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2008 DIGILAW 229 (MP)

BABU GOVIND BHILALA v. STATE OF M P

2008-02-08

A.K.GOHIL

body2008
Judgment ( 1. ) PLAINTIFF/appellant has filed this second appeal under Section 100 CPC against the judgment and decree passed on 10-4-97 in Regular Civil Appeal no. 5a/96 by the First Additional District Judge, Barwani (West Nimar), affirming the judgment and decree passed on 20-2-96 in Civil Suit No. 13-A/95 by Civil judge Class-II Anjad, W. N. This Second Appeal was admitted on the following substantial questions of law :-"whether under the facts and in the circumstances of the case the courts below erred in law in holding that the Civil Court jurisdiction is barred under Section 257 of the M. P. Land Revenue code?" ( 2. ) BRIEF facts of the case are that the appellant purchased agricultural land at village Chhapri bearing Survey No. 318 admeasuring 8. 27 acre from one umariya Bhilala, by registered sale-deed on 25-4-73. It is submitted that the appellant is adivasi belonging to aboriginal tribe and the seller Umariya Bhilala was also of the same tribe. Thereafter on 12-5-95, a case under Section 170-B of the M. P. Land Revenue Code was registered against the appellant as well as one nabia S/o Ganpat who is in possession as a benami. It was stated in the notice that the aforesaid transaction of purchase of land by the appellant on 25-4-73 is nothing but a fraud and is covered under the provision of Section 170-B and the original owner, who was the member of aboriginal tribe, is entitled for possession of such land. After receiving notice the plaintiff filed the suit on 12-6-95 praying for a relief seeking declaration that he is the Bhumiswami and respondent be restrained to dispossess him. Suit was contested, issues were framed, question of jurisdiction of Civil Court was also raised and Trial Court vide order dated 20-2-96 dismissed the suit simply on the ground that the jurisdiction of the Civil court under Section 257 of the Code is barred. Thereafter, the Lower Appellate court also upheld the aforesaid finding of the Trial Court in appeal and dismissed the appeal filed by the appellant, against which this Second Appeal has been filed which was admitted on the aforesaid substantial question of law. ( 3. ) I have heard the learned Counsel for the parties and perused the record. Thereafter, the Lower Appellate court also upheld the aforesaid finding of the Trial Court in appeal and dismissed the appeal filed by the appellant, against which this Second Appeal has been filed which was admitted on the aforesaid substantial question of law. ( 3. ) I have heard the learned Counsel for the parties and perused the record. It was seriously argued and objected by the learned Counsel for the appellant that the judgment and decree passed by both the Courts below are bad in law and the findings recorded by the Trial Court on the question of jurisdiction of the Civil Court are also bad in law. It was argued that on the day when the suit was filed, i. e. , on 12-6-95, the Civil Court was having jurisdiction to entertain the suit and the jurisdiction of the Civil Court was not exclusively barred and both the Courts below have committed illegality in dismissing the suit as well as appeal. ( 4. ) AFTER hearing the learned Counsel for the parties, I have perused the provisions of Section 257 of the Code. Section (L-1) any matter covered under Section 170-B was inserted by M. P. Amendment Act No. 38 of 1995 w. e. f. 15-12-1995. Therefore, it is clear that prior to 15-12-1995 the jurisdiction of the civil Court in cases falling under Section 170-B of the Code was not exclusively barred and Section (L-1) was incorporated and came into operation with effect from 15-12-1995. There is no dispute in this case that on 12-6-1995 on the day when suit was filed, the aforesaid amended Section (L-1) was not in operation and was not inserted and brought on the books of statute. Therefore, the question for consideration in this case is as to whether on 12-6-1995, when the jurisdiction under Section 257 of the Code was not barred, the suit was maintainable? ( 5. ) IT is settled principle of law that the exclusion of jurisdiction of civil Courts is not to be readily inferred and such exclusion must either be explicitly expressed or clearly implied. The same principle is accepted by the division Bench in the case of State of Madhya Pradesh Vs. Sundarlal Jaiswal, reported in 1976 JLJ 323 = 1976 RN 175= 1976 MPLJ 254 = air 1976 MP 175 , placing reliance on Full Bench decision reported in 1978 JLJ 89 . The same principle is accepted by the division Bench in the case of State of Madhya Pradesh Vs. Sundarlal Jaiswal, reported in 1976 JLJ 323 = 1976 RN 175= 1976 MPLJ 254 = air 1976 MP 175 , placing reliance on Full Bench decision reported in 1978 JLJ 89 . It was further held that as a necessary corollary of this principle, provisions excluding jurisdiction of Civil Courts and provisions conferring jurisdiction on authorities and tribunals other than Civil Courts are to be strictly construed. ( 6. ) SECTION 257 of the Code confers exclusive jurisdiction to the revenue Courts in respect of certain matters as enumerated in the Section and in some of the matter in which the jurisdiction of the Civil Court has not been expressly barred then the Civil Court will have jurisdiction to entertain the suits. It is more particularly clear from the insertion of sub-clause (L-1) in Section 257 w. e. f. 15-12-95 that any matter covered under Section 170-B of the Code no civil Court shall exercise jurisdiction thereon. This also clearly indicates that prior to 15-12-1995 there was no expressed bar on the jurisdiction of the Civil court and therefore it is clear that on 12-6-1995 the jurisdiction of the Civil court was not expressly barred. Thus, as a necessary corollary it has to be held that prior to 15-12-1995 for considering the cases falling under Section 170-B of the Code, which was introduced by M. P. Act No. 15 of 1980 w. e. f. 24-10-1980, the jurisdiction of the Civil Court was not excluded. If there was no clear provision in Section 257 to debar the jurisdiction of the Civil Court prior to 15-12-95 then certainly it has to be held that the suit was maintainable and Civil Court was competent to entertain the suit. ( 7. ) SECTION 257 of the Code provides that 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 matters mentioned in this section. Even the language of sub-section (3) of Section 170-B of the Code does not say in clear terms that the jurisdiction of the Civil Court is either explicitly expressed or clearly implied as barred. ( 8. ) IN view of the aforesaid facts and circumstances of the case, it is clear that for the cases falling under Section 170-B the jurisdiction of the Civil court is barred w. e. f. 15-12-1995 and prior to that the jurisdiction of the Civil court was not barred. Therefore, in my opinion, both the Courts below have not properly examined the provisions of Section 257 of the Code and have not considered this aspect of the matter that on the day when the suit was filed, whether jurisdiction of the Civil Court was expressly barred or not. ( 9. ) CONSEQUENTLY, question is answered accordingly. This appeal is allowed. Judgments and decree of both the Courts below are set aside and the case is remanded back to the Trial Court to decide the suit on merits after hearing the parties in accordance with law. The parties shall appear before the Trial court on 28-3-2008 and thereafter the Trial Court shall decide the suit as expeditiously as possible. Office is also directed to remit back the record of the trial Court so that it may reach on or before 28th March, 2008. ( 10. ) PARTIES to bear their own costs.