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PETITIONER: RAM JANAM

       Vs.

RESPONDENT: RADHAKRISHNA CHAUBE & ORS.

DATE OF JUDGMENT:       13/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATASWAMI K. (J)

CITATION:  JT 1996 (3)   642        1996 SCALE  (3)192

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  arises from  the judgment  and decree of  the Allahabad  High Court made in S.A. No.1442/74 on May 7, 1981.      The facts  not in  dispute are  that the  appellant had instituted a  suit under  Sections 59  and 61  of  the  U.P. Tenancy Act,  1939 [for  short, the  ’Act] claiming that the appellant has  been in  possession of  the land  for over 50 years and  had acquired  hereditary tenancy  rights therein. The Raja  of Dumraon  had  interfered  with  his  rights  to possession thereof  and that,  therefore, they  claimed  for declaratory relief  against the respondents. The respondents had disputed  his rights saying that the lands are their own khudkasht  lands   and  were  never  in  possession  of  the appellant. The trial Court, after framing appropriate issues and adduction  of evidence by the parties, has held that the appellant has  been in  possession over  50 years in his own right  by   hereditary  succession   as  tenant   and  that, therefore, he became tenant under the Act. On appeal, it was confirmed. The respondents challenged the correctness of the decree and  judgment of  the courts  below  on  question  of jurisdiction of  the court in the High Court. The High Court found that  under the  Bihar &  Uttar Pradesh [Alteration of Boundaries] Act,  1968 [Act  24 of  1968]  [for  shorts  the ’Boundaries Act˜]  passed by  the Parliament, the village of Mohammadpur in  the district  of Ballia in Uttar Pradesh was part of  Shahabad District  in Bihar State. At the time when the suit  was instituted  the Act  had no  application.  The trial Court  and the  appellate Court  also lacked  inherent jurisdiction to  entertain the suit. Therefore, the suit was not maintainable in law. Accordingly, the appeal was allowed and the  decrees of  the courts  below were  set aside. Thus this appeal by special leave.      The  trial  Court  and  the  appellate  Court  recorded concurrently as a fact that the appellant was a tenant under the respondents  and that  he had tenancy rights as declared

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under Sections  59 and  61 of  the Act. The High Court found that since  there was  submersion and  re-emergence  of  the lands by alluvion or de-alluvion from time to time, changing of  boundaries   of  the  States  of  U.P.  and  Bihar,  the continuous possession  for over statutory period of 12 years was  interrupted.   Consequently,  the  finding  of  adverse possession recorded  by the  trial Court  was not correct in law. It  is clear  from the  record that there is no factual evidence placed  on record in this behalf to show as to when this submersion or re-emergence of the appellants’ lands had taken place.  Under those  circumstances, the High Court was not right  in interfering  with the  concurrent findings  of fact recorded  by the  courts below  that the  appellant had perfected his title by adverse possession.      The  only   crucial  question   that  could  touch  the jurisdiction of  the courts  is whether  the trial Court had jurisdiction to  entertain the  suit  to  grant  the  relief prayed for.  It is seen that on account of the flow of Ganga river and  floods on account thereof, the abutting riverbeds were  either  submerged  or  accredited  to  the  respective territories. Preceding  the  Boundaries  Act,  the  admitted position  was   that  the   line  of   deep  stream   was  a determinative factor.  On account  of the administrative and revenue difficulties  felt by the State Governments cf Bihar and U.P.  both the  Chief Ministers  had requested the Prime Minister to resolve the dispute, pursuant to which Shri C.M. Trivedi came  to be appointed as an arbitrator who submitted his report.  Consequent upon  the report, the Boundaries Act came to  be enacted. The Statement of Objects and Reasons of the Act clearly indicates that "[A]t present the deep stream of the  river Ganga  forms inter-State  boundary between the Shahabad district  of Bihar  and Ballia district of U.P...." In para 3 thereof it is stated thus: <SLS> "Clause 26  of the  Bills provides  that the  existing  laws shall continue to be in force in the transferred territories until otherwise provided by a competent legislature or other competent authority.  However, because  of  the  fluctuating nature of  the present  boundary, the  actual extent  of the transferred territories  may not be clear to the authorities who have  to implement  the laws.  Hence, provision has been made for  the demarcation  of the  fixed boundary  on  land, determination of  the deep  streams of  the two  rivers  and preparation and  publication of  a map  of  the  transferred territories before the actual transfer is effected." <SLE> Consequently, the  appointed day,  viz., June  10, 1970  was determined under  the Boundaries Act by operation of Section 2 [a]  thereof. Section 3 deals with transfer of territories as and  from the  appointed day.  Section 8  deals with  the extension of the jurisdiction and transfer of proceedings to High Court  at Allahabad and vice versa to Patna. Section 30 deals with  transfer of the proceedings to courts other than the High  Courts. At this point of time it would be relevant to note  that Section 26 of the Boundaries Act envisages the extent of the territorial extent of lands as envisaged under the Boundaries Act. It reads as follow: <SLE> "26 Territorial  extent of laws. The provisions of Section 3 shall not  be deemed  to have  effected any  change  in  the territories to which any law in force immediately before the appoint day  extends or  applies, and territorial references in any  such law  to the  State of  Bihar or  Uttar  Pradesh shall, until  otherwise provided  by a competent legislature or other  competent authority,  be construed  as meaning the

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territories  within   that  State   immediately  before  the appointed day". <SLE>      A  reading   thereof  would   clearly  show   that  the provisions of  Section  3  should  not  be  deemed  to  have effected any  change in  the territories to which any law in force  immediately  before  the  appointed  day  extends  or applies, and  territorial references  in any such law to the State of  Bihar or U.P. shall, until otherwise provided by a competent  legislature  or  other  competent  authority,  be construed as  meaning  the  territories  within  that  State immediately before  the appointed  day. It  is also  not  in dispute that right from 1959 the village continued to remain part of  Ballia district  in U.P. Consequently, the Act came to be  applied and  continued to  be applied to the lands in question.      In view  of  the  above  legal  setting,  the  question arises: whether  the decree  of the trial Court is a nullity or lacks  inherent  jurisdiction?  Between  1959  and  1968, though  the   land  by  course  of  stream  of  Ganga  river accredited to the territory of Bihar, in fact it remained to be within  the district  of Ballia  by line  of deep stream. Consequently,  the  trial  Court  had  the  jurisdiction  to entertain the suit at that time. Though under the Boundaries Act the  territories stood extended, in fact by operation of the Boundaries  Act the  jurisdiction of  the area  was  not transferred to  the Bihar  courts.  Consequently,  the  land remained to  be within  the jurisdiction of the trial Court. As on  the date  of the  decree the  Boundaries Act had come into force  and consequently  even the  doubtful territorial jurisdiction of the trial Court stands rectified on the date when  the   decree  was   granted  by   the   trial   Court. Consequently,  the   Act  applies   to  the  rights  claimed thereunder. The  appellant, therefore,  is entitled  to  the relief sought for in the suit. The courts below have rightly granted the relief.      The appeal  is accordingly  allowed. The  judgment  and decree of  the High Court in the Second Appeal No.1442/74 is set aside  and those  of the trial Court and appellate Court stand restored. No costs.