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2013 DIGILAW 174 (PAT)

Sheoji Dubey v. Nand Kumar Dubey

2013-02-06

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–The defendants 4th set have filed this appeal against the impugned judgment and decree dated 26.08.1983 passed by learned 4th Additional District Judge, Bhojpur, Ara in Title Appeal No.104 of 1973 dismissing the appeal and confirming the judgment and decree dated 23.05.1973 passed in Title Suit No.204 of 1969/17 of 1972. 2. The plaintiffs-respondents filed the aforesaid suit for specific performance of contract for sale of raiyati interest in respect of the disputed lands executed by the defendants 1st set to 3rd set in favour of the plaintiffs on 26.11.1968. The plaintiffs also prayed that in case the court finds any difficulty in granting the above relief then a decree for refund of the earnest money of Rs.2500 be passed. The plaintiff’s further prayed for declaration that they have acquired occupancy rights as under tenants in respect of the disputed land. 3. The plaintiffs claimed the aforesaid relief mainly contending that the defendants 1st set to 3rd set are the owners of the property. The owners i.e., the raiyats resides far away from the villages where the property is situated whereas the plaintiffs are resident of village near to the property. 40 years prior to the institution of the suit, the defendant nos.1 to 17 made a Sikmi settlement in favour of the ancestors of the plaintiffs. The plaintiffs since the time of settlement are coming in possession as Sikmi raiyat, as such, they have acquired occupancy rights as under-raiyat and the defendants 1st set to 3rd set have got only right to claim Sikmi rent. On 26.11.1968, the defendant nos.1 to 17 agreed to sell their raiyati rights in the disputed land to the plaintiffs for Rs.5,500 and executed the unregistered deed of contract. Earnest money of Rs.2,500 was paid. The sale deed was to be executed and registered within 30.11.1969. The plaintiffs repeatedly requested for execution of sale deed after taking balance consideration but the defendant nos.1 to 17 executed a sale deed in favour of the defendants 4th set(appellants). The sale deed is collusive, malafide and illegal. The purchasers had knowledge about the contract between the plaintiffs and the defendant nos.1 to 17. The plaintiffs were and are still ready and willing to perform their part of the contract. 4. The defendants filed separate written statement. The sale deed is collusive, malafide and illegal. The purchasers had knowledge about the contract between the plaintiffs and the defendant nos.1 to 17. The plaintiffs were and are still ready and willing to perform their part of the contract. 4. The defendants filed separate written statement. The present appellants who were defendant nos.18 and 19 filed separate written statement contesting the suit alleging that they are bonafide purchasers of the suit land without knowledge of prior agreement. After purchase, they have been coming in cultivating possession of the land. The other defendant nos.1 to 17 challenged the genuineness of the agreement and readiness and willingness of the plaintiff. For the purpose of this Second Appeal, their case is not required to be gone into in detail. 5. The trial court decreed the suit recording a finding that the plaintiffs have acquired occupancy under-raiyati right in respect of the disputed lands and are in possession of the suit land as such, their possession was confirmed. So far prayer for specific performance of contract is concerned, it was dismissed. The present appellants filed title appeal. The appellate court recorded a finding that the appellants are purchasers in good faith for value and without any notice of any previous contract to sell and ultimately, dismissed the appeal. 6. At the time of admission on 09.08.1985, the following substantial questions of law were formulated:– (a) Whether the plaintiffs-respondents can claim the benefit under Section 48C of the Bihar Tenancy Act in the facts and circumstances of the present case? (b) Assuming the above question in favour of the plaintiffs whether their claim on the basis of Sikkimi possession was bound to be dismissed in view of the provision of Section 52A of the Bihar Tenancy Act? 7. The learned senior counsel, Mr. Roy appearing on behalf of the appellants submitted that the right of under-raiyat is not a civil right rather it is created by Bihar Tenancy Act. Therefore, when the Act creates a right and liability and also creates forum including right of appeal etc. and bars the jurisdiction of the Civil Court either expressly or impliedly, in that case, the jurisdiction of the Civil Court is excluded. According to the learned counsel, the plaintiffs filed the suit claiming two different and distinct reliefs. These two separate reliefs are not interconnected nor are dependent on the result of the other relief. and bars the jurisdiction of the Civil Court either expressly or impliedly, in that case, the jurisdiction of the Civil Court is excluded. According to the learned counsel, the plaintiffs filed the suit claiming two different and distinct reliefs. These two separate reliefs are not interconnected nor are dependent on the result of the other relief. The causes of action for both the reliefs were different. The bundle of fact giving rise to the causes of action for both the reliefs were entirely different but the plaintiffs clubbed together and filed only one suit praying therein for a relief of specific performance of contract and the other, i.e., for declaration of occupancy under-raiyati right and this second relief was claimed by way of amendment. The learned counsel further submitted that so far the first relief is concerned, it is conferred on the plaintiffs under general law whereas the second relief is created by Bihar Tenancy Act and the Bihar Tenancy Act itself is a complete Code. In this Bihar Tenancy Act, there is specific provision and the authorities have been designated for granting the second relief which is claimed by the plaintiffs. So far the first relief is concerned, admittedly, both the courts below did not give the relief. In such circumstances, the only relief remained is whether the plaintiff is under-raiyat who continued in possession of the suit property for more than 12 years as such, acquired occupancy right. So far this relief is concerned, the jurisdiction of the Civil Court is impliedly barred. It is further submitted that admittedly, the suit lands were subjected to aluvion and diluvion and it merged for several years in river ganges. In view of Section 52A of the Bihar Tenancy Act, the raiyats had the right, title and interest over the said land and, therefore, it cannot be said that the defendants acquired occupancy under-raiyati right. On these grounds, the learned counsel for the appellants submitted that both the substantial questions of law are liable to be answered in favour of the appellants. 8. On the other hand, the learned senior counsel, Mr. Ojha appearing on behalf of the respondents submitted that the jurisdiction of the Civil Court is not barred. The Lower Appellate Court has considered this aspect of the matter and has negatived the point raised by the appellants. 8. On the other hand, the learned senior counsel, Mr. Ojha appearing on behalf of the respondents submitted that the jurisdiction of the Civil Court is not barred. The Lower Appellate Court has considered this aspect of the matter and has negatived the point raised by the appellants. The plaintiffs have filed the suit mainly for specific performance of contract. Therefore, in that suit, alternative relief was claimed. There is no specific bar of jurisdiction of Civil Court. In such circumstances, the bar of the jurisdiction of the Civil Court cannot be inferred. If the plaintiffs have acquired occupancy right then why the relief cannot be granted by the Civil Court. The learned counsel for the respondents therefore, submitted that the Second Appeal is liable to be dismissed as none of the substantial questions of law formulated have got merit in this case. According to the learned counsel, after completion of 12 years of possession, the plaintiffs acquired occupancy right and, therefore, the plaintiffs cannot be evicted from the suit premises without recourse to law. The learned counsel relied upon 2001(1) PLJR 174 . 9. Admittedly, in the present case, the original suit was filed for specific performance of contract only. Subsequently, by way of amendment, declaration was sought for regarding acquisition of occupancy under-raiyati right. Additional written statement was filed by the appellant to the effect that relief was barred and cannot be granted in a suit for specific performance of contract. Authorities under the B.T. Act are only competent to grant the said relief. However, both the courts below have granted the relief in favour of the plaintiff. Section 48C of the B.T. Act reads as follows:– “48C. Authorities under the B.T. Act are only competent to grant the said relief. However, both the courts below have granted the relief in favour of the plaintiff. Section 48C of the B.T. Act reads as follows:– “48C. Acquisition of right of occupancy by under-raiyats.–Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy(Amendment) Act, 1938(Bihar Act 11 of 1938), has continuously held land as an under-raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period a right of occupancy in the land which he has so held for the said period: [Provided that an under-raiyat shall not, irrespective of the duration of his holding any land as an under-raiyat acquire any right of occupancy- (i) in such area of the land to be selected and declared by his landlord in the prescribed manner as together with the area of land already held by the landlord under his cultivation does not exceed the following limits, namely:- (a) five acres of land irrigated by flow irrigation work, lift irrigation work or tube well owned, constructed, maintained, improved or controlled by the Central or the State Government or by a body corporate constituted under any law or by tube well owned or maintained by the landlord or; (b) ten acres of other land; or (ii) in the land within the ceiling area fixed by law of a landlord who is a widow or a person suffering from blindness, leprosy or paralysis or is a person of unsound mind or a person on the service of the Army, Navy or Air Force of the Union of India during the period the landlord remain a widow or suffers from blindness, leprosy or paralysis or remains of unsound mind or remain in the service of the Army, Navy or Air Force of the Union of India.” 10. Section 48D of the B.T. Act reads as follows:– “[48D. Section 48D of the B.T. Act reads as follows:– “[48D. Acquisition of raiyati right by occupancy under-raiyat.–(1) An occupancy under-raiyat shall if he makes an application in this behalf in the prescribed manner, be entitled to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State Government and the right of the land-holder in such land shall extinguish: Provided that the land on which he acquires such right along with other land held by him anywhere in the State does not exceed the area he may hold under the Bihar Land Reforms(Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961(Bihar Act XII of 1962). (2) The remaining area, if any, in which the under-raiyat does not acquire the right of a raiyat shall continue to be held by the raiyat under whom the under-raiyat held the land. (3) The land owner in respect of whose land the under-raiyat acquires the right of a raiyat under sub-section(1) shall be paid as compensation an amount equivalent to twenty four times the rent of the holding in the manner prescribed in this behalf.” 11. In view of the above two provisions, if the plaintiffs had acquired occupancy right then he is required to file an application according to provision under Section 48D of the B.T. Act and in that case, he will acquire raiyati right. According to the plaintiff’s case, they are under-raiyat coming in possession of the suit property for more than 12 years as such, they have acquired occupancy right. If this is believed then the plaintiffs were required to file only one application in the prescribed form and then a raiyati right would have been conferred on them. In such circumstances, there is no explanation as to why they entered into contract for purchasing the raiyati right from defendant nos.1 to 17. After filing an application under Section 48D of the B.T. Act, the right of land holder in such land would have been extinguished. 12. In such circumstances, there is no explanation as to why they entered into contract for purchasing the raiyati right from defendant nos.1 to 17. After filing an application under Section 48D of the B.T. Act, the right of land holder in such land would have been extinguished. 12. Section 48E provides that if an under-raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land crop or produce thereof either on the ground of non-existence of relationship of landlord or tenant between them or otherwise the Collector may, of his own motion or an application made in this behalf by the under-raiyat initiated a proceeding for settlement of the said dispute. 13. In the case of Suryabansh Upadhyay Vs. Awadhesh Choudhary & Ors., 1999(2) PLJR 173 , this court has held that “a person acquires occupancy right by legal fiction by efflux of time on expiry of the prescribed period. However, the enquiry about the acquisition of occupancy right in terms of Section 48D can be made only under that Section. Since such a right is not available under general law of the land, the forum created under this Act(Bihar Tenancy Act, 1885) is alone competent to declare the status of a person as an occupancy under-raiyat or raiyat within the meaning of sections 48C and 48D. It cannot be decided in a suit. In view of this settled proposition of law, the plaintiffs should have filed or initiated a proceeding according to the provision of the Bihar Tenancy Act for the declaration of this relief claimed subsequently by way of amendment. Since this right is not available under any general law, the said right cannot be investigated by the court constituted under general law. This right has been conferred on the plaintiff by special local enactment and the forum has been provided in this Act and, therefore, to get the said relief, the plaintiff has to move before the appropriate forum under the Bihar Tenancy Act as provided in the Act itself. 14. In the case of Dilip Goswami & anr. Anukul Chandra Verma & ors. Vs. 14. In the case of Dilip Goswami & anr. Anukul Chandra Verma & ors. Vs. State, 2003(2) PLJR 211 , it has been held by this court that “in any proceeding under Section 48D where any objection is raised by the landlord as to the under-raiyat’s status of the claimant the authority under the Act is obliged to make inquiry not only to the question whether he was in possession of the land for a period of 12 years and acquired occupancy right but also the question as to whether his claim of being under-raiyat is true. 15. In view of the above proposition of law, it is clear that the provisions of Section 48C and 48D deals with acquisition of occupancy right and raiyat’s right by an under-raiyat and Section 48E provides protection to an under-raiyat. The forum of appeal has also been provided in the said Act. 16. A Division Bench of this court in the case of Lakhan Paswan & ors. Vs. Shiwnandan Prasad & ors., 2001(1) PLJR 174 , considering the provisions of Section 48E and 48F and various decisions of the Apex Court held at paragraph 20 that the law is well settled that when the Act creates a right and liability and also creates forum including right of appeal etc. and bars the jurisdiction of the Civil Court either expressly or impliedly in that case, the jurisdiction of the Civil Court is excluded and no suit is maintainable to challenge the order on merits. No doubt, in the present case at our hand, there is no order passed by the authorities under the B.T. Act but a right has been created in favour of the plaintiffs by this special Act and forum has also been created for initiating proceeding and also the forum of appeal has been provided which itself is complete Code. Therefore, the plaintiffs were required to claim the relief under the said law by which the said right has been conferred on them. 17. Admittedly, in the present case at our hand, the landlord i.e., the owners have already sold the property to the purchasers. Therefore, whatever relationship was existing between the owner and the plaintiffs ceased as soon as the sale deed is executed in favour of the purchasers. The Appellate Court has found that the appellants are the bonafide purchasers for value without the notice of the agreement. Therefore, whatever relationship was existing between the owner and the plaintiffs ceased as soon as the sale deed is executed in favour of the purchasers. The Appellate Court has found that the appellants are the bonafide purchasers for value without the notice of the agreement. It is not the case that the appellants ever threatened the plaintiffs for their ejectment. After refusal of the grant of relief for specific performance of contract, the simple relief remained is for declaration that the plaintiffs have acquired occupancy right as under-raiyat. This relief is claimed in terms of Section 48D. This right has been conferred on them by the special Act and not by general law. 18. The Appellate Court has not at all considered above settled principles of law. The Lower Appellate Court has also not considered that this right has been created by Bihar Tenancy Act and not by general law. The Appellate Court has also not considered that the Bihar Tenancy Act by which the right has been created also provides forum for initiation of proceeding and also forum for appeal etc.. Therefore, for the relief, i.e., for declaration of occupancy right, the suit itself was not maintainable. 19. So far the submission of the learned counsel for the respondents that the suit was filed for specific performance of contract also, therefore, the plaintiff had to file the suit before the Civil Court. So far this submission is concerned, it may be mentioned here that the right for specific performance of contract has been conferred on the plaintiff by general law and it has got no nexus with the second right created by Bihar Tenancy Act under Section 48D which is special Act. For the enforcement of right created under general law, forum has been provided and likewise, for the enforcement of right created under special law, i.e., Bihar Tenancy Act forum has also been provided in that Act itself. The forum created in general law is entirely different than the forum created in especial law. In my opinion, therefore, the plaintiff wrongly claimed the two distinct right created under different laws i.e., one right under general law and the other right under special law. In my opinion, therefore, the suit for this second right/relief was not maintainable before Civil Court. 20. Thus, the first substantial question of law formulated is answered in favour of the appellants. 21. In my opinion, therefore, the suit for this second right/relief was not maintainable before Civil Court. 20. Thus, the first substantial question of law formulated is answered in favour of the appellants. 21. So far the second substantial question of law is concerned, Section 52A(2) of the Bihar Tenancy Act provides that “notwithstanding anything to the contrary contained in this Act or in any other law or in any contract, the right, title and interest of the raiyat shall subsist in such land or portion during the period of loss by diluvion and the raiyat shall have the right to immediate possession on the reformation of such land or portion on its old site.” Admittedly, in the present case, the suit lands were subjected to aluvion and diluvion. The trial court at paragraph 25 has disbelieved the story of the plaintiffs regarding Sikmi settlement before the survey or at the time of survey operation. At paragraph 30, the trial court recorded a finding that the disputed lands came out of the water of river ganges a few years prior to the institution of the suit. In spite of the said finding, the trial court held that the plaintiffs are entitled to get the declaration sought for in respect of their Sikmi right and the said finding has been upheld by the Appellate Court. It may be mentioned here that none of the courts below have examined the provision of Section 52A of the Bihar Tenancy Act. Therefore, this substantial question of law is also answered in favour of the appellants. 22. In the result, this Second Appeal is allowed. The judgment and decrees of both the courts below are set aside and the plaintiff-respondent’s suit is dismissed.