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2022 DIGILAW 238 (CHH)

Bhagirathi S/o Sadhwal v. Bodhan S/o Gangaram

2022-05-12

NARENDRA KUMAR VYAS

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JUDGMENT : NARENDRA KUMAR VYAS, J. 1. The second appeal has been filed by the appellant/plaintiff under Section 100 of the C.P.C. against judgment and decree dated 09.08.2012 (Annexure A/1) passed by First Additional District Judge, Raigarh (C.G.) in Civil Appeal No. 35A/2011 (Bhagirathi Vs. Bodhan and Another) affirming the judgment and decree dated 15.09.2011 passed by First Civil Judge Class-II, Raigarh (C.G.) in Civil Suit No. 63A/2011 (Annexure A/2). 2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 63A/2011 which was filed for declaration of title and permanent injunction. 3. The present second appeal has been admitted by this Court vide its order dated 19.07.2021 on the following substantial question of law: “Whether both the Courts below are justified in holding that the suit for declaration of title and permanent injunction is barred by Section 18(1) of the Land Acquisition Act, 1984 by recording a finding perverse to the record?” 4. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed a civil suit for declaration of title and for grant of permanent injunction mainly contending that the land bearing Khasra No. 134 area admeasuring 2.023 Hectare situated at Village- Gervani, Patwari Halka No. 15, Tahsil and District-Raigarh (C.G.) is agricultural land and has been recorded in the name of the plaintiff. The lease of the suit property was allotted to him by Naib Tahsildar/Allotment Officer, Raigarh vide order dated 07.02.1982 and since then he is owner of the suit property. Defendant No. 1 has filed an appeal before Additional Collector, Raigarh bearing Appeal Case No. 48/A-06/07-08 and on the basis of illegal order passed by the Additional Collector, Raigarh on 09.04.2008, defendant No. 1 has recorded his name in the said land. 5. Defendant No. 1 raised objection regarding recording of the name of the plaintiff in Schedule-A of the suit property and filed an application under Section 109 and 110 of the Land Revenue Code before Gram Panchayat-Gervani for mutation of the land in his name, which was rejected vide order dated 18.07.2006. Against that, defendant No. 1 has preferred first appeal before Sub-Divisional Officer, Raigarh, which has been rejected vide order dated 26.02.2007 affirming the order of Naib Tahsildar, Raigarh dated 18.07.2006. Against that, defendant No. 1 has preferred first appeal before Sub-Divisional Officer, Raigarh, which has been rejected vide order dated 26.02.2007 affirming the order of Naib Tahsildar, Raigarh dated 18.07.2006. Against that, he has preferred second appeal before Collector, Raigarh and the Collector, Raigarh vide order dated 09.04.2008 without any jurisdiction, has rejected the order passed by the Additional Collector and directed for recording of the name of defendant No. 1. It has been further contended that the Additional Collector has no authority to pass order dated 09.04.2008 as per Section 44(2) of the Land Revenue Code. Against order the dated 09.04.2008 passed by the Additional Collector, the plaintiff preferred revision before Commissioner, Bilaspur, which has been rejected by Commissioner, Bilaspur and against that, he has preferred a revision before Board of Revenue, which is pending consideration. It has been further contended that in pursuance of the order passed by the Revenue Court, defendant No. 1 has recorded his name in the revenue record and also made an attempt to get compensation from the land acquisition as the said land is acquired by the State Government for Kelo Irrigation Project. It has been further contended that defendant No. 1 is threatening the plaintiff to take possession of the suit property, which may multiply the litigation. This has necessitated him to file present suit for declaring that the plaintiff is the sole owner of the suit property and defendant No. 1 be kindly restrained from interfering in the peaceful possession of the suit property. 6. Defendant No. 1 filed an application under Order 7 Rule 11 of the C.P.C. before Civil Judge Class-II mainly contended that the land has been acquired by the State Government for Kelo Irrigation Project and compensation has already been fixed to the tune of Rs. 28,39,064/- and he should fix proper court fee on the said valuation, failing which, the plaint is not maintainable. It has been further contended that the said land has been acquired by the Land Acquisition Officer, Raigarh and the said land acquisition proceeding has never been challenged by the plaintiff as per Section 18 of the Land Acquisition Act, 1894. 28,39,064/- and he should fix proper court fee on the said valuation, failing which, the plaint is not maintainable. It has been further contended that the said land has been acquired by the Land Acquisition Officer, Raigarh and the said land acquisition proceeding has never been challenged by the plaintiff as per Section 18 of the Land Acquisition Act, 1894. It has also been contended that the plaintiff through the present suit for injunction on the land which has been acquired by the Land Acquisition Officer, is not entitled to get the relief as sought, therefore, the civil suit filed by the plaintiff for grant of permanent injunction and declaration of the title over the suit property, is not maintainable and it is prayed for dismissal of the suit. 7. The plaintiff has filed reply to the application under Order 7 Rule 11 of the C.P.C. filed by defendant No. 1 mainly contending that defendant No. 1 has filed this application only to linger on the proceeding, therefore, this application may kindly be dismissed. 8. Learned trial Court vide order dated 15.09.2011 has allowed the application under Order 7 Rule 11 of the C.P.C. by recording finding that it is not disputed that the suit property has been acquired under the land acquisition proceeding as per Section 18(1) of the Land Acquisition Act, any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested, has not filed though in the present suit, the plaintiff has claimed compensation. From bare perusal of the plaint, it is quite vivid that the plaintiff has claimed in paragraph 9 of the plaint that after recording name in the suit property, defendant No. 1 is making attempt to get compensation and if the compensation is awarded to defendant No. 1, it will multiply litigation, therefore, he has filed suit. 9. From bare perusal of the plaint, it is quite vivid that the plaintiff has claimed in paragraph 9 of the plaint that after recording name in the suit property, defendant No. 1 is making attempt to get compensation and if the compensation is awarded to defendant No. 1, it will multiply litigation, therefore, he has filed suit. 9. Learned trial Court vide its order dated 15.09.2011 has dismissed the suit as not maintainable, in view of Order 7 Rule 11(d) of the C.P.C. Being aggrieved by the order passed by the learned trial Court, the plaintiff has filed first appeal before the learned First Appellate Court, which has also been rejected vide order dated 09.08.2012 by recording a finding that as per Section 18(1) of the Land Acquisition Act, the plaintiff should proceed as per remedy provided under Section 18(1) of the Land Acquisition Act, as such, there is no illegality or irregularity in the order passed by learned Court below and dismissed the appeal. 10. Being aggrieved by the orders dated 09.08.2012 and 15.09.2011, the appellant has preferred second appeal. The second appeal has been admitted by this Court on 18.07.2011 on the abovestated substantial question of law formulated by this Court. 11. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 12. The point to be determined by this Court is whether Section 18(1) of the Land Acquisition Act is applicable to the present facts and circumstances of the case or not? 13. Learned counsel for the appellant would submit that the finding recorded by the learned trial Court affirmed by the learned First Appellate Court is illegal as they have not considered the provisions mentioned under Section 18(1) of the Land Acquisition Act in its correct perspective. He would refer the judgment rendered by Hon'ble Punjab and Haryana High Court in Shyam Lal and Others vs. Sham Lal and Others, AIR 2007 P&H 89 wherein it has been held at paragraph 10, 11 and 12 as under: “10. A Division Bench of this Court in Malkiat Singh vs. Harnek Singh, 1992 (2) RRR 97, held that this Civil Court jurisdiction has not been excluded to determine the question of title or possession of the parties. The Land Acquisition Act does not debar the Civil Court jurisdiction except to the extent of the amount of compensation. 11. A Division Bench of this Court in Malkiat Singh vs. Harnek Singh, 1992 (2) RRR 97, held that this Civil Court jurisdiction has not been excluded to determine the question of title or possession of the parties. The Land Acquisition Act does not debar the Civil Court jurisdiction except to the extent of the amount of compensation. 11. Earlier, another Division Bench of this Court in Karnait Singh vs. Jagir Singh, AIR 1984 P&H 294 has held that the suit for recovery of the compensation amount is maintainable as the award is final so far as the Collector and the persons interested, as defined under the Land Acquisition Act, 1894, are concerned, but not so among the persons interested in the Land. It was held to the following effect: “From the above observations, it is clear that the award is final so far as the Collector and the persons interested are concerned, but it is not so among the persons interested in the land. The persons interested can get their dispute resolved either by asking the Collector to make a reference under Section 18 of the Act or by a separate suit. The same view had been expressed earlier in Hemanta Kumar Banerjee vs. Satish Chandra Banerjee, AIR 1941 Cal. 635, Hitkarini Sabha vs. Jabalpur Corporation and Shri Deo Sansthan Chinchwad vs. Chintaman Dharnidhar Deo Similar matter came up before me while sitting in single Bench in Jog Raj vs. Banarsi Dass, (1978) 80 PLR 258 : AIR 1978 P&H 189 . I also took the same view and held that a suit is maintainable for recovery of an amount under proviso to Section 31(2) of the Act.” 12. In view of the aforesaid judgments, I am of the opinion that the findings recorded by the Courts below that the Civil Court has no jurisdiction to try and entertain the present suit, is not sustainable in law. The award announced by the Collector in respect of acquisition of the land is conclusive as between the persons interested and the Collector in respect of the amount of compensation. But the jurisdiction of the Civil Court to entertain the dispute regarding entitlement of the said amount of compensation is not barred.” 14. The award announced by the Collector in respect of acquisition of the land is conclusive as between the persons interested and the Collector in respect of the amount of compensation. But the jurisdiction of the Civil Court to entertain the dispute regarding entitlement of the said amount of compensation is not barred.” 14. He would further refer the judgment rendered by Hon'ble Allahabad High Court in Badri Singh and Another vs. State of U.P. and Others, wherein it has been held at paragraph 19 and 20 as under: “19. Thus, substantial question of law as formulated above is answered in affirmative, in favour of the plaintiff/appellants and the civil suit for recovery of the compensation by the lawful owners of the land is maintainable as against the State as well as Private contesting respondents in whose name the award has been made. 20. Accordingly, the appeal is allowed. The judgment, order and decree of the Lower Appellate Court dated 10.5.77 passed by 1st Additional Civil Jude, Varanasi in Civil Appeal No. 16 of 1976, Ram Narain Singh vs. State of U.P. in so far as it holds that the suit of the plaintiff/appellants was not maintainable is set aside. Since the plaintiff/appellants have been held to be lawful owners of the land in dispute by both the Courts below and there is no independent appeal or cross-objection by the respondents, the suit stands decreed and the judgment, order and decree of the Trial Court dated 22.12.1975 is affirmed.” 15. He would further submit that the substantial question of law framed by this Court deserves to be answered in favour of the plaintiff and the matter may kindly be remanded back to the trial Court for deciding the matter afresh in accordance with law. 16. On the other hand, learned State counsel would submit that the impugned order passed by the learned trial Court and affirmed by the learned First Appellate Court is in conformity with the provisions under Section 18(1) of the Land Acquisition Act, as such, there is no illegality or irregularity in the impugned orders passed by both the Courts below and the substantial question of law deserves to be answered in negative against the plaintiff and would pray for dismissal of the second appeal. 17. Before adverting to the facts of the case, it is necessary for this Court to examine provisions of the Land Acquisition Act. 17. Before adverting to the facts of the case, it is necessary for this Court to examine provisions of the Land Acquisition Act. The Land Acquisition Act has been enacted to amend the law for the acquisition of land for public purposes and for Companies. Section 18 of the Act, provides for determining the amount of compensation to be made on account of acquisition of land for public purposes. Section 3(a) of the Act, 1984 provides that the expression land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Section 18 of the Act, 1894 provides for reference to Court and the procedure thereon. Section 18(1) provides that who can approach to the Court by way of reference. Section 18 (2) provides for ground on which objection to the award is taken. Section 18 of the Act, 1894 is extracted below: “18. Reference to Court: (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made: (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award. (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” 18. From bare perusal of the plaint at paragraph 9, it is quite clear that the plaintiff has mentioned in the plaint that defendant No. 1 after getting recorded his name in the revenue record, attempted to get the compensation, which is to be payable in pursuance of land acquisition proceeding and also to get possession in the suit property, which has necessitated the plaintiff to file the suit. The suit was filed because of the compensation awarded by the Land Acquisition Officer as the land has been acquired by the said Land Acquisition Officer for State Government for Kelo Irrigation Project. The defendant has specifically pleaded in his application under Order 7 Rule 11 of the C.P.C. about jurisdiction and maintainability of the case before the trial Court saying that the plaintiff is making attempt to get amount of compensation which is payable to the owner of the land, therefore, the suit was not maintainable. Section 18(1) of the Act, 1894 also provides that if there is dispute with regard to the amount to be paid to whom or the aforesaid amount of compensation among the person interested can be filed before the competent court. The person interested has been defined in the Land Acquisition Act. Section 3(b) provides that the expression “person interested” includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. 19. The issue with regard to maintainability of the suit for declaration and injunction has come up for consideration by the Hon’ble the Supreme Court and Hon’ble the Supreme Court in case of Rajasthan Housing Board and Others vs. Chandi Bai and Others [Civil Appeal No. 11912/2018 decided on 07.12.2018] has examined the entire law on the issue of jurisdiction of the Civil Court with regard to the land acquisition proceeding and has categorically held that the remedy to claim a compensation is by seeking reference under Section 18 or 30 of the Land Acquisition Act or to file against person who has taken the compensation for recovery on the basis of title. Hon’ble the Supreme Court the aforesaid case has held at paragraphs at 17, 18, 19 and 21 as under: “17. In Commissioner, Bangalore Development Authority vs. Brijesh Reddy, (2013) 3 SCC 66 , the Court held that even a civil suit for permanent injunction is not maintainable in view of the provisions of the Land Acquisition Act. The Court observed: “18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. The Court observed: “18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power.” (Emphasis supplied) 18. In Mutha Associates vs. State of Maharashtra, (2013) 14 SCC 304 , the Court has observed: “21. The position is no different in the instant case. The appellant owners or Mutha Associates, the builders did not file any objections or move their little finger till the making of the award by the Collector. Instead of filing of the objections, opposing the proposed acquisition before the Collector and seeking redress at the appropriate stage they remained content with making representations to the Minister which was not a remedy recognised by the statute. It was only after the Collector had made his award and after notice for taking over possession was issued by the appellants that they rushed to the civil court with a suit in which too they did not assail the validity of the declaration under Section 26(2) of the MRTP Act read with Section 6 of the Land Acquisition Act. The remedy by way of a suit was clearly misconceived as indeed this Court declared it to be so in State of Bihar vs. Dhirendra Kumar, (1995) 4 SCC 229 . The appellants could and ought to have challenged the acquisition proceedings without any loss of time. Having failed to do so, they were not entitled to claim any relief in the extraordinary jurisdiction exercised by the High Court under Article 226 of the Constitution.” (Emphasis supplied) 19. The appellants could and ought to have challenged the acquisition proceedings without any loss of time. Having failed to do so, they were not entitled to claim any relief in the extraordinary jurisdiction exercised by the High Court under Article 226 of the Constitution.” (Emphasis supplied) 19. In H.N. Jagannath vs. State of Karnataka, (2018) 11 SCC 104 , the Court observed: “17. The Division Bench has erroneously conferred jurisdiction upon the civil court to decide the validity of the acquisition. This Court has repeatedly held in a number of judgments that, by implication, the power of a civil court to take cognizance of such cases under Section 9 CPC stands excluded and the civil court has no jurisdiction to go into the question of validity under Section 4 and declaration under Section 6 of the Land Acquisition Act. It is only the High Court which will consider such matter under Article 226 of the Constitution. So, the civil suit, per se is not maintainable for adjudicating the validity or otherwise of the acquisition notifications and proceedings arising therefrom. This Court in BDA vs. Brijesh Reddy while considering the acquisition notifications issued under the BDA Act observed thus: (SCC pp. 71-72, Para 18) “18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power.” 18. A similar view is taken by this Court in other cases. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power.” 18. A similar view is taken by this Court in other cases. The judgments of this Court in Laxmi Chand vs. Gram Panchayat, Kararia, (1996) 7 SCC 218 , Girish Vyas vs. State of Maharashtra, (2012) 3 SCC 619 , State of Bihar vs. Dhirendra Kumar, (1995) 4 SCC 229 , BDA vs. K.S. Narayan, (2006) 8 SCC 336 and Mutha Associates vs. State of Maharashtra (2013) 14 SCC 304 , considered the acquisition proceedings relating to the lands which were acquired either under the provisions of the BDA Act or under the Land Acquisition Act. In all these judgments, similar question arose i.e. as to whether the civil court had jurisdiction to decide the validity of the acquisition notifications or not.” (Emphasis supplied) 21. The remedy of the respondents, if any, was to claim a compensation from Doonga by seeking reference under Section 18 or Section 30 of the Land Acquisition Act or to file a civil suit against him to recover compensation on the basis of title. A civil suit to invalidate the land acquisition is not maintainable. The trial court has committed grave error of law while decreeing the suit. At least we expected the High Court to be careful in following the aforesaid catena of judgments passed by this Court in which law has been laid down succinctly.” 20. Now coming to the facts of the case, it is quite vivid that the plaintiff has categorically claimed title over the suit property which has been acquired by the State Government and compensation has been fixed and in paragraph of the plaint, he has stated that if amount of the compensation is paid to defendant No. 1, it will multiply the litigation. Thus, it is evident that he is the person interested to get compensation arising of the land acquisition proceeding, as such he falls within the category of person to whom it is payable. Thus, the plaintiff should have filed reference claiming that being title holder of the land, he is entitled to get compensation. Therefore, the remedy of making reference under Section 18 of the Land Acquisition Act is very much available to the plaintiff. 21. Thus, the plaintiff should have filed reference claiming that being title holder of the land, he is entitled to get compensation. Therefore, the remedy of making reference under Section 18 of the Land Acquisition Act is very much available to the plaintiff. 21. The Hon’ble Supreme Court in C. Doddanarayana Reddy (Dead) by LRs. and Others vs. C. Jayarama Reddy (Dead) by LRs. and Others, (2020) 4 SCC 659 has held at paragraph 28 as under: “28. Recently in another judgment reported as State of Rajasthan vs. Shiv Dayal, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: “When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar and Others vs. Dashrath Narayan Chilwelkar and Others, AIR 1943 Nagpur 117 ).” 22. Considering all the facts of the case, law laid down by Hon’ble the Supreme Court in Rajasthan Housing Board (Supra) and provisions of Section 18 of the Land Acquisition Act, I am of the view that the judgment and decree passed by the learned trial Court, affirmed by the First Appellate Court is legal and justified and does not warrant any interference by this Court. The substantial question of law framed by this Court is answered against the plaintiff as it is a concurrent finding of fact that the suit is not maintainable in view of the provisions contained in the Land Acquisition Act, 1894. Accordingly, second appeal is liable to be and is hereby dismissed. 23. No order as to costs. 24. A decree be drawn up accordingly.