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2010 DIGILAW 833 (GAU)

Sawarmal Jhunjhunwala v. State of Meghalaya

2010-11-04

BIPLAB KUMAR SHARMA

body2010
JUDGMENT B.K. Sharma, J. 1. This Civil Reference is pursuant to the order dated 17.10.2001 passed by the learned Munsiff, Shillong in Title Suit No. 6 (H)/1988. The circumstances in which the reference has been made are as follows. 2. One Shri Swarmal Jhunjhunwalla filed a suit being T.S. No. 6(H0/1988 in the Court of the learned Munsiff, Shillong for recovery of possession and permanent injunction. The suit was valued at Rs. 340/-. The relief sough for in the suit are as follows : It is therefore prayed that Your Honour would be graciously in favour of the Plaintiff for : (1) declaration the Plaintiff to be the owner of the plot of land upon which the Defendant has illegally encroached upon trespassing therein at the eastern boundary of the Plaintiff to the extent of 8 sq.ft minimum along the 3 boundary; & (2) permanent injunction restraining the Defendant, his agents, servants employees or any person or persons from interfering with the eastern boundary of the Plaintiff's land in any manner and also illegally encroachment upon and over the land of the Plaintiff; & (3) declaring that the Defendant has no right what-so-ever or title or any interest upon the land as described in the Schedule 'B' of this plaint. (4) Full costs of the suit; & (5) recovering the portion of the land as described in Schedule 'B' of this plait by ousting the Defendant from the portion of land belonging to the Plaintiff measuring about 8sp.ft. minimum; & (6) any other relief or reliefs to which the Plaintiff is found legally and 4 equitably entitled according to law. 3. Pertaining to the injunction matter, the Defendant Umesh Chand Gothia preferred an appeal being Misc. Civil Appeal No. 6(H)/1988, in which the learned District Judge, Shillong passed the order dated 3.4.1993 transferring the entire matter to the learned Deputy Commissioner, Revenue for trial and disposal. The reason for such transfer of the proceeding to the revenue Authority was on the ground of the question involved being and the agreement conveyed by the parties. 4. When the matter was pending in the Court of Deputy Commissioner, Revenue, there was occasion for the Plaintiff to approach this Court by filing a petition under Article 227 of the Constitution of the India which was registered and numbered as Civil Rule No. 132 (SH)/1997. 4. When the matter was pending in the Court of Deputy Commissioner, Revenue, there was occasion for the Plaintiff to approach this Court by filing a petition under Article 227 of the Constitution of the India which was registered and numbered as Civil Rule No. 132 (SH)/1997. The writ petition was filed, when the records of the title suit became untraceable. During the course of hearing of the writ petition, an argument was made on behalf of the Plaintiff/Petitioner that the Deputy Commissioner, Revenue had no jurisdiction to try the suit and that the jurisdiction was with Civil Court. Such plea of the Petitioner, although was noted but the issue involved in the writ petition being not pertaining to the same, no decision was given on the question of jurisdiction and the Petitioner was granted liberty to challenge the order of the learned District Judge dated 3.4.1993. 5. Although no such challenge was made to the aforesaid order passed by the learned District Judge, the 4 question of jurisdiction was raised before the Additional Deputy Commissioner, Revenue, before whom the suit was pending. The learned ADC by his order dated 18.11.1999 having held that the jurisdiction lies with the Civil Court, the case records were transferred to the learned Munsiff, Shillong. 6. After the case records were received by the learned Munsiff, it was the turn of the Defendant to raise objection regarding jurisdiction of the Civil Court contending inter alia that having regard to the aforesaid order dated 3.4.1993 passed by the learned District Judge the matter is required to be tried by the Revenue Court. It was in such circumstances the learned Munsiff has made the aforesaid reference by his order dated 17.10.2001, relevant portion of which is quoted below : I therefore deemed fit and proper to refer this matter relating to jurisdiction of the court to try the suit. Accordingly as per the provision under Section 113 Code of Civil Procedure, the jurisdiction matter is referred to the Hon'ble Gauhati High Court, Shillong Bench for his opinion, clarification and direction of this Court relating to the jurisdiction of the court on the following questions. 1. Whether the "Trial Court" mentioned in the order dated 22.9.1997 passed by the Hon'ble Gauhati High Court, Shillong Bench, Shillong in Civil Rule No. 13 (SH) the Deputy Commissioner (Revenue) East Khasi Hills, Shillong? 2. 1. Whether the "Trial Court" mentioned in the order dated 22.9.1997 passed by the Hon'ble Gauhati High Court, Shillong Bench, Shillong in Civil Rule No. 13 (SH) the Deputy Commissioner (Revenue) East Khasi Hills, Shillong? 2. Whether the court of Deputy Commissioner (Revenue) East Khasi Hills District Shillong or the Court of the Munsiff has got the jurisdiction to try the instant suit namely the T.S. No. 6(H) of 1988 which is the Title Suit for recover of a small portion of land (1 ft. X 8 ft.) of the Plaintiff alleged to have been 4 encroached by the Defendant which pertains to Revenue Plot? 7. I have heard the learned Counsel for the parties namely Ms. A Paul and Mr. L.R Das appearing for the respective parties. I have also considered the entire materials on record. While Ms. A. Paul submitted that having regard to the earlier order passed by the learned District Judge and the agreement for transferring the matter to the Revenue Court and also having regards to the nature of the dispute involved, the matter is required to be tried by the Additional Deputy Commissioner and not by the Civil Court, Mr. LR Das submitted that the prayer in the suit being one of declaration of right, title and possession in respect of the disputed land, the revenue authority has no jurisdiction to try the matter. 8. While Ms. Paul, learned Counsel has placed reliance on the decision reported in 2007 (1) GLT 400 (Moosa and Anr. v. State of Assam and Ors.);(1985) 2 GLR 282 (Jyotish Ch. Chakravarty v. Dwip Charan Namasundra) and (1990) 2 GLR (Sri. Produmnya Das Purkayastha v. Sri. Rasendra Kr. Das), Mr. Das, learned Counsel has referred to the decisions reported in (2008) 9 SCC 368 (Rajindra Singh v. State of Jammu & Kashmir) and (2006) 2 GLR 983 (Surjya Kr. Das v. Anil Ch. Kar). Learned Counsel for the parties have also referred to the provisions of the Assam Land & Revenue Regulatory, 1886 in support of their respective arguments. 9. I have given my anxious consideration to the consideration to the submission made by the learned 4 counsel for the parties. I have also considered the entire materials on records. I have also considered the entire materials on records. I have also carefully gone through the various orders passed in the proceeding. 9. I have given my anxious consideration to the consideration to the submission made by the learned 4 counsel for the parties. I have also considered the entire materials on records. I have also considered the entire materials on records. I have also carefully gone through the various orders passed in the proceeding. Needless to say that a jurisdiction cannot be conferred by consent of parties unless such jurisdiction cannot be conferred by consent of parties unless such jurisdiction is vested on the authority by operation of law. In the instant case, although the learned District Judge passed the aforesaid order dated 3.4.1993 recording consent of the parties for transferring the matter to the Deputy Commissioner, Revenue, unless such jurisdiction is vested with the said authority, by operation of law, it cannot be said that such jurisdiction stood vested by virtue of the said order. 10. Although, the Court in its order dated 22.9.1997 passed in Civil Rule No. 132(SH)/1997 declined to decide the issue as to the jurisdiction of the Revenue Court to try the matter and granted liberty to the Plaintiff/Petitioner to agitate the issue by another proceeding, irrespective of such proceeding, the Petitioner had the right to raise the question of jurisdiction before the authority which was in session of the matter. The said authority i.e the learned Additional Deputy Commissioner, Revenue, by his order dated 18.11.1999 having held that the matter is exclusively triable by the Civil Court, the suit was transferred to the learned Munsiff, Shillong. 11. The learned ADC in his order dated 18.11.1999 while answering the issues framed - "whether the instant Title Suit can be tried by the Deputy Commissioner, Revenue/Additional Deputy Commissioner, Revenue" and "whether the Instant Civil Suit can be disposed of under Section 4,129 of the Assam Land and Revenue Regulation, 1886 in the present form" held that the final authority to decide the decide the dispute involved is the Civil Court having jurisdiction on the suit property. The learned ADC has also noted in the order that the suit property is located at Police Bazar of European Ward, Shillong and as such the DC/ADC has no jurisdiction to try the suit. The learned ADC has also noted in the order that the suit property is located at Police Bazar of European Ward, Shillong and as such the DC/ADC has no jurisdiction to try the suit. Another finding recorded in the order is that the property once having been surveyed and demarcated by the revenue staff of the DC, and DC, Revenue was a party to the matter and thus could be called as witness to produce the relevant documents/records and therefore it would not be fair for the DC/ADC, Revenue to try the suit even if any special power was vested. 12. Section 129 of the Regulation is relating to power to distribute work in terms of which the DC or SDO may refer any case to any Revenue Officer subordinate to him for investigation and report or if the officer has power to dispose of the case, for disposal. Section 154 on which Ms. Paul, learned Counsel has placed reliance speaks of exemption from cognizance of Civil Court in certain matters. She has specifically referred0 to Clause (h) of the said Regulation which speaks of claims to occupy or resort to lands under Section 13 and 14 relate to power to make rules for allotment of grazing grounds and power to make rules of allotment of lands for tribes practicing jhum cultivation or migratory cultivation. 13. Learned Counsel has also referred to Section 23 of the Regulation which pertains to procedure in case of boundary disputes. It is her contention that since there was boundary dispute by and between the parties, it is the revenue authority which is required to resolved the dispute on the basis of actual possession and thus the 4 issue is required to be decided by the DC/ADC, Revenue in terms of the provisions of Section 154 of the Regulation. 14. The aforesaid provision of the Regulation pertains to boundary dispute to be resolved by the revenue authority. The provision of Section 154 of the Regulation on which the learned Counsel has placed reliance has no application to the instant case. The prayer in the suit has been referred to above. Such prayer on the basis of the issues involved in the suit cannot be decided by the revenue authority. Thus the reference to the provisions of the said Regulation is of no help to the case of the Defendant. 15. The prayer in the suit has been referred to above. Such prayer on the basis of the issues involved in the suit cannot be decided by the revenue authority. Thus the reference to the provisions of the said Regulation is of no help to the case of the Defendant. 15. In Moosa (supra), this Court dealing with the question of bar of jurisdiction of Civil Court in view of the provision of Section 154 of the Regulation held that the grant of the particular relief being covered under Section 154, the suit was barred. In the said case, the issue involved was the correction in the records of right and the declaration sought for was if title and mandatory injunction directing the revenue authorities to record the names of the Plaintiffs in the record of right as land holders. It was in such circumstances and having regard to the provisions of Section154 of the Regulation, it was held that the suit was barred. Same is not the case in hand. The Plaintiff/Petitioner has not sought for any direction to the revenue authority and what has been prayed for has been noted above. 16. In Pradumnya Das Purkayasth (supra), when the suit was filed against the cancellation of annual patta by the Assistant Settlement Officer, although, declaration 4 was prayed for, for right, title and interest and confirmation of possession, it was held that in such a back ground, the suit was not maintainable. In the instant case, no such situation prevails to attract the bar of jurisdiction of Civil Court. 17. In Jyotish Ch. Chakravarty (supra), the Plaintiff sought for a declaration that the settlement in favour of the Appellant in respect of the land in question by the ASO and the order of the DC making the land khas be declared as illegal. Same being covered by Section 154 of the regulation, it was held that there was bar of jurisdiction of the Civil Court. Same is also not the case in hand. 18. In Surjya Kr. Das (supra) on which the learned Counsel for the Plaintiff/Petitioner has placed reliance, this Court having regard to the relief prayed for in the suit which is similar to the instant case has held that the Revenue Court will have no jurisdiction to grant a decree of declaration of title to, or recovery of possession of the suit land. Das (supra) on which the learned Counsel for the Plaintiff/Petitioner has placed reliance, this Court having regard to the relief prayed for in the suit which is similar to the instant case has held that the Revenue Court will have no jurisdiction to grant a decree of declaration of title to, or recovery of possession of the suit land. As to what is the prayer in the instant suit has been noted above. Having regard to such prayer in the suit the revenue authority is not the competent authority vested with jurisdiction to grant the said relief. 19. In Rajinder Singh (supra), the Apex Court dealing with a similar question has held that the entry in jama bandi is only for "fiscal purpose" and the substantive rights of title and or ownership of contesting claimants can be decided only by a competent Civil Court in appropriate proceeding. In this connection, paragraph 17 of the judgment is quoted below: 17. It is well settled that revenue records confer no title on the party. It has been recently held by this Court in Suraj Bhan v. Financial Commr. That such entries are relevant only for "fiscal purpose" and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings. 20. In Tuniram Katoni v. Golap Chandra Katoni reported in (2004) 3 GLR 641 has held that Sectione 154 of the said regulations does not debar the civil court from entertaining the declaratory suit of title. The Full Bench of this Court in Daulatram Lakhani v. The State of Assam and Ors. 20. In Tuniram Katoni v. Golap Chandra Katoni reported in (2004) 3 GLR 641 has held that Sectione 154 of the said regulations does not debar the civil court from entertaining the declaratory suit of title. The Full Bench of this Court in Daulatram Lakhani v. The State of Assam and Ors. reported in (1989) 1 GLR 131, while answering a similar question being confronted with the provisions of Section 154 and 154 (A) of the Assam Land and Revenue Regulations, 1886 vis--vis the jurisdiction of the Civil Court and upon a threadbare discussion of all the relevant aspect of the matte laid down the law as follows : From what has been stated above, we would say that in a matter like the one t hand civil court's jurisdiction would not be barred in the following cases : (1) When the order under Rule 18 is patently illegal or without jurisdiction; (2) Where the remedy provided by the Regulation to adjudge the objection raised is not sufficient; (3) Where complicated questions relating to title are involved; or (4) Where the Plaintiff seeks declaration of his title over the land from which he is sought to be evicted. 21. The whole basis of the argument advanced by the learned Counsel for the Defendant/O.P. is that the revenue authority having demarcated the disputed land, the Plaintiff/Petitioner by way of filling the suit cannot virtually pray for setting at naught such demarcation of boundary and that the question involved essentially being one of the boundary dispute settled and resolved by the revenue authority, the Plaintiff/Petitioner cannot approach the Civil Court by way of change forum. Suffice is to say that demarcation of boundary through the revenue authority and prayer for declaration of right, title and possession over a land are two distinct and different matters. Merely because the Plaintiff/Petitioner was party to the demarcation, his right to approach the Civil Court for the said particular relief does not get frustrated. 22. For all the aforesaid reasons, I am of the considered opinion that the suit in question is to be tried by the jurisdictional Civil Court i.e. the learned Munsiff, Shillong, before whom, in fact the suit was instituted. On perusal of the written statement I do not find anything to suggest that any plea was raised regarding bar of jurisdiction of the Civil Court. On perusal of the written statement I do not find anything to suggest that any plea was raised regarding bar of jurisdiction of the Civil Court. The whole controversy has arisen in view of the aforesaid order dated 03.04.1993 passed by the learned District Judge, Shillong, on perusal 4 of which I do not find anything to suggest that the matter was transferred to the learned DC, Revenue upon a decision on jurisdiction issue. 23. The suit was instituted way back in 1988 and could not progress all these years in view of the aforesaid proceedings. In between the records also became untraceable. In such a situation, the suit is required to be decided as early as possible. The learned Munsiff, Shillong shall make an endeavor for early disposal of the suit. 24. The reference made by the learned Munsiff, Shillong by his aforesaid order dated 17.10.2001 in T.S. No. 6 (H)/1988 is answered in the above manner. The Registry is directed to transmit the case records to the learned Munsiff immediately along with the copy of this judgment and order. Petition allowed.