Kurdia vs Surta

V.K. Bali, J.—Having its origin In the erstwhile princely State of Jind, this case has rather a chequered history. It would be worthwhile to give, although in brief, the circumstances that have driven the defendantappellants to this Courts

The revenue estate of village Bata, Tehsil Narwana, was earlier a part of princely State of Jind. The said revenue estate was divided into four Pattis, namely, Nathawa Patti, Itmayan Patti, Kasayan Patti and Lahoriwal Patti. The revenue estate referred to above was subjectmatter of consolidation somewhere at the end of 19th century. As patti Lahoriwal in village Bata was inhabited by Rajputs, Jats and Muslims, the erstwhile Maharaja of Patiala whose writ ran in District Jind as well held the proprietors representing various communities as detailed above entitled to 1/3rd share each with regard to an area measuring 7,883 Bighas 5 Biswas. Jat proprietors who were in possession of far more area than their entitlement so determined during consolidation proceedings being aggrieved of the division so made on caste basis, and not according to possession, filed a declaratory suit under Section 45 of the Punjab Land Revenue Act, 1887, in the Court of Tehsildar Narwana seeking relief of cancellation of the shares so fixed at the time of settlement. Obviously, the burden of the plaint was that as per the then existing law, they were entitled to the shares commensurate with the possession that they had over the land in question. This suit was instituted somewhere in the year 190203 and was dismissed by Tehsildar vide judgment, copy whereof is placed on record as Ex. DX, and decree (copy Ex. DY). Aggrieved with the judgment and decree passed by the Tehsildar, Jat proprietors carried an appeal to the Court of Nazim Karamgarh which was accepted on 3rd of Phagun, 1962 BK (in or around the year 190506 A.D.). The defendants of the said suit preferred Second Appeal before Dewan of the princely State but it was dismissed on 12th Bhadon, 1963 Bk. (equivalent to 27th of August, 1906 A.D.), vide orders copy whereof is placed on record as Ex. D22. The judgment and decree so rendered by Nazim of Karamgarh goes to show that the shares of the proprietors fixed at the time of settlement, and which were later incorporated in the revenue record, are cancelled and the plaintiffs and defendants are held to be cosharers as recorded in the Jamabandis that came into being prior to consolidation. It is the admitted position that even though the revenue entries that came into being on the basis of consolidation proceedings, were set aside, yet no steps whatsoever were taken towards execution of the judgment and decree so rendered by Nazim of Karamgarh and the entries that came into being after consolidation continued as such for years together. The present suit giving rise to the appeal before this Court came to be instituted on 13th December, 1982, seeking a declaration that the plaintiffs were entitled to claim partition of the joint land on the basis of holding to each proprietor, as recorded in the revenue record in the village. The obvious defence of the defendantrespondents was their entitlement on the basis of possession, as alsothat the plaintiffs could not agitate the matter now on account of the judgment and decree rendered by Nazim of KaramFarb way back in 1906 which operates as res judicata. The pleadings of the parties gave rise to the following issues :

(1) Whether the plaintiffs are cosharers in possession of the suit land as alleged ? OPP.

(2) Whether the suit is not maintainable ? OPD.

(3) Whether the suit is bad for misjoinder of causes of action and multifariousness ? OPD.

(3A) Whether the defendants have become the owners of the suit land by way of adverse possession as alleged ? OPD.

(3B) Whether the suit is barred by the principle of res judicata as alleged in para No. 2 of the W/S ? OPD.

(3C) Whether the suit is barred by time ? OPD.''

(4) Relief.

The trial Court after recording evidence came to the conclusion that the plaintiffs were the cosharers and were entitled to partition the land as per their shares described in the revenue record. The plea of res judicata, as pleaded by the defendants, was negatived. The defendants carried an appeal against the judgment and decree so rendered by the trial Court, which did not find favour with the learned Additional District Judge, Jind who dismissed the same on 6th June, 1987, thus, affirming the judgment and decree passed by the trial Court. The defendants then carried an appeal before this Court and the same was dismissed in limine. On special leave carried by the defendants, Hon'ble Supreme Court of India on 30th August 1988, passed the following Order:

"Having considered the facts and the circumstances of the case, it appears that two questions arise in this appeal. Firstly, whether the decisions of Tehsildar and the Appellate Court operate as res judicata in subsequent proceedings regarding the title to the property in question in this appeal, and secondly, whether in view of the conduct of the parties, viz., that the revenue records have been on certain basis and acted, as such, are the present appellants entitled to set up title contrary to that. These matters, in our opinion, should more appropriately be dealt with by the High Court. The High Court has dismissed the second appeal in limine. But in the facts of this case, in our opinion, it will be appropriate that the High Court should decide these questions of res judicata and the effect of the revenue records for all these years.

"The order in the second appeal by the High Court is set aside. The matter is remanded to the High Court with the direction that the appeal will be decided by the High Court in accordance with law by stating the reasons therefor. It is desirable that such decision should be rendered as quickly as possible preferably within a period of six months from the date of the records reaching the High Court. Status quo as to possession will continue until the decision of the High Court The appeal is disposed of accordingly."

After the case was so remanded by Hon'ble Supreme Court of India, Mangal Singh, son of Kanhya and Ratti Ram son of Soran, filed Civil Miscellaneous No. 3135C/1989, under Order 1 Rule 8, Code of Civil Procedure, for being impleaded as appellants. They were ordered to be impleaded as appellants to argue the appeal along with other appellants vide orders dated 29th September, 1989. The original appellants are represented by Sh. A.K Mittal, Advocate while the added appellants are represented by Sh. S.K Goyal, Advocate.

On the first question as to whether the decision of Tehsildar and appellate Court operates as res judicata in subsequent proceedings regarding title of the property in question, the contention of Mr. Goyal is that inasmuch as the question agitated in the earlier proceedings was preeminently a question that required to be determined by the revenue Courts, the Courts of Tehsildar and Nazim were competent to decide the same and the earlier decision, therefore, being decisions rendered by Courts of competent jurisdiction would operate as res judicata in the present proceedings. The suit of the kind that was filed before the Tehsildar, i.e., for correction of entries was competent under Section 45 of the Punjab Land Revenue Act alone and inasmuch as jurisdiction to deal with a case of that kind as per provisions of Section 158 of that Act vested only with the revenue officers, the case was decided by a Court of competent jurisdiction, contends the counsel. In order to appreciate the contention of the counsel, it will be useful to reproduce Section 45 and the relevant part of Section 158 of the Punjab Land Revenue Act :

Section 45. "If any person considers himself aggrieved as to any right of which he is in possession by an entry in a recordofrights, or in an annual record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877."

Section 158 "Except as otherwise provided by this Act (1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or, under this Act; and in particular (2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely : (i) to (v)...

(vi) the correction of any entry in a recordofrights, annual record or register of mutations; (vii) to (xxiv)..."

After hearing learned counsel for the parties I am of the view that the contention raised by Mr. Goyal, though impressive in the first flush, on deeper examination has no merit. Even if the earlier suit be considered as one for correction of entry in the recordofrights, it was clearly not cognizable by a revenue Court. The language of Section 45 of the Punjab Land Revenue Act in no uncertain terms talks of a right which an aggrieved person may agitate if he is in possession of the land. The basis of claim covered by Section 45 is, thus, a right which has to be adjudicated by instituting a suit for declaration under Chapter VI of the Specific Relief Act, 1877. The moment a suit is made cognizable under the provisions of the Specific Relief Act, it is the Civil Court which will have the jurisdiction to entertain and try the suit. No revenue officer or a Court by any provision of the Land Revenue Act shall be competent to try the rights of a person under the provisions of the Specific Relief Act. When a revenue officer is exercising jurisdiction with respect of any suit, he is called a revenue Court. The kind of suits that are competent to be decided by a revenue Court are detailed in subsection (3) of Section 77 of the Punjab Tenancy Act, 1887. The kind of the suits mentioned in subsection (3) are the only suits which have necessarily to be entertained and decided by the revenue Courts and no other Court has the jurisdiction to take cognizance of such disputes. Admittedly, description of the suits which is given in Section 77(3) of the Punjab Tenancy Act would not cover the kind of the suit that was filed by Jat proprietors in the year 19021903, reference to which has been given earlier. The cognizance by a Civil Court for the relief claimed by the Jat proprietors was not the actual correction of the entries complained of, as contemplated by clause (v) of subsection (2) of Section 158 of the Punjab Land Revenue Act, 1887, but it was to obtain a declaration'' under Section 45 of the said Act in respect of certain rights of which the plaintiffs claimed to be in possession and in respect of which they alleged that wrong entries had been made in the recordofrights and in the annual record. In my considered view, thus, the Tehsildar was not competent to entertain and try a suit under Section 45 of the Punjab Land Revenue Act. The matter is covered against the appellant in case Ram Singh v. Bakshi, AIR 1917 Lahore 411; Gela Ram and another v. Sohna Ram, AIR 1925 Lahore and Mohammada v. Jhanda, AIR 1931 Lahore 651. Mr. Mittal appearing for the original appellants, however, argues the points that have been raised by Mr. Goyal, only in the alternative. His first contention is that even though the Tehsildar was not competent to try the suit of the kind that was instituted by Jat proprietors in the year 190203, the appeal in any case was competent before the Nazim, and inasmuch as the appellate Court had the jurisdiction to entertain the appeal, the jurisdictional defect that might have been there was cured by the decision rendered by the appellate authority. The parties, to this litigation have placed on record the Punjab State Gazetteers pertaining to the year 1904 and it is the admitted position between them that it is the gazetteers issued by the Punjab Government from time to time by which the jurisdiction of various Courtsin the princely States of Patiala, Jind and Nabha shall have to be seen. A perusal of the relevant part of the Gazetteers relating to the year 1904 shows that during the time of Maharaja Narinder Singh, five Nizamats were marked off and a Nazim appointed to each. One Tehsil comprised two Thanas and 16 Tehsildars were appointed who, in addition to their revenue work, handled criminal and civil work. His Highness introduced a Manual of Criminal Law called "The Law of Sambat 1916" for the guidance of criminal Courts. In most respects, it was similar to Indian Penal Code. In the reign of Maharaja Mohinder Singh (it is this period which is relevant for the purpose of decision of the present case), Tehsildars were deprived of their judicial and criminal powers and two Naib Nazims were appointed in each Nazamat to decide civil and criminal cases and superintend the Police. A Code of Civil Procedure, compiled from the British India Act VII of 1859 and Act XXIII of 1861, with suitable modifications, was introduced. Appeals from the Courts of Tehsildars and Naib Tehsildars(Nazims ?) were to be filed before Nazim. The Nazim was to be a Sessions Judge with powers to pass sentences of 14 years'' imprisonment and impose a fine of Rs. 1,000/. From the decisions rendered by Nazim, appeals lay to the Adalat, in civil and criminal cases, and to Diwan in revenue cases. It is the admitted position between the parties that as per the Gazetteer, reference of which has been given earlier, revenue matters were competent to be tried before a Tehsildar, appeal against whose orders could be filed before the Nazim. Civil matters were competent to be tried before Naib Nazim, appeal against whose orders was competent before Nazim. The contention of Mr. Mittal, thus, is that irrespective of the fact that Tehsildar had no jurisdiction to try the suit of the kind in question, in any case, an appeal was competent before the Nazim and inasmuch as it is Nazim who decided the cases in favour of Jat proprietors it cannot be said to be a Court of incompetent jurisdiction. Again, the argument on the first flush seems to be impressive but tested on the anvil of logic and precedents it deserves to be rejected. There is no dispute that before a decision can operate as res judicata, it must be a decision of the Court having jurisdiction. The bare language of Section II the Code of Civil Procedure makes the aforesaid position explicit. A Full Bench of this Court in Pritam Kaur v. State of Pepsu, 1962 PLR 782 clearly held that before a decision can operate as res judicata it must be shown that the Court trying the earlier suit was competent to decide the matter. As held above, the original Court of competent jurisdiction to try the suit under Section 45 of the Punjab Land Revenue Act at the relevant time was of Naib Nazim, and not that of Tehsildar. While hearing an appeal against an order passed by Tehsildar, Nazim was not hearing the appeal against an order passed by Naib Nazim and even though the suit was dismissed by Tehsildar and decreed only by Nazim, it cannot be the said that mere filing of an appeal cured the jurisdiction which was inherently lacking. While considering the question of res judicata, the Court has necessarily to look into the powers of the Court in which the suit was instituted, and not to the powers of the Court by which the suit was decreed on appeal. The competent court to which reference is made in Section 11 of the Code of Civil Procedure is the trial Court and that it does not affect the question whether the decision is a decision of the appellate Court or whichever appellate Court it may be. For what I have said above, there is sufficient support forthcoming from the decisions Kamoo v. Mt Fahiman, AIR 1922 Allahabad 445; Badaldas v. Gurdinonial, AIR 1939 Sind 329; Amarsangli v. DeepasangIi, AIR 1925 Bombay 241 and Kalyan Das v. Sudarshan Lal, AIR 1937 Allahabad 20. In so far as the reliance placed by Mr. Mittal, learned counsel for the appellants, on Janardhan Reddy v. State of Hyderabad AIR 1951 S.C. 217 is concemed, suffice it to say that the facts of the said case are distinguishable. The said case pertained to the conviction of the appellants by the trial Court before whom one of the charges was not submitted for decision. On appeal, which was competent before the Court where it came to be so decided was fully competent to decide whether the trial was with or without jurisdiction. On the aforesaid facts, it was held that the appellate Court in a case which properly comes before it on appeal is fully competent to decide whether the trial was with or without jurisdiction and it has jurisdiction to decide the matter rightly as well as wrongly. On the aforesaid facts, it was further held that if the appellate Court was to affirm the conviction and thereby decide wrongly that the trial Court had the jurisdiction to try and convict, it could not be said to have acted without jurisdiction and its order could not be treated as a nullity In so far as reliance of the counsel on Man Singh v. Bir Sehal, AIR 1973 Allahabad 435 is concerned, it will be seen that the earlier suit between the parties of the said case was before a Civil Court. The Civil Court could refer the matter for determination of settlement of occupancy rights to a revenue Court as well. Simply if the Civil Court had not referred the matter to the Revenue Court, it could not be said that the Civil Court had no jurisdiction to entertain and try the first suit. It is in the aforesaid circumstances that the earlier decision was held to have operated as res judicata in the subsequent suit that was filed between the parties before the Revenue Court.

In view of the foregoing discussion, the judgment passed by Nazim, Karamgarh, in appeal, against the orders of Tehsildar would not, thus, operate as res judicata in the present suit that was instituted by the plaintiffrespondents. Coming now to the question of conduct of the appellants, it shall be seen that the appellate Court after appraising the entire evidence on record came to be following conclusions :

(i) The defendants and their predecessors never challenged the entries which continue to be recorded in the Jamabandis, incorporating shares of the cosharers as before and this continue after passing of the judgment in the earlier suit in 190506 right up to the time of consolidation in or about the year 1960.

(ii) None of the cosharers raised any objection against the award given in respect of the land acquired for Dhamtan distributary or for construction of road from village Eatta of Bahamniwala wherein compensation was assessed and paid to the cosharers as per shares mentioned in the Jamabandi

(iii) Many cosharers, including Didara (defendant No. 5) and Kurdia (defendant No. 1) had filed applications before the consolidation authorities seeking carving out of separate kurrah for them in accordance with their shares, as shown in the revenue record and the consolidation authorities had allotted kurra() has to the defendants in accordance with their shares recorded in the column of ownership.

(iv) Throughout, after passing of judgment in the earlier case in the year 190506, mutations of inheritance are being recorded in accordance with the shares of the deceased as shown in the jamabandi,

Learned counsel for the respondents has placed reliance on Exs. PI and P2, the awards for payment of compensation under the Land Acquisition Act, dated 28th February, 1956; as also Exs. P7 and P15 again awards rendered by the Land Acquisition Collector on 22nd September, 1981. Admittedly, the said awards pertained to the land in dispute and compensation was given to the proprietors as per their entitlement in accordance with the revenue records. Admittedly, the land, subjectmatter of the acquisition, was owned and possessed by all the communities and by no meaningful argument the learned counsel for the appellants could make out that the acquisition of the land was only of other communities and not of Jats. Even though from time to time, Jat proprietors were getting compensation commensurate to their shares recorded in the revenue papers yet they did not raise their little finger to demand compensation as per possession of the land. Further, the land of all the proprietors was separated in the second consolidation proceedings on the basis of entitlement of the proprietors, as per shares recorded in the revenue papers, and not on the basis of possession and yet no objections were raised. In fact, the evidence brought on record goes to show that the Jat proprietors themselves have been making applications, some of which are Exs. P18, P19 and P20, by which they demanded that the holding be separated on the basis of revenue entries and as per their shares recorded therein. Also available on the record are allotment letters, Exs. P21 to P26, mutations Exs. P29, P31. P32 to P48, which go to show that the land was allotted to Jat proprietors in accordance with the shares of the deceased as given in the Jamabandis. In other words, the aforesaid mutations reveal that on the death of Jat proprietors, their successors succeeded to the property in accordance with the shares that were mentioned in the revenue record. At no relevant time, the Jat proprietors claimed entitlement on the basis of their possession or on the basis of the judgment and decree rendered in their favour by Nazim of Karamgarh in 190506. It is, thus, proved on the record of the case that for years and years the parties have been accepting the revenue entries to be correct. They have acted upon the said entries all these years. The only discordant view of Mr. Mittal, appearing for the appellant, is that inasmuch as the possession of Jat proprietors continued to be the same that was with them right since its inception, the acceptance on their part and acting upon the entries as per the revenue record would not stop them from agitating the matter. I am, however, of the view that the defendant would not be able to raise the plea of res judicata on the doctrine of election besides of course, their act and conduct. Even though the judgment and decree of the Nazim of Karamgarh was in their favour, they elected not to get the benefit of the same and, therefore, they cannot be permitted to successfully plead res judicata. It is just not understandable as to how the learned lower appellate Court even after recording the impressive array of facts, as mentioned above, came to a different conclusion. I am therefore, unable to concur with the view expressed by the first appellate Court. Even otherwise, it will be impossible to set the clock back. The entries in the revenue record and the settlement of the year 190102 came into being 90 years ago and during all this while a number of sales, mutations and acquisitions have taken place. It is impossible now to revert to the position that was obtainable way back in 190102. In fact, the learned counsel for the appellants had no answer to all these questions and each time he merely replied by saying that these things would not make any difference, as Jat proprietors continued to be in possession of the entire land that they were holding in the year 190102. However, but for so contending, nothing has been shown to the Court on the basis of the revenue record or by any documentary evidence that the Jat proprietors were and continued to be in possession of the entire land that was in their possession in the year 190102.

For the reasons stated above, this appeal fails and is thus, dismissed. In the peculiar facts of this case, however, the parties are left to bear their own costs, throughout.