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2007 DIGILAW 213 (CHH)

Hariprasad v. Dhannu Through L. Rs. Shyamlal

2007-03-15

W.A.SHAH

body2007
JUDGMENT W.A. Shah, J. 1. This second appeal under Section 100 of the Code of Civil Procedure arises out of judgment and decree dated 28-6-2003 passed by learned Additional District Judge, Kannod, District Dewas in Regular Civil Appeal No. 22-A/2000. By the judgment impugned, judgment and decree vide dated 22-3-2000 passed by the learned Civil Judge, Class-I, Kannod in Civil Suit No. 144-A/95 has been confirmed whereby declaration in favour of the plaintiffs (respondent No. 1 through L.Rs. and respondent Nos. 2 and 3) has been made that they are the Bhumiswami of the disputed land; order of the Sub Divisional Officer under Section 170-B of the M.P. Land Revenue Code, 1959 ("Code" hereafter) is in operative and the other side has been restrained from making an interference in the possession of the plaintiffs/respondents. 2. It has been concurrently found by Courts below that the aboriginal tribe Bhumiswami Ramprasad sold his disputed land on 1-6-1958 to one Dhanya and also delivered to him its possession and executed registered sale-deed latter on 22-4-1965. Then Dhanya sold it to Dhannu (deceased plaintiff No. 1) and gave him possession and executed its registered sale-deed on 7-5-1977. Sub Divisional Officer (Revenue) declared that the sale by Ramprasad to Dhanya was contrary to the provisions of Section 165(6) and under Section 170-B of the Code. The disputed land was liable to reversion to legal representative of Ramprasad (defendant No. 1 Hariprasad). Kachru (defendant No. 2) is son of Late Dhanya. Hence, in the circumstances the suit for declaration and injunction against the above defendants and State was filed and in the alternative refund of consideration was claimed. 3. The defence of the contesting defendants before the learned Trial Court was that Ramprasad never executed the sale-deed of the suit land. He only had intended a mortgage. It was also pleaded that the jurisdiction of the Civil Courts was barred to consider the issue of application of Sections 165 and 170 of the Code. 4. The learned Trial Court at the conclusion of the trial found the suit of the plaintiffs proved and thus negatived the defences of the defendants. The matter went up in first appeal, however, without any success. 4. The learned Trial Court at the conclusion of the trial found the suit of the plaintiffs proved and thus negatived the defences of the defendants. The matter went up in first appeal, however, without any success. Hence, this second appeal which has been admitted vide order dated 5-1-2005 for hearing parties on the following substantial questions of law: (i) Whether Lower Appellate Court was justified in confirming the decree passed by the Trial Court decreeing plaintiff's suit ? (ii) In view of an admitted fact that issue involved in the suit was subject matter of Section 170-B of the M.P. Land Revenue Code proceedings and which resulted in favour of defendants (appellants), whether Trial Court was justified in entertaining the suit and granting decree in favour of the plaintiff ? (iii) Whether jurisdiction of the Civil Court is barred by virtue of Section 25(1-1) because admittedly the issue involved in the suit was subject matter of 170-B proceedings and Competent Court, ie., SDO and later in appeal Collector decided the issue in favour of the defendant ? 5. In the circumstances of the case the substantial questions, as enumerated at Nos. (ii) and (iii), are to be examined to reach up to a conclusion relating to substantial question No. (i). So far as the substantial questions No. (ii) and (iii) are concerned, they are interconnected in the circumstances and, therefore, they are being taken up together. It is pertinent to mention here that in support of the appeal the learned Counsel for the appellant argued that by a number of decisions of this Court it has been settled that in cases of agreement of sale by member of aboriginal tribe to one not such a member without permission of Collector is void and in such an eventuality Section 53A of the Transfer of Property Act and Section 65 of the Contract Act are not attracted. He referred to 1974 MPLJ 761 : 1975 JLJ 715 : 1996 RN 175 (SC) : 2001 RN 85 (MP) : 1977 RN 75 (MP) : 2002 RN 319 and 1988 RN 169. The learned Counsel for the appellant also submitted that the jurisdiction of the Civil Courts in the matter stood barred under the provisions of Section 257 (1-1) of the Code. 6. The learned Counsel for the appellant also submitted that the jurisdiction of the Civil Courts in the matter stood barred under the provisions of Section 257 (1-1) of the Code. 6. In reply the learned Counsel for the opposite side submitted that the principles relating to exclusion of jurisdiction of the Civil Court have been very clearly dealt with by the Apex Court vide . He further submitted that in the circumstances of the case the provisions of Section 165 (6) read with Section 170-B of the Code are not attracted and, therefore, the bar of jurisdiction under the provisions of Section 257(1-1) of the Code does not arise. He relied upon 1995 RN 184 (MP). 7. Having heard the arguments, I have gone through the records of the case. I find that vide the relevant notification well known to all, the M.P. Land Revenue Code, 1959 came to be applied on 2-10-1959. Further it is found that as per the concurrent finding of fact recorded by both the Court below, the crucial date in this case relating to crucial transaction is 1-6-1958. Section 170-B encompasses an inquiry regarding transaction which took place between 2-10-1959 and 24-10-1980. Since the crucial transaction had taken place on 1-6-1958, therefore, the question of application of Section 165(6) read with Section 170-B of the Code does not arise and both the Courts below have rightly held so. In this view of the matter, the question of bar of jurisdiction of the Civil Court under the provisions of Section 257(1-1) of the Code also does not arise. The learned Courts below, therefore, rightly exercised their jurisdiction in the matter. In these circumstances the cases referred by the learned Counsel for the appellant are distinguishable on facts and they cannot be pressed into service. 8. The up shot of the above discussion is that the Trial Court was justified in entertaining the suit and granting the decree in favour of the plaintiffs and the jurisdiction of the Civil Court did not stand barred under the provisions of Section 257(1-1) of the Code. As such the substantial questions enumerated at Nos. 8. The up shot of the above discussion is that the Trial Court was justified in entertaining the suit and granting the decree in favour of the plaintiffs and the jurisdiction of the Civil Court did not stand barred under the provisions of Section 257(1-1) of the Code. As such the substantial questions enumerated at Nos. (ii) and (iii) are replied in the negative and as a result of which the substantial question as enumerated at No. (i) is answered to the effect that the Lower Appellate Court was justified in the circumstances of the case in confirming the decree passed by the learned Trial Court. 9. The result is that this appeal has no merit. It is, therefore, dismissed with costs.