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2005 DIGILAW 225 (CHH)

Chotelal Sahu v. Vishram Tumkeri

2005-06-28

V.K.SHRIVASTAVA

body2005
ORDER V.K. Shrivastava, J. 1. The plaintiffs-respondent Nos. 1 to 3 filed a suit for declaration and injunction alongwith an application under Section 91(1)(b) of the Code of Civil Procedure for permission to file the suit on the ground that the suit property is recorded as Gothan in revenue record and the defendants-applicants are making construction over the said property and thereby causing public nuisance and by so wrongful act affecting the public. The defendants-applicants opposed the application, and filed an application under Order VII Rule 11 of the Code of Civil Procedure stating that, the plaintiffs may avail relief from the Revenue Court under the Land Revenue Code and notice under Section 80 of the Code of Civil Procedure has not been served on the Government, therefore, the suit, being barred by law, is not tenable. 2. Learned Trial Court, vide impugned order dated 21-9-1998, allowed the application filed by the plaintiffs-respondent Nos. 1 to 3 under Section 91(1) of the Code of Civil Procedure and rejected the application filed by the defendants- applicants under Order VII Rule 11 of the Code of Civil Procedure. 3. Learned Counsel for both the parties are hear at length. 4. A copy of the plaint has been filed. From perusal of the same, it is apparent that, the plaintiffs-respondent Nos. 1 to 3, have been made averment that, a part of the land, bearing Khasra No. 123/3 area 1.995 hectares and Khasra No. 123/5 area 0.380 hectares, situated at Village Bajrangupur, is recorded as Gothan in the revenue records. The land is in the heart of the village and is used by the villagers for public purposes. The defendants-applicants unauthorisedly started making construction over it on 23-7-1998. Despite the prohibitory orders issued by Revenue Courts and criminal proceedings, the construction remained continued, therefore, the plaintiffs-respondent Nos. 1 to 3 filed a suit for declaring the suit land as the Public Nistari land of plaintiff and other villagers, and for issuing permanent injunction against the defendants-applicants, restraining them from interfering in the use of disputed land. An application under Section 91(1)(b) of the Code of Civil Procedure for permission to file civil suit on the grounds raised in the plaint was also filed. 5. The defendants-applicants filed application under Order VII Rule 11 of the Code of Civil Procedure and also filed reply to the application filed by the plaintiffs-respondent Nos. An application under Section 91(1)(b) of the Code of Civil Procedure for permission to file civil suit on the grounds raised in the plaint was also filed. 5. The defendants-applicants filed application under Order VII Rule 11 of the Code of Civil Procedure and also filed reply to the application filed by the plaintiffs-respondent Nos. 1 to 3 under Section 91(1)(b) of the Code of Civil Procedure. The defendants-applicants, besides other grounds, also raised legal ground of non-compliance of provision contained in Section 80 of the Code of Civil Procedure. They also raised objection to the effect that, the land belongs to the Government, therefore, proper action can be taken only by the State Government, and relief can be availed under the provisions of the Land Revenue Code, it is, therefore, the jurisdiction of Civil Court is barred. 6. Learned Trial Court, vide impugned order, held that the suit land a public place, and by unlawful construction, public rights have been obstructed. The State being a formal party, notice under Section 80 of the Code of Civil Procedure was not necessary, and further in the interest of justice, holding permission to file the suit necessary; rejected the application filed by the defendants-applicants under Order VII Rule 11 of the Code of Civil Procedure and allowed the application filed by the plaintiffs-respondent Nos. 1 to 3 under Section 91(1)(b) read with Section 151 of the Code of Civil Procedure by impugned order dated 21-9-1998. 7. The relevant portion of Section 257 of the Chhattisgarh Land Revenue Code, 1959 reads as below :-- "257. Exclusive jurisdiction of revenue authorities.-- Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters : *** *** *** *** 8. From bare reading of this said provision it is apparent that jurisdiction of civil Court is barred to decide a lis. if the state Government, the Board or any Revenue Officer has been empowered to determine, decide or dispose of the same. From bare reading of this said provision it is apparent that jurisdiction of civil Court is barred to decide a lis. if the state Government, the Board or any Revenue Officer has been empowered to determine, decide or dispose of the same. Admittedly, the suit land, over which construction has been made by the defendants-applicants, belongs to the Government and is recorded as Gothan in revenue record. Plaintiffs' contention is that, the land is a common land of the villagers, and by an unauthorised construction, villagers' rights over the suit land have been obstructed by the defendants-applicants. The dispute relates to causing obstruction over common land of a village, and the provisions applicable to resolve the same is envisaged under Sections 132 and 133 of the Chhattisgarh Land Revenue Code, 1959, which read as below :-- "132. Penalty for obstruction of way, etc.-- Any person who encroaches upon, or causes any obstruction to the use of a recognised road, path or common land of a village including those roads and paths recorded in the village Wajib-ul-arz or who disobeys the decision of a Tehsildar passed under Section 131, shall be liable, under the written order of a Tehsildar stating the facts and circumstances of the case, to a penalty which may extend to one thousand rupees." "133. Removal of obstruction.-- If a Tehsildar finds that any obstacle impedes the free use of a recognized road, path or common land of a village or impedes the road or water course or source of water which has been the subject of a decision under Section 131, he may order the person responsible for such obstacle to remove it, and, if such person fails to comply with the order, may cause the obstacle to be removed and may recover from such person the cost of removal thereof." 9. It is clear that, Tehsildar is empowered to remove the obstacle from the common land and also to impose penalty on the person who encroaches upon or obstructs the use of common land. Therefore, when Tehsildar has been empowered to determine, decide and give relief to villagers according to the aforesaid provision, then the provisions of Section 257 of the Chhattisgarh Land Revenue Code, 1959 will come into play and the bar created under that provision will apply. Therefore, when Tehsildar has been empowered to determine, decide and give relief to villagers according to the aforesaid provision, then the provisions of Section 257 of the Chhattisgarh Land Revenue Code, 1959 will come into play and the bar created under that provision will apply. Accordingly, no civil suit can be instituted by a private party seeking relief for removal of the obstruction from the common land, which belongs to the State Government. 10. The plaintiffs have sought relief for declaration not only against the defendants-applicants but also against the State Government. Therefore, the State is apparently not a formal party, and without service of notice, as required under Section 80 of the Code of Civil Procedure, a suit, to obtain an urgent or immediate relief against the Government, can only be filed with the leave of the Court. Neither notice under Section 80 of the Code of Civil Procedure has been served on the State Government nor leave of the Court as required under Section 80(2) of the Code of Civil Procedure, has been obtained by the plaintiffs- respondent Nos. 1 to 3. 11. Section 91 of the Code of Civil Procedure reads as below :-- "91. Public nuisance and other wrongful acts affecting the public.-- (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-- (a) by the Advocate-General, or (b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently or its provisions." 12. Section 91 of the Code of Civil Procedure applies to those cases in which public nuisance or any other wrongful act affecting or likely to affect the public is related. Here in this case, it is pertinent to note that, in Para 1 of the application itself, the plaintiffs have stated that, they are filing the suit in representative capacity and as specially affected persons. In Para 2, it has been stated that, the obstruction is over the right of the plaintiffs. Here in this case, it is pertinent to note that, in Para 1 of the application itself, the plaintiffs have stated that, they are filing the suit in representative capacity and as specially affected persons. In Para 2, it has been stated that, the obstruction is over the right of the plaintiffs. Therefore, so far as the application is concerned, it does not contain any recital, by which it can be said that, the application has been filed on the ground of public nuisance or wrongful act affecting the public alone. 13. From the aforesaid discussions, it is apparent that, the application filed under Section 91(1) of the Code of Civil Procedure itself does not contain the essential ingredients required for grant of permission. The relief sought for is against the State also, and without service of notice, as required under Section 80 of the Code of Civil Procedure, no suit could have been instituted. Sections 132 and 133 of the Chhattisgarh Land Revenue Code, 1959 empowers the Tehsildar to decide the dispute and grant the necessary relief, therefore, according to Section 257 of the Chhattisgarh Land Revenue Code, 1959 the civil suit was barred. 14. Order VII Rule 11 of the Code of Civil Procedure empowers the Court to reject the plaint, where from the statement in the plaint, the suit appears to be barred by any law. Therefore, the suit, filed by the plaintiffs without service of notice under Section 80 of the Code of Civil Procedure or permission as required under Section 80(2) of the CPC, and barred under Section 257 of the Chhattisgarh Land Revenue Code, ought to have rejected, whereas learned Trial Court, vide impugned order, rejecting the application filed by the defendants-applicants and allowing the application filed by the plaintiffs-respondent Nos. 1 to 3, committed gross illegality, therefore, the impugned order deserves to be set aside. 15. In the result, the revision is allowed. The order passed by 1st Civil Judge Class II, Rajnandgaon in Civil Suit No. 97-A/98 on 21-9-1998 is set aside. The application filed by the applicants/defendants under Order VII Rule 11 of the CPC, is allowed and consequently the plaint is rejected. Parties to bear the cost of their revision.