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2012 DIGILAW 1206 (BOM)

Popat Jaysingh Rajpure v. State of Maharashtra

2012-07-05

R.M.SAVANT

body2012
Judgment : 1. Rule, with the consent of the parties made returnable forthwith and heard. 2. The subject matter of the above Petition filed under Article 227 of the Constitution of India is the order dated 11/11/2011 passed by the learned Joint Civil Judge, Senior Division, Baramati by which order Application (Exhibit-1) invoking Section 9A of the Code of Civil Procedure came to be disposed of and the operative of the order reads thus:- “1] The Civil Court have no jurisdiction to entertained the suit against defendant Nos.1 to 8 hence the suit is against disposed of them 2] The suit shall proceed against defendant No.9 and 10 3] The injunction order against defendant No.4 is vacated 4] The suit be fixed for hearing of Exh.5 a fresh.” A short question therefore arises for a consideration is, whether the court could have passed the order of the nature passed whilst dealing with an application under Section 9A of the Code of Civil Procedure. 3. The genesis of the suit filed by the Petitioner herein is in the measurement and demarcation of the boundaries carried out in so far as Gat No.414/2 of village Shetphalgadhe, Tal. Indapur, District Pune. The Petitioner claims to have purchased the land admeasuring 13 Hectares from and out of the Gat No.414/2 total admeasuring 21.74 Hectares situated at village Shetphalgadhe, Tal. Indapur, Dist. Pune. The Respondent Nos. 9 and 10 herein claim to have purchased an area of 6.01 Hectares from and out of said Gat No.414/2 from the original owners one Ushatai sharadkumar Gandhi and Bebi Bharti Rajnikant Patni. On 31/3/2008 the Respondent Nos. 9 and 10 herein applied to the Inspector of Land Records, Indapur for regularizing their field boundaries. After the said demarcation and regularization of the boundaries was completed, the challenge to the same had reached the State Government by way of a Revision Application which was filed against the order passed by the Additional Divisional Commissioner in Application BND RTS Appeal/99/2009. The Petitioner herein had filed an application before the Deputy Inspector of Lands Record in order to challenge the correctness of the map and measurement procedure being carried out in pursuance of the said application for measurement and demarcation No.606/2008. The Petitioner herein had filed an application before the Deputy Inspector of Lands Record in order to challenge the correctness of the map and measurement procedure being carried out in pursuance of the said application for measurement and demarcation No.606/2008. In so far as the said application is concerned, it ultimately resulted in the Superintendent of the Lands Record directing the District Inspector of Lands Record that the disputed property be revisited, factual position be verified and the action be taken by exercising the powers of review as provided in the Maharashtra Land Revenue Code. The Superintendent of Lands Record ordered that since the measurement process and the measurement carried out on 7th and 8th August 2008 was flawed, the Superintendent of Land Records directed re-measurement and re-fixing of the boundary marks. It was observed in the order dated 27/7/2009 of the Superintendent of Land Records that in case of any dispute about internal boundaries the parties are at liberty to file appropriate proceedings in the Civil Court of competent jurisdiction. After the order was passed by the Superintendent of Land Records, certain events have taken place which are not necessary to be cited, but suffice it to say that pursuant to an order passed in a Writ Petition filed by the Petitioner, he was given liberty to file a suit. This is how the suit in question i.e. Special Civil Suit No.136 of 2011 came to be filed seeking a declaration of his title as regards the lands admeasuring 13 Hectares and challenging the orders by which the measurement and demarcation was confirmed and the maps were drawn. 4. In the said suit the Petitioner has challenged the manner in which the demarcation and regularization of the boundaries was carried out. It is the case of the Petitioner that the said exercise was not done bonafide, the Petitioner has levelled certain allegations against the Government Officers who have been arrayed as Defendant Nos.1 to 8 in the said suit. 5. In the said suit, an application for temporary injunction was filed by the Petitioner, at which time the Respondent Nos.9 and 10 herein moved an application for framing a preliminary issue as regards the jurisdiction of the Court to entertain the suit in question considering the subject matter of the suit. 5. In the said suit, an application for temporary injunction was filed by the Petitioner, at which time the Respondent Nos.9 and 10 herein moved an application for framing a preliminary issue as regards the jurisdiction of the Court to entertain the suit in question considering the subject matter of the suit. As indicated above, the said Application has been disposed of by the trial Court by observing that the said Court would have no jurisdiction to entertain the suit against the Defendant Nos.1 to 8 and hence the suit is disposed of against them. This the trial Court held on the basis of Section 138(4) of the Maharashtra Land Revenue Code which posits that in a suit for title, the revenue officers mentioned in the said section cannot be joined as parties. The trial Court however directed that the suit would proceed against the Defendant Nos.9 and 10. 6. In so far as issue of jurisdiction, which is raised by invoking section 9A of the Code of Civil Procedure, is concerned, it is well settled that when an issue of jurisdiction is raised, the said issue has to be decided at the threshold. The issue of jurisdiction as is well settled encompasses within itself the issue as regards (a) territorial jurisdiction; (b) pecuniary jurisdiction; and (c) the jurisdiction relating to considering the subject matter of the suit. 7. The jurisdictional point is therefore circumscribed by the said three conditions. The trial Court, as can be seen, ought to have decided the said issue on the basis as to whether it would have jurisdiction on the basis of the suit as it was framed. The trial Court could not have gone into the aspect as to whether the suit could be entertained after deletion of certain Defendants. No doubt Section 138(4) of the Maharashtra Land Revenue Code posits that the Government Officers mentioned therein cannot be arrayed as Defendants in a suit based on title, but that would be a matter which would be possibly lie within the ambit of Order 7 Rule 11(d) of the Code of Civil Procedure. The trial Court in the instant case, in my view, has totally mis-directed itself by directing deletion of certain Defendants and thereafter coming to a conclusion that the suit could be entertained after the said Defendants were deleted. 8. The trial Court in the instant case, in my view, has totally mis-directed itself by directing deletion of certain Defendants and thereafter coming to a conclusion that the suit could be entertained after the said Defendants were deleted. 8. The issue of jurisdiction is an issue which goes to the root of the jurisdiction of the Court to entertain the suit. The said issue therefore has to be addressed by considering the frame of the suit as it is and not in the manner done by the trial Court in the instant case as otherwise the entire object of introducing of Section 9A would be lost. Whether certain Defendants can be joined or have been wrongly joined to the suit is not an issue which would be within the domain of the trial Court whilst deciding the jurisdictional issue raised under Section 9A. Since as indicated above by the instant order the trial Court has held that it can entertain the suit if certain Defendants are deleted, the order would have to be set aside and is accordingly set aside and the matter is relegated back to the trial Court for denovo consideration of the Application (Exhibit-1) filed under Section 9A of the Code of Civil Procedure. The said application, on remand, would have to be decided by the trial Court as expeditiously as possible but not later than 15/8/2012. The trial Court to decide the said Application (Exhibit -1) in terms of what has been held herein above. Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs.