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2019 DIGILAW 479 (CHH)

DWARIKA BAI, D/O KARTIK RAM v. MANIRAM

2019-03-18

SANJAY K.AGRAWAL

body2019
JUDGMENT : Sanjay K. Agrawal, J. The substantial questions of law involved, formulated and to be answered in the second appeal preferred by the defendants are as under:- "01. Whether, without service of notice as required under section 80 of the Code of Civil Procedure, civil suit could have been instituted ? 02. Whether, the suit filed by the respondents/plaintiffs was barred according to Sec. 257 of the Land Revenue Code, 1959 ?" [For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court]. 2. The plaintiffs' filed representative suit after complying the provisions of Order 1 Rule 8 of the CPC that they are villagers of Gram Kasekera and title-holders of the suit land, they are entitled for declaration of title and also for possession from the private defendants. The State Government was impleaded as party defendant on 31.1.2001. 3. The defendants set up a plea that they are in settled possession of the suit land for last 40 years, as such, they have perfected their title by way of adverse possession. Additional plea was taken by the defendants that notice under Section 80 of the CPC was not served to the State Government before instituting the instant suit. The State Government filed separate written statement stating inter-alia that the suit land is Government land reserved for grazing purpose and defendants No.1 to 4 are encroachers upon the said land. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 18.8.2003, dismissed the suit holding that the suit land is Government land reserved for grazing purpose and for aam nistar and also held that suit is maintainable without service of notice under Section 80 of the CPC as no relief has been sought against the State Government and liberty was reserved in favour of the State Government to proceed in accordance with law. On appeal being preferred by the private defendants, the first appellate Court partly modified the decree of the trial Court and held that the defendants have failed to prove their adverse possession over the suit land, but held that the suit land is Government land reserved for grazing purpose and villagers of the said village are owners and possession holders and it is the land reserved for aam nistar, against which, this second appeal under Section 100 of the CPC has been preferred by the appellants/defendants, in which substantial question of law have been formulated by this Court, which have been set-out in the opening paragraph of this judgment. 5. Mr. Manoj Paranjape, learned counsel for the appellants/defendants, would submit that the first appellate Court is absolutely unjustified in reversing the judgment and decree of the trial Court as the suit was not maintainable under Section 257 of the Chhattisgarh Land Revenue Code, 1959 (hereinafter called as "the Code"). 6. Mr. S.K. Agrawal, learned Government Advocate appearing for respondent No.11/State, would submit that the suit land is Government land and it has been reserved for grazing purpose. 7. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumscription. Answer to substantial question of law No.1:- 8. Admittedly, the plaintiffs' representative suit was for declaration of title and recovery of possession of suit land from the private defendants. The State Government was added as party defendant by order dated 31.1.2001. The trial Court has clearly held that no relief has been sought against the State Government and accordingly, decided the issue and dismissed the suit holding that the suit land is Government land reserved for grazing purpose, though the first appellate Court has partly modified the decree, but in sum and substance, the first appellate Court has also held that the suit land is Government land reserved for grazing purpose, but further held that villagers of said village are owner and possession holder. 9. A careful perusal of plaint would show that no relief has been sought by the plaintiffs against the State Government, therefore, service of notice under Section 80 of the CPC was unnecessary before filing the suit. Answer to substantial question of law No.2:- 10. Section 257 (1) (a) of the Code states as under:- "257. 9. A careful perusal of plaint would show that no relief has been sought by the plaintiffs against the State Government, therefore, service of notice under Section 80 of the CPC was unnecessary before filing the suit. Answer to substantial question of law No.2:- 10. Section 257 (1) (a) of the Code states as under:- "257. Exclusive jurisdiction of revenue authorities- Except as otherwise provided in this Code, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters:- (a) any decision regarding any right under subsection (1) of Section 57 between the State Government and any person;" Section 257 (1) (a) of the Code was inserted in the State of Chhattisgarh w.e.f. 19.8.2013, whereas suit was instituted before the trial Court on 17.5.96 much prior to insertion of such provision in statute book, as such, this bar is not attracted at all particularly no decision under Section 57 (2) of the Code was challenged in civil suit and suit has rightly been dismissed and the first appellate Court has not committed any illegality in affirming the judgment and decree of the trial Court. 11. The trial Court as well as the first appellate Court both have dismissed the suit, but the first appellate Court after dismissing the appeal in para-21 of the impugned judgment observed as under:- ^^21- vr% mijksDr vk/kkj ij ÁLrqr vihy nkok Áekf.kr ugha gksus ls lO;; fujLr fd;k tkrk gS vkSj fuEu U;k;ky; ds fMØh ds vuqrks"k iSjk esa fof/kd =qfV gksus oknhx.k] tks xzke dlsdsjk ds Áfrfuf/k gSa] ds i{k esa vihykFkhZx.k ds fo:} fuEukuqlkj vkKfIr ,oa fMØh fn;k tkrk gS %& 01- oknHkwfe [kljk uEcj&458] 455 ,oa 464 jdck Øe'k 1-25 gsDVs;j] 1-32 gsDVs;j ,oa 0-32 gsDVs;j fLFkr xzke dlsdsjk] xkao ds leLr O;fDr;ksa dh pkjkxkg Hkwfe gS] ftlds leLr xzkeoklh Lokeh vkSj dCtk/kkjh gSa vkSj muds vke fuLrkj dh Hkwfe gS] ysfdu 'kklu ds fgrksa ij dksbZ foijhr ÁHkko ugha iM+sxkA** 12. Since the suit land is admittedly and undisputedly government land reserved for grazing purpose, both the parties are not entitled for any relief. The first appellate Court has not held the plaintiffs to the title-holder, but held that it is grazing land of all the villagers and land reserved for aam nistar of the villagers, as such, the Collector, Mahasamund is at liberty to proceed in accordance with law as held by the trial Court and to ensure that land is used for grazing purpose as held by two Courts below. A copy of this judgment be sent to the Collector, Mahasamund for needful action. 13. For the foregoing reasons, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own costs. 14. A decree be drawn-up accordingly.