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2023 Supreme(All) 307
IN THE HIGH COURT OF ALLAHABAD
Neeraj Tiwari,J.
Suresh Chandra Srivastava and Ors. – Petitioners
Versus
S.D.O. And Others – Respondents
WRIT - C No. - 26259 of 2014
Decided On : 20-04-2023
Advocate Appeared:
For the Petitioner: R.C. Singh, K.P. Tiwari, Tarun Verma, Vinod Kumar
For the Respondent: K.P. Tiwari, K.K. Tiwari, Rajeev Kumar, S.R. Srivastava
Point of Law : Section 9 of the C.P.C. provides for filing of suit unless barred expressly or impliedly and Section 47 of C.P.C. shall not be applicable in the suits covered under the provision of Section 242 of Act of 1939.
Headnote:
Civil Procedure Code, 1908 - Section 9 and 100 - Industrial Disputes Act, 1947 – Land - Possession - Decreed - Petitioner has sought a relief for handing over possession of land in question by Sub- Divisional Magistrate pursuant to order and decree of revenue court dated respectively which have stood affirmed upto highest court of appeal under revenue law of State - An order of Sub- Divisional Magistrate dated has also been annexed as Annexure No. 9 to writ petition, whereunder then Sub-Divisional Magistrate, Jhansi considered all aspects of matter and directed for execution of order and decree dated and consequential action was directed to be taken in respect to revenue entries of land as well - There is no dispute on point that order dated has attained finality up to highest Court of appeal under revenue law of State and it is also not disputed that very same order i.e. dated has been declared null and void by Civil Court in its order dated , which has been affirmed by Appellate Court vide order dated. [Para 14]
Finding of Court : There is no dispute on the point that order dated has attained finality up to highest Court of appeal under revenue law of State and it is also not disputed that the very same order i.e. dated has been declared null and void by Civil Court in its order dated , which has been affirmed by Appellate Court vide order dated - In this case, Apex Court ultimately declared order of Civil Court without jurisdiction - Case is of no use in present controversy for very same reason that order of Civil Court after disposal of appeal has attained finality against which no second appeal has been preferred by petitioner-defendant - An issue of jurisdiction of S.D.M. was before Civil Court, in which it was held that S.D.M. has no jurisdiction to pass order dated
Result : Petition is dismissed.
JUDGMENT :
1. Heard Sri Bajinder Singh, Advocate, holding brief of Sri Vinod Kumar, learned counsel for the petitioners, learned standing counsel for respondent Nos. 1 & 2 and Sri Shashi Nandan, learned Senior Counsel assisted by Sri K.P. Tiwari, learned counsel for private respondents.
2. Present petition has been filed with the following prayers:
“i. issue a writ, order or direction in the nature of certiorari calling for record and quash the order dated 22.02.2014, so far as it is against the petitioners.
ii. Issue a writ, order or direction in the nature of mandamus commanding Sub Divisional Officer to issue fresh warrant and Parwana Amaldaramad and put the petitioners into possession over the entire area of plots comprising in Khewat No. 22 including entire area of plot no. 1380.”
3. The case was heard on 3.07.2019 and the Court has passed the following order:
“Learned counsel for the petitioners submits that a supplementary affidavit has been filed in March 2018 and the substitution application has been filed in March 2019, however, the same are not on record.
Office is directed to trace out and place the same on record.
By means of present petition, the petitioner has sought a relief for handing over the possession of the land in question by Sub- Divisional Magistrate, Jhansi pursuant to the order and decree of the revenue court dated 20.07.1996 and 24.07.1996 respectively which have stood affirmed upto the highest court of appeal under the revenue law of the State. An order of Sub- Divisional Magistrate, Jhansi dated 12.12.2011 has also been annexed as Annexure No. 9 to the writ petition, whereunder the then Sub-Divisional Magistrate, Jhansi considered all aspects of the matter and directed for execution of the order and decree dated 20.07.1996 and 24.07.1996 respectively and consequential action was directed to be taken in respect to the revenue entries of the land as well. However, it transpires that subsequently on some objections filed by the contesting respondents, the Sub-Divisional Magistrate came to pass an order dated 22.02.2014 by which it virtually rejected the request of petitioner for carrying out the order dated 12.12.2011 and hence this petition was preferred challenging the said order as well. However, it is admitted to the parties that subsequently, during pendency of the present writ petition, the Additional Commissioner (Administration), Jhansi Division, Jhansi allowed the revision filed by the judgment debtors themselves and set aside the order dated 22.02.2014.
In view of the above fact emerging out of the pleadings raised by the parties as far as the prayer no. 1 of the present writ petition is concerned, it has got rendered infructuous. The question is now for consideration before this Court regarding execution of judgment and decree still standing in favour of the petitioner as far as revenue courts are concerned and the land admittedly being agricultural land, under the state revenue laws, it is contended that the revenue courts are the ultimate authorities.
A counter affidavit has been filed on behalf of the respondent nos. 1 & 2 namely the Sub-Divisional Officer, Tehsil Sadar, Jhansi and Tehsildar, Tehsil Sadar, Jhansi sworn by Tehsildar Rajendra Bahadur himself in which vide para 19 it has been stated in quite unequivocal terms that the respondents have been dispossessed by the state authorities and the possession of the land in question has got vested with the Sub Divisional Officer and memo of possession to that effect dated 08.04.2013 has been filed.
In the face of facts that the order of Sub Divisional Magistrate, Jhansi dated 22.02.2014 has already been set aside by the Additional Commissioner in Revision No. 3/35 of 2013-14 vide order dated 10.11.2017 and the possession memo also shows that the land has been in possession of the Sub Divisional Officer concerned, this Court fails to understand as to why and under what circumstances, no further action has been taken, more especially when the earli
