Virbhadra vs Piraji

A.I.S. Cheema, J.—This Revision Application has been filed by Petitioners-original Defendants-Judgment Debtors ("J.D.s" for short) of Regular Civil Suit No. 388 of 1999 whose objections in the Regular Darkhast No. 35 of 2006 pending before Civil Judge, Junior Division, Udgir that the decree was nullity, have been rejected as well as their Civil Suit No. 162 of 2013 came to be dismissed.

In brief, the case brought by the J.D.s is that the Respondent-Original Plaintiff Piraji Mahadu Waghmare had filed Regular Civil Suit No. 388 of 1999 before Civil Judge, Junior Division, Udgir. Piraji is now represented by his legal heirs. I will refer to the Respondents as Decree Holders. Piraji had filed the Regular Civil Suit for declaration of ownership, possession and injunction as regards Gut Nos. 58 and 61, situated at Shambhu Omerga, Tq-Udgir. J.D.s had contested the Suit claiming that the land was belonging to the Government and that they were "Shikmidars" under the Hyderabad Land Revenue Act, No. VIII of 1317 Fasli ("Revenue Act" in brief) and their status was later converted into "Pattedar". That on implementation of consolidation scheme, certificate was allotted in their favour. The Civil Judge, Junior Division, Udgir decreed the suit on 25th September, 2006. The J.D.s filed Regular Civil Appeal No. 132 of 2006 and the same got dismissed on 28th November, 2011. Second Appeal was filed by the J.D.s in the High Court, having Second Appeal No. 745 of 2011. Even the Second Appeal got dismissed on 9th January, 2012. SLP No. 5907 of 2012 filed before the Hon''ble the Supreme Court also came to be dismissed on 27th February, 2012.

Meanwhile the Decree Holders had filed Regular Darkhast No. 35 of 2006. The Petitioners-J.D.s contended in the Darkhast, u/s 47 of the CPC (C.P.C.), that the decree is a nullity since under the Hyderabad Land Revenue Act as well as Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("Act of 1947" in brief), the jurisdiction of the Civil Court was barred to testify the validity of certificates issued under the Acts. It was claimed that the Civil Court wrongly proceeded to test validity of the certificates. By impugned order dated 13th August, 2013 the Civil Judge, Junior Division decided that the same issue being raised by way of suit by the J.D.s was hit u/s 11 of C.P.C. by the principles of res judicata as the issue had already been raised when the suit was pending and also found that the contentions being raised, were already discussed and decided. The Executing Court thus rejected Application Exhibit 76 filed before it as well as the suit filed by the J.D.s.

Learned counsel for the Petitioners-J.D.s has claimed that the suit had been filed by the Respondents-Plaintiffs for declaration of ownership, claiming that the Defendants were Bataidar. Defendant claimed himself to be Shikmidar. There were Certificates of Shikmidar in favour of Gundappa S/o. Hiranna from whom Defendants claim to have inherited their title. The certificate had been granted under the Revenue Act. The Shikmidar certificate was later on converted into certificate of Pattedar and so the Plaintiff Piraji had no title. The trial Court held that the certificate is not proper and found it to be null and void. The question of jurisdiction was raised in the Appeal and Second Appeal. The predecessor in title of Defendants-J.D.s was Shikmidar under the Hyderabad Land Revenue Act and it was wrongly held by the Civil Court that the certificate had been issued by an authority which was not competent. The learned counsel referred to various provisions from the Revenue Act, to claim that the Civil Court could not have decided the competency of authority who issued the certificate. The Advocate accepted that the question of jurisdiction had been raised and the dispute regarding bar of Civil Court was taken in the SLP filed before the Hon''ble Supreme Court and that the same has been dismissed. However, the learned counsel insisted that if the Civil Court was lacking in jurisdiction inherently to deal with the question because there was bar under the Hyderabad Land Revenue Act, the decree would be nullity and the dispute can be raised even at the time of execution. She claimed that Order issuing certificate of Shikmidar was final as per Section 164 of the Revenue Act.

Learned counsel for Petitioners-J.D.s further submitted that in favour of Defendant No. 1 Virbhadra and Defendant No. 2 Sheshrao, allotment certificate u/s 24 of the Act of 1947 had been issued and that the same had been filed in the Suit and that the same had not been considered while deciding the Suit. She admitted that dispute in this regard was raised in the Second Appeal but the same was not accepted. According to her, Section 36-A of the Act of 1947 barred jurisdiction of Civil Court when certificate had been issued in favour of Defendant Nos. 1 and 2.

Against this, learned counsel for Respondents claimed that the Suit of the Respondents-Decree Holders was on the basis of title of deceased original Plaintiff Piraji. Piraji was Pattedar. According to him, the disputes which are now tried to be raised, have been raised through-out the litigation earlier and the same things are tried to be agitated again. The Suit brought was title Suit and Civil Court was competent to decide whether Plaintiff had the title and if Plaintiff was entitled to the possession. He submitted that the certificates regarding consolidation were merely filed and no pleadings or evidence was led on that count and the dispute raised on this count in the Second Appeal was also not accepted.

If Judgment of the trial Court Exhibit A is seen, the defence regarding being Shikmidar was considered and the certificate relied on was dealt with in the light of provisions of the Revenue Act. The different sections of the Hyderabad Land Revenue Act were discussed and the Court found that there was nothing to show that the mandatory procedures had been followed or that the Deputy Collector who had the jurisdiction to issue the certificate, had issued the certificate. It was found that the Tahsildar who had issued the certificate, did not have authority to issue the certificate. After discussing the provisions of law and the evidence, the trial Court had found that the Plaintiff had proved his title on the suit land and the Defendants had failed to prove title. The trial Court found that while the name of Plaintiff and his predecessor in title had been entered into title column, name of the Defendants was in cultivation column.

At the time of Regular Civil Appeal No. 132 of 2006 also, it was found by the District Court that the Plaintiff proved his title over the suit lands and that the Defendants failed to prove that they have become owners by the order Exhibit 110-certificate issued by Tahsildar or by the adverse possession. The question of jurisdiction of Civil Court was disputed before the District Judge. District Judge dealt with the issues and the nature of suit which was being tried. District Judge found that Exhibit 110 issued by the Tahsildar was illegal since it was issued by incompetent authority under the concerned Act. Considering these aspects, the District Judge maintained the decree passed and the Appeal was dismissed.

In the Second Appeal, again the same issues were raised regarding bar of Civil Court to entertain the issues. It was claimed in the High Court in the Second Appeal No. 745 of 2011 for the Defendants-J.D.s that even in consolidation scheme the certificate of ownership have been granted in the name of the Appellants-Defendants and that if the original Plaintiff was aggrieved, he had to move under the Act of 1947. The dispute, whether the Tahsildar could have issued the certificate Exhibit 110 was also raised. This High Court in Para 4 of the Judgment found that perusal of the provisions under the Hyderabad Land Revenue Act make it clear that Deputy Collector is the competent authority to issue such certificate. This Court observed in Para 4, as under:-

"......................................................... As stated earlier, upon perusal of Section 67-A of the said Act, the Deputy Collector is only competent authority to grant such certificate and such certificate was granted by the Tahsildar without jurisdiction, therefore, the order of granting such certificate was without jurisdiction. Therefore, there was no question of referring the said issue by the Civil Court to any authority under Hyderabad Tenancy Act or under any other Act."

Even regarding the certificate under the Act of 1947 the dispute was raised and the question of considering the said point did not find favour. The findings of the Courts below were maintained and the Second Appeal was dismissed.

It can be seen that the SLP (Civil) No. 5907 of 2012 also came to be dismissed by the Hon''ble Supreme Court on 27th February, 2012. Learned counsel for Petitioners-J.D.s fairly accepted that in the Petition of S.L.P., these claims regarding bar of the Civil Court were raised. Still, the Hon''ble Supreme Court did not interfere.

Learned counsel for Respondents-Plaintiffs relied on the case of Chandrashekhar Vs. Pandharinath, to submit that Court executing decree cannot go behind the decree; between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. According to the learned counsel the decree even if it were to be said to be erroneous, would be binding between the parties.

Learned counsel for Respondents-Decree Holders further relied on the case of Ramchandra Jyoti Jadhav Kaikadi and Others Vs. Gajendra Nana Gund and Others, where in the context of Act of 1947, this Court has earlier held that the question of ownership or title to property can only be decided by the Civil Court, and not by any other authority.

Learned counsel for Petitioners, however, relied on the case of Yeshwant Ramchandra Dhumal deceased by L.Rs. Vs. Shri Shankar Maruti Dhumal and Another, to submit that the Civil Court or Mamlatdar''s Court does not have jurisdiction to settle, decide or deal with any question which is by or under the Act of 1947 required to be settled, decided or dealt with by the State Government or any officer or authority under that Act. The facts of that matter were different. Observations in Para 10 of that Judgment, make facts of that matter clear. The observations are as under:-

"10................................................................. In fact, because the respondent No. 1 has not handed over possession of the land which respectively belonged to the appellants to the respondent No. 2, the respondent No. 2, in turn, has not handed over possession of his land for formation of Block No. 1428 as a result of which the appellants and the respondent No. 1, who are half owners of Block No. 1428 are not in possession of their rooms. I am of opinion, that the power to put the owners, in possession of the holding, to which they are entitled under the scheme is a power which is exclusively conferred on the Consolidation Officer u/s 21 of sub-section (3) of the Act..........."

In Para 10 of the Judgment, this Court observed that since the appellants and respondents in that matter were both allottees under the consolidation scheme, the question as to who should be in possession of any portion of land which was covered by the consolidation scheme, was a question that could be decided only by the consolidation officer u/s 21(3) of the Act. Thus, the facts of that matter related to question which could be dealt with under the said Act. In the present matter, the dispute was regarding ownership and as has been held in the matter of Ramchandra Jyoti Jadhav Kaikadi (supra), the question could be dealt with by the Civil Court.

Learned counsel for the Petitioners-J.D.s relied on the case of Kiran Singh and Others Vs. Chaman Paswan and Others, to claim that if the decree is a nullity, then its invalidity can be set up at any stage. There can be no dispute regarding principle of law. However, it will have to be shown that in the present matter, the decree was a nullity. In fact the disputes were already raised and have been discussed and dealt with and decided when the matter was earlier in Appeals.

Learned counsel for Petitioners has relied on Madhav Kesu Khuspe Vs. Sundrabai Mugutrao Phadatare, In that matter dispute arose when tenant brought suit claiming back possession. That was a matter in the context of Bombay Tenancy and Agricultural Lands Act, 1948. There appellant was tenant of a widow but still proceedings u/s 32-G of Bombay Tenancy and Agricultural Lands Act were started during her life time. Though the Record of Rights showed the appellant as tenant in his individual capacity notice was served on his brother whose statement to the effect that he did not desire to purchase the land was recorded and possession was taken by the landlady in the appellant''s absence. When appellant learnt about all this he filed an appeal to the Tenancy Appellate Authority but appeal was dismissed whereupon appellant filed a suit in the civil Court for possession contending that the proceedings before the Tribunal were a nullity and subsequent possession was illegal. For the respondent it was contended that the Civil Court''s jurisdiction was barred. It was held that the enquiry in breach of the provisions of section 32-G and in violation of the principles of natural justice being a nullity and without jurisdiction, the order passed could be challenged in the Civil Court and the consequential possession of the landlady being illegal, the suit for possession was maintainable and that though appellants had appealed to Tenancy Appellate Court and the appeal was dismissed, Civil Court''s jurisdiction was not taken away.

In the present matter also, the dispute of bar of jurisdiction of Civil Court was raised as the Petitioners claim to be Shikmidars, but it has been found that the certificate relied on was issued by an authority which was not competent. Thus, in present matter also the Plaintiff could rightly claim that the suit was maintainable even in the face of certificate Exhibit 110.

Learned counsel for Petitioners-J.D.s has relied on some Judgments under other different Acts prescribing bar to the jurisdiction of the Civil Courts. However, bar to the jurisdiction of Civil Court is not to be readily inferred and whether the bar applied, has to be seen on the basis of the Act concerned to be read with the facts of the matter concerned. In the present matter, the disputes raised on the basis of the certificate issued by Tahsildar and the consolidation certificate, were already dealt with and there is no reason to let the Defendants keep raising the same disputes over again in the execution and this Revision. Nothing is shown that under the Act of 1947 the Civil Court could not have decided the question of title. As discussed, the dispute regarding consolidation certificates was also dealt with in the Second Appeal and the dispute was discarded and the Judgment of the trial Court had been upheld and so there is no reason now to reopen the same. Considering the arguments raised, even now Petitioners-J.D.s are unable to show that interference is called for.

There is no substance in the Revision Application. The Civil Revision Application is rejected.