Holding

The appellants are not entitled to the benefit of Section 14(1) of the Limitation Act and the suit is barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953.

Summary

The appellants, Zafar Khan and others, claimed possession of land based on a decree under the U.P. Tenancy Act and later asserted they were bhumidars under the U.P. Zamindari Abolition and Land Reforms Act, 1950. The respondents, having become adhivasis under the same Act, regained possession through an order of the Additional Commissioner, which was later reversed by the Board of Revenue. The appellants filed a suit in 1966 alleging the respondents’ possession was unauthorized and sought the benefit of Section 14(1) of the Limitation Act, 1963, arguing that the earlier proceeding under Section 144 of the Code of Civil Procedure failed due to a defect of jurisdiction or a similar cause. The Supreme Court held that the earlier proceeding failed on merits, not on jurisdictional defect, and therefore the appellants could not invoke Section 14(1). It also held that the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953 because the allotment had become final. Consequently, the appeal was dismissed.

Issues considered

The appellant’s entitlement to the benefit of Section 14(1) of the Limitation Act, 1963.
Whether the suit is barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953.
The interpretation of ‘other cause of a like nature’ in Section 14(1) in relation to defect of jurisdiction.

Legislation cited

Code of Civil Procedures. 144
Limitation Act, 1963s. 14(1)
United Provinces Tenancy (Amendment) Act, 1947s. 27
U.P. Consolidation of Holdings Act, 1953s. 49
U.P. Tenancy Act, 1939s. 180
U.P. Zamindari Abolition and Land Reforms Act, 1950s. 209, s. 20(b), s. 229(b), s. 232

Subjects

Limitation ActSection 14defect of jurisdictionother cause of a like natureConsolidation of Holdings ActSection 49Zamindari Abolition Actadhivasibhumidarrestitutioncivil procedureland reformjurisdictionres judicata

Judgment

287 A

ZAFAR KHAN AND ORS.
v.
BOARD OF REVENUE, U.P. & ORS.
B
July 31, 1984

[D.A. DESAI AND V. BALAKRISHNA ERADI, JJ.J

Limitation Act, 1963-Section 14 (1)-Inrerpretation of-For claiming
benefit under s. 14 (!) three conditions must be satisfied. Expression 'other
cause of a like nature' mu1t be read ejusdem g1neris with expr•ssion 'defect of c
, jurisdiction'.
Code of Civil Procedures. 144-R~quir~ments of.
U.P. \Consolidation of Holdings Act, 1953-s. 49-lnterpretation of.
U.P. Zanlindari Abolition and Land Reforms Act, 1950-Section20 (b)
read with Explanation I-Int~rpretation of. D
The appellants, in execution of a decree passed in a suit flied by them
under s. 180 of the U.P. Tenancy Act, 1939, on December 2, 1948 took
back possession of the land in dispute from the respondent Nos. 4 and ·s
(respondents for short). On the adv~nt of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 ('19.50 ACt' for short) the respondents moved an
application under s. 232 of the 19SO Act to regain possession of t~e land on
the ground that they hand acquired the status of adhivasis udder that Act.
E
The Assistant Colle.ctor dismissed the application. The respondents appealed
to the Additional Cbmmissioner. The appellants contended that since the
village in which 'the land in dispute was situated was put into consolidation
under the U.P. Consolidation of Holdings Act, 1953 ('1953 Act' for short),
the Additional Commissioner had no jurisdiction to heat the 9ppeal. The
appellants also submitted that a statement under s. 8 and 8A of the 1953 Act I'
was published in which they were shown as bhumidars of the land in
qllestion and the respondents had not objected to the entries. The Addi-
tional Con1misinner, by his order dated June 15, 1956, aliowed the appeal.
Pursuant to that order the entries in the said statement were corrected and
.,I the respondents acquired possession of the land. The Boar.cl of Revenue,
before whom the Additional Com missioner's order was challenged, held that
the Additional Commissioner had no jurisdiction to hear the appeal on
merits.
G
On September 11, 1958 the appellants moved an application under
s. 144 of the Code of Civil Procedure before the Sub Divisional Officer
praying for restitution of possession. This application and the subsequent
appeals wrre rejected by the authorities. Dismissing a writ petition filed by
the appellants the High Court held that the proceedings under s. 144 of the
Code of Civil Procedure coUld not succeed, but since the decision recorded
b)' the anthorities und>!r the 1953 Act had become final, it was always open H
288 SUPREME COURT REPORTS [1985] I s.c.R.
A to the petitioners to move the first appellate court to decide the appeal in
terms of the decision of the consolidation authorities.
Thereupon, in August 1966, the appe11an1s filed a suit under ss. 209
and 229 (b} of the 1950 Act against the respondents for a decree for posses-
sion on the ground that they were bhumidhars of the land in question under
the 1950 Act. The Assistant Collector decreed the suit. The Additional
B Comrnissiner allo\\'ed the appeal filed by the respondents. The Board of
Revenue dismissed the appe1Iants' second appeal- The appellants filed a writ
petition in the High Court. A single Judge of the High Court dismissed the
writ petition. A Division Bench of the High Court dismissed the special '
appeal filed by the appellants. Hence this appeal.
The respondents contended: (i) that the suit was barred by limitation
and the appelJants were not entitled to the benefit ofs. 14 (1) of the Limita-
c tion Act, 1963; and (ii) that the suit was barred bys. 49 of the !9S3 Act.
Dismissing the appeal,
HELD: l. The party seeking benefit of s. 14 (I) of the.Limitation
.Act, 1963 must satisfy the three conditions laid d0wn in the section, namely,
(i) that the party as the plan tiff was prosecuting another civil proceeding
with due diligence; (ii) that the earlier proceeding and the later proq_eeding
D relate to the same matter in issue; and (iii) that the form~r proceeding was
being prosecuted in good faith in a court which, from defect of jurisdiction
or other c::i.use of a like nature, is unable to entertain it. [297G-H]
2. The expression •other cause of a like nature' will have to be read
ejusdem generis with the expression •defect .of jurisdiction'. So construed
the expression •other cause of a like nature' must be so interpreted as to
E convey something anologous to the preceding words 'from defeet of jurisdic-
tion'. The defect of jurisdiction goes to the root of the matter as the court
is incon1petent to entertain the proceeding. The proceeding may as well
faiJ for some other defect. •Not all such defects can be said tO be analogous
to defect of juris~iction. Therefore, the expression 'other cause of a like
naturf'' on which ~ome light is shed by the Explanation (CJ to s. 14 which
provides "misj 0 inder of parties or causes of action shall be deemed to be a
F cause of Jike nature with defect of jurisdiction", must take its colour and
content from the just preceding expression, •defect Of jurisdiction'. PrimO
facie it appears that there must be something akins to a preliminary objec·
tion which if it suceeds, the court whould be incompetent to entertain the
proceeding on merits. Such defect could be said to be 'of the like nature'
as defect of jurisdiction. Coversely if the party seeking benefit"of the provi·
sion of s. 14 failed to get the relief in earlier proceeding not with regard to
anything connected with the jurisdiction of the court or some other defect
G of a like nature, it would not be entitled to the benefit of s 14. [300C-G]
India Electric Works Ltd. v. James Mantosh & Anr., [1971] 2 SCR 397,
referred to.
3. In a proceeding under s. 144 of the Code of Civil Procedure,
the party applying for restitution has to satisfy the court of first instance
that a decree under which it was made to part with the property is varied or
reversed or modifled in appeal or revision or other proceeding or is set aside
ff Pf modified in any suit instituted for the purpose and therefore, restitution
ZAFAR KHAN V, BOARD OF REVENUE 289
inust be ordered. In such a proceeding, the party seeking restitution is not A
required to satisfy the court about its title or right to the property save and
except showing its- deprivation under a decree and the reversal or variation
of the decree. [298C-D; El
4. In the insl:int case, the High Court rightly declined to grant benefit
of the provision of sec 14 of the Limitation Act to the appellants because the
second and third condition laid down ins. 14 (I) were not satisfied. It may
B
be assumed that the earlier proceeding under s. 144 of Civil Procedure Code
was ?. civil proceeding for the purpose of s. 14 (1) and that the appellants
were prosecuting the same with due diligence. But it is difficult to accept
that the subsequent proceeding relalcs to san1e matter in issue as was invol-
ved in the cJr lier proceeding. The appellu.nts merely claimed in their appli-
cati0n under s. 144 that in view of the reversal of the order by the Board of
Revenue the respondents are not entitled to retain possess;on and that c
restitution should be evicted because the appellants lost possession under.
the order of the Additional Commissioner which was reversed by the Beard
of Revenue. The cause of action was the reversal of the order of the Addi-
. tional Commissioner. When they failed to obtain restitution, the appellants
filed a substantive .suit under ss. 209 and 229 (b) of the 1950 Act. It was a
suit on title as bhumidars for possession against respondents alleging
unauthorised retention of possession· It had nothing to do with the order D
of t11e Additional Commissioner. Moreover, the appellants failed in the
earlier proceeding not on the ground that the authority had no jurisdiction
to entertain the application nor on the ground that there '~·_as any other
dcf.!Ct of a like nature, but on merits inasmuch as the authorities and the
1--ligh Court held that in view of the decision of the authorities under 1953
Act, the appellants are not entitied to restitution. (301B; 299A; 2980-H; 299A]
E
5. Once an allotment under s. 49 of the U.P. Consolidation of
floldin~s Act, 1953 became final, a suit would not lie before a civil or revenue
court with recpect to rights in lands or with respect to ~ny other matter for
which a proceeding could or ought to have been taken under that Act. [301G]
6. In the instaht case, once the village was denotified, as found bY
the auihorities and the High Court the allotment made under the 1953 Acl
becaml! final and it could not be qusetioned in a suit before civil or revenue
Court in view of the bar enacted ins. 49. [302A-B]
7. Th~ appellants' submission that after reveJ"sal of the Additional
Con1missioner's order dated June 15, 1956 the respondents had nei~her a legal
nor equitable right to be in possession, has no force, Assuming that the
appe!Lints had acquired the status of bhumidars the same \\"as subject to the
provisiort contriined ins. 20 lb} read with Explanation I of the U.P. Zamin-
._da_ri Abolition and Land Reforms Act, 1950 according to which, as correctly 0
found by single Judge of the High Court, the respondents would become
adhivasis of the land. Such adhivasis if they had lost possession were enti~
tied to regain the same by:making·:an appropriate application under s. 232
of that Act. The fl'Sp;)ndents did move such an application which ultimately
.\vas <ictepted by !he Additional Con1n1issioner. Therefore, primarily, legally
and additiona11y in equity, respOndents have an iron clad case to be in
possession against appellants. [294H; 296D-G] I•
H
290 SUPREME COURT REPORTS [1985] 1 s.c.v..
A CIVIL APPELLATE JuRIDICTION: Civil Appeal No. 1514 of
1970. \
From the Judgment and Order dated the 11th Ferbruary,
1959 of the Allahabad High Court in Special Appeal No. 92/ J 950.

B C.M. Lodha, Mrs. Uma Jain & R.K. Mehta for the Appellants.

Vishnu Mathur and S,K. Chaturvedi for the Respondents.

The Judgment of the Court was delivered by

c DESAI J. Appellants claiming to be the Khudkasht holders of
the Zaminders of the plots of land involved in dispute filed a suit
for possession unnder Sec. 180 of the U.P. Tenancy Act, 1939
(Tenancy Act 'for short) against respondents Nos. 4 and ·5
('rspondents' for short) who were and are in actual and physical
possessfon and cultivating the land. This suit ended in a decree
D in favour of the appellants on September 30, 1948 and in execution
of the decree, the appellants assert that they obtained actual and
physical posses~ion from the respondents on December 2, 1948. On
the advent of the U.P. Zamindari Abolition and Land Reforms
Act, 1950 ('1950 Act' for short) the appellants claimed to have
acquired the status of Bhumindars in respect of the plots of land in
E dispute.

The respondents moved an application under Section 232 of
the 1950 Act against the appellants alleging that as they were in
actual and physical possession during the year 1356 Fasli and were
sllbsequently dispossessed in view of the provision contained in Sec.
' 20 of the 1950 Act, they have acquired the status of adhivasis and
therefore, they are entitled to regain possession. This application
was made to the Assistant Collector within the prescribed period
of limitation. The Assistant Collector rejected the application
holding that as the respondents were not in possession through the
entire year of 1356 Fasli but only for a part of the year, they have
G not acquired the status of adhivasis and were not entitled to regain
possession. The respondents carried the matter in appeal to the
Additional Commissioner who held that the respondents had
acquired the status of adhivasis and were entitled to regain posses-
sion and accordingly allowed the appeal by his order dated June
1956 and in compliance with this order the respondents regained
actual and physical possession of the land and since than till
H today are in possession of the same.
ZAPAR KHAN v. BOARD OF REVENUE (Desai, J.) 291

According to the appellants the village/villages in which the A
plots of land involved in the dispute are situated were put into con-
solidation under the U.P. Consolidation of Holdings Act, 1953
('1953 Act' for short) and therefore, the Additional Commissioner
had no jurisdii:tion to decide the appeal of the respondents on
8
merits but should-have stayed the same. In the meantime according
to the ·appellants a statement under Sec. 8 and 8-A of tlle 1953
Act was published in which according to them they were shown as
Dhumidars of the plots in question and the respondents had failed to
object to the entries. However, it appears that since the appeal
preferred by the respondents was allowed by the Additional c
Commissioner, pursuant to his judgment the entries in the state-
ment were corrected in favour of the respondents and they regained
actual and physical possession of the land. The appellants carried
the matter in appeal to the Board of Revenue, which was allowed
holding that once the village/villages in which the plots involved in ·
the dispute are situated have, been put into conslidation and a D
notification under Sec. 4 of the 1953 Act is is issued, the Addi-
tional Commissioner should have stayed the appeal as the law then
stood, and not heard it on merits and allowed the same. The appeal
was accordingly remitted to the Additional Commissioner to retain
it on his file and stayed further hearing of the appeal.
E
The appellants on the reversal of the decision of the Additio-
nal Commissioner moved an application under Sec. 144 of Code of
Civil of Procedure, before the Sub Divisional Officer on Septem-
ber 11, 1958 praying for restitution of possession. Thus started
the second round of litigation. The Sub Divisional Officer by his
F
Order dated April 14, 1959 rejected the application of the appellants
0

holding that as the rival claims have been decided u nder the 1953
Act, he has no juridiction to re-open the proceeding ·concluded
' before the authorities under the 1953 Act and the decision therein
recorded has become final. He was further of the opinion that if
any redressal consequent upon the reversal of the decision of the
Additional Commissioner was to be obtained, the appellants should G
have moved the authorit\es under the 1953 Act which they having
failed to do, no relief by way of restitution can be granted by the
Sub Divisional Officer. The appellants carried the matter in
appeal to the Additional Commissioner who by his order dated July
7, 1959 upheld the decision of the Sub Divisional Officer and
dismissed the appeal. The appellants after an unsuccessful! appeal
to the Board of Revenue approached the Allahbad High Court II
292 SUPREME COURt REPORts (l!i8SJ 1 S.C.il·
-A in writ Petition No. 622 of 1960. This writ petition was dismissed
by a learned Singal Judge of the High Court holding that as the the
authorities under the Consolidation Act-1953 Act have allotted
the plots in question to the respondents on the strength of the
Additional Commissioner, on the reversal of that order, the nppel-
lants should have approaclie.d the authorities under the 1953 Act
B for recording them as holders of the plots and for correction of
the statement by filing appropriate proceeding. 1t was held that
as the appellants failed to seek relief before the authorities having
jurisdiction in the matter, they cannot succeed in a proceeding
under Sec. 144 of the Code of Civil Proceedure because jf such a
relief is granted, it would tentamount to interfering with the
c decisions recorded by the authorities under the 1953 Act wl1ich
have become final. It was observed that after the final decision of
the consolidation authorities it is always open to the petitioners to
move the first appellate court to decide the appeal in terms of the
consolidation authorities or it was open to them to have moved the
o appropriate consolidation authorities at apropriate time. That
having not been done, they were not entitled to relief at the hands
of the court. The writ petition was accordingly rejected on January
27, 1966.

E
Thereupon the appellants started the third round of litigation.
After having concurrently failed before all authorities.for obtaining
relief under sec. 144 of the Code of Civil Procedure, the appellants
filed Suit No. 73 of 1967 under Sec. 209 and 229(b) of the 1950
Act against the respondents in August, 1966. In this suit they
claimed a decree for possession on the ground that as they are
F Bhumidars of the plots in question under the 1950 Act, and as
against them the respondents are not entitled to retain possession
they are entitled to be reinducted in possession. It was alleged that
the respondents cannot continue to remain in possession which they ,
obtained under the order of the Additional Commissioner because
that order no more exists and has been reversed by the Board of
G Revenue at the instance of the appellant» The suit was resisted by
the respondents and the State of U.P. which had been impleaded
as one of the defendants inter alia contending that the suit is barred
under Sec. 49 of the 1953 Act as also it was barred by limitation
It was also contended that the plots were finally allotted in consoli-
dation proceedings to the respondents and that order having not
been challenged, the same has become final and the Revenue Court
H has no jurisdiction to nullify that order even if it is satisfied that
iAFAR KHAN v. BOARD OF REVENUE (Desai, J.) 2.93

- that order was not consistent with law or facts. The learned Assistant
Collecter held that on the date of vesting of of the 'estate, the appel- ,
!ants become the Bhmnidars and the suit is not barred under Sec.
A

49 of the 1943 Act. It was also held that even though the suit was
barred by limitation, appellants were entiltled to the benifit of the
provision contained ip Sec. 14 of the Limitation Act. It was further
B
held that as against the appellants, the responde~ts w1ere not enti-
tled to retain possession as the order under $Jiich they obtained
possession no more exists, Consistent with tl1ese findings, the appel-
lants suit for possession was decreed.

The respondents preferred an appeal to the Additional
c
Commissioner who by his judgment and order dated August 23,
1967 allowed the same and set aside the judgment of the Assistant
Collector and dismissed the appellants suit for possession inter alia
holding that a decision on an application under Sec. 239 of the 1950
Act would operate as res judicata in respect of the suit of the appel-
lants from which the appeal arose and the suit was also barred by D
Sec. 49 of the 1953 Act nor were the present appellants-plaintiffs
in the suit entitled to the benefit of the provision contained in Sec.
14 of the Limitation Act. The suit accordingly was liable to be
dismissed as barred by limitation. Ccnsistent with these findings the
appeal of the respondents was allowed and the plaintiffs' suit was
dismissed. The appellants' second appeal to the Board of Revenue E
was summarily dismissed whereupon they moved the High Court in
Writ Petition 19/1968. A learned Single Judge of the High Court
rejected the writ petition holding that the finding of the statutory
authorities that the suit was barred by limitation was unexceptional
and that they were rightly denied the benefit of the provision
F
contained in Sec. 14 of the Limitation Act. The le.arned Judge
also held that the suit of the appellants' was also barred by Sec.
10 (sic) of the Code of Civil Procedure. An application was
.- moved before the learned Judge seeking an amendment in the
writ petition so as to be able to question the correctness of the
order of allotment made by the authorities under 1953 Act in
favour of the respondents and praying for quashing the same. G
The learned Judge was not persuaded to grant the amendment
application and the same was rejected. The learned Judge also
held that the respondents bad become adhivasis and were entitled
t_o regain possession both in view of Sec.. 20 of the 1950 Act
and cl. (c) of sub-sec. (1) of Sec. 27 of the United Provinces
H
294 SUPREME COURt REPORTS [1985] 1 s.c.k
A Tenancy (Amendment) Act, 194 7. While holding that the res-
pondents had become adhivasis under Sec. 20, learned Judge
observed that a person evicted after 30th June 194i but within
the year 1356 Fasli would be deemed to be in possession in that
year till the date of his ejectment and he may thus be in possession
for a partment of the year, but if he is recorded in the year
B 13S6 Fasli, 1he ~uld be a person recorded as an occupant in
1356 Fasli within the meaning of the first part of cl. (b) {i), even
though he may not have beeq actually in possession throughout '
the year and thus the necessary requirem"ents to clothe him with
the status of adhivasi would be wholly fulfilled. Consistent with
this finding, the writ petition was dismissed with costs. Undaunted
c by the contiuous repeated rejection of their claim, the appellants
carried the matter in Special Appeal No. 92 of 1969 which was
heard by a Division Bench of the Allahabad High Court presided
over· by the then learned Chief Justice. Before the Division
Bench only two points were canvassed : (I) whether the appellants
D were entitled to the benefit of the provision contained in Sec. 14
of the Limitation Act and (2) whether the suit was barred under
Sec. 49 of the 1953 Act. On both these points, the Division
. Bench agreed with learned Single Judge and r~jected the appeal
of the appellants. Hence this appeal by certificate under Art.
133 (!)(a) of the Constitution.
E
At the commencement of the hearing, Mr. Lodha urged
that the appeal is filed by certificate under Art. 133 (J)(a) and
(c) of the Constitution which would mean that apart from the
valuation, the Division Bench granting the certificate was satisfied
F that there was substantial question of law of general public impor-
tance which ought to be decided by this Court. However, when
we examined the certificate and the order granting the same, it
transpired that the certificate was granted under Art. 132 (l)(a) of
the Constitution and not under Art. 133 (lJ(c) though there are
some observations which may generate a belief that the High
Court was satisfied that the case involved a substantial question of ,
G law of general public importance which ought to be decided by
this Court.

Mr. C.M. Lodha, learned counsel urged that once the order
of Additional Commissioner dated June 15, !956 allowing the
H appealOf the respondents against the dismissal of their application
ZAFAR KllAN v. BOARD OF REVENUE (Desai, J.) 295

under Sec. 232 of the 1950 Act by the Sub Divisonal Officer was
. reversed, they have neither a legal nor equitable right to be in
possession and that the appellants pilloried and pushed from
pillar to post denying substantial justice on technical grounds.
His grievance was that on a very narrow view of law a genuine
claim is refused. Apart from the two legal contentions, even
B
this submission does not commend to us. Prior to the intro-
duction of the 1950 Act, there used to be lt vertical hierarchy of
absentee landlords who thrived at the cost of the actual cultivators
had no security of tenure. lt was a feudal order, to remove all
intermediaries between the actual cultivator and the State, 1950
Act was introduced with the avowed object especially of abolition
of Zamindari System and to assure to the actual cultivator security
of tenure and fixity of rent. The promise of independence of
ensuring the tillers of the soil to be the owners thereof, was
being gradually implemented. The Zamindari Abolition Act was
a step· in that direction. Leaving aside all the nuances of agrarian
reforms, absentee landlords and intermediaries who thrived on D
the labour of actual cultivators were to be removed and the
burden on the land was thus to be reduced and the cultivators
were to be protected against exploitation. It is notorious that
before such radical step of aboliation of vested interest in the
land is taken, there is a fanfare of publicity with the result that
E
_those whose interests were to be affected would try to screen
them away from the purview of the proposed statute by taking
such steps at a time when the protection was not available to the
tenants and offer afait accompli when the agrarian reform legis-
lation is put on the statute book. The facts in this case would
illustrate the point and would negative any claim made on behalf F
of the appellants.

The entire claim of the appellants throughout this litigation
spreadmg roughly over three and a half decades is founded upon
a decree obtained under Sec. 180 of the U.P. Tenancy Act, 1939
against respondents Nos 4 and 5. We repeatedly asked Mr. G
Lodha to tell u~ und~r ~hat title the appellants sought possession
· and succeeded m ev1ct1ng the respondents who were admitted!
. the actual cultiv~tors and againyt whom the suit for eviction w:S
fil~d. We practically for the answer i~ va.in, save and except
, bemg told that as that aspect was never m dispute, relevant facts
were not available, nor the decree is on record. However, what
emerges from facts as conceded on behalf of the appellants is H
.296 SUPREME COURT REPORTS [i985j I s.C.R.
A that they were the Khudkasht holders of the erstwhile Zamindars
and in that capacity they filed suit for possession against the
respondents under Sec. 180 of the 1939 Act. One has not to
labour much to appreciate who are Khudkasht holders of the
Zamindars. They can be styled as alter ego or proxies of the
Zamindars. In other words, this proxy of Zamindars filed a
B suit for eviction of the respondents and as law then stood
succeeded as per decree dated Sept. 30, 1948 and in execution
whereof on December 2, 19 is dispossessed the actual cultivators
the respondents and got into possession. This was done when '
agrarian reform law was on the anvil. The entire edifice of the
c present litigation by the appellants is founded on this decree, a
decree which because of the subsequent developments or law has
become legally unsound and equitably unjust.

On the advent of the 1950 Act, the appellants assert that
D they became the Bhumidars of the plots. Assuming that the
appellants have acquired the status of Bhumidars, the same was
subject to the provision contained in Sec. 20(b) read with Expla·
nation I of 1950 Act according to which the respondents would
become adhivasis of the plots. It is not necessary to examine
this aspect in detail because the learned Single Judge of the
E High Court found as a fact that for a portion of the year 1356
Fasli, the repondents were in possession as occupants and were
cultivating the land and their names w'ere so recorded in the
khasra of 1356 Fasli and that they were disp0ssessed but were
entitled to regain possession under Sec. 27 of the United Provi·
nces Tenoncy (Amendment) Act, 1947 and therefore they have
F become Adhivasis of the plots. No amount of argument of Mr.
Lodha could persuade us to disturb this finding. It is correct
in law, consistent with the record and eminently just. Such
adhivasis if they had lost possession were entitled to regain the •
same be making an appropriate application under Sec. 232 of
the 19 50 Act. The respondents did move such an application
which ultimately was accepted by the Additional Commissioner.
G
This is not in dispute. Therefore, primarily, legally and addi·
tionally in equity, the respondents have an iron clad case to be in
possession against appellants. Th~refore we find no substance in
the contention of Mr. Lodha that an eminently just claim is
refused on narrow techincal .view of matter. The case is the
H other·way round.
ZAFAR KHAN v. BOARD OF REVENUE (Desai, J.) 297
Reverting to the two points on which the suit of the appel· A
!ants was dismissed, Mr. Lodha pointed out that the High Court
and all the statutory authorities were in error in denying to the
benefit of the provision contained in Sec. 14 of the Limitation Act
and dismissed the suit as barred by limitation. After the appel·
lants lost upto the High Court in the proceeding arising upon
B
their application under Sec. 144 of the Code of Civil Procedure,
the appellants filed a suit under Secs. 209 and 229(b) of the 1950
Act. Under the order of the Additional Commissioner, the
respondents obtained possession of the plots on June 21, 1956.
The present suit was filed in August, 1966. Suit under Sec. 209
of the 1950 Act has to be filed within the prescribed period of c
limitation and it is not in dispute that the suit filed by the appel-
lants in August, 1966 was filed beyond the period of limitation.
The appellants submitted that they are entitled to the benefit of
the provision contained in Sec. 14 of the Limitation Act. The
learned Judge and the Division Bench of the High Court have
concurrently held that the appellants were not entitled to the D
benefit claimed by them

.,
Sec.14(1) of the Limitation Act reads as under:

"14(1): In computing the period of limitation for E
any suit the time during which the plaintiff has been pro-
secuting with due diligence another civil proceeding,
whether i~ a Court of first instance or of appeal or revi-
sion, against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and is
prosecuted in good faith in a Court which, from defect of F
jurisdiction or other cause of a like nature is unable to
entertain it."
•
. In .order to attract the application of Sec. 14(1), the parties
seekmg its benefit must satisfy the court that : (1) that the part
1 fl 1amh· 'ff .· y as
tie was prosecutmg another civil proceeding. with due· G
' diligence; (ii) that the earlier proceeding and the later proceedin'
relate to the same matter in issue and (iii) the former proceed· g
was b cmg · prosecute d m · goo d f a1th
· in a court which, from de'mg,
. . d' t· h f . iect
?f JUflS ic 100 or ot er cause o a like nature, is unable to entertain
1t. It may be assumed that the earlier proceeding under Sec. 144
of the Code of Civil procedure was a civil proceeding for the
Hi
29$ SUPREME COURT REPORtS (1985] i s.c.R.

A purpose of Sec.14. It may as well be assumed in favour of the
appellants that they were prosecuting the same with due diligience
and in good faith, as they relentlessly carried the proceeding upto
the High Court invoking its extraordinary jurisdiction. The first
of the aforementioned three cumulative conditions can be said
to have been satisfied.
B
The appellants must further satisfy the court that the earlier
,
proceeding i.e. the one under Sec. 144 of the Code of Civil
Procedure related to the same matter in issue, as in the present
suit. There the appellants are not on sure ground. In a procee-
c ding under Sec. 144 of the Code of Civil Procedure, the party
applying for restitution bas to satisfy the court of first instance
that a decree under which it was made to part with the property
is varied or reversed or modified in appeal or revision or other
proceeding or is set aside or modified in any suit instituted for the
purpose and therefore, restitution must be ordered. Sec. 144 is
D founded on the equitable principle that one who has taken
advantage of a decree of a court should not be permitted to
retain it, if the decree is reversed or modified. That is why the
marginal note to Sec. 144(1) reads 'application for restitution' and
the word 'restitution' in its etmological sense means restoring
to a p~rty on the modification, variation or reversal of a decree
E
what has been lost to him in execution of the decree or in direct
consequence of the decree. In such a proceeding, the party
seeking restitution is not required to satisfy the court about its
tiile or right to the property save and showing its deprivation
under a decree and the reversal or variation of the decree. On
F the reversal by tbe Board of Revenue in the appeal filed by the
appellant of the order of the Additional Commissioner under
which the respondents obtained possession, the appellants merely
claimed in their application under Sec. 144 that in view of the •
reversal of the order by the Board of Revenue the respondents are
not entitled to retain possession and that restitution should be
G ordered because the appellants Jost possession under the order
of the Additional Commissioner which was reversed by the Board
of Revenue. The cause of action was the reversal of the order
Additional Commissioner. When they failed to obtain restitution,
the appellants filed a substantive suit under Sec. 209 and 229(b)
of the 1950 Act in which they claimed that they have become the
Bhumidars of the plots in dispute and that the respondents are
H not entitled to retain possession as their possession is not in
ZAFAR KHAN v. BOARD OF REVENUE (Desai,!.) 299

accordance with the provisions of 1950 Act. It was a suit on
title as Bhumidars for possession against respondents alleging
unauthorised retention of possession. · It had nothing to do with
the order of the Additional Commissioner. In this suit the appel-
lants were bound to prove that the respondents were not entitled
. to retain p mess ion under any of the provisions of the 1950 Act.
B
Incidently, the order of the Additional Commissioner and its
revernl wy111 fi~ ureas evidence but it is difficult to accept that
the subsequent proceeding relates to the same matter in issue as
was invoived in the earlier proceeding. Jn the application unller
Sec. 144 Code of Civil Procedure only allegation to be proved for
relief of restitution is that the. decree O' order under which respon- c
dents obtained possession from appellants has been reversed,
modified or varied. They need not prove title or right to be in
possession. In the suit, not only title to t"e land as Bhumidar
must be also the respondents had not a tital of title to retain
possession. And respondents can allege and prove that under
the very 1950 Act under which appellants became Bhumidars, the D
respondents have become adhiva1is entitled to retain posses-
sion against the appellants. This defence was not open to them
in the proceeding under Sec. 144. ft was, however, submitted
that the appellants were seeking, in both the proceeding, posses-
sion of the plots involved in the dispute on the ground that they
are nltimately entitled to the possession thereof and the possession E
of the respondents vis-a-vis the appellants was unauthorised and
they were not entitled to retain possession against the appellants.
This is far from convincing. One can at best say there is a grey
area and that as the provision of Sec. 14 is required te be construed
liberally, therefore we may not have denied the benefit it this W4S F
the cnly aspect against the appellants.

The question however is whether the third· condition for
• attracting Sec. 14(1) is satisfied. The appellants must further
satisfy the court that the earlier proceeding failed on account of
defect of jurisdiction or other cause of a like nature. Now at no G
stage it was contended that the authority to whom the application
was made for restitution had no jurisdiction to entertain the
application, nor through the course of the proceedings upto the
High Court anyone, anywhere, questioned the jurisdiction of the
authority to grant restitution. Therefore, it can be safely said
that the previous proceeding did not fail on account of !defect of
jurisdiction, '
300 SUPREME COURT REP OR TS ( 1985) 1 I C R.
A The next limb of the submission was that as in the former
proceeding restitution was refused on the ground that in the
proceeding under the 1953 Act the land in dispute was allotted
to the respondents and the allotment hld become final, it can
safely be said that the proceeding failed on account of a cause of
B like nature such as defect of jurisdiction and the appellants
would be entitled to exclude the time spent in that proceeding
while computing the period of limitation in the suit. It is true
that where the expression as a whole reads 'from defect of •
jurisdiction or other cause of a like nature is unable to entertain
it' the expression 'cause of a like nature' will have to be read
c ejusdem generis with the expression 'defect of jurisdiction'. So
construed the expres;ion 'other cause of a like nature' must be t
so interpreted as to convey something analogous to the preceding
words 'from defect of jurisdiction'. The defect of jurisdiction
goes to the root of the matter as the court is incompetent to
entertain the proceeding. The proceeding may as well fail for
D some other defect. Not all such defects can be said to be •
analogous to defect of jurisdiction. Therefore the expression
'other cause of a like nature' on which some light is shed by the
Explanation (C) to Sec. 14 which provides "misjoinder of parties
or causes of action shall be deemed to be a cause of like nature
with defect of jurisdiction", must take its colour and content
from the just preceding expression, 'defect of jurisdiction'. Prime
facie it appears that must be some preliminary objection which
if it succeeds, the court would be incompetent to entertain
the proceeding on merits, such defect could be said to be
'of the like nature' as defect of jurisdiction. Conversely if
F the party seeking benefit of the provision of Sec. 14 failed
to get the relief in eartier proceeding not with regard to
anything connected with the jurisdiction of the court of some
other defect of a like nature, it would not be entitled to •
the benefit of Sec. 14. Where, therefore, the party failed in the
earlier proceeding on merits and not ou defect of jurisdiction
G or other •c~use of a like nature, it would not be entitled to
the benefit of Sec. 14 of the Limitation Act. (Sec India Electric •.
Works [Id. v. James Mantosh & Anrl''·

The appellants failed in the earlier proceeding not on the
ground that the authority had no jurisdiction to entertain the

B
ZAFER KllAN v. BOARD OF REVENUE (Desai, J.) 301
A
application nor on the ground that there was any other defect
of a like nature, but on merits in as much as the authorities and
the High Court held that in view of the decision of the authorities
under 1953 Act, the appllents are not entitled to restitution. That
was the decision on merits of the dispute and the appellants' appli·
cation was rejected. Tl1erefore, the Wigh Court rightly declined to 8
grant benefit of the provision of Sec. 14 of the Limitation Act
to the appellants.
The second contention of the respondents which found
favour with the High Court was that the suit of the plaintiff5 was
barred by Sec. 49 of the 1953 Act. Ser., 49 reads as under :
c
' . "Bar to civil jurisdiction: Not with standing anything
contained in any other law for the time being in force, the
declaration and adjudication of rights of tenure-holders
in respect of land lying in area, for which a notification
has been issued under sub-section (~) of Section 4 or
adjudication of any other right arising out of consoli- D
dation proceedings and in regard to which a proceeding
could or ought to have been taken under the AC!,
shall be done in ~ccordance with the provisions of
the Act and no civil or revenue court shall .entertain
any suit or proceeding with respect to rights 'in such
E
land or with respect to any other matters for which a
proceeding could or ought to have been taken under the
Act."

The admitted facts are that the authority under the 1953 Act
allotted the plots in question to the respondents. It may be that F
the decision may appear to be erroneou~ in as mllch as it w~s
founded on the decision of the Additional Commissioner in
favour of the respondents which was reversed by tho Board of
' Revenue. The question is once the allotment under 1953 Act
0

became final, would a suit lie b efore the civil or revenue court
with respect to rights in land or with respect to any other matter G
for which a proceeding could or ought to have been taken under
• the 1953 Act? When the village in which the plots in dispute are
situated was put into consolidation was not made clear to us. But
the statutory authorities and the High Court while dismissing the
appeal of the appellants had noticed that the village was put into
consolidation several years before the suit from which the present
appeal arises was filed and village was denotified in the year J95~.
302 SUPREME COURT REPORTS [1985] 1 s.c.R.

A Once the village was denotified, the allotment made under the
1953 Act became final. The final allotment cannot be questioned
by the suit before civil or revenue court in view of the bar enacted
in Sec. 49.

Mr. Lodha, however, urged that when the matter was before
B the learned Single Judge in ~e High Court an application for
amendment of the writ petition was mo~·ed on behalf of the
appellants seeking to challenge that decision of the authorities
under the 1953 Act by which the names of the respondents were '
introduced in the plots and the. allotments were made in favour
of them. This application for amendment was rejected by the
c learned Single Judge. The point was not canvassed bi:fore the
Division Bench and we are of the opinion that it is of no use •
trying to infuse life into this carcass after a lapse of nearly two
decades. Further Sec. 232-A which :was introduced by Sec. 48
of Act XX of 19S4 in the 1950 Act conferred right on adhivasi
0
object anyone who has disp~ssessed him and to such a proceeding·
the provision of Section 21J9 will mutatls muta11dis apply as if he
was an asami. This provision would have certainly enabled the
respondents to claim possession from the appellants even if they
were Rhumidars on the gound that the respondents were adhivasis
E as held by the High Court. No useful purpose would therefore,
be served by re-opening the orders and decision of the authorities
under the 19'0 Act which ha.ve become final .

. These ~ere all the contentions urged in the appeal and as
we find no merit in any of them the appeal fails and is dismissed
F with no order as to costs .

•
H.S.K. Appeal dismissed

•