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2014 DIGILAW 386 (TRI)

Bisweswar Bhowmik v. State of Tripura

2014-11-17

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This second appeal, under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 23.08.2006, passed by learned Addl. District Judge, Belonia, South Tripura, in Title Appeal No. 13 of 2006, where-under the learned Addl. District Judge upheld the judgment and decree of dismissal dated 08.05.2006 passed by learned Civil Judge, Jr. Division, Belonia, South Tripura in Title Suit No. 37 of 2002. 2. The second appeal has been admitted for hearing on the following substantial questions of law: "(i) Whether the learned Appellate Court below has committed serious illegality by holding that the Additional District Magistrate and Collector, South Tripura, Udaipur, the respondent No. 3 herein, by exercising the powers under Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1980 has not committed any illegality? (ii) Whether the impugned order of cancellation has matured into irreversibility as per Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1962? (iii) Whether the Collector can make a review of the earlier order of allotment without the permission of the State Government under Section 96(i) of TLR and LR Act?" 3. Heard learned counsel Ms. S. Deb (Gupta) for the appellant and learned counsel Mr. G.S. Bhattacharjee for the respondent Nos. 1 to 4. There was no representation on behalf of other respondents. 4. The appellant as plaintiff instituted Title Suit No. 37 of 2002 in the Court of Civil Judge, Jr. Division, Belonia, South Tripura seeking declaration of his right, title, interest in the suit land described in the schedule of the plaint and further prayed for a declaration that the order passed by the Addl. District Magistrate and Collector, South Tripura, Udaipur on 13.02.2002 in Review Case No. 29/2001 was illegal, perverse, motivated and non executable etc. 5. Plaintiff's case, in short, is that he got allotment of the suit land in the year 1975 and the two allotment orders have been proved as Exhibit-1 and Exhibit-2. During revisional survey and settlement operation his two brothers, the defendant Nos. 5 and 6 on 22.06.1978 made an application to the Revenue Minister of the State of Tripura seeking allotment of the suit land in their name and that petition (Exhibit-7) was forwarded to the D.M. & Collector, South Tripura by the Revenue Minister for taking appropriate action and accordingly on the basis of that petition Rev. 5 and 6 on 22.06.1978 made an application to the Revenue Minister of the State of Tripura seeking allotment of the suit land in their name and that petition (Exhibit-7) was forwarded to the D.M. & Collector, South Tripura by the Revenue Minister for taking appropriate action and accordingly on the basis of that petition Rev. Case No. 29/2001 under Section 196 of the TLR & LR Act was initiated by the Addl. District Magistrate and Collector, South Tripura on 29.01.2002 and thereafter on 13.02.2002 based on a purported report of SDO, the Additional District Magistrate & Collector passed an order that a part of the suit land should be recorded in the name of those petitioners i.e. respondent Nos. 5 and 6. The plaintiff challenged that order by filing a writ petition in the then Gauhati High Court, Agartala Bench vide WP(C) No. 340 of 2002 and the learned Single judge of the High Court by order dated 02.09.2002 disposed the writ petition with a direction that even if any action is taken as per impugned order dated 13.02.2002, the petitioner (plaintiff) will be at liberty to approach the appropriate forum under the TLR and LR Act to challenge such order or he may approach the Civil Court for appropriate relief. Thereafter the plaintiff filed the present suit seeking declaration of his right, title, interest in the suit land and also seeking cancellation of the order dated 13.02.2002 passed by the Collector. 6. Respondent (hereinafter called as defendant) Nos. 2, 3 and 4 filed a joint written statement contending that the civil suit is not maintainable since it is barred by Section 188 of the TLR and LR Act, 1960. It is also contended that the Collector is legally authorized by law to pass any order in reviewing any earlier decision in respect of record of right and hence, the civil suit was not maintainable. 7. Defendant Nos. 5, 6 and 7 also contested the case by filing a joint written statement contending that out of 1.99 acres of the allotted suit land the defendant Nos. 5 and 6 were possessing 1.07 acres of land and the defendant No. 7 was possessing 10 acres of land and the plaintiff got the allotment illegally in suppression of the actual fact of possession and therefore, the allotment order was wrong and was liable to be cancelled. 8. 5 and 6 were possessing 1.07 acres of land and the defendant No. 7 was possessing 10 acres of land and the plaintiff got the allotment illegally in suppression of the actual fact of possession and therefore, the allotment order was wrong and was liable to be cancelled. 8. Considering the pleadings of the parties, the trial Court framed following six issues -- "1. Is the suit maintainable in its present form following the provision of T.L.R. & L.R. Act 1960? 2. Has the plaintiff cause of action of instituting this suit? 3. Has the plaintiff right, title and interest over the suit land? 4. Whether the orders dated 29.01.2002 & 13.02.2002 in Rev. Case No. 29/01 of the D.M. & Collector, South Tripura suffers from illegality, irregularity & impropriety? 5. Whether plaintiff is entitled to get a decree as prayed for? 6. What other relief/reliefs parties are entitled to get?" 9. In the course of trial, the plaintiff examined himself as P.W. 1 and also examined another witness namely P.W. 2 Amal Mallik and in support of his case, he has proved 11 documents which are marked Exhibits as follows:- "(1) Exbt.-1 Allotment order No. 58, dated 31.07.1975 (2) Exbt.-2 Allotment order No. 92, dated 04.06.1975. (3) Exbt.-3 Khatian No. 1092 of Mouja-West Charakbai (4) Exbt.-4 Finally published khatian No. 862/2 of Mouja-West Charakbai. (5) Exbt.-5 Khatian No. 862/1 of Mouja-West Charakbai. (6) Exbt.-6 Certified copy of order passed by Director of Land Record and Settlement in connection with REV Case No. 26/90 under Section 95 of T.L.R. Act. (7) Exbt.-7 Photo copy of the letter of Hon'ble Revenue Minister, Govt. of Tripura, Sri Keshab Majumder. (8) Exbt.-8 Certified copy of order sheet dated 29.01.2002 & 13.02.2002 in connection with REV Case No. 29/01 U/S. 96 of T.L.R. & L.R. Act. (9) Exbt.-9 Certified copy of the order of Hon'ble Gauhati High Court, Agartala Bench, Agartala in connection with writ petition Case No. 340/02. (10) Exbt.-10 Certified copy of the Tress Map of Mouja-West Charakbai, Sheet 3/Part. (11) Exbt.-11 Finally published map of Mouja- West Charakbai of Sheet No. 3/Part." 10. Defendant No. 5 examined himself as D.W. 1 and they examined two more witnesses namely D.W. 2 Birendra Mallik and D.W. 3 Suman Rakshit. Defendants did not adduce any documentary evidence. 11. (10) Exbt.-10 Certified copy of the Tress Map of Mouja-West Charakbai, Sheet 3/Part. (11) Exbt.-11 Finally published map of Mouja- West Charakbai of Sheet No. 3/Part." 10. Defendant No. 5 examined himself as D.W. 1 and they examined two more witnesses namely D.W. 2 Birendra Mallik and D.W. 3 Suman Rakshit. Defendants did not adduce any documentary evidence. 11. The trial Court as well as the first appellate Court arrived at a finding that the impugned order dated 13.02.2002 passed by Addl. District Magistrate & Collector (defendant No. 3) in REV. Case No. 29/2001 was within the jurisdiction and hence, the civil suit instituted by the plaintiff is barred by Section 188 of T.L.R. and L.R. Act. For ready reference let us reproduce here Section 188 of the TLR. & LR Act which reads as follows:- "188. No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act." 12. The impugned order dated 13.02.2002 passed by Addl. District Magistrate and Collector in Review Case No. 29/2001 under Section 196 of the T.L.R. & L.R. Act which is proved as Exhibit-8 reads thus:- From the petition & statement made by the parties it appears that both the parties have been possessing 1.79 acres of land under West Charakbai Mouza for long but at the time of allotment in 1975 the entire plot was allotted in favour of 2nd party depriving 1st party. Therefore, they claimed 2/3rd share of land in their favour. During revisional settlement out of 1.79 acre 1.17 acre was not recorded in favour of 2nd party. The said land in fact is in possession of 1st party. The SDO/Belonia in his report has, therefore, recommended for correction of record." 13. It is an admitted position that the suit land was allotted by the competent authority in favour of the plaintiff in the year 1975. Both the orders of allotment are proved as Exhibit-1 and Exhibit-2. It is also an admitted position that after allotment the suit land was recorded in khatian in the name of the plaintiff and khatian No. 1092, 862/2 and 862/1 of Mouja Paschim Charakbai were prepared in the name of the plaintiff and those khatians were proved as Exhibit-3, 4 and 5 respectively. It is also an admitted position that after allotment the suit land was recorded in khatian in the name of the plaintiff and khatian No. 1092, 862/2 and 862/1 of Mouja Paschim Charakbai were prepared in the name of the plaintiff and those khatians were proved as Exhibit-3, 4 and 5 respectively. It is also an admitted position that defendant No. 7 Manindra Kr. Sen (since deceased) initiated a Revenue Case under Section 95 of T.L.R. & L.R. Act vide Revenue Case No. 26/1990 before the Director of Settlement and Land Records and a copy of order sheet passed by the Director of Settlement and Land Records has been proved by the plaintiff as Exhibit-6 in which order dated 21.11.1994 shows that the plaintiff had been in possession of the suit land. 14. The allotment of suit land was made by the competent authority in the year 1975. Defendant Nos. 5 and 6 made application to the Revenue Minister in the year 1998 and on the basis of that application defendant No. 3 Addl. District Magistrate & Collector, South Tripura, Udaipur registered Review Case No. 29/2001 under Section 96 of the T.L.R. and L.R. Act and it is, therefore, evident that after 26 years of the allotment the defendant No. 3 passed order directing correction in the record of right. The order of allotment has not been cancelled as per the provision prescribed under the TLR and LR Act and Rules framed thereunder. It is apparent that the orders of allotment made in the year 1975 still holds good and those orders of allotment are to be treated as the document of title in respect of the suit land in the name of the plaintiff. Now the only question as to whether defendant No. 3, Addl. District Magistrate & Collector was within his jurisdiction to pass an order directing rectification of record of right after 26 years without cancelling the allotment orders? The impugned order dated 13.02.2002 itself shows that it is a cryptic order directing rectification of record of right and it has been passed on the basis of a so-called report of SDO, Belonia. It is clear that no evidence was taken while passing the order. Keeping the allotment order in force, the Addl. District Magistrate i.e. defendant No. 3 would not pass such an order of rectification of the record of right. It is clear that no evidence was taken while passing the order. Keeping the allotment order in force, the Addl. District Magistrate i.e. defendant No. 3 would not pass such an order of rectification of the record of right. Admittedly, the record of right was prepared based on the order of allotment. So, keeping the allotment orders in force, the Addl. District Magistrate was not authorized to direct rectification of the record of right and therefore, it was beyond the jurisdiction of the Addl. District Magistrate & Collector. 15. The Review proceeding No. 29/2001 was initiated under Section 96 of the TLR. and LR Act. Section 96empowered a Revenue Officer to exercise power of review. Section 96 reads as follows:- "96. (1) A revenue officer may, either on his own motion or on the application of any party interested, review any order passed by himself or by any of his predecessors-in-office and pass such order in reference thereto as he thinks fit: Provided that a revenue officer subordinate to the Collector shall, before reviewing any order under this section, obtain the permission of the Collector and the Collector shall, before reviewing an order passed by any of his predecessors-in-office obtain the permission of the State Government. (2) No order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings or except after notice to the other party and no application for the review of such order shall be entertained unless it is made within ninety days from the date of the order. (3) No order shall be reviewed except on the following grounds, namely:- (i) Discovery of new and important matter of evidence; (ii) Some mistake or error apparent on the face of the record; or (iii) Any other sufficient reason. (4) For the purposes of this section, the Collector shall be deemed to be the successor-in-office of any revenue officer who has left the district or who has ceased to exercise powers as a revenue officer and to whom there is no successor in the district. (5) An order which has been dealt with an appeal or on revision shall not be reviewed by any officer subordinate to the appellate or revisional authority." 16. The orders of allotment were made in the year 1995 and thereafter the khatians in the name of the plaintiff were prepared. The Addl. (5) An order which has been dealt with an appeal or on revision shall not be reviewed by any officer subordinate to the appellate or revisional authority." 16. The orders of allotment were made in the year 1995 and thereafter the khatians in the name of the plaintiff were prepared. The Addl. District Magistrate while initiating a Review proceeding was supposed to obtain permission from the State Govt. since the original order of allotment and consequential preparation of the khatians were not made under his order. Further the power of review can be exercised only in case of discovery of new and important matters in evidence or some mistake or error apparent on the face of the record or for any other sufficient reason. While passing the impugned order no such reasons were available in the hand of the Addl. District Magistrate to pass an order for correction in the record of right already prepared in the name of the plaintiff. So, the impugned order dated 13.02.2002 suffers from lack of jurisdiction of the Addl. Magistrate & Collector. The question is now whether under such circumstances a Civil Court's jurisdiction is altogether barred in view of the provisions of Section 188 of T.L.R. and L.R. Act? 17. Section 188 has prescribed a bar on the jurisdiction of a Civil Court in general in respect of any matter arising under the provisions of the TLR & LR Act. But such a restriction cannot altogether oust the jurisdiction of the Civil Court in respect of matter where the revenue Court and/or a tribunal failed to exercise its jurisdiction according to law. 18. A single bench of the Gauhati High Court in the case of Union of India & Anr. V. Mst. Azibun Nessa Khatun & Ors. (Second Appeal No. 73/1996) decided on 12th September, 2000) reported in : 2002(2) Civil L.J. 713 has held that the civil Court always will have the jurisdiction to examine into cases where the provisions of the Act have not been complied with. In para 7 of the judgment, the Court has observed- "7.---- The jurisdiction of Civil Court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law (See Dhubabhai, : AIR 1969 SC 78 ). In para 7 of the judgment, the Court has observed- "7.---- The jurisdiction of Civil Court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law (See Dhubabhai, : AIR 1969 SC 78 ). Jurisdiction of Civil Courts deal with civil causes can be excluded by Legislature by Special Acts to deal with special subject matters, but statutory provisions must expressly provide for such exclusion or must necessarily and indubitably lead to that inference(See 1966 SC 893, Ramswarup). But the Civil Court always will have the jurisdiction to examine into cases where the provisions of the Act have not been complied with. Where certain things are to be done under the Special Act and the grievance is that they have not been adhered to or followed, the action can be challenged if there is no remedy for it under the Special Act. It is in this background that we are to decide the question of Bar of jurisdiction of Civil Court. The general principle of interpretation of Special Acts is that where the Special Act provides a special remedy no other remedy is available to the parties. So, I hold that the present suit is not barred under Section 17 for the reliefs claimed." 19. A single bench of Himachal Pradesh High Court also in the case of Garibu & Anr. V. State of HP & Ors. reported in : 1999(3) Civil LJ 155 has observed the same view that jurisdiction of the Civil Courts available where violation of principle of natural justice or on authorities acting without jurisdiction. 20. A full bench of the Gauhati High Court in the case of Daulatram Lakhani V. State of Assam & Ors, reported in : AIR 1990 Gau 17 has held-- "12. From what has been stated above, the general tests or principles which would govern a case like the one at hand (where there is express exclusionary clause) may be stated as below: (1) The bar would not operate if it could be shown that the entire proceeding before the revenue authority is illegal and without jurisdiction. This follows from what was stated in Mask & Company : AIR 1940 PC 105 as explained in Firm I.S. Chetty & Sons : AIR 1964 SC 322 . This follows from what was stated in Mask & Company : AIR 1940 PC 105 as explained in Firm I.S. Chetty & Sons : AIR 1964 SC 322 . (2) The bar would not also apply where the remedy provided by the provisions in the Regulation is not sufficient or adequate vide Raleigh Investment Company : AIR 1947 PC 78 and Kamata Mills : AIR 1965 SC 1942 . Of course, this test is not always decisive to sustain the jurisdiction of the Civil Court, vide principle No. 2 of Dhulabhai : AIR 1969 SC 78 . (3) Where there is a bona fide dispute regarding the title, the summary remedy visualised by Rules 18(2) and 18(3) of the Rules would not be sufficient to exclude the civil court's jurisdiction, vide, Krishna Rao : AIR 1982 SC 1081 . (4) Where the right affected be one existing under the general- or common law, and not created by the Regulation, jurisdiction of civil court is also open, vide Premier Automobiles : AIR 1975 SC 2238 and Raja Ram Kumar : AIR 1988 SC 752 ." 21. The Supreme Court in the case of Vankamamidi Venkata Subba Rao V. Chatlapalli Seetharamaratna Ranganayakamma, reported in : (1997) 5 SCC 460 has elaborately dealt with the matter. In para 15 of the judgment the Court has observed-- "This Court in Vatticherukuri Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. : [(1991) Supp. 2 SCC 288], after considering the entire case law, had held that the civil Court has no jurisdiction to go into the correctness of the patta granted by the Settlement Authorities. Under Section 9 CPC, the Courts shall, subject to the provisions contained therein, have jurisdiction to try all suits of civil nature excepting suits cognizance of which is either expressly or impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the civil Court would take cognizance of it. Therefore, the normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. Therefore, the normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The Rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the civil Court is assumed. The exclusion would, therefore, normally be an exception. Court generally construe the provisions strictly when jurisdiction of the civil courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, statutes intervene and provide alternative mode of resolution of disputes with less expensive but expeditious disposal. It is settled legal position that if a tribunal with limited jurisdiction cannot assume jurisdiction and decide for itself the dispute conclusively, in such a situation, it is the Court that is required to decide whether the tribunal with limited jurisdiction has correctly assumed jurisdiction equally settled that when jurisdiction is conferred on a tribunal, the Court examine whether the essential principle of jurisdiction have been followed and decided by the tribunal leaving the decision on merits to the tribunal. It is also equally settled legal position that where a statute gives finality to the orders of the special tribunal, the civil court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the civil Court would normally do in a suit. Such a provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Where there is an express bar of jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. In the latter case, it is necessary that the statute creates a special right or liability and provides procedure for the determination of the right or liability and further lays down that all questions about the said right or liability shall be determined by the tribunal so constituted and whether remedies is normally associated with the action in civil courts or prescribed by the statutes or not. Therefore, each case requires examination whether the statute provides right and remedies and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excludes the jurisdiction of the civil Court in respect thereof. After the advent of independence, the land reforms was one of the policies of the Government abolishing feudal system of land tenures and conferment of the Ryotwari patta on the tiller of the soil. Thereby, the land reform laws extinguish pre-existing rights and create new rights under the Act. The Act confers jurisdiction on the tribunals in matter relating thereto and hierarchy of appeals/revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, by necessary implication, the jurisdiction of the civil Court to take cognizance of the suits of civil nature covered under the land reform laws stands excluded giving not only finality to the decisions of the tribunal but also ensuring expeditious, inexpensive and simple procedure for disposal of the matters by the tribunal and make the ryotwari patta granted to the tiller of the soil conclusive. Under the normal course of civil procedure, the jurisdiction of the trial of the civil suits in relation to the matters covered under the Acts being time-consuming and tardy the lack of financial support or otherwise incapacity in defending or working the rights in the civil courts and by hierarchy of appeals defeat justice. Obviously, therefore, the civil suits by necessary implication stand excluded unless the fundamental principles of procedure are not followed by the tribunals constituted under the land reform laws. Obviously, therefore, the civil suits by necessary implication stand excluded unless the fundamental principles of procedure are not followed by the tribunals constituted under the land reform laws. In this case, the Act concerned extinguishes the pre-existing right, creates new rights under the Act and requires tribunals to enquire into the rival claims and a form of appeal has been provided against the order of the primary authority. Thereby the right and remedy made conclusive under the Act are given finality by the orders passed under the Act. Thereby, by necessary implication, the jurisdiction of the civil Court stands excluded." 22. In the present case the plaintiff has proved the documents of title by proving the allotment orders (exhibit-1 and exhibit-2) and thereby established his title over the suit land. He has also proved the khatians prepared after allotment in his name and preparation of such khatians are the proof of his prima facie possession in the suit land. The allotment orders are also prima facie evidence of possession of the plaintiff. 23. Exhibit-6 is order of the Director of Settlement and Land Records also shows that the plaintiff is in possession of the allotted land. Therefore, the plaintiff has been able to prove his right, title and interest over the suit land. The trial Court and the first appellate Court failed to appreciate the pleadings and evidence on record and arrived at a wrong finding. 24. The impugned order dated 13.02.2002, passed by Addl. District Magistrate (defendant No. 3) in Review Case No. 29/2001, under Section 96 of the TLR and LR Act is found to be beyond his jurisdiction since the power vested on a Revenue Officer under Section 96 has not been exercised in accordance with law and further a Revenue Officer is not supposed to pass an order of rectification of the record of right while the document of title remains in the name of the plaintiff. 25. In view of the discussions made above, the second appeal is allowed. The judgment and decree dated 08.05.2006 passed by learned Civil Judge, Jr. Division, Belonia, South Tripura in Title Suit No. 37 of 2002 and affirmed by the learned Addl. District Judge, Belonia in Title Appeal No. 13 of 2006 by judgment and decree dated 23.08.2006 are set aside. The right, title, interest of the plaintiff is declared in the suit land. 26. Division, Belonia, South Tripura in Title Suit No. 37 of 2002 and affirmed by the learned Addl. District Judge, Belonia in Title Appeal No. 13 of 2006 by judgment and decree dated 23.08.2006 are set aside. The right, title, interest of the plaintiff is declared in the suit land. 26. The impugned order, dated 13.02.2002, passed by the Addl. District Magistrate & Collector, South Tripura (defendant No. 3) in Review Case No. 29/2001, under Section 96 of the TLR and LR Act, is set aside and quashed. 27. Send back the L.C. records along with a copy of this judgment.