Vs. Radhakrishna Chaube & Ors  INSC 383 (13 March 1996)
K.Ramaswamy, K.Venkataswami K. (J)
JT 1996 (3) 642 1996 SCALE (3)192
O R D
appeal by special arises from the judgment and decree of the Allahabad High Court made in S.A. No.1442/74
on May 7, 1981.
facts not in dispute are that the appellant had instituted a suit under
Sections 59 and 61 of the U.P. Tenancy Act, 1939 [for short, the 'Act] claiming
that the appellant has been in possession of the land for over 50 years and had
acquired hereditary tenancy rights therein.
Raja of Dumraon had interfered with his rights to possession thereof and that,
therefore, they claimed for declaratory relief against the respondents. The
respondents had disputed his rights saying that the lands are their own khudkasht
lands and were never in possession of the appellant. The trial Court, after
framing appropriate issues and adduction of evidence by the parties, has held
that the appellant has been in possession over 50 years in his own right by
hereditary succession as tenant and that, therefore, he became tenant under the
Act. On appeal, it was confirmed. The respondents challenged the correctness of
the decree and judgment of the courts below on question of jurisdiction of the
court in the High Court. The High Court found that under the Bihar & Uttar
Pradesh [Alteration of Boundaries] Act, 1968 [Act 24 of 1968] [for shorts the
'Boundaries Act~] passed by the Parliament, the village of Mohammadpur in the
district of Ballia in Uttar Pradesh was part of Shahabad District in Bihar
State. At the time when the suit was instituted the Act had no application. The
trial Court and the appellate Court also lacked inherent jurisdiction to
entertain the suit. Therefore, the suit was not maintainable in law.
Accordingly, the appeal was allowed and the decrees of the courts below were
set aside. Thus this appeal by special leave.
trial Court and the appellate Court recorded concurrently as a fact that the
appellant was a tenant under the respondents and that he had tenancy rights as
declared under Sections 59 and 61 of the Act. The High Court found that since
there was submersion and re-emergence of the lands by alluvion or de-alluvion
from time to time, changing of boundaries of the States of U.P. and Bihar, the continuous possession for over statutory period
of 12 years was interrupted. Consequently, the finding of adverse possession
recorded by the trial Court was not correct in law. It is clear from the record
that there is no factual evidence placed on record in this behalf to show as to
when this submersion or re-emergence of the appellants' lands had taken place.
Under those circumstances, the High Court was not right in interfering with the
concurrent findings of fact recorded by the courts below that the appellant had
perfected his title by adverse possession.
only crucial question that could touch the jurisdiction of the courts is
whether the trial Court had jurisdiction to entertain the suit to grant the
relief prayed for. It is seen that on account of the flow of Ganga river and floods on account thereof, the abutting
riverbeds were either submerged or accredited to the respective territories.
Preceding the Boundaries Act, the admitted position was that the line of deep
stream was a determinative factor. On account of the administrative and revenue
difficulties felt by the State Governments cf Bihar and U.P. both the Chief
Ministers had requested the Prime Minister to resolve the dispute, pursuant to
which Shri C.M. Trivedi came to be appointed as an arbitrator who submitted his
report. Consequent upon the report, the Boundaries Act came to be enacted. The
Statement of Objects and Reasons of the Act clearly indicates that "[A]t
present the deep stream of the river Ganga forms inter-State boundary between
the Shahabad district of Bihar and Ballia district of U.P...." In para 3
thereof it is stated thus:
26 of the Bills provides that the existing laws shall continue to be in force
in the transferred territories until otherwise provided by a competent
legislature or other competent authority. However, because of the fluctuating
nature of the present boundary, the actual extent of the transferred
territories may not be clear to the authorities who have to implement the laws.
Hence, provision has been made for the demarcation of the fixed boundary on
land, determination of the deep streams of the two rivers and preparation and
publication of a map of the transferred territories before the actual transfer
is effected." Consequently, the appointed day, viz., June 10, 1970 was
determined under the Boundaries Act by operation of Section 2 [a] thereof.
Section 3 deals with transfer of territories as and from the appointed day.
Section 8 deals with the extension of the jurisdiction and transfer of
proceedings to High Court at Allahabad and
vice versa to Patna. Section 30 deals with transfer of
the proceedings to courts other than the High Courts. At this point of time it
would be relevant to note that Section 26 of the Boundaries Act envisages the
extent of the territorial extent of lands as envisaged under the Boundaries
Act. It reads as follow:
Territorial extent of laws.
provisions of Section 3 shall not be deemed to have effected any change in the
territories to which any law in force immediately before the appoint day
extends or applies, and territorial references in any such law to the State of
Bihar or Uttar Pradesh shall, until otherwise provided by a competent
legislature or other competent authority, be construed as meaning the
territories within that State immediately before the appointed day".
reading thereof would clearly show that the provisions of Section 3 should not
be deemed to have effected any change in the territories to which any law in
force immediately before the appointed day extends or applies, and territorial
references in any such law to the State of Bihar or U.P. shall, until otherwise
provided by a competent legislature or other competent authority, be construed
as meaning the territories within that State immediately before the appointed
day. It is also not in dispute that right from 1959 the village continued to
remain part of Ballia district in U.P. Consequently, the Act came to be applied
and continued to be applied to the lands in question.
view of the above legal setting, the question arises: whether the decree of the
trial Court is a nullity or lacks inherent jurisdiction? Between 1959 and 1968,
though the land by course of stream of Ganga river accredited to the territory of Bihar, in fact it remained to be within the district of Ballia by
line of deep stream.
the trial Court had the jurisdiction to entertain the suit at that time. Though
under the Boundaries Act the territories stood extended, in fact by operation
of the Boundaries Act the jurisdiction of the area was not transferred to the Bihar courts. Consequently, the land remained to be within
the jurisdiction of the trial Court.
the date of the decree the Boundaries Act had come into force and consequently
even the doubtful territorial jurisdiction of the trial Court stands rectified
on the date when the decree was granted by the trial Court.
the Act applies to the rights claimed thereunder. The appellant, therefore, is
entitled to the relief sought for in the suit. The courts below have rightly
granted the relief.
appeal is accordingly allowed. The judgment and decree of the High Court in the
Second Appeal No.1442/74 is set aside and those of the trial Court and
appellate Court stand restored. No costs.
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