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2014 DIGILAW 117 (CHH)

Mandhari v. Jugo

2014-03-11

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. This is plaintiffs' second appeal under Section 100 of the Code of Civil Procedure (for short 'the CPC) against the judgment and decree dated 19.08.2002 passed by IInd Additional District Judge- Surajpur, Surguja, passed in Civil Appeal No. 5-A/2002, affirming the judgment and decree dated 03.08.1999 passed by Civil Judge, Class I, Surajpur, Surguja (C.G.) passed in Civil Suit No. 10-A/1986 dismissing the plaintiffs suit. The plaintiff No. 1-Mandhari and plaintiff No. 2-Chhatradhari jointly filed a suit for declaration of title and permanent injunction stating inter-alia that the Collector; surguja granted permission to the defendants No. 3 & 4 under Section 165(6) of the Land Revenue Code to sale the land, and pursuant to such permission, sale deed was executed on 04.10.1966 in their favour and in pursuant to said sale, they came in the possession of the suit land. The Revenue Case No. 1A-23/79-80 under section 170-B of the Code was registered and jurisdictional Sub-Divisional Officer by order dated 30.03.1984 declared the said transaction as null and void exercising the power under Section 170-B of the Land Revenue Code. The plaintiff further challenged the order passed before the higher appellate and revisional authority as the order of Sub-Divisional Officer was confirmed by the Collector by order dated 15.02.1985 and also by the Commissioner, Bilaspur by order dated 09.08.1985 and the Board of Revenue, Gwalior by its order dated 05.06.1986 dismissed the revision filed by plaintiffs. 2. The trial Court vide the judgment dated 19.08.2002 dismissed the suit holding inter-alia that the order passed by the revenue authorities are in accordance with law and the Civil Court has no jurisdiction under Section 257(L-1) of the Chhattisgarh Land Revenue Code, 1959 to entertain the instant suit 3. On appeal filed by the plaintiffs, the first appellate Court concurred with the finding of the trial Court and dismissed the appeal. 4. Shri J.K. Shastri, learned counsel appearing for the appellant would submit that the trial Court as well as first appellate Court has committed palpable error of jurisdiction in dismissing the suit as the suit land was purchased by the plaintiffs after due permission of the Collector under Section 165(6) of the Land Revenue Code and therefore, the finding of two Courts below are perverse and that gives rise to a substantial question of law for consideration in this appeal. 5. 5. I have heard and considered the rival submission made by the parties and have also perused the record with utmost circumspection. 6. The Section 170-B of the Land Revenue Code provides as under:-- "170-B. Reversion of land of members of aboriginal tribe which was transferred by fraud-(1) Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within two years of such commencement, notify to the Sub-Divisional officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land. (2) If any person fails to notify the information as required by Sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs. (3) On receipt of the information under sub-section (1) of the Sub-Divisional officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and-- (a) where no building or structure has been erected on the agricultural land prior to such finding, pass an order revesting the agricultural land in the transferor and if he be dead, in his legal heirs; (b) where any building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 (No. 1 of 1894) and order the person referred to in sub-section (1) to pay to the transferor the difference, if any, between the price so fixed and the price actually paid to the transferor; Provided that where the building or structure has been erected after the 1st day of January, 1984 the provisions of clause (b) above shall not apply; Provided further that fixation of price under clause (b) shall be with reference to the price on the date of registration of the case before the Sub-Divisional Officer". 7. In case of Atmaram Rohulla and others v. State of Madhya Pradesh 1995 RN 124: 1995 MPLJ 633 , the Division Bench of Madhya Pradesh High Court has considered the scope of enquiry under section 170-B, of Code and held as under:-- "9. As explained in Dhirendra Nath Sharma's case even in a case governed by sub-section (2) of Section 170-B of the code, there must be show cause notice and enquiry. In reply to show case notice, it is open to the vendee, in possession to aver that his possession is by lawful authority. It must be open to him to adduce evidence in support of his contention that his possession is by lawful authority. If the Sub-Divisional officer is satisfied on the materials before him either produced by the vendee or received from other sources that the vendee's possession is based on lawful authority, the presumption is rebutted. That is the end of the operation of sub-section (2). If the Sub-Divisional officer is satisfied on the materials before him either produced by the vendee or received from other sources that the vendee's possession is based on lawful authority, the presumption is rebutted. That is the end of the operation of sub-section (2). It is important to know that the presumption has nothing to do with the aspect whether the document is obtained by fraud or other unfair means or whether the document is substantially unfair and constitutes fraudulent transaction affecting legitimate rights of the tribals. The presumption is confined only to one aspect in a narrow compass, namely, whether the possession is without lawful authority". 8. In a decision reported in case of Keshabo and another v. State of M.P. and others (1996) 7 SCC 765 , the supreme Court has held that M.P. Land Revenue Code is a welfare legislation enacted to protect the ownership rights in the land of Scheduled Tribe and inter-alia observed as under:-- "4..........It is a welfare legislation made to protect the ownership right in the land of a Scheduled Tribe to effectuate the constitutional obligation of Articles 39(b) and 46 of the Constitution read with the Preamble. Economic empowerment of a tribal to provide economic democracy is the goal. Prevention of their exploitation due to ignorance or indigency is a constitutional duty under Article 46. Agricultural land gives economic status to the tiller. Therefore, any alienation of land in contravention of the above objectives is void. It is contended that the application under Section 170(1) should have been filed within two years from the date of sale. Since the application was not so filed, the authorities were not right in directing entertainment of the application. It is not in dispute that the authority has jurisdiction suo motu to go into the violation of the statutory provisions. Even otherwise, since it is a beneficial legislation, the authorities are bound to give effect to constitutional policy; they are not devoid of jurisdiction, even if it is filed beyond limitation to entertain the application. It is a matter of public policy and of discretion". 9. While considering this question, the Madhya Pradesh High Court in Gopichand v. States of M.P. 1998 RN 103, held as under:- "6. It is a matter of public policy and of discretion". 9. While considering this question, the Madhya Pradesh High Court in Gopichand v. States of M.P. 1998 RN 103, held as under:- "6. At this stage Shri Deoras submits that the Sub-Divisional Officer being subordinate to the Collector would not be in a position to look into the correctness, validity and propriety of the order passed by the Collector under Section 165(6), therefore, in a case where the lands have been transferred with the permission of the Collector, such proceedings cannot be initiated or continued. I am unable to accept this contention. Section 170-B provides that if proper action is not taken by the transferee, then there would be a presumption of fraud in favour of the aboriginal tribe. Even in a case where a party proves that the land was purchased with the permission, the seller can still prove that the permission, the seller can still prove, that the permission was obtained by playing fraud on the Collector. It is not that the correctness, validity or propriety of the permission is in question or challenge. The Sub-Divisional officer only has to convine himself to the fact of exercise of fraud. Fraud may be exercised in a number of ways. A party may be defrauded even before the application for permission is moved. Permission itself may be the result of fraud or the permission may become ineffective, if certain assurances given by the transferee are not fulfilled by him after obtaining permission. In any case, it would be for the Sub-Divisional officer to look into the matter". 10. In the light of aforesaid enunciation of law and considering the fact that Madhya Pradesh Land Revenue Code is welfare legislation and in view of the decision of Madhya Pradesh High Court in case of Gopichand 1998 RN 103 (supra) it is held, that even if the land of aboriginal tribe has been purchased after the due permission of the Collector under section 165(6) of the Land Revenue Code, then also jurisdictional Sub-Divisional Officer in exercise of power under Section 170-B of the Land Revenue Code shall have jurisdiction to examine the legality and validity of the said transaction to find out, whether the member of aboriginal tribe has been defrauded of his legitimate right. 11. 11. Since, both the Courts below have concurrently recorded a finding that the order passed by the sub- Divisional officer on 30.03.1984 declaring the transaction is null and void is in accordance with law as it was passed after affording due and reasonable opportunity of hearing to the parties. The said finding is based on the evidence available on record and no substantial question of law arises for consideration in this appeal. 12. Recently, the supreme Court in the case of Vishwanath Agrawal, S/o. Sitaram Agrawal v. Sarla Vishwanath Agrawal (2012)7 SCC 288 , has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:- "36. In Major Singh v. Rattan Singh (1996) 7 SCC 765 it has been observed that when the Courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the Courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. Findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem v. Karnataka Electricity Board (2012) 7 SCC 288 ." Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the Courts below is based on the material evidence available on the record and it is neither perverse nor contrary to the record, no substantial question of law is involved in this appeal, thus the appeal deserves to be and is accordingly dismissed. No order as to cost. Appeal dismissed.