Samarjut Singh Vs. Dy. Director of Consolidation, U.P., Lucknow and ors. - Court Judgment

Excerpt:
civil - right to claim restitution - section 144 of code of civil procedure, 1908 and section 209 of u. p. zamindari abolition and land reforms act, 1951 and section 4 of u. p. consolidation of holdings act - transferee pendente lite - representative in interest of the party from whom he got the transfer - held, not entitled to raise any claim against the decree or the order of restitution ultimately passed on the reversal of the decree. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held,.....orderprem prakash, j.1. these are five connected petitions, under article 226 of the constitution.2. the relevant facts, shortly stated, are as follows: bhaiya durga prasad singh, the zamindar of village harbaspur, gave the village on theka to ram awadh, father of opposite party no. 4, yatindra nath. the thekadar continued in possession after the expiry of theka; bhaiya durga prasad singh filed a suit for ejectment under section 180 of the u. p. tenancy act against opposite party no. 4, his mother, ram kali; and his uncle, teerath ram, which was decreed by the court of civil judge, gonda on 30th september, 1947. in execution of the decree possession was obtained by the decree-holder over specific plots (which are in dispute), on 27th june, 1948. against the judgment and decree dated 30th.....

Judgment:
ORDER

Prem Prakash, J.

1. These are five connected petitions, under Article 226 of the Constitution.

2. The relevant facts, shortly stated, are as follows: Bhaiya Durga Prasad Singh, the Zamindar of village Harbaspur, gave the village on theka to Ram Awadh, father of opposite party No. 4, Yatindra Nath. The Thekadar continued in possession after the expiry of theka; Bhaiya Durga Prasad Singh filed a suit for ejectment under Section 180 of the U. P. Tenancy Act against opposite party No. 4, his mother, Ram Kali; and his uncle, Teerath Ram, which was decreed by the Court of Civil Judge, Gonda on 30th September, 1947. In execution of the decree possession was obtained by the decree-holder over specific plots (which are in dispute), on 27th June, 1948. Against the judgment and decree dated 30th September, 1947 an appeal filed in the High Court was pending on the date of vesting. Under Rule 4 (2) (v) of the U. P. Zamindari Abolition and Land Reform Rules, 1952 the proceedings in the High Court remained stayed and on 10th February, 1959, the proceedings abated by an order of the Court under Rule 5 (1) of the aforesaid Ruler During the interval between the decree passed by the Civil Judge, Gonda and the order of abatement made by the HighCourt, the Zamindar had settled the plots in dispute with the petitioners conferring upon them hereditary rights; the settlement made before the date of vesting law, according to the petitioners, commenced from 1359 Fasli, On 3rd June, 1959 opposite party No. 4, filed an application in the Court of the Civil Judge. Gonda under Section 144 of the Code of Civil Procedure for re-delivery of possession to him over the plots in dispute. A warrant for delivery of possession was issued by the Civil Judge, Gonda under Order XLI, Rule 35, Civil P. C, on 21st September, 1960, fixing 5th November, 1960 for report and compliance. On 5th November, 1960 the Civil Judge, Gonda made the order on the application : 'Delivery of possession has been made. Let record be consigned.' To these proceedings under Section 144, Civil P. C. the petitioners or their predecessors were not parties and there is also no evidence to show that actual possession was obtained by opposite party No. 4 against the petitioners in the proceedings under Section 144, Civil P. C. Consolidation operations commenced in village Harbaspur by a notification made under Section 4, on 26th February, 1966. In the basic year the names of the petitioners were found recorded in the khatauni as sirdars. Objections were filed under Section 9 of the U. P. Consolidation of Holdings Act by opposite party No. 4 contending that he had been in possession of the plots in dispute for a long time, that he was the recorded occupant in 1356 Fasli and that he had acquired sirdari rights. On the contrary, the contention on behalf of the petitioners was that they being in continuous possession from the year 1359 Fasli when the erstwhile Zamindar created leases in their favour, they acquired rights of sirdar under Section 19 of the U. P. Zamindari Abolition and Land Reforms Act with effect from the date of vesting and that, at any rate, the opposite party having not filed the suit for their ejectment under Section 209 of the Act within the prescribed period, the petitioners became sirdars of the land in dispute by the application of Section 210 of the Act.

3. The Consolidation Officer, to whom the dispute was referred, held that the Zamindar could not in law create leases in favour of the petitioners during the pendency of the appeal against the decree in suit under Section 180 of the U. P. Tenancy Act and that the possession of the petitioners was discontinued from 5th November, 1960 on which date opposite party No. 4 had obtained possession in the proceeding under Section 144, Civil P. C. Having reached these findings he directed that the name of opposite party No. 4 be entered as sirdar and the name of the petitioners expunged from the khatauni. The Assistant Settlement Officer (Consolidation) took a similar view. The Deputy Director of Consolidation, before whom the petitioners preferred revisions under Section 48 of the U. P. Consolidation of Holdings Act, upholding the decision ofboth the courts below, held that the petitioners had not acquired sirdari rights over the land in dispute.

4. Feeling aggrieved against that order, the petitioners have invoked the jurisdiction of this Court under Article 226 of the 'Constitution and have assailed the legality of the findings on the grounds taken by them before the consolidation authorities. At the very threshold it would be necessary for me to consider the nature and scope of a proceeding under Section 144 of the Code of Civil Procedure. The principle of the doctrine of restitution is that on the reversal of a decree in appeal the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interest or justice of the case (vide Bhagwant Singh v. Sri Kishen Das : [1953]4SCR559 ). The decree of reversal carried with it a right of restitution of all that had been taken under the erroneous decree in the same manner as an ordinary decree carried with it a right to have it executed.

The application for restitution, as observed by their Lordships of the Supreme Court in Mahijibhai y. Manibhai : [1965]2SCR436 , is an application for execution of a decree. When a party, who loses his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he has only to recover the fruits of the appellate decree. In fact, the application flows from the appellate decree and it is filed to implement or enforce the same. The transferee pendente lite is a representative-in-interest of the party from whom he got the transfer. Such a transferee is not entitled to raise any claim against the decree or the order of restitution ultimately passed on the reversal of the decree.' Under Order XXII, Rule 10 of the Code of Civil Procedure a transferee pendente lite may be joined as a party, but the plaintiff is not bound to make him a party nor has the transferee an absolute right to be joined as a party. After the decree, the transferee pendente lite, even if not joined as a party, is under Section 47 of the Code, a representative of the judgment-debtor (i.e. the party against whom restitution is obtained) in all matters relating to the execution, discharge or satisfaction of the decree. This principle is recognised in Order XXI, Rule 102, Civil P. C. which does not allow a transferee pendente lite of the judgment-debtor to make a claim in execution proceedings. In that view, it cannot be said that it was necessary for opposite party No. 4 to have brought the transferees on the record or to implead them in the application for restitution. They are thus bound by the order of restitution even in spite of the fact that they were not impleaded.

The delivery of possession to the opposite party No. 4 as against the erstwhile Zamindar on 5th November, 1960, operates as actual possession against the latter which caused a break in the possession which he had obtained in the result of the decree which was subsequently reversed in appeal. As a consequence of the reversal of the decree a tenant put into possession pendente lite is liable to be removed. There is nothing in the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1961 (to be hereinafter referred to as the Act) which could enable the tenants, with whom the lands were settled during the pendency of the suit or proceeding, by the erstwhile Zamindar, to assert their rights overriding the provisions of Section 144 and Order XXI, Rule 102, Civil P. C. This view appears to be concluded by authority.

5. In Parmeshari Din v. Ram Charan their Lordships of the Judicial Committee held:

'It is then said that the appellant was not a party to the decree which is sought to be executed against him. But he took the property from the defendant pendente lite and must be treated as his representative-in-interest. He is bound by the result of the decree. If he had not obtained possession of the property from the defendant, the latter would have been required to deliver it to the plaintiffs. And the mere circumstance that he got possession from the defendant in pursuance of a transfer, which was invalid as against the plaintiffs, cannot detract from their rights under the decree.'

6. In Sukhan Singh v. Uma Shankar Misir : AIR1935All65 Niamatullah. J. held:

'Section 144, Civil P. C, makes it imperative where a decree passed by the Court of first instance is reversed on appeal that the Court should place the winning party in the position which he or she would have occupied but for such decree. Mt. Chandrajota is entitled to have her land restored to her free from all encumbrances, including any tenancy that might have been created in the meantime by the party who was successful in the first Court but eventually was found to have no title to the land. Restitution under Section 144 can be claimed not only against the opposite party, but also his representatives or persons deriving title from him.'

7. In this case the principle of the Privy Council case, referred to above, has been held to be applicable to the case of a party entitled to restitution even though the party may not be the decree-holder. The word 'parties' mentioned in Section 144, Civil P. C. would coyer the transferee or the assignee of the losing party in the litigation; the' assignee or the transferee may have succeeded either by contract or by operation of law. In this view of the matter, the petitioners would be bound by the order made by the Civil Judge in the proceeding under Section 144, Civil P. C, notwithstanding that they were not parties to that proceeding.

8. The possession of the petitioners since they were not actually dispossessed by opposite party No. 4 in the proceeding under Section 144, Civil P. C. would be adverse against the latter from 5th November, 1960 when the erstwhile Zamindar, who had created tenancy in their favour, was dispossessed. Their contention that their possession was adverse to opposite party No. 4 from the date they were settled as tenants by the erstwhile Zamindar is untenable. Bhaiya Durga Prasad Singh had entered into possession under and by virtue of, the order passed in execution proceedings based upon what at that time was a valid decree and, that being so, his possession cannot be regarded as that of a trespasser during such period (vide Surnomoyee v. Shooshe Mukhee, (1969) 12 Moo Ind App 244 (PC) and Surendra Lal v. Sultan Ahmad : AIR1935Cal206 ).

When the possession of Bhaiya Durga Prasad Singh was not that of a trespasser, the tenants, who derive their interest through him, cannot be said to be in unlawful possession during the period Bhaiya Durga Prasad Singh continued in lawful possession. The adverse possession of the petitioners as against opposite party No. 4 having thus commenced from 5th November, 1960, the interest of he original tenure-holder, namely, opposite party No. 4, who was the hereditary tenant of the disputed plots under Section 12 of the Act and thereafter became the sirdar under Section 19 of the Act, could be extinguished and the occupation of the petitioners have ripened into that of a sirdar under Section 210 of the Act if the petitioners remained in possession for a period of more than six years from 5th November, 1960. But the limitation stopped running in sequel to the notification made under Section 4 of the U. P. Consolidation of Holdings Act on 26th February, 1966, inasmuch as Section 49 of that Act bars the filing of subsequent suits or proceedings in respect of the matters which can be substantially decided by the consolidation authorities. Neither Section 210 nor the principle contained therein can be held applicable to cases when during the period of alleged adverse possession the real owner cannot file a suit for ejectment under Section 209 of the Act. A person, who has still limitation to tile a suit under Section 209 of the Act on the date of notification under Section 4 of the U. P. Consolidation of Holdings Act, has thus every right to get relief under the provisions of the later Act notwithstanding his failure to tile a suit under Section 209 of the former Act, (see Badal v. Deputy Director of Consolidation, 1970 AH U 510) (FB). For these considerations, the petitioners' contention that by long adverse possession they had acquired sirdari rights under Section 210 of the Act cannot be accepted as correct.

9. It was contended that the petitioners being in cultivatory possession of theland during the year 1359 Fasli became adhivasis under the U. P. Land Reforms (Supplementary) Act, 1952 and thereafter became sirdars under Section 240-A of the Act, and therefore, the Deputy Director of Consolidation erred in law in rejecting their claim. I am unable to agree with this contention. The 1952 Act provides in Section 6 that the Act shall not apply to land in respect of which a suit of the nature provided for in Section 180 or an appeal or other proceeding from a decree passed in such a suit was pending in any civil or revenue Court on the 30th day of June, 1952. Admittedly, the appeal against the original decree was pending in the High Court on the 30th day of June, 1952, and, that being the position, the petitioners cannot lay their claim on the basis of Section 3 of the Supplementary Act.

10. Counsel for the petitioners contend in the alternative, that Bhaiya Durga Prasad Singh being competent to create leases after having obtained possession in execution of the original decree--which would be binding on opposite party No. 4--he had power to do so whether an appeal had been filed or not by opposite party No. 4 and irrespective of the fact that the decree was subsequently reversed in appeal and the possession of the suit land was restored to opposite party No. 4. Reliance for this contention has been placed upon a single Judge decision of the Allahabad High Court in Ram Dayal v. Asghar Khan : AIR1930All289 . On the side of opposite party No. 4 it has been strenuously maintained that Section 52 of the Transfer of Property Act prevented the erstwhile landlord from creating any lease which would adversely affect the rights of opposite party No. 4.

11. In order to dispose of the rival contentions, reference will have to be made to Section 52 of the Transfer of Property Act which enacts the doctrine of lis pendens. No suit or action can be brought to successful termination if alienation pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment and decree and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding. This is what the erstwhile Zamindar did in this case by creating hereditary tenancies in favour of the petitioners, although the appeal was pending in the High Court. The question whether one party to the suit had got a right to enter into transactions does not affect the question of lis pendens. The only thing which he cannot do is to do things in such a manner as to adversely affect the opposite party in the suit. In this case the creation of hereditary rights in the petitioners adversely affected the rights of opposite party No. 4 and as held by a Division Bench of the Allahabad High Court in Jamoon v. Chakradhar Jayal : AIR1937All9 , there were transfers of immovable property within the meaning of Section 52 of the Transfer of Property Act and,therefore, the leases could not be binding on opposite party No. 4. If Section 52 has to be allowed to have full effect, it must be held that any such lease, which is created by a plaintiff-decree-holder pending an appeal, filed by the defendant, would not be binding upon the latter on his getting back possession in the result of the reversal of the decree and the lessee 'will have to take subject to the result of the appeal.

12. In Ramdas Popat Patil v. Fakira Pandu Patil : AIR1959Bom19 it was held that any lease which is created by a mortgagor pending a suit filed by the mortgagee would not be binding upon the mortgagee or on any person who has subsequently purchased the interests of the mortgagee along with that of the mortgagor in the property in suit and the lessee will have to take subject to the result of the suit. It was further observed that leases which are affected by the doctrine of lis pendens do not enable the lessee to exercise any rights created in his favour by the Bombay Tenancy and Agricultural Lands Act, 1948. In another case, namely, Narayan Laxman v. Vishnu Waman : AIR1957Bom117 a suit was filed by one Narayan and others against one Bishnu Waman and another 'claiming possession of certain lands given inam to a temple. The suit was decreed and in execution of the decree possession was obtained by the plaintiffs. An appeal was filed by the defendants. During the pendency of the appeal the plaintiffs leased out the lands to strangers. In the appeal a consent decree was passed which provided that the defendant were entitled to recover and retain possession and enjoy the income of the lands. The defendants filed an application under Section 144, Civil P. C. in which they claimed an order for restitution of possession of the lands from the plaintiffs as well as their lessees and it was contended by the lessees that they were entitled to protection under the Bombay Tenancy Act and an order for actual possession could not be passed against them. In the second appeal the High Court held that the leases being transfer of the lands during the pendency of the appeal were affected by the rule of lis pendens enunciated in Section 52 of the Transfer of Property Act and they were therefore, not entitled to set up their right against the claim of the defendants. The principle, in my view, should also apply to the instant case.

13. In the course of arguments counsel for the petitioners sought support from Section 19 of the Act in sustenance of their contention that because the petitioners were hereditary tenants on the date immediately preceding the date of vesting, they became sirdars and they were entitled to retain the possession of the land in their capacity as sirdars against opposite party No. 4, as well. The argument loses much of its force in view of Section 6 of the U. P. Land Reforms (Supplementary) Act, 1952 adverted to in the [above. Furthermore, it may be that theleases were not void in its inception, but Section 52 of the Transfer of Property Act prevents a party from creating any lease during the pendency of the suit which may affect the rights of the adversary. Any rights, therefore, which would be created in such a tenant because of the operation of Section 19 of the Act would not help the tenant as against opposite party No. 4 when there is nothing in the provisions of the U. P. Zamindari Abolition and Land Reforms Act to override the provisions of Section 52 of the Transfer of Property Act. On the other hand, Section 6 of the Supplementary Act, 1952 recognises and embodies the principle of lis pendens.

14. Bearing these aspects in mind, I am, therefore of the view that the leases, which were created by Bhaiya Durga Prasad Singh and which attract the doctrine of lis pendens, do not enable the lessees to exercise any rights created in their favour by the Act as against opposite party No. 4 and that the petitioners, by the date the notification under Section 4 of the U. P. Consolidation of Holdings Act was made, had' not acquired rights of a sirdar, under Section 210 of the Act.

15. In the result, the petitions are dismissed with costs. The stay order, if any, is vacated.