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1998 DIGILAW 351 (PAT)

Tarini Marandi v. Lakshmi Mahto

1998-04-30

M.Y.EQBAL

body1998
Judgment M.Y.Eqbal, J. 1. This civil revision application is directed against the. order dated 6.12.97 passed by Sub-judge-III. Deoghar in Title Suit No. 185 of 1997 whereby and where-under the court below rejected the petition filed by the defendants petitioners challenging the jurisdiction of the Court to entertain the suit and also the maintainability of the suit. 2. The facts of the case lie in a narrow carnpass. The plaintiffs filed the aforementioned suit for declaration of title and confirmation of possession and also for permanent injunction restraining the defendants from disturbing their possession over the suit land. The plaintiffs case is that in village Bara Markhi there is a jungle plot. In settlement plot No. 101/992 measuring 63.50 acres in survey khatian out of which 31.55 acres is out side the demarcation area of the forest. There was a settlement case No. 132/70-71 in the court of Sub-Divisional Officer which was decided by order dated 31 10.74 by the then Sub-Divisional Officer. Deoghar and the said order of settlement was made on the basis of compromise It is alleged that the land which was allotted in the name of settlees were in their possession as such no delivery of possession was effected. The defendants filed a petition before the Sub-divisional Officer for review of the order dated 21.10.74 which was numbered as Settlement Case No. 63 of 80-81 and settlement case No. 172/91-92. The review petition of the defendants were allowed and the Sub-divisional officer recommended for settlement of the land as per the report of the Circle Officer, Madhupur It appears that there was an appeal against the said order of the Sub-Divisional Officer Madhupur before the Deputy Commissioner, Deoghar being Revenue Appeal No. 90/96-97. The plaintiffs case is that the order of the Sub-divisional Officer Madhupur reviewing the earlier order dated 21.10.74 without seeking permission of the Deputy Commissioner is illegal and without jurisdiction and void under the law. The Deputy Commissioner alleged to have erroneously ordered for settlement of the land vide order dated 24.2.97 ignoring the earlier order dated 21.10.74. The defendants being emboldened by the order dated 24.2.97 started creating trouble and disturbing peaceful possession of the plaintiffs over the land which was settled with them on the basis of compromise petition filed before the Sub-divisional Officer, Deoghar. The defendants being emboldened by the order dated 24.2.97 started creating trouble and disturbing peaceful possession of the plaintiffs over the land which was settled with them on the basis of compromise petition filed before the Sub-divisional Officer, Deoghar. The plaintiffs, therefore, seek declaration of their right title and interest over the suit land and also confirmation of possession. 3. The defendants appeared in the suit and filed a petition praying therein to dismiss the suit as the same is not maintainable. The said application was opposed by the plaintiffs by filing rejoinder. The Court below after hearing the parties rejected the petition filed by the defendants petitioners in terms of the impugned order holding that the suit filed by the plaintiffs is not hit by any of the Provisions of Santal Parganas Tenancy Act, The Court below further held that the question of jurisdiction raised by the defendants is mixed question of law and fact and therefore, the same cannot be decided at the initial stage. 4. Mr. Sukumar Sinha, learned Counsel appearing for the petitioners assailed the impugned order as being illegal and wholly without jurisdiction. The learned Counsel submitted that the plaintiffs filed the suit for declaration of their title on the strength of the order dated 21.10.1974 passed by the Sub-divisional Officer, Deoghar in the settlement case which order was subsequently recalled by the said authority. Against the said order the plaintiffs referred an appeal before the Deputy Commissioner and the same was upheld by order dated 24.2.97. The learned Counsel, therefore, submitted that the civil court has no jurisdiction to entertain the suit in view of Sec. 63 of the Santal Parganas Tenancy Act and Secs. 5 and 11 of the Santal Parganas Settlement Regulation Act, 1872. On the other hand Mr. Subodh Prasad, learned Counsel appearing for the opposite parties submitted that the plaintiffs have not filed the suit for setting aside or modifying the order of Deputy Commissioner rather the plaintiffs have filed the suit for declaration of their title over the suit land and for permanent injunction restraining the defendants from disturbing their possession. According to the learned Counsel the plaintiffs claim their title on the basis of settlement made in Settlement Case No. 132/70-71 and therefore, the civil court jurisdiction is not ousted. 5. According to the learned Counsel the plaintiffs claim their title on the basis of settlement made in Settlement Case No. 132/70-71 and therefore, the civil court jurisdiction is not ousted. 5. Before appreciating the rival contentions of the learned Counsels appearing for the parties, it would be useful to look into the pleadings of the parties minutely and carefully. As stated above the plaintiffs case is that settlement case No. 132/70-71 was decided on the basis of compromise vide order dated 31.10.74 by the then Sub-Divisional Officer, Deoghar. It is pleaded that the aforesaid order dated 31.10.74 was passed by the Sub-Dvisional Officer after complying all the procedure and the formalities provided under the Act. It is, further pleaded that in the year 1980 there was a rent fixation case 79/80-81 in which rent was assessed in the name of the settlees including the plaintiffs and the order of assessment was passed on 8.11.87 after due enquiry by the Circle Officer and Karamchari and after being satisfied the lands were settled in the name of the settlees including the plaintiffs and since then the lands are in possession of the settlees including the plaintiffs. The plaintiffs further pleaded that the defendants preferred appeal against the said rent fixation order passed by the L.R.D.C. and the said appeal was dismissed by the appellate authority. The plaintiffs case is that the defendants filed a petition before the Sub-Divisional Officer, Deoghar for review of the order dated 21.10.74 and the Sub-Divisional officer after obtaining report from the Circle Officer allowed the review petition and also recommended for settlement of land as per report of the circle officer. The plaintiffs challenged the said order of the Sub-divisional officer for review of the earlier order. However, the Deputy Commissioner, Deoghar erroneously ordered for settlement of the land with the defendants vide its order dated 24.2.97 ignoring the order dated 21.10.74. The plaintiffs, therefore, claimed their right, title and interest over the suit land by virtue of settlement made pursuant to order dated 21.10.74 and stated the order still stands and the subsequent order of the Sub-Dvisional Officer and the Deputy Commissioner was wholly illegal and without jurisdiction. In the light of the case of the plaintiffs as pleaded in the plaint and the relief claimed therein the question falls for consideration is whether the civil court has jurisdiction to entertain the suit. 6. In the light of the case of the plaintiffs as pleaded in the plaint and the relief claimed therein the question falls for consideration is whether the civil court has jurisdiction to entertain the suit. 6. It is well settled that right to raise a question under general law before civil court cannot be denied in absence of any specific statutory provisions to the contrary. It is equally well settled that when court of limited jurisdiction takes only prima facie decision on a question as to title to the property as required by the statute the jurisdiction of the civil court to decide that question on merit is not ousted. 7. Sec. 63 of the Santal Parganas Tenancy Act (Supplementary provisions) Act, 1949 reads as under: No suit shall be entertained in any court to vary, modify or set aside, either directly or indirectly, any order of the Deputy Commissioner in any application which is cognisable by the Deputy Commissioner under this Act and every such order shall, subject to the provisions of this Act relating to appeal and revision be final: Provided that nothing contained in this section shall bar the jurisdiction of a Civil Court in matters in which it had jurisdiction immediately before the commencement of this Act. 8. Sec. 5 of Santhal Parganas Settlement Regulation Act. 1872 reads as under: Bar of jurisdiction of Civil Courts during settlement: (1) From the date on which under Sec. 9 the (State) Government declares, by a notification in the (Official Gazette), that a settlement shall be made of the whole or any part of the Santhal Parganas. until the date on which such settlement is declared, by a like notification, to have been completed no suit shall lie in any Civil Court established under the Bengal, (Agra) and Assam Civil Courts Act, 1887 (12 of 1887) in regard to: (a) any land or any interest in, or arising out of, land, or (b) the rent or profits of any land, or (c) any village headship or other office connected with any land in the area covered by such first-mentioned notification nor shall any Civil Court proceed with the hearing of any such suit which may be pending before it. (2) Between the dates referred to in Sub-sec. (2) Between the dates referred to in Sub-sec. (1), all suits of the nature therein described shall be filed before or transferred to an officer appointed by the (State) Government under Sec. 2 of the Santhal Parganas Act, 1855 (37 of 1855) or Sec. 10 of this Regulation according as the (State) Government may from time to time direct and such officer shall hear and, even though during the hearing the settlement may be declared to have been completed determine them. 9. From perusal of Sec. 63 of the Santhal Parganas Tenancy Act (Supplementary Provisions) Act, 1949 it is clear that this section bars the institution of suits which seek to vary, modify or set aside an order passed by the Deputy Commissioner in exercise of his revenue jurisdiction under the Act. It is, therefore, clear that a suit does not seek to vary, modify or set aside the order of the Deputy Commissioner or to avoid such order, the civil court has jurisdiction to entertain suit. By implication it follows further that where an order of the Deputy Commissioner is in excess of the Jurisdiction or without jurisdiction then it can certainly be challenged in a suit and the civil court has jurisdiction to entertain the suit. In the case of M.P. Electricity Board v, Vijay Timber Co. (1997) 1 SCC 68 , the Apex Court held that the exclusion of jurisdiction of civil court cannot be readily inferred and the normal rule is that civil courts have Jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. In the case of Vankamamidi Venkata Subba Rao V/s. Chatlapalli Seetharamaratna Rranganayakamma -- the Apex Court considered the scope of Section 9 of the Code of Civil Procedure Cand held as under: Under Sec. 9 CPC, the Courts shall subject to the provisions contained therein, have jurisdiction to try all suits of civil nature excepting suits cognizance of which is either expressly of impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the civil courts would take cognizance of it. Therefore, the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. Therefore, the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the civil courts generally construe the provisions strictly when jurisdiction of the civil courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, statutes intervene and provide alternative mode of resolution of disputes with less expensive but expeditious disposal. It is settled legal position that if a tribunal with limited jurisdiction cannot assume jurisdiction and decide for itself the dispute conclusively, in such a situation, it is the court that is required to decide whether the tribunal with limited jurisdiction has correctly assumed jurisdiction and decided the dispute within its limits. In the case of D.R. Chawla Ors. V/s. Municipal Corporation of Delhi (1993) 3 S.C. C 162, the Apex Court held that where a statute purports to curb and curtail the pre-existing common law right and purports to Oust the jurisdiction of the court so far remedy against the order passed under such statute is concerned then in such cases, the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the person aggrieved may agitate his grievance. 10 Coming back to the instant case it appears that the plaintiffs have filed the suit for declaration of their title over the suit property on the basis of settlement made by the Sub-divisional Officer, Deoghar in the year 1974 and on the basis of that they have been coming in exclusive possession of the suit property. In the suit the plaintiffs have also pleaded that the subsequent order of the sub-divisional officer recommending for settlement in favour of the defendants and the order passed by the Deputy Commissioner are illegal and wholly without jurisdiction inasmuch as the said authorities have exceeded their jurisdiction and acted out side the purview of their jurisdiction conferred by the Act. In the suit the plaintiffs have also pleaded that the subsequent order of the sub-divisional officer recommending for settlement in favour of the defendants and the order passed by the Deputy Commissioner are illegal and wholly without jurisdiction inasmuch as the said authorities have exceeded their jurisdiction and acted out side the purview of their jurisdiction conferred by the Act. In my opinion such a suit by the plaintiffs cannot be said to be barred under the provisions of the aforementioned Act and civil courts have jurisdiction to entertain such suits and adjudicate the right title and interest of the parties in respect of the suit properties. It is not a case where the plaintiffs by means of clever drafting of pleadings tried to circumvent the provisions of the special statute which excludes the jurisdiction of the civil courts. Learned Counsel appearing for the petitioners put reliance on the decision of the Apex Court in the case of ITC Ltd. V/s. Debts Recovery Appellate Tribunal AIR 1988 S.C 634, in support of his contention that the plaint is liable to be rejected. In my opinion, the principles of law laid down in that case is not applicable in the instant case inasmuch as from the facts pleaded in the plaint by the plaintiffs it cannot be held that the plaintiffs have no cause of action for the suit. In the instant suit the plaintiffs have been seeking declaration of their right title and interest over the suit property on the basis of settlement and have further pleaded the facts which gave rise to cause of action for the present suit. 11. Having regard to the facts and circumstances of the case and the discussions made above, I am of the opinion that the learned Court below has rightly rejected the petition filed by the petitioners by passing the impugned order. I do not find any illegality or informity in the impugned order passed by the Court below. For the reasons above, there is no merit in this civil revision application which is accordingly dismissed.