Research › Search › Judgment

Chhattisgarh High Court · body

2006 DIGILAW 361 (CHH)

NARENDRA v. SAHEBIN

2006-07-13

S.K.SINHA

body2006
ORAL ORDER As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This Revision is directed against the order dated 16/10/96 passed in Civil Suit No. 102-A/87 by the Trial Court. 2. The brief facts are that the plaintiff namely Bholaram (since deceased and represented through Legal Representatives - respondent No. 1 to 9 herein) filed a Civil Suit for a declaration that the sale-deed dated 15/6/ 74, executed by him in favour of defendant No. 1, be declared null and void and he be declared the owner of agricultural land bearing Khasra No. 488 area 8.78 acres. The plaint allegations are that the plaintiff was a landless person and this sale-deed was executed by him for obtaining loan of Rs. 3000/- from defendant No. 1 and in fact, it was orally agreed between them that the plaintiff shall be entitled to get the aforesaid document cancelled by a subsequent deed on repayment of loan amount by him on certain conditions as its owner. In nutshell, the plaintiff pleaded that, in fact, the said document was not a document of transfer of title but the same was a document executed for the security of loan. 3. The defendants filed an objection under Order 7 Rule II CPC saying that under the provisions of M.P. (C. G.) Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976, (Act No. 3 of 1977 hereinafter referred to as Act). the Civil Court would have no jurisdiction to entertain the suit and the suit would be barred by Law and the plaint is liable to be rejected. This contention was overruled by the Trial Court vide order dated 13/10/1987 holding that the suit was filed for declaration of ownership and it would not be barred under the aforesaid provisions of Law. 4. This contention was overruled by the Trial Court vide order dated 13/10/1987 holding that the suit was filed for declaration of ownership and it would not be barred under the aforesaid provisions of Law. 4. It appears that against the aforesaid order, passed by the Trial Court, the defendants preferred a Civil Revision vide No. 3/1988 before the Third Additional District Judge, Durg, who disposed of this Revision expressing views in favour of the defendants, however inspite of rejection of plaint, he directed that the plaintiff should go before the Sub Divisional Officer under Section 5 of the aforesaid Act and the suit before the Civil Court shall remain stayed in this period and the Civil Court shall proceed further as per the orders passed by the Sub-Divisional Officer. In fact, the said Court, even after observing that the matter is governed by the provisions of the said Act did not pass an order of rejection of thc plaint and passed the order in aforesaid manner. Thereafter, the plaintiff filed an application before the Sub-Divisional Officer, but his application was dismissed and ultimately, as stated by learned counsel for the applicants, an appeal filed before the Collector was also dismissed. The copy of the order of Sub-Divisional Officer has been filed as Annexure A-F. When the matter was dismissed before the Revenue Court, the defendants again filed an application under Section 151 CPC saying that since the matter has been decided by the Revenue Court, now the plaint should be rejected as according to the defendants and also according to the earlier order passed in Civil Revision, the plaint appears to be barred by the Special Act and there is no proprietary in proceeding with such plaint This application was dismissed by the Trial Court vide order dated 16/1 0/ 1996. It is against this order, passed by the Trial Court the applicants/defendants have filed this Civil Revision. 5. The submission of learned counsel for the applicants is that as per the provisions of Section 14 of the aforesaid Act, there is bar of civil jurisdiction, therefore, in view of the provisions of Order 7 Rule II (d) CPC, the plaint should be rejected. He takes me to the various provisions of the said Act. 6. 5. The submission of learned counsel for the applicants is that as per the provisions of Section 14 of the aforesaid Act, there is bar of civil jurisdiction, therefore, in view of the provisions of Order 7 Rule II (d) CPC, the plaint should be rejected. He takes me to the various provisions of the said Act. 6. On the other hand, learned Senior Counsel appearing for the respondents argues that the present is a simple suit for declaration of title, therefore, the provisions of the said Act are not attracted and the Trial Court has rightly held that the civil jurisdiction, is not barred and the impugned order has rightly been passed. 7. I have heard learned counsel for the parties at length and have also perused the records of the Court below. 8. Section 5 of the aforesaid Act provides that a holder of agricultural land who is a party to any transaction of loan subsisting on the appointed day or entered into thereafter may apply to the Sub-Divisional Officer within such time, and in such form and manner as may be prescribed for protection and relief under this Act. Section 6 provides about the enquiry to be conducted by the Sub-Divisional Officer and Section 7 provides for setting aside the sale and restoration of possession of land or affording other relief. There is also a provision of appeal vide Section 8 of the said Act. Section 9 deals with the finality of the orders subject to all above, and ultimately, Section 14 deals with the bar of jurisdiction of the Civil Courts. It has been provided under this Section that subject to provisions of Section 11, no Civil Court shall have any jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Sub-Divisional Officer or the Collector. 9. It has been provided under this Section that subject to provisions of Section 11, no Civil Court shall have any jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Sub-Divisional Officer or the Collector. 9. Section 5 begins with the words like "holder of agricultural land", which has been defined under Section 2( c) of the said Act as "holder of agricultural land" in the weaker sections of the people means a holder of land used for purposes of Agriculture not exceeding eight hectares of unirrigated land or four hectares of irrigated land within the State whether as a Bhumiswami or an occupancy tenant or a Government lessee either in any one or all of the capacities together within the meaning of the Code. An explanation is also appended to this definition which says that one hectare of irrigated land shall be equal to 2 hectares of unirrigated land and vice versa. The words "lender of money" has also been defined under Section 2(d) as "lender of money" means a person advancing loan to a "holder of agricultural land", whether registered under the M.P. (C.G.) Money Lenders Act, 1934 (No. 13 of 1934) or not. 10. After a conjoined reading of these provisions, it is clear that for maintainability of an application under Section 5 of this Act, in addition to a dispute referred therein, a person must be a holder of agricultural land as has been defined under Section 2(c) of the Act and the person advancing the money to him must be a lender of money as has further been defined in sub-clause (d) of Section 2. If these two conditions are satisfied, then only, an application under Section 5 would be maintainable before the concerned authority and if such an application would be maintainable before the concerned authority, then only, the civil jurisdiction under Section 14 of the aforesaid Act shall be barred. 11. If these two conditions are satisfied, then only, an application under Section 5 would be maintainable before the concerned authority and if such an application would be maintainable before the concerned authority, then only, the civil jurisdiction under Section 14 of the aforesaid Act shall be barred. 11. Another rule which is to be kept in mind while deciding an application under Order 7 Rule 11 CPC, for rejection of the plaint is, that for this purpose, only allegations in the plaint are to be looked into and the allegations raised in the written statement or objection, which may formulate an issue of fact or law at a later stage of the suit cannot be looked into by the Court while dealing with such application. 12. If we apply these principles and look into the plaint filed before the Trial Court, it would appear that in the very first paragraph of the plaint, the plaintiff has made averment that he was the holder of 9 acres of agricultural land, which he had partitioned between his sons and since last 8 years, he is a landless person. That is to say that on the date of filing of the plaint, according to the plaint allegations itself, the plaintiff was having no land in his hand and he was a landless person. The contents of other paragraphs of the plaint would show that there was some contract between the plaintiff and the defendants for a loan to be advanced to the plaintiff and on this contract, the defendants advanced a sum of Rs.3000/- as a loan to the plaintiff and after an oral agreement between the parties, the aforesaid sale-deed was executed by the plaintiff in favour of defendant No. 1, which, according to the plaintiff, was executed for the security of the loan and was not a transaction transferring any title from plaintiff to the defendants. The plaintiff has further pleaded that he was also paying the amount of interest on the agreed rate, but the dispute arose when even after completion of the period of loan, agreed between them, the defendants denied to execute further document regarding cancellation of the sale-deed etc. The plaintiff has further pleaded that he was also paying the amount of interest on the agreed rate, but the dispute arose when even after completion of the period of loan, agreed between them, the defendants denied to execute further document regarding cancellation of the sale-deed etc. Therefore, on the basis of averments made in the plaint, it clearly appears that, according to the plaintiff, the matter relates to the loan advanced in favour of the plaintiff, who was a holder of agricultural land and in such matters, the plaintiff was competent to file an application under Section 5 of the aforesaid Act and if such an application could have been filed, the civil jurisdiction was barred. 13. At the first instance, the Revisional Court (District Court as it then was) has also taken almost similar view, but hesitantly no orders for rejection of the plaint was passed and it directed for stay of the suit granting 2 months time to the plaintiff to file an application under Section 5 of the aforesaid Act. I am constrained to say that such order was not possible under the provisions of Order 7 Rule II of the Code of Civil Procedure, Under these provisions, either the plaint shall be rejected or it shall be allowed to proceed, but an order that proceeding of the Civil Suit shall remain stayed and the parties may go to the Special Forum cannot be passed under the said provisions of law. 14. I hold that this suit from the statement in the plaint is barred by Section 14 of the aforesaid Act, which expressly bars civil jurisdiction. 15. Even otherwise also, when the civil jurisdiction is expressly or impliedly barred, the Civil Courts are not left to sit as bare spectators. The possible jurisdiction which the Civil Courts can exercise in such matters has been dealt with by various High Courts and the Apex Court including Privy Council It has been held in the matter of Secretary of State Vs. Mask & Co. that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Mask & Co. that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 16. While dealing with a matter under the M.B. Abolition of Jagirs Act, 1951, in which, a prayer was made in the suit to declare the order of Tehsildar, confirmed by the Collector, holding that the defendant was a “pacca Krishak" was invalid, the Apex Court held in the said matter Raghunath (dead) by Lrs. Vs. Kanhiya (dead} by Lrs. 2, that such suits are barred and the order of Tehsildar can be challenged only on the ground of nullity. The Apex Court confirmed the finding recorded by the High Court saying that the High Court on a consideration of the language of Section 34 of the aforesaid Act held that the suit was barred and the order of the Tehsildar could not be challenged in the Civil Court except on the ground that it was a nullity. 17. In the present case, even after visiting Revenue Courts and dismissal of the prayer before the said Courts, no allegations of such nature have been incorporated in the plaint and the plaint remains in its original form. That is to say that the orders passed by the Revenue Authorities have not been challenged by the plaintiff either on the ground of, it being a nullity or an order violating fundamental principles of judicial procedure or an order in which the provisions of the Act (Special Act) have not been complied with. 18. In the opinion of this Court, this plaint filed by the plaintiff was apparently barred under the provisions of Section 14 of the aforesaid Act and the Court below committed error of law by not exercising jurisdiction under Order 7 Rule 11 (d) of the Code of Civil Procedure. The plaint was liable to be rejected. 19. The objection is allowed. The impugned order is set aside. This plaint is rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure 20. The petition is allowed. No order as to costs. Revision Allowed.