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2014 DIGILAW 41 (CHH)

Nirmala Devi v. State of M. P.

2014-02-03

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. The substantial questions of law involved and to be answered in this appeal are as under:-- "1. Whether the courts below have committed an error of law in giving the finding that the suit filed by the appellants/plaintiffs is barred by limitation? 2. Whether the findings recorded by the courts below that the suit is also barred by jurisdiction under the provisions of MP Ceiling on Agricultural Holdings Act, 1960 is proper and legal?" Imperative facts in nutshell required for determination of this appeal are as under:-- (For sake of convenience, the parties shall be referred to according to their array in the suit) (1.1) Plaintiffs namely Atal Singh, Umarao Singh & Ramji Singh filed a suit for declaration and permanent injunction stating inter alia that they have purchased the suit land from defendant No. 3 situated at Dongitarai and Chhari as detailed in Schedule I appended to and forming part of the plaint by registered sale deed dated 12.11.1963 and they are in possession of the same from the date of its purchase. It was further pleaded that defendants No. 1 & 2 instituted a proceeding under the provisions of the Ceiling on Agricultural Holdings Act, 1960 (For short 'the Act of 1960') as Revenue Case No. 49/A/91.B.3 of 65-66 dated 23.8.1980 against the defendant No. 3 sometime in the year 1965, for determination of surplus land. In that proceeding, the defendant No. 2 published a draft-statement including scheduled suit land as being held by the defendant No. 3 and purported to declare the scheduled suit land surplus and to vest in defendant No. 1/State of Madhya Pradesh. (1.2) The plaintiffs preferred objection in the said proceeding to their of the lands purchased by them as detailed out under Scheduled 'A' as being held by defendant No. 3 on the ground that they being holders of less than five acres of land on the date of their purchase, the sale made to them are valid. The defendant No. 2 rejected the plaintiff's objection by his order dated 23.8.1980 and of Board of Revenue by its order dated 19.02.1982 affirmed the order of competent authority. The defendant No. 2 rejected the plaintiff's objection by his order dated 23.8.1980 and of Board of Revenue by its order dated 19.02.1982 affirmed the order of competent authority. (1.3) Plaintiffs filed instant suit for declaration on 03-05-1982 that scheduled suit land be declared to be owned by plaintiffs and inclusion of land in the final statement published in the ceiling proceedings by order dated 23.8.1980 declaring the same to surplus land and/or order of Board of Revenue is bad in law, also prayed for injunction restraining the defendants No. 1 & 2 from interfering with the possession of the plaintiff. (1.4) That, defendants No. 1 and 2 filed their written statement resisting the suit and specifically pleaded that under Section 11(3) & (4) of the Act of 1960 the civil suit could have been filed within three months from the order of the competent authority dated 23.8.1980 and as such suit is barred by the provisions of the Act of 1960. (1.5) The trial Court framed as many as six issues for determination in the suit, which reads thus:-- 2. The trial Court by its judgment dated 2.1.1985 dismissed the suit finding inter alia the suit to set aside the order dated 23.8.1980 passed by the competent authority has been filed beyond the period of one year from the date of passing of the order under Article 100 of the Limitation Act, 1963. 3. The plaintiffs preferred first appeal there against. The first Appellate Court affirmed the judgment & decree passed by the trial Court finding inter alia that suit having been filed beyond the period of three months from the date of order of competent authority dated 23.8.1980, therefore, the suit for declaration of title and permanent injunction is barred by limitation. 4. Mr. Sanjay S. Agrawal, learned counsel appearing for the plaintiffs would submit that both the courts below have fallen in error in holding that suit for declaration & permanent injunction is barred by limitation. 4. Mr. Sanjay S. Agrawal, learned counsel appearing for the plaintiffs would submit that both the courts below have fallen in error in holding that suit for declaration & permanent injunction is barred by limitation. He would further submit that plaintiffs neither the aggrieved persons within the meaning of Section 11(5) of the Act of 1960 as they have acquired the title on the suit land by registered sale deed dated 12.11.1963 much prior to initiation of the said proceedings before the Competent Authority under Section 9 & 10 of the Act of 1960 nor notices were served to them in said ceiling proceedings as contemplated under Sub-section (2) of section 11 of the Act, the limitation contemplated under sub-section (5) of Section 11 of the Act will not apply to the suit filed by the plaintiffs as the plaintiffs have filed a suit claiming declaration that order passed by the competent authority is not binding on the plaintiff and, therefore, the judgment and decree passed by both the courts below be set aside. 5. Shri Vinay Harit, learned Deputy Advocate General for the State/respondent No. 1, while supporting the judgment & decree passed by both the -courts below would submit that both the courts below have rightly held that suit filed by the plaintiffs to be barred by limitation and as such no illegality has been committed by both the courts below and the substantial questions of law as framed be answered in negative. 6. I have heard learned counsel appearing for the parties and perused the judgment and decree passed by both the courts below including judgment and decree impugned with utmost circumspection. Answer to substantial question of Law No. 1 7. The word 'holder' has been defined under Section 2(h) of the Act of 1960. It reads:-- "Holder" means a tenure holder or an occupancy tenant or a Government lessee of land within the State and the expression "to hold land" or "holding land" shall be construed accordingly." 8. Answer to substantial question of Law No. 1 7. The word 'holder' has been defined under Section 2(h) of the Act of 1960. It reads:-- "Holder" means a tenure holder or an occupancy tenant or a Government lessee of land within the State and the expression "to hold land" or "holding land" shall be construed accordingly." 8. Section 10 of the Act of 1960 reads as under:-- "Collection of information.--(1) If any person holding land in excess of the ceiling area fails to submit the return under Section 9, the competent authority may, by a notice in such form and served in such manner as may be prescribed, require such person to furnish the return within the time specified in the notice and on his failure to do so obtain the necessary information in such manner as may be prescribed. 9. A reading of these two provisions, therefore, clearly contemplates that when a holder holding land in excess of the ceiling limit he is expected either to voluntarily submit the return or submit it on notice from the Competent Authority and the holder means a 'holder' as defined in section (2)(h). It is not disputed that in these proceedings under Sections 9 and 10 which ultimately culminated into the draft statement under sub-section (3) of section 11, this plaintiff-appellant not filed any return as a holder. It is also clear that under sub-section (3) of Section 11, no notice of the draft-statement was served on the plaintiffs-appellants. 10. Section 11(3) of the Act, 1960 reads as under: "(3) The draft statement shall be published at such places and in such manner as may be prescribed and a copy thereof shall be served on the holder or holders concerned, the creditors and all other persons interested in the land to which it relates. Any objections to the draft statement received within thirty days of the publication thereof shall be duly considered by the Competent Authority who after giving the objector an opportunity of being heard shall pass such order as it deems fit." 11. Any objections to the draft statement received within thirty days of the publication thereof shall be duly considered by the Competent Authority who after giving the objector an opportunity of being heard shall pass such order as it deems fit." 11. Sub-section (5) of Section 11 of the Act reads as under:-- "The order of the competent authority under sub-section (4) shall not be subject to appeal or revision, but any party may, within three months from the date of such order institute a suit in the civil Court to have the order set aside, and the decision of such Court shall be binding on the competent authority, but subject to the result of such suit if any, the order of the competent authority shall be final and conclusive." 12. A bare perusal of Section 11(5) of the Act would show that it permits any party to file a suit within three months. The phrase occurring in sub-section (5) "any party" clearly contemplates a party to the proceeding under this Act. But looking to the scheme of the Act, as discussed above, parties to the proceedings will be those who are expected to file the return under section 9, to whom a notice under section 10 or to whom a notice under sub-section (3) of section 11 of the Act is served. 13. Admittedly, the plaintiffs were not person who were expected to file the return under Section 9, nor are person to whom a notice under section 10 was served nor a notice under section 11(3) was served to them. In this view of the matter, it appears that it could not be held that the plaintiffs were party falling within the ambit of the term "any party" as provided in clause (5) of Section 11 of the Act. 14. Thus, both the courts below committed error in holding and making applicable period of limitation prescribed therein for filing the suit by the appellants/plaintiffs. 14. Thus, both the courts below committed error in holding and making applicable period of limitation prescribed therein for filing the suit by the appellants/plaintiffs. Thus, a suit filed by the appellants/plaintiffs as stranger claiming to have purchased the suit land by registered sale deed dated 12.11.1963 in substance, as the suit could not be a suit falling within the ambit of Sub-section (5) of Section 11, it could not be said that the suit is beyond time as admittedly the suit has been held to be beyond time by applying the period of limitation provided under sub-section (5) of section 11 of the Act and such under Article 58 of the Limitation Act, period of limitation would be three years from the date when right to sue accrues. 15. High Court of Madhya Pradesh in case of Smt. Gulabrani v. State of M.P. 1973 MPLJ SN 29 has held that Section 11(5) of the Act of 1960 would be applicable to the party to the proceedings only and it will not apply to a person to whom the notice of proceedings was not served. 16. High Court of Madhya Pradesh in case of Jagat Singh Barelal v. State of M.P. through Collector Vidisha 1982 MPLJ 575 , has held that the period of limitation of three months contemplated under Section 11(5) would be applicable only to the parties to the ceiling proceedings before the competent authority and, therefore, the suit was held to be within limitation and by allowing the appeal of the plaintiffs of that case, the suit was decreed. In that case also certain objections were filed by the plaintiffs although they were rejected by the competent authority and even in that situation Court held that merely the objections were filed by the plaintiffs which were rejected would not disentitle them to file the civil suit and the period of three months of filing suit was not applicable on the plaintiffs of that case. In the instant case also, the objections were filed by the plaintiffs which were rejected and, therefore, it was not incumbent upon them to file civil suit within three months as envisaged under section 11(5) of the Act. In the instant case also, the objections were filed by the plaintiffs which were rejected and, therefore, it was not incumbent upon them to file civil suit within three months as envisaged under section 11(5) of the Act. This decision is squarely applicable in the present case because, in the present case also, the plaintiffs were not the party and no notice was served on them, therefore, section 11(5) of the Act enabling a party to file civil suit within three months is not applicable on the plaintiffs. 17. As discussed above, apparently the plaintiff-appellant's suit is by a person as stranger and he claims that his land had been included showing it to be a land within the holdings of the three original holders, wherein in fact these three original holders had lost their right in the land in suit and, therefor, what is claimed by the plaintiff appellant is a declaration that these proceedings do not affect the land in suit and do not affect the plaintiff-appellant. In substance, therefore, it is clearly a suit for declaration of title and further a declaration that the decision of the Competent Authority and the proceedings under this Act have no effect and order of competent authority is not binding so far as the plaintiff-appellant is concerned and the land in dispute is concerned. Consequently, the suit for declaration filed within three years from the order of competent authority dated 23.08.1980 is within the period of limitation. Substantial question of law is answered accordingly. Answer to substantial question of Law No. 2 18. On bare perusal of Section 46 of the Act which was prevailing on the date of filing of the suit, it is luminously clear like noon by that there was no absolute bar in filing the suit. In the instant case particularly when the plaintiffs were not the party in the ceiling proceedings they were competent to file the civil suit for a declaration that the order passed by the competent authority be declared null and void and the Civil Court had jurisdiction at the time of filing of the plaint. For ready reference, it would be relevant to quote section 46 which reacts thus:-- "46. For ready reference, it would be relevant to quote section 46 which reacts thus:-- "46. Bar of jurisdiction of Civil Courts--Save as expressly provided in this Act, no Civil Court shall have any jurisdiction.- (i) to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the competent authority; and (ii) The grant stay in any case under this Act." Thus on the date of filing of the plaint, the Civil Court as having jurisdiction.. Substantial question of law is answered accordingly. 19. Resultantly, the appeal is allowed. The judgment and decree passed by both the courts below are set aside. Civil Suit No. 27-A/84 is restored to its original number for hearing and disposal on merits in accordance with law. 20. Parties are directed to appear before the trial Court on 19th March, 2013. In the circumstances of the case, the parties are directed to bear their own costs as incurred. Appeal allowed.