Mehboob v. Man Singh & Ors.

were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that the area of the suit land mentioned in the head note and para 1 of the plaint is 03-08-00 bighas and not 01-19-00 bighas as recorded in the Jamabandi. A consequential relief of possession of the suit land was also prayed. It was asserted that the plaintiff is the owner of the suit land. The area of the suit land is 03-08-00 bighas, but it was wrongly mentioned in the field book as 01-19-00 bighas. Defendant No. 1 occupied the suit land by taking advantage of wrong entries. He was requested to deliver possession, but in vain. Hence, the suit was filed for seeking the relief mentioned above.

The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi, and cause of action, and the plaintiff being estopped from filing the suit by his act and conduct. The contents of the plaint were denied on merits. It was 3 asserted that the suit was filed without any cause of action. Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

Learned Trial Court framed the following issues on

27.03.2001:

Whether the land comprised in Khasra No. 909, Khatta/Khatouni No. 115/121 situated in Mohal Shikari, Pargana Tissa, Tehsil Churah, District Chamba is 3 Bighas 8 Biswas and not 1 Bigha 19 Biswas as alleged? OPP.

2. Whether the plaintiff is entitled for possession of the suit land as alleged? OPP.

3. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD.

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiff has no cause of action? OPP

Whether the plaintiff has locus standi to file the present suit? OPP.

Relief.

6. The parties were called upon to produce the evidence. The plaintiff examined Rajinder Singh (PW-1), Chatar Singh (PW-2), Bhikho Ram (PW-3), himself (PW-4), Thakur Dass (PW-5) and Hardyal (PW-6). The defendant examined himself (DW-1), Shiv Dayal (DW-2) and Paras Ram (DW-3). 4

7. The learned trial Court held that evidence on record was insufficient to prove that the area of the suit land was 3 bighas 8 biswas and not 1 bigha 19 biswas. The suit land was demarcated many times. The revenue entries carried the presumption of correctness, and evidence on record was not sufficient to rebut the presumption. Section 171 of the HP Land Revenue Act bars the jurisdiction of the Civil Court regarding the correction of any entry in the record of rights, and the suit was not maintainable before the Civil Court. The plaintiff had no cause of action to file the present suit. Hence, the learned trial Court answered issues no. 3 to 5 in the affirmative, the rest of the issues in the negative and dismissed the suit.

Being aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Chamba (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned trial Court that the entries in the revenue record carried with them a presumption of correctness and the plaintiff’s evidence was not sufficient to rebut the presumption. The demarcations obtained by the plaintiff were not sufficient to prove his case. The plaintiff had 5 earlier filed a civil suit, which was withdrawn without obtaining any permission. The present suit was not maintainable before the Court. There was no infirmity in the judgment and decree passed by the learned trial Court. Hence, the appeal was dismissed.

Being aggrieved by the judgments and decrees passed by the learned Courts below, the plaintiff filed an appeal which was admitted on 16.05.2007, on the following substantial questions of law.

1. Whether there has been misreading and mis- appreciation of oral as well as documentary evidence by both the Courts below.

2. Whether the learned First Appellate Court erred in holding the suit to be not maintainable?

This Court held on 20.08.2021 that the jurisdiction of the Civil Court to correct the revenue entries was barred under Section 171 of the HP Land Revenue Act. The learned trial court had rightly held the suit to be not maintainable. However, this Court proceeded to remit the matter to the learned first appellate Court for re-demarcation of the suit land and examine the validity or otherwise of the proceedings drawn by the Revenue Officer. 6

Learned Appellate Court framed the following issues:

1. Whether the correction proceedings/orders of the revenue authority qua the suit land are legally valid?

2. Whether defendants have encroached on plaintiff’s land?

Learned Appellate Court held that the area of the suit land was wrongly calculated in the field book. The area should have been 3 bighas and 8 biswas, but was wrongly recorded as 1 bigha and 19 biswas because of the calculation error. Defendant No. 1, Maan Singh, is in possession of the suit land measuring 1 bigha and 2 biswas. Hence, the learned Appellate Court submitted the findings to this Court.

When the matter was listed before this Court, a submission was made on behalf of respondent no.1 that the Court had earlier confirmed the finding of the learned trial Court on issue No.4 and held that the civil Court had no jurisdiction for the correction of the revenue entries in view of the bar contained in Section 171 of the HP Land Revenue Act. Therefore, the order passed by this Court remitting the matter to the learned appellate Court and the findings recorded by the learned appellate Court were without jurisdiction. This Court framed the 7 following substantial questions of law on 01.06.2026 based on these submissions:

1. Whether the Court had the jurisdiction to remit the matter to the learned Appellate Court after specifically holding that the civil court had no jurisdiction to entertain the civil suit?

2. What is the effect of non-assailing of the judgment passed by this Court on 20.08.2021?

I have heard Mr Anand Sharma, learned Senior Advocate, assisted by Mr Karan Sharma, learned counsel for the appellant, Mr. Aman Sood, learned counsel for the respondent No. 1, and Mr. Jagan Nath, learned counsel for the respondents No.2 to 7.

Mr Anand Sharma, learned Senior Advocate, for the appellant submitted that this Court had the jurisdiction to remand the matter to the learned appellate Court as per Section 107 read with Order 41, Rule 25 of the CPC. No objection was raised to the order of remand passed by this Court by respondent no. 1, and it is impermissible for respondent no. 1 to submit that the Court had no jurisdiction to remand the matter. This Court is a Court of record, and it is highly improper to argue before this Court that the order passed by the Court is a nullity, which should not be given effect to. This Court is bound by the order 8 passed by this Court earlier by the doctrine of precedent, and the only course open to this Court is to refer the matter to the larger Bench in case the Court does not agree with the judgment of the Co-ordinate Bench of this Court. The learned appellate Court has found on facts that the area of the suit land is 3 bighas and 19 biswas and defendant no. 1 is in possession of the part of the suit land. He prayed that the present appeal be allowed, and possession be delivered to the appellant.

Mr Aman Sood, learned counsel for respondent no.1, submitted that once this Court had held that it had no jurisdiction, it could not have remanded the matter to the learned appellate Court. Respondent No. 1 was not to challenge the order because the finding that the Civil Court had no jurisdiction was not against him but against appellant/plaintiff. An order passed by a Court having no jurisdiction is coram non judice, and its invalidity can be set up as and when the order is sought to be enforced. In the present case, the appellant is seeking to enforce the order by praying for a decree in his favour, and the respondent no. 1 can claim the invalidity of the order. He relied upon the following judgments in support of his submissions: 9  Sushil Kumar Mehta vs. Gobind Ram Bohra (dead) through his LRs: (1990) 1 SCC 193;  P.K. Vijayan vs. T.A. Jayaprabha passed in OP© No. 389 of 2016(0), decided on 2.02.2016; and  Kiran Singh and others vs. Chaman Paswan and others (1954) AIR (SC) 340.

I have given a considerable thought submissions made at the bar and have gone through the records carefully.

This Court has already decided the matter on the basis of substantial questions of law framed on 16.05.2007 vide judgment/order dated 20.08.2021; hence, these questions of law are not required to be reconsidered. Substantial question of law No.1: 19 The learned trial Court had specifically held while deciding issue no. 4 that the jurisdiction of the Civil Court to go into the correctness of the revenue record was barred and the Civil Suit before the Court was not maintainable. However, the learned trial Court proceeded to record findings on the other issues.

The finding recorded by the learned trial Court on issue No. 4 was confirmed by this Court vide order dated 10

20.08.2021, and it was specifically held that the jurisdiction of the Civil Court is barred under the provision of Section 171 of the HP Land Revenue Act. However, this Court also remitted the matter to the learned appellate Court for recording the findings on the issues. It was laid down by the Hon'ble Supreme Court in Athmanathswami Devasthanam Vs. K. Gopalaswami Ayyangar AIR 1965 S.C. 338, that once the Court concludes that it had no jurisdiction, it cannot give any findings on the merits. It was observed: -

13. The last point urged is that when the civil court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of a certain amount paid by the respondent. This contention is correct. When the Court has no jurisdiction over the subject matter of the suit, it cannot decide any question on the merits. It can simply decide on the question of jurisdiction and, concluding that it had no jurisdiction over the matter, had to return the plaint.

Therefore, once the learned trial Court or this Court had concluded that the Civil Court does not have the jurisdiction to decide the matter, no finding on merit could have been recorded. The matter could not have been remitted to the learned appellate Court, and the findings recorded by the learned trial Court, and the order of remand passed by this Court 11 are non est and without jurisdiction. It was laid down by the Hon’ble Supreme Court in Kiran Singh v. Chaman Paswan, (1954) 1 SCC 710: 1954 SCC OnLine SC 1 that an order without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon. It was observed at page 717: - 6…. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties….”

This position was reiterated in Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193: 1989 SCC OnLine SC 328, and it was held that consent will not confer that jurisdiction. It was observed at page 205: jurisdiction, its exercise of

26….A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the lacks inherent root of jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. 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 12 decree, which cannot be cured by consent or waiver of the party…... If the court inherently lacks jurisdiction, consent cannot confer jurisdiction. Where certain statutory 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.

It was held in Bhoruka Textiles Ltd. v. Kashmiri Rice Industries, (2009) 7 SCC 521: 2009 SCC OnLine SC 1177 that where the civil court’s jurisdiction is ousted, any decree passed by it is a nullity. It was observed at page 525:

12. If the civil court's jurisdiction was ousted in terms of the provisions of Section 22 of the Act, any judgment rendered by it would be coram non judice. It is a well- settled principle of law that a judgment and decree passed by a court or tribunal lacking inherent jurisdiction would be a nullity. In Kiran Singh v. Chaman Paswan [AIR 1954 SC 340], this Court held: (AIR p. 342, para 6)

6. … It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in jurisdiction, collateral proceedings. A defect of whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.

(See also Chief Engineer, Hydel Project v. Ravinder Nath [(2008) 2 SCC 350: (2008) 1 SCC (L&S) 940], SCC p. 361, para 26.)

Therefore, respondent no.1 is within his right to plead that the order of remand passed by this Court was a nullity 13 because of the findings that the Court had no jurisdiction was a nullity.

It was submitted that this Court is bound by the decision of the Coordinate Bench and it is impermissible for this Court to hold that the order was a nullity without a review petition. This submission cannot be accepted because this Court is not differing from the order passed by this Court on

20.08.2021, that the civil court has no jurisdiction. This Court is trying to determine whether it can pass a decree based on the findings recorded by the learned appellate Court after the remand. Therefore, there is no question of differing from the decision of the Court. The Court is confronted with a decision having two irreconcilable parts: one, that it has no jurisdiction and second, remanding the matter to the learned appellate Court. If this Court enforces the consequences arising after the remand, it will be ignoring the earlier order that the Court has no jurisdiction. Thus, this Court has to reconcile these two irreconcilable parts of the order, and it cannot be said that this Court is differing with the decision of the Co-ordinate bench, which would require a reference to the larger Bench. 14

It was submitted that this is a Court of record and it is impermissible for any person to say that the decision given by it is a nullity. This submission cannot be accepted because of the binding precedent of the Hon'ble Supreme Court noticed above, wherein it has been specifically held that the invalidity of the order can be set up as and when the order is sought to be enforced. Therefore, respondent no. 1 is within his rights to set up the invalidity of the order, especially when the Court itself had recorded earlier that it had no jurisdiction.

Therefore, is held that the Court had no jurisdiction to remand the matter after concluding that it had no jurisdiction to entertain the Civil Suit and this substantial question of law is answered accordingly. Substantial question of law No.2:

The order of this Court dated 20.08.2021 held that it had no jurisdiction to determine the rights of the parties. It adversely affected the appellant/plaintiff, who had filed suit before the Court. Therefore, unless this finding is set aside, the subsequent proceedings would fall through, as these would be conducted by a Court having no jurisdiction and are a nullity. 15 Thus, this Court would be bound by the decision that the Civil Court had no jurisdiction to entertain the Civil Suit and its jurisdiction is barred, and it will not be in a position to enforce the consequences of the remand and the substantial question of law is answered accordingly. Final order

In view of the above, the present appeal is partly allowed, and the judgments and decrees passed by the learned Courts below dismissing the suit are ordered to be set aside, and the plaint is ordered to be returned to the plaintiff for presentation before the appropriate Court having jurisdiction.

The record of the learned Courts below be returned with a copy of this judgment for the information of the learned Trial Court. 31st August, 2026 (ravinder) (Rakesh Kainthla) Judge