Chander Singh v. Durga Singh

respondent no.5 decreed the said suit in favour of Mr. Heera Singh and against the present petitioner vide judgment and order dated 28.12.1998. During the pendency of trial before the court of Assistant Collector, Heera Singh died and respondent nos.6 to 9 being his LRs were substituted on his behalf. Petitioner being aggrieved by the said order, filed Z.A. Appeal No.69/51 of 1998-99 (78 of 1999-2000) Chandra Singh vs. Durga Singh & others, the court of Additional Commissioner (Nyay) Kumaon Mandal, Nainital which was also dismissed by order dated 28.08.2001. But, a remand order was also passed for considering the plea of adverse possession which was raised for the first time in the said appeal. Both the parties filed second appeal against the order of appellate court with S.A. No.5 of 2001-02 (petitioner’s appeal) and S.A. No.6 of 2001-02 (respondents’/defendants’ appeal). The petitioner’s appeal was dismissed again vide order dated 28.08.2002. The petitioner is now before this Court challenging the aforesaid orders.

3. Learned Senior Advocate appearing for the petitioner submits that the initial suit which was filed in the trial court was vague as the original plaintiff did not disclose the basis on which he claimed Bhoomidhari rights over the land, however, he filed alleged sale deeds dated 20.08.1971 (sic 28.08.1971), 2

05.06.1974, 21.01.1986 which although have not been proved but the sale deeds dated 20.08.1971 (sic

28.08.1971) & 05.06.1974 are not in dispute, however, sale-deed dated 21.01.1986 is disputed. He further submits that the bare perusal of the aforesaid two sale deeds clearly show that the original plaintiff was owner of the land below the line AA, BA, SA, DA but he very cleverly instead of specifying that he is claiming land of Plot Nos.1233 and 1235 both below the line AA, BA, SA, DA deliberately claimed ownership even on the plots above the aforesaid line. He also submits that the sale deed dated 21.01.1986 was never proved and is also the basis of the suit, he submits that Shri Heera Singh was alive on the date of evidence, but he did not get himself examined and moreover no transferor, witness, scribe were examined. On the other hand, the present petitioner of the writ petition claimed all the land above the line of AA, BA, SA, DA which they have purchased from Shri Ram Chandra Khanna vide sale deed dated 02.12.1998 and also submitted oral evidence to prove the registered sale deed dated

02.12.1998. Ram Chandra Khanna had purchased it from Duglus Bruce, Dunkin Bruce, Trevior Bruce, S/o A.L. Bruce, Mrs. K. Bruce, W/o A.L. Bruce vide sale deed dated 13.09.1971. He submits that in spite of the cogent evidence, both the learned courts below have committed irregularity in ejecting him.

4. The main contention of the learned Senior Advocate appearing for the petitioner is that the second appellate court i.e. the court of Additional Chief Revenue Commissioner, Nainital, Uttarakhand erred in law in passing the impugned order dated 28.08.2002 3 as, Section 331 of the Act, 1950 incorporates Section 100 CPC and as per the amended provisions of Section 100 CPC and a second appeal will lie only if a substantial question of law is framed by the second appellate court and in the present case in hand, it is apparent that no substantial question of law was framed by the second appellate court while deciding the second appeal. Therefore, the impugned order dated

28.08.2002 is non est in the eyes of law. He placed reliance upon the judgment rendered by Hon’ble Supreme Court in the case of State of Uttarakhand vs. Mohan Singh & others; reported in (2012) 13 SCC 281.

5. The learned counsel appearing respondent nos.3 & 5 relying upon their counter affidavit submits that Heera Singh, the predecessor of respondent nos.6 to 9, filed a suit under Section 209 of the Act, 1950. The said suit was decided by respondent no.5 after giving parties opportunity of hearing and leading evidence and only thereafter, the suit was decreed. He further submits that respondent nos.1, 2 & 5 have passed the impugned judgment and decrees in accordance with law and after considering the material available on record.

6. The learned counsel for respondent nos.6 to 9 submitted that the actual facts of the case are that late Shri Heera Singh was the father of answering respondent nos.6 to 8 and grandfather of respondent no.9 and was a Bhoomidhar Agriculturist in Village Belwakhan, District Nainital and purchased disputed land from Mr. A.L. Bruce and Mrs. K. Bruce vide registered sale deed dated 20.08.1971 and also 4 from Mrs. B. Nair vide registered sale deed dated

05.06.1974 and from Smt. Uduli Devi vide registered sale deed dated 21.01.1986. He submits that since Mr. Douglus Bruce, Dunken Bruce, Trevior Bruce, K. Bruce were not remained the owners of the disputed property, therefore, they could not have sold it to Shri Ram Chandra Khanna who later on allegedly sold it to petitioner in the year 1998 vide sale deed dated

02.12.1998.

7. He further submits that the contention of not framing substantial question of law was never raised by the petitioner before the court of Additional Chief Revenue Commissioner, Nainital and moreover, Additional Chief Revenue Commissioner committed no illegality in passing the impugned order as the second appeal was heard after duly complying with the provisions of unamended Section 100 CPC. He placed reliance upon the judgment of Hon’ble Supreme Court in the case of State of Uttarakhand vs. Mohan Singh & others; reported in (2012) 13 SCC 281.

8. After hearing the rival contentions of the parties, the moot question before this Court for consideration is whether sub-Section 4 of Section 331 of the Act, 1950 carries with it the amended Section 100 CPC consequently making it obligatory for the second appellate court i.e. Board of Revenue (earlier named as Additional Chief Revenue Commissioner) to frame substantial question of law.

9. It is a settled principle of law that a subsequent legislation when makes a reference to earlier legislation as to make the provisions of the 5 earlier legislation applicable to matters covered by later legislation such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute or (ii) a legislation by incorporation where under the provision of the earlier legislation to which reference is made are incorporated into the later legislation.

10. The question how the above two principles operate came up for consideration in U.P. Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC 467] before a three-Judge Bench of this Court and it was held as follows: (SCC pp. 480-81, para 17) reference to which legislation “17. A subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made after the date incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation. In the words of Lord Esher, M.R., the legal effect of such incorporation by reference ‘is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all’. (See Wood's Estate, In re [(1886) 31 Ch D 607 (CA)] , Ch D at 6 referential legislation or

615.) As to whether a particular legislation falls in the legislation by category of incorporation depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances. The legal position has been thus summed up by this Court in State of M.P. v. M.V. Narasimhan [(1975) 2 SCC 377 : 1975 SCC (Cri) 589] : (SCC p. 385, para 15 : SCR p. 14) ‘15. … Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases: independent part of integral and (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.’”

11. The law is, therefore, clear that a distinction has to be drawn between a mere reference or citation of one statute into another and incorporation. In the case of mere reference of citation, a modification, repeal or re-enactment of the statute that is referred will also have effect for the statute in which it is referred; but in the latter case any change in the incorporated statute by way of amendment or repeal has no repercussion on the incorporating statute.

12. This Court has no doubt that Section 331 of the Act, 1950 is an instance of legislation by incorporation and not legislation by reference. Section 331 of the Act, 1950 provides for an appeal to this Court on ‘one or more of the grounds specified in Section 100 CPC’. It is obvious that the legislature did 7 not want to confer an unlimited right of appeal, but wanted to restrict it and turning to Section 100 CPC, it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in Section 331 of the Act, 1950. The right of appeal was clearly intended to be limited to the grounds set out in the then existing Section 100 CPC. Those were the grounds which were before the legislature and to which the legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the legislature intended to restrict the right of appeal. The legislature could never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in Section 100 CPC without knowing what those grounds were. The grounds specified in Section 100 CPC might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the legislature should have thought it necessary that these changes should also be reflected in Section 331 of the Act, 1950 which deals with the right of appeal in a totally different context. This Court fails to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under Section 331 of the Act, 1950 so that Section 331 of the Act, 1950 should be inseparably linked or yoked to Section 100 CPC and whatever changes take place in Section 100 CPC must be automatically read into Section 331 of the Act, 1950. It must be remembered that the Act is a self- contained Act, 1950 dealing with abolition of Zamindari and reformulation of land tenure system and it is not 8 possible to believe that the legislature could have made the right of appeal under such a code dependent on the vicissitudes through which a section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in Section 100 CPC. The legislature clearly intended that there should be a right of appeal, though on limited grounds, and it would be absurd to place on the language of Section 331 of the Act, 1950 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. This Court must, therefore, hold that on a proper interpretation the grounds specified in the then existing Section 100 CPC were incorporated in Section 331 of the Act, 1950 and the substitution of the new Section 100 CPC did not affect or restrict the grounds as incorporated.

13. The off-shoot of the aforesaid discussion is that this Court is not inclined to interfere in the impugned judgment and order passed by Second Appellate Court i.e. Additional Chief Revenue Commissioner, Nainital as Section 331 of the Act, 1950 merely enacted the provisions of Section 100 CPC as were there when Section 331 of the Act, 1950 was incorporated, therefore, the second appellate court was not bound to form substantial question of law while deciding the second appeal. The judgment and order passed by learned Second Appellate Court is a detailed one and a sound judgment on facts as well. This Court in exercising powers under Article 227 of 9 Constitution of India does not want to interfere in the well reasoned judgment of the Second Appellate Court. Accordingly, the present writ petition is dismissed.

14. Interim order, if any, also stands vacated. 15 . Pending application, if any, stands disposed of. AK (Pankaj Purohit, J.)

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