M. P. Mehrotra, J. - (1.) THIS revision under Sec. 25 of the Provincial Small Causes Court Act is directed against the trial court's judgment dated 4-3-1982, decreeing the plaintiff's suit for ejectment of the defendant from the accommodation in dispute. Feeling aggrieved, the tenant has come up in the instant revision and in support thereof, I have heard Sri S. N. Agrawal, learned counsel for the applicant in revision.
(2.) LEARNED counsel raised several contentions before me. Firstly, it was contended that the court below was wrong in holding that the Civil Court had jurisdiction to try the suit. According to the learned counsel issue no. 6, which was as follows, was wrongly decided by the trial court. "Whether the house in dispute was constructed over Bhumidhari land ? If so, have the rights or the plaintiff in the disputed house, if any been extinguished under the provisions of KUZA Act ?" Learned counsel contended that the house in question stood on such land as had become the Sirdari of his client when Kumaun & Uttrakhand Zamindari Abolition and Land Reforms Act, 1960 came into force. In the judgment of the trial court it is stated that the said Act was enforced in the area, where the house in dispute is situated, with effect from 1st July, 1969. Before the said Act was enforced, Tehri Garhwal Bhumi Sampati Adhikar Niyam was applicable to the area in question. The trial court has emphasized that the site over which a house was situated was not included in the definition of land in the earlier enactment and, therefore, the Kamaun Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 was not applicable to the land over which the house in question stood. The finding of the trial court is that the house existed prior to 1-7-1969 when the new Act came into force in the area in question. Learned counsel has attacked this finding on the ground that the plaintiff in the witness-box admitted that while some portion of the house in dispute was let out in 1959, the remaining portion was let out sometime in 1972. In my view, this attack is not merited. The defendant never stated that the remaining part of the house was constructed after 1st July, 1969. The burden was upon him to establish the said fact. Apart from that, it should be seen that the house is a compact one and even if some new construction was made adjacent to the old structures, it could well be shown to be done on the appurtenant land which was adjacent to the old structure. In that view, it will still be a part of the site of the old house. So far as the question of jurisdiction is concerned, in my view, the applicant in the revision has failed to show that by the trial in the civil court, there has been any failure of justice. Sec. 331 (1-A) of the U. P. Act No. 1 of 1951 clearly lays down that no objection to the lack of jurisdiction of a court would be entertained unless, apart from other requirements mentioned in the said provision, it was also shown that there had been a consequent failure of justice, i. e. failure of justice in consequence of the trial having taken place in the court which lacked jurisdiction. Now the learned counsel contended that in the instant case it should be held that there was such failure of justice by the trial having taken place in the court of Small Causes because from a decree passed by such a court, no appeal lay. Only a revision under Sec. 25 of the Provincial Small Causes Court Act would lie whereas if the suit had been tried in the revenue court then a party could have an opportunity of having a fulfiedged right of first appeal and thereafter a second appeal would also lie on the question of law. In my view, this contention, even though attractive, is not tenable. Learned counsel further contended that the trial in a Small Causes Court is a special trial to which many of the provisions of the Civil Procedure Code are not applicable. He placed reliance on Sec. 7 of the Provincial Small Causes Court Act and Order 50 of the Civil Procedure Code. It should be seen that there is no question of the applicability of Art. 14 of the Constitution of India. I have to decide as a pure question of law whether in every case where a trial takes place in a Small Causes Court it must necessarily and as a matter of law be held that such a trial results in a failure of justice because instead of an appeal a right of revision has been given to the aggrieved party. In my view, there can be no such presumption in law that such a trial necessarily results in the failure of justice. It is true that the aim of the trial of the Small Causes Court is to expedite the hearing and not to allow the decree to be questioned in a wide manner in which a decree can be questioned in a regular first appeal. However, this aspect of the matter cannot lead to the inference that such trial should be held to be a case of failure of justice. If this argument were to be accepted, it would mean that the intention of the Legislature in directing that certain suits shall be cognizable by the Small Cause Court alone was consciously to perpetuate injustice. According to the contention of the learned counsel for the tenant, the trial by a Small Causes Court is equivalent to an unjust trial. The Legislature very often lays down in what circumstances the party will have the right of revision, the right of appeal, the right to have a second appeal etc. and it would be dangerous to construe a provision contained in the Provincial Small Causes Court Act as a provision perpetuating a failure of justice. This view further gets strengthened from the fact that in the earlier part of Sec. 331 (1-A) of the UP ZA & LR Act, the Legislature has used both the expressions-appellate or revisional court, while laying down that no objection to the jurisdiction shall be entertained by any of these Courts. In other words, the Legislature has laid down that such an objection shall not be entertained even by a revisional court or by the appellate court. If the view were that in cases where revisions are provided for it must necessarily be held that the trial in the trial court has resulted in a consequent failure of justice, then the Legislature would not have laid down that such an objection could not be raised before the revisional court, even as it could not be raised before the appellate court. In other words, the Legislative view is that both the appellate court and the revisional court have to be satisfied that by the trial in the wrong court consequent failure of justice was caused in the facts of the case and the controversy was not to be decided on the basis of a prior assumption. Accordingly, the first contention made by Sri Agarwal is rejected.
(3.) AS a second limb of the same argument, the learned counsel contended that the rights of the plaintiff in the land became extinguished and for this purpose he placed reliance on Sections 189 and 190 of the UP ZA & LR Act. In my view, both these sections are not applicable because the clear finding is that when the Kamaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 was enforced the site of the house was no more land in which rights could accrue under the said enactment. Learned counsel's next contention is based on Sec. 7 of the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960. The said section lays down as under :- 7.Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers there of-All wells, trees in abadi, and all buildings situate on any khaikari land in the notified area herein before acquired belonging to or held by a hissedar, khaikar or any other person, whether residing in the village or not, shall continue to belong to or be held by such hissedar, khaikar or person, as the case may be, and the site of the well or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed. Explanation-For the purposes of this section, the same treatment shall be given to the words ''baoli", "Chhal", "Naula", "Nauli", and similar expression as to the word "Well".;