Smt. Shail Kumari vs Abhilakh and Others

G.S.N. Tripathi, J.—This is a second appeal filed by the Plaintiff against the judgment and decree dated 22.7.83 recorded by the then IVth Addl. District Judge, Mirzapur in Original Suit No. 84 of 1978 of the Court of Munsif, Mirzapur. The learned appellate court concurred with the findings of the learned trial court and held that the Plaintiff had no title nor she was in possession over the disputed plot. Therefore, the suit has been rightly dismissed.

Original Suit No. 85 of 1978 was filed by the Plaintiff Smt. Shall Kumari for a permanent injunction and in alternative, for possession. Her main allegations were that plot No. 291, area three bighas wholly belonged to Ram Prasad, s/o Musai, who was a Sirdar and had acquired Bhumidhari rights over the same. He executed a registered sale-deed in favour of the Plaintiff on 29.7.74 and thereafter; the Plaintiff has been in peaceful possession. The Defendants started interfering in her possession. Therefore, a suit was filed for the aforesaid reliefs.

The Defendants contested the claim of the Plaintiff. The defence mainly was that the Plaintiff was neither Bhumidhar nor in possession over the disputed plot. Even her processor had no interest in the same. As against it, the Defendants had rights as a Sirdar at the relevant time on account of having their possession since lone. Therefore, the Defendants have acquired a right by way of adverse possession.

The learned trial court while discussion issues Nos. 1, 3 and 7 held that the Plaintiff was neither Bhumidhar nor she was in possession. So she had no right to get any relief from the court. However, he repelled the contention of the Defendants that the suit was barred by the provisions of Section 331 of the Zamindari Abolition and Land Reforms Act and held that the civil court had a Jurisdiction in respect of the relief claimed.

However, on account of the finding on the question of title and possession, the suit was dismissed on 16.5.80.

Feeling aggrieved, the Plaintiff filed a Ist appeal before the IVth Addl. District Judge, Mirzapur. It was Civil Appeal No. 158 of 1980. It was dismissed finally by him on 22.7.1993. The learned Judge concurred in respect of want of title and possession in favour of the Plaintiff. However, he disagreed on the point of Jurisdiction in view of the provisions of Section 331 of the Z. A. and L. R. Act and held that the civil court had no Jurisdiction to grant any relief in favour of the Plaintiff. Consequently, the appeal was dismissed. Hence this present appeal.

The only question involved on law point is that once the civil court came to the finding that it had no Jurisdiction in respect of the property in dispute in view of the bar contained in provisions of Section 331 of the Z. A. and L. R. Act, it should have returned the plaint to the Plaintiff and it should not have given any finding in respect of other points involved in the suit.

In support of the same, learned counsel for the Plaintiff Appellant has drawn my attention to the following observations of the Hon''ble Supreme Court in the case of State, by Nilratan Sircar, Enforcement Officer Vs. Lakshmi Narain Ram Niwas, . The following observations made in paragraph 13 of the ruling have been relied upon:

The last point urged is that when the civil court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the Appellant with respect to the adjustment of certain amount paid by the Respondent. This contention is correct. When the Court had no Jurisdiction over the subject-matter of the suit, it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no Jurisdiction over the matter, had to return the plaint.

In view of the above, I find that once the lower appellate court came to the conclusion that on account of bar of Section 331 of the Z. A. and L. R. Act, the civil court had no jurisdiction, it should not have recorded a finding in respect of other points involved in the suit. It should have returned the plaint to the Plaintiff under Order VII, Rule 10, Code of Civil Procedure

The appeal is accordingly allowed. The finding recorded by the courts below are set aside. It is ordered that the plaint shall be returned to the Plaintiffs counsel for presentation before the proper court/revenue court, within 15 days from today. The Registry is directed to comply with the orders in accordance with the procedure contained under Order VII, Rule 10, Code of Civil Procedure