9911796707
TMI Blog1972 (1) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... own and wood removed from the plots having dispossessed the plaintiff Maharaja from the disputed plots. A decree for recovery of possession as also ₹ 82,892/- as damages was prayed for. The suit was contested by the respondents who denied that the plaintiff was bhumidhar of the land or that the ownership of the trees belonged to him. The suit was resisted also on the ground that no notice as required by law had been given to the defendant-respondents; that the suit is not cognizable by the Revenue Court; that the court-fee paid was insufficient and that the land in suit had become vested in the Gaon Sabha after the passing of Act I of 1951. The following issues were framed by the Judicial Officer: 1. Is the plaintiff a bhumidhar of the land in suit? 2. Is the suit within time? 3. Are the defendants trespassers of the land in suit? 4. Whether the court-fee stamps are sufficient? 5. Is the suit cognizable by this court? 6. Is the suit bad for want of valid notice? 7. To what relief and damages, if any, is the plaintiff entitled? 8. Has the land in suit vested in Gram Samaj after passing of Act I of 1951? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title and submit the record to the competent Civil Court for the decision of that issue only. 4. Thus, at the stage if a question of title arose whether relating to Adhivasi, Asami, Sirdari or Bhumidhari right in a suit instituted in the Revenue Court then that Court was required under Section 332 to frame an issue on the question of title and refer the same for decision to the competent Civil Court. 5. This position was modified by U. P. Land Reforms (Amendment) Act (No. 20 of 1954) which came into force on 10-10-1954, By this Act two new provisions were added in the form of Sections 332-A and 332-B in the following words: 332-A. Where in any suit or proceeding relating to land under this Act or under any other law, for the time being in force, a question is raised whether a person is or is not an Adhivasi or Asami of any land it shall not be deemed to raise a question of title. 332-B (1). If in any suit relating to land instituted after the commencement of the U. P. Land Reforms (Amendment) Act, 1954, in a Civil Court, or if instituted before the said commencement a decree had not already been passed, the question arises or is raised wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the other class of Courts. There was, however, a saving provision contained in Section 87 of Act 37 of 1958 in the following words: 87 (1) Except as provided in Sections 85 and 86, any amendment made by this Act shall not affect the validity, 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 made, continue to be heard and decided by such court or authority. (2) 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, lie to the Court or authority to which it would have laid if instituted or commenced before the said commencement. (3) If at the commencement of this Act any suit or legal proceeding is pending before any court or authority to which the Gaon Sabha is a party, the Gaon Samaj shall, notwithstanding anything hereinbef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U. P. Land Reforms (Amendment) Act No. 18 of 1956 was not applicable to suits. This decision of the Full Bench is completely determinative of the point raised in this case and answers in the negative the learned Chief Standing Counsel's submission that the procedure obtaining under the Principal Act at the time of coming into force of Act 37 of 1958 will apply to suits instituted before the date of commencement and pending at the time in the negative. As was held by the Supreme Court in the case of Anant Gopal Sheorey v. State of Bombay, ATR 1958 SC 915 no person has a vested right in procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the modality of procedure is altered he has no other right than to proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right it is not prospective. There can be no manner of doubt that the amendment in the Principal Act introduced by Act 37 of 1958 by deletion of Sections 332, 332-A and 332-B related to procedural matter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The intention of the Legislature expressed in the second part of Section 87 (1) therefore clearly is that those proceedings which were instituted or commenced prior to the commencement of Act No. 37 of 1958 shall continue to be heard and decided by such court or authority. The phrase 'such court or authority' plainly refers to the court or authority before whom the proceedings were instituted or commenced prior to the commencement of this Act By the second part of Section 87 (I) the Legislature ensured that the forum of such pending proceedings shall remain undisturbed by the amendment and that such proceedings shall continue to be heard and decided in the forum which obtained before the amendment. The argument of Sri K. S. Varma, learned Chief Standing Counsel is that the pending suits were saved by Section 87 (1) of Act No. 37 of 1958 with the result that such suits continued to be governed by the procedure which obtained under the Principal Act even after coming into force of Amending Act No. 37 of 1958. The argument is that the words 'any proceeding' occurring in Section 87 (1) should have been interpreted in the majority judgment of the Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for ejectment of a transferee shall be heard and decided by an Assistant Collector, First Class. Under Serial No. 16 of Schedule II of the Principal Act before the amendment for forum for a suit for partition of a holding of a sirdar under Section 176 was the court of Assistant Collector, First Class. An amendment was made in this entry also to provide that a suit for division of a holding by a bhumidhar or sirdar shall also He before the Assistant Collector, First Class as in the case of a suit for partition for the holding of a sirdar before the amendment. Under Entry No. 28 of Schedule II of the Principal Act before the amendment an objection under Section 213 of the Act against fixation of rent by Gaon Sabha lay before the Assistant Collector Incharge of the Sub-Division. Section 83 of Act No. 37 of 1958 amended this entry and changed the forum for such an objection. After the amendment such objections were to lie before the Tahsildar. Under Entry No. 30 of the same Schedule under the Principal Act before the amendment the forum for a suit for commutation of rent under Section 218 of the Act was the court of the Assistant Collector Incharge of Sub-Division. By Act No. 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 87 (I) of the Act: The object behind the second clause was that if the forum of a suit was changed by the amendment Act after its institution, the court in which it was instituted would retain the jurisdiction notwithstanding the change. Referring to the decision of the Full Bench in Kallu Khan's case to the effect that the word 'proceeding' in part 2 of Section 87 (1) did not cover a suit, Desai, C. J., further observed as follows:-- They observed at pages 1046 and 1048 that the word 'proceeding' used in Section 87 (1) of the Amendment Act of 1958 also does not include a suit. I have great doubts about the correctness of their view that the word 'proceeding' is not wide enough to include a suit and means a proceeding other than a suit, but it is not necessary for me to suggest reconsideration of the view by a larger Bench because even if the word 'proceeding' in Section 87 (1) did not include suit, it only meant that the second clause of it was not applicable in the suit. 7. But even though I am inclined to agree with the argument that the word 'proceeding' in the second part of Section 87 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected on the ground that no words can be added to the Statute unless the text was ambiguous. The argument advanced by the learned Chief Standing Counsel before us that if the word 'proceeding' includes a suit then notwithstanding the amendment made by Act No. 37 of 1958 the pending suits will continue to be heard and decided by the court according to the procedure obtaining before the amendment clearly implies the addition of certain words to Section 87 (1). If the argument of the learned Chief Standing Counsel is accepted then Section 87 (1) will read somewhat as follows: 87 (1). Except as provided in Sections 85 and 86, any amendment made by this Act shall not affect the validity, 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 made, continue to be heard and decided by such court or authority according to the procedure prevailing before the amendment. As there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 50 of this Act, be conducted and concluded in accordance with the provisions of the principal Act, as if this Act had not come into force. (emphasis mine). Consequently I see no substance in the submission of the learned Chief Standing Counsel that the Full Bench decision in Kallu Khan's case, 1962 All LJ 1039 deserves reconsideration. 9. Similar question arose in the case of Ram Lagan Singh v. Mst. Ram Pyare (supra). The following observations which are in point were made in that case: The 1958 amendment Act being equally a procedural law took effect at once and applied to the suit even though it had commenced earlier. After the deletion of Section 332-B by it, it became no longer necessary for the Civil Court to refer the sirdari issue to a Revenue Court for its decision. If it had already referred it, the reference would have been saved by the first clause of Section 87 (1) but since it had not referred it there was nothing to be saved by the first clause. ............ The Revenue Court ceased to have jurisdiction since the date of the deletion but the deletion did not take aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-fee paid on the memorandum of appeal. Section 13 of the Court-Fees Act is in the following terms: 13. If an appeal or plaint, which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or it a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the Full amount of fee paid on the memorandum of appeal. 13. The reference to Section 351 of the Code of Civil Procedure in Section 13 of the Court-Fees Act should now be read as Order 41, Rule 23 of the Code of Civil Procedure, 1908 (see Chandra Bhushan Misra v. Smt. Javatri Devi, AIR 1969 All 142 (FB) and Raja Virendra Shah Ju Deo v. State of Uttar Pradesh, 1964 All LJ 868. 14. Order 41, Rule 23 of the Code of Civil Procedure is in the following words: Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of 1877 (Act No. 10 of 1877). The argument of the learned Chief Standing Counsel Sri K. S. Verma is that in order to entitle the appellant to a certificate under Section 13 of the Court-Fees Act the order of remand should have been on the ground contained in Section 351 of the Code of 1859 and not on the grounds mentioned either in the unamended terms of Order 41, Rule 23 of the Code of Civil Procedure of the terms as amended by the Allahabad High Court. The argument is based on the reasoning that in Section 13 of the Court-Fees Act reference to Section 351 of the Code does not contain any words to imply reference to any corresponding provision in the current Code of Civil Procedure. For this argument the learned counsel seeks support from the dissenting opinion recorded by Jagdish Sahai, J., in the Full Bench case of AIR 1969 All 142 (FB) and submits that the decision of the Full Bench in the case of Chandra Bhushan Misra should be referred by us to a larger Bench for reconsideration. Having given due consideration to the arguments addressed by the learned Chief Standing Counsel I am unable to find anything which may justify a reconsideration of the decision recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial Court on the basis of its decision on that point, then, it would be a preliminary point within the meaning of Order 41, Rule 23. The expression is not confined to a point of law or point of jurisdiction. I am in respectful agreement with this view. In that case one of the issues before the Court was whether a certain adoption was valid. The court recorded a finding on issues Nos. 1 and 3. The first issue related to the question whether the plaintiff had proved his adoption. The third issue was whether Santabai was competent to adopt. The other issues were whether the registered deed of adoption was proved and whether the suit was in time. The trial Court did not record its finding on issues Nos. 2 and 4. It had recorded its finding on issues Nos. 1 and 3 and held that the alleged custom not to adopt was not proved. On the first issue however it was found that the plaintiff had failed to establish that the actual giving and taking had taken place and found issue No. 1 in the negative. Having done so, it was not considered necessary to record its findings on issues Nos. 2 and 4 and on the basis of finding on issue No. 1 the suit was dismissed. 17. In the case of Abd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
