- (1.) THIS appeal is directed against the decision of the First Additional Civil ludge, Varanasi. The material facts are these:-
(2.) ONE Jhooroo filed a suit for parti tion of agricultural holding on 30-5-1957 in the court of Munsif Hawaii, Varanasi. An ex parte preliminary decree was passed in the case on 6-2-1958. On 20-3-1958, the plain tiff died and his daughter was brought on re cord as his legal representative. She sold the properties in dispute to Bhagwan Das, where upon his name was substituted in the suit The final decree was passed on 7-2-1963. The decree-holder then sought execution of the decree. The decree was executed and the Amin filed 'dakhaldihani' dated 4-6-1963. Whereupon the execution was struck off in full satisfaction. Thereafter the present ap pellant filed an objection purporting to be 1 under Section 47 of the Code of Civil Proce dure challenging the entire execution proceedings and contending that the final decree having been passed by a court which had no j jurisdiction was a nullity. The decree-holder contested the aforesaid application under Section 47. Civil Procedure Code on the ground that once the execution has been struck off in full satisfaction the court be came functus officio and as such the applica tion under Section 47, Civil Procedure Code was not maintainable. He also contended that the civil court had jurisdiction to pass a final decree. The impugned decree was, therefore, not a nullity and was executable. The contention of the decree-holder found favour with the learned Munsif, Hawaii, who accordingly rejected the application under Section 47, Civil Procedure Code. The judg ment-debtor filed an appeal from the said order but his contentions were not accepted by the appellate court below and his appeal was dismissed. The judgment-debtor has now come to this Court in second appeal. The learned counsel for the appel lant argued that both the courts below erred in holding that the civil court on the rele vant date had the requisite jurisdiction to pass a final decree in the suit for partition of agricultural holding which had been filed under Section 176 of the U. P. Z. A. and L. R. Act. He submitted that on 30-5-1957 When the suit for partition was filed by Jhoo-roo the civil court had jurisdiction to enter tain and try the same but it had no jurisdic tion to pass a final decree in the suit on 7-2-1963 in view of the amending Act No. 37 of 1958 which had come in operation on 7-11-1958. Consequently the final decree passed by the learned Munsif was nullity, hence inexecutable. I find great force in this submission. Section 176 was amended by the Amending Act No. 37 of 1958. The word 'partition' appearing in that section Was substituted by the word 'division'. Sec tion 182-A was deleted and Section 182-B reads as follows:- "Section 182-B: Subject to the provisions of Sections 178 and 182 the division of a holding or the separation of the share there in of a bhumidhar or sirdar shall be made by the Court in accordance with the princi ples that may be prescribed." Section 87 of the Amendment Act of 1958 provided as follows: "Section 87 (1): Except as provided in Sections 85 and 86, any amendment made by this Act shall not affect the validity, ef fect or consequence or 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 com mencement of this Act shall, notwithstand ing any amendment herein made, continue to be heard and decided by such court or au thority." In view of these amendments in the relevant provisions of the U. P. Z. A. and L. R. Act, it was contended on behalf of the appellant that the civil court had no jurisdiction to pass a final decree and that only the revenue court had the jurisdiction to pass the final decree.
(3.) THE position of law obtaining be fore and after Amendment Act of 1958 in respect of a suit for the partition of agricul tural holdings was examined by a Division Bench of this Court in the case of Nathu Singh v. Dular Singh, 1970 All WR (HC) 524. It was held in that case that the posi tion in respect of a suit for partition of Bhu-midhari holding was substantially altered by the Amendment Act of 1958. After the amendment such a suit could be filed only in the revenue court which declares the rights of the parties and finally partitions the hold ings or separates the share therein. The ques tion as to whether amendment introduced by the Amendment Act of 1958 had any effect upon a quit already pending was also answer ed by the Division Bench. It was laid down that Section 87 (1) of the Amendment Act provided that the court or authority before Whom a proceeding had been instituted or commenced prior to the commencement of the Amendment Act (which is 7th November, 1958) continues to have jurisdiction to hear and decide that proceeding. Accordingly the civil court which entertained the present suit continued to have all the jurisdiction in res pect of it which it possessed originally. It has no less and no more. There was nothing in the law to empower the civil court to parti tion the holding. That was a matter falling entirely within the scope of the Collector's jurisdiction. Therefore whether the unamend-ed Section 182-A or the amended Section 182-B applied it was clear that it would not be civil court which would have jurisdiction in the case of partition of holdings.;