AFt^ ^\e9 b/ HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.463 of 2005 APPELLANTS: AbhishekAgrawal and others Versus RESPONDENTS: Purushottam Chouhan and others Post for pronouncement of iudament on 7th Auaust. 2009 ^ "^ Sd/- T.P. Sharma Judge \v- ^. '^' AP^ HIGH COURTOFCHHATTISGARH. BILASPUR ^ Second ADpeal No.463 of 2005 APPELLANTS/: (Plaintiffs) RESPONDENTS/: (Defendants) 2. 3. A) Abhishek Agrawal, aged about 28 years, S/o Late Shri Radheshyam Agrawal. B) Smt. Radhadevi, aged about 61 years, widow of Late Shri Radheshyam Agrawal. Both residents of Malviya Road, Raipur. Kailash Chand Agrawal. Ramesh Chandra Agrawal. 4. Santosh KumarAgrawal. 5. Gopal KrJshnaAgrawal. All sons of late Shri Nathmal Agrawal, residents of Malviya Road, Raipur, Tahsjl & Distt. Raipur (c.G.) Versus 1. Purushottam Chouhan. 2. Pramod Chouhan. 3. Laxman Chouhan. 4. Harilal Chouhan. 5. Nandu Chouhan. 6. Mannu Chouhan All sons of Late Shri Dayabhai Chouhan. 7. a) Bakul Chouhan. b) Neeraj Chouhan. c) Rajesh Chouhan. All sons of Late Kantilal Chouhan. All residents of Village Kesala, Kharora/Tahsil & Distt. Raipur (C.G.) {Second appeal under Section 100 of the Code of Civil Procedure, 1908} Present: Mr. G.D. Vaswani, counsel for the appellants. Mr. B.P. Gupta, counsel for the respondents. —".';"'"-•'„' 'y^^ "^: ^ f , ^ /1;^ '•" i^ ^ :''-;. 'i^y^ .1 A- Sinale Bench; Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 7th August, 2009) ^^ l. This second appeal is directed against the judgment & decree dated 30-7-2005 passed by the 8th Additional Djstrict Judge, Raipur in Civil Appeal No.l-A/2004 reversing the judgment & decree for eviction passed by the 5th Civil Judge Class-I, Raipur in Civil Suit No.74- A/2000 vide judgment & decree dated 15-11-2003. 2. Judgment & decree impugned arechallenged on the ground that learned lower appellate Court while reversing the decree has not .considered the entitlement of the appellants for suit for evjction and also on the groundof maintainability of the suit that the lease was permanent lease, therefore, without completion of the period of lease premature suit for eviction was not maintainable. 3. Brief facts giving rise to filing of fhe present appeal are that the present appellants/plaintiffs are Bhumi Swami of the land in dispute i.e. Khasra Nos. 1798 & 1795 area 2 acres new Khasra No.469 situated a,t VillageKesla. The land was given to the predecessorof respondents namely, deceased Dayabhai on permanent lease for installing rice mill. Previously suit for eviction from the land was filed by the present appellants against deceased Dayabhai and finally eviction claim was denied by the High Court and dedded that the land was given to Dayabhai on permanent lease. After the judgment passed by the HighCourt, deceased Dayabhai filedan application for mutation of his name over the suit land on the basis of the judgment of the High Court and hisname was mutated. The present appellants preferred anappeal before the appellate Revenue Court and finally they lost their case before the Revenue Court (appellate Court) whereupon the present appellants served notice to deceased Dayabhai for eviction under the provisions of Section 111 of the Transfer of Property Act, 1882 (for short 'the Act of 1882/), but after termination of lease and demand of possession when the possession was not handed over, they filed civil suit for eviction. The present respondents/heirs of deceased Dayabhai contested the claim and specifjcally pleaded that the land has been recorded in the nameof their predecessor Dayabhai, and the present appellants have lost their case up to the High Court, hence the present appellantsare not entjtled for any eviction from the suit land. The property was on permanent lease to deceased Dayabhai. 4. On the basis of averments of the part:ies, issues were framed and after affording opportunityof hearing, learned 5thCivil Judge Class-I, Raipur has held that only on the basis of mutation no title is created upon the parties, the respondents are lessee over the land and after termination of lease, the present appellants are entitled for possession of land from the respondents, and decreed the suit. 5. Judgment & decreeof the trial Court were challenged before the lower appellate Court and the lower appellate Court has held that previously a suit was also filed between the same parties relating to same property and same cause of action, issues were also same, therefore, subsequent suit is not maintainable, andreversed the decree passed by the trial Court. 6. The present second appeal is admitted on the foliowing substantial questions oflaw:- (l)Whether the order of Naib Tehsildar, Raipur passed on 28-3-1979, declaring Dayabhai, the predecessor of respondent as occupancy tenant is without jurisdiction? (2)1f yes, whether the finding recorded by the 1st appellate Court that thepermanentlease being effective against the defendant/tenant decree for eviction could not be passed, was contrary to law? 7. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the Courts below. 8. Mr. G.D. Vaswani, learned counsel forthe appellants, argued that according to the previous judgment between the parties in Second Appeal No.565/1964 which is binding upon both the parties, theland was given to Dayabhai on permanent lease and the same was for indefinite duration. But after the decision of previous suit, deceased Dayabhai applied for mutation of his name over the property on the basisof aforesaid judgment and his name was mutated. The present appellants preferred appeal before the revenue Court, but finally they lost the case, then they have terminated the lease under Section 111 of the Act of 1882 and demanded vacant possession and the same has not been complied by deceased Dayabhai on which they filed the suit. Learned counsel further argued that the land was given on lease for the purpose of installing rice mill and Dayabhai !;^ has installed rice mill, therefore, no any Bhumi Swami right has been accrued in favour of deceased Dayabhai. The present appellants have not transferred the land to deceased Dayabhai and no title has been acquisitioned, therefore, in absence of acquisition of title upon the suit land in favour of Dayabhai, the mutation proceeding was illegal. Learned counsel submitted that parties were competent to lease the property in accordance with Section 168 of the Chhattisgarh Land Revenue Code, 1959 (for short 'the Code') and the lease was not unauthorized in accordance with Section 169of the Code, therefore, no right was accrued in favour of deceased Dayabhai. However, filing of mutation application and mutation of name by deceased Dayabhai gives cause of action in favour of the appellant to determine the leaseunder Section 111 (g) oftheAct of 1882, because Dayabhai had claimed title over the property. Learned counsel further submitted that the revenue Courts were having no jurisdiction to mutate the name of deceased Dayabhai in absence of any acquisition of right or title in his favour. Learned counselplaced reliance in the matter of Mantoo Sarkarv.Oriental Insurance Co.Ltd. & Anr.1 in which it has been held by the Apex Court that objection as to jurisdiction is permissible when objection to jurisdiction is as regards thesubject matter of the suit. Learned counsel also argued that the Court is empowered to declare any legal character or any right as to any property in accordance with Section 34 ofthe Specific ReliefAct, 1963. 9. On the other hand, Mr. B.P. Gupta, learned counsel for the respondents, vehemently argued that the present appellants have lost theircase against the order of mutation up to the HighCourt, therefore, the present suit was not competent. According to the pleading of the plaintiffs, Bhumi Swami right was conferred upon deceased Dayabhai and the present respondents are heirs of Dayabhai, therefore, the appellants are not entitled for eviction and termination of lease was ab initio void. This is second suit based on same cause of action between the same parties relating to the same issue, therefore, the second suit is barred and decision of first ca.se reached into its finality. Even mutation without acquisition of right or title does not give any cause of action for termination of permanent lease to the present appellants and the present 12009AIRSCW 136 ^ appellants have notclaimed relief of declaration of the order of mutation void and without obtaining decree of declaration, the present appellants are not entitled for any relief. In accordance with the provisions of Order 7 Rules 1 (g) & 7ofthe C.P.C. theappellants were under obligation to claim such relief in specific terms, but they have not claimed any relief in such terms. Lease for more than one year by Bhumi Swami is an unauthorized lease under Section 169of the Code contesting the right of Bhumi Swamiand accrues the right of an occupancy tenant upon the lessee, and occupancy tenancy right has been conferred upon Dayabhai in accordance with Section 190 of the Code. Learned counsel further argued that making any new case in second appeal is exceeding jurisdiction and any relief relating to mutation order woutd amount to making out a new case which is not permissible under Section 100 ofthe C.P.C.at the stage of second appeal. Learned counsel placed reliance in the matter of Babu Ram alias Durga Prasad v. Indra Pal Singh (Dead) by LRs2 in which it has been held by the Apex Court that HighCourt has no jurisdiction in second appeal to make out a new case and render its finding thereon in absence of any issue before the Courts. Learned counsel further placed reliance in the matter of Tirumala Tirupati Devasthanams v. K.M. Krishnaiah3 in whichit has been held by the Apex Court that in absence ofany issue before the trial Court and the first appellate Court, second appellate Court could not, for the first time give a finding upon any such issue. lO.First substantial question of law is related tolegalityof order of revenue Court dated 28-3-1979. ll.Both the parties have specifically alleged in their pleadings relating to theorder dated 28-3-1979 passed by the Tahsildar by which the Naib Tahsildar has passed the order under Section 110 of the Code and recorded finding that legal interest in the land has been acquisitioned in favour of deceased Dayabhaiin accordance with the judgment passed by the High Court on 30-11-1967and deleted the disputed land from the holdings of Nathmal, predecessor of the appellants, and mutated in the nameof Dayabhai vide order Ex.P-2. The appellants have not claimed any relief for declaration of the 2 (1998) 6 SCC 358 3AIR1998SC1132 ~- i' ..^ ^ ^ aforesajd order, but the learned trial Judge has framed specific issue No.9 which is as follows: - //^TT ^Xip^T -<Lt|<l||d^l ^ ^T^?T f^TT^ 28.3.79 ^ ^flK yRitciicTi'i|ui cii<y>M -yft ^" "^rpft t?// Such issue has been decided by the frrial Court as negative, however, the appellate Court has reversed the judgment & decree substantially on the ground that thelease was permanent lease, therefore, withoutcompletion of the period of lease premature suit for eviction was not maintainable. l2.It is clearfrom the pleadings ofthe parties and issue No,9 framed by the trial Court that after affording opportunity of hearing to the parties the trial Court has decidedissue No.9 framed on the basis of pleatlings of the parties. Para 9 of Ex. P-1, the judgment passed in Second Appeal No.565/1964 by the High Court, shows that the land was leased out to deceased Dayabhai, the lease was perpetual in nature and the defendants were clearly protected by the doctrine of part performance. Para 9 of the judgment dated 30-11-1967 passed in Second Appeal No.565/1964 reads as follows: - "9. Even otherwise, if there was no ambiguity in the terms used in the document, I am of the view that the words nJab Tak" clearly indicate that the lease was to continue so long as the defendant ran his rice mill on the land, that is, the lease was of indefinite duration. On this view, the defendant is ctearly protected by the doctrine of part performance in-as-much as all the conditions pre-requisite of section 53-A of the Transfer of Property Actstand established. The decision of their Lordships of the Supreme Courtin ManikJ=al v. Jimwala, AIR 1950 SC 1, directly applies to the facts of the present case." l3.The word 'lease' has been defined in Section 105 of the Actof 1882 which reads as follows: - "105. Lease defined.—Alease of immoveable property is a transfer of 'a right to enjoy such property, made for a certain time, express or implied/ or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or anyother thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined.—Thetransferor is called the lessor, the transferee is called thetessee, the price is calted the ,^,:::5^%^ ^.i^l.:x. ^ •^»^.l \''^--// \^—' ^':/ ^ ^. ^' premium, and the money, share, service or other thing to be so rendered is called the rent." l4.Leasedoes not create any title upon the lessee, leaseis a transfer of a right to enjoy such property for certain time, express or implied, or in perpetuity, in consideration of a price paid or promised. A lessor has right to determine the lease under Section 111 of the Act of 1882. l5.According to the plaintiffs/appellants, lease has been terminafed under clause (g) of Section 111 of the Act of 1882 which reads as follows: - "111. Determination of lease.—A immoveable property determines— ^otc^c ?i<>(<* lease of ^^^ *** ^stc^ *** *** *** *** *** ?(<>|<^ ?1<^5(C (a) *** (b) *"'* r^ *** *** (Q) *** *** (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case thelessee renounces his character as such by setting up a title in a third person orbyclaimingtitle in himself; or (3) the lessee isadjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease: *** *** ^** Sub-clause (2) of clause (g) of Section 111 of the Act of 1882 gives cause of action in favourof lessor for termination of lease on the bas]s of setting up of a tile in a third person or by claiming title in himself by the lessee. l6.In this case, lease has been terminated vide notice Ex.P-3 in which it has been specifically mentioned that Dayabhai has denied the title of the appellants and mutated his name over the property as Bhumi Swami, therefore, he has lost his right as a lessee under Section tl of the Act of 1882. 17.As regards the question of making new case at the stage of second appeal, as has been held by the Apex Court in the matters of Babu Ram & Tirumala Tirupati (supra), making of newcase is not permjssible at the stage ofsecond appeal and secondappellate Court J r- 8 could not for the first time, give finding upon new issue which was not raised and considered before the first appellate Court & the trial Court. iS.Legality & propriety of the order of Naib Tahsildar is not an issue before this Court, it was an issue before the trial Court asissue No.9 and the trial Court has given its finding upon thesaid issue. The matters of Babu Ram & Tirumala Tirupati (supra), which have been relied upon by learned counsel for the respondents/are distjnguishable on facts to that of the present case. l9.MutatJon of the nameof Dayabhai after recording the finding that interest has been created in favour of Dayabhai was definitely without jurisdictjon and was coram non jurfs as heldby the Apex Court in the matter of Mantoo Sarkar (supra). Objection as to jurisdiction regarding subject matter of suit is permissible. Para 18 ofthe said judgment reads thus, nl8. We/however, white taking that factor into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juns. Objection in regard to jurisdiction may be taken at any stage. (See Chief Engineer, Hydel Proj'ect v. Ravinder Nath, [(2008) 2 SCC 350]) wherein inter a//'a the decision of this Court in Kiran Singh v. Chaman Paswan, [AIR * .2954 SC 340] was followed, stating: W26. The Courfalso relied upon the decision in Kiran Singh V. Chaman Pawan [AIR 1954 SC 340] and quoted (in Harshad Chiman Lal case {[(2005) 7 SCC 791], SCC pp. 804-805, para 33} therefrom: {Kiran Singh case (supra),AIR p.342, para 6}: '6.......It is fundamental principle well established that a decree passed by a court without jurisdictionis a nullity, and that its invalidity could be set up whenever and wherever itis sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ........strikes at the very authorityof the court to pass any decree, and such a defect cannot be cured even by consent ofparties." Though in the aforementioned decision these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdicfrion, the force of this decision cannot be jgnored and it has to be held that such a decree would continue to be a nullity." Therefore, such objection may be taken at any stage. ZO.Admittedly, the lease was for installing rice mill and the appellants were not prevented under the provisions of the Code for such lease in favour of deceased Dayabhai in accordance with Section 168 (1) ofthe Code which reads as follows: - nl68. Leases.-(l) Except in cases provided for in sub-section (2) no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years: Provided that nothing in this sub-section shall apply to thelease ofany land— (i) made byBhumiswami who is a member of a registered Cooperative Farming Society tosuch Society; (ii)held by a Bhumiswami for non-agricultural purposes. Explanation.-For the purposes of this section— (a)WIease'/ meansa transfer of a right to enjoy any land, made for a certain time, expressed orimpljed in consideration of a price paid qr promised or of money or any other thing of value to begiven periodically to the transferon by the transferee who accepts the transfer on such terms, (b)any arrangement whereby a person cultivates any land of a Bhumiswami with bullocks belonging to or procured by such person (lessee) and on condition of his giving a specified-share of the produce of the land to the Bhumiswami shall be deemed to be a lease, (c)the grantof a right merely to cut grass or to graze cattle or to grow 'Singhara' or to propagate or collect lac, pluck, or collect tendu leaves shall not be deemed to be a lease of the land." 21.While decjding the first appeal, learned lower appellate Court has not considered the evidence ledby the parties and finding of the trial Court, but substantially dismissed the suit on the ground of maintainability that the lease was permanent lease, therefore, without completion of the period of lease premature suit for eviction wasjiot maintainable. 22.Learned Naib Tahsildar was empowered to mutate the name of Dayabhai on the basis of acquisition of title or interest over the ^ ^ / -^ R-- 10 4 H property. However, title or interest has not been created in favour of Dayabhai by any act of the party or operation of law. Judgment of second appeal does notcreate any title in favour of Dayabhai, it has declared that the lease was perpetual lease. In absence of any creation of rightor title over the property, mutation was illegat. Finding of the Naib Tahsildar that Dayabhai was occupancy tenant is without jurisdiction. 23.For the foregoing reasons, substantial issue No.(l) is decided as positive. Substantial issue No.(2) is partially dependent upon the first.issue. Learned lower appellate Courthas dismissed theappeal on the ground that in the light of nature of lease aspermanentlease being effective against the defendant/tenant, decree for eviction couldnot be passed. 24.In the present case, the lease was permanent lease and premature termination of such lease was not possible, but lease has been terminated under Section 111 (g) of the Act of 1882 when title has been claimed by the lessee and his name has been mutated on the ~ basis of such claim of title which gave cause of action for termination of lease to the plaintiffs and the plaintiffs have terminated the lease. In the written statement, defendants themselves have claimed ownership over the land in para 4 of their written statement which also supports the ground for termination of lease. Lease cannot be determined beforeexpirationof such time but can be determined in accordance with Section 111 of the Act of 1882. In thiscase, lease has been terminated under Section 111 (g) of the Act of 1882 for which the plaintiffs/appellants were competent on the basis of disclaimer of title of the appellants and claim of title upon the property by the predecessor of the respondent original lessee. ZS.Leamed lower appellate Court has not considered the ground of terminatjon of lease which was available to the appellants on the basis of specific act of denial of title of the appellants and setting up of title upon himself by original lessee Dayabhai and thereby committed illegality. Finding of the lower appellate Court iscontrary tolaw. 26.0n the basis of aforesaid findings, issue No.(2) is also decided as positive. 6. ^ $s / ^~\ fi;iL^L.. t. • ^^i ^^.y./^ '^.-3<."":.".:?: Soma 11 27.0n the basis of findings upon the issues formulated for the decision of this appeal, judgment & decree impugned is not sustainable. 28.In the result, the appeal is allowed. Judgment & decree impugned is here.by set-aside and the judgment & decree passed by the trial Court is restored. 29.Parties shall bear their own costs. 30.Advocate fees as per schedule. ^ 3l.Decree be drawn up accordingly. Sd/- T.P. Sharma Judge 7-8-2009 & 'p