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2013 DIGILAW 181 (ORI)

Suresh Kumar Agrawal v. Binodini @ Bimala Bhue

2013-07-02

S.K.MISHRA

body2013
Judgment : S.K. MISHRA, J.- The Petitioner has assailed, in this Writ Petition, the Judgment dated 07.5.2013 passed by the Learned District Judge, Bargarh in F.A.O. No.9/2009 in dismissing the appeal & thereby confirming the Order Dated 23.10.2009 passed in I.A. No.11/2009 arising out of C.S. No.62 of 2009 of the Court of Civil Judge (Sr. Division), Bargarh whereby the original Court dismissing the petition under Order 39, Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code" for brevity). 2. The land in question was recorded in the name of Dukhu Pradhan in Hamid Settlement in the year 1923 under Khata No.193 containing Plot No.247/3380 & Plot No.99 & other plots of Mouza - Bargarh. The Plaintiff claimed that there was an exchange by the order passed by the Deputy Commissioner in Revenue Case No.1/10 of 1933-34 & Plot No.247/1 measuring an area of Ac.0.50 decs. was recorded in the name of Dukhu Pradhan under Khata No.70 of Mouza-Bargarh. In the year 1945 the Gauntia namely Manbodh Das had executed a Chirastayee Rayati Patta in favour of predecessor in interest of the Petitioner, namely, Parashram Agrawal on 14.6.1945 in respect of Plot No.247/1 (Ac.0.47 dec.) out of Ac.0.50. dec. & Plot No.247/3380 measuring an area of Ac.0.40 dec. in total Ac. 0.87 dec. of Mouza Bargarh. 3. The Hal Plot Nos.4446, 4449 & 4445 of Khata No.2525 of Mouza Bargarh were settled in the name of the father of Opp. Parties 2 & 3 & husband of Opp. Party No.1 in V.P.A. Case No.1/1967-68 under the village Police Abolition Act, 1964 (hereinafter referred to as the "V.P.A. Act" for brevity). Accordingly, in the earlier settlement the R.O.R. was prepared in the name of the predecessor in interest of Opp. Party Nos.1 to 3. The case was contested by the father of the Petitioner by filing objecting contending, inter alia, that Chirastayee Rayati Patta in respect of the suit land was in his favour & he is in peaceful possession over the suit land in question. 4. The Hal Plot No.247/1 corresponds to Major Settlement Plot No.4446; Plot No.4449 recorded in the name of Sana Jhankar the predecessor in interest of Opp. Party Nos.1 to 3. 4. The Hal Plot No.247/1 corresponds to Major Settlement Plot No.4446; Plot No.4449 recorded in the name of Sana Jhankar the predecessor in interest of Opp. Party Nos.1 to 3. Hall Settlement Plot No.247/3380 corresponds to Major Settlement Plot No.4450 (Ac.0.29decs.), Plot No.4452 (Ac.0.11 dec.) under Khata No.761 of Mouza Bargarh stands recorded in the name of Parashrsram Agrawal. 5. The Petitioner claims that the Chirastayee Rayati Patta executed in favour of the father of the Petitioner in respect of the suit land was prior to the enactment of Orissa Estate Abolition Act, 1951, the Orissa Offices of Village Police (Abolition) Act, 1964 & the Orissa Land Reforms Act, 1960. So it is asserted that the O.E.A. Act does not affect the Rayati Patta in favour of the Petitioner. Therefore, it is alleged that the settlement of-suit land in favour of Haribhajan Jhankar in V.P.A. Case No.1/1967-68 was without jurisdiction & subsequent settlement R.O.R. does not confer any right, title, interest in favour of said Haribhajan Jhankar & ors. 6. In the year 1987 the said Haribhajan Jhankar initiated O.L.R. Case No.104/1987 before the Sub-Collector, Bargarh under Section 23-A of Orissa Land Reforms Act, 1960 (hereinafter referred to as the "O.L.R. Act" for brevity). The Sub-collector allowed the. application vide his Order Dated 31.3.1989 & ordered that the land be restored to the possession of the predecessor in interest of the Opp. Party Nos. 1 to 3. The said order was challenged by the father of the Petitioner before the Learned Addl. District Magistrate, which was registered as O.L.R. Appeal No.19/1989. The said appeal was allowed in part on 5.9.1990 declaring the father of the Petitioner as the rightful owner in possession of M.S. Plot Nos.4446 & 4449. The order of the A.D.M. was challenged before the Collector, Bargarh in O.L.R. Revision No.1/1991 filed by the father of the Petitioner & O.L.R. Revision No.3/1991 filed by Haribhajan Jhankar. The Learned Collector dismissed the O.L.R. Revision No.1/1991 & allowed O.L.R. Revision No.3/1991 vide common Order Dated 16.1.1995. The said order of the Collector was challenged before this Court in O.J.C. NO.1281 of 1995 which was dismissed on 31.10.2008. Thereafter a Writ Appeal bearing No.229/2008 was filed, which was also dismissed on 14.3.2011. The Learned Collector dismissed the O.L.R. Revision No.1/1991 & allowed O.L.R. Revision No.3/1991 vide common Order Dated 16.1.1995. The said order of the Collector was challenged before this Court in O.J.C. NO.1281 of 1995 which was dismissed on 31.10.2008. Thereafter a Writ Appeal bearing No.229/2008 was filed, which was also dismissed on 14.3.2011. Against the said Order Dated 14.3.2011 a Special Leave Petition bearing No.16451 of 2011 was preferred before tile Hon'ble Supreme Court, which was disposed of by granting liberty to the Appellant to file a Review Petition. Accordingly a Review Petition bearing No.275/2011 was filed & the same is still pending before this Court. 7. At this juncture, the Petitioner filed an application before the Learned. Sub-Collector, Bargarh for recovery of the land in question. Therefore, the Petitioner filed a civil suit as described earlier for declaration of right, title, interest, confirmation of possession & perpetual injunction. In that suit, he filed an interim application bearing LA. No.11/2009 of the Court of Civil Judge (Sr. Division), Bargarh which was heard & disposed of by Learned Civil Judge (Sr. Division) on 23.10.2009 rejecting the prayer of the Petitioner for grant of interim injunction against the Opp. Party Nos.1 to 3 & the State of Odisha. The Petitioner preferred an appeal before the Learned District Judge, Bargarh, which was registered as F.A.O. No.9/2009. The said F.A.O. was disposed of on 7.5.2013. The Learned District Judge after elaborate discussion of the facts of the case came to the conclusion that the order of injunction would amount to restraining the statutory authority from exercising the statutory power. Further, he found no prima facie case, in favour of the Petitioner. He further held that neither balance of convenience leans in favour of the Petitioner nor he would suffer irreparable loss. Hence, the appeal was dismissed. Against such concurrent findings of facts, the present Writ Petition is filed by the Petitioner. 8. The Opp. Party Nos.1 to 3 have appeared waiving notice & this Court took up the case for final disposal at the stage of admission. 9. In course of hearing, Mr. Hence, the appeal was dismissed. Against such concurrent findings of facts, the present Writ Petition is filed by the Petitioner. 8. The Opp. Party Nos.1 to 3 have appeared waiving notice & this Court took up the case for final disposal at the stage of admission. 9. In course of hearing, Mr. Mishra, Learned Senior Counsel, appearing for the Petitioner submitted that the order passed by the Revenue Court in O.L.R. Act is without jurisdiction & as per the ratio laid down in the case of State of Orissa, through Collector, Sundargarh & anr V. Daitari Sahu & ors; 2007(1) OLR 52 , the civil Court has the jurisdiction to pass appropriate order. He also relied upon the case of Paramananda Pradhan & another V. Palau Sahu & ors; 1984 (I) OLR 40 & it was contended that the civil Court has jurisdiction to entertain the suit in respect of the schedule land. It is further submitted by the Learned Counsel for Petitioner that the claim of the Petitioner is that the land has been settled in favour of his predecessor in interest has not been decided by any of the Courts under the O.L.R Act & that contention raised by the Petitioner has to be adjudicated in the suit &, therefore, the civil suit is maintainable & the Petitioner is entitled to the relief of temporary injunction in this case. 10. Mr. Sahu, Learned Counsel appearing for Opp. Party Nos.1 to 3, on the other hand, supported the findings recorded by the Learned Judge exercising the original jurisdiction as well as the Learned judge exercising the Appellate jurisdiction. 11. It is settled principles of law that the exclusion of the jurisdiction of the civil Court is: not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if the jurisdiction is so excluded, the civil Courts would have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedures. 12. In this case, it is not disputed that the land in question has been recorded in the name of the predecessor in interest of Opp. Party Nos. 1 to 3. It is also not disputed that Opp. Party Nos. 1 to 3 belong to the Scheduled Tribe category. 12. In this case, it is not disputed that the land in question has been recorded in the name of the predecessor in interest of Opp. Party Nos. 1 to 3. It is also not disputed that Opp. Party Nos. 1 to 3 belong to the Scheduled Tribe category. Section 67 of the O.L.R. Act provides for the bar of the jurisdiction of the civil Court. It reads as follows : "67. Bar of jurisdiction of Civil Courts- Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to try & decide any suit or proceedings so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide." 13. Therefore, there is explicit exclusion of the jurisdiction of the Civil Court. However, the civil Court has jurisdiction to the limited extent to see whether the Tribunals or authorities under the Act have acted in conformity with the fundamental principles of judicial procedures. 14. In this case, the Sub-Collector directed for restoration of the land in question to the Petitioner predecessor in interest. The Appellate Court as provided under the Act modified the same. The Revisional Court thereafter restored the order of the Sub-Collector. The Petitioner's predecessor in interest challenged the same before this Court & this Court as per the Judgment passed on 31.10.2008 in OJC. No.1281 of 1995 rejected the claim of the Petitioner. An appeal was preferred & the Division Bench in W.A. No. 229/2008 dismissed the appeal filed by the predecessor in interest of the Petitioner & confirmed the Judgment passed by the Learned Single Judge in O.J.C. No.1281/1995. The S.L.P. filed by the Petitioner in the Supreme Court has also been dismissed as withdrawn. Though a Review Application is pending & this Court fails to appreciate, how the authorities not acted in conformity in the fundamental principles of judicial procedures. 15. Learned Counsel for the Petitioner contended that the claim of the Petitioner that the land has been recorded in the name of the Petitioner's father by Stitiban Rayati Patta has not been considered by the Courts under the O.L.R; Act. However, it is trite law that once the lands were settled in the name of a Village Police Officer (Jhankar) it create a new right in favour of the person in whose name the same has been settled. However, it is trite law that once the lands were settled in the name of a Village Police Officer (Jhankar) it create a new right in favour of the person in whose name the same has been settled. So any Patta issued by the Gountia prior to that suit extinguished. Therefore, this Court finds that the Petitioner docs not have an arguable case in his favour. Thus, this Court comes to the conclusion that the Petitioner does not have a prima facie case in his favour. Since the Opp. Party Nos.1 to 3 are litigating before the Revenue Authorities for the last twenty years, the balance of convenience lies in favour of the Opp. Party Nos.1 to 3 & the Petitioner will not sustain any irreparable injury if injunction is not issued in his favour. 16. Additionally, it is seen that in the case of Heinz Italia & Anr v. Dabur India Ltd.; 104(2007) CLT 719 (SC) the Supreme Court has held that an interlocutory injunction under Order 39 Rules 1 & 2 of the Code is in the nature of a discretionary relief & that interference should not be made when two Courts have gone against a party. 17. In the case of Surya Dev Raj V. Ram Chander & ors; (2003) 6 Supreme Court Cases 675, the Supreme Court while dealing with the powers of the High Court under Articles 226 & 227 of the Constitution of India has observed that certiorari under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natured justice where there is no procedure specified, & thereby occasioning failure of justice. The Supreme Court, in that case, further held that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. The Supreme Court, in that case, further held that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law & failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. The Supreme Court summerised that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest & apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, & (ii) a, grave injustice or gross failure of justice has occasioned thereby. 18. It is not the case of the Petitioner that the Learned Civil Judge (Sr. Division), & the Learned District Judge, Bargarh do not have the jurisdiction to pass the orders which have been assailed in this Writ Petition. There is no allegation that it has exceeded its jurisdiction. What the Learned Counsel for the Petitioner argued is mixed question of law & fact & it is not manifest & apparent on the face of the record. That being so, this Court stays its hand from interfering with the orders passed by the Courts, both of original jurisdiction & Appellate jurisdiction. 19. The Writ Petition is, therefore, dismissed. The pending Misc. Cases are also dismissed.