Holding

Order I Rule 10 CPC does not apply to reference proceedings under Section 18 of the Land Acquisition Act, and the reference court lacks jurisdiction to implead a third party whose claim is outside the limited scope of the reference.

Summary

The appellant, a Muthavalli of a Wakf, challenged the compensation awarded for land acquired by the State under the Land Acquisition Act, 1898 and obtained a reference to a civil court under Section 18 of the Act. The respondent filed an application to be impleaded as a party in the reference proceedings, claiming an interest in the title of the Wakf property. The reference court allowed the impleadment, relying on a purported ‘no objection’ from the State. The Supreme Court held that the reference court’s jurisdiction is limited to the matters specified in the reference—here, only the quantum of compensation—and that Order I Rule 10 of the CPC does not apply to such reference proceedings. Consequently, the court lacked authority to implead the respondent, and the order allowing his impleadment was a nullity. The appeal was allowed and the impugned order set aside.

Issues considered

Whether Order I Rule 10 of the Code of Civil Procedure applies to reference proceedings under Section 18 of the Land Acquisition Act, 1898.
Whether the reference court can implead a third party whose dispute is beyond the scope of the reference.
Whether consent or endorsement of ‘no objection’ by the State confers jurisdiction on the reference court.
Whether the reference court can entertain disputes relating to title or apportionment of compensation not covered by the reference.
Whether principles of res judicata apply to the appeal.

Legislation cited

Code of Civil Procedure, 1908s. Order I Rule 10, s. Section 151
Land Acquisition Act, 1898s. 18, s. 19, s. 20, s. 21, s. 30

Subjects

Land acquisitionReference proceedingsJurisdictionImpleadmentOrder I Rule 10 CPCWakf propertyCompensationRes judicata

Judgment

[2009] 2 S. C.R. 720

A MUTHAVALLI OF SHA MADHARI DIWAN WAKF
S.J. SYED ZAKRUDEEN AND ANR.
V.
SYED ZINDASHA AND ORS.
CIVIL APPEAL N0.1119 OF 2009
B FEBRUARY 19, 2009
[S.8. SINHA AND V.S. SIRPURKAR, JJ.]
Land Acquisition Act, 1894 - s. 18 - Proceedings under ..
- Applicability of Or. I r.10, CPC - Wakf property - Acquired
C by State - Compensation awarded - At the instance of
appellant, reference made to civil court for enhancement of
compensation - Respondent no. 1 filed application for
impleadment as party in the reference proceedings -
Application allowed by the Reference Judge - Propriety of -
D Held: Not proper, as dispute raised by respondent no. 1 in his
application was beyond the scope of the reference - Reference :>- t--
court exercises a limited jurisdiction and derives its jurisdiction ;. J
only from the terms of reference - Code of Civil Procedure, '
'
1908- Or. I, r.10.
E Appellant claims himself to. be the Muthavalli of a
Wakf. The property was acquired by the State of Tamil
Nadu in terms of the provisions of the Land Acquisition
Act, 1898. Appellant as a 'person interested' took part in
the proceedings for making an award. Being dissatisfied
F with the quantum of compensation awarded by the Land
Acquisition Collector, he sought reference for
enhancement thereof, pursuant whereto the Collector of
the District made a reference to the Civil Court.
In the reference proceedings, Respondent No.1 filed
G application for getting himself impleaded as a party therein
contending that he was interested in the subject matter
of a part of the property acquired. The application was
allowed. Revision application filed thereagainst was
dismissed by the High Court. Hence the present appeal,
H 720
'
MUTHAVALLI OF SHA MADHARI DIWAN WAKF S.J. SYED 721
ZAKRUDEEN & ANR. V. SYED ZINDASHAAND ORS.

..... in which the applicability of the provisions of Order I Rule A
10, CPC in a proceeding under s.18 of the Act was in _
question.
Allowing the appeal, the Court
HELD:1.1 The Land Acquisition Act, 1898 is a self- B
contained code. It not only provides for the mode and
manner in which the acquisition proceedings are initiated
1~ but also the mode and manner in which the proceedings
~
for making an award as also the mode and manner in
which an application for reference by a person dissatisfied c
therewith is to be made. [Para 11] [ 727-G]
1.2. A reference may be prayed for by a person
interested in the proceeding. Ordinarily, he should be a
party to the proceedings for making an award. He has to
.... file an application for making a reference before the D
... Collector of the District within the time specified
thereunder. Such an application must be in writing and
the reference to the civil court which may be prayed for
before the Collector would be in regard to his objection
as regards measurement of land, the amount of E
compensation, the person to whom it is payable or the
apportionment of the compensation amongst the persons
interested. [Para 12] [ 727-H; 728-A-8]
~
• 1.3. In the present case, the Reference was made only
in respect of the amount of compensation. No reference F
has been made in regard to the right of persons to whom
it was payable or apportionment of compensation
amongst the persons interested. The first respondent laid
his claim on the title of the property. He has prayed for
proper and effective implementation of the decree passed G
by a civil court. He alleged mismanagement of the Wakf
-"' property by the appellant. [Para 12] [ 728-C-D]
1.4. A reference court is not a court of original
jurisdiction. It derives jurisdiction only in terms of the order
H
,
,
1
722 SUPREME COURT REPORTS [2009] 2 S.C.R.

A of reference.· The Act being a self-contained code, the
manner in which the reference is to be made and the
statement required to be made by the Collector has been
. specified in Section 19 of the Act. The lis between the
parties to the reference meaning thereby a person
t
s interested and the State was with regard to the quantum t
of compensation. No other question can be raised therein.
The reference court exercises a limited jurisdiction. It
derives its jurisdiction from the terms of reference. [Para
13] [ 728-E-F]
C 1.5. Even otherwise a civil court can direct
impleadment' of a third party in a suit only in a case where
he is a proper or necessary party and otherwise have an
interest in the subject matter of the suit. .Even civil court
ordinarily would not entertain a petition for impleadment
D of a third party in a lis pending before it, which would
enlarge the scope and ambit of the dispute between the
parties. A Civil Court would also not ordinarily implead a
third party as a result whereof fresh dispute(s) either
amongst the plaintiffs inter se claiming under the same
E title or the inter se between the defendants would be
required to be determined. [Para 13] [ 728-G-H; 729-A]
1.6. In the event there is a dispute with regard to the
title or apportionment of the amount of compensation, a
proper reference has to be made. Only when such a •
F reference is made, the dispute between the claimant can
be gone into and not in a reference proceeding of the
nature referred to by the collector in the instant case. [Para
14] [ 729-B]
r
G Kothamasu Kanakarathamma and others v. State of
Andhra Pradesh and Ors. AIR (1965) SC 304 and Ambey Devi >.
v. State of Bihar and Anr. (1996) 9 SCC 84 - relied on. 1t

· 2.1. In the present case, the Reference Judge
furthermore committed a serious error in allowing the
H application for impleadment filed by the first respondent
MUTHAVALLI OF SHA MADHARI DIWAN WAKF S.J. SYED 723
ZAKRUDEEN & ANR. V. SYED ZIN DASHA AND ORS.

on the premise that the appellant had no objection thereto. A
Endorsement of no objection was made by the counsel
for the State. Evidently, the State was not interested. in a
dispute by and between the appellant and the first
respondent. Appellant's counsel while taking notice of the
application categorically stated that a counter affidavit is B
required to be filed. Thus an endorsement of 'no objection' -
made by or on behalf of the counsel for the State could
nof have been put in use against the appellant by the
Reference judge. [Para 17] [ 731-D-E]
2.2. In any view of the matter, it is well settled that no C
amount of consent can confer jurisdiction on a court when
it has none. If the court had no jurisdiction, any order
passed by it is a nullity. When the court lacks inherent
jurisdiction, the procedural provision of estoppel, waiver
or res-judicata shall also not apply. [Para 18] [ 731-F] D
Chief Justice of Andhra Pradesh & Ors. v. L. VA. Dikshitulu
& Ors. AIR (1979) SC 19:J and Chandrabhai K. Bhoir and.Ors. v.
Krishna Arjun Bhoir and Ors. (2008) 15 SCALE 94 - relied on.
Case Law Reference
E
AIR (1965) $C 30 relied on Para 15
(1996) 9 sec 84 relied on Para 16
..
~
AIR (1979) SC 193 relied on Para 18
(2008) 15 SCALE 94 relied on Para 18 F
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1119
of 2009
From the Judgement and Order dated 08.11.2006 passed
by Maduai Bench of Madras High Court in C.R.P. (P.O.) (M.D.)
No. 743 of 2006. G
: V. Prabhaker, Ramjee Prasad, Revathy Raghavan for the
Appellants.
K.K. Mani, G.K.'R.L. Lenin, Mayur R. Shah for the
Respondent. H
}-
•
.,_
724 SUPREME COURT REPORTS [2009) 2 S.C.R..
)-

A The Judgement of the Court was delivered by
~lo-'

5.B. SINHA, J.
1. Leave granted.
2. Applicability of the provisions of Order I Rule 10 of the
B Code of Civil Procedure (the Code) in a proceeding under
Section 18 of the Land Acquisition Act, 1898 (the ·'Act') is in
question in this appeal which arises out of a Judgment and Order i·-
)"
dated 8-11-2006 passed by a learned Single Judge of the
•
Madras High Court, Madurai Bench, Madurai in Civil Revision '
c Petition (P.O.) (M.D.) No. 743 of 2006.
3. Appellant claims himself to be a Muthavalli of Sha
Madhari Diwan Wakf. The said properties were acquired by
the State of Tamil Nadu in t~rms of the provisions of 'the Act'.
Appellant as a 'person interested' took part in the proceedings
D
for making an award. Being dissatisfied with the quantum of
,.
compensation awarded by the Land Acquisition Collector, he "
sought for a reference for enhancement thereof pursuant whereto
and in furtherance whereof the Collector of the District made a
reference to the Civil Court. The said reference was transferred
E to the Court of Second Additional Subordinate Judge, -,

Tiruchirappalli by the learned District Judge. Prior thereto, a suit /-
for recovery of possession of certain properties and damages ~
was instituted by the father of the appellant No.2 herein against -t
Haji Syed Zehrudin @ Jana Basha Alisha Sadguru in the court .....
F of the Munsif, Tiruchirappalli which was marked as O.S. No.649
of 1986.
4. The said suit was decreed holding that the properties in
question were Wakf properties and the plaintiff therein was the ~

Muthavalli thereof. Haji Syed Zehrudin preferred an appeal •
G
thereagainst. The said appeal was dismissed. A second appeal
preferred thereagainst marked as S.A. No.488 of 2000 was {
also dismissed holding that once the property had been
dedicated to Wakf, no question of joint ownership of the
'
properties by the individuals in respect thereof would arise.
H
MUTHAVALLI OF SHA MADHARI DIWAN WAKF S.J. SYED 725
ZAKRUDEEN & ANR. V. SYED ZINDASHAAND ORS. [S.S. SINHA, J.]

. -. 5. Appellant No. 2 is said to have been appoin!ed as a A
temporary Muthavalli of the Wakf. By an order dated 9-04-2002,
the matter relating to appointment of a permanent Muthavalli
was said to have been kept in abeyance.
6. In the reference proceedings, marked as L.A.O.P. No.18
of 2005, the first respondent filed an application for getting B
himself impleaded as a party therein contending that he was
~
interested in the subject matter of a part of the property acquired,
~ being the property described in Schedule 'B' in O.S. No. 305 of
1951 as in the judgment rendered therein it was allegedly held
that the same should be treated as common properties and c
that certain religious obligations were to be performed from its
income and the balance to be divided amongst the co-sharers.
It was furthermore alleged that the second appellant who
was in-charge of the management of the said property had not
>\ D
discharged the duties cast upon him. Several other contentions
• with which we are not concerned herein were also raised.

.
7. A copy of the said application was served upon the
counsel for the parties. It is interesting to note that whereas the
learned counsel appearing for the appellant therein made an E
endorsement, 'Taken Notice. Prays for time for filing counter',
the learned Government pleader, while taking notice is said not
J
to have received 'no objection' pursuant whereto and in
~·
furtherance whereof alone, the learned Second Additional
Subordinate Judge by an order dated 21-10-2005 directed: F
"Petition filed by the Petitioner under Order 1 Rule 10 (2)
and Section 151 CPC prays to impleading the person
namely S.J. Syed Zindasha, S/o. Syed Jaffar Hussain,
32, Heber Road, Palakkarai, Tiruchy 1 as 5th Respondent
in the above petition. G
·~.
2) Notice to Respondent counsel and reports no objection
' and hence the petition is allowed without costs."

8. A revision application was filed thereagainst which has
been dismissed by reason of the impugned Judgment. H
726 SUPREME COURT REPORTS [2009] 2 S.C.R.

A It is now not in dispute that a review application was also _._-.
filed which was dismissed by the Learned Additional
Subordinate Judge by an order dated 31-01-2006. We may
also notice that in his order the learned Judge opined as under:
"The main contention of the Petitioner is that the formal
B party is an unnecessary party he cannot be impleaded in
I.A. No. 328 of 2005 even though the Petitioner prayed
time for counter to the shock and surprise implead petition
was allowed. Therefore he filed this petition to review the
order passed in I.A. No. 328of2005. In this case the main
c contention of the newly impleaded party is that he is also
one of the sharers in the acquisition land. On this aspect
there is no clear-cut findings this court at this stage whether
the impleaded parties are entitled any share. It can be
decided only after let in evidence by the both parties,
D without impleading the newly added parties, therein cannot
be a proper and binding adjudication in this case.
Therefore there is no question for reviewing the order
passed in I.A. No. 328 of 2005 whether the third party
newly added party or unnecessary party it can be decided
E at the time of enquiry. Hence there is no question of review
the order passed in I.A. No. 328 of 2005 arise at this
stage. Hence this petition is dismissed without costs."

9. Mr. V. Prabhakar, learn~d counsel appearing on behalf
F of the appellants would contend :
(1) Having regard to the fact that the civil court had held
the property to be a Wakf property and the first
appellant to be Muthavalli thereof, Respondent No. 1
could not have been directed to be impleaded as a
G party in the reference proceeding.
J~
(2) A reference.by the Collector to the Civil Court having •
been made in terms of Section 18 of the Act and not
in terms of Section 30 thereof, the application for
impleadment was not maintainable.
H
MUTHAVALLI OF SHA MADHARI DIWAN WAKF S.J. SYED 727
ZAKRUDEEN &ANR. V. SYED ZINDASHAAND ORS. [S.B. SINHA, J.)
,_,. (3) The provisions of Order I, Rule 10 of the Code, A
keeping in view the nature of the proceeding, have
no application in a reference made in terms of
Section 18 of the Act.
(4) The learned Reference Judge and consequentially
the High Court committed a serious illegality in B
passing the impugned order as the dispute raised
~
by the respondent in his application is beyond the
,J(
scope of the reference.
10. Mr. K.K. Mani, learned counsel appearing on behalf of c
the respondents, on the other hand, would contend :
(1) The order for impleadment of the first respondent
having been passed on consent, this court should
not exercise its discretionary jurisdiction under Article
... o·
136 of the Constitution of India.
,. '
(2) Appellants, having filed a revision application only
against the main order and not against the order of
the review, this special leave petition is barred under
the principle of res-judicata.
E
(3) There exists a distinction between a proper party
and a necessary party. Although in the proceeding
~ under Section 18 of the Act, apportionment of the
... amount of compensation is not in question, it is
necessary that the reference be determined in the F
presence of the appellant and, thus, the respondent
is a proper party to the reference proceedings.
11. 'The Act' is a self-contained code. It not only provides
for the mode and manner in which the acquisition proceedings
are initiated but also the mode and manner in which the G
( proceedings for making an award as also the mode and manner
in which an application for reference by a person dissatisfied
therewith is to be made.

12. A reference may be prayed for by a person interested
H
728 SUPREME COURT REPORTS [2009] 2 S.C.R.

A in the proceeding. Ordinarily, he should be a party to the
proceedings for making an award. He has to file an application
for making a reference before the Collector of the District within
the time specified thereunder. Such an application must be in
writing and the reference to the civil court which may be prayed
s for before the Collector would be in regard to his objection as
regards measurement of land, the amount of compensation, the
person to whom it is payable or the apportionment of the
compensation amongst the persons interested.
The Reference was made only in respect of the amount of
C compensation. No reference has been made in regard to the
right of persons to whom it was payable or apportionment of
compensation amongst the persons interested. The claim of
the first respondent has been noticed by us. He has laid his
claim on the title of the property. He has prayed for proper and
D effective implementation of the decree passed by a civil court.
He alleged mismanagement of the' Wakf property by the first
appellant.
13. A reference court is not a court of original jurisdiction.
It derives jurisdiction only in terms of the order of reference. The
E Act being a self-contained code, the manner in which the
reference is to be made and the statement required to be made
by the Collector has been specified in Section 19 of the Act.
The lis between the parties to the reference meaning thereby a
person interested and the State is with regard to the quantum of
F compensation. No other question can be raised therein. The
reference court exercises a limited jurisdiction. It derives its
jurisdiction from the terms of reference.
Even otherwise a civil court can direct impleadment of a
G third party in a suit only in a case where he is a proper or
necessary party and otherwise have an interest in the subject
matter of the suit. Even civil court ordinarily would not entertain
a petition for impleadment of a third party in a lis pending before
it which would enlarge the scope and ambit of the dispute
between the parties. A Civil Court would also not ordinarily
H
•

MUTHAVALLI OF SHA MAQHARI DIWAN WAKF S.J. SYED 729
ZAKRUDEEN & ANR. V. SYED ZINDASHAAND ORS. [Sf3. SINHA, J.]
•
-.....- implead a third party as a result whereof fresh dispute(s) either A
amongst the plaintiffs inter se claiming under the same title or
the inter se between the defendants would be required to be
determined.
14. In the event there is a dispute with regard to the title or
apportionment of the amount of compensation, a proper B
reference has to be made. Only when such a reference is made,
-f
the dispute between· the claimant can be gone into and not in a
•.
reference proceeding of the nature referred to by the collector
in the instant case.
c
15. In Kothamasu Kanakarathamma and others v. State
of Andhra Pradesh and Ors. [AIR 1965 SC 304], this court
held:
"The only manner in which the finality of the award can be
called into question is by resort to the provisions of Section D
"' 18 of the Land Acquisition Act, sub-section (1) of which
reads thus:
"Any person interested who has not accepted the award
may, by written application to the Collector,. require that
the matter be referred by the Collector for the determination E
of the Court, whether his objection be to the measurement
of the land, the amount of the compensation, the persons
~
to whom it is payable, or the apportionment of the
•·
compensation among the persons interested."
F
The proviso to sub-section (2) prescribes the time within
which an application under sub-section (1) is to be made.
Section 19 provides for the making of a reference by the
Collector and specifies the matters which are to be
comprised in that reference. Thus the matter goes to the
G
-t court only upon a reference made by the Collector. It is
• only after such a reference is made that the court is
empowered to determine the objections made by a
claimant to the award. Section 21 restricts the scope of
the proceedings before the court to consideration of the
H
730 SUPREME COURT REPORTS [2009] 2 S.C.R.

A contention of the persons affected by the objection. These
provisions thus leave no doubt that the jurisdiction of the
court arises solely on the basis of a reference made to it.
No doubt, the Land Acquisition Officer has made a
reference under Section 30 of the Land Acquisition Act
B but that reference was only in regard to the apportionment
of the compensation amongst the various claimants. Such
a reference would certainly not invest the court with the
jurisdiction to consider a matter not directly connected ,.
with it. This is really not a mere technicality for as pointed
c out by the Privy Council in Nusserwanjee Pestonjee v.
Meer Mynoodeen Khan wul/ud Meer Sudroodeen Khan
Bahadoo, 6 Moo Ind App 134 at p. 155 (PC) wherever
jurisdiction is given by a statute and a such jurisdiction i_s
only given upon certain specified terms contained therein
it is a universal principle that those terms should be
D
complied with, in order to create and raise the jurisdiction,
and if they are not complied with the jurisdiction does not
arise. This was, therefore, a case of lack of inherent
jurisdiction and the failure of the State to object to the
proceedings before the court on the ground of an absence
E of reference insofar as the determination of compensation
was concerned cannot amount to waiver or acquiescence.
Indeed, when there is an absence of inherent jurisdiction,
the defect cannot be waived nor can be cured by
acquiescence."
F
16. This court furthermore in Ambey Devi v. State of Bihar
and Anr. [1996 (9) SCC 84] held that the provisions of Order I
Rule 10 of the Code have no application in a land acquisition
proceeding, stating :
G "The procedure prescribed under Sections 18 and 30 is
inconsistent with the procedure prescribed under Order 1 {
Rule 10, CPC. Order 1 Rule 10, CPC would apply to
implead a necessary or proper party to effectuate complete
adjudication of all the disputes having arisen between all
H the necessary or proper parties who may be bound by the
MUTHAVALLI OF SHA MADHARI DIWAN WAKF S.J. SYED 731
ZAKRUDEEN &ANR. V. SYED ZINDASHAAND ORS. [S.B. SINHA, J.)
-...y
decision. That question does not arise since inconsistent A
procedure has been prescribed under the Act. As held
earlier, making an application in writing under sub-section
(1) and within the limitation prescribed under sub-section
(2) of Section 18 are conditions precedent for the Land
Acquisition Officer to make a reference under Section 18; B
only on its receipt, under Section 20 the civil court gets
jurisdiction to· issue notice and thereafter to conduct
'I enquiry."

In this view of the matter, the impugned judgment suffers
from several legal infirmities. c
17. The learned Additional Subordinate Judge furthermore
committed a serious error in allowing the application for
impleadment filed by the first respondent on the premise that
JI the appellant had no objection thereto. Endorsement of no
D
.Ji objection was made by the counsel for the State. Evidently, the
State was not interested in a dispute by and between the
appellant and the first respondent. Appellant's counsel while
taking notice of the application categorically stated that a counter
affidavit is required to be filed. Thus an endorsement of 'no
objection' made by or on behalf of the counsel for the state could E
not have been put in use against the appellant by the learned
., judge .
• 18. In any view of the matter, it is well settled that no amount
of consent can confer jurisdiction on a court when it has none. If F
the court had no jurisdiction, any order passed by it is a nullity.
. When the court lacks inherent jurisdiction, the procedural
provision of estoppel, waiver or res-judicata shall also not apply.
{[See Chief Justice of Andhra Pradesh & Ors. v. L. V.A.
Dikshitulu & Ors. [AIR 1979 SC 193 at 198] and Chandrabhai
G
K. Bhoir and Ors. v. Krishna Arjun Bhoir and Ors. [2008 (15)
SCALE 94]}.

19. In view of our findings aforementioned, we are of the
opinion that the principles of res-judicata in a situation of this
nature will also have no application. In any event, it is not a case H
732 SUPREME COURT REPORTS [2009) 2 S.C.R.

A where two suits were filed and the appellants had preferred -..;.--
appeal/revision against one of them and ·failed to question the
other order. Appellants herein had even filed a review application
prior to filing qf the revision application. An application to review
lies on a limited ground. The main order being subject matter of
s challenge and the same having been affirmed, the special leave
petition thereagainst is maintainable.
20. The contention of Mr. Mani that the first respondent is
otherwise a proper party if not a necessary party for the reasons
stated hereinbefore has also no force.
c
21. The impugned order, therefore, is set aside. The appeal
is allowed with no order as to costs.

8.8.B. Appeal allowed.