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2010 DIGILAW 255 (CHH)

TRIBHUWAN PANDEYA v. STATE OF M. P.

2010-10-22

T.P.SHARMA

body2010
JUDGMENT 1. By this second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), the appellant has challenged the legality and propriety of the judgment and decree dated 2.2.90 passed by the Additional District Judge, Baikunthpur, in Civil Appeal NoAAl89, reversing the judgment dated 17.1.84 and decree dated 23.1.84 passed by the Civil Judge Class-II, Baikunthpur, in Civil Suit No.1 OA/8l. 2. The present second appeal has been admitted for consideration on the following substantial questions of law:- (i) Whether the civil court has jurisdiction to declare as nullity the order Revenue Court passed without notice and without inquiry and without finding the essential ingredients to attract the power of the Revenue Court? (ii) Whether the appeal by the State before the A.DJ. was competent at all ? 3. As per pleadings of the parties, one Pruthwinath Pandeya, elder brother of the appellant was in possession of the suit land admeasuring area 5.01 acres situated at village Ghughra, Tahsil Baikunthpur, then District Surguja since 1964 till his death i.e. 1977. After death of Pruthwinath Pandeya, the present appellant as younger brother of Pruthwinath Pandeya became owner and possessor of the suit land on the ground of sole surviving successor. Land was also given to Pruthwinath Pandeya in lease by Naib Tahsildar, Baikunthpur in Revenue Case No.2 A-46/67-68. Originally the land was held by Gopal Pando who has given the land to Pruthwinath Pandeya as occupancy tenant in the year 1964 for four years. In the year 1977, respondent No.2 has initiated the proceeding and without providing opportunity of hearing to the appellant, passed an illegal order of ejectment against him. The appellant has filed petition before respondent No.2 for reconsideration of the case, but the same was dismissed on the ground of limitation. Finally, suit for declaration of title, permanent injunction and declaration of the order passed by respondent No.2 as null and void was filed before the Civil Judge Class-II, Baikunthpur against respondents No.1 and 2 and Manmati, wife of Dalsai. By filing written statement, respondents No.1 and 2 have denied the adverse allegation and have pleaded that respondent No.2 has acted in accordance with Section 170-A of the Chhattisgarh Land Revenue Code, 1959 (for short 'the Code') and the revenue Courts are having exclusive jurisdiction to decide the matters covered under Section 170-A of the Code. By filing written statement, respondents No.1 and 2 have denied the adverse allegation and have pleaded that respondent No.2 has acted in accordance with Section 170-A of the Chhattisgarh Land Revenue Code, 1959 (for short 'the Code') and the revenue Courts are having exclusive jurisdiction to decide the matters covered under Section 170-A of the Code. They have further pleaded that jurisdiction of the civil Court is barred under Section 257 of the Code. Original respondent/defendant No.3 Manmati was ex-parte before the trial Court. 4. After providing opportunity of hearing to the parties, learned Civil Judge Class-H, Baikunthpur has decreed the suit which was challenged by the respondents before the lower appellate Court and vide judgment and decree impugned learned lower appellate Court has reversed the judgment and decree of the trial Court on the ground that the civil Court is not having jurisdiction to entertain the suit covered under Section 170-A of the Code. 5. I have heard learned counsel for the parties, perused the judgment and decree impugned, judgment and decree of the trial Court and records of the Courts below. 6. Learned counsel for the appellant vehemently argued that although originally, the land was held by a member of Scheduled Tribe which has been declared as an aboriginal tribe, but the same was given to Pruthwinath Pandeya as occupancy tenant Thereafter, the land was given in lease by the revenue authorities to Pruthwinath Pandeya under Section 190 of the Code, but without providing opportunity of hearing to the parties, especially the appellant, respondent No.2 has passed an illegal order. Jurisdiction of civil Court against such order is not barred under the law. Learned counsel further argued that the respondents were not necessary party, therefore, the respondents were not competent to file appeal against the judgment and decree passed by the trial Court. 7. On the other hand, learned State counsel opposed the appeal and argued that respondent No.2 has acted in accordance with Section 170-A of the Code and the revenue Court is competent to decide the dispute covered under Section 170-A of the Code. Inter alia, jurisdiction of the civil Court is barred in terms of Section 257 of the Code. 8. On the other hand, learned State counsel opposed the appeal and argued that respondent No.2 has acted in accordance with Section 170-A of the Code and the revenue Court is competent to decide the dispute covered under Section 170-A of the Code. Inter alia, jurisdiction of the civil Court is barred in terms of Section 257 of the Code. 8. In the present case, the land was originally held by one Gopal Pando, member of Scheduled Tribe who has been declared to be an aboriginal tribe by the State Government under sub-section (6) of Section 165 of the Code. Special provision relating to set aside the transfer of the land belonging to such member of such tribe to member not belonging to such Tribe has been amended by amending Act 61 of 1976 with effect from 29.11.1976. Sub-section (1) of Section 170-A of the Code reads as under: "170-A. Certain transfer to be set aside.-(1) Notwithstanding anything contained in the Limitation Act, 1963 (No.36 of 1968), the Sub-Divisional Officer may, on his own motion or on an application made by a transfer of agricultural land belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 on or before the 3151 December, 1978, enquire into a transfer effected by way of sale, or in pursuance of a decree of a court to such land to a person not belonging to such tribe or transfer effected by way of accrual of right of occupancy tenant under section 169 or of Bhumiswami under sub-section (2-A) of section 190 at any time during the period commencing on the 2nd October, 1959 and ending on the date of commencement of the Madhya Pradesh Land Revenue Code (Third Amendment) Act, 1976 to satisfy himself as to the bonafide nature of such transfer. (2) xxx xxx xxx xxx." 9. (2) xxx xxx xxx xxx." 9. Sub-section (1) of Section 170-A of the Code makes the provision relating to enquire into a transfer effected by way of sale, or in pursuance of a decree of a court of such land to a person not belonging to such tribe or transfer effected by way of accrual of right of occupancy tenant under section 169 or of Bhumiswami under sub-section (2-A) of section 190 at any time during the period commencing on the 2nd October, 1959 and ending on the date of commencement of the Madhya Pradesh Land Revenue Code (Third Amendment) Act, 1976 i.e. 29.11.1976. 10. In the present case, as per pleadings of the appellant, Bhumiswami right has been conferred upon Pruthwinath Pandeya under Section 190 of the• Code in the year 1967, definitely which was subject matter of inquiry under Section 170-A of the code. Section 257 of the Code creates bar for entertaining suit by the civil Court relating to the matters which the State Government, Board or any Revenue Officer is empowered to determine, decide or dispose of the matters under the Code and also create bar relating to the matters included in clause (a) to (z-2) appended in Section 257 of the Code. Section 257 reads as under:- "(a) ......... to (z-2) ........ ..." 11. The section confers exclusive jurisdiction to the Revenue Courts in respect of certain matters as enumerated in this section. The section is drafted in a peculiar manner. It keeps in tact jurisdiction of civil Court in respect of following:- (i) Where jurisdiction is either conferred on civil court or it is stated that a civil suit will be competent in respect of certain matter; and (ii) Where jurisdiction is conferred on civil Court under any other provision of law specifically in respect of certain matter. Under this section, jurisdiction of civil Court is excluded in respect of the following:- (i) such matters which the State Government, the Board or any Revenue Officer is competent to decide under the provisions of this Code; and (ii) matters which are enumerated in clauses (a) to (z-2) of this Section. 12. Under this section, jurisdiction of civil Court is excluded in respect of the following:- (i) such matters which the State Government, the Board or any Revenue Officer is competent to decide under the provisions of this Code; and (ii) matters which are enumerated in clauses (a) to (z-2) of this Section. 12. Although specific provision relating to bar in relation to Section 170-/A of the Code has been inserted in Section 257 by amending act 18 of 1984, but main clause of Section 257 of the Code also creates bar relating to the matter exclusively try by the revenue Courts. 13. While dealing with the exclusion of jurisdiction of the civil Courts by any institute, the Supreme Court in the matter of State of A.P. Vs. Manjeti Laxmi Kantha Rao (Dead) by LRs. and others1 held that the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognisance by them either expressly or impliedly excluded as provided under Section 9 CPC but such exclusion is not readily referred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try a civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the stature in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. Para 5 of the said judgment reads as under:- "5. The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognisance by them either expressly or impliedly excluded as provided under Section 9 CPC but such exclusion is not readily referred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try a civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the stature in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai Vs. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the stature in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai Vs. State of M.P.2 it was noticed that where a statute gives finality to the orders of the Special Tribunals, jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit and such provision~ however, does not exclude these cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." 14. While dealing with the exclusion of jurisdiction of the Civil Court relating to the matters appeal-able under Section 170-B of the Code, the High Court of Madhya Pradesh in the matter of Dhumaniya Vs. Harisingh and others3 held that the suit against the order passed by the Sub Divisional Officer under Section 170-B of the Code cannot be decided on merits of the matter. Civil Curt has to see whether an inquiry was conducted as provided under Section 170-B of the Code or not. While placing reliance in the matter of Manjeti Laxmi Kantha Rao (Dead) by LRs. and others• (supra), the High Court of Madhya Pradesh held that Civil Court has no jurisdiction to decide the case on merits but has only jurisdiction to see whether an inquiry was conducted as provided under Section 170-B of the Code or not. 15. While dealing with the question of exclusion of jurisdiction in case of matters tri-able by Revenue Court, a Division Bench of the High Court of Madhya Pradesh in the matter of Nathuram Arjun Vs. Siyasharan Harprasad4 held that in case private right of way of cultivator through the field of another for access to his field, the revenue Courts are having exclusive jurisdiction to decide the matter and decision of revenue authorities under this section is exclusive and suit to enforce the common law right Le., under Easements Act, does not lie. 16. While dealing with the question of exclusion of jurisdiction of the Civil Court, the Supreme Court in the matter of K.S. Venkataraman & Co. (P) Ltd. Vs. 16. While dealing with the question of exclusion of jurisdiction of the Civil Court, the Supreme Court in the matter of K.S. Venkataraman & Co. (P) Ltd. Vs. State of Madras5 held that if a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A stature may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a Civil Court in that regard. 17. While dealing with the same question, the Supreme Court in the matter of State of Kerala Vs. N Ramaswami Iyer and Sons6 held that after referring to earlier cases, the view was reiterated that where the legislature sets up a special tribunal to determine questions relating to rights or liabilities which are the creation of a statute, the jurisdiction of the Civil Court would be deemed excluded by implication. 18. Section 170-A of the Code provides complete procedure for inquiry relating to transaction hit by Section 170-A of the Code. Order made under Section 170-A of the Code is appeal-able under provisions of Section 44 of the Code. Second appeal against such appellate order is barred under Section 170A of the Code, but revision against the order passed by the first appellate Court is maintainable in accordance with Section 50 of the Code which shows that legislature has taken proper care and has provided adequate remedy in case of grievance against the order made under Section 170-A of the Code. Complete and adequate procedure has been provided in the Chhattisgarh Land Revenue Code. 19. As held by the High Court of Madhya Pradesh in Dhumaniya3 (supra), the civil Court is not having jurisdiction to decide the matters on merits but the civil Court has to see whether an inquiry was conducted as provided under Section 170-A of the Code or not. 20. In the present case, as per pleadings and ground raised by the appellant, matter was inquired by the Sub Divisional Officer who was competent under Section 170-A of the Code. 20. In the present case, as per pleadings and ground raised by the appellant, matter was inquired by the Sub Divisional Officer who was competent under Section 170-A of the Code. As per pleadings of the appellant, respondent No.2 has not followed the procedure proscribed and has not provided opportunity of hearing which was definitely subject matter of the appeal or revision and the appellant was under obligation to redress his grievance before the appellate Court or revisional authority in accordance with Sections 44 and 50 of the Code. or in case, ex-parte proceeding and ex-parte order, remedy to file an application for setting aside the order passed ex-parte was available to the appellant under Section 35 of the Code, but without availing the aforesaid remedy available to the appellant, he has straightway filed civil suit which was not maintainable in accordance with Section 257 of the Code 21. Consequently, substantial question of law No.1 is decided as negative. 22. In the present case, respondents No.1 and 2 were contesting party before the trial Court and they have contested the case before the trial Court. The appellant has made party to the respondents before the trial Court. In these circumstances, the respondents were competent to file appeal against the judgment and decree passed by the trial Court against the State Government. Consequently, substantial question of law No.2 is decided as positive. 23. On the basis of aforesaid decision on the substantial questions of law formulated for the decision of the appeal, I do not find any substance in the appeal. The appeal being without substance is liable to be dismissed and it is hereby' dismissed. The parties shall bear their own cost. 24. Advocate fee as per schedule. 25. A decree be drawn accordingly. Appeal Dismissed.