- (1.) Heard learned counsel for the parties.
(2.) These Second appeals arises out of O.S. no.407 of 1951 instituted on 9.8.1951 for recovery of price of crop amounting to Rs.527/- and 12 Annas (0.75 Rupees) and for injunction and O.S. no.397 of 1954 instituted on 2.6.1954 by the same plaintiff in respect of same property for recovery of Rs.1180/- and 4 annas (0.25 Rupees) as damages and for possession. These appeals have been filed by the defendants as both the suits were decreed by Munsif Kannauj on 15.1.1969. Against the decrees passed by the trial court defendants appellants filed Civil appeal no.17 of 1969 arising out of 1951 suit and Civil Appeal no.15 of 1969 arising out of 1954 suit. Learned Civil and Sessions Judge Farrukhabad dismissed both the appeals on 10.8.1973. Trial Court had not awarded the cost hence plaintiff had filed cross objections before Lower Appellate Court. The cross objections were allowed and proportionate costs were also awarded. Through these Second appeals decrees passed by the lower appellate court have been challenged. The appeals were admitted in 1973. At that time there was no need to frame substantial questions of law. The following questions of law have been argued by learned counsel for the parties: 1. Whether in view of amendment of 1956 in U.P.Z.A.L.R. Act suit for possession of agricultural land is cognizable before Civil Court? 2. What is the effect of dismissal of suit filed by the defendants appellants before the revenue Court? 3. Whether suit for possession was within time? Question no.1:- The anchor sheet of argument of learned counsel for the appellants on the question no.1 is the authority of the Supreme Court reported in Chandrika Misir Vs. Bhaiya Lal, 1973 AIR(SC) 2391 (Some authorities of this High Court following the same have also been cited).
(3.) In the said authority the case arose out of a suit for possession of agricultural land filed on 5.9.1955. Schedule 2 to U.P.Z.A.L.R. Act prescribes the Court where suits of different nature may be filed. Under Section 331 of the Act it is provided that the suit mentioned in the Schedule 2 shall only be filed before the Court mentioned in the said Schedule. However, prior to 28.5.1956 there was no entry in Schedule 2 regarding suits for possession of agricultural land to be instituted under Section 209 of the Act. For the first time through U.P. Act no.18 of 1956 entry at serial no.24 of Schedule 2 was provided mentioning therein that suits under Section 209 of the Act should be filed in the Court of Assistant Collector Ist Class. The aforesaid authority of Chandrika Misir by two Hon'ble judges has been overruled by the Supreme Court in Faqir Vs. Kishori, 1995 AIR(SC) 1569 by three Hon'ble judges. In the authority of Faqir Vs. Kishori Supreme Court further held that suits for possession of agricultural land pending on 28.5.1956 were not affected by the 1956 amendment. Paragraphs 15 and 16 (of the AIR) of the authority of Faqir Vs. Kishori are quoted below: "15. U.P. Zamindari Abolition and Land Reforms Act came into force in 1952 and Schedule II, as it originally existed in the Act, did not contain any entry pertaining to the suits under Section 209 of the Act. This entry was introduced for the first time by the U.P. Land Reforms (Amendment) Act No. 18 of 56 with effect from 28th May, 1956 which repealed U.P. Land Reforms (Amendment) (Second) Ordinance, 1956. Another entry viz. entry relating to "Suit for injunction or for the repair or waste or damage" contemplated by Section 208 of the Act was also included in Schedule II by the aforesaid Amendment Act, with effect from the same date, namely, from 28th May, 1956. Section 23 of the Amendment Act provides as under: Saving: (1) Any amendment made by this Act shall not effect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein by such court or authority. (ii) An appeal, review or revision from any suit or proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, lis to the Court or authority to which it would have laid if instituted or commenced before the said commencement. 16. In view of the above saving provision, the conferment of exclusive jurisdiction on the Revenue Courts by the Amending Act did not affect the pending Suits or right of appeal, review or revision available under the original provisions.";