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2016 DIGILAW 449 (MP)

Dilraj Singh v. Ramlakhan

2016-06-15

R.S.JHA

body2016
JUDGMENT 1. This appeal has been filed by the appellant being aggrieved by judgment and decree dated 9.2.2012 passed by the 2nd Additional District Judge (Fast Track Court), Satna in Civil Appeal No. 12-A/2011 whereby the judgment and decree dated 29.8.2007 passed in C.S. No. 80-A/1998 by the Civil Judge Class-I, Maihar has been confirmed and affirmed and the suit filed by the respondents/plaintiffs for declaration and permanent injunction has been decreed. The facts leading to the filing of the present appeal are that the plaintiffs/respondents filed a suit in respect of the disputed property on the ground that the respondents/plaintiffs were the owners of the property and had a judgment and decree in their favour in that regard passed by the trial Court on 24.3.1964 in Civil Suit No.30-A/1960 which was confirmed and affirmed in First Appeal No.25-A/1964 dated 6.12.1967 and by the High Court in Second Appeal No.99/1968 by judgment and decree dated 5.3.1971. 2. It was alleged that after the aforesaid judgment and decree and in execution thereof the respondents/plaintiffs had also been put to the possession in the land in question but the appellant/defendant by playing fraud obtained an order from the Sub-Divisional Officer, Maihar under section 170(B) of the MPLR Code whereby the Sub-Divisional Officer by treating the judgment and decree in favour of the respondents/plaintiffs as fraudulent, directed the respondents/plaintiffs to hand over the possession to the appellant by order dated 9.7.1998. The respondents/plaintiffs being aggrieved by the same filed a suit before the trial Court which was decreed and judgment and decree thereof has been confirmed and affirmed by the impugned judgment dated 9.2.2012 in first appeal. 3. The learned counsel for the appellant submits that the trial court as well as the first appellate Court have grossly erred in law in exercising of the jurisdiction in the matter specifically in view of the fact that the order passed by the SDO which was subject matter of the suit, had been passed under section 170(B) of the MPLR Code and therefore the suit or civil proceedings against the same is not maintainable and could not have been entertained by the trial Court in view of the bar contained in the provisions of section 257 of the MPLR Code. It is submitted that as the jurisdiction of the civil Court was barred under the aforesaid provisions of the MPLR Code, therefore, the judgment and decree of both the courts below is non est and deserves to be set aside. 4. It is further stated that the present case relates to the fraudulent transfer of land belonging to the Schedule Tribes and therefore even otherwise the civil Court had no power or jurisdiction to take cognizance of the matter in view of the bar under section 257 of the MPLR Code and therefore a substantial question of law arises for adjudication in the present appeal. It is also urged that the names of persons mentioned in the revenue record differ from the names of the“plaintiffs and this fact has also been ignored by the trial Court. Having heard the learned counsel for the appellant, it is observed that the Civil Suit No.30-A/1960 was filed by Mahesh, Lalman and Ram Prakash against Baake Singh, the predecessor of the appellant, on the ground that they had given land for cultivation to Baake Singh on Adhiya but the said person was not vacating the land. On the said allegation a suit for declaration of title and possession was filed by them. The aforesaid suit filed by them against Baake Singh was decreed by the trial Court by recording a finding to the effect that Baake Singh was not the owner of the land in question and that Mahesh, Lalman and Ram Prakash etc. who were nontribals, were the owners of the land. This finding of fact was confirmed and affirmed in first appeal as well as by the High Court in Second Appeal No.99/1968. 5. The trial Court as well as first appellate court on the basis of the aforesaid judgment and decree have held that once the finding of fact has been recorded by a competent Court to the effect that Baake Singh was not the owner of the land and the land did not belong to a tribal or to a person of prohibited category, therefore, the provisions of section 170(B) were not attracted or applicable to the same. The aforesaid finding of fact has been recorded by the Courts below on the basis of the previous judgment and decree passed in C.S. No.30-A/1960 and Second Appeal No.99/1998. The aforesaid finding of fact has been recorded by the Courts below on the basis of the previous judgment and decree passed in C.S. No.30-A/1960 and Second Appeal No.99/1998. The Courts below have also held that the order passed by the SDO dated 9.7.1998 treating the land to be a tribal land totally ignoring the judgment and decree of the trial Court that was pronounced prior to the insertion of the provisions of section 170(B) in the Code and ordering the same to be reverted to the tribal was ab initio void and without jurisdiction. On the basis of the aforesaid finding of fact the Courts below have decreed the suit and claim of the respondents/plaintiffs. 6. Having perused the judgment and decree of the Courts below, I am of the considered opinion that the aforesaid concurrent finding of fact recorded by the Courts below are in consonance with the previous judgment and decree which stood confirmed and affirmed prior to the insertion of section 170(B) in the Code and in such circumstances, there is no perversity or illegality in the impugned judgment and decree of the Courts below. I am also of the considered opinion that the Courts below have rightly decided that once the competent Court has already held that the land did not belong to Baake Singh, the SDO had no power or authority to set aside the judgment and decree of the competent Court by stating that it had been obtained by fraud in exercise of the power under section 170(B) of the MPLR Code. I am of the considered opinion that the Courts below have rightly held that in view of the judgment and decree of the trial Court in Civil Suit No.30-A/1960 and High Court in Second Appeal No.99/1968 as the land did not belong to the tribal, the provisions of section 170(B) of the MPLR Code were not applicable and could not have been invoked and therefore, the aforesaid illegal exercise of power by the SDO has rightly been set aside by the Courts below. 7. The aforesaid finding of fact is based on proper and due appreciation of the evidence available on the record and does not call for any interference. In the circumstances, I do not find any substantial question of law in the present appeal. The appeal being meritless is accordingly dismissed.