Tulsi Debnath And Ors vs Anjali Nath And Ors

This revision petition is filed by the original defendant to challenge an order dated 01.05.2019 passed by the learned Civil Judge (Sr. Division), Court No.1, West Tripura, Agartala in execution petition being C.M.(J) No.85 of 2019.

This litigation has a long history which may be recorded in brief.

Respondents herein are the legal heirs of one Upendra Chandra Nath who was owner of certain parcels of lands situated in the State of Tripura which would hereafter be referred to as the suit land. One Jagabandhu Debnath, predecessor in title of the defendant herein, i.e. the present petitioner was in occupation of such suit lands. According to Upendra Ch. Nath, this was by way of permissive user and since the occupant refused to vacate the land upon being asked, Title Suit No.12 of 1962 was filed before the concerned Civil Court. The suit was disposed of on compromise. Consequently, a decree of eviction was passed against the defendant. According to the plaintiffs, the said defendant instead of vacating the suit land, filed Title Suit No.09 of 1963 on the ground that the said Title Suit No.12 of 1962 was decreed by perpetration of fraud. This was renumbered as Title Suit No.05 of 1967 and dismissed by judgment dated 24.02.1971. First Appeal before the appellate Court and thereafter Second Appeal before the High Court were dismissed.

The plaintiffs in the present case, i.e. the successors of Upendra Ch. Nath thereafter filed a fresh suit T.S. No.04 of 1972, i.e. the present suit in which they contended that the defendant was illegally raising structures in the suit lands and have forcibly dispossessed the plaintiffs. The plaintiffs, therefore, made the following prayers in the suit:

"The Plaintiffs pray:

(1) for declaration of Dar-Taluki interest or in the alternative jote-right of the plaintiffs according to Section 136 of the Tripura Land Revenue & Land Reforms Act, 1960 and to declare that the Defendant has no right, title and interest and also for khas possession thereof after removing the huts of the Defendant;

(2) decree for costs of the suit and interest against the Defendant;

(3) for other relief/reliefs which the Plaintiffs are entitled.

It may be mentioned that the Plaintiffs will file separate suit for mesne profits in respect of the suit land."

This suit was decreed by the Civil Court by a judgment dated 27.04.1994. Against this judgment also the defendant first preferred appeal and thereafter Second Appeal before the High Court. Both were dismissed.

When the plaintiffs-decree holders instituted execution proceedings, the defendant resisted the same on the ground that the decree was passed by the trial Court without jurisdiction. The learned Civil Judge (Sr. Division) by the impugned order rejected such objection whereupon the present petition has been filed.

Appearing for the petitioners, learned counsel Mr. D.K. Biswas took me through the relevant provisions contained in the Tripura Land Revenue and Land Reforms Act, 1960 (the Act, for short) and submitted that w.e.f. 14.11.1961 all lands situated in Agartala vested in the Government, the Jamindari was abolished, the occupants tenants were granted certain rights which would be settled as per the provisions contained in the said Act. In particular, my attention was drawn to Section 188 of the said Act to contend that any issue involving the implementation of the said Act would be beyond the jurisdiction of Civil Court. He, therefore, submitted that as per Section 188 of the Act the jurisdiction of the Civil Court was barred, the decree passed by the Civil Court despite lack of inherent jurisdiction is, therefore, a nullity. He contended that the objection of decree being a nullity, can also be raised for the first time in execution proceedings. In this context, counsel relied on a decision of Supreme Court in the case of Sarup Singh & another vs. Union of India & another reported in (2011) 11 SCC 198. In particular, my attention was drawn to paragraphs 20 & 21 of the judgment in which it was observed as under:

"20. In so far as the second issue is concerned, it is true that the executing court cannot go behind the decree and grant interest not granted in the decree as submitted by the counsel appearing for the appellants in the light of the decision rendered by this Court in State of Punjab & Others v. Krishan Dayal Sharma : AIR 1990 SC 2177. But, if a decree is found to be nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction and the same is non est and void ab initio.

The aforesaid position is well-settled and not open for any dispute as the defect of jurisdiction strikes at the very root and authority of the Court to pass decree which cannot be cured by consent or waiver of the parties. This Court in several decisions has specifically laid down that validity of any such decree or order could be challenged at any stage. In Union of India v. Sube Ram & Others : (1997) 9 SCC 69 this court held thus:

"5. ... here is the case of entertaining the application itself; in other words, the question of jurisdiction of the court. Since the appellate court has no power to amend the decree and grant the enhanced compensation by way of solatium and interest under Section 23(2) and proviso to Section 28 of the Act, as amended by Act 68 of 1984, it is a question of jurisdiction of the court. Since courts have no jurisdiction, it is the settled legal position that it is a nullity and it can be raised at any stage."

On the other hand, Mr. Somik Deb, learned counsel for the opponents, original decree holders submitted that at all stages the petitioner has lost. The Civil Court decree has achieved finality. At no previous point of time objection of lack of jurisdiction of the Civil Court was raised. In any case, Section 188 of the said Act has no applicability in the present case. The learned Civil Judge (Sr. Division) has recorded proper reasons for rejecting the objections of the petitioner.

Having thus heard learned counsel for the parties and having perused the documents on record, I have no hesitation in accepting the contention of the counsel for the petitioner that even at the stage of resisting execution of a decree which has become final, it is always open for the objector to raise the ground of inherent lack of jurisdiction in the Court issuing such a decree. If the objector succeeds in establishing this, the decree would be rendered nullity and, therefore, not executable. I am also aware that Section 188 of the said Act provides for a complete bar of jurisdiction of Civil Courts under certain circumstances. Section188 of the said Act reads as under:

"188. Jurisdiction of civil courts excluded.-No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act."

As per this provision thus no suit or other proceedings unless expressly provided in the said Act lie or be instituted in any civil Court with respect to any matter arising and provided for by the said Act. The question, however, is did this bar apply to the present suit filed by the respondents decree holders. In any case, the entire basis of the fresh suit was that previously a suit was filed by the plaintiffs for evicting the occupant. This suit was decreed by consent. Instead of abiding by the decree, the defendant instituted an independent suit challenging the decree on the ground of fraud. This suit was dismissed. Further appeal and Second Appeal were also dismissed. Despite this, the defendant was putting up structures on the suit land and had dispossessed the plaintiffs. The plaintiffs, therefore, sought appropriate declaration and directions. There is nothing in this suit which touches any matter arising under the said Act. If at all, it was the previous suit which Upendra Ch. Nath instituted in the year 1962, may have had an element of matters concerning the said Act. The decree in the said suit is not a subject matter of discussion before me. The fresh suit instituted by the plaintiffs is nothing but a natural corollary and a necessary fall out of the earlier suit being decreed. In that view of the matter, the sole ground of the petitioners of the Civil Court lacking inherent jurisdiction in passing the decree and, therefore, also being wrong in executing it, is turned down.

In the result, petition is dismissed.