SHRI SAURAV JAIN & ANR. versus M/S A. B. P. DESIGN & ANR. on 5 August 2021

[2021] 8 S.C.R. 1020

SUPREME COURT REPORTS

[2021] 8 S.C.R.

SHRI SAURAV JAIN & ANR.

A

v.

M/S A. B. P. DESIGN & ANR.

(Civil Appeal No. 4448 of 2021)

B

AUGUST 5, 2021

[DR DHANANJAYA Y CHANDRACHUD ANDM R SHAH, JJ.]

Urban Land (Ceiling and Regulation) Act 1976:

Css. 5(3), 10(1), 27 – Transfer of vacant land – Validity of –On facts, first respondent claiming to be a transferable owner andcultivator of certain lands filed a suit for declaration that the auctionof said lands by the Development Authority was illegal and void;that the first respondent is the exclusive owner and occupier of thesuit lands; and sought permanent injunction from dispossessing theDfirst respondent – Trial court dismissed the suit holding that theDevelopment Authority was lawful owner of the land and the auctionwas valid – Trial court held that the suit land was of the erstwhileowner, which was declared surplus and was handed over to theDevelopment Authority, and whereas the erstwhile owner hadEallegedly sold the land to the first respondent – In appeal, the HighCourt set aside the order of the trial court holding that the auctionconducted by the Development Authority in respect of the suit landis null and void, wherein the appellant was the auction purchaserof the suit land from the Development Authority; restrained theappellant and the Development Authority from interfering with theFpossession of the first respondent over the land – On appeal, held:Purported transfer of the suit land by erstwhile owner to the firstrespondent was before the Repeal Act was enacted – Dual conditionsstipulated u/s. 5(3) were not fulfilled before the transfer was madesince the statement u/s. 6 had not been submitted and the CompetentGAuthority had not issued a notification u/s. 10(1) – Thus, even if theerstwhile owner had the title to the suit land, the transfer to the firstrespondent was null and void u/s. 5(3) – Furthermore, when theerstwhile owner had filed a declaration seeking permission fortransfer of the suit land, the permission u/s. 27 was not grantedsince there was a pending suit concerning the said land – He thenH

filed another application seeking permission to transfer half of his‘retainable’ land – Permission that was granted u/s. 27 by the Officeof the Competent Authority was for the transfer of lands from his‘retainable’ property and not the suit land – Thus, the order of theHigh Court is set aside – Suit instituted by the first respondentdismissed.

Matter pertaining to ceiling proceedings – Jurisdiction of civilcourt to entertain the suit – Exclusion of – On facts, first respondentsought a declaration in regard to the legality of the auction conductedby the Development Authority and the injunction – Plea that thepurpose of the suit was to impugn the validity of proceedings underULCRA – Held: ULCRA impliedly excludes the jurisdiction of thecivil court on matters arising out of the ceiling proceedings – Firstrespondent artfully drafted the plaint to challenge the validity ofthe auction and sought an injunction and declaration, when thesubstantive cause of action of the suit arises out of the land ceilingproceedings – Real object and purpose of the suit, in the guise orpretext of challenging the auction notice by the DevelopmentAuthority was to affirm the title of the first respondent on the basisof an alleged permission obtained for the sale of the property – Bya process of engineered drafting, the first respondent sought noreliefs in regard to the proceedings under the ULCRA (to obviate abar to the maintainability of the suit) and did not implead either theState or the Competent Authority who would have been in a positionto answer the challenge – Courts below failed to correctly assessthe issue regarding the jurisdiction of the civil court to try a suit,which in its essence, arises out of matters pertaining to the ULCRA– This Court, has warned against drafting of this nature which seeksto distract attention away from the real cause of action – Thus, thejurisdiction of the trial court to entertain the suit instituted by thefirst respondent was barred – Judicial deprecation.

Code of Civil Procedure, 1908:

Ord. XLI r. 22 – Filing of cross-objections – Explained.

Ord. XLI r. 22 – Plea that a party, in whose favour the civilcourt has decreed a suit, can raise arguments against findingswithout having to file a cross-objection, in the appeal – Held: Onlywhen a part of the decree has been assailed by the respondent, AB

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Ashould a memorandum of cross-objection be filed, otherwise, it issufficient to raise a challenge to an adverse finding of the court offirst instance before the appellate court without a cross objection –It is not necessary that a challenge to the adverse findings of thelower court needs to be made in the form of a memorandum ofcross-objection.B

Constitution of India: Art. 136 – Raising of new ground beforeSupreme Court in special leave petition – Permissibility of – Held:Under Ord. 21 r. 3(c) of the 2013 Rules, SLPs are to be confined tothe pleadings before the court whose order is challenged – However,with the leave of the Court, additional grounds can be urged at theCtime of the hearing – Though the appellant did not assail the findingof the trial court on the issue of jurisdiction before the High Courtu/Ord. XLI r. 22 CPC either by filing a memorandum of cross-objection or otherwise, he is not precluded from raising the argumentbefore this Court – This Court in view of its plenary jurisdiction u/DArt. 136 read with Art. 142 can entertain new grounds raised forthe first time if it involves a question of law which does not requireadducing additional evidence, specifically one concerningjurisdiction of the court which goes to the root of the matter –Supreme Court Rules 2013 – Ord. 21 r. 3(c) – Code of CivilProcedure, 1908 – Ord. XLI r. 22.E

Allowing the appeal, the Court

HELD: 1. The judgment of the trial judge dismissing thesuit was correct, but for the following reasons:

Conclusion

(i) The purported transfer of the suit land by ZH to the firstFrespondent was before the Repeal Act was enacted. The dualconditions stipulated under Section 5(3) of the Urban Land(Ceiling and Regulation) Act 1976-ULCRA were not fulfilledbefore the transfer was made since the statement under Section6 had not been submitted and the Competent Authority had notGissued a notification under Section 10(1) of the ULCRA (whichwas in operation at the time). Therefore, even if the ZH had thetitle to the suit land, the transfer to the first respondent was nulland void under section 5(3) of ULCRA.

(ii) When ZH had filed a declaration seeking permissionfor transfer of the suit land, the permission under Section 27 ofH

ULCRA was not granted since there was a pending suitconcerning the said land. He then filed another application seekingpermission for transfer of land admeasuring 1295 sq. mt of his‘retainable’ 2000 sq. mt. of land. The permission that was grantedunder Section 27 of ULCRA by the Office of the CompetentAuthority on 5 May 1993 was for the transfer of lands from his‘retainable’ property and not the suit land.

(iii) The plaintiff- first respondent has artfully drafted theplaint to challenge the validity of the auction and sought aninjunction and declaration, when the substantive cause of actionof the suit arises out of the land ceiling proceedings.

(iv) The ULCRA impliedly excludes the jurisdiction of thecivil court on matters arising out of the ceiling proceedings.

(v) Though the appellant did not assail the finding of thetrial court on the issue of jurisdiction before the High Court underOrder XLI Rule 22 CPC either by filing a memorandum of cross-objection or otherwise, he is not precluded from raising theargument before this Court. This Court in view of its plenaryjurisdiction under Article 136 of the Constitution read with itspower to do complete justice under Article 142, can entertainnew grounds raised for the first time if it involves a question oflaw which does not require adducing additional evidence,specifically one concerning jurisdiction of the court which goesto the root of the matter.

Thus, the impugned judgment of the High Court is set aside.The suit instituted by the first respondent is dismissed. [Para 39,40][1059-D-H; 1060-A-D]

2.1 Section 5(3) of the ULCRA states that a person holdingland in excess of the ceiling limit before the commencement ofthe Act shall not transfer the land until the land owner hasfurnished a statement under Section 6 and the CompetentAuthority has published the notification pertaining to the excessland under Section 10(1). The purported transfer by ZH in favourof the first respondent is in the teeth of and contrary to theprohibition contained in sub section (3) of Section 5. Pursuant tothe initial order dated 16 March 1988 under Section 8(4) of theULCRA, a notification was published under Section 10(1) of the AB

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AULCRA on 27 September 1988. However, once the order wasset aside by the District Judge and the case was remanded backto the Competent Authority, no further order was passed underSection 8(4) and consequently, no notification was published underSection 10(1). Thus, at the relevant time, that is between theorder dated 6 January 1993 remanding the matter to theBCompetent Authority and when the sale deed was executed on22 June 1993, there was no notification under Section 10(1) ofthe ULCRA. Thus, the dual requirement for a valid transfer underSection 5(3) was not fulfilled. Any transfer in contravention of theprovisions of Section 5(3) would be null and void. The suitCinstituted by the first respondent was founded on his alleged claimof title based on the transfer by ZH and was liable to fail on thisground alone. [Para 19][1042-G; 1043-A-D]

2.2 There is a specific finding of fact in the judgment of thetrial court that the permission which was issued on 5 May 1993Dto ZH for the transfer of 1295.04 sq mt of land was in modificationof an earlier order dated 29 March 1993. The permission was inrespect of the 2000 sq. mt of land which was retained by ZH. TheHigh Court has not adverted to this finding of fact at all nor has itfound any substantive basis to displace the finding. That apart, itis evident, that the order of the Competent Authority dated 16EMarch 1988 was set aside in appeal by the District Judge on 6January 1993 and the case was remanded for fresh adjudicationof the excess land in view of the amended Master Plan. In suchan instance, when the case was remanded, ZH could not havetransferred the suit property, having regard to the clear bar whichFis contained in the provisions of Section 5(3). No transfer of theland could have been lawfully made and any such transfer incontravention with the provision would be null and void. [Para20][1043-D-E; 1044-A-B]

2.3 Apart from the above findings which negate the basisGand foundation of the suit, the appellant-defendant has also raisedan objection to the jurisdiction of the trial court to entertain theinstant suit, given the bar on jurisdiction under the ULCRA. Theappellant submitted that the first respondent, through an artfuldrafting of the plaint in the course of the pleadings in the suitplaced in issue the entire gamut of proceedings under theH

ULCRA, without impleading either the State of Uttar Pradesh orthe Competent Authority under the ULCRA. At the outset, it isnoted that the ground of lack of jurisdiction of the trial court overthe suit was raised in the proceedings before the court of firstinstance. The trial court rejected the objection raised by theappellant-defendant on the exercise of its jurisdiction, holdingthat the suit for declaratory relief against the auction sale and foran injunction could be entertained. In the appeal against thejudgment of the trial court filed by the first respondent beforethe High Court, the appellant did not file a cross-objection againstthis finding of the trial court on the exercise of its jurisdiction.The appellant has urged before this Court that the jurisdiction ofthe civil court is impliedly excluded under the provisions of theULCRA. Reliance has been placed by the appellant on OrderXLI Rule 22 of the CPC to argue that a party, in whose favour thecivil court has decreed a suit, can raise arguments against findingswithout having to file a cross- objection, in the appeal. [Para21][1044-C-F]

2.4 Order XLI Rule 22(2) of the CPC states that a “cross-objection shall be filed in the form of a memorandum, and theprovisions of Rule 1, so far as they relate to the form and contentsof the memorandum of appeal, shall apply thereto.”It is apparentfrom the amended provisions of Order XLI Rule 22 CPC thatthere are two changes that were brought by the 1976 amendment.First, the scope of filing of a cross-objection was enhancedsubstantively to include objections against ‘findings’ of the lowercourt; second, different forms of raising cross-objections wererecognised. The amendment sought to introduce different formsof cross-objection for assailing the findings and decrees sincethe amendment separates the phrase “but may also state thatthe finding against him in the Court below in respect of any issueought to have been in his favour” from “may also take any cross-objection to the decree” with a semi colon. Therefore, the twoparts of the sentence must be read disjunctively. Only when apart of the decree has been assailed by the respondent, should amemorandum of cross-objection be filed. Otherwise, it is sufficientto raise a challenge to an adverse finding of the court of firstinstance before the appellate court without a cross objection. [Para24, 25][1047-A-B; 1048-C-E]

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ABanarsi & Ors. v. Ram Phal (2003) 9 SCC 606 : [2003]2 SCR 22; S. Nazeer Ahmed v. State Bank of Mysore(2007) 11 SCC 75 : [2007] 1 SCR 843 – referred to.

2.5 It is evident that the principle stipulated in Order XLIRule 22 CPC can be applied to petitions under Article 136 of theBConstitution because of this Court’s wide powers to do justiceunder Article 142 of the Constitution. Since the principle in OrderXLI Rule 22 of the CPC furthers the cause of justice by providingthe party other than the ‘aggrieved party’ to raise any adversefindings against them, this Court can draw colour from OrderXLI Rule 22 CPC and permit objections to findings. [ParaC27][1051-A-B]

Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar FulsinjiAIR 1965 SC 669 : [1965] 1 SCR 712; Vashist NarainSharma v. Dev Chandra [1955] 1 SCR 509; JamshedHormusji Wadia v. Port of Mumbai (2004) 3 SCC 214 :D[2004] 1 SCR 483 – referred to.

2.6 From the above it has been established that it notnecessary that a challenge to the adverse findings of the lowercourt needs to be made in the form of a memorandum of cross-objection. In the instant case, it is noted that the appellant hadEraised an objection to the jurisdiction of the trial court forentertaining the suit on the ground that an injunction anddeclaratory relief could not have been given. Although the trialcourt passed a decree in favour of the appellant, it had decidedagainst the appellant on the question of jurisdiction. This findingFwas not challenged by the appellant before the High Court in theform of a memorandum of cross-objection. The judgment of theHigh Court makes no mention that a plea of lack of jurisdictionwas taken by either the appellant or the MDA. Before this Court,the appellant has not filed the counter-affidavit it had filed beforethe High Court. Thus, the conclusion that emanates from theGrecord before this Court is that the ground of jurisdiction wasonly raised by the appellant before the trial court and not beforethe High Court. In effect then, this Court would have to adjudicateon a plea, which did not form a part of the decision of the HighCourt in challenge before this Court. [Para 28][1051-B-F]H

2.7 With regard to new grounds being raised before thisCourt in a special leave petition under Article 136, it is notedthat under Order 21 Rule 3(c) of the Supreme Court Rules 2013,SLPs are to be confined to the pleadings before the court whoseorder is challenged. However, with the leave of the Court,additional grounds can be urged at the time of the hearing. It isjust to allow the appellant to raise the ground of jurisdiction beforethis Court. Allowing the ground to be raised would not requirethe submission of additional evidence since it is a pure questionof law and strikes at the heart of the matter. [Para 29, 34][1051-F-G; 1054-B-C]

Bharat Kala Bhandar (P) Ltd. v. Municipal CommitteeAIR 1966 SC 249 : [1965] 3 SCR 499; Vasant KumarRadhakisan Vora v. Board of Trustees of the Port ofBombay (1991) 1 SCC 761 : [1990] 3 SCR 825;Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474 :[1974] 1 SCR 290; Most Rev. P.M.A. Metropolitan v.Moran Mar Marthoma (1995) 4 Suppl. SCC 286 :[1995] 1 Suppl. SCR 542; Masalti v. State of UttarPradesh AIR 1965 SC 202 : [1964] 8 SCR 133 – reliedon.

2.8 The pleadings in the suit indicate that the case of thefirst respondent was that ZH had obtained the permission of theCompetent Authority on 5 May 1993 before transferring the landsin favour of the first respondent on 22 June 1993; that the ceilingproceedings under the ULCRA had resulted in an order of theCompetent Authority dated 16 March 1988 declaring 1295.04sq. mt as surplus but the order of the Competent Authority hadbeen set aside in appeal on 6 January 1993 and the proceedingshad been remanded; that as a result of the Repeal Act, proceedingsunder ULCRA stood abated; and that the first respondentcontinued to be the owner of 1295.04 sq. mt of Gata No. 200/1,while MDA was the owner of only 200 sq. mt. of lands in Gata No.200/2. In other words, the basis on which the first respondentsought a declaration in regard to the legality of the auctionconducted by MDA and the injunction was the abatement of theproceedings under the ULCRA. [Para 35][1054-C-G]

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1028SUPREME COURT REPORTS[2021] 8 S.C.R.

ACompetent Authority, Calcutta, Under the Urban Land(Ceiling and Regulation) Act, 1976 v. David Mantosh(2020) 12 SCC 542 : [2019] 4 SCR 331; Dhulabhai v.State of M.P AIR 1969 SC 78 : [1968] 3 SCR 662 –referred to.

B2.9 The real object and purpose of the suit, in the guise orpretext of challenging the auction notice by MDA was to affirmthe title of the first respondent on the basis of an allegedpermission obtained on 5 May 1993 for the sale of the property,the deed of transfer executed by ZH and the abatement ofproceedings under the ULCRA. The High Court held that theCdocument dated 31 July 1992 on the basis of which possessionwas transferred to MDA does not evidence actual physicalpossession but is only a paper transaction. The High Court heldthat no material was forthcoming on whether actual and physicalpossession was taken by the Competent Authority from the landDowner and it held that in the absence thereof, the first respondent,as the purchaser from ZH, would continue to have a valid title.The High Court entered these findings despite the fact that by aprocess of engineered drafting, the first respondent sought noreliefs in regard to the proceedings under the ULCRA (to obviatea bar to the maintainability of the suit) and did not implead eitherEthe State or the Competent Authority who would have been in aposition to answer the challenge. [Para 36][1057-D-G]

2.10 Both the High Court and trial court failed to correctlyassess the issue regarding the jurisdiction of the civil court totry a suit, which in its essence, arises out of matters pertaining toFthe ULCRA. The first respondent has made efforts to artfullydraft the plaint in a manner that would make it appear as if theissue only pertains to the auction notice issued by MDA. ThisCourt, has time and again, warned against drafting of this naturewhich seeks to distract attention away from the real cause of action.GTherefore, the jurisdiction of the trial court to entertain the suitinstituted by the first respondent was barred. [Para 37][1057-G-H; 1058-A-B, G]

T. Arivandandam v. T.V Satyapal (1977) 4 SCC 467 :[1978] 1 SCR 742; Madanuri Sri Rama Chandra H

Murthy v. Syed Jala (2017) 13 SCC 174 : [2017] 5SCR 294; Sopan Sukhdeo Sable v. Assistant CharityCommissioner (2004) 3 SCC 137 : [2004] 1 SCR 1004;Raghwendra Sharan Singh v. Ram Prasanna Singh(Dead) by LRs AIR 2019 SC 1430 : [2019] 4 SCR 1069;Canara Bank v. P. Selathal & Ors. (2020) 13 SCC 143– relied on.

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2.11 The High Court allowed the appeal against thejudgment of the trial court on the ground that after the districtjudge allowed the appeal and set aside the order passed by theCompetent Authority under Section 8(4) of ULCRA, all furtherproceedings pursuant to the order under section 8(4) of ULCRA-including the taking of possession by the State would be null andvoid. It was held that even otherwise, only ‘paper possession’and not ‘actual possession’ of the suit land was taken, and thus inthese circumstances ZH would have both the title and possessionof the suit land. The findings of the High Court are a non-sequitursince even if ZH had title and possession of the suit land at thetime of transfer, the purported transfer to the first respondent isnull and void. The High Court ought to have upheld the dismissalof the suit on this ground. A plaintiff has to stand on their ownlegs and the respondent – plaintiff had no valid title or interest inlaw on the basis of which the suit could have been founded. Therespondent-plaintiff had no cause of action to challenge the auctionby MDA in favour of the appellant, once the purported transferwas invalid. [Para 38][1058-G; 1059-A-D]

DE

Ritesh Tiwari & Ors. v. State of U.P & Ors. 2011 (84)A.L.R. 292 (SC) – referred to.

F

From the Judgment and Order dated 22.02.2018 of the High Courtof Judicature at Allahabad in First Appeal No.411 of 2011.

EVenkita Subramoniam T.R., Arvind Mohan, Rahat Bansal, LikhiChand Bonsle, Advs. for the Appellants.

Manoj Swarup, Sr. Adv., Jawad Tarikh, Mrigank Prabhakar,Rakesh Uttamchandra Upadhyay, Advs. for the Respondents.

The Judgment of the Court was delivered byF

DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.

1. This appeal arises from a judgment dated 22 February 2018 ofthe High Court of Judicature at Allahabad in a first appeal[1 ]under Section96 of the Code of Civil Procedure 1908 (“CPC”). On 18 October 2011,Gthe Additional District and Sessions Judge, Moradabad dismissed a suit[2]instituted by the first respondent. The High Court allowed the appeal bythe first respondent and reversed the judgment of the Trial Court,holdingthat the auction conducted by Moradabad Development Authority 1 First Appeal No. 411 of 2011.H2 Original Suit No.602 of 2008.

(“MDA”) in respect of the land in dispute is null and void. The appellantis an auction purchaser who purchased the suit land from the MDA.MDA has been impleaded as the second respondent to these proceedings.Both the appellant and the second respondent have been restrained frominterfering with the possession of the first respondent over the land.

Facts

2. The first respondent instituted a suit in the Court of the CivilJudge (Senior Division), Moradabad claiming to be a “transferable ownerand cultivator” of lands comprising of Gata No.200/1 admeasuring 0.1300hectares equivalent to 1295.04 sq. mts. situated in village Sonakpur, inthe city and district of Moradabad. MDA wasimpleaded as the firstdefendant while the appellant was the second defendant to the suit. Theaverments in the plaint need to be adverted to at this stage.A person bythe name of Zahid Hussainhad title over vacant land admeasuring 6960.84sq. mts in Moradabad. Ceiling case no. 437/5325 (titled State vs. ZahidHussain) was instituted against him in the Court of the CompetentAuthority, Urban Land Ceiling, Moradabad in respect of his lands includingthe lands comprised in Gata No.200 admeasuring 1295.04 sq. mts. Byan order dated 16 March 1988, the land comprised in Gata No. 200,amongother pieces of land, was declared as “surplus” by the CompetentAuthority under the Urban Land (Ceiling and Regulation) Act 1976(“ULCRA”). Pursuant to the orderof the Competent Authority,possession of the land in Gata No. 200 was allegedly handed over by theState of Uttar Pradesh to the MDA. Meanwhile,Zahid Hussain filed arevenue appeal[3 ]before the District Judge, Moradabad against the orderdated 16 March 1988. By an order dated 6 January 1993, the DistrictJudge allowed the appeal and remanded the proceedings for re-consideration to the Competent Authority on the basis of an amendedMaster Plan.

3. It is the case of the plaintiff that Zahid Hussain was the erstwhileowner and occupier of lands comprised in Gata No.200 admeasuring0.32 acres. Out of the above holding, land admeasuring 0.05 acres(equivalent to 0.0200 hectares or 200 sq. mt.) was acquired by MDA on30 January 1986 under the provisions of the Land Acquisition Act, 1894.After the acquisition, Gata No.200 was divided into two plots:

3 Revenue Appeal No. 23 of 1988.

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A• Gata No.200/1 measuring 0.1300 hectares (1300 sq. mt.)• Gata No.200/2 measuring 0.2000 hectares (200 sq. mt.)

Zahid Hussain is stated to have become the owner of Gata No.200/1, while MDA became the owner of Gata No.200/2. The case of theplaintiff in the suit is that after the ceiling case was remanded to theBCompetent Authority and during its pendency, Zahid Hussain obtainedpermission to sell the lands situated in Gata No. 200/1 to the firstrespondent from the Office of the Prescribed Authority, Urban LandCeiling, Moradabad on 5 May 1993. The first respondent claims to havepurchased Gata No. 200/1 admeasuring 1295.04 sq. mt. from ZahidCHussain by a registered sale deed dated 22 June 1993. During thependency of the ceiling case before the Competent Authority, ULCRAwas repealed by Act 15 of 1999 (“Repeal Act”). The CompetentAuthority (City Land Boundary), Moradabad passed an order dated 15June 2001 dismissing CaseNo. 437/5325 in view of Section 4 of theRepeal Act which states that proceedings pending before any court,Dtribunal, or authority shall stand abated.

4. In this manner, it was alleged that the eclipse of ceiling overGata No.200/1 measuring 1295.04 sq. mt. was lifted. The plaintiff – firstrespondent claimed to be the owner of the entire areaof 1295.04 sq.mt., while MDA was entitled to ownership rights over Gata No. 200/2 inErespect of 200 sq. mt. of land.

5. MDA published a notice on 31 August 2008 for auction andsale of 600 sq. mt. of land in Gata No.200. The first respondent claimsto have submitted representations on 2 September 2008 and 4 September2008 against the auction. The first respondent instituted a writFpetitionagainst the State of Uttar Pradesh and MDA before the HighCourtchallenging the auction. By an order dated 11 September 2008, theHigh Court disposed of the petition with liberty to the first respondent toseek reliefs in a civil suit. The auction sale in favour of the appellant isstated to have been approved on 12 September 2008, and a sale deedGwas executed between the MDA and the appellant on 20 March 2009for a consideration of Rs. 65,75,000.

6. The first respondent challenged the auction proceedings in thesuit on the ground that MDA had title only over the land measuring 200sq. mt (that is, Gata No.200/2) of the auctioned land, and thus the sale ofthe remaining land measuring 400 sq. mt. was null and void in view ofH

the sale deed executed by Zahid Hussain in favour of the first respondenton 22 June 1993.In the suit, as it was originally instituted, the reliefssought were:

(i) A declaration that the auction of land to the extent of 400 sq.mt.by MDA is illegal and void;

(ii) A permanent injunction restraining MDA from alienating thesuit land in favour of the appellant and from dispossessing thefirst respondent. The particulars of the suit land as indicatedin the plaint were as follows:

“PARTICULARS OF SUIT LANDS

Lands measuring 400 Sq. Mt. of Gata no.200/1 a part oferstwhile integrated Gata no.200 situated in VillageSonakpur,City and District Moradabad.”

The plaint was amended to seek:

(i) A declaration that the auction of lands measuring 660.32 sq.mt. by MDA was illegal and void;

(ii) A declaration that the first respondent isthe exclusive ownerand occupier of the suit lands detailed in schedule (B) includingthe suit lands in schedule A; and

(iii) A permanent injunction from dispossessing the firstrespondent.

7. Shri Sai Siddhi Developers was impleaded as the third defendantto the suit. The amended plaint set up the pleathat before the lands weretransferred in favour of the first respondent by Zahid Hussain, the latterhad obtained permission of the Competent Authority, Moradabad on 5May 1993. Schedule (A) and Schedule (B) of the amended plaint areextracted below:

“SCHEDULE ‘A’ OF SUIT LANDS

Lands measuring 660.32 Sq. Mt. of Gata no.200/1 apart oferstwhile integrated Gata no.200 situated inVillage Sonakpur, Cityand District Moradabad which isshown in the enclosed site planwith alphabets BCDE.

The boundaries of the above gata are as under –

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SUPREME COURT REPORTS

[2021] 8 S.C.R.

AEast: Police Post

West: 12 Mt. wide road.

North: Kaanth Road.

South: Commercial Plot no.7 (Property of the Plaintiff).

BSCHEDULE ‘B’ OF THE SUIT LANDS

Lands measuring 1295.04 Sq. Mt. of Gata no.200/1 a part oferstwhile integrated Gata no.200 situated inVillage Sonakpur, Cityand District Moradabad which isshown in enclosed site plan withalphabets ABCDEF.

C

The boundaries of the above gata are as under - East: Police Post and thereafter plot ofHaji Qayum West: 12 Mt. wide road.

North: Kaanth Road.

D

South: Plot and lands of Praan Singh.”

8. MDA filed a written statement stating that:

(i) Possession of the suit land in Gata No. 200/1 was takenover by the State Government after the land was declaredEto be surplus, and was transferred by the Naib Tehsildar,Sadar, Moradabad and Collector, Moradabad to theMDAon 31 July 1992. MDA has been in possession of the suitland in Gata No. 200/1since then till it was sold throughauction; F(ii)A registered sale deed of 660.32 sq. mt. was executed on20 March 2009;

(iii) The ceiling proceedings against Zahid Hussainwereconcluded and thus, he is not entitled to avail of thebenefit under the Repeal Act; G

(iv) No permission had been granted by the CompetentAuthority, Urban Ceiling, Moradabad to Zahid Hussain forthe transfer of the suit lands of Gata No. 200/1;

(v) The sale deed executed between Zahid Hussain and thefirst respondent after possession had been taken over byHMDA on 31 July 1992 is invalid; and

(vi) The State of Uttar Pradesh and the Ceiling Authority werenecessary parties but were not impleaded in the suit.

9. The appellant (defendant no. 2 before the Trial Court) filed awritten statement stating that:

(i) The entire suit land had vested in the State Governmentunder Section 10(3) of the ULCRA;

(ii) The sale deed dated 22 June 1993 by Zahid Hussain infavour of the first respondent was void since he could nothave entered into any transaction when the land was underadjudication by the Competent Authority, Urban LandCeiling;

(iii) The land was alleged to have been transferred on 31 July1992 to MDA and any sale deed executed allegedly to thefirst respondent-plaintiff on 22 June 1993 would confer notitle on the purchaser;

(iv) Therevenue appeal before the District Judge against theorder of the Competent Authority could not have beendisposed of without impleading MDA;

(v) Since MDA was in possession of the land before theenforcement of the Repeal Act(pursuant to thecommunication dated 31 July 1992 of the CompetentAuthority, Urban Land Ceiling),the repeal would be of noconsequence; and

(vi) The plaintiff – first respondent had no concern with theauction of the land admeasuring 660.32 sq. mt. by MDAfor which a consideration of Rs.65.75 lacs hadbeen paid inauction.

10. The following issues were framed in the suit:

“1. Whether Plaintiff is the owner and occupierof the Suit lands?

2. Whether auction proceedings initiated bydefendant no.1 infavour of defendant no.2 on 12.9.2008 to the extent of disputedschedule admeasuring 660.32 Sq. Mt., are illegal and void?

3. Whether Suit has been undervalued?

4. Whether deficit court-fee has been paid?

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A5. Whether Suit of plaintiff is bad formisjoinder of necessaryparties?

6. Whether this Court doesn’t have anyjurisdiction to hear thisSuit?

7. Whether any cause of action has arisen infavour of Plaintiff?B

8. Relief.”

11. By its judgment dated 18 October 2011, the Trial Court heldthat it had the jurisdiction to grant declaratory and injunctive relief andthat the suit was therefore maintainable.The Trial Court dismissed theCsuit holding that the MDA was the lawful owner of the land and theauction held on 12 September 2008 was valid. The Trial Judge made thefollowing findings:

(i) Zahid Hussain was the erstwhile owner of Gata No.200admeasuring 1295.04 sq. mt. situated in village Sonakpur,District Moradabad;D

(ii) By an order dated 16 March 1988 passed by the CompetentAuthority in Ceiling Case No. 437/5325 under the ULCRA,a total holding of 2,000 sq. mt. out of 6960.84 sq. mt. landwas declared to be retainable while the balance admeasuring4960.84 sq. mt. was declared surplus;E

(iii) The lands admeasuring 1295.04 sq. mt. in Gata No.200 werefound to be ‘excess vacant land’;

(iv) Possession of 1295.04 sq. mt out of Gata No.200 in villageSonakpur was handed over by the Naib Tahsildar UrbanFLand Ceiling, Moradabad to the Naib Tahsildar of MDA on31 July 1992 on behalf of the District Collector. When anappeal was filed before the District Judge, Moradabadagainst the order dated 16 March 1988,the fact thatpossession of the suit landhad been handed over to theMDAwas not brought to the notice of the court.In any event,Gthe case wasremanded to the Competent Authority in orderto take into consideration the amended Master Plan. In themeantime, prior to the order of the District Judge, possessionof 1295.04 sq. mt of Gata No.200 was handed over to MDAon 31 July 1992 pursuant to which it was the legal owner ofHthe aforesaid land in Gata No.200;

(v) Zahid Hussain who is alleged to have sold the land to theAfirst respondent – plaintiff had not come forth before thecourt nor was the original sale deed dated 22 June 1993alleged to be executed by him filed in court. Only a certifiedcopy of the sale deed was filed;

(vi) MDA to whom the lands were handed over on 31 July 1992was not a party to the revenue appeal before the DistrictJudge nor had the Competent Authority in its order dated15 June 2001, abating the proceedings in the ceiling case,directed that ‘possession’ should be restored to ZahidHussain; B

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(vii) Possession had already been transferred to MDA on 31July 1992 and the acquisition would not be affected by theRepeal Act since the land had vested under Section 10(3)of the ULCRA, and possession had been taken over by aperson duly authorised by the State Government (SectionD3(1)(a) of the Repeal Act);

(viii) According to the first respondent, Zahid Hussain hadobtained permission on 5 May 1993 to sell the landsadmeasuring 1295.04 sq. mt. of Gata No. 200/1. The entireproceedings appear to be fabricated because Zahid Hussainwas no longer the owner of 1295.04 sq. mt of Gata No.200/1.The possession of Gata No.200had been transferredto MDA on 31 July 1992. Moreover, the permission whichwas granted to Zahid Hussain on 5 May 1993 to sell thelands was not in respect of land which had been declaredas surplus but only in respect of his own retainable landsadmeasuring 2000 sq. mt., which did not include the land inGata No. 200/1; and E

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(ix) Since an order had already been passed under Section 8(4)of the ULCRA with respect to the suit lands, Zahid Hussaindid not have any right to transfer the land (in accordancewith the law laid down by this Court in Ritesh Tiwari &Ors. v. State of U.P & Ors.[4]).

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A12. The High Court by its judgment dated 22 February 2018reversed the judgment and decree of the Trial Court. The Division Benchof the High Court while allowing the appeal observed that:

(i) Against the order of the Competent Authority dated 16March 1988, the District Judge, Moradabad allowed theBappeal on 6 January 1993 and the Competent Authority wasdirected to decide the matter afresh after taking intoconsideration the amended Master Plan;

(ii) In the meantime, a notification had been issued on 27September 1988 under Section 10(1) of ULCLRAvestingCsurplus land in the State including Gata No.200 admeasuring1295.04 sq. mt.;

(iii) No material had been forthcoming on record on whetherany subsequent proceedings were undertaken;

(iv) It was not clear as to when possession was taken by theDCompetent Authority from the landowner under ULCRA;

(v) The letter dated 31 July 1992 which is addressed to theCompetent Authority, Urban Land Ceiling, Moradabadstating that possession had been handed over by the NaibTahsildar, Urban Land Ceiling, MDA is only to show aE“paper possession” and not “actual physical possession”under Section 10(5)[5] or 10(6) of the ULCRA[6]. For “actualpossession” to have been taken, possession should havebeen taken by drawing a panchnama; F

5 “10(5). Where any vacant land is vested in the State Governmentunder sub-section (3), the competent authority may, by notice in writing,order any person who may be in possession of it to surrender or deliverpossession thereof to the State Government or to any person dulyauthorised by the State Government in this behalf within thirty days ofGthe service of the notice”.

6 “10(6). If any person refuses or fails to comply with an order madeunder sub-section (5), the competent authority may take possession ofthe vacant land or cause it to be given to the concerned State Governmentor to any person duly authorised by such State Government in this behalfand may for that purpose use such force as may be necessary”.H

(vi) Since an appeal against the order dated 6 March 1988 wasAallowed on 6 January 1993 remanding the case to theCompetent Authority, the order declaring the land as surpluswould not remain in existence. Thus, no question of a validvesting of title in the State or of it taking possession wouldarise. The subsequent proceedings would become nullandBvoid and the land would continue to belong to Zahid Hussain;

(vii) After the issuance of a notification under Section 10(1) on27 September 1988, no other notification was publishedunder Section 10(3) of the ULCRA. Hence, the issueofdeemed physical possession of the land and its vesting inCthe State Government would not arise. Even otherwise, theRepeal Act only saves those proceedings where actualpossession under Section 10(5)(peaceful or voluntary) orSection 10(6) (forcible possession) has been taken, and itdoes not apply to deemed possession; D

(viii) In the written statement filed by MDA, there was noreference to actual possession being taken apart from theletter of possession dated 31 July 1992, which was only apaper transaction. Even this letter is not a memo ofpossession transferring possession to MDA; E

(ix) In the absence of physical taking over of possession and ofthe handing overof possession to MDA on the enforcementof the Repeal Act, the land comprised in Gata No.200admeasuring 1295.04 sq. mt. remained the property of ZahidHussain; and F

(x) The fact that proceedings for possession under Section 10(5)had not been undertaken was adverted to in the order ofCompetent Authority dated 15 June 2001.

Submissions

13. Mr Venkita Subramoniam T.R., learned Counsel appearing onbehalf of the appellant submitted that the judgment of the High Court iserroneous for the following reasons:

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(i) The jurisdiction of the civil court to entertain the suit wasbarred since a fair reading of the plaint would make itevident that the object and purpose of the suit was to impugn H

Athe validity of the proceedings under the ULCRA withoutimpleading either the State of Uttar Pradesh or theCompetent Authority under the ULCRA;

(ii) The purchase of the lands by the first respondent from ZahidHussain in 1993 is hit by the provisions of Section 5(3) andBSection 27 of ULCRA;

(iii) The sale deed in favour of the first respondent was void,and hence the basis and foundation on which the firstrespondent instituted the suit stands nullified;

(iv) As a matter of fact, possession was taken and handed overCto MDA on 31 July 1992; and

(v) The original claim in the suit was subsequently expandedthrough an amendment to set up a plea over a larger areaof land.

D14. On the other hand, Mr Manoj Swarup, learned Senior Counselappearing on behalf of the first respondent submitted that:

(i) Originally in 1986, an acquisition took place under theprovisions of the Land Acquisition Act 1894 of an areaadmeasuring 200 sq. mt. in Gata No. 200. As a consequence,the remaining portion of the land was divided into GataENo.200/1 admeasuring 1295.04 and Gata No.200/2admeasuring 200 sq. mt;

(ii) Though an order was passed by the Competent Authorityin 1988, by the order of the District Judge dated 6 January1993,the case was remanded back to the CompetentFAuthority for reconsideration of the matter on the basis ofthe amended Master Plan, and there is no evidence in regardto any further proceedings prior to the enactment of theRepeal Act;

(iii) The frame of the suit was proper because the cause ofGaction arose due to the advertisement which was issuedon31 August 2008 by MDA for the auction of 660 sq. mt ofland, which included a portion of the suit land in Gata No.200/1. The suit in other words had nothing to do with theceiling proceedings; H

(iv) The cornerstone of the case of the appellant is theApossession letter dated 31 July 1992 which is in the natureof an inter-departmental communication. In the absence ofa panchnama with independent witnesses, it is not possibleto hold that actual physical possession was taken over;

(v) Even if the document evidencing possession dated 31 July1992 is considered to be valid, subsequently in 1993 therewas a remand by the District Judge as a consequence ofwhich there would be no vesting in the State prior to thedate of the repeal; and B

(vi) After the issuance of a notification under Section 10(1) on27 September 1988, there is no evidence of any furthersteps having been taken to take possession before theRepeal Act came into force.

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Analysis

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15. The rival submissions shall now be considered.

16. At the outset, it needs to be noted that the first respondentclaims title on the basis of a registered sale deed dated 22 June 1993under which Zahid Hussain purportedly conveyed an area admeasuring1295.04 sq. mt. in Gata No.200/1 for a consideration of Rs. 5 lacs. Thesale deed refers to the permission sought for the sale of the propertyunder Section 27 of the ULCRA on 29 March 1993, which was allegedlygranted by an order dated 5 May 1993.

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17. The declaration filed by Zahid Hussain before the Office ofthe Prescribed Authority, Urban Land Ceiling, Moradabad adverts tothe total extent of the land as 1295.04 sq. mt. However, there is noreference to the survey number (or gata number) of the lands in respectof which permission was sought. Further, the order dated 5 May 1993,which allegedly grants permission for sale of the land to the firstrespondent, notes that a declaration dated 29 March 1993 was made fortransfer of the land situated at Sonakpur, bearing Gata No. 200, with anarea of 1295.04 sq. mts. However, the permission for transfer of thatland was not granted as there was a pending suit pertaining to it. Theorder further notes that another application dated 30 March 1993 wassubmitted by Zahid Hussain. After conducting an enquiry, it was foundthat the permission to “transfer the land area 1295.04 sq mt. ha[d] nowbeen sought from his [Zahid Hussain’s] property of admeasuring 2000

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Asq mt”. Based on this, the Competent Authority by its order dated 5 May1993 granted permission for transfer of land measuring 1295.05 sq. mtfrom land measuring 2000 sq. mt. Thus the order dated 5 May 1993indicates that the Competent Authority had categorically denied permissionfor transfer of lands situated in Gata No. 200/1 since there was a pendingsuit, and the permission was only granted for 1295.05 sq. mt. of land outBof the 2000 sq. mt. of land owned by Zahid Hussain, which was not thesubject of the ceiling proceedings.

18. Section 5(3) of the ULCRA is in the following terms:

“In any State to which this Act applies in the first instance and inCany State which adopts this Act under clause (1) of article 252 ofthe Constitution, no person holding vacant land in excess of theceiling limit immediately before the commencement of this Actshall transfer any such land or part thereof by way of sale,mortgage, gift, lease or otherwise until he has furnished a statementunder section 6 and a notification regarding the excess vacantDland held by him has been published under sub-section (1) of section10; and any such transfer made in contravention of this provisionshall be deemed to be null and void”.

Section 27(1) further provides:

E“(1) Notwithstanding anything contained in any other law for thetime being in force, but subject to the provisions of sub-section (3)of section 5 and sub-section (4) of section 10, no person shalltransfer by way of sale, mortgage, gift, lease for a period exceedingten years, or otherwise, any urban or urbanisable land with a building(whether constructed before or after the commencement of thisFAct) or a portion only of such building for a period of ten years ofsuch commencement or from the date on which the building isconstructed, whichever is later, except with the previouspermission in writing of the competent authority.”

19. Section 5(3) states that a person holding land in excess of theGceiling limit before the commencement of the Act shall not transfer theland until (a) the land owner has furnished a statement under Section 6[7]; 7 “6. (1) Every person holding vacant land in excess of the ceiling limit at thecommencement of this Act shall, within such period as may be prescribed, file a statementbefore the competent authority having jurisdiction specifying the location, extent,value and such other particulars as may be prescribed of all vacant lands and of anyH

and (b) the Competent Authority has published the notification pertainingto the excess land under Section 10(1)[8]. The purported transfer by ZahidHussain in favour of the first respondent is in the teeth of and contraryto the prohibition contained in sub section (3) of Section 5. Pursuant tothe initial order dated 16 March 1988 under Section 8(4) of the ULCRA,a notification was published under Section 10(1) of the ULCRA on 27September 1988. However, once the order was set aside by the DistrictJudge and the case wasremanded back to the Competent Authority, nofurther order was passed under Section 8(4) and consequently, nonotification was published under Section 10(1). Thus, at the relevanttime, that is between the order dated 6 January 1993 remanding thematter to the Competent Authority and when the sale deed was executedon 22 June 1993, there was no notification under Section 10(1) of theULCRA. Thus, the dual requirement for a valid transfer under Section5(3) was not fulfilled. Any transfer in contravention of the provisions ofSection 5(3) would be null and void. The suit instituted by the firstrespondent was founded on his alleged claim of title based on the transferby Zahid Hussain and was liable to fail on this ground alone.

20. There is a specific finding of fact in the judgment of the TrialCourt that the permission which was issued on 5 May 1993 to ZahidHussain for the transfer of 1295.04 sq mt of land was in modification ofan earlier order dated 29 March 1993. The permission was in respect ofthe 2000 sq. mt of land which was retained by Zahid Hussain. The HighCourt has not adverted to this finding of fact at all nor has itfound any other land on which there is a building, whether or not with a dwelling unit therein, heldby him (including the nature of his right, title or interest therein) and also specifying thevacant lands within the ceiling limit which he desires to retain[..](2)[…](a)[…]

(b) in any State which adopts this Act under clause (1) of article 252 of the Constitution,any person holds at the commencement of this Act, vacant land in excess of the ceilinglimit, then, notwithstanding anything contained in sub-section (1), it may serve a noticeupon such person requiring him to file, within such period as may be specified in thenotice, the statement referred to in sub-section (1)”.

8 “10. (1) As soon as may be after the service of the statement under section 9 on theperson concerned, the competent authority shall cause a notification giving the particularsof the vacant land held by such person in excess of the ceiling limit and stating that- (i)such vacant land is to be acquired by the concerned State Government; and (ii) theclaims of all persons interested in such vacant land may be made by them personally orby their agents giving particulars of the nature of their interests in such land, to bepublished for the information of the general public in the Official Gazette of the Stateconcerned and in such other manner as may be prescribed”.

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Asubstantive basis to displace the finding. That apart, it is evident, that theorder of the Competent Authority dated 16 March 1988 was set asideinappeal by the District Judge on 6 January 1993 and the case was remandedfor fresh adjudication of the excess land in view of the amended MasterPlan. In such an instance, when the case was remanded, Zahid Hussaincould not have transferred the suit property, having regard to the clearBbar which is contained in the provisions of Section 5(3). No transfer ofthe land could have been lawfully made and any such transfer incontravention with the provision would be null and void.

21. Apart from the above findings which negate the basis andfoundation of the suit, the appellant-defendant has also raised an objectionCto the jurisdiction of the Trial Court to entertain the present suit, giventhe bar on jurisdiction under the ULCRA. The appellant has submittedthat the first respondent, through an artful drafting of the plaint in thecourse of the pleadings in the suit placed in issue the entire gamut ofproceedings under the ULCRA, without impleading either the State ofDUttar Pradesh or the Competent Authority under the ULCRA. At theoutset, we note that the ground of lack of jurisdiction of the Trial Courtover the suit was raised in the proceedings before the court of firstinstance. The Trial Court rejected the objection raised by the appellant-defendant on the exercise of its jurisdiction, holding that the suit fordeclaratory relief against the auction sale and for an injunction could beEentertained. In the appeal against the judgment of the Trial Court filedby the first respondent before the High Court, the appellant did not file across-objection against this finding of the Trial Court on the exercise ofits jurisdiction. The appellant has urged before this Court that thejurisdiction of the civil court is impliedly excluded under the provisions of Fthe ULCRA. Reliance has been placed by the appellant on Order XLIRule 22 of the CPC to argue that a party, in whose favour the civil courthas decreed a suit, can raise arguments against findings without havingto file a cross- objection, in the appeal.

22. Order XLI Rule 22(1) reads in the following terms:G“(1) Any respondent, though he may not have appealed from anypart of the decree, may not only support the decree [but may alsostate that the finding against him in the Court below in respect ofany issue ought to have been in his favour; and may also take anycross-objection] to the decree which he could have taken by wayHof appeal provided he has filed such objection in the Appellant

Court within one month from the date of service on him or hispleader of notice of the day fixed for hearing the appeal, or withinsuch further time as the Appellate Court may see fit to allow.

[Explanation. – A respondent aggrieved by a finding of the Courtin the judgment on which the decree appealed against is basedmay, under this rule, file cross-objection in respect of the decreein so far as it is based on that finding, notwithstanding that byreason of the decision of the Court on any other finding which issufficient for the decision of the suit, the decree, is, wholly or inpart, in favour of that respondent.]”

Order XLI Rule 22 CPC was amended by the CPC Amendment(Act 104 of 1976), with effect from 1 February 1977. The text of thepre-amendment and post-amendment provision is reproduced below:

Order XLI Rule 22 prior to its amendmentOrder XLI Rule 22 as amended by Act 104 of 1976 R.22. Upon hearing, respondent may object to R.22. Upon hearing, respondent way object to decree as if he had preferred a separate appeal-decree as If he had preferred a separate appeal-

(1) Any respondent, though he may not have appealed from any part of the decree, may not (1) Any respondent, though he may not have only support the decree on any of the grounds appealed from any part of the decree, may not only decided against him in the Court below, but take support the decree [but may also state that the any cross-objection to the decree which he could finding against him in the Court below in respect have taken by way of appeal, provided he has of any issue ought to have been in his favour; filed such objection in the Appellate Court and may also take any cross-objection] to the within one month from the date of service on decree which he could have taken by way of appeal him or his pleader of notice of the day fixed for provided he has filed such objection in the hearing the appeal, or within such further time Appellant Court within one month from the date of as the Appellate Court may see fit to allow. service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

[Explanation. – A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]

23. The effect of the amendment was considered in Banarsi &Ors. v. Ram Phal[9], where this Court held that after the 1976 amendment,the respondent could file cross-objections against the ‘findings’ of thelower court, while previously cross-objections could only be filed whenthe decree of the lower court was partly against the respondent. Justice 9 (2003) 9 SCC 606.

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AR.C Lahoti (as the learned Chief Justice then was), speaking for thetwo judge bench observed:

“10-. […] There may be three situations:

(i) The impugned decree is partly in favour of the appellantand partly in favour of the respondent.

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(ii) The decree is entirely in favour of the respondent thoughan issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and allthe issues have also been answered in favour of the respondentbut there is a finding in the judgment which goes against theCrespondent.

11. In the type of case (i) it was necessary for the respondent tofile an appeal or take cross-objection against that part of the decreewhich is against him if he seeks to get rid of the same though thatpart of the decree which is in his favour he is entitled to supportwithout taking any cross-objection. The law remains so post-Damendment too. In the type of cases (ii) and (iii) pre-amendmentCPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Underthe amended CPC, read in the light of the explanation,though it is still not necessary for the respondent to takeEany cross-objection laying challenge to any finding adverseto him as the decree is entirely in his favour and he maysupport the decree without cross-objection; the amendmentmade in the text of sub-rule (1), read with the explanationnewly inserted, gives him a right to take cross-objection toa finding recorded against him either while answering anFissue or while dealing with an issue. The advantage ofpreferring such cross-objection is spelled out by sub-rule (4). Inspite of the original appeal having been withdrawn or dismissedfor default the cross-objection taken to any finding by therespondent shall still be available to be adjudicated upon on meritsGwhich remedy was not available to the respondent under theunamended CPC. In the pre-amendment era, the withdrawal ordismissal for default of the original appeal disabled the respondentto question the correctness or otherwise of any finding recordedagainst the respondent.”

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24. Order XLI Rule 22(2) of the CPC states that a “cross-objectionshall be filed in the form of a memorandum, and the provisions of Rule 1,so far as they relate to the form and contents of the memorandum ofappeal, shall apply thereto.” This Court in S. Nazeer Ahmed v. StateBank of Mysore[10 ]elaborated on the form of objections made underOrder XLI Rule 22 CPC. In Nazeer Ahmed (supra), the respondenthad filed a suit for enforcement of an equitable mortgage. In decidingthe suit, the Trial Court rejected the argument of the appellant-defendantand held that the suit was not barred by Order II Rule 2 of the CPC.However, the court dismissed the suit on grounds of limitation. On anappeal filed by the respondent before the High Court, the High Courtobserved that although the suit was barred by Order II Rule 2 of theCPC, the appellant had not challenged this finding of the Trial Court byfiling a memorandum of cross-objection. Thus, the High Court grantedthe respondent a decree against the appellant. When this finding of theHigh Court was assailed before this Court, Justice P.K Balasubramanyamheld that a memorandum of cross-objection needs to be filed while takingrecourse to Order XLI Rule 22 only when the respondent claims a reliefthat had been rejected by the trial court or seeks an additional reliefapart from that provided by the trial court. The court held that amemorandum of objection need not be filed when the appellant onlyassailed a ‘finding’ of the lower court:

“7. The High Court, in our view, was clearly in error in holdingthat the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could notchallenge the finding of the trial court that the suit was not barredby Order 2 Rule 2 of the Code. The respondent in an appeal isentitled to support the decree of the trial court even bychallenging any of the findings that might have beenrendered by the trial court against himself. For supportingthe decree passed by the trial court, it is not necessary fora respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is renderedby the trial court against him when the ultimate decree itselfis in his favour. A memorandum of cross-objections isneeded only if the respondent claims any relief which hadbeen negatived to him by the trial court and in addition to A

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Awhat he has already been given by the decree underchallenge. We have therefore no hesitation in accepting thesubmission of the learned counsel for the appellant thatthe High Court was in error in proceeding on the basis thatthe appellant not having filed a memorandum of cross-objections, was not entitled to canvas the correctness ofBthe finding on the bar of Order 2 Rule 2 rendered by thetrial court.”

25. It is apparent from the amended provisions of Order XLICRule 22 CPC and the above authorities that there are two changes thatwere brought by the 1976 amendment. First, the scope of filing of across-objection was enhanced substantively to include objections against‘findings’ of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce differentforms of cross-objection for assailing the findings and decrees since theDamendment separates the phrase “but may also state that the findingagainst him in the Court below in respect of any issue ought to havebeen in his favour” from “may also take any cross-objection to thedecree” with a semi colon. Therefore, the two parts of the sentencemust be read disjunctively. Only when a part of the decree has beenEassailed by the respondent, should a memorandum of cross-objection befiled. Otherwise, it is sufficient to raise a challenge to an adverse findingof the court of first instance before the appellate court without a crossobjection.

26. The applicability of the principle in Order XLI Rule 22 CPC toFproceedings before this Court under Article 136 of the Constitution wasconsidered by a Constitution Bench in the decision in RamanbhaiAshabhai Patel v. Dabhi Ajitkumar Fulsinji[11]. Justice JR Mudholkaroverruled the judgment of the three judge bench in Vashist NarainSharma v. Dev Chandra[12 ]which had rejected the argument of therespondent that a party could raise arguments on the ‘findings’ that wereGagainst him, while supporting the judgment. It was held that Order XLIRule 22 of the CPC does not have application to an appeal under Article136. In Ramanbhai Ashabhai Patel (supra), this Court held that theprovisions of Order XLI Rule 22 of the CPC are not applicable to the11 AIR 1965 SC 669.H12 (1955) 1 SCR 509.

Supreme Court and the rules of the Supreme Court do not provide forany analogous provisions. However, it was held that this deficiency mustbe supplemented by drawing from CPC:

“18. […] Apart from that we think that while dealing with theappeal before it this Court has the power to decide all the pointsarising from the judgment appealed against and even in the absenceof an express provision like Order [4]1 Rule 22 of the Code ofCivil Procedure it can devise the appropriate procedure to beadopted at the hearing. There could be no better way ofsupplying the deficiency than by drawing upon theprovisions of a general law like the Code of Civil Procedureand adopting such of those provisions as are suitable.Wecannot lose sight of the fact that normally a party in whosefavour the judgment appealed from has been given will notbe granted special leave to appeal from it. Considerationsof justice, therefore, require that this Court should inappropriate cases permit a party placed in such a positionto support the judgment in his favour even upon groundswhich were negatived in that judgment. […]”

Expanding on this further, a two judge Bench (Justice R.C Lahotispeaking for himself and Justice Brijesh Kumar) of this Court in JamshedHormusji Wadia v. Port of Mumbai[13], observed:

“35. A few decisions were brought to the notice of this Court bythe learned Additional Solicitor General wherein this Court hasmade a reference to Order 41 Rule 22 CPC and permitted therespondent to support the decree or decision under appeal by layingchallenge to a finding recorded or issue decided against him thoughthe order, judgment or decree was in the end in his favour.Illustratively, see Ramanbhai Ashabhai Patel [RamanbhaiAshabhai Patel v. Dabhi Ajitkumar Fulsinji, AIR 1965 SC 669], Northern Railway Coop. Credit Society Ltd. [NorthernRailway Coop. Credit Society Ltd. v. Industrial Tribunal, AIR1967 SC 1182] and Bharat Kala Bhandar (P) Ltd. [Bharat KalaBhandar (P) Ltd. v. Municipal Committee, Dhamangaon, AIR1966 SC 249] The learned Additional Solicitor General is right.

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But we would like to clarify that this is done not because Order41 Rule 22 CPC is applicable to appeals preferred under Article136 of the Constitution; it is because of a basic principle of justiceapplicable to courts of superior jurisdiction. A person who hasentirely succeeded before a court or tribunal below cannot file anappeal solely for the sake of clearing himself from the effect ofan adverse finding or an adverse decision on one of the issues ashe would not be a person falling within the meaning of the words‘person aggrieved’. In an appeal or revision, as a matter of generalprinciple, the party who has an order in his favour, is entitled toshow that even if the order was liable to be set aside on the groundsdecided in his favour, yet the order could be sustained by reversingthe finding on some other ground which was decided against himin the court below. This position of law is supportable on generalprinciples without having recourse to Order 41 Rule 22 of theCode of Civil Procedure. Reference may be had to a recentdecision of this Court in Nalakath Sainuddin v. KoorikadanSulaiman [(2002) 6 SCC 1] and also Banarsi v. Ram Phal [(2003)9 SCC 606] . This Court being a court of plenary jurisdiction,once the matter has come to it in appeal, shall have power to passany decree and make any order which ought to have been passedor made as the facts of the case and law applicable thereto callfor. Such a power is exercised by this Court by virtue of itsown jurisdiction and not by having recourse to Order 41Rule 33 CPC though in some of the cases observations areavailable to the effect that this Court can act on the principlesdeducible from Order 41 Rule 33 CPC. It may be addedthat this Court has jurisdiction to pass such decree or makesuch order as is necessary for doing complete justice inany cause or matter pending before it. Such jurisdiction isconferred on this Court by Article 142 of the Constitutionand this Court is not required to have recourse to anyprovision of the Code of Civil Procedure or any principlededucible therefrom. However, still, in spite of the widejurisdiction being available, this Court would not ordinarily makean order, direction or decree placing the party appealing to it in aposition more disadvantageous than in what it would have beenhad it not appealed.”

27. On a perusal of the above authorities, it is evident that theprinciple stipulated in Order XLI Rule 22 of CPC can be applied topetitions under Article 136 of the Constitution because of this Court’swide powers to do justice under Article 142 of the Constitution. Sincethe principle in Order XLI Rule 22 of the CPC furthers the cause ofjustice by providing the party other than the ‘aggrieved party’ to raiseany adverse findings against them, this Court can draw colour fromOrder XLI Rule 22 CPC and permit objections to findings.

28. From the above it has been established that it not necessarythat a challenge to the adverse findings of the lower court needs to bemade in the form of a memorandum of cross-objection. In the presentcase, we note that the appellant had raised an objection to the jurisdictionof the Trial Court for entertaining the suit on the ground that an injunctionand declaratory relief could not have been given. Although the TrialCourt passed a decree in favour of the appellant, it had decided againstthe appellant on the question of jurisdiction. This finding was not challengedby the appellant before the High Court in the form of a memorandum ofcross-objection. The judgment of the High Court makes no mention thata plea of lack of jurisdiction was taken by either the appellant or theMDA. Before this Court, the appellant has not filed the counter-affidavitit had filed before the High Court. Thus, the conclusion that emanatesfrom the record before us is that the ground of jurisdiction was onlyraised by the appellant before the Trial Court and not before the HighCourt. In effect then, this Court would have to adjudicate on a plea,which did not form a part of the decision of the High Court in challengebefore us.

29. With regard to new grounds being raised before this Court ina special leave petition under Article 136, we note that under Order 21Rule 3(c) of the Supreme Court Rules 2013, SLPs are to be confined tothe pleadings before the court whose order is challenged. However,with the leave of the Court, additional grounds can be urged at the timeof the hearing.

30. This Court in Bharat Kala Bhandar (P) Ltd. v. MunicipalCommittee[14] dealt with a civil appeal where a contention had not beenraised in the suit or in the grounds of appealbefore the High Court, andwas advanced before this Court for the first time. Although the Court 14 AIR 1966 SC 249.

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Anoted that the scope of the appeal cannot be broadened at the instanceof the parties, if a plea raises a question of considerable importance, itcan be entertained by this Court. In a similar vein, this Court in VasantKumar Radhakisan Vora v. Board of Trustees of the Port ofBombay[15], noted that pure questions of law which go to the root of thejurisdiction in a case can be raised for the first time in an appeal underBArticle 136 of the Constitution.

31. In Chandrika Misir v. Bhaiya Lal[16], this Court was hearinga special leave petition concerning the possession of parties over the suitproperty which was the subject of the U.P. Zamindari Abolition andLand Reforms Act (Act 1 of 1951). While adjudicating on whether theCsuit was barred by limitation, Justice DG Palekar, speaking for a twoJudge bench, observed that the civil court did not have jurisdiction toentertain the suit at all. Although the plea of bar on jurisdiction had notbeen raised in the courts below, the Court held that:

“6. It is from this order that the present appeal has been filed byDspecial leave. It is to be noticed that the suit had been filed in acivil court for possession and the Limitation Act will be the Actwhich will govern such a suit. It is not the case that U.P. Act 1 of1951 authorises the filing of the suit in a civil court and prescribesa period of limitation for granting the relief of possessionEsuperseding the one prescribed by the Limitation Act. It was,therefore, perfectly arguable that if the suit is one properlyentertainable by the civil court the period of limitation must begoverned by the provisions of the Limitation Act and no other. Inthat case there would have been no alternative but to pass a decreefor possession in favour of the plaintiffs. But the unfortunateFpart of the whole case is that the civil court had nojurisdiction at all to entertain the suit. It is true that such acontention with regard to the jurisdiction had not beenraised by the defendant in the trial court but where the courtis inherently lacking in jurisdiction the plea may be raisedGat any stage, and, it is conceded by Mr Yogeshwar Prasad,even in execution proceedings on the ground that thedecree was a nullity. If one reads Sections 209 and 331 of theU.P. Act 1 of 1951 together one finds that a suit like the one 15 (1991) 1 SCC 761.H16 (1973) 2 SCC 474.

before us has to be filed before a Special Court created under theAct within a period of limitation specially prescribed under therules made under the Act and the jurisdiction of the ordinary civilcourt is absolutely barred.”

32. In Most Rev. P.M.A. Metropolitan v. Moran MarMarthoma[17 ]as well, a three Judge bench of this Court entertained anobjection as to maintainability of the suit under Section 9 of the CPC,despite the plea not having been raised before the courts below. TheCourt observed that the plea of a bar or lack of jurisdiction can beentertained at any stage, since an order or decree passed withoutjurisdiction is non-est in law.

33. The position of law has been consistently applied even incriminal proceedings under Article 136 of the Constitution. In Masaltiv. State of Uttar Pradesh[18], the confirmation of the death sentence ofa number of accused persons by the High Court was under challengebefore this Court. Chief Justice Gajendragadkar, speaking for a fourjudge Bench of this Court, observed that:

“11. We are not prepared to accept Mr Sawhney’s argument thateven if this point was not raised by the appellants before the HighCourt, they are entitled to ask us to consider that point havingregard to the fact that 10 persons have been ordered to be hanged.It may be conceded that if a point of fact which plainly ariseson the record, or a point of law which is relevant and materialand can be argued without any further evidence beingtaken, was urged before the trial court and after it wasrejected by it was not repeated before the High Court, itmay, in a proper case, be permissible to the appellants toask this Court to consider that point in an appeal underArticle 136 of the Constitution; after all in criminalproceedings of this character where sentences of death areimposed on the appellants, it may not be appropriate torefuse to consider relevant and material pleas of fact andlaw only on the ground that they were not urged before theHigh Court. If it is shown that the pleas were actually urged 17 1995 Supp (4) SCC 286

18 AIR 1965 SC 202

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Abefore the High Court and had not been considered by it, then, ofcourse, the party is entitled as a matter of right to obtain a decisionon those pleas from this Court. But even otherwise no hard andfast rule can be laid down prohibiting such pleas being raised inappeals under Article 136.”

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34. Based on the position of law, we find it just to allow the appellantto raise the ground of jurisdiction before us. Allowing the ground to beraised would not require the submission of additional evidence since it isa pure question of law and strikes at the heart of the matter. We shallCnow turn to the merits of this argument.

35. The pleadings in the suit indicate that the case of the firstrespondent was that:

(i) Zahid Hussain had obtained the permission of the CompetentAuthority on 5 May 1993 before transferring the lands inDfavour of the first respondent on 22 June 1993;

(ii) Ceiling proceedings under the ULCRA had resulted in anorder of the Competent Authority dated 16 March 1988declaring 1295.04 sq. mt as surplus but the order of theCompetent Authority had been set aside in appeal on 6 JanuaryE1993 and the proceedings had been remanded;

(iii) As a result of the Repeal Act, proceedings under ULCRAstood abated; and

(iv) The first respondent continued to be the owner of 1295.04sq. mt of Gata No.200/1, while MDA was the owner of onlyF200sq. mt. of lands in Gata No. 200/2.

In other words, the basis on which the first respondent sought adeclaration in regard to the legality of the auction conducted by MDAand the injunction was the abatement of the proceedings under theULCRA.The maintainability of such a suit has been considered in aGjudgment of two learned Judges of this Court in Competent Authority,Calcutta, Under the Urban Land (Ceiling and Regulation) Act,1976 v. David Mantosh[19]. In David Montosh, the Bench consistingof Justice Abhay Manohar Sapre and Justice Indu Malhotra considered whether the jurisdiction of the civil court was expressly or impliedlyexcluded by the ULCRA in relation to matters arising out of the Act.The Bench referred to the tests laid down in the Constitution Benchdecision of Dhulabhai v. State of M.P[20] and held:

“45. Hidayatullah, J., the then learned Chief Justice, speaking forthe Bench in his inimitable style, laid down 7 tests for examiningthe aforementioned question. These tests read as under:(Dhulabhai case [Dhulabhai v. State of M.P., AIR 1969 SC78] , AIR pp. 89-90, para 32)

“(1) Where the statute gives a finality to the orders of the specialtribunals the civil courts’ jurisdiction must be held to be excludedif there is adequate remedy to do what the civil courts wouldnormally do in a suit. Such provision, however, does not excludethose cases where the provisions of the particular Act have notbeen complied with or the statutory tribunal has not acted inconformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court,an examination of the scheme of the particular Act to find theadequacy or the sufficiency of the remedies provided may berelevant but is not decisive to sustain the jurisdiction of the civilcourt. Where there is no express exclusion the examination of theremedies and the scheme of the particular Act to find out theintendment becomes necessary and the result of the inquiry maybe decisive. In the latter case it is necessary to see if the statutecreates a special right or a liability and provides for thedetermination of the right or liability and further lays down that allquestions about the said right and liability shall be determined bythe tribunals so constituted, and whether remedies normallyassociated with actions in civil courts are prescribed by the saidstatute or not.

(3) Challenge to the provisions of the particular Act as ultra virescannot be brought before Tribunals constituted under that Act.Even the High Court cannot go into that question on a revision orreference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or theconstitutionality of any provision is to be challenged, a suit is open.

20 AIR 1969 SC 78.

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SUPREME COURT REPORTS

A writ of certiorari may include a direction for refund if the claimis clearly within the time prescribed by the Limitation Act but it isnot a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund oftax collected in excess of constitutional limits or illegally collected,a suit lies.

(6) Questions of the correctness of the assessment apart from itsconstitutionality are for the decision of the authorities and a civilsuit does not lie if the orders of the authorities are declared to befinal or there is an express prohibition in the particular Act. Ineither case, the scheme of the particular Act must be examinedbecause it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil court is not readilyto be inferred unless the conditions above set down apply.”

[…]

47. Having examined the issue, we are clearly of the opinionthat the present case falls under clause (1) of para 32of Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78]and satisfies the test laid down therein. Hence, thejurisdiction of the civil court is held to be excluded byimplication to try the civil suit in question. This we say forthe following reasons:

47.1. First, the Act in question gives finality to the orderspassed by the appellate authority [refer to Section 33(3)].

47.2. Second, the Act provides adequate remedies in thenature of appeals, such as first appeal to the Tribunal andsecond appeal to the High Court [refer to Sections 12(4),13 and 33(1)].

47.3. Third, the Act is a complete code in itself and givesoverriding powers on other laws (refer to Section 42).

47.4. Fourth, the Act expressly excludes the jurisdictionof the civil court in relation to the cases falling underSections 30 and 40 [refer to Section 30(5) and Section 40].

48. In light of the aforesaid five reasons — a fortiori, thejurisdiction of the civil court in relation to all the issues arising under the Act is held impliedly excluded therebysatisfying all the conditions set out in clause (1) of para 32of Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78].”

(emphasis supplied)

Thus, the Court summarised the conclusions as below:

“47.1. First, the Act in question gives finality to the orders passedby the appellate authority [refer to Section 33(3)].

47.2. Second, the Act provides adequate remedies in the natureof appeals, such as first appeal to the Tribunal and second appealto the High Court [refer to Sections 12(4), 13 and 33(1)].

47.3. Third, the Act is a complete code in itself and gives overridingpowers on other laws (refer to Section 42).

47.4. Fourth, the Act expressly excludes the jurisdiction of thecivil court in relation to the cases falling under Sections 30 and 40[refer to Section 30(5) and Section 40].”

36. The real object and purpose of the suit, in the guise or pretextof challenging the auction notice by MDA was to affirm the title of thefirst respondent on the basis of an alleged permission obtained on 5 May1993 for the sale of the property, the deed of transfer executed by ZahidHussain and the abatement of proceedings under the ULCRA. The HighCourt has held that the document dated 31 July 1992 on the basis ofwhich possession was transferred to MDA does not evidence actualphysical possession but is only a paper transaction. The High Court heldthat no material was forthcoming on whether actual and physicalpossession was taken by the Competent Authority from the land ownerand it held that in the absence thereof, the first respondent, as thepurchaser from Zahid Hussain, would continue to have a valid title. TheHigh Court has entered these findings despite the fact that by a processof engineered drafting, the first respondent sought no reliefs in regard tothe proceedings under the ULCRA (to obviate a bar to the maintainabilityof the suit) and did not implead either the State or the Competent Authoritywho would have been in a position to answer the challenge.

37. Both the High Court and Trial Court have failed to correctlyassess the issue regarding the jurisdiction of the civil court to try a suit,which in its essence, arises out of matters pertaining to the ULCRA.The first respondent has made efforts to artfully draft the plaint in a A

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Amanner that would make it appear as if the issue only pertains to theauction notice issued by MDA. This Court, has time and again, warnedagainst drafting of this nature which seeks to distract attention awayfrom the real cause of action. In T. Arivandandam v. T.V Satyapal[21],Justice V.R. Krishna Iyer, speaking for a two Judge bench, observed:

B“5. We have not the slightest hesitation in condemning the petitionerfor the gross abuse of the process of the court repeatedly andunrepentantly resorted to. From the statement of the facts foundin the judgment of the High Court, it is perfectly plain that the suitnow pending before the First Munsif’s Court, Bangalore, is aflagrant misuse of the mercies of the law in receiving plaints.CThe learned Munsif must remember that if on a meaningful— not formal — reading of the plaint it is manifestlyvexatious, and meritless, in the sense of not disclosing aclear right to sue, he should exercise his power under Order7, Rule 11 CPC taking care to see that the groundDmentioned therein is fulfilled. And, if clever drafting hascreated the illusion of a cause of action, nip it in the bud atthe first hearing by examining the party searchingly underOrder 10, CPC. An activist Judge is the answer to irresponsiblelaw suits. The trial courts would insist imperatively on examiningthe party at the first hearing so that bogus litigation can be shotEdown at the earliest stage. […]”

This dictum of the Court has since then been followed consistentlyin Madanuri Sri Rama Chandra Murthy v. Syed Jala[22], SopanFSukhdeo Sable v. Assistant Charity Commissioner[23], and mostrecently by one of us (Justice MR Shah) in Raghwendra Sharan Singhv. Ram Prasanna Singh (Dead) by LRs[24] and Canara Bank v. P.Selathal & Ors.[25].Therefore, the jurisdiction of the civil court to entertainthe suit instituted by the first respondent was barred.

38. The High Court allowed the appeal against the judgment ofGthe Trial Court on the groundthat after the District Judge allowed the21 (1977) 4 SCC 467.22 (2017) 13 SCC 174.23 (2004) 3 SCC 137.24 AIR 2019 SC 1430.H25 (2020) 13 SCC 143.

appeal and set aside the order dated 16 March 1988 passed by theCompetent Authority under Section 8(4) of ULCRA, all furtherproceedings pursuant to the order under section 8(4) of ULCRA –including the taking of possession by the State – would be null and void.The bench then held then even otherwise, only ‘paper possession’ andnot ‘actual possession’ of the suit landwas taken, and thus in thesecircumstances Zahid Hussain would have both the title and possessionof the suit land. The findings of the High Court area non-sequitur sinceeven if Zahid Hussain had title and possession of the suit land at the timeof transfer, the purported transfer to the first respondentis null and void.The High Court ought to have upheld the dismissal of the suit on thisground. A plaintiff has to stand on their own legs and the respondent –plaintiff had no valid title or interest in law on the basis of which the suitcould have been founded.The respondent – plaintiff had no cause ofaction to challenge the auction by MDA in favour of the appellant, oncethe purported transfer was invalid.

39. We have come to the conclusion that the suit instituted by thefirst respondent had to be dismissed. The judgment of the Trial Judgedismissing the suit was correct, but for the following reasons:

(i) The purported transfer of the suit land by Zahid Hussain tothe first respondent was before the Repeal Act was enacted.The dual conditions stipulated under Section 5(3) of ULCRAwere not fulfilled before the transfer was made since thestatement under Section 6 had not been submitted and theCompetent Authority had not issued a notification underSection 10(1) of the ULCRA (which was in operation at thetime). Therefore, even if the Zahid Hussain had the title tothe suit land, the transfer to the first respondent was null andvoid under section 5(3) of ULCRA;

(ii) When Zahid Hussain had filed a declaration seekingpermission for transfer of the suit land, the permission underSection 27 of ULCRA was not granted since there was apending suit concerning the said land. He then filed anotherapplication seeking permission for transfer of landadmeasuring 1295 sq. mt of his ‘retainable’ 2000 sq. mt. ofland. The permission that was granted under Section 27 ofULCRA by the Office of the Competent Authority on 5 May1993 was for the transfer of lands from his ‘retainable’property and not the suit land; A

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A(iii) The plaintiff- first respondent has artfully drafted the plaintto challenge the validity of the auction and sought an injunctionand declaration, when the substantive cause of action of thesuit arises out of the land ceiling proceedings;

(iv) The ULCRA impliedly excludes the jurisdiction of the civilBcourt on matters arising out of the ceiling proceedings;and

Issues

(v) Though the appellant did not assail the finding of the TrialCourt on the issue of jurisdiction before the High CourtunderOrder XLI Rule 22 CPC either by filing a memorandum ofcross-objection or otherwise, he is not precluded from raisingCthe argument before this Court. This Court in view of itsplenary jurisdiction under Article 136 of the Constitution readwith its power to do complete justice under Article 142, canentertain new grounds raised for the first time if it involves aquestion of law which does not require adducing additionalevidence, specifically one concerning jurisdiction of the courtDwhich goes to the root of the matter.

40. We accordingly allow the appeal and set aside the impugnedjudgment of the High Court dated 22 February 2018.The suit institutedby the first respondent shall stand dismissed. The first respondent shallpay costs to the appellant quantified at Rupees fifty thousand.

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Appeal allowed.

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