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Citation Codes
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citation codes
Case Number
Judges
  • L.B
  • Hari Swarup
  • Prem Prakash, JJ. H.C
Acts
  • section 4 of the U.P Consolidation of Holdings Act, (hereinafter referred so as the Act)
  • Section 5(2) of the U.P Consolidation of Holdings Act.(2)
  • Section 5(2) of the U.P Consolidation of Holdings Act
  • clause (c) of subsection (1) of Section 115 C.P.C
  • SECTION 33 C INDUSTRIAL DISPUTES ACT
  • Section 113 read with Order 46, Rule 1, C.P.C
  • Section 115 of the Code of Civil Procedure.
  • Section 49 of the U.P Tenancy Act
  • Section 10 or Section 151 C.P.C
  • SECTION 44 EVIDENCE ACT
  • Singh.(1) Interpreting Section 5,
  • Section 4(2)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • L.B
  • Hari Swarup
  • Prem Prakash, JJ. H.C
Acts
  • section 4 of the U.P Consolidation of Holdings Act, (hereinafter referred so as the Act)
  • Section 5(2) of the U.P Consolidation of Holdings Act.(2)
  • Section 5(2) of the U.P Consolidation of Holdings Act
  • clause (c) of subsection (1) of Section 115 C.P.C
  • SECTION 33 C INDUSTRIAL DISPUTES ACT
  • Section 113 read with Order 46, Rule 1, C.P.C
  • Section 115 of the Code of Civil Procedure.
  • Section 49 of the U.P Tenancy Act
  • Section 10 or Section 151 C.P.C
  • SECTION 44 EVIDENCE ACT
  • Singh.(1) Interpreting Section 5,
  • Section 4(2)
See more information ...
Smart Summary

Structured Summary of the Opinion — Hari Swarup and Prem Prakash, JJ.

Factual and Procedural Background

A suit under Section 49 of the U.P. Tenancy Act was instituted for division of holdings. A preliminary decree was subsequently passed. When the plaintiffs moved for the preparation of a final decree, the defendant raised objections which the trial court did not accept. The defendant sought revision to the Commissioner, who referred the revision to the Board of Revenue.

Before the Board of Revenue decided the revision, a notification under Section 4 of the U.P. Consolidation of Holdings Act was issued covering the village containing the disputed land. The Board of Revenue considered abatement under Section 5 of the Consolidation Act and held that both the revision and the underlying suit abated, declaring both abated under Section 5(2).

Meanwhile the plaintiffs instituted a separate suit for mesne profits based on the preliminary decree in the partition suit. The defendant objected in that suit that the preliminary decree no longer existed because of the Board's abatement order; the trial court dismissed the mesne-profits suit. On appeal the appellate court held the Board of Revenue could not abate the suit up to the stage of preliminary decree, treated the preliminary decree as finally determining shares for the purpose of that suit, set aside the trial court's dismissal and remanded for decision. The defendant then filed the first appeal in this Court.

A learned single Judge hearing the first appeal referred five questions for the opinion of the Bench (the five questions are reproduced below and framed in the appeal record).

Legal Issues Presented

  1. Whether the preliminary decree passed under Section 49 of the U.P. Tenancy Act declaring the share of the plaintiff-respondent in the plots in dispute is binding on the parties and operates as res judicata even though proceedings in that suit when at the stage of final decree had been abated under the order of the Board of Revenue passed under Section 5(2) of the U.P. Consolidation of Holdings Act.
  2. In case the reply to the first point is in the affirmative, whether the order of the Board of Revenue dated 25th Nov., 1970 passed under Section 5(2) of the U.P. Consolidation of Holdings Act which specifically mentions abatement of the suit would also cause the preliminary decree to cease to have any binding effect; and whether that order to that extent was without jurisdiction.
  3. In case the aforesaid preliminary decree does not operate as res judicata, whether the plaintiff-respondent was co-sharer to the extent of half share in the disputed plots during the years December 1966 to December 1969 for which mesne profits were claimed.
  4. Whether the controversy involved under point No. 3 can be decided only by the Consolidation authorities or whether it can also be decided by the civil court where the suit for mesne profits was filed.
  5. In case the controversy can be decided only by the Consolidation authorities, whether the suit filed in civil court should have been stayed under Section 10 or Section 151 C.P.C. pending the final result of that decision.

Arguments of the Parties

Plaintiffs' (Respondent's) Arguments

  • The Board of Revenue's order under Section 5(2) abating the suit does not defeat the effect of the preliminary decree; the Board's order was a nullity.
  • Reliance was placed on Section 44 of the Evidence Act to show that a judgment or order can be impeached if delivered by a court not competent to do so; plaintiffs contended the Board was not competent to deliver the abatement order.
  • It was also contended that Section 6(2) of the Consolidation Act prevents abatement of a partition suit (argument invoked and supported by previous decisions of two Judges in Rudra Pal Singh v. Rampal Singh and Satish Kumar v. Lalta Tewari).

Defendant's (Appellant's) Arguments

  • The Board of Revenue had jurisdiction to pass the order of abatement under Section 5(2) following publication of the Section 4 notification; therefore the abatement order was not a nullity.
  • Reliance was placed on decisions such as Gulab Rai v. Manphool Bai and Municipal Board, Benares v. Kandhjya Lal for propositions about the meaning of 'suit' and the stages at which a suit can be treated as abated (e.g., that a suit extends from plaint to final decree).
  • Submitted that the Board was a superior authority competent to decide revisions and questions about abatement arising from suits involving agricultural land covered by the notification.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ram Adhar Singh v. Ramroop Singh & Others Interpreting Section 5: expression "every suit and proceeding in respect of declaration of rights or interest in any land" includes suits for possession (and by extension suits requiring adjudication of rights before partition). The Court applied this rule to hold that suits whose adjudication involves determination of rights (including partition) fall under Section 5 and may be abated after notification under Section 4.
Rudra Pal Singh v. Rampal Singh Two-Judge view referenced that Section 5 might abate only the portion of a suit remaining after a preliminary decree. Mentioned by plaintiffs' counsel as supportive authority; Court noted the view but did not adopt it as decisive for the present matter.
Satish Kumar v. Lalta Tewari Similar two-Judge view as above regarding possible partial abatement after preliminary decree. Noted by plaintiffs' counsel; Court acknowledged the view but proceeded without resolving the broader question.
Gulab Rai v. Manphool Bai (Supreme Court) Proposition relied on that a "suit" means the proceedings from plaint until final decree which disposes of the suit. Relied on by defendant; Court observed such authorities but did not need to decide that issue finally for present answers.
Municipal Board, Benares v. Kandhjya Lal (Full Bench) Authority on meaning/scope of 'suit' in context of abatement and jurisdiction. Relied upon by defendant; Court noted it but did not determine the dispute on that basis.
Prem Rai v. D.L.F.H and Co. Ltd. Dealt with Section 115 C.P.C. (clause (c)) about illegality/material irregularity in exercise of jurisdiction. Court distinguished this case: it concerned clause (c) and material irregularity, not exercise of jurisdiction not vested (clause (a)); therefore it did not establish that Board had no jurisdiction here.
Bombay Gas Co. Ltd. v. Gopal Bhiva Held that an award beyond the scope of reference by a limited tribunal is a nullity. Distinguished: that case involved a tribunal of limited jurisdiction; the Board of Revenue here was not such a limited tribunal and had jurisdiction under Section 5(2).
India Spinning and Weaving Co., Ltd. v. Clima Industrial Syndicate Principle that if a court had no jurisdiction over subject-matter, its judgment and order are nullities. Distinguished: not applicable because the Board had statutory duty and jurisdiction under Section 5(2) for matters covered by notification under Section 4.
AIR 1925 Calcutta 906 (reference under Section 113 read with Order 46, Rule 1, C.P.C.) Authority that decree passed by a court having no jurisdiction in regard to subject-matter is nullity. Referenced to show general principle; Court observed that those authorities apply where the forum lacked jurisdiction over subject-matter, which the Court found not to be the case here.
Lakshmi Chand v. Madho Rao Held that a court having no jurisdiction cannot pass a valid or binding decree. Recalled as part of authorities on nullity where subject-matter jurisdiction is absent; Court distinguished on facts since Board had jurisdiction under the Consolidation Act.
Kunja Mohan Chankravarty v. Manindra Chandra Roy Choudhari Case where subject-matter was outside court's jurisdiction and decree held nullity. Distinguished: not analogous because present Board had statutory jurisdiction under Section 5(2).
Rajwant Pd. v. Ram Rattan Principle (from Judicial Committee) that challenge to the method of exercise of jurisdiction does not deny the existence of jurisdiction; errors in exercise do not negate jurisdiction. The Court relied on this to support that a tribunal's erroneous exercise of jurisdiction does not render its orders nullities; such orders remain operative until set aside by proper proceedings.
Kunheema Umma v. P. Balkarishna Authority (and quoted doctrine from Black) that a court with jurisdiction's judgment stands unless reversed or annulled and cannot be collaterally impeached on mere error not affecting jurisdiction. Adopted as laying down the correct principle that jurisdictional existence is not vitiated by errors of law; Court applied this to uphold the efficacy of the Board's order until quashed.

Court's Reasoning and Analysis

The Court proceeded step-by-step and confined itself to the materials and authorities cited in the opinion:

  1. The Court examined the statutory scheme: Section 4 of the U.P. Consolidation of Holdings Act authorises declaration and notification bringing an area under the Act; Section 5(2) lists consequences of publication of such notification, including that every suit "for declaration of rights or interest in any land" pending in any court may, on an order being passed by the court or authority before whom it is pending, stand abated (clause (a) of Section 5(2) is quoted and applied).
  2. It found as admitted on the record that a notification under Section 4(2) had been published in respect of the disputed land and that the partition suit concerned agricultural land; therefore the Board of Revenue had competence under Section 5(2) to consider abatement.
  3. The Court rejected the contention that Section 44 of the Evidence Act could be invoked to treat the Board's order as a nullity on the ground of incompetence: Section 44 permits proof that a judgment was delivered by a court not competent to deliver it, but the Court concluded the Board was competent to decide the matter.
  4. The Court considered competing case law: Ram Adhar Singh indicated that suits involving adjudication of rights (including suits for possession and, by extension, partition) are covered by Section 5; the Court applied that reasoning to conclude suits like the partition suit fall within Section 5's scope.
  5. Even assuming, without deciding, that Section 5 could be read to abate a suit only from the stage following a preliminary decree (a view previously taken by two Judges in other cases), the Court held that the Board's order would not thereby be a nullity. At worst, such an order would be an erroneous interpretation of Section 5(2); it would remain binding until quashed on proper proceedings because the Board had jurisdiction to decide the revision and questions of abatement.
  6. The Court distinguished authorities relied upon by plaintiffs which declare orders nullities where the deciding forum had no jurisdiction at all (for example, Bombay Gas Co., India Spinning and similar authorities). Those cases involved tribunals or courts acting entirely outside the ambit of their jurisdiction or beyond the scope of their reference. By contrast, the Board here had statutory jurisdiction under Section 5(2) upon publication of the Section 4 notification.
  7. The Court reinforced its view by reference to established doctrine (Rajwant Pd. and Kunheema Umma) that errors in the exercise of jurisdiction do not amount to absence of jurisdiction and do not render orders void; such errors can make an order liable to be quashed but do not make it a nullity ab initio.
  8. On that basis the Court concluded that as long as the Board of Revenue's order under Section 5(2) remained in force, the preliminary decree would be deemed wiped off the record and the suit from the stage of the plaint would be deemed to have abated.
  9. Accordingly the Court answered the first question in the negative (i.e., the preliminary decree does not operate as res judicata while the Board's abatement order stands). Given that conclusion, the Court held the second question did not arise.
  10. With regard to the third question (whether plaintiff was co-sharer for specified years for mesne profits), the Court treated that as a question of fact dependent on evidence and not one of law to be resolved in the present opinion.
  11. Questions four and five (concerning whether consolidation authorities alone can decide the factual controversy and whether the civil suit should have been stayed under Section 10 or Section 151 C.P.C.) were left unanswered because they did not arise on the appeal as presented; the first appellate court had not decided those issues.

Holding and Implications

Core Ruling: The Bench answered the first referred question in the negative: the preliminary decree does not operate as res judicata while the Board of Revenue's order under Section 5(2) of the U.P. Consolidation of Holdings Act stands.

Direct consequences and implications (as stated in the opinion):

  • So long as the Board of Revenue's order under Section 5(2) remains in force, the preliminary decree is to be treated as wiped off the record and the suit is deemed abated from the stage of the plaint.
  • The Board's order is not declared a nullity by the Court; if erroneous, it may be open to challenge and quashing in appropriate proceedings, but it remains operative until set aside.
  • The Court did not decide the second referred question because it followed from the negative answer to the first; the second question was therefore held not to arise.
  • The third question was characterised as a question of fact (resolution dependent on evidence) and therefore not decided in the present opinion.
  • Questions four and five were left unanswered as they did not arise on the material before the Court; the matter was to be listed before a learned single Judge for hearing of the appeal.
  • No broader or novel precedent was proclaimed by the Court beyond applying established principles concerning jurisdiction, the effect of statutory consolidation notification and the distinction between absence of jurisdiction (which produces nullity) and error in exercise of jurisdiction (which renders an order susceptible to quashing but not void ab initio).

Disposition recorded in the opinion: "Answered Accordingly." The case is to be listed for further hearing before a learned single Judge.

Show full summary ...

    Ram Garib v. Bhagwati Din

    Hari Swarup and Prem Prakash, JJ.:— Five questions have been referred to us for opinion by a learned single Judge hearing F.A.F.O 49 of 1972. As the referring order does not give the facts giving rise to the appeal, we indicate the facts.

    2. A suit under Section 49 of the U.P Tenancy Act was filed for division of holdings. A preliminary decree was passed thereafter when an application was moved by the plaintiffs for the preparation of a final decree, objections were raised by the defendant. The trial court did not accept the objections. The defendant went up in revision to the Commissioner. The Commission ner, in turn, referred the revision to the Board of Revenue. Before the Board of Revenue could finally decide the revision. Notification under section 4 of the U.P Consolidation of Holdings Act, (hereinafter referred so as the Act) was issued covering the village in which the land in dispute was statute. The Board of Revenue considered the matter about the abatement of the revision and the suit under Section 5 of the Act and held that both the revision and the suit, out of which the revision had arisen, should abate. He accordingly declared the revision as well as the suit as having abated under Section 5(2) of the Act. In (he meantime, the plaintiffs had instituted as suit for mesne profits on the basis of the preliminary decree passed in the partition suit. When the suit came up for hearing, an objection was taken by the defendant to the effect that the preliminary decree no longer existed in view of the Board's order abating the suit. The trial court accordingly dismissed the suit. The plaintiffs went up in appeal. The appellate court held that the Board of Revenue could not abate the suit up to the stage of preliminary decree and hence the order made by the Board of Revenue abating the suit was without jurisdiction and on this finding, the appellate court set aside the trial courts decree dismissing of the suit and remanded the case for decision treating the preliminary decree as finally determining the shares and rights of the parties in the land in dispute. Against that order of remand the defendant filed the first appeal in this court. The learned single Judge hearing the first appeal has referred the following five questions for our opinion:

    “(1) Whether the preliminary decree passed under Section 49 of the U.P Tenancy Act declaring the share of the plaintiff-respondent in the plots in dispute is binding on the parties and operates as res judicata even though the proceedings in that suit when it was at the stage of final decree had been abated under the order of the Board of Revenue passed under Section 5(2) of the U.P Consolidation of Holdings Act.

    (2) In case the reply to the first point is in the affirmative, whether the order of the Board of Revenue, dated 25th Nov., 1970 passed under Section 5(2) of the U.P Consolidation of Holdings Act which specifically mentions about the abatement of the suit the preliminary decree would also cease to have any binding effect? Whether this order to that extent passed by the Board of Revenue is without jurisdiction.

    (3) In case the aforesaid preliminary decree does not operate as res judicata, whether the plaintiff respondent was co-share to the extent of half share in the disputed plots during the years December, 1966 to December, 1969 for which mesne profits had been claimed by him in the suit.

    (4) Whether the controversy involved under point No. 3 can be decided only by the Consolidation authorities or the same can also be decided by the civil court where the suit for mesne profits was filed.

    (5) In case this controversy can be decided only by the consolidation authorities' should the suit filed in civil court have been stayed under Section 10 or Section 151 C.P.C awaiting the final result of that decision.”

    3. In regard to question No. 1, the contention of the learned counsel for the plaintiffs is that the order of the Board of Revenue passed under Section 5(2) of the U.P Consolidation of Holdings Act abating the suit does not take away the effect of the preliminary decree in the partition suit because the order of the Board of Revenue was a nullity, In support of his contention he Las relied on Section 44 of the evidence Act and on certain case law. Section 44 of the evidence Act provides: “Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion”. It is not a case or the judgment being obtained by fraud or collusion. Learned counsel contends that the Board of Revenue was not competent to deliver the order. We do not find any merit in this contention. Section 4 of the Act provides for declaration and notification to bring a particular area within the operation of the Act. On the publication of the notification under Section 4(2) certain consequences ensue which are mentioned in Section 5 of the Act. Sub-section (2) of Section 5 provides:

    “(2) Upon the said publication of the notification under subsection (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely—

    (a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which pro ceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated…….”

    4. Admittedly, notification under Section 4(2) of the Act had been published and it was in respect of the land in dispute in the partition suit which had given rise to the revision before the Board of Revenue. It is also not denied that the suit for partition related to agricultural land. The Board of Revenue thus became competent to decide the matter and pass the orders in accordance with clause (a) of subsection (2) of Section 5 of the Act. The Board of Revenue cannot accordingly be deemed to be not competent to deliver the order. Section 44 of the evidence Act, can, accordingly, not make it non est.

    5. Learned counsel's contention is that under Section 6(2) of the Act a suit for partition cannot be abated. The proposition is hardly tenable in view of the decision in Ram Adhar Singh v. Ramroop Singh & Others.(1) Interpreting Section 5, it was observed:

    “Suits for possession, as such, has not been expressly referred to, in the new Section 5, but, in our opinion, the expression every suit and proceeding in respect of declaration of rights or interest in any land are comprehensive enough to take in suits for possession of land, because, before a claim for possession is accepted, the Court will have neces-sarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent is covered by the amended Section 5 of the Act.,’

    6. The rule laid down in this case will apply also to a suit for partition as the right of the parties will have to be adjudicated before partition can be effected.

    7. Learned counsel for the plaintiffs then contended that Section 5 will not apply to abate the entire suit but may apply to abate only that part of the suit which remains after the stage of the preliminary decree. Such a view was taken by two learned Judges of this Court in Rudra Pal Singh v. Rampal Singh(2) and Satish Kumar v. Lalta Tewari(3) Learned counsel for the defendant, on the other hand, has relied on the decision of the Supreme Court in Gulab Rai v. Manphool Bai, (4) for the proposition that a suit means a suit from the stage of the plaint till the stage of the final decree which disposes of the suit. He has also relied on the Full Bench decision of this Court in Municipal Board, Benares v. Kandhjya Lal.(5) We, however, need not go into this question as even on the assumption that under Section 5 a suit can be abated not from the stage of the plaint but from the stage of the preliminary decree, the order of the Board of Revenue cannot be deemed to be a nullity. It will only be an order passed on erroneous interpretate of Section 5(2) of the Act, the effect of which will be that the order of the Board—may become liable to quash but cannot be deemed to be a nullity it will remain binding till avoided and quashed. The order had been passed in proceedings arising out of the suit. The Board of Revenue had the jurisdiction and power to dispose of the revision and in disposing it of had the jurisdiction to be whether the suit was liable to abate by reason of Section 5(2) of the Act or entitled to be continued. The plaintiffs in the present suit were parties in that revision. The Board of Revenue was a court superior to the trial court and had power to hear and decide revisions in respect of proceedings in the trial court. In such circumstances the order of the Board must be deemed to be an order passed in exercise of its jurisdiction and not an order passed in a subject-matter no cognizable by it.

    8. Learned counsel relied on Prem Rai v. D.L.F.H and Co. Ltd.(6) for proposition that the Board of Revenue will be deemed to be exercising a jurisdiction not vested in it by law. That was a case which arose from a revision decided by the High Court in exercise of its powers under Section 115 of the Code of Civil Procedure. The court was interpreting clause (c) of subsection (1) of Section 115 C.P.C and not clause (a) thereof. Clause (c) deals with exercise of jurisdiction illegally or with material irregularity. While clause (a) deals with exercise of jurisdiction not vested in a court. The Supreme Court had held that the case fell under clause (c) of Section 115 as the subordinate court had acted with material irregularity or illegality in exercise of its jurisdiction. This case, therefore, does not go to prove that when the Board exercised its jurisdiction under Section 5(2) of the Act, it exercised a jurisdiction not vested in it by law.. It can at the most be an exercise of jurisdiction in which an error of law was committed. Learned counsel in support of his contention that the order of the Board of Revenue is a nullity relied on the decision in Bombay Gas Co. Ltd. v. Gopal Bhiva(7) In that case the Tribunal had given an award which was beyond the scope of the reference and the Labour Court exercising powers under Section 33-C of the Industrial Disputes Act had refused to act upon it. In these circumstances Their Lordships held that the award of the Commissioner, which was beyond the scope of the reference was a nullity. It was observed:

    “Industrial Tribunals which deal with industrial disputes referred to them under Section 10(1)(d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel out-side the terms of reference and deal with matters not included in the reference, subject of course, to incidental matters which fall within their jurisdiction.”

    9. In the present case, the Board of Revenue was not a Tribunal of Limited jurisdiction and had power to decide fully and completely the matter under Section 5(2) of the Act. The other case relied upon by the learned counsel, India S pinning and Weaving Co., Ltd. v. Clima Industrial Syndicate, (8) also is of no assistance as it only lays down that if a court had no jurisdiction over the subject-matter, its judgment and order are mere nullities and need not be set aside. The court, which passed the decree, was held to have had no jurisdiction regarding the subject-matter of dispute. Again, in reference under Section 113 read with Order 46, Rule 1, C.P.C AIR 1925 Calcutta 906, it was held that a decree passed by court having no jurisdiction in regard to the subject-matter of litigation is nullity. Similarly in Lakshmi Chand v. Madho Rao, (9) it was held that a court having no jurisdiction cannot pass a valid or binding decree. On the facts of the case the court was held have got no jurisdiction decide the matters, there is no dispute that if a court has no jurisdiction over the subject-matter of is barred from taking cognizance, its, decree is a nullity. The decision in Kunja Mohan Chankravarty v. Manindra Chandra Roy Choudhari, (10) also is in a case in which the subject-matter was outside the jurisdiction of the court. In the present case the law is to the contrary. Section 5(2) of the Act enjoins on the Board a duty to decide the matter if a notification has been issued in respect of a particular land under Section 4 of the Act and the suit relates to declaration and determination of rights of parties, to the land.

    10. The matter was explained by the Judicial Committee in Rajwant Pd. v. Ram Rattan, (11):

    “Their Lordships think it is very trite and very familiar that a challenge of the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction. The former has reference to the merits of the case, and the merits of this case have been in all points directly and substantially determined between the same parties as are now in contention at their Lordship's Bar. The familiar principle is laid down in a series of case, of which the judgment of Lord Hobhouse in 1901 ILR 25 Bom. 337 (PC) is not a very remote example.”

    11. This observation was relied upon in Kunheema Umma v. P. Balkarishna. (12) The observations of Henry Campbell Black in his Treatise on the Law of Judgments (Second Edition), Volume I, paragraph 245, are as under:

    “Where the Court has jurisdiction of the parties and the subject-matter in the particular case, its judgment, unless reversed or anulled in some proper proceeding, is not open to attack or impeachment, by parties privies, in any collateral action or proceeding whatever. ‘The doctrine of this Court, and of all the courts of this country, is firmly established, that if the, Court in which the proceedings took place had jurisdiction to render the judgment which it did, no error in its proceedings which did not affect the jurisdiction will render the proceeding void, nor can such errors be considered when the judgment is brought collaterally into question.’ This principle is not merely an arbitrary rule of law established by the Courts. But it is a doctrine which is founded upon reason and the soundest principles of public policy.”

    12. Kunheema Umma's case (supra) in our view, lays down the correct principle. It is clear that jurisdiction of a Tribunal does not depend upon the correctness of its decision. A power to decide a dispute or a matter necessary gives the Tribunal the power to decide it rightly or even wrongly. A wrong decision does not make the order null and void.

    13. As the notification under Section 4 of the Act had been issued in respect of the land in dispute and the suit related to the determination of the rights of the parties and the matter had gone before the Board of Revenue validity and in accordance with law and the Board of Revenue was considering the revision in exercise of its jurisdiction, it did have jurisdiction to decide the question about the abatement of the suit under Section 5(2) of the Act. If the Board had jurisdiction to decide the question whether the suit had abated or not, its decision one way or the other can only suffer from an error of law:

    “it cannot be held to be passed in exercise of jurisdiction not vested init by law. Hence, so long as the order of the Board of Revenue passed under Section 5(2) of the U.P Consolidation of Holdings Act stands, the preliminary decree passed in the suit will be deemed to be wiped off the record and the suit from the stage of the plaint will be deemed abated. Our answer to the first question, therefore, is in the negative. In view of our answer to the first question, the second question does not arise.

    14. The third question, in our opinion, is a question of fact and not a question of law as the answer to this question will depend upon the consi deration of evidence and determination of facts.

    15. As regards question Nos. 4 and 5, they do not arise in the appeal. We would have normally referred this matter to the learned Judge who had referred the questions, but since he is not avail able, we have considered it proper to see whether these questions arise in the appeal. As already indicated, the first appellate court, which passed the order of remand, did not decide any such question. It has only held that the order of the Board of Revenue was a nullity and, therefore, the preliminary decreed passed in the partition suit had finally determined the shares of the parties for purposes of the suit, The first appellate court while disposing of the appeal, had not considered any of these two questions. These questions are, therefore, not necessary to be decided in the appeal against the order of remand unless the judgment of the first appellate court proceeded on the basis of such questions. We accord ingly leave these two questions un answered. The matter will now be listed before a learned single Judge for hearing of of the appeal.

    16. Answered Accordingly.

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    Comments

    Ram Garib v. Bhagwati Din
    (Apr 15, 1976)