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2014 DIGILAW 196 (CHH)

Yuvraj v. Gram Panchayat Dudhli Vikaskhand

2014-05-02

SANJAY K.AGRAWAL

body2014
JUDGMENT Sanjay K. Agrawal, J. 1. The substantial question of law formulated and to be answered by this Court in Plaintiff's second appeal is as under:-- "Whether the First Appellate Court was justified in reversing the finding of the trial court in as much as holding that the civil suit filed by appellant/plaintiff was not maintainable?" [For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court] Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are as under:-- "1.1 Plaintiff- Yuvraj filed a civil suit for declaration of title and permanent injunction stating inter alia that suit land bearing Khasra No. 508, area 2.50 decimal, situated at village Dudhli, Tehsil Dondilohara, District Durg was granted by the State Government in his Bhumiswami rights by Exhibit P-2 on 21/03/1994, in which, he is in possession from 26/10/1994 by constructing house, but the defendant-Gram Panchayat has issued notice for demolition, leading to filing of the instant suit for declaration of his title. The defendants have no right to dispossess him except in accordance with law. 1.2 The defendants filed their joint written statement stating inter alia that the Bhumiswami rights granted to the plaintiff has been canceled on 04/09/1995 (Exhibit P-6), thus, he has no right to continue in possession of the suit land. 1.3 On the pleadings of the parties, the Trial Court by its judgment and decree dated 24/12/1999, decreed the suit of the plaintiff holding that the cancellation of allotment is contrary to the law, and restrained the defendants from interfering with peaceful possession of the plaintiff and negatived the ground of the maintainability of the suit while answering the issue No. 4. 1.4 The defendant-Gram Panchayat filed First Appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). The First Appellate Court relying upon Section 57(2) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as "the Code") held that unless the dispute is adjudicated under Section57(2) of the Code, the suit as framed and filed was not maintainable and set-aside the judgment and decree passed by the Trial Court on the sole ground and did not consider the appeal on merits." 2. Questioning the legal acceptability and sustainability of the impugned judgment and decree dated 09/10/2000 passed by Additional District Judge Balod, District Durg in Civil Appeal No. 15-A/2000, this instant second appeal has been preferred by the plaintiff under Section 100 of the CPC, in which, substantial question of law has been formulated as mentioned in opening paragraph of this judgment. 3. Mr. Anil Pandey, learned counsel appearing for the appellant/plaintiff would submit that the plaintiff was granted Bhumiswami rights vide Exhibit P-2, which was cancelled by Revenue Authorities vide Exhibit P-6, thereafter, plaintiff has challenged the cancellation of Bhumiswami rights by filing the civil suit, which was maintainable in law. He would also submit that the First Appellate Court has fallen into manifest error of jurisdiction in granting the appeal filed by the defendant-Gram Panchayat. 4. No one appeared on behalf of the respondent No. 1 -Gram Panchayat/defendant No. 1, though duly served. 5. Per contra, Mr. Akhil Agrawal, learned Panel Lawyer appearing for the State/respondents No. 2 to 5/defendants No. 2 to 5 would support the impugned judgment and decree of the First Appellate Court. 6. I have heard learned counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection. Answer to substantial question of law:-- 7. In order to proper comprehension of the attack made to the decree, it would be profitable to have a look of Section 57 of the Chhattisgarh Land Revenue Code, 1959, which runs as under:-- "57. State ownership in all lands--(1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government: [Provided that nothing in this section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.] (2) Where a dispute arises between the State Government and any person in respect of any right under sub-section (1) such dispute shall be decided by the Sub-divisional Officer. (3) Any person aggrieved by any order passed under sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order." 8. From a careful and close perusal of sub-section (2) of Section 57 of the Code, it would appear that where a dispute arises between the State Government and any person in respect of any right under Sub-section (1), such dispute shall be considered and decided by the Sub-Divisional Officer. 9. The short question that needs consideration is whether claim of Bhumiswami rights over the suit land would be right under Section 57(1) of the Code, by which, the plaintiff is required to raise a dispute before the Sub-Divisional Officer under sub-section (2) of Section 57 of the Code and can institute the suit only after adjudication by Sub Divisional Officer? 10. The Full Bench of the Madhya Pradesh High Court in Ramgopal Kanhaiyalal v. Chetu Batte, AIR 1976 Madhya Pradesh 160(1), has held that determination of the question of title is the province of the Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the Civil Court cannot be assumed or implied and held as under:-- "12. The scheme of the Code consistently preserves the jurisdiction of the civil Court to decide questions of title and that jurisdiction is not excluded. For instance, in the Chapter relating to mutation and record of rights (Chapter IX),-Section 111 enacts:-- "The Civil Court shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record-of-rights." Again, in a proceeding for partition, under Section 178, if any question of title is raised, the Tahsildar shall not make any partition until the question of title has been decided by the Civil Court. 14. It must be remembered that a Bhumiswami has a title though he is not the "Swami" of the "Bhumi" which he holds, in the sense of absolute ownership, because as declared in Section 257 of the Revenue Code, ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. He is not a mere lessee. His rights are higher and superior. They reakin to those of a proprietor in the sense that they are transferable and heritable, and, he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation. 17. We, therefore, hold that a Bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250 of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. We further hold that Nathu v. Dilbande Hussain, AIR 1967 Madh Pra 14 : 1964 Jab LJ 707 was correctly decided. The Civil Court can take cognizance of a suit. This is our answer to the questions referred to us." 11. The Full Bench finally answered the reference by holding that a party aggrieved is entitled to maintain civil suit to establish his title and held as under:-- "17. We, therefore, hold that a Bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if there has been a decision under Section250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. We further hold that Nathu v. Dilbande Hussain, AIR 1967 M.P. 14 : 1964 Jab LJ 707 was correctly decided. The Civil Court can take cognizance of a suit. This is our answer to the questions referred to us." 12. We further hold that Nathu v. Dilbande Hussain, AIR 1967 M.P. 14 : 1964 Jab LJ 707 was correctly decided. The Civil Court can take cognizance of a suit. This is our answer to the questions referred to us." 12. Thereafter, the Supreme Court in Rohini Prasad and others v. Kasturchand and another, (2000) 3 SCC 668 noticed the full Bench decision of Madhya Pradesh High Court with approval in Ramgopal, AIR 1976 Madhya Pradesh 160(1) (supra) and held that the civil suit for possession based on title is triable by the Civil Court and held as under:-- "8..........In three different appeals coming to the Madhya Pradesh High Court, Hon'ble Judges sitting singly have consistently held that the civil suit of possession based on title is triable by the Civil Court. That being the law laid by the High Court of Madhya Pradesh while interpreting the code which applies to the State of Madhya Pradesh and having held the field for all these years, it is not desirable for the Supreme Court to give a different interpretation and to upset the settled law. Merely because a different view is possible and that on that ground the decision of the High Court is erroneous, in our view, should not be a ground to interfere. Law should be certain and parties should know where they stand." 13. Thereafter, in Hukam Singh (Dead) by L.Rs. and others v. State of M.P. (2005) 10 SCC 124 , the Supreme Court noticed Full Bench decision of Madhya Pradesh High Court rendered in Ramgopal Kanhaiyalal, AIR 1976 Madhya Pradesh 160(1) (supra) with reference to Section 57(2) of the Code and set-aside the judgment and decree of High Court by holding that suit for declaration of title sought by plaintiff therein in relation to his rights as a Bhumiswami was maintainable directly before Civil Court and followed the decision of Rohini Prasad, AIR 1976 Madhya Pradesh 160(1), (supra). Paras- 6 & 8 of the report states as under: "6. A reading of the judgment of the trial court shows as if the suit was for declaration of title. We have seen the original plaint, which is in Hindi. Paras- 6 & 8 of the report states as under: "6. A reading of the judgment of the trial court shows as if the suit was for declaration of title. We have seen the original plaint, which is in Hindi. The learned counsel for the State, on seeing the averments made in the plaint and the relief sought for, could not dispute that in the said suit, declaration was sought by the appellant in relation to his rights as a Bhumiswami. 8. The view taken by the Full Bench of the Madhya Pradesh High Court is affirmed by the Court in Rohini Prasad v. Kasturchand, (2000) 2 SCC 668]. This being the position, the first substantial question of law is wrongly decided by the High Court. Under the circumstances, the impugned order cannot be sustained. Consequently, the civil appeal is allowed and the judgment and decree passed by the High Court is set aside. The second appeal is remitted to the High Court for disposal afresh on merits accepting that the suit is maintainable, having regard to the law laid down by the Full Bench of the Madhya Pradesh High Court in Ramgopal as affirmed by this Court in Rohini Prasad." 14. Apart from this, in case of State of Madhya Pradesh etc. v. Balveer Singh etc., AIR 2001 M.P. 268 , the Full Bench of Madhya Pradesh High Court has held that the determination of question of Bhumiswami rights is within the province of the Civil Court excepting the cases falling within the ambit of those specified under Section 257 of the Code and held as under:-- "66. In view of what has been discussed and noticed hereinabove, the question referred to for consideration are answered as follows- Question No. (1)-- The "right" contemplated under Section 57(2) of the Madhya Pradesh Land Revenue Code, 1959 is a right other than the cultivatory right in respect of the land as defined under Section 2(1)(k) which stands secured in favour of a Bhumiswami, occupancy tenants or a Government lessee as defined under the said Code and this right has to be taken to be confined to the proprietary rights including those rights which are vested in the State by operation of law under the enactments in force prior to the coming into effect of the aforesaid Code. Question No. (2)-- There can be no distinction as to the forum with respect of the rights of Bhumiswami acquired after coming into force of the Madhya Pradesh Land Revenue Code, 1959 and the Bhumiswami rights acquired on the basis of pre-existing rights. Question No. (3)-- The determination of question of Bhumiswami rights is within the province of the Civil Court excepting the cases falling within the ambit of those specified under Section 257 of the Code. 15. Thus, upon examination of the relevant statutory provisions and following the principles laid down by their Lordships' of the Supreme Court in the aforesaid cases and Full Bench decision of Madhya Pradesh High Court, it would appear that the instant civil suit for declaration of title and permanent injunction, claiming Bhumiswami rights over the suit land filed by plaintiff in relation to his rights as a Bhumiswami, the Civil Suit was maintainable and cognizable by Civil Court and there is no bar under Section 57(2) of the Code, as Full Bench decision of the Madhya Pradesh High Court in Ramgopal Kanhaiyalal, AIR 1976 Madhya Pradesh 160(1) (supra) has been approved by the Supreme Court in case of Rohini Prasad, (2000) 3 SCC 668 (supra) and further in case of Hukum Singh (2005) 10 SCC 124 (supra) it has held that aggrieved Bhumiswami has remedy of filing a civil suit for establishing his title on the suit land of his Bhumiswami rights and for recovery of possession. In the present case, the suit for declaration of his Bhumiswami rights and permanent injunction is maintainable and Civil Court was having jurisdiction to decide the Civil Suit. 16. Thus, the impugned judgment and decree passed by First Appellate Court holding the jurisdiction of the Civil Court to be barred, is evidently and palpably suffers from manifest error of jurisdiction and is accordingly set-aside. Thus, the substantial question of law is answered accordingly against the defendants. 17. Resultantly, the second appeal is allowed. Since the appeal was not decided on merits, the Civil Appeal No. 15-A/2000 is restored to the original file of Additional District Judge, Balod District Durg for hearing and disposal on merits in accordance with law, preferably within a period of six months from the date of receipt of certified copy of this judgment. No order as to costs. Since the appeal was not decided on merits, the Civil Appeal No. 15-A/2000 is restored to the original file of Additional District Judge, Balod District Durg for hearing and disposal on merits in accordance with law, preferably within a period of six months from the date of receipt of certified copy of this judgment. No order as to costs. Parties are directed to appear before the Court of Additional District Judge, Balod District Durg on 17/06/2014. Appeal allowed