# Suresh Chandra Srivastava & Ors v. Sub Divisional Officer, Tehsil Sadar , Jhansi & Ors

- **Citation:** (2023) 4 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chandra-srivastava-ors-v-sub-divisional-officer-tehsil-sadar-jhansi-ors-50050
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code -
Sections 9 & 47 - UP Tenancy Act, 1939 -
Section 242 - Maintainability of civil suit -
Earlier, an order declaring the order of the
Revenue Court null and void was passed
by the Civil Court, which has also been
affirmed by Appellate Court and which has
remain unchallenged - Jurisdiction of Civil
Court challenged - Held, S. 9 of the C.P.C.
provides for filing of suit unless barred
expressly or impliedly - Section 47 of
C.P.C. shall not be applicable in the suits
covered under the provision of Section
242 of Act of 1939 - Held further, once it
is undisputed that the order of Revenue
Court dated 20.07.1996 has been declared
null and void by the Civil Court, which has
been affirmed by the Appellate Court, no
relief can be granted to petitioner. (Para
20 and 21)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner in the disputed land is void ab
initio in law.

(h) Even assuming that a person
in possession could make a grievance, no
matter without much gain in the ultimate
analysis, the question is whether such
grievance could be made long after the
alleged violation of Section 10(5). In any
such situation the owner or the person in
possession must be deemed to have
waived his right under Section 10(5) of
the Act. Any other view would give a
licence to a litigant to make a grievance
not because he has suffered any real
prejudice that needs to be redressed but
only because the fortuitous circumstance
of a Repeal Act tempted him to raise the
issue regarding his dispossession being in
violation of the prescribed procedure.

(i) The question whether actual
physical possession was taken over
remains a seriously disputed question of
fact which is not amenable to a
satisfactory determination by the High
Court in proceedings under Article 226
of the Constitution. However in its
discretion, this court may decide the
question
of
possession
if
there
are
sufficient evidences to establish that
possession was not taken by the State
Government and the land owner is
continuing in possession.

(j) In view of the facts briefly
noted in paras 3 to 6 above, the writ
petition is also not even entertainable on
the ground of laches.

(k) In the present set of facts, we
have already noted that the disputed land
vested in the State and the alleged sale deed
is totally null and void in view of Section
10(4) of the Act, 1976, apart from the fact
that the power of attorney was withdrawn
much before the execution of the alleged
sale deed. The petitioner being an alleged
purchaser, has even no locus standi. Thus,
on the present set of facts, we also find that
it is not a fit case to exercise equitable
discretionary jurisdiction.

18. For all the reasons aforestated and
also in view of the law laid down by Hon'ble
Supreme Court in M.S. Viswanathan and
others (supra), Sulochana Chandrakant
Galande (supra), Adarsh Seva Sahkari
Samiti Limited (supra), Surendra Pratap
and others (supra), Bhaskar Jyoti Sharma
and others (supra) and also the law laid
down by a coordinate bench of this court in
the case of Shiv Ram Singh (supra), we do
not find any merit in this writ petition, apart
from the fact that the petitioner has no locus
standi and the writ petition is also hit by
laches. Consequently, the writ petition is
dismissed.
----------
(2023) 4 ILRA 926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-C No .26259 of 2014

Suresh Chandra Srivastava & Ors.
 ...Petitioners
Versus
Sub Divisional Officer, Tehsil Sadar ,
Jhansi & Ors. ...Respondents

Counsel for the Petitioners:
Sri R.C. Singh, Sri K.P. Tiwari, Sri Tarun
Verma, Sri Vinod Kumar, Sri Bajinder Singh,
Sri Narayan Dutt Shukla, Sri Anand Varma

Counsel for the Respondents:
4 All. Suresh Chandra Srivastava & Ors. Vs. Sub Divisional Officer, Tehsil Sadar, Jhansi & Ors. 927
C.S.C., Sri K.P. Tiwari, Sri K.K. Tiwari, Sri
Rajeev Kumar, Sri S.R. Srivastava, Sri
Shashi Nandan (Sr. Adv.)

A. Civil Law - Civil Procedure Code -
Sections 9 & 47 - UP Tenancy Act, 1939 -
Section 242 - Maintainability of civil suit -
Earlier, an order declaring the order of the
Revenue Court null and void was passed
by the Civil Court, which has also been
affirmed by Appellate Court and which has
remain unchallenged - Jurisdiction of Civil
Court challenged - Held, S. 9 of the C.P.C.
provides for filing of suit unless barred
expressly or impliedly - Section 47 of
C.P.C. shall not be applicable in the suits
covered under the provision of Section
242 of Act of 1939 - Held further, once it
is undisputed that the order of Revenue
Court dated 20.07.1996 has been declared
null and void by the Civil Court, which has
been affirmed by the Appellate Court, no
relief can be granted to petitioner. (Para
20 and 21)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Civil Appeal No. 658 of 2008: Chief engineer,
Hydel Project & ors. Vs Ravinder Nath & ors.
decided on 24.01.2008
2. Civil Appeal No. 1346 of 2010: Milkhi Ram Vs
Himachal Pradesh St. Electrity Board, decided
on 08.10.2021
3. Civil Appeal No. 5617 of 1999: Balvant N.
Vishwamitra & ors. Vs Yadav Sadashiv Mule &
ors., decided on 13.08.2004
4. Shiva Poojan Dubey & anr. Vs Baban Lal and
Ors: AIR 1959 Pat 13.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.
 Heard
Sri
Bajinder
Singh,
Advocate, holding brief of Sri Vinod
Kumar, learned counsel for the petitioners,
learned standing counsel for respondent
Nos. 1 & 2 and Sri Shashi Nandan, learned
Senior Counsel assisted by Sri K.P. Tiwari,
learned counsel for private respondents.

2. Present petition has been filed with
the following prayers:

"i. issue a writ, order or direction
in the nature of certiorari calling for
record
and
quash
the
order
dated
22.02.2014, so far as it is against the
petitioners.

ii. Issue a writ, order or direction
in the nature of mandamus commanding
Sub Divisional Officer to issue fresh
warrant and Parwana Amaldaramad and
put the petitioners into possession over the
entire area of plots comprising in Khewat
No. 22 including entire area of plot no.
1380."

3. The case was heard on 3.07.2019
and the Court has passed the following
order:

"Learned
counsel
for
the
petitioners submits that a supplementary
affidavit has been filed in March 2018 and
the substitution application has been filed
in March 2019, however, the same are not
on record.

Office is directed to trace out and
place the same on record.

By means of present petition, the
petitioner has sought a relief for handing
over the possession of the land in question
by
Sub-Divisional
Magistrate,
Jhansi
pursuant to the order and decree of the
revenue court dated 20.07.1996 and
24.07.1996 respectively which have stood
affirmed upto the highest court of appeal
under the revenue law of the State. An
order of Sub-Divisional Magistrate, Jhansi
928 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 12.12.2011 has also been annexed as
Annexure No. 9 to the writ petition,
whereunder
the
then
Sub-Divisional
Magistrate, Jhansi considered all aspects
of the matter and directed for execution of
the order and decree dated 20.07.1996 and
24.07.1996 respectively and consequential
action was directed to be taken in respect
to the revenue entries of the land as well.
However, it transpires that subsequently on
some objections filed by the contesting
respondents, the Sub-Divisional Magistrate
came to pass an order dated 22.02.2014 by
which it virtually rejected the request of
petitioner for carrying out the order dated
12.12.2011 and hence this petition was
preferred challenging the said order as
well. However, it is admitted to the parties
that subsequently, during pendency of the
present
writ
petition,
the
Additional
Commissioner
(Administration),
Jhansi
Division, Jhansi allowed the revision filed
by the judgment debtors themselves and set
aside the order dated 22.02.2014.

In view of the above fact
emerging out of the pleadings raised by the
parties as far as the prayer no. 1 of the
present writ petition is concerned, it has
got rendered infructuous. The question is
now for consideration before this Court
regarding execution of judgment and
decree still standing in favour of the
petitioner as far as revenue courts are
concerned and the land admittedly being
agricultural land, under the state revenue
laws, it is contended that the revenue
courts are the ultimate authorities.

A counter affidavit has been filed
on behalf of the respondent nos. 1 & 2
namely the Sub-Divisional Officer, Tehsil
Sadar, Jhansi and Tehsildar, Tehsil Sadar,
Jhansi sworn by Tehsildar Rajendra
Bahadur himself in which vide para 19 it
has been stated in quite unequivocal terms
that
the
respondents
have
been
dispossessed by the state authorities and
the possession of the land in question has
got vested with the Sub Divisional Officer
and memo of possession to that effect dated
08.04.2013 has been filed.

In the face of facts that the order
of Sub Divisional Magistrate, Jhansi dated
22.02.2014 has already been set aside by
the Additional Commissioner in Revision
No. 3/35 of 2013-14 vide order dated
10.11.2017 and the possession memo also
shows that the land has been in possession
of the Sub Divisional Officer concerned,
this Court fails to understand as to why and
under what circumstances, no further
action has been taken, more especially
when the earlier order of the Sub
Divisional Officer, Jhansi dated 12.12.2011
is still surviving.

Let the Sub Divisional Officer,
Jhansi file his personal affidavit before this
Court by the next date fixed explaining as
to what further course of action has been
adopted by him after the order dated
22.02.2014 passed by him has come to be
set aside by Additional Commissioner in
revision.

List this matter on 29.07.2019
peremptorily.

A certified copy of this order be
supplied to Sri Rahul Malviya, learned
Advocate free of cost, within 48 hours, for
necessary compliance."

4. Pursuant to order of this Court
dated 03.07.2019, compliance affidavit
dated 25.07.2019 has been filed by
respondent No. 2 and it is stated in para 12
of the said affidavit that against the order
4 All. Suresh Chandra Srivastava & Ors. Vs. Sub Divisional Officer, Tehsil Sadar, Jhansi & Ors. 929
dated
20.07.1996,
passed
by
SubDivisional Officer, Jhansi, an Orginal Suit
No. 319 of 2010 has been filed before
Additional Civil Judge(J.D.), Court No. 11,
Jhansi and vide order dated 10.04.2015, the
said suit was allowed declaring the order
dated 20.07.1996 as null and void. Against
the order dated 10.04.2015, Civil Appeal
No. 31 of 2015 has been filed by the
petitioner-defendant which has also been
dismissed by the appellate court, i.e.
Additional District Judge, Jhansi vide order
dated 8.4.2021.

5. The facts mentioned hereinabove as
well as in order dated 03.07.2019 of the
Court have not been disputed by the
counsel for the parties.

6. Learned counsel for the petitionerdefendant firmly submitted that present
dispute is covered under Section 242 of the
U.P.
Tenancy
Act,
1939(hereinafter
referred to as, 'Act of 1939') and therefore,
Civil Suit No. 319 of 2010 is not
maintainable. He also submitted that during
the pendency of the execution proceeding,
Section 47 of Code of Civil Procedure,
1908 (hereinafter, referred to as, 'C.P.C.')
bars for filing a fresh suit for the same
cause of action. The sole argument of
learned counsel for the petitioner is that
once the Civil Court is having no
jurisdiction, any order passed by the Civil
Court cannot be given effect and once the
order of Revenue Court has attained
finality up to Board of Revenue, it is
required on the part of revenue authorities
to comply the same.

7. He next submitted that during the
course of execution proceeding, once the
possession
has
been
taken
by
the
respondent No. 1, S.D.M. it is required on
the part of respondent No. 2, Tehsildar to
hand over the possession to petitionerdefendant ignoring the order of Civil Court
dated 10.04.2015 and order of Appellate
Court dated 08.04.2021.

8. He also submitted that question of
jurisdiction can be raised at any stage of
proceeding as it goes to the root cause of
dispute.

9. In support of his contention,
learned counsel for the petitioner placed
reliance upon the judgment of Apex Court
in Civil Appeal No. 658 of 2008: Chief
engineer, Hydel Project & Ors. Vs.
Ravinder Nath & Ors. decided on
24.01.2008, Civil Appeal No. 1346 of
2010: Milkhi Ram Vs. Himachal Pradesh
State
Electrity
Board,
decided
on
08.10.2021, Civil Appeal 5617 of 1999:
Balvant N. Vishwamitra And Ors. Vs.
Yadav Sadashiv Mule (D) Through LRs.
And Ors., decided on 13.08.2004 Judgment
of Patna High Court in Shiva Poojan
Dubey And Anr. Vs. Baban Lal And Ors:
AIR 1959 Pat 13.

10. Sri Shashi Nandan, learned Senior
Counsel for the private respondents firmly
submitted that there is no dispute on the
point that Civil Court vide order dated
10.04.2015 passed in Suit No. 319 of 2010
has declared the order dated 20.7.1996 as
null and void, against which Civil Appeal
No. 31 of 2015 was filed by the petitioner,
which has also been dismissed by the
appellate court vide order dated 8.4.2021.
In Suit No. 319 of 2010, an issue was
framed that as to whether order dated
20.07.1996 passed by Deputy Collector,
Jhansi in Case No. 1/93-94 : Suresh
Chandra Vs. Ram Dayal under Section 80
of U.P. Tenancy Act was illegal or a nullity
due to lack of jurisdiction. The question
was decided in favour of plaintiff-
930 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent. The order dated 10.04.2015
was affirmed by the Appellate Court vide
order dated 8.4.2021, therefore, the only
remedy available to the petitioner is to file
second appeal under Section 100 of C.P.C.

11. He also pointed out that civil suits
are filed under Section 9 of the C.P.C.,
which clearly provides that unless there is
any
specific
bar,
Civil
Court
has
jurisdiction to try all suits of civil nature.

12. He further submitted that Section
47 of C.P.C. is only applicable for civil
suits filed under the provision of C.P.C.
and is not applicable in the suits filed under
Act of 1939. He reiterated that unless
orders of Civil Courts dated 15.042015 and
8.4.2021 are holding the field, execution
proceeding cannot be proceeded and
possession of the land in question cannot be
given to petitioner-defendant.

13. I have considered the submissions
made by learned counsel for the parties,
perused the record as well as judgment so
relied upon.

14. There is no dispute on the point
that order dated 20.7.1996 has attained
finality up to the highest Court of appeal
under the revenue law of the State and it is
also not disputed that the very same order
i.e. dated 20.7.1996 has been declared null
and void by the Civil Court in its order
dated 10.04.2015, which has been affirmed
by the Appellate Court vide order dated
8.4.2021.

15. The facts of the first case, i.e.
Chief
engineer,
Hydel
Project
&
Ors(Supra) relied upon by the learned
counsel for the petitioner is that the Suit is
to be decided on the issues which are
within the domain of Industrial Disputes
Act, 1947 and, therefore, Civil Court is
having no jurisdiction to try the suit, as it
was expressly barred and the suit could
only be adjudicated by the Labour Court. In
this case, the Apex Court ultimately
declared the order of Civil Court without
jurisdiction.

16. This case is of no use in the
present controversy for the very same
reason that order of Civil Court after
disposal of appeal has attained finality
against which no second appeal has been
preferred
by
the
petitioner-defendant.
Further, an issue of jurisdiction of S.D.M.
was before the Civil Court, in which it was
held that S.D.M. has no jurisdiction to pass
order dated 20.7.1996.

17. The Second judgment relied upon
by the learned counsel for the petitioner is
Milkhi Ram(Supra). This case is also
having a different fact, i.e. Civil Court has
no jurisdiction to entertain the claim based
upon the Industrial Disputes Act, 1947 and
further if any decree is passed by the Court
without jurisdiction, the same shall have no
force of law. In that matter, decision of
Civil Court was under challenge and in the
present case, the same is lacking as the
order of appellate court dated 8.4.2021 has
never been challenged and the same has
attained finality. Therefore, this case is also
of no use.

18. The third judgment relied upon by
the learned counsel for the petitioner is
Balvant N. Vishwamitra And Ors.(Supra)
about the argument made by learned
counsel for the petitioner with regard to
void ab initio or voidable. This judgment is
also not coming in the rescue of the
petitioner for the reason that the Civil Court
vide order dated 10.04.2015 has declared
the
order
of
S.D.M.
Jhansi
dated
4 All. State of U.P. Vs. The Presiding Officer, Labour Court, Allahabad & Anr.
931
20.07.1996 as null and void after framing
the issue of jurisdiction and the same has
also been affirmed by the Appellate Court
vide order dated 8.4.2021. Therefore order
of Civil Court dated 10.4.2015 and order of
Appellate Court dated 8.4.2021 cannot be
said to be void ab initio without its reversal
from the Higher Court and the same cannot
be ignored by the Revenue Authorities.

19. So far as fourth judgment of Patna
High Court in the matter of Shiva Poojan
Dubey(Supra), relied upon by the learned
counsel for the petitioner is concerned, that
also says that during the pendency of
execution proceeding, Section 47 of C.P.C. bars
for filing any civil suit, therefore suit No. 319 of
2010 is not maintainable. This judgment is also
not applicable to the case of the petitioner for the
very same reason that during the pendency of
execution proceeding, a fresh suit has not been
filed for the same cause of action, but order of
Sub Divisional Magistrate dated 20.07.1996 has
been challenged before the Civil Court and the
Civil Court vide order dated 10.04.2015 has
declared the order dated 20.07.1996 as null and
void. Therefore this judgment is also of no use.

20. Further, Section 9 of the C.P.C.
provides for filing of suit unless barred expressly
or impliedly and Section 47 of C.P.C. shall not
be applicable in the suits covered under the
provision of Section 242 of Act of 1939.

21. Once it is undisputed that the order of
Revenue Court dated 20.07.1996 has been
declared null and void by the Civil Court vide
order dated 10.04.2015, which has been affirmed
by the Appellate Court vide order dated
8.4.2021, no relief can be granted to petitioner.

22. In views of the facts and
circumstances of the case, no mandamus
can be issued for grant of possession to
petitioner as prayed.

23. The petition lacks merit and is
accordingly dismissed.

24. No order as to costs.
----------
(2023) 4 ILRA 931
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No .34252 of 2000

State of U.P. ...Petitioner
Versus
The
Presiding
Officer,
Labour
Court,
Allahabad & Anr. ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
C.S.C.

A. Labour Law - Industrial Disputes Act,
1947 - Sections 2(Z), 6 & 33 (C) (2) -
Workman - Definition - Junior Engineer,
whether
come
within
definition
of
workman
-
Held,
the
irrigation
department is an industry, therefore, the
employees of the irrigation department
are covered under the definition of
"Workman", therefore it is concluded that
a junior engineer is the workman u/s 6
and 2 (Z). (Para 13)
B. Labour Law - Industrial Disputes Act,
1947 - Section 33 (C) (2) - Absent from
service for which 'Leave without pay' was
granted - Labour court passed the award
holding
that
employer
was
also
responsible for payment of arrears of
salary - Validity challenged by the St. -
Held, the impugned order appears to be
non-speaking, sketchy and ex-parte - The
labour court has not considered the facts
that the 'workman' was granted 'leave