Sabitri
Dei & Ors Vs. Sarat Chandra Rout & Ors [1996] INSC 179 (2 February 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K. Pattanaik. J.
CITATION:
1996 SCC (3) 301 JT 1996 (2) 1 1996 SCALE (1)714
ACT:
HEAD NOTE:
Leave
granted.
This
appeal is directed against the Judgment of the Orissa High Court dated 19th April, 1993 in Civil Revision No. 403 of 1987
arising out of a petition filed under Section 47 of the Code of Civil Procedure
in Execution Case No. 110 of 1981. The judgment debtor is the appellant in this
Court. The deceased Jai Rout had filed a suit for recovery of possession in the
Court of Munsif, Cuttack which was registered as Title Suit
No. 243 of 1953, the same suit was decreed on 30th March, 1965. The decree became final in as much as the appeal against
decree was dismissed on the ground of abatement and the said order of abatement
was also sustained in Civil Revision No. 252 of 1974 by the order of the High
Court dated 15th
October, 1976. In the
meantime the suit property which is admittedly an intermediary estate stood
vested with State of Orissa by virtue of a notification dated 27th April, 1963 under Section 3(1) of the Orissa
Estate Abolition Act (hereinafter referred to as 'the Act'). The plaintiff -
decree holder deceased Rai Rout levied execution by filing an application which
was registered as Execution Case No. 110 of 1981. The Judgment debtor filed an
objection under Section 47 challenging the executability of the decree in
question. The executing court by its order dated 10th March, 1987 allowed the application under Section 47, C.P.C. filed by
the judgment debtor and dropped the execution case on a Indian that the
property in question has been vested in the State Government and is no longer
available to be executed under the decree. The decree-holder, deceased Jai Rout
challenged the said order of the Executing Court by filing a Revision in the High Court. During the pendency
of said Revision, decree holder having died, the legal representatives were
substituted who are the respondents in this appeal. The High Court came to the
conclusion that notwithstanding the vesting of the estate under the Act, the
question whether the right of the decree holder had extinguished is not open to
be raised in the execution proceeding because of the principle of constructive res
judicata. The High Court also came to the conclusion that the decree in
question cannot held to be a nullity as the Civil Court had the jurisdiction in
the suit for recovery of possession and section 39 of the Act doesn't take away
that jurisdiction. With these conclusions the order of the Munsif having been
set aside and the executing court having been directed to execute the decree,
the judgment debtors are in appeal to this Court.
Mr.
P.N. Misra, learned counsel appearing for the appellant contends that the suit
in question having been filed on the basis of the proprietary right of the
plaintiff and that right having vested in the State free from all encumbrances
on and from the date of notification under Section 3 of the Act dated 27th
April, 1963, the decree holder did not have any existing right in the property
and therefore is not entitled to execute the decree in question and the High
Court committed error in brushing aside this question by applying the principle
of res judicata. Mr. Misra further contended the notification under Section
3(1) of the Act having been issued on 27th April, 1963 and the property in question not
having been settled with the intermediary under Section 6 of the Act, the Civil Court had no jurisdiction to pass a
decree in March, 1965 and thus the decree in question is a nullity. The
principle of res judicata will not be attracted and invalidity of the decree
can be set up whenever it is sought to be enforced or acted upon as a
foundation for a right even at the stage of execution or in any collateral
proceeding. Mr. Mohanty, learned counsel appealing for the respondents on the
other hand contended that the decree in question cannot be held to be a nullity
as the Civil Court cannot be said to be having
inherent lack of jurisdiction. He also contended that Section 6 of the Act
overrides the other provisions of the Act and therefore the deemed settlement
as contemplated under Section 6 on the intermediary does not divest the
intermediary of his right to recover possession and in this view of the matter
the High Court was fully justified in directing execution of the decree in
question.
Having
heard the learned counsel for the parties and on examining the different
provisions of the Orissa Estate Abolitions Act, we find sufficient force in
both the contentions raised by Mr. Misra, learned counsel for the appellant.
Two questions really arise for our consideration:
1)
Whether the decree in question can be held to be a nullity? 2) Whether the
plaintiff - decree holder having lost his right of proprietorship in the
property, the Executing
Court can refuse to
execute the decree? For adjudicating both these questions it will be necessary
to examine the different spositions of Orissa Estate Abolition Act and
accordingly the relevant provisions of the Act are extracted hereinafter in extenso.
Section 3 of the Act state thus:
"(Section
- 3) Notification vesting an estate in the State:
1. The
State Government may, from time to time by notification, declare that the
estate specified in the notification has passed to and become vested in the
State free from all encumbrances.
2. The
notification referred to in sub-section (1) shall contain particulars of the
estate including the fouzi number, if any, and the name and the address of the
Intermediary as recorded in the registers maintained by the Collector, or as
far as is otherwise ascertainable by him and shall be published in the Gazette
and shall be affixed in a conspicuous place for a period of not less than fifteen
clear days in the office of the Collector.
3.
Such publication shall be conclusive evidence of the notice of declaration to
everybody whose interest is affected by it." Section 3A of the Act state
thus:
"(Section-3A)
Vesting of Intermediary interest.
(1)
Without prejudice to the powers under the last preceding section, the State
Government may be notification declare that the intermediary interests of all
Intermediaries or a class or classes of Intermediaries or a class or classes of
Intermediaries in the whole or a part of the State have passed to an become
vested in the State free from all encumbrances.
(2)
The notification referred to in sub-Section (1) shall be published in the
Gazette and on such publication shall be conclusive evidence of the notice of
the declaration to everybody whose interest is affected thereby.
Section
6 of the Act state thus:
"(Section-6)
Homesteads of Intermediaries and buildings together with lands on which such
buildings stand in the possession of Intermediaries and used as goals,
factories or mills to be retained by them on payment of rent:- (l) With effect
from the date of vesting, all homesteads comprised in estate and being in the
possession of an Intermediary on the date of such vesting, and such buildings
or structures together with the lands on which they stand. other than any
buildings used primarily as offices or kutcheries or rest houses for estate
servants on duty as were in the possession of an lntermediary at the
commencement of this Act and used as goals (other than goals used primarily for
storing rent in kind), factories or mills for the purpose of trade, manufacture
or commerce, or used for storing grains or keeping cattle or implements for the
purpose of agriculture and constructed or established and used for the
aforesaid purposes before the 1st day of January, 1946, shall, notwithstanding
anything contained in this Act, be deemed to be settled by the State Government
with such Intermediary and will all the share-holders owning the estate, who
shall be entitled to retain possession of such homestead and of such building
or structures together with the lands on which they stand, as tenants under the
State Government subject to the payment of such fair and equitable ground-rent
as may be determined by the Collector in the prescribed manner:
Provided
that where the Intermediaries have come to any settlement among themselves
regarding the occupation of buildings and file a statement to the effect before
the Collector, the buildings shall be deemed to have been settled with the
Intermediaries according to that settlement;
Provided
further that homesteads in actual possession of the Intermediary shall be
settled with him free of groundrent in those areas where no groundrent is
charged under the existing law on homestead lands.
2. (
... ....... .... )
3.
Notwithstanding anything contained in sub-section(1), where an Intermediary
constructed a building or structure in his estate after the 1st day of January,
1946 and used it on the date of vesting for the purposes mentioned in sub-
section(l), he may be entitled to retain possession of such building or
structure together with the land on which it stands as a tenant under the State
Government subject to the payment of ground-rent as provided in sub-section (1)
only if the Collector, after an enquiry, is satisfied that it is constructed or
used for a bona fide purpose and not with a view to defeat the provisions of
Section 5 of this Act." Section 8A of the Act state thus:
"(Section-8A)
Filing of claims under sections 6, 7 and 8 and dispute relating thereto:- (1)
The Intermediary shall file his claim in the prescribed manner for settlement
of fair and equitable rent in respect of lands and buildings which are deemed
to be settled with him under Section 6 or Section 7 before the Collector within
six months from the date of vesting.
2. Any
person who is discharged from the conditions of personal service under
sub-section (3) of Section 3 may file his claim in the prescribed manner before
the Collector within six months from the date of vesting for settlement of the
lands held under the terms and conditions of such service:
Provided
that the Collector shall, as soon as may be after any such claim under
sub-section (l) or sub-section (2) is filed, give public notice thereof by beat
of drum in the appropriate locality and by placards posted at such conspicuous
places as he deems fit, inviting objections from persons interested;
Provided
further that in respect of estates which have vested in the State Government
prior to the date of commencement of the Orissa Estates Abolition (Second
Amendment), Act, 1957, (Orissa Act 3 of 1958), the claims mentioned in
sub-sections (1) and (2) shall be filed before the Collector within a period of
six months from the said date;
Provided
also that the State Government may further extend the period specified in the
last preceding proviso up to a maximum period of one year for any sufficient
cause in any case or class of cases;
Provided
also that the claims on behalf of an Intermediary in respect of any estate
which has vested in the State Government or after the 18th day of March, 1974
but before the date of commencement of the Orissa Estates Abolition (Amendment)
Act, 1974 may, where such claim relates to a trust estate, be filed before the
Collector within a period of six months from the date of commencement of the
said Act;
Provided
also that such claim as aforesaid which has been filed after the 18th day of
September, 1974 and before the date of commencement of the said Act shall, for
all purpose, be treated as a claim filed within the period of limitations.
3. On
the failure of filing the claims within the period specified under this section
the provisions of clause (h) of section 5 shall, notwithstanding anything to
the contrary in Sections 6, 7 and 8, apply as if the right to possession of the
lands or buildings or structures, as the case may be, had vested in the State
Government by the operation of this Act and thereupon the right to make any
such claim as aforesaid shall stand extinguished:
Provided
that when such failure is due to the pendency of proceedings in a Court of Law
in which the validity of any notification under section 3 or 3-A is in dispute,
the State Government may by order specially made in that behalf, extend the
period for filing of the claim.
4. Any
person disputing the claim as to the extent or possession of such lands or
buildings or structures, as the case may be, may file an objection before the
Collector within three months from the of the public notice under sub- section
(2) of such claim and the Collector shall, prior to the determination at rent
under Sections 6. 7 a 8, enquire into the matter in the manner prescribed and
pass such order as he deems just and proper.
5.
Without prejudice to the provisions contained in sub- section (4), where a
respect of any estate is made by the Intermediary on the ground that it is
estate, the Collector shall, whether or not any objection is filed under the
said sub-section make a reference to the Tribunal constituted under Section 8-D
for determining whether the estate is a trust estate or not and shall act
according to the orders passed by the said Tribunal.
Provided
that in the case of any estate referred to in the proviso to Clause (oo) of
Section 2, no Such reference shall be necessary.
Section
39 of the Act state thus:
"(Section
- 39) Bar to jurisdiction of Civil Courts in certain matters:
No
suit shall be brought in any Civil Court in
respect of any entry in or omission from a Compensation Assessment Roll or in
respect of any order passed under Chapters II to VI or concerning any matter
which is or has already been the subject of any application made or proceedings
taken under the said Chapters." Coming to the first question, it is
apparent that on issuance of a notification under Section 3(1) of the Act, the
estate vests free from all encumbrances in the State Government. The
pre-existing rights shall cease to exist and new rights have been created under
the Act. By virtue of section 6 the Homesteads of Intermediaries and buildings together
with lands on which buildings stand in the possession of Intermediaries and
used as goals, factories or mills to be retained by them on payment of rent.
But the pre conditions in a deemed settlement for fixation of rent as
contemplated under Section 6 must be satisfied namely the land must be in use
as goals, factories or mills. Under sub- section (3) of section 8A if no claim
is filed within the specified period then the right to possess the land or
building or structure, as the case may be, stand vested in the State Government
by operation of the Act and thereupon the right to make any such claim by the
Intermediary stand extinguished. It is admitted by the parties that the
Intermediary had not filed any claim within the stipulated period and infact no
settlement of rent had been mad with the Intermediary under Section 6. Such a
settlement couldn't have been made as admittedly the defendant judgment debtor
is in possession of the land. This being the position, on and from the ate of
issuance of notification under Section 3(1) of the Act that is 27th April,,
1963, the Civil Court looses jurisdiction in respect of the disputed property
by operation of Section 39 of the Act and consequently the decree passed on
30th of the March, 1965 must be held to be a nullity. Once a decree is held to
be a nullity, the principle of constructive res judicata will have no
application and its invalidity can be set up whenever it is sought to be
enforced or is acted upon as a foundation for a right even at the stage of execution
or in any collateral proceeding. This question no longer remains res integra
and has been so held in the case of Sushil Kumar Mehta vs. Gobind Ram Bohra
reported in (1990) 1 S.C.C. P. 193 to which one of us (brother Ramaswamy, J.)
was a member. It has been held in the aforesaid case:
"Thus
it is settled law that normally a decree passed by a court of competent
jurisdiction, after adjudication on merits of the rights of the parties,
operates as res judicata in a subsequent suit or proceedings and binds the
parties or and persons claiming right, title or interest from the parties. Its
validity should be assailed only in an appeal or revision as the case may be.
In subsequent proceedings its validity cannot be questioned. A decree passed by
a court without jurisdiction over the subject matter or on other grounds which
goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction.
It is a coram non judice. A decree passed by such a court is a nullity and is
non west.
Its
invalidity can be set up whenever it is sought to be enforced or is acted upon
as a foundation for a right, even at the stage of execution or in collateral
proceedings. the defect of jurisdiction strikes at the authority of the court
to pass a decree which cannot be cured by consent or waiver of the party. If
the court has jurisdiction but there is defect in its exercise which does nor
go to the root of its authority, such a defect in its exercise which does not
go to the root of its authority, such defect like pecuniary or territorial
could be waived by the party. They could be corrected by way of appropriate
plea at its inception or in appellate or revisional forums, provided law
permits. The doctrine of res judicata under Section 11 CPC is founded on public
policy. An issue of fact or law or mixed question of fact and suit or might and
ought to be raised claiming under them and was adjudicated or allowed
uncontested becomes final and binds the parties or persons claiming under them.
Thus the decision of a may operate as res judicata in subsequent proceedings
between the same parties and those claiming under them. But the question
relating to the interpretation of a statute touching the jurisdiction of a
court unrelating to the jurisdiction of a court unrelated to questions of fact
or as res judicata even between the parties reason is obvious; a pure question
of law unrelated to facts which are the basis or to be a matter in issue. The
principle of res judicata is a facet of procedure but not of substantive law.
The decision on an issue of law founded on fact in issue would operate as res judicata.
But when the law has since the earlier decision been altered by a com patent
authority or when the earlier decision declares a transaction to be valid
despite prohibition by law it does not operate as res judicata. Thus a question
of jurisdiction of a court or of a E procedure or a pure question of law
unrelated to the right of the parties founded purefy on question of fact in the
previous suit, is not res judicata in the subsequent suit. A question relating
to jurisdiction of a court or interpretation of provisions of a statute cannot
be - deemed to have been finally determined by an erroneous decision of a court
- Therefore, the doctrine of res judicata does not appl-y to a case of decree
of nullity. If the court inherently lacks jurisdiction consent cannot confer
jurisdiction. Where certain statutory X ; ; rights in a welfare legislation are
created, the doctrine of waiver also does ;
not
apply to A case of decree where the court inherently lacks jurisdiction."
The ratio of the aforesaid case fully applies to the facts and circumstances of
the case in hand. Mr. Mohanty appearing for the respondents did not challenge
the proposition of law but contended that Section 6 of the Act confers a deemed
right of settlement with the Intermediaries in respect of the disputed property
and that provision overrides the other provisions of the Act and therefore
Section 39 of the Act will have no application. We are unable to persuade
ourselves to agree with the submission made by Mr. Mohanty as the said
submission does not take into consideration the provisions of sub-section (3)
of section 8A. In our considered opinion the estate in question having been
vested by virtue of notification under Section 3(1) of' the Act and no claim
having been made by the Intermediary for getting deemed settlement of fixation
of rent, by operation of sub-section 3 of Section 8A, the right of the lntermediary
stand extinguished and therefore under such circumstances the Civil Court had
no jurisdiction of pass the decree in the year 1965. Consequently the decree in
question is nullity and the executing court can refuse to execute the decree.
The High Court was in obvious error in directing execution of the decree.
So far
as the second question is concerned, the same also has been directly answered
by a decision of this Court in the case of Haji Sk. Subhan vs. Madhorao, (1962)
Supp. l S.C.R. P. 123. The identical provisions of Madhya Pradesh Abolition of
Proprietary Rights (Estates, .Mahals, Alienated Lands) Act, 1950 was being
considered by this Court. This Court came to hold that the proprietary rights
in an estate specified in the notification passed from the proprietor and
became vested in the state free from all encumbrances and therefore after issue
of the notification under Section 3 notwithstanding anything contained in any
contract, grant or document or any other law for the time being in force. all
rights, title and interest which a proprietor possessed on account of his
proprietorship of the land within the estate became vested in the State.
Consequently
the provisions of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950 deprived the proprietor of his proprietary
rights including the right to recover possession over the land in the suit.
This Court also further held that the Executing Court has a right to refuse to
execute the decree upholding that the decree has became in executable on
account of the change in law and its effect. What has been stated by this Court
in relation to the provision of the Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act 1950 would have full application to the provisions of
the Orissa Estate Abolitions Act with which we are concerned in the present
case. In this view of the matter the proprietary rights of the plaintiff
Intermediary became vested in the State of Orissa. The plaintiff could not execute the decree for recovery of possession.
In our
considered opinion the Executing
Court rightly refused
to execute the decree and the High Court was in error in setting aside the said
order of the Executing
Court. In the
aforesaid premises the order of the High Court passed in Civil Revision No. 403
of 1987 is set aside. This appeal is allowed. The execution proceeding stands
annulled.
There
will be no order as to costs.
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