# B SHER SINGH (DEAD) BY LRS v. JOINT DIRECTOR OF CONS:OLIDATION & ORS

- **Citation:** [1978] 3 S.C.R. 982
- **Court:** Supreme Court of India
- **Decided:** 1978-05-05
- **Bench:** N. L. Untwalja, Jaswant Singh, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-sher-singh-dead-by-lrs-v-joint-director-of-cons-olidation-ors-7477
- **Pages:** 18

## Headnote

[J.P. Co11solidation of Holdings Act, 1953 Section 48-RerisiotuI[ powers.
of the Joint Director of Consolidation-ScDpe of.
By lease deed dated July 20, 1945 for a period of ten
years
beginning.
from the year 1353 fasli to the end of the year 1362 fasli, registered in his
favour, the original appellant ,Sher Singh obtained possession of ten plots of
land admeasuring 6.63 acres situate
in
Mahal
Safed,
~1ouza Mahendri,.
. a.
Sikandarpur, Pargana Amroha, District Moradabad, U.P. and was mutated in
~
the Revenue Record
~.s a "hereditary tenant".
Later, on September 6, 1945
a sale deed in respect of the proprietary right and interest in the said lands
were executed by the Zamindars in favour of Kaley Singh. Harbans Singh
and Nihal Singh, brothers of Sher Singh and one
Chajju Singh. Asserting
their right of pre-emption in respect of the afo!ementioned sale on the ground
of they being co-sharers in the Mahal in which the said plots were situate,
Jai Kumar Singh and Roop Chand Singh, respondents 2 and 3 herein brought
four suits in the Court of Munsif, Mor4.dabad against the aforesaid vendors
and vendees and the original appellant Sher Singh for possession of the land
as also for cancellation of the lease in favour of Sher Singh on the ground
that it was fictitious and fraudulent and was executed with a view to defeat
their right of pre-emption. The suits were decreed as prayed for and
on
further appeal confirmed by the Civil
Judge,
Moradabad.
Although
the
vendees did not carry an appeal, the original appellant preferred a furthel'
appeal tD the High Court. The High Court allowed the appeal. holding
that
the revenue court alone had jurisdiction to entertain the suits seeking relief
of ejectment of the lessee and the civil court had no jurisdiction, set asidethe decree passed against him.
Meanwhile the U.P. Zamindari Abolition and
Land Reforms Act, 1950 (U.P. Act I '.of 1951) came into force with effect·
from the commencement of the 1360 fasli in July 1. 1952.
Pursuant to the
observations of the High Court, Respondents 2 & 3 filed
ejectment
suits
agaimt Sher Singh under section 209 of Act I of 1951, which were dismissed'.
First appeal~ preferred against them also proved abortive.
Jn second appeals
the High Court stayed the orders of the Courts below on account of
tt.e·
~ommencement of the consolidation operations in the
village. Thereafter
Respondents 2 and.3 filed objections under section 9(2) of the U.P. Consolidation of Holdings Act, 1953 disputing the correctness of the entries in therecord showing Sher Singh as "Bhuritidar" and praying that the latter's namebe expunged from the records and in his place their names be substituted
as Bhumidars, but the same was rejected by the Consolidation Officer IV
at Ka"Rth.
The Settlement Officer in first appeal and the , Deputy Director, i!!18Jt1..
Con!lolidation, Lucknow in second appeal confirmed it.
In the revision appli·t ~·
cation under s. 48 of the 1953 Act, the Joint Director of Consolidation allow-~
\"
ed it, holding that the lease in favour of Sher. Singh was fictitious with int.en- ..._.
tion to defraud the pre-eroptors and that the claim of respondents 2 and 3 was
covered by
Section 18 of the Act.
The Director, therefore,
ordered
the
substitution of their names in the revenue record as holders of the land
as
.. K.hudkhast" (self-cultivating possession).
The appellant challenged the
said.
order by way of a writ petition which was dismissed.
Allowing the appeal lty special leave, the Court
HELD : (I) Section 48 of the U.P. Consolidation of Hollings Act, as i.t
stood on the relevant date, before its amendment by Act No. VIII of 1963 is
pari 1naterit1 with S. 115 of the Civil Procedure Code. The revisional judsdiction
of the High Court is confined to cases of illeg4l or irre2ular exercise or nonexercise or illegal assumption of the juriidiction by the subordinate courts.
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SHER SINGH V. CONSOLIDATION DIRECTOR
983
If a subordinate court is found to possess the jurisdictio

## Text

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SHER SINGH (DEAD) BY LRS.
v.
JOINT DIRECTOR OF CONS:OLIDATION & ORS.
May 5, 1978
(N. L. UNTWALJA, JASWANT SINGH AND R. S. PATHAK, JJ.j
[J.P. Co11solidation of Holdings Act, 1953 Section 48-RerisiotuI[ powers.
of the Joint Director of Consolidation-ScDpe of.
By lease deed dated July 20, 1945 for a period of ten
years
beginning.
from the year 1353 fasli to the end of the year 1362 fasli, registered in his
favour, the original appellant ,Sher Singh obtained possession of ten plots of
land admeasuring 6.63 acres situate
in
Mahal
Safed,
~1ouza Mahendri,.
. a.
Sikandarpur, Pargana Amroha, District Moradabad, U.P. and was mutated in
~
the Revenue Record
~.s a "hereditary tenant".
Later, on September 6, 1945
a sale deed in respect of the proprietary right and interest in the said lands
were executed by the Zamindars in favour of Kaley Singh. Harbans Singh
and Nihal Singh, brothers of Sher Singh and one
Chajju Singh. Asserting
their right of pre-emption in respect of the afo!ementioned sale on the ground
of they being co-sharers in the Mahal in which the said plots were situate,
Jai Kumar Singh and Roop Chand Singh, respondents 2 and 3 herein brought
four suits in the Court of Munsif, Mor4.dabad against the aforesaid vendors
and vendees and the original appellant Sher Singh for possession of the land
as also for cancellation of the lease in favour of Sher Singh on the ground
that it was fictitious and fraudulent and was executed with a view to defeat
their right of pre-emption. The suits were decreed as prayed for and
on
further appeal confirmed by the Civil
Judge,
Moradabad.
Although
the
vendees did not carry an appeal, the original appellant preferred a furthel'
appeal tD the High Court. The High Court allowed the appeal. holding
that
the revenue court alone had jurisdiction to entertain the suits seeking relief
of ejectment of the lessee and the civil court had no jurisdiction, set asidethe decree passed against him.
Meanwhile the U.P. Zamindari Abolition and
Land Reforms Act, 1950 (U.P. Act I '.of 1951) came into force with effect·
from the commencement of the 1360 fasli in July 1. 1952.
Pursuant to the
observations of the High Court, Respondents 2 & 3 filed
ejectment
suits
agaimt Sher Singh under section 209 of Act I of 1951, which were dismissed'.
First appeal~ preferred against them also proved abortive.
Jn second appeals
the High Court stayed the orders of the Courts below on account of
tt.e·
~ommencement of the consolidation operations in the
village. Thereafter
Respondents 2 and.3 filed objections under section 9(2) of the U.P. Consolidation of Holdings Act, 1953 disputing the correctness of the entries in therecord showing Sher Singh as "Bhuritidar" and praying that the latter's namebe expunged from the records and in his place their names be substituted
as Bhumidars, but the same was rejected by the Consolidation Officer IV
at Ka"Rth.
The Settlement Officer in first appeal and the , Deputy Director, i!!18Jt1..
Con!lolidation, Lucknow in second appeal confirmed it.
In the revision appli·t ~·
cation under s. 48 of the 1953 Act, the Joint Director of Consolidation allow-~
\"
ed it, holding that the lease in favour of Sher. Singh was fictitious with int.en- ..._.
tion to defraud the pre-eroptors and that the claim of respondents 2 and 3 was
covered by
Section 18 of the Act.
The Director, therefore,
ordered
the
substitution of their names in the revenue record as holders of the land
as
.. K.hudkhast" (self-cultivating possession).
The appellant challenged the
said.
order by way of a writ petition which was dismissed.
Allowing the appeal lty special leave, the Court
HELD : (I) Section 48 of the U.P. Consolidation of Hollings Act, as i.t
stood on the relevant date, before its amendment by Act No. VIII of 1963 is
pari 1naterit1 with S. 115 of the Civil Procedure Code. The revisional judsdiction
of the High Court is confined to cases of illeg4l or irre2ular exercise or nonexercise or illegal assumption of the juriidiction by the subordinate courts.
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SHER SINGH V. CONSOLIDATION DIRECTOR
983
If a subordinate court is found to possess the jurisdiction to decide a matte~'
it cannot be said to exercise it illegally or with material irregularity eve11: ti
it decides the matter. '\Vrongly.
Jn other words, it is not open to the
High
Court while exercising its jurisdiction under section 115 of the
Code
of_
Civil Procedure to correct errors of fact hd\Vsoever gross or even errors of
law unless the errors 'have relation to the jurisdiction of the Court to try the
dispute itself.
[987 F·H]
Section 115 of the Code of Civil Procedure empowers the High Court
to satisfy itself on three matters : (a) that the order of the subordinate court
is within its jurisdiction; (b) that the case is one in which the Court o~~ht
to have exercised jurisdiction ancl failed to do so; and (c) th..'lt in exercising
jurisdictio-n the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregl!larity by committing some
error
of
procedure in the course of the trial \vhich is material in that it
may
have
affected the ultimate decision.
And if the H.igh Court is satisfied that there
is no error in regard to any of these three matters, it has
no _power. to
interfere merely because it differs from the conclusions of the subordinate
court on questions of fact or Jaw.
A distinction must be dra\vn between the
errors committed by subordinate courts in deciding questions of law whi~h
have relation to. or are concerned with, questions of jurisdiction of the
said
Courts, and errors of lav.-' \vhich have no such relation or connection. An erroneous decision on a question of fact or of law reached by the subordinate court
whk-h has no relation to question of jurisdiction of thc.t court, cannot be corrected by the High Court under Section 115. [989 F-G, 990 A-B]
Applying the tests to the facts of the instant case, it must be held
that
the Joint Director of Consolidation ignored the limitation that existed on his
power under S. 48 of the 1953 Act as it stood on the relevant
date
and
illegally assumed jurisdiction which he did not possess. [990 B-C]
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Rajah An1ir Hassan Khan v. Sheo Baksh Singh, [1884] LR. 11 LA. 237;
Balakrislina Uds-yar v. Vasudei·a Aiyar, [1917} LR 44 I.A. 261; N. S. Venkatagiri Ayyangar v. Hindu Religious Endow111e11ts Board, Madras, f1948-49J LR 76
I.A. 67; Manindra Land and }Jui/dinR Corporation Ltd. v. Bhntnath Banerjee
l!:·.
& Ors., [1964] 3 SCR 495; Vora A bbaslihai Ali-1nahon1ed v. Haji Gulamnabi
Haji Safibhai~ AIR 1964 SC 134; D.L.F. Housing Construction Co. Pvt. Ltd.
New Delhi v. Sarup Singh & Ors., [1930] 2 SCR 368;
Pa11d11rang
Dhoni
Chougu1e v. Martlfi Hari Jadhav, (1956] 1 SCR 102 and M. L. Sethi v. R. P.
Kapur, [1973] 1 SCR 697 applied.
(2) (a) The Joint Director of Consolidation was not competent to inter·
fere with the decisions of the subordinate consolidation authorities who
have
not acted illegally in exercising their jurisdiction. It is not and
cannot
be
di5pu_ted that the
consolidation authorities subordinate to the Joint Director
pessessed plenary jurisdiction and competence to go into the. question of the
correctness or oth..-wise of the entries in the revenue records.
Relating
to
Sher Singh's possession over the plots of land in question and they
arrived
at a concurre.nt finding of fact that Sher Singh vras in actual possession of
the land on his own behalf on the relevant date on the basis of the aforesaid
valid lease deed and that neither the vendees had even held the
land
in
question as khukha$ht holders nor could they be deemed to be so.
[990 C-D,
991 E-D]
(b) Mere relationship of Sher Singh with three out of four vendees on
which the Joint Director of Consolidation has ·relied was not
enough
to
warrant the finding that the aforesaid lease gralilted in his favour was fictitious.
Even the subsequeut transfer of the land in question in favour of his nephew
to. whic~ reference has ~e~ made in a casual and laconic manner by the
J omt Director of Consohdation caanot lead to the c.onclwion that the lease
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was fictitious.
No evidence which may indicate as to when the said transfer
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was made nor has any material been placed before the Court to show that
the nephew in whose fi\vour the land was transferred was the son of any one
of Sher Singh's three brothers who were co-vendees with Chajju Singh. The
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SUPREME COURT REPORTS
[1978) 3 S.C.R.
nature and character of the so called transfer by Sher Singh in favour of
his nephew is also shrouded in_ mystery.
In the circumstances, 1he
finding
of the Joint Director of Consolidation that the aforesaid lease in favour of
Sher Singh '"'as fictitious cannot be" sustained. [991 D-F]
(3) The 1953 Act was designed by the State Legislature principally to do
away with the zamindary system v.rhich involved
intermediaries
between
the tiller of the soil and the State in UttaJ:I Pradesh, to provide for the acquisition of their rights, title and interest and to reform the law relating to Ja.nd
tenure consequent upon the aforesaid abolition and acquisition. To attain
this object, the legislature empowered the State Government to
declare
by
means of a notification that as from a specified date, all estates situate in
Uttar Pradesh or in specified area or areas thereof shall vest in the
State
and as from the beginning of that date (which would be called the date of
vesting), all such estates shall stand transferred to and vest except as provided Jn the Act in the State free from all encumbrances. [991 G·H, 992 A]
A close scrutiny of the facts and circumstances of the case in the
light
of the provisions of Section 3(28) read with S. 3(9) of the U.P. Tenancy Act
and Sections 6, 7, 18, 19,
20,
131,
134, 135, 136,
137,
139
and 209
of the 1953 Act, leaves no room for doubt that Sher Singh
acquired
the
rights of a Bhumidar. There is nothing on the record to establish that
the
;Jease deed in favour of Sher Singh \Vas fictitious or that the entries mude in
:the revenue record on the basis of that deed were not genuine or
did
not
·conform to the true factual position and that Sher Singh \Vas not in possession
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,of the fields in question on his O\Vll behalf. Consequently as Sher Singh was
'holding the said fields as a hereditary tenant on the date immediately preceding the date of vesting. he became entitled to retain possession thereof
as a
Sirdar under S. 19 of the Act and on depositing to the credit of the
State
Govern1nent i•:i. the manner provided in section 134 and other allied provio;ions
of the Act an amount equal to ten times the land revenue payable or deemed
to be payable he became entitled to a declaration that he had acquired the
rights of a Bhumidhar mentioned in section 137 of the Act in respect of the
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said fields and to the grant of a certificate to that effect. f998 E·HJ
CrvIL APPELLATE JURISDICTION : Civil Appeal No. 4 of l 969.
Appeal by special leave from the Judgment and Decree/Order
dated 31-10-67 of the Allahabad High Court in Special l>ppe3l
No. 238 of 1966.
R. K. Garg, S. C. Agarwal and V. J. Francis for the Appellant.
B. P. Singh for Respondents ~os. 2-3.
The Judgment of the Court was delivered by
JAsWANT SINGH, J. The litigation culminating in this appeal by
special leave has a long and chequered history which may be summarised thus :
By deed dated July 20, 1945,
regi~tered on July 30, 1945,
Chaudhary Vijay Kunwar Singh and Virendra Kunwar Singh, Zamindars of Mithanpur (U.P.) leased out ten plots of land admeasuring
6.63 acres situate in Mahal Safed, Mouza Mahendri,
Sikandarpur,
Pargana Amroha, District Moradabad, which were in their possession
as 'khudkhast' (seif-cultivating possession) to Sher Singh, the original
appellant, for a period of ten years beginning from the year 1353 Fasli
to the end of the year 1362 Fasli. Nearly a month and a half later
i.e. on September 6, 1945, the said Chaudhary, Vijay Kunwar Singh
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SHERSINGH v. CONSOLIDATION DIRECTOR (Jaswp.nt Singh, J.)
985
an<l Virendra Kunwar Singh alongwith their mother, Smt. Savitri
Kunwar Singh, executed a sale deed in respect of their proprietary
right and interest in the aforesaid plots of land in favour of Kaley
Singh, Harbans Singh and Nihal Singh, brothers of Sh1'r Singh, and
one Chajju Singh. On the basis of this lease deed, Sher Singh, claimed
to have obtained possession of the aforesaid plots of land and was recorded as a hereditary tenant in respect thereof in the revenue record.
Asserting their right of pre-emption in respect of the aforesaid transaction of sale on the ground of their being co-sharers in the Mahal in
which the said plots of land are situate, J ai Kumar Singh and Roop
Kumar Singh, respondents 2 and 3 herein, brought four suits in the
Court of the Munsif, Moradabad against the aforesaid vendors and
vendees and Sher Singh for possession of the land as also for cancellation of the aforesaid lease deed in favour of Sher Singh on the ground
that it was fictitious and fraudulant and was executed with a view to
defe8t their right of pre-emption.
These suits were decreed by the
Munsif in favour of respondents 2 and 3 on April 26, 1947. On appeal,
the Civil Judge, Moradabad, by his judgment dated November 9,
1948 affirmed the judgment and decree passed by the trial court. Although the vendors, Kaley Singh and others did not prefer an appeal
from the pre-emption decree passed against them, Sher Singh did not
rest content and took the matter in further appeal to the High Court of
Judicature at Allahabad in so far as his right to and ejectment from
the plots of land in question and cancellation of the aforesaid lease
deed in his favour were concerned. By its judgment and decree dated
April 13, 1953, the High Court allowed1 the appeal of Sher Singh holding that the revenue courts alone had jurisdiction to entertain the suit
seeking relief of ejectment of the lessee (Sher Singh)
and the civil
courts had no such jurisdiction.
The High Court accordingly set
aside the decree passed against Sher Singh.
Meanwhile the Uttar
Pradesh Legislature passed the U.P. Zamindari Abolition and Land
Reforms Act, 1950 (U.P. Act No. 1 of 1951) (hereinafter referred to
as 'the Act'). Though the Act came into force in the State on January
26, 1951, the issue of notification under section 4 thereof was made
to coincide with the commencement of 1360 Fasli i.e. July 1, 1952.
Pursuant to the observations made by the High Court in its aforesaid
.iudgment dated April 13, 1953, disposing of the appealof Sher Singh,
respondents 2 and 3 filed ejectment suits against Sher Singh under section 209 of the Act which were dismissed on November 20, 1953.
The first appeals preferred against the dismissal of these suits also
proved abortive as they were dismissed on September 1, 1959. Respondents 2 and 3 thereupon took the matter in second appeal to the
High Court whfoh was stayed on account of the commencement of the
consolidation operations in the village in which the plots of land
in
question are situate. Thereafter respondents 2 and 3 filed objections
under section 9 (2) of the U.P. Consolidation of Holdings Act, 1953
(hereinafter called 'the 1953 Act')
disputinl! the correctness of the
entries in the records showing Sher Singh as 'Bhumidar' of lhe plots of
land in question and praying that the latter's name be expunged from
tl1e reccrds and in his place, their names. be substituted as Bhumidars
but t11e same were reiected by the Co~solidation Officer IV at Kanth
vi•le "'' orciers dated December 24, 1961. The order passed by the
12-329SCI/78
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986
SUPREME COURT REPORTS
[1978] 3 s.c.R.
Consolidation Officer, Kanth, rejecting the objections of respondents 2
and 3 to the entries in the records was upheld by the Settlement Officer, Consolidation, Amroha, in first appeal as also by the Deputy Director, Consolid;1tion, U.P., Lucknow in second appeal by orders made
on April 16, 1961 and August 21,
1962 respectively. Dissatisfied
with these orders of the Consolidation authorities, respondents 2 and 3
took the matter in revision under section 48 of the 1953 Act to the
Joint Director of Consolidation, U.P. who allowed the same and set
aside the concurrent orders of the Consolidation Officer, the Settlement
Officer and the Deputy Director, Consolidation, holding that the lease
in favour of Sher Singh was 'fictitious; that the basis of Sher Singh's
title viz. the aforesaid lease being fictitious intended to defraud the preemptors, the recorded entries in favour of Sher Singh could confer no
title upon him; that Sher Singh's position could be deemed to be only
that of an agent carrying on cultivation on behalf of his brothers, the
vendees, who were entitled to the land in view of the sale in their
favour till it was pre-empted and that 'the effect of his finding would
be that the possession of Sher Singh after execntion of the Patta shall
be deemed to be the possession of tl1e vendees as Sher Singh had himself no title to the land.' Finally holding that the case of respondents
2 and 3 was covered by section 18 of the Act and that the possession
of the vendees would ensure to the benefit of the pre-emptors, the Joint
Director ordered their names to be substituted in the relevant records
observing that they would be deemed to be holders of the land as
'khudkhast'. It is this order of the Joint Director which was challenged
before the High Court by Sher Singh in writ proceedings under Article
226 of the Constitution and on the failure thereof has been impugned
before ns.
Appearing for the appellants, Mr. Garg has contended that since
the jurisdiction exercisable by the Joint Director, Consolidation, under
section 48 of the 1953 Act as it stood on the relevant date was limited
to cases of errors of jurisdiction and the orders passed by the Consolidation Officers subordinate to him did not suffer from any such infirmity, the Joint Director, Consolidation, clearly exceeded the limits
of 11is power by reversing the concurrent findings of fact arrived at and
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the orders passed by them. He has further urged that the finding of ~
the Joint Director that the lease in favour of Sher Singh was fictitious
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cannot also be upheld as there is no material on the record to sustain ,
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that finding and all the authorities below the Joint Director had concurrently held that the lease in favour of Sher Singh was valid and
that he had not merely been recorded in the revenue records as being
in possession of the land in question but was found to be in actual
possession thereof pursuant to the lease deed. He has further urged
that as Sher Singh actually held the land as a hereditary tenant on the
date immediately preceding the date of vesting he became sirdar of the
land under section 19 of the Act and on deposit to the credit of the
State Government an amount equal to ten times the land revenue, in
terms of section 134 of the Act he hecame a Bhumidar. . He has in
the alternative urged that as Sher Sin~h was in self-cultivating occupation of the land on the date immediately preceding the date of vesting
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SHERSINGH v. CONSOLIDATION DIRECTOR (Jaswant Singh, J.)
987
and was recorded as such in the relevant records, he at any rate acquired the right of an adhivasi under section 20(b) (ii) of the Act.
Mr. Lalnarayan Sinha has, on the other hand, urged that the subordinate consolidation officers having omitted to detein1ine the vital
question of the validity of the lease deed in favour of Sher Singh, the
Joint Director of Consolidation w~s justified in going into the same and
coming to the conclusion (on the basis of the close relationship of Sher
Singh with the vendees and the subsequent transfer by him of the plots
of land in question in favour of his nephew) that the transaction of the
lease was sham and fictitious. He has further urged that actual physical
,f- occupation of the land is not essential to attract the applicability of section 18 of the Act and the requirement of the section is satisfied even
when subsisting right and title to possession over the land on the date
of vesting on the basis of decree of pre-emption as in the instant case
is established. He has further urged that the entries in the revenue
records in favour of Sher Singh being fictitious and his posseifaiou of
the plots of land in question being merely ou
beh~f of the vendees,
Sher Singh could neither acquire sirdari rights under section 19 nor
adhivasi rights under section 20(b) (ii) of the Act.,
./
The principal question that fall~ for our determination in this case
is whether in passing the impugned order, the Joint Director of Consolidation, exceeded the limits of the jurisdiction conferred on him
under section 48 of the 1953 Act. For a proper decision of this question, it is necessary to advert to section 48 of the 1953 Act as it stood
on the relevant date before its amendment by Act No. VIII of 1963 :
"Section 48 of the U.P. Consolidation of Holdings
Act: The Director of Consolidation may call for the record
of any case if the Officer (other than the Arbitrator) by
whom the case was deciped appears to have exercised a
jurisdiction not vested in him by law or to have failed to
exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity
and may pass such orders ju the, case as it thinks fit."
As the above section is pari materia with section 115 of the Code
of Civil Procedure, it will be profitable to ascertain the scope of the
revisional jurisdiction of the High Court. It is now well settled that
the revisional jurisdiction of the High Court is confined to cases of
illegal or irregular exercise or non-exercise or illegal assumption of the
jurisdiction by the subordinate courts. If a subordinate court is found
to possess the jurisdiction to decide a matter, it cannot be said tOI exercise it illegally or with material irregularity even if it decides the matter
wrongly. In other words, it is not open to the High Court while rxerdsing its jurisdiction under section 115 of the Code of Civil Procedure
, to correct errors of fact howsoever gross or even errors of Jaw unless
the errors have relation to the jurisdiction of the court to try the dispute
itself.
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988
. SUPREME COURT REPORTS
[1978] 3 s.c.R .
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The legal position was succinctly laid down by .the Privy Council as
early as 1884 in Rajah Amir Hassan Khan v. Sheo Baksh Singh(I) in
the following words :-
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"The question then is, did the judges of the lower Courts
in this case, in the exercise of their jurisdiction, act illegally
or with material irregularity. It appears that they had perfect jurisdiction to decide the question which
W<!S before
them, and they did decide it. Whether tbey decided rightly
or wrongly, they had jurisdiction to decide the case; and even
if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."
Again in Balakrishna Udayar v. Vasudeva Aiyar(') the Privy
Council while discussing the scope of section 115 of the Code cf Civil
Procedure observed :
"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or
the illegal assumption of it.
The section is not directed
against conclusions of law or fact in which the question of
jurisdiction is not involved."
Jn N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments
Board, Madras('), the Privy Council observed that "section 115 em-
, powers tl1e High Court to satisfy itself on three matters, (a) that the
order of the subordinate court is within its jurisdiction; (b) that the
case is one in which the Court ought to exercise jurisdiction and ( c)
that in exercising jurisdiction the Court has not acted illegally, that is,
in breach of some provision of law, or with material irregularity, that
is, by committing some error of procedure in the course of the trial
which is material in that it may have affected the ultimate decision.
And if the High Court is satisfied on those three matters, it has rio
power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law."
The above quoted observations made by the Privy Council have
been approved and affirmed by this Court in a number of cases. In
Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee ~.
& Ors.(•) Vora Abbashhal Ali-mohomed v. Haji Gulamnabi Haii SafiI
,
blzai(•) and D.L.F. Housing & Construction Company Private Ltd.,
New Delhi v. Sarup Singh & Ors.('), this Court, however, draw a distinction between the errors committed by subordinate courts in deciding questions of law which have relation to, or are concerne? with,
question of jurisdiction of the said court, and errors of law which have
no such relation or connection.
(l) (1884) LR. 11 I.A. 237.
(2) (1917) LR44 I.A. 261.
(3) (1948-49) LR 76 I.A. 67.
(4) [1964] 3 S.C.R. 495.
(5) AIR 1964 SC 1341.
(6) [\970] 2 S.C.R. 368.
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SHERSINGH v. CONSOLIDATION DIRECTOR.(lasw,ant Singh, J.)
989
Again in Pandurang Dhoni Chougate v. Maruti Hari Jadhav(')
A
this Court held :
"The provisions o.f s. 115 of the Code have been examined by judicial decisions on several occasions.
While exercising its jurisdiction under s. 115, it is· not competent to the
High Court to correct errors of fact however gross they may
be, or even, errors of law, unless the said errors have relation
to the jurisdiction of the Court to try the dispute itself. As
clauses (a), (b) and (c) of s. 115 indicate, it is only in cases
where the subordinate Court has exercised a jurisdiction not
vested in it by law, or has failed to exercise a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally
or with material irregularity that the revisional jurisdiction
of the High Court can be properly invoked. It is conceivable
that points of law may arise in proceedings instituted before
subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of
res judicata is a pica of law which concerns the jurisdiction of
the court which tries the proceedings.
A findings on these
pleas in favour of the party raising them would oust the jurisdiction of the court and so, an erroneous decision on the·se
pleas can be said to be concerned with questions of jurisdiction which fall within the purview of s. 115. of the Code.
But an erroneous decision on a question of law reached by
· the subordinate court which has no relation to questions of
jurisdiction of that court cannot be corrected by the. High
Court under s. 115."
Again in M. L. Sethi v. R. P. Kapur('), this Court observed :
"The 'jurisdiction' is a verbal coat of many colours.
Jurisdiction originally seems to have had the meaning which
Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commissioner (1969) 2 A.C. 147, namely, the entitlement 'to enter upon the enquiry in question'. If there
was an entitlement to enter upon an enquiry into the question, then any subsequent error could only be regarded as
an error within the jurisdiction."
The position that emerges from these decisions is that section 115
of the Code of Civil Procedure empowers tl1e High Court to satisfy
itself on three matters : (a) that the order of the subordinate court is
within its jurisdiction; (b) that the case is one in which the court
ought to have exercised jurisdiction; and failed to do so (c) that in
exercising jurisdiction the Court has not acted illegally, that is, in
breach of some provisions of law, or with material irregularity by
committing some error of procedure in the course of the trial which is
material in that it may have affected th(1 ultimate decision. And if the
High Court is satisfied that there is no error in regard to any of tbefo
three matters, it has no power to interfere merely because it differs from
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(1) [1956] l S.C.R. 102.
(2) [1973] I S.C.R. 697.
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SUPREME.COURT REPORTS
[1978] 3 s.c.R.
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the conclusions of the subordinate court on questions of fact or faw.
A distinction must be drawn between the ·errors committed by subordinate courts in deciding question of law which have relation to, or
are concerned with, questions of jurisdiction of the "l!id courts, and
errors of law which have no such relation or connection. An erroneous decision on a question of fact or of law reached by the subordinate
court which has no relation to question of jurisdiction of that court,
B cannot be corrected by the High Court under section 115.
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Applying the tests as extracted above to the facts of the instant
case, we have no hesitation in holding that the Joint Director of Consolidation ignored the limitation that existed on his power under section 48 of the 1953 Act as it stood on the relevant date and illegally
assumed jurisdiction which he did not possess.
It is not and cannot be disputed that the consolidation authorities
subordinate to the Joint Director of Consolidation possessed plenary
jurisdiction and ~ompetence to go into the question of the correctness
or otherwise of the entries in the revenue records relating to Sher
Singh's possession over the plots of land in question. That they arrived
at a concurrent finding of fact that Sher Singh· was in actual possession
of the land on his own behalf on the relevant date on the basis of the
aforesaid valid lease deed is also evident from the following observations made by the Settlement Officer, Consolidation, Amroha in his
aforesaid decision dated April 16, 1962 :-
"I have carefully gone through the record and also heard
the learned counsels for the parties at length and also perused
the case law. It is admitted that the appellants have never
been able to obtain possession over the disputed land. In the
revenue records name of
respondent Sher Singh
exists
throughout from 1353 F upto the date of vesting and onwards also. Appellant's allegation is that actually the brothers
of Sher Singh who purchased the land in dispute are in
possession but there is absolutely no oral or documentary
evidence in support of this contention. Appellant Jai Kumar
Singh himself admits that in the land purchased by Kaley
Singh, Chajjoo Singh and others, Sher Singh has no interest
and these brothers also take food separately. I agree with
the learned Consolidation Officer that the simple fact that the
proprietary rights have been transferred to. the brothers of
Sher Singh is not at all sufficient to prove that the lease was a:
fictitious document executed simply to
deprive the appellants of their rights of pre-emption. It is worth mentioning
that the lease was executed in 1945 and zamindari abolished
in 1952. It does not appeal to me that any one could have
an idea that the interests of the landlords will be extinguished
in this manner and therefore the vendors executed a fictitious
deed to deprive the appellant of his rights of pre-emption ...
The vendees Kaley Singh and others had only
purchased
proprietary interest in the disputed land and they were not
its khud kasht holders. . . . . . It is obvious that Kaley Singh
and other the original vendees purchased the land subject to
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SHERSINGH v. CONSOLIDATION DIRECTOR (Jas:want Singh, l.)
99 J
the possession of respondent Sher Singh and their proprietary interest would have come to an end at the date of vesting. . . . . . Considering the entire evidence on record, I hold
that the land in dispnte could not have been the khudkasht
of the original vendees and they could not have acquired
Bhumidhari rights u/s 18 of the Z.A. & L.R. Act and therefore the appellants who stepped into their shoes cannot have
better rights. . . . . . It may also be mentioned that respondent Sher Singh has not been in possession as a trespasser
but on the basis of a valid lease."
It may also be noted that the Deputy Director of Consolidation
after discussing the entire evidence and holding that Sher Singh was
lessee in possession of the land and neither the vendees had ever held
the land in question as khudkhast holders nor could they be deemed
to be the khudkhast holders thereof dismissed the appeal preferred by
respondents 2 and 3 with the following observations :-
"The concunent finding of the lower courts was therefore conect and justified."
A
B
c
Thus the subordinate Consolidation authorities not having acted
D
illegally in exercising their jurisdiction, the Joint Director of Consolidation was not competent to interfere with their decisions.
It would be appropriate at this stage to observe that mere relationship of Sher Singh with three out of four vendees on which the Joiiit
Director of Consolidation has relied was not enough to warrant the
finding that the aforesaid lease granted in his favour was fictitious.
Even the subsequent transfer of the land in question in favour of his
nephew to which reference has been made in a casual and laconic
manner by the Joint Director of Consolidation cannot lead' to the conclusion that the lease was fictitious. Our attention has not been drawn
to any evidence which may indicate a~ to when the said transfer was
made nor has any material been placed before us to show that the
nephew in whose favour the land was transferred was the son of any
one of Sher Singh's three brothers who were co-vendees with Chajju
Singh.
The nature and character of the so called transfer by Sher
Singh in favour of his nephew is also shrouded in mystery. In the circumstances, the finding of the Joint Director of Consolidation that the
aforesaid lease in favour of Sher Singh was fictitious cannot be sustained.
Let us now see whether Sher Singh acquired the rights of a Bhumidhar, or a sirdar or an Adhivasi under the Act.
It would be apposite
for this pnrpose to refer to the object and a. few relevant provisions of
the Act. As apparent from its preamble, the Act was designed by the
State Lrgislature principally to do away with the Zamindari system
which involved intermediaries between the tiller of the soil and the
State in Uttar Pradesh, to provide for the acquisition of their rights,
title and interest and to reform the law relating to land tenure consequent upon the aforesaid abolition and acquisition. To attain this
object, the Legislature empowered the State Government to declare by
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992
SUPREME COURT REPORTS
[1978] 3 s.c.R.
means of a notification that as from a specified date, all estates situate
iu Uttar Pradesh or in specified area or areas thereof shall vest in the
State and as from the beginning of that date (which would be called
the date of vesting), all such estates shall stand transferred to and. vest
except as provided in the Act in the State free from all encumbrances.
As already stated, though the Act came into force on January 25,
1951, the notification alluded to in section 4 was issued and published
in the Extraordinary issue of the State Gazette on July 1, 1952 which
coincided with the commencement of 1360 Fasli.
The consequences of the vesting of an estate ensuing frnm the
notification issued nnder section 4 are detailed in section 6 of the Act
which, in so far as it is relevant for the purpose of the case, provides
as und~r :-
"6. Consequences of the vesting of an estate in the State.-
When the notification under section 4 has been published in
the Gazette then, notwithstanding anything contained in any
contract or document or in any other law for the time being
in force and save as, otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of
the date of vesting, ensure in the area to which tlie notification related, namely-
(a) all rights, title and interest of all the intermediaries-
( i) in every estate in such area including land ( cultivable or barren), grove-land, forests whether
within
or
outside village boundaries, trees (other than trees in village
abadi, holding or grove), fisheries, tanks,
ponds,
waterchann~ls, ferries, pathways, abadi sites, hats, bazars
and
melas [other than hats, bazars and melas held upon land to
which clauses (a) to (c) of sub-section (1) of section 18
apply], and
(ii) in all sub-soil in such estates including rights, if any,
in mines and minerals, whether being worked or not;
shall cease and he vested in the State of Uttar Pradesh free
from all encumbrances; ....... .
(i) all suits and proceedings of the nature to be prescribed pending in any court at the date of vesting, and all proceedings upon any decree or order passed in any such suit
or proceeding. previous to the date of vesting,
shall be
stayed .. ....... "
Section 7 of the Act which de.al with saving in respect of certain
rights inter alia lays down that nothing contained in Chapter II shall
in any way affect the right of any person-(aa) being a bhumidhar,
sirdar, adhivasi, or asami of any land, to1 continue to enjoy any assessment or any similar right for the more beneficial enjoyment of the land,
as he was enjoying on the date immediately preceding the date of
vesting.
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SHEJ!SINGH v. CONSOLIDATION DJRE<:TOR (Jasw,ant Singh, J.)
993
It would be convenient at this stage to notice sections 18, 19 and
A
20 of the Act which are couched in the following terms :-
"18. Settlement of certain lands with intermediaries or
cultivators as bhumidhars.-
(1) Subject to the provisions of Sections 10, 15, 16 and
17, all lands-
( a) in possession of or held or deemed to be held by an
intermediary as sir, khudkasht or an intermediary's
grove,
(b) held as a grove by, or in the personal cultivation of a
permanent Jessee in Avadh.
(c) held by a fixed-rate tena'nt or a rent-fr2e grantee as such,
or
(d) held as such by-
(i) an occupancy tenant,
(ii) a hereditary tenant,
(iii) a tenant on patta dawami
instamrari
refe1red
to
section 17
( e) held by a grove-holder
!
I possessing the right
}- to transfer th2 holdor I ing by sale.
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·on the date immediately prec•2ding the date of vesting shall
·be deemed to be settled by the State Government with such
intermediary, les&2e, tenant, grantee or grove holder, as the
E
case may be, who shall, subject to the provisions of this
Act. be entitled to take or retain possession as bhnmidhar
·thereof.
(2) Every person belonging to the class m2ntio'ned
in
Section 3 or sub-section (2) of Section 3-A of the United
Provinces Agricultural Tenants (Acquisition of
Privileges)
Act, 1949, who has been granted the declaration referred to
in section 6 of the said Act in respect of any holdi'ng or
share thereof shall, unless the declaration is
subsequently
set aside, be deemed to be the bhumidhar of the holding or
the share in respect of which the declaration has been made
and continues in force.
(3) Notwithstanding anything co'i1tained in the United
Provinces Agricultural Tenants (Acquisition of Privileges)
Act, 1949, any declaration granted under section 6 of the
said Act in favour of a tenant to whom sub-section (2) of
'Section 10 applies, shall be and is hereby cancelled and the
amount deposited by him under Section 3 or 6 of the said
A~t shall, after deducting the amount which might have h2en
paid or be payable by the State Government to his Jand-
'holder- under Sec.lions 7 and 8 of the said Act, be refunded
·to the person 'entitled in such manner as may be prescribed."
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SUPREME COURT REPORTS
[1978] 3 s.c.R:.
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19.