KAMLA PANDEY AND OTHERS Vs. RAGHUBIR DUSADH AND OTHERS
LAWS(ALL)-1965-5-17
HIGH COURT OF ALLAHABAD
Decided on May 20,1965

Kamla Pandey And Others Appellant
VERSUS
Raghubir Dusadh And Others Respondents


Referred Judgements :-

RAM SAHAI AND ANR. V. VINODE BEHARI GHOSH [REFERRED TO]
ALLURI VENKATA SOMARAJU AND ORS. V. ALLURI VARAHA LARAJU AND ORS [REFERRED TO]
RAJA BRAJA SUNDAR DEB VS. MONI BEHARA [REFERRED TO]


JUDGEMENT

Gangeshwar Prasad, J. - (1.)THIS second appeal arises out of a suit for a declaration that the decree of the Assistant Collector in suit No. 46 under Section 59/61 of the UP Tenancy Act and the appellate decrees in the said suit passed by the Commr. and the Board of Revenue are void, ineffective and without jurisdiction, and also for a declaration that the Plaintiffs are Bhumidhars in possession of the land to which the decrees relate. The Plaintiffs also claimed possession over the land in the alternative. Briefly stated, the case of the Plaintiffs was that they were Zamindars of the village in which the land in suit is situate and one Asharfi was the tenant of the land. Asharfi, it Was alleged, relinquished his rights in the land, and the Plaintiffs thereupon entered into possession and cultivated it themselves with the result that it became their Khudkasht and they acquired the rights of a Bhumidhar therein after the enforcement of the UP Zamindari Abolition and Land Reforms Act. The Defendants, according to the Plaintiffs, were not sons of Asharfi as they claimed to be and had no interest in the land, but they filed a suit in the revenue court against the Plaintiffs on 15.6.1954 under Section 59/61 of the UP Tenancy Act for a declaration of rights in respect of it. The suit was decreed by the Assistant Collector and the decree passed by him was confirmed in appeal by the Commissioner and then by the Board of Revenue. The validity of these decrees was challenged by the Plaintiffs on the ground that no suit under Section 59/61 of the UP Tenancy Act was maintainable in the revenue court after the passing of the UP Zamindari Abolition and Land Reforms Act and the decrees passed in suit No. 46 are, therefore, nullifies and they do not affect the rights of the Plaintiffs in regard to the land in suit. It was also alleged by the Plaintiffs that in proceedings under Section 145 Code of Criminal Procedure between the parties the possession of the Plaintiffs in the land in suit was upheld on 13.7.1954 and since the Defendants did not get the order passed in the proceedings set aside the order had become final and the right and interest of the Defendants in the land in suit had come to an end.
(2.)THE suit was contested by the Defendants. They claimed to be sons of Asharfi who was admittedly the tenant of the land and they denied that Asharfi ever relinquished his rights in it. They also pleaded that Asharfi continued in possession till his death and the Defendants had, thereafter, been throughout in possession as his heirs. They also claimed to have become Bhumidhars by making the requisite deposit under the UP Zamindari Abolition and Land Reforms Act. They asserted that the revenue courts had jurisdiction to entertain their suit under Section 59/61 of the UP Tenancy Act and pleaded that the decree passed in the suit operates as res judicata. Both the courts below have dismissed the suit. They have found that Asharfi had never relinquished his tenancy and the Plaintiffs had never entered into possession, and further that the Defendants are the sons of Asharfi and they have always been in possession of the land. The contention of the Defendants that the revenue court had jurisdiction to entertain suit No. 46 under Section 59/61 of the UP Tenancy Act and the decree passed in the suit operates as res judicata has also been upheld by the courts below. The Plaintiffs have come in appeal to this Court.
Mr. Jagdish Misra, learned Counsel for the Plaintiffs, has devoted the major part of his argument to attacking the validity of the decrees passed by the revenue courts in suit No. 46. His contention is that the said suit was for a declaration under Section 59/61 of the UP Tenancy Act that the Respondent were hereditary tenants of the disputed land, but no such suit was maintainable after the enforcement of the UP Zamindari Abolition and Land Reforms Act, because tenancy rights had been altogether wiped out and new rights had taken their place, and that a suit for a declaration of such newly created rights was not cognizable by the revenue court on the date on which suit No. 46 was instituted. In support of this contention the learned Counsel has placed reliance on Shital Prasad v. Board of Revenue (1)(1960 AWR 96). The answer of Sri G.D. Srivastava, learned Counsel for the Respondents, to this contention is that no plea as to want of jurisdiction having been taken by the Appellants in suit No. 46, it is not open to them to raise that plea in a subsequent suit, and further that the alleged cause of action for suit No. 46 having arisen prior to the enforcement of the UP Zamindari Abolition and Land Reforms Act, the revenue court was competent, by virtue of Clause (2) of the UP Land Tenures (Legal Proceedings Removal of Difficulties) Order 1942, to entertain it. It is, however, wholly unnecessary to decide this controversy in view of the findings of fact recorded by the courts below. The decree in suit No. 46 is relevant only in so far as it may preclude the Plaintiffs from denying that the Defendants are sons of Asharfi and succeeded to the tenancy of Asharfi as his heirs and from asserting that Asharfi had relinquished the tenancy. Evidence on these questions has, however, been led in this case by the parties, and inspite of the view that the courts below have taken about the jurisdiction of the revenue court to entertain suit No. 46 and of the force of the decree passed in that suit, they have recorded clear findings on the said questions. As noted above, they have held that Asharfi never relinquished the tenancy and that the Defendants are sons of Asharfi and they succeeded to the Tenancy and remained in possession thereof. Even if, therefore, the decree passed in suit No. 46 is entirely ignored the result of the concerned with the decree in suit No. 46 only in so far as it may bar the raising of the questions which were adjudicated upon in that suit But if those questions have been gone into in this suit as well and answered against the Plaintiffs and in favour of the Defendants quite independently of the adjudication in suit No. 46, the validity or invalidity of the decree passed in that suit loses all significance. A declaration as to the nullity of the decree cannot be claimed by the Plaintiffs in the abstract and unrelated to his rights in the property in suit, and Mr. Jagdish Misra has conceded that if the Plaintiffs are not found to have any interest in the property in suit determination of the question whether the decrees original and appellate in suit No. 46 are void, ineffective and without Jurisdiction is altogether unnecessary.

(3.)ON the findings recorded by the courts below there is no room for doubt that the Plaintiffs have no right what, soever in the land in dispute. Asharfi, the admitted tenant of the land, never relinquished the tenancy or gave up possession, and upon his death he was succeeded by the Defendants who are his sons and the Defendants have continued in possession. In consequence the Defendants became Sirdars and the Plaintiffs lost all rights in the land after the enforcement of the UP Zamindari Abolition and Land Reforms Act. All that has, therefore, to be considered is whether the Plaintiffs acquired any rights subsequently.
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