court was  of the view that the period of limitation was not the one which was  prescribed in the Limitation Act but the one which  was laid  down  in the Appendix to The Uttar  Pradesh  Zamindari Abolition  and Land Reforms Rules, 1952 which was two  years from  1-7-1952 which was the date of vesting under the  U.P.

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Zamindari  Abolition  and  Land Reforms Act (Act  No.  1  of 1951).   The High Court further held that the fact that  the plaintiff  no.  1 was a minor at the time of filing  of  the suit  did  not  help him because section  6  of  the  Indian Limitation Act, 1908 did not govern suits falling under U.P. Act No. 1 of 1951. Accordingly, the suit was dismissed. It is from this Order that the present appeal has been filed by  special  leave.  It is to be noticed that the  suit  had been  filed  in  a  Civil  Court  for  possession  and   the Limitation  Act  will be the Act which will ’govern  such  a suit.   It  is  not the case that U.P. Act  No.  1  of  1951 authorises  the  filing  of the suit in a  Civil  Court  and prescribes a period of limitation for granting the relief of possession 292 superseding  the one prescribed by the Limitation  Act.   It was,  therefore, perfectly arguable that if the suit is  one properly  entertainable  by the Civil Court  the  period  of limitation  must  be  governed  by  the  provisions  of  the Limitation Act and no other.  In that case there would  have been  no alternative but to pass a decree for possession  in fayour  of the Plaintiffs.  But the unfortunate part of  the whole  case is that the Civil Court had no  jurisdiction  at all  to  entertain  the  suit.   It  is  true  that  such  a contention  with  regard to the jurisdiction  had  not  been raised  by  the defendant in the Trial Court but  where  the court is inherently lacking in jurisdiction the plea may  be raised  at any stage, and, it is conceded by Mr.  Yogheshwar Prasad, even in execution proceedings on the ground that the decree was a nullity.  If one reads sections 209 and 331  of the  U.P. Act No. 1 of 1951 together one finds that  a  suit like  the  one before us has to be filed  before  a  Special Court  created under the Act within a period  of  limitation specially prescribed under the rules made under the Act  and the jurisdiction of the ordinary civil Courts is  absolutely barred.   Section  209 so far as we are concerned  reads  as follows               "209  Ejectment  of  persons  occupying   land               without title               (1)   A person taking or retaining  possession               of land otherwise than in accordance with  the               provisions  of the law for the time  being  in               force, and-               (a)   where the land forms part of the holding               of  a bhumidhar, sirdar or asami, without  the               consent  of such bhumidhar, sirdar  or  asami,               and               (b)..............................               shall  be liable to ejectment on the  suit  in               cases referred to in clause (a) above, of  the               bhumidhar, sirdar or asami concerned,               and shall also be liable to pay damages.               (2)   To   every  suit  relating  to  a   land               referred to in clause (a) of  sub-section  (1)               the  State Government shall be impleaded as  a               necessary party." In the present case it has been held that the defendant  has been re that the land is bhumidhari land and the  plaintiffs are  bhumidhars. taining possession of the land contrary  to law  being  a  trespasser;  Therefore, the  suit  was  of  a description  falling under section 209.  Section 331 so  far as it is relevant is as follows :               "331.   Cognizance of suits, etc., under  this               Act.

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             (1)...Except as provided by or under this  Act               no Court than a Court mentioned in Column 4 of               Schedule  II shall,  notwithstanding  anything               contained  in the Civil Procedure Code,  1908,               take  cognizance of any suit, application,  or               proceedings mentioned in column 3 thereof." Schedule II at serial no. 24 shows that a suit for ejectment of  persons occupying. land without title under section  209 should  be  filed in the court of the  Assistant  Collector, First  Class,  which is described as the Court  of  Original Jurisdiction.  In view of Section 293 331  (1)  quoted  above it is evident  that  the  suit  made cognizable  by  a  special  court  i.e.  the  Court  of  the Assistant  Collector, First Class, could not be filed  in  a Civil Court and the Civil Court was, therefore,,  inherently lacking  in  Jurisdiction to entertain such a  suit.  it  is unfortunate that this position in law was not noticed in the several Courts through which this litigation has passed, not even  by the High Court which had specifically come  to  the conclusion  that the period of limitation was the  one  laid down  by the rules under U.P. Act No. 1 of 1951.  Since  the Civil  Court  which entertained the suit  suffered  from  an inherent  lack of jurisdiction, the present appeal filed  by the plaintiffs will have to be dismissed. As regards costs, we do not think that this is a fit case in which.  the  defendant should get his costs in  any  of  the courts.   Though  he had no title to the  property,  he  was trying to set up a title.  But his attempt was negatived  by all  the courts.  He did not urge also the  contention  with regard to the Jurisdiction of the court at any stage  except in  this Court.  Therefore, while dismissing the appeal,  we further  direct that the plaintiffs and the defendant  Shall bear their, own costs throughout. Appeal dismissed, S. N. 294