JUDGMENT
Binod Kumar Roy, J.
1. In terms of Order dated 9-4-1993, I proceed to dispose of this Civil revision application on merits which has been filed against part of an order dated 27-11-1992 passed (on the petition dated 17-9-1992 of Opposite Party No. 1 as contained in Annexure-7-A) by Shri Md. R. Hussain, Subordinate Judge III, Sasaram in Title Suit No. 74 of 1967 holding that the Civil Court has got no jurisdiction to try the suit.
2. Relevant facts emerging from perusal of the revision petition, 8 Annexures attached to it, the impugned order and the submissions made at the Bar, are in a narrow compass The petitioner filed the suit in question for a declaration that it has got title over the new survey plots described in Schedule ‘A’ of the plaint and that the defendants have no title or concern with the same after rejection of its objection by the survery authorities asserting that it has cast a doubt on its title. In view of the amendments made in Section 109 of the Bihir Tenancy Act by an Ordinance passed in 1971 by order dated 3-7-1971 the suit was transferred to the Collector holding that the Civil Court has got no jurisdiction. A Full Bench of this Court speaking through Untwalia, C.J. (as he then was) about 20 years ago in Nand Kumar Rai and Ors. v. Ram Sinhasan Rai and Ors. , struck down the amended provisions of the Bihar Tenancy Act (hereinafter referred to as the Act) as ultra vires and held that the Civil Court has got jurisdiction to decide the question of title. The Settlement Officer, who took up the suit after transfer, by his order dated 15-1-1974 stayed further proceedings in view of the decision of this Court. The records of the suit were re-transferred on 19-5-1978 under Memo No. 576 and received back by the trial Court. On 19-9-1982 the petitioner filed an application to re-hear the suit on the ground of striking down the provisions as ultra vires by this Court consequent to the stay of further proceedings of the suit by the Settlement Officer. The said application was heard and the defendants were noticed fixing 1-10-1982 for hearing. On 19-10-1982 the petitioner filed an application for grant of interin injunction which was contested by Defendant No. 1 and allowed by order dated 11-12-1982. No, appeal was preferred against that order. Opposite Party No. 4-Kalyanpur Lime and Cement Works Limited, on its application, was added as an intervenor Defendant No. 4 by order dated 15-9-1984. The intervention was challenged by the petitioner before this Court in Civil Revision No. 209 of 1985, By order dated 2-7-1986 Civil Revision aforementioned was dismissed but having regard to the nature of the case, the trial Court was commanded to take all necessary steps for hearing of the suit without delay, with a futher command that if the trial Court has to pass an order of adjournment, the same shall not be for a longer period. The petitioner examined ten witnesses. Earlier the Opposite Party No. 4 had filed a petition dated 25-5-1985 to set aside the order of injunction granted on 11-12-1982. On 17-9-1992 the Defendant No. 4 filed a petition asserting that in view of changed circumstances, the petition dated 25-5-1985 needs immediate disposal. On the very day Defendant No. 1 also filed a petition to set aside or modify the earlier order dated 11-12-1982. Opposite Party No. 1, who is Defendant No. 1, also filed petition dated 17-9-1992 asserting inter alia that the Collector, Shahabad has no jurisdiction to transfer the case to the court and that the court has gone beyond jurisdiction in granting relief of injunction on the same record which was transferred to the Collector, Shahabad and hence the suit is not maintainable. The petitioner resisted the petitions aforementioned but the trial Court, as already stated, held that the Civil Court has no jurisdiction to try this case and that the earlier order passed by his predecessor granting interim injunction as without jurisdiction and vacated the same. The petitioner on 3-12-1992 filed an application for preparing a decree in terms of the order dated 27-11-1992 which was resisted by Opposite Party No. 4 and rejected by order dated 3-12-1992. Against the order vacating injunction the petitioner has gone up in an appeal before the District Judge and hence I am refraining myself in dealing with that matter.
3. While passing the impugned order the Court below took in account the following facts: (i) Because the Civil Court has no jurisdiction, the case was transferred to the District Magistrate on 3-7-1971. (ii) Revenue Court had also stayed this case. (iii) Order-sheet does not show how and who brought the records. (iv) The decision in Nand Kumar Rai case (supra) shows that the plaintiff has legal remedy in the Revenue Court and not Civil Court and (v) The decision of the (Hon’ble) Supreme Court in Avtar Singh v. Jagjit Singh , shows that this Court has no jurisdiction at all.
4. Mr. Thakur Prasad, learned Counsel appearing on behalf of the petitioner, submitted (i) that the Court below has committed, in facts, contempt in defying the mandate of this Court contained in order dated 2-7-1986 passed by L. M. Sharma, J. (as he then was) in Civil Revision No. 209 of 1985 by which the trial Court was directed to take all necessary steps for hearing of the suit without delay. (ii) This Court had already struck down the relevant provisions of Section 109 of the Act in Nand Kishore Rai case (supra) holding that the Civil Court alone bad jurisdiction to decide the question of title or non title of the parties and accordingly the petition dated 17-9-1992 of Defendant No. 1 challenging the maintainability of the suit as contained in Annexure 7-A was frivolous and the objections raised by the Defendants 1 and 4 were wholly misconceived. (iii) As the plaint was not returned back but the suit itself stood transferred, as contemplated under the provisions as then in existence, the trial Court erred in relying upon and erroneously considering the ratio of the Full Bench decision of this Court in Nand Klshore Rai case (supra).
5. Mr. Tara Kant Jha, learned Counsel appearing on behalf of Opposite Party No. 4, submitted as follows :-
(i) There were bona fide applications and bona fide adjudication and accordingly no proceeding in Contempt be initiated.
(ii) The petitioner not having challenged the order dated 3-7-1971 by which the suit was transferred to the Collector holding that the Civil Court had no jurisdiction, it was binding on it as res-judicata and, thus, the longer can be challenged in this civil revision application.
(iii) From the records of the suit it does not appear as to how the Settlement Officer had seat back the records to the trial Court and when they were received, and the trial Court has committed an error in passing orders on the original record.
(iv) Alternatively he submitted that this Court should leave the issue of jurisdiction to be decided afresh along with all other issues at the final hearing of the suit in terms of Order XIV of the Code of Civil Procedure.
6. Mr. D.K. Sinha, learned Standing Counsel No. IV, appearing on behalf of Opposite Party Nos. 1 and 2, submitted, apart from adopting the submission Nos. (i) to (iii), that no jurisdictional error has been committed while passing the impugned order.
7. Mr. Prasad, in reply reiterated his submissions apart from pointing out that even the issue of non-maintainability was not required to be tried up as a preliminary issue.
8. I find substance in contention Nos. (ii) and (iii) of Mr. Prasad. It was laid down by the legislation that the suit shall stand transferred in view of the Amendments. In Nand Kumar Rai’s case (supra) after holding clause (a) of Sub-section (I) and Sub-sections (2), (3) and (4) of Section 109 of the Act, unconstitutional and striking down as such the Full Bench speaking through Uniwalia, C.J. (as he then was) laid down that the suits pending in the Civil Courts for declaration of title, confirmation of or recovery of possession will remain pending in these Courts and will be tried only by them even though the entry in Survey has been challenged expressly or impliedly. This declaration of law was unfortunately not considered by the trial Court. After the receipt of the records from the Revenue Court, the trial Court had added pupate party No. 4, as Defendant No. 4 and this Court in Civil Revision No. 209 of 1985 after affirming the order of addition, had commanded the trial Court to take all necessary steps for hearing of the suit without delay but instead of proceeding further to dispose of the suit, in, which by now only 10 witnesses have been examined, it has proceeded to dispose of the question of maintainability of the suit afresh in view of Section 109 of the Act, relevant portion of which were already struck down as ultra vires more than two decades ago and the petitioners which had remained un-pressed for several years.
9. From the order dated 24-5-1984 of the trial Court, it is clear that the suit in question was instituted on 3-6-1967 and pursuant to order dated 3-7-1971 the record was transferred to the Revenue Court and 11 years thereafter re-transferred from Revenue Court to the trial Court, Thereafter the trial Court passed its first order on 19-9-1982. To the statement made in paragraph 11 of the revision petition that the revenue Court had directly returned the records of the case on 19-5-1978 under Memo No. 576 to the Court of the Subordinate Judge, Sasaram which was received, no counter has been filed by the Opposite Parties. Thus the comments made by the trial Court were wholly misconceived and I do not see any merit in submission No. (iii) of Mr. Jha.
10. The trial Court clearly erred in placing reliance on the decision of the Hon’ble Supreme Court in Avtar Singh’s case (supra) in which it was held that the order returning the plaint of the earlier suit would operate as res-judicata in a subsequent suit which was not applicable in the instant case inasmuch as in this suit she plaint was not returned rather the records were transferred as per the law. There is a, well-settled distinction between return of plaint and the suit having stood transferred/stand transferred. In the former the plaintiff has to take back his plaint whereas in the latter the entire records are sent to the court concerned by the Court itself. The law as declared by this Court was not at all understood by the trial Court while passing the impugned order. Provisions of Section 109 of the Act then relevant, which ousted the jurisdiction of the Civil Court, and the transfer of the suit having been struck down as ultra vires, the declaration of this Court that the question of title has to be adjudicated by a Civil Court was binding on all concerned and in that view of the matter then was wrong in sending back of the records and of the petitioner’s request before the trial Court to proceed with the suit and the trial Court proceeding further. There is no question of challenge by the petitioner in this civil revision application of the earlier order rather I do not see any justification on the part of the Defendants 1 and 4 to challenge the maintain ability of the suit after the Full Bench decision of this Court in Nand Kumar Rai case (supra) to which alteast the Defendant No. 1 was also a party. Though there was an unfortunate jurisdictional error on the part of the trial Court, but it cannot be held that it necessiates initiation proceeding in Contempt.
11. I do not also see any substance in the alternative submission of Mr. Jha that the question of maintainability of the suit should be left open to be adjudicated afresh at the trial in view of the decision of the Full Bench decision of this Court.
12. I am deliberately refraining myself in expressing in regard to the merit of that part of the order by which the injunction granted earlier has been vacated in view of the fact that its validity, propriety and legality is subjudice in an appeal before the learned District Judge.
13. For the reasons aforementioned, I set aside the impugned order and allow this civil revision application with costs assessed at Rs. 64 and direct the trial Court to proceed with the further hearing of the suit curbing all un-reasonable adjournments which may be made by one or the other party by making strict adherence to the amended Order XVIII and Section 35 of the Code of Civil procedure.