1. This second appeal was referred to a Bench for decision by our brother Srivastava, J., because in his view a decision given by Bishambhar Dayal, J. in Ram Lochan Singh v. Lakshmi Shankar, Civil Revn. No. 1492 of 1956 on 6-1-1958 which was followed by Dhavan, J. in Raghuraj Narain v. Judicial Officer, Gaziabad, 1959 All LJ 681 needed reconsideration.
2. The suit out of which this second appeal arose had been filed on the 18th August, 1953, in the Court of the Munsif Sultanpur. The suit was for a permanent injunction to restrain the defendants from interfering with the plaintiff's possession over seven plots of land in village Maksudan Pura in the district of Sultanpur. The plaintiff claimed certain rights in respect of the lands under the U. P. Zamindiari Abolition and Land Reforms Act. The defendants, on the other hand, claimed certain rights in respect of the lands in dispute.
3. On the pleadings of the parties the trial court, namely the Court of the Munsif struck no less than five issues, but out of those we are con-cerned in the first instance with the first and the second issues which were, respectively, in the following words:-
1. Is the plaintiff the sirdar of the plots in suit?
2. Did the plaintiff acquire Adhivasi rights as alleged?
The Munsif referred the second issue, namely the issue in respect of Adhivasi rights for decision to the revenue court on the 31st October, 1955, and the revenue court gave its finding on that issue on the 9th April, 1956. On 10-7-1956, the first issue namely the issue in regard to the sirdari rights was also referred by the learned Munsif to the revenue court for decision. This issue was decided by the revenue court on the 22nd September, 1956. The learned Munsif accepted the decision of the revenue court on both the aforementioned issues and decided the case on the 27th November 1956.
4. The first question that was raised and on which Srivastava, J., made the reference, at the time when he admitted the second appeal was formulated by Srivastaya, J., thus:-
"Whether in a suit instituted prior to the coming into force of Act XVIII of 1956 by which Section 332-B of the Zamindari Abolition and Land Reforms Act was amended but which has not been decided before the coming into force of that Act the issue about sirdari was to be referred to the revenue court or not?"
5. It was conceded by learned counsel for the appellant that the reference by the learned Munsif to the revenue court for decision of the second, issue, namely the issue in regard to Adhivasi rights, on the 31st October 1955, could not be challenged, and that he did not challenge the validity of that reference and the consequent decision of that issue by the revenue court. Learned counsel, however, contended that the learned Munsif had no jurisdiction to refer the issue of sirdari to the revenue court on the 10th July 1956, and, therefore, the revenue court had no jurisdiction to decide the issue which it did so on the 22nd of September, 1956. Learned counsel further contended that because of the want of jurisdiction in the Munsif to make a reference to the revenue court and the want of jurisdiction of the revenue court to decide the issue referred to it the entire decision of the learned Munsif was invalid.
6. In the years 1954 and 1956 respectively the U. P. Zamindari Abolition and Land Reforms Act was amended. In 1954, among other amendments made a section, namely Section 332-B was added to the Zamindari Abolition and Land Reforms Act. This was done by Section 64 of Act XX of 1954. This Act came into force on the 16th October, 1954. The section that was acted in 1954 was in these words:
"332-B (1) If in any suit relating to land instituted after the commencement of the U. P. Land Reforms (Amendment) Act, 1954 in a civil court, or if instituted before the said commencement a decree had not already been passed, the question arises or is raised whether any party to the suit is or on any material date was an adhivasi or asami of the land and such question has not previously been determined by a Court of competent jurisdiction, the Civil Court shall frame an issue on the question and submit the record to the Collector for the decision of that issue only.
Explanation--A plea of being an adhivasi or asami which is clearly untenable and intended only to oust the jurisdiction of the Civil Court shall not be deemed to raise a question as aforesaid.
(2) The Collector after refraining the issue if necessary, shall decide such issue only, and return the record together with his finding thereon to the Civil Court which submitted it
(3) The Collector may instead of deciding the issue himself, transfer it to a competent subordinate revenue court which shall after refraining, the same, if necessary decide it and return the record with its finding thereon through the Collector to the Civil Court.
(4) The Civil Court shall then proceed to decide the suit accepting the finding of the Collector or the Subordinate revenue court on the issue referred to it.
(5) The finding of the Collector or subordinate revenue court on the issues referred to it shall for the purposes of appeal be deemed to be part of the finding of the Civil Court" It will be noticed that under Sub-section (1) of Section 332-B quoted above, if a question arose as to whether any party to the suit was on any material date an adhivasi or asami of the land and such a question had not been previously determined by a Court of competent jurisdiction, then the Civil Court had to frame an issue on that question and submit the record to the Collector for the decision of that issue. The Explanation added to that section as would be seen, indicated that if the plea of adhivasi or asami was clearly untenable and was intended only to oust the jurisdiction of the Civil Court, then such an attempt was not to be taken as raising a question which was referable under the provisions of Sub-section (1) of Section 332-B. What is further to be noticed is that on the words of the Explanation the determination of the question of adhivasi or asami was a determination of the question of jurisdiction.
7. In 1956 by Act XVIII of 1956 Sub-section (1) of Section 332-B underwent a little amendment. By Section 19 of the aforementioned Act for the words' "an adhivasi or asami" wherever they occurred in Sections 332-A and 332-B, the words "a sirdar, adhivasi or asami" were to be substituted. This Act came into force on the 28th May, 19S6. So that, after the 28th May, 1956, if in any suit on any material date a party raised the question as to whether or not he was a sirdar adhivasi or asami, then such a question under the limitations mentioned in Section 332-B as amended had to be decided by a revenue court. Act XVIII of 1956 by Section 23 provided, what may be called a saving section. The effect of Section 23 is really what we have to investigate in connection with the determination of the question whether or not the Civil Court had jurisdiction to refer the issue of sirdari to the revenue court on the 10th of July, 1956, namely sifter coming into force of Act XVIII of 1956 referred to above.
8. Section 23 of Act XVIII of 1956 is in these words:
"23 (i) Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding, any amendment herein made, continue to be heard and decided by such Court or authority.
(ii) An appeal, review or revision from any suit or proceeding instituted or commenced before any Court, or authority prior to the commencement of this Act shall notwithstanding any amendment herein made, lie to the Court or authority to which it would have lain if instituted or commenced before the said commencement."
9. Two questions clearly arise when considering as to whether or not Section 23 of Act XVIII of 1956 would apply to the remission of an issue by a Civil Court in respect of a civil suit pending in that Court on a date after the 28th of May, 1956, namely the date on which Act XVIII of 1956 came into force. The first question is whether Sub-section (1) applies to suits and secondly, whether, even if Sub-section (1) applied to suits, under that sub-section there was a prohibition or there was a want of jurisdiction in a Court to make a reference to the revenue court for the determination of an issue in regard to sirdari inasmuch as the question of sirdari became referable to a revenue court under the amendment to Section 332-B made by Section 19 of Act XVIII of 1956. The question of sirdari was not referable as a question for determination, by a revenue court under the provisions of Section 332-B as it stood prior to its amendment by Act XVIII of 1956 because it only enabled a reference in respect of the determination of the rights of an adhivasi or asami.
Under Section 129 of the U. P. Zamindari Abolition and Land Reforms Act the classes of tenure-holders laid down were (1) bhumidar (2) sirdar and (3) asami. It may be, therefore, "that the Legislature thought that since sirdar was a class of tenure-holder a question in respect of sirdari was a question which should be determined by the revenue court on the general principle that all questions regardnig tenancy rights were determinable by the revenue court.
Prior to the amendment of 1956 it appears that the question of sirdari was placed on the same footing as a question of title, but this does not resolve the question which we have to determine namely it the question of sirdar was not referable as such for decision to the revenue court at the date when the suit had been filed in the Civil Court could it not be referred later if the suit continued to be pending when Act XVIII of 1956 came into force, and whether Section 23 of the amending Act stood in the way of the exercise of a jurisdiction by the Civil Court to refer the question of sirdari for decision by the revenue court?
10. We have already quoted the provisions of Section 23 of Act XVIII of 1956 in extenso and we also noticed earlier that one of the matters which we have to consider is whether the word "proceeding" used in Sub-section (1) of Section 23 included a suit, and even if it did include a suit, did Sub-section (1) create a kind of jurisdictional bar to a reference. What is to be noticed in this connection is that in Sub-section (2) of Section 23 the Legislature has used both the words 'suit' and 'proceeding' separately. In this context we would do well to notice that Section 6 (i) speaks of suits and proceedings separately inasmuch as the provision is in these words:-
"All suits and proceedings of the nature to be prescribed pending in any court at the date of vesting and all proceedings upon a decree or order passed in any such suit or proceeding previous to the date of vesting shall be stayed;"
This sub-section of Section 6 makes it clear that so far as the U. P. Zamindari Abolition and Land Reforms Act was concerned the Legislature wished to make it plain that for the purposes of this Act distinction had to be drawn provided, of course, the context did not make such a distinction impossible, between suits and proceedings. In Samrao Vishnu Parulekar v. District Magistrate, Thana, (S) AIR 1957 SC 23 their Lordships clearly stressed the fact that the reasonable presumption that the same meaning is implied by the use of the same expression in every part of an Act could be departed from if sufficient reason could, be assigned to construe a word in one part of an act in a different sense from that which it bears in another part of the Act but not otherwise.
11. If it was intended that the word 'proceeding' should include a suit within the meaning of Section 23(1) then why should the legislature have thought it proper to use both' the words 'suit' and 'proceeding' in Sub-section (2). Obviously, the Legislature thought that a distinction had to be drawn between ''suit" and "proceeding", and indeed there appeared good justification for doing so, and the justification lay in the fact that Schedule II attached to Act XVIII of 1956 provides for six matters tabulated and recorded in the first portion of the Schedule thus:
Description of proceedings
Court of original jurisdiction
Court of first appeal
Court of second appeal
It will be seen by even a cursory examination of the second Schedule that under the generic description of proceedings (see col. 3) have been tabulated both applications, proceedings for correction of record of rights as also suits. Under Sub-section (1) of Section 23 only proceeding instituted or commenced before any Court or authority prior to the commencement of Act XVIII of 1956, notwithstanding any amendment made, had to be heard and decided by such court or authority. It made no reference to a 'suit'.
The Legislature, in our view, sought to pro-vide that appeal, review or revision from either any suit or proceeding instituted or commenced before any Court or authority prior to the commencement of the Act should, notwithstanding the amendment made lie to the court or authority to which it would have lain if it had been, instituted or commenced, before the said amendment, namely the Legislature made it perfectly clear, by Sub-section (2) of Section 23 that it did not wish to Interfere with any of the rights that the parties may have had under the old Act in respect of rights of appeal, review or revision in the case either of a suit or of a proceeding but the Legislature had no desire, as is clear from the words of Sub-section (1) of Section 23, to do so in respect of pending suits.
The reason, in our view for this differentiation lay in the fact that the Legislature, once it made up its mind that all matters relating to tenancy rights were determiniable in a revenue court then when it included Sirdari in Section 332-B, it did not think it desirable to confine the decision of that question in the hands of the civil court even though the suit had been filed and was pending in that court prior to the coming into force of Section 23. Mr. Justice Bishambhar Dayal in Civil Revn. No. 1492 of 1.956 (All) appears to have assumed that the word 'proceeding' included a suit.
12. There is yet another way of looking at the matter : if "proceeding" included a suit then all that can be said is that under Sub-section (1) of Section 23 the suit was to be heard and decided by the court in which the suit lay. The suit, it must be pointed out, was decided by the court which had seisin of it before Section 23 came into force. The word 'proceeding' in Sub-section (1) of Section 23 could not, in our opinion refer to an issue drawn up in a suit, i.e., it could not be said that each issue drawn up by the Munsif in the instant case at the date when he framed the issue, namely on the 31st October, 1955, was a separate proceeding.
13. In G. Veeraya v. N. Subbjah Choudhry, (S) AIR 1957 SC 540 their Lordships of the Supreme Court in para 23 at p. 553 pointed out that
"the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unit and are to be regarded as one legal proceeding."
In our opinion, therefore the proceedings to which Section 23 (1) of Act XVIII of 1956 applied must be proceedings apart from those, in a sense, arising out of a suit.
14. On what we have already said earlier we thought it would be legitimate to think that the Legislature when it enacted Section 23 in Act XVIII of 1956 intended that after the date of the amend-in the law the question of sirdari should no longer be determined by a civil court. The occasion for determining the sirdari question appears to have arisen before the court below on the 10th of July 1956 and on that date as the law stood the civil court could not determine that issue because Section 332-B which had been incorporated in the U. P. Zamindari Abolition and Land Reforms Act by Act XX of 1954 had been amended by Act XVIII of 1956 and that the said amendment came into force on the 28th of May 1956. So that the only justification on which the court below could, so to speak, ignore the aforementioned Legislative change would have been if Section 23 of the Act XVIII of 1956 could preserve the right of the civil court to determine the issue in regard to sirdari rights.
In this context we have also to consider whether there was a prohibition in clear words in Sub-section (1) of Section 23 to a reference by the civil court to the revenue court, or vice versa by the revenue court to the civil court, of an issue for decision, when by virtue of the amendment made to Section 332-B of the Zamindari Abolition and Land Reforms Act, by Section 19 of Act XVIII of 1956 it was obligatory on the civil court to refer the question of sirdari to the revenue court for decision.
It would be pertinent in the 'context also to notice that under Section 332-B, Sub-section (5), it was provided that the finding of the Collector or any subordinate revenue court on an issue referred to it "shall, for the purposes of appeal be deemed to be part of the finding of the Civil Court''. The Civil Court also had the power under the Explanation incorporated in Section 332-B to refuse to remit an issue in regard to sirdari etc., if, in the opinion of the Civil Court, the issue had been raised just to oust the jurisdiction of the Court
15. From what we have said above it could not be possible for us to say that there was any want of jurisdiction or even any material irregularity in the exercise of that jurisdiction by the Civil Court when it referred the issue of sirdari, on the 10th of July, 1956, for determination to the revenue court. The question which we have considered above was not raised in the court below but was raised for the first time in second appeal. A contention therefore was raised as to whether or not we should have entertained the objection. If there had been no power in the Civil Court to remit an issue to the revenue, court for the determination of the question of sirdari then it would have been a matter which would have affected the jurisdiction of a court and that such a question could very appropriately be raised at any stage, even at the stage of second appeal.
In Mula v. Babu Ram, I960 All LJ 314 : (AIR 1960 All 573). Dhavan, J. expressed the opinion that if this point in regard to the propriety or otherwise of remitting an issue to the revenue court or vice versa had not been raised in the court below, then such a question could not for the first time be raised in second appeal. The proposition that was laid down by Dhavan, J. in the aforementioned case could not--and we say so with respect--be so stated in view of what had been stated in this Court earlier in Shri Kishan Lal v. Bijai Singh, 1932 All LJ 857 : (AIR 1932 All 701), and by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. In view of what we have said above, we could not appropriately refrain from going into the question for we are of the opinion, as already pointed out above, that such a question, even if raised for the first, time in second appeal should appropriately be not only permitted to be raised but should be determined.
16. There was no other question canvassed before us in this appeal.
17. We accordingly have seen no merits in this appeal which we dismiss with costs.