TMI Blog1984 (7) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed to have acquired the status of Bhumindars in respect of the plots of land in dispute. 2. The respondents moved an application Under Section 232 of the 1950 Act against the appellants alleging that as they were in actual and physical possession during the year 1356 Fasli and were subsequently dispossessed in view of the provision contained in Section 20 of the 1950 Act, they have acquired the status of adhivasis and therefore, they are entitled to regain possession. This application was made to the Assistant Collector within the prescribed period of limitation. The Assistant Collector rejected the application holding that as the respondents were not in possession through the entire year of 1356 Fasli but only for a part of the year, they have not acquired the status of adhivasis and were not entitled to regain possession. The respondents carried the matter in appeal to the Additional Commissioner who held that the respondents had acquired the status of adhivasis and were entitled to regain possession and accordingly allowed the appeal by his order dated June 1956 and in compliance with this order the respondents regained actual and physical possession of the land and Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted by the Sub Divisional Officer. The appellants carried the matter in appeal to the Additional Commissioner who by his order dated July 7, 1959 upheld the decision of the Sub Divisional Officer and dismissed the appeal. The appellants after an unsuccessful appeal to the Board of Revenue approached the Allahabad High Court in writ Petition No. 622 of 1960. This writ petition was dismissed by a learned Single Judge of the High Court holding that as the authorities under the Consolidation Act-1953 Act have allotted the plots in question to the respondents on the strength of the Additional Commissioner, on the reversal of that order, the appellants should have approached the authorities under the 1953 Act for recording them as holders of the plots and for correction of the statement by filing appropriate proceeding. It was held that as the appellants failed to seek relief before the authorities having jurisdiction in the matter, they cannot succeed in a proceeding Under Section 144 of the Code of Civil Procedure because if such a relief is granted, it would tentamount to interfering with the decisions recorded by the authorities under the 1953 Act which have become final. It was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for possession was decreed. 6. The respondents preferred an appeal to the Additional Commissioner who by his judgment and order dated August 23, 1967 allowed the same and set aside the judgment of the Assistant Collector and dismissed the appellants suit for possession inter alia holding that a decision on an application Under Section 239 of the 1950 Act would operate as res judicata in respect of the suit of the appellants from which the appeal arose and the suit was also barred by Section 49 of the 1953 Act nor were the present appellants-plaintiffs in the suit entitled to the benefit of the prevision contained in Section 14 of the Limitation Act. The suit accordingly was liable to be dismissed as barred by limitation. Consistent with these findings the appeal of the respondents was allowed and the plaintiffs' suit was dismissed. The appellants' second appeal to the Board of Revenue was summarily dismissed whereupon they moved the High Court in Writ Petition 19/1968. A learned Single Judge of the High Court rejected the writ petition holding that the finding of the statutory authorities that the suit was barred by limitation was unexceptional and that they were rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart from the valuation, the Division Bench granting the certificate was satisfied that there was substantial question of law of general public importance which ought to be decided by this Court. However, when we examined the certificate and the order granting the same, it transpired that the certificate was granted under Article 132(1)(a) of the Constitution and not under Article 133(1)(c) though there are some observations which may generate a belief that the High Court was satisfied that the case involved a substantial question of law of general public importance which ought to be decided by this Court. 8. Mr. C.M. Lodha, learned counsel urged that once the order of Additional Commissioner dated June 15, 1956 allowing the appeal of the respondents against the dismissal of their application Under Section 232 of the 1950 Act by the Sub Divisional Officer was reversed, they have neither a legal nor equitable right to be in possession and that the appellants pilloried and pushed from pillar to post denying substantial justice on technical grounds. His grievance was that on a very narrow view of law a genuine claim is refused. Apart from the two legal contentions, even this subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate who are Khudkasht holders of the Zamindars. They can be styled as alter ego or proxies of the Zamindars, In other words, this proxy of Zamindars filed a suit for eviction of the respondents and as law then stood succeeded as per decree dated Sept. 30, 1948 and in execution whereof on December 2, 1948 dispossessed the actual cultivators the respondents and got into possession. This was done when agrarian reform law was on the anvil. The entire edifice of the present litigation by the appellants is founded on this decree, a decree which because of the subsequent developments of law has become legally unsound and equitably unjust. 10. On the advent of the 1950 Act, the appellants assert that they became the Bhumidars of the plots. Assuming that the appellants have acquired the status of Bhumidars, the same was subject to the provision contained in Section 20(b) read with Explanation I of 1950 Act according to which the respondents would become adhivasis of the plots, It is not necessary to examine this aspect in detail because the learned Single Judge of the High Court found as a fact that for a portion of the year 1356 Fasli, the respondents were in possession as occupants and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. 13. In order to attract the application of Section 14(1), the parties seeking its benefit must satisfy the court that : (1) that the party as the plaintiff was prosecuting another civil proceeding with due diligence ; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It may be assumed that the earlier proceeding Under Section 144 of the Code of Civil procedure was a civil proceeding for the purpose of Section 14. It may as well be assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding upto the High Court invoking its extraordinary jurisdiction. The first of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession against respondents alleging unauthorised retention of possession. It had nothing to do with the order of the Additional Commissioner. In this suit the appellants were bound to prove that the respondents were not entitled to retain possession under any of the provisions of the 1950 Act. Incidentally , the order of the Additional Commissioner and its reversal would figure as evidence but it is difficult to accept that the subsequent proceeding relates to the same matter in issue as was involved in the earlier proceeding. In the application Under Section 144 CPC only allegation to be proved for relief of restitution is that the decree or order under which respondents obtained possession from appellants has been reversed, modified or varied. They need not prove title or right to be in possession. In the suit, not only title to the land as Bhumidar must be also the respondents had not a title of title to retain possession. And respondents can allege and prove that under the very 1950 Act under which appellants became Bhumidars, the respondents have become adhivasis entitled to retain possession against the appellants. This defence was not open to them in the proceeding Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore the expression 'other cause of a like nature' on which some light is shed by the Explanation (C) to Section 14 which provides misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction , must take its colour and content from the just preceding expression, 'defect of jurisdiction'. Prime facie it appears that must be some preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits, such defect could be said to be 'of the like nature' as defect of jurisdiction. Conversely if the party seeking benefit of the provision of Section 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court of some other defect of a like nature, it would not be entitled to the benefit of Section 14. Where, therefore, the party failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Section 14 of the Limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that the village was put into consolidation several years before the suit from which the present appeal arises was filed and village was denotified in the year 1958. Once the village was denotified, the allotment made under the 1953 Act became final. The final allotment cannot be questioned by the suit before civil or revenue court in view of the bar enacted in Section 49. 19. Mr. Lodha, however, urged that when the matter was before the learned Single Judge in the High Court an application for amendment of the writ petition was moved on behalf of the appellants seeking to challenge that decision of the authorities under the 1953 Act by which the names of the respondents were introduced in the plots and the allotments were made in favour of them. This application for amendment was rejected by the learned Single Judge. The point was not canvassed before the Division Bench and we are of the opinion that it is of no use trying to infuse life into this carcass after a lapse of nearly two decades. Further Section 232-A which was introduced by Section 48 of Act XX of 1954 in the 1950 Act conferred right on adhivasi object anyone who has dispossessed him and to such a proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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