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2015 DIGILAW 1182 (MP)

Kunjilal (Dead) through LRs v. Jumman Khan

2015-11-17

ALOK ARADHE

body2015
ORDER 1. With the consent of the parties, the matter is heard finally. 2. In this revision preferred under section 115 of the Code of Civil Procedure, the applicants have assailed the validity of the order dated 23.8.2011 by which the application preferred by them under Order VII rule 11 of CPC, has been rejected. 3. Facts giving rise to filing of the revision petition briefly stated are that original defendant, namely, Kunjilal executed a sale-deed by way of security for loan in favour of non-applicant No.1 in respect of the land bearing Survey No.143, ad-measuring 1.045 hectare on 13.11.1978. The original defendant tried to repay loan and requested the non-applicant No.1 to re-convey the suit property to him, however, the non-applicant No.1 declined to do so. Thereupon, the original defendant invoked the provisions of Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapne Sambandhi Kunchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (hereafter referred as the “Act 1976”), by submitting an application under section 5 of the Act. The Sub-Divisional Officer vide order dated 8.3.1993 dismissed the application against which the original defendant filed an appeal under section 8 of the Act before the Additional Collector, Vidisha, which was allowed and the matter was remanded back to the Sub-Divisional Officer for decision on merits vide order dated 16.2./2001. After the order of remand, said SDO by order dated 8.12.2003 allowed the application preferred by the original defendant and held the transaction in question to be prohibited transaction of loan, as defined under section 2(f) of the Act and the non-applicant No.1 was directed to restore the possession of the land to the original defendant within a period of one month. The Additional Collector vide order dated 10.2.2006 confirmed the order passed by the Sub Divisional Officer. Thereafter, the non-applicant No.1 filed a suit seeking relief for declaration and permanent injunction. The facts referred to supra are mentioned in the plaint itself. 4. The applicants filed the written statement in which an objection with regard to maintainability of the suit was taken. In view of the pleadings made by the parties, the trial Court framed an issue with regard to maintainability of the suit. The applicants thereupon filed an application for treating the same as preliminary issue. The aforesaid application was rejected by the trial Court vide order dated 2.3.2010. 5. In view of the pleadings made by the parties, the trial Court framed an issue with regard to maintainability of the suit. The applicants thereupon filed an application for treating the same as preliminary issue. The aforesaid application was rejected by the trial Court vide order dated 2.3.2010. 5. Being aggrieved, the applicants preferred a writ petition, namely, Writ Petition No.1122/10 before the Division Bench of this Court. A Division Bench of this Court vide order dated 15.12.2010 inter alia held that the issue with regard to maintainability of the suit can be decided only after recording of the evidence. Thereafter, the applicants filed an application under Order VII rule 11 of CPC, which has been rejected by the trial Court vide impugned order. 6. Learned counsel for the applicants submitted that from the averments made in the plaint itself it is evident that the suit is barred under section 14 of the Act. 7. On the other hand, learned counsel for non-applicant No.1 has supported the order passed by the trial Court and has submitted that the order dated 2.3.2010 which has been passed by the Trial Court has attained finality. He further submitted that since the applicants has sought relief for declaration that the sale-deed dated 13.11.1978 is null and void, therefore, the suit is maintainable. Learned counsel for non-applicant No.1 has referred to judgment in the case of Dhanaiya Bai and others v. Ganga Prasad and others, reported in 2011(I) MPJR-CG 68. 8. Considered the respective submissions made by the learned counsel for the parties. 9. From the perusal of the plaint itself, it is evident that the transaction in question was held to be prohibited transaction of loan by the competent authority. The aforesaid order has been upheld in appeal by the appellate authority. Section 14 of the Act reads as under :- “14. Bar of jurisdiction of civil Courts. -Subject to provisions of section 11, no Civil Court shall have any jurisdiction 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 SubDivisional Officer or the Collector.’’ In view of the bar contained in section 14 of the Act, the suit filed by non-applicant No.1 is not maintainable. The trial Court has failed to appreciate the aforesaid aspect of the matter. The trial Court has failed to appreciate the aforesaid aspect of the matter. The impugned order, therefore, suffers from material irregularity as well as illegality. 10. So far as the reliance placed by the learned counsel for non-applicant No.1 on the decision in the case of Dhanaiya Bai and others (supra), is concerned, the same is of no assistance to the non-applicant No.1 in the facts of the case as the non-applicant No.1 has not sought the relief for declaration that the sale-deed is null and void. The non-applicant No.1 in the plaint has sought relief for declaration and permanent injunction, therefore, the suit cannot be held to be maintainable in view of bar contained in section 14 of the Act. 11. The impugned order is accordingly quashed. The application preferred by the applicants under Order VII rule 11 of CPC, is allowed and the suit filed by the non-applicant No.1 is held to be not maintainable. 12. Accordingly, the revision is allowed.