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TMI Blog2021 (9) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... is an auction purchaser who purchased the suit land from the MDA. MDA has been impleaded as the second respondent to these proceedings. Both the appellant and the second respondent have been restrained from interfering with the possession of the first respondent over the land. Facts 2 The first respondent instituted a suit in the Court of the Civil Judge (Senior Division), Moradabad claiming to be a "transferable owner and cultivator" of lands comprising of Gata No. 200/1 admeasuring 0.1300 hectares equivalent to 1295.04 sq. mts. situated in village Sonakpur, in the city and district of Moradabad. MDA was impleaded as the first defendant while the appellant was the second defendant to the suit. The averments in the plaint need to be adverted to at this stage. A person by the name of Zahid Hussain had title over vacant land admeasuring 6960.84 sq. mts in Moradabad. Ceiling case no. 437/5325 (titled State vs. Zahid Hussain) was instituted against him in the Court of the Competent Authority, Urban Land Ceiling, Moradabad in respect of his lands including the lands comprised in Gata No. 200 admeasuring 1295.04 sq. mts. By an order dated 16 March 1988, the land comprised in Gata No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ownership rights over Gata No. 200/2 in respect of 200 sq. mt. of land. 5 MDA published a notice on 31 August 2008 for auction and sale of 600 sq. mt. of land in Gata No. 200. The first respondent claims to have submitted representations on 2 September 2008 and 4 September 2008 against the auction. The first respondent instituted a writ petition against the State of Uttar Pradesh and MDA before the High Court challenging the auction. By an order dated 11 September 2008, the High Court disposed of the petition with liberty to the first respondent to seek reliefs in a civil suit. The auction sale in favour of the appellant is stated to have been approved on 12 September 2008, and a sale deed was executed between the MDA and the appellant on 20 March 2009 for a consideration of Rs. 65,75,000. 6 The first respondent challenged the auction proceedings in the suit on the ground that MDA had title only over the land measuring 200 sq. mt (that is, Gata No.200/2) of the auctioned land, and thus the sale of the remaining land measuring 400 sq. mt. was null and void in view of the sale deed executed by Zahid Hussain in favour of the first respondent on 22 June 1993. In the suit, as it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector, Moradabad to the MDA on 31 July 1992. MDA has been in possession of the suit land in Gata No. 200/1 since then till it was sold through auction; (ii) A registered sale deed of 660.32 sq. mt. was executed on 20 March 2009; (iii) The ceiling proceedings against Zahid Hussain were concluded and thus, he is not entitled to avail of the benefit under the Repeal Act; (iv) No permission had been granted by the Competent Authority, Urban Ceiling, Moradabad to Zahid Hussain for the transfer of the suit lands of Gata No. 200/1; (v) The sale deed executed between Zahid Hussain and the first respondent after possession had been taken over by MDA on 31 July 1992 is invalid; and (vi) The State of Uttar Pradesh and the Ceiling Authority were necessary parties but were not impleaded in the suit. 9 The appellant (defendant no. 2 before the Trial Court) filed a written statement stating that: (i) The entire suit land had vested in the State Government under Section 10(3) of the ULCRA; (ii) The sale deed dated 22 June 1993 by Zahid Hussain in favour of the first respondent was void since he could not have entered into any transaction when the land was under adjudication by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kpur was handed over by the Naib Tahsildar Urban Land Ceiling, Moradabad to the Naib Tahsildar of MDA on 31 July 1992 on behalf of the District Collector. When an appeal was filed before the District Judge, Moradabad against the order dated 16 March 1988, the fact that possession of the suit land had been handed over to the MDA was not brought to the notice of the court. In any event, the case was remanded to the Competent Authority in order to take into consideration the amended Master Plan. In the meantime, prior to the order of the District Judge, possession of 1295.04 sq. mt of Gata No. 200 was handed over to MDA on 31 July 1992 pursuant to which it was the legal owner of the aforesaid land in Gata No. 200; (v) Zahid Hussain who is alleged to have sold the land to the first respondent - plaintiff had not come forth before the court nor was the original sale deed dated 22 June 1993 alleged to be executed by him filed in court. Only a certified copy of the sale deed was filed; (vi) MDA to whom the lands were handed over on 31 July 1992 was not a party to the revenue appeal before the District Judge nor had the Competent Authority in its order dated 15 June 2001, abating the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Urban Land Ceiling, MDA is only to show a "paper possession" and not "actual physical possession" under Section 10(5) "10(5). Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice" or 10(6) of the ULCRA "10(6). If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary". For "actual possession" to have been taken, possession should have been taken by drawing a panchnama; (vi) Since an appeal against the order dated 6 March 1988 was allowed on 6 January 1993 remanding the case to the Competent Authority, the order declaring the land as surplus would not remain in existence. Thus, no question of a val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a larger area of land. 14 On the other hand, Mr Manoj Swarup, learned Senior Counsel appearing on behalf of the first respondent submitted that: (i) Originally in 1986, an acquisition took place under the provisions of the Land Acquisition Act 1894 of an area admeasuring 200 sq. mt. in Gata No. 200. As a consequence, the remaining portion of the land was divided into Gata No.200/1 admeasuring 1295.04 and Gata No.200/2 admeasuring 200 sq. mt; (ii) Though an order was passed by the Competent Authority in 1988, by the order of the District Judge dated 6 January 1993, the case was remanded back to the Competent Authority for reconsideration of the matter on the basis of the amended Master Plan, and there is no evidence in regard to any further proceedings prior to the enactment of the Repeal Act; (iii) The frame of the suit was proper because the cause of action arose due to the advertisement which was issued on 31 August 2008 by MDA for the auction of 660 sq. mt of land, which included a portion of the suit land in Gata No. 200/1. The suit in other words had nothing to do with the ceiling proceedings; (iv) The cornerstone of the case of the appellant is the possession lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Authority had categorically denied permission for transfer of lands situated in Gata No. 200/1 since there was a pending suit, and the permission was only granted for 1295.05 sq. mt. of land out of the 2000 sq. mt. of land owned by Zahid Hussain, which was not the subject of the ceiling proceedings. 18 Section 5(3) of the ULCRA is in the following terms: "In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of article 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under section 6 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void". Section 27(1) further provides: "(1) Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of sub-section (3) of section 5 and sub-section (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral public in the Official Gazette of the State concerned and in such other manner as may be prescribed". The purported transfer by Zahid Hussain in favour of the first respondent is in the teeth of and contrary to the prohibition contained in sub section (3) of Section 5. Pursuant to the initial order dated 16 March 1988 under Section 8(4) of the ULCRA, a notification was published under Section 10(1) of the ULCRA on 27 September 1988. However, once the order was set aside by the District Judge and the case was remanded back to the Competent Authority, no further order was passed under Section 8(4) and consequently, no notification was published under Section 10(1). Thus, at the relevant time, that is between the order dated 6 January 1993 remanding the matter to the Competent Authority and when the sale deed was executed on 22 June 1993, there was no notification under Section 10(1) of the ULCRA. Thus, the dual requirement for a valid transfer under Section 5(3) was not fulfilled. Any transfer in contravention of the provisions of Section 5(3) would be null and void. The suit instituted by the first respondent was founded on his alleged claim of title based on the transfer by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the ULCRA. Reliance has been placed by the appellant on Order XLI Rule 22 of the CPC to argue that a party, in whose favour the civil court has decreed a suit, can raise arguments against findings without having to file a cross- objection, in the appeal. 22 Order XLI Rule 22(1) reads in the following terms: "(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation. - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two judge bench observed: "10-. [...] There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected by the trial court or seeks an additional relief apart from that provided by the trial court. The court held that a memorandum of objection need not be filed when the appellant only assailed a 'finding' of the lower court: "7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order [4]1 Rule 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment. [...]" (emphasis supplied) Expanding on this further, a two judge Bench (Justice R.C Lahoti speaking for himself and Justice Brijesh Kumar) of this Court in Jamshed Hormusji Wadia v. Port of Mumbai (2004) 3 SCC 214, observed: "35. A few decisions were brought to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed." (emphasis supplied) 27 On a perusal of the above authorities, it is evident that the principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the Constitution because of this Court's wide powers to do justice under Article 142 of the Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the cause of justice by providing the party other than the 'aggrieved party' to raise any adverse findings against them, this Court can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 136 of the Constitution. 31 In Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474, this Court was hearing a special leave petition concerning the possession of parties over the suit property which was the subject of the U.P. Zamindari Abolition and Land Reforms Act (Act 1 of 1951). While adjudicating on whether the suit was barred by limitation, Justice DG Palekar, speaking for a two Judge bench, observed that the civil court did not have jurisdiction to entertain the suit at all. Although the plea of bar on jurisdiction had not been raised in the courts below, the Court held that: "6. It is from this order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a civil court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U.P. Act 1 of 1951 authorises the filing of the suit in a civil court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the civil court the period of limitation must be governed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be permissible to the appellants to ask this Court to consider that point in an appeal under Article 136 of the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course, the party is entitled as a matter of right to obtain a decision on those pleas from this Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Article 136." (emphasis supplied) 34 Based on the position of law, we find it just to allow the appellant to raise the ground of jurisdiction before us. Allowing the ground to be raised would not require the submission of additional evidence since it is a pure question of law and strikes at the heart of the matter. We shall now turn to the merits of this argument. 35 The pleadings in the suit indicate that the case of the first respondent was that: (i) Zahid Hussain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 33(1)]. 47.3. Third, the Act is a complete code in itself and gives overriding powers on other laws (refer to Section 42). 47.4. Fourth, the Act expressly excludes the jurisdiction of the civil court in relation to the cases falling under Sections 30 and 40 [refer to Section 30(5) and Section 40]." 36 The real object and purpose of the suit, in the guise or pretext of challenging the auction notice by MDA was to affirm the title of the first respondent on the basis of an alleged permission obtained on 5 May 1993 for the sale of the property, the deed of transfer executed by Zahid Hussain and the abatement of proceedings under the ULCRA. The High Court has held that the document dated 31 July 1992 on the basis of which possession was transferred to MDA does not evidence actual physical possession but is only a paper transaction. The High Court held that no material was forthcoming on whether actual and physical possession was taken by the Competent Authority from the land owner and it held that in the absence thereof, the first respondent, as the purchaser from Zahid Hussain, would continue to have a valid title. The High Court has entered these findings despite the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1430 and Canara Bank v. P. Selathal & Ors. (2020) 13 SCC 143. Therefore, the jurisdiction of the civil court to entertain the suit instituted by the first respondent was barred. 38 The High Court allowed the appeal against the judgment of the Trial Court on the ground that after the District Judge allowed the appeal and set aside the order dated 16 March 1988 passed by the Competent Authority under Section 8(4) of ULCRA, all further proceedings pursuant to the order under section 8(4) of ULCRA - including the taking of possession by the State - would be null and void. The bench then held then even otherwise, only 'paper possession' and not 'actual possession' of the suit land was taken, and thus in these circumstances Zahid Hussain would have both the title and possession of the suit land. The findings of the High Court are a non-sequitur since even if Zahid Hussain had title and possession of the suit land at the time of transfer, the purported transfer to the first respondent is null and void. The High Court ought to have upheld the dismissal of the suit on this ground. A plaintiff has to stand on their own legs and the respondent - plaintiff had no valid title or interest in la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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