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2024 DIGILAW 640 (MP)

State of Madhya Pradesh v. Ayodhya Bai

2024-09-27

GAJENDRA SINGH

body2024
ORDER : Gajendra Singh, J. This Civil Revision under Section 115 of the CPC is preferred challenging the legality of the order dated 07.07.2023 in RCSA/95/2017 passed by 6th Civil Judge Junior Division, Ujjain, whereby the application filed by the petitioners/defendants under Order 7 Rule 11 of the CPC (Annexure-A-2) has been rejected. 2. The facts in brief are that the respondent/plaintiff filed Civil Suit No. RCSA No.95/17 before the learned 4" Civil Judge, Class-IInd, Ujjain for the relief of declaration of title and permanent injunction in respect of the suit land bearing survey no. 136/2 area 0.836, 139/2/1 area 0.784, 147/2/1 area 1.431, 151/1 area 0.967, 222/3/2 area 0.136, 223/1/2 area 1.296, 228/1 area 0.794, 229/1/1 area 0.554, 327/ area 0.021, 380/1 area 0.021, 381/1 area 0.315, 382 area 0.125, 383 area 0.042 hectare total Survey No.13 area 7.042 hectare situated at village Ninamwasa Tehsil and Distt. Ujjain. The suit land was under Urban Ceiling therefore proceedings under Urban Ceiling Act were initiated against the original Bhumi Swami of the land namely Ayodhya bai and others. That as per the plaint allegation the present respondents were cultivating the said land in question and had also established a bricks kiln. It is further averred in the plaint that the name of the present respondent was mutated in the name of present respondent (Plaintiffs) by Tehsildar in Mutation case no. 18/A-46/1981-82. The said case was filed against the original Bhumi Swami and Tehsildar after recording evidence mutated the name of the present respondent. That, as per the averments in the plaint notice u/s 10(1) 10(5) and 10(3) of the Urban Land Ceiling Act, 1976 was issued against the original Bhumi Swami and possession of the land was taken in the 1999 on papers only and no physical possession was taken from the present respondent. 3. Petitioners/Defendants filed an application under Order 7 Rule 11 of CPC on 12.07.2022 for rejection of plaint on the ground that the jurisdiction of Civil Court is barred as per the judgment State of MP. Vs. Ghisalal , (2021) SCC Online SC 1098. 4. The application was opposed by the respondent plaintiffs vide reply dated 22.07.2022, copy of which has been brought on record vide Document No. 6177 of 2024. Counsel for the respondent/plaintiff opposed the petition referring to the documents Annexure-R-1 to Annexure-R-187 and relying on Gopal Jamdar (dead) through Lrs Vs. Vs. Ghisalal , (2021) SCC Online SC 1098. 4. The application was opposed by the respondent plaintiffs vide reply dated 22.07.2022, copy of which has been brought on record vide Document No. 6177 of 2024. Counsel for the respondent/plaintiff opposed the petition referring to the documents Annexure-R-1 to Annexure-R-187 and relying on Gopal Jamdar (dead) through Lrs Vs. State of M.P. and others, 2013(I) MPJR 250 , Bhudeo Singh Vs. State of Uttar Pradesh and others , AIR 1984 Allahabad 386, Bhourka Investment Private Ltd Vs. Competent Authority and others , 1998 (2) Vidhi Bhasvar 294, Sohan Singh and others Vs. State of M.P. and others , 2008 (3) MPLJ, 365, Sudhir Agrawal and another Vs. State of M.P. and others , 2004 (I)MPJR SN 42, Radheshyam and others Vs. Commissioner, Indore and another , 2008 (I) MPJR SN 8, Munshi Ram and others Vs. Delhi Administration , AIR 1968 SC 702 , Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Co-operative Housing Society Jaipur and others , AIR 2013 SC 1226 , Shantibai W/o Premlal and others Vs. State of M.P. and others , 2011(2) MPLJ 307 , Govind Prasad Yadav Vs. State of M.P. and others , 2011 (4) MPLJ 355 , Sunil Vs. State of M.P , 2015 (2) MPLJ 441 , Bhau Ram Vs. Janak Singh and others , 2012 (4) MPLJ 481 , P.V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy and another Vs. P. Neeradha Reddy and others etc. , 2015 SAR (Civil) 385 and State of M.P. Vs. Ghisilal , 2022 (2) MPLJ 587 . 5. Trial Court rejected the application on the ground that provisions of the Urban Land (Ceiling and Regulation) Act, 1976 has been repealed in the year 1999. Accordingly, the provisions of the Act, 1976 would be applicable to those cases regarding which cause of action has arisen prior to 17.02.2000, the date on which the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force. In this case, the cause of action prima facie arises on 15.09.2016 when Patwari and others threatened the plaintiffs. Accordingly, the facts of State of M.P. Vs. Ghisilal , (2021) SCC online SC 1098 are different from the facts of this case. In this case, the cause of action prima facie arises on 15.09.2016 when Patwari and others threatened the plaintiffs. Accordingly, the facts of State of M.P. Vs. Ghisilal , (2021) SCC online SC 1098 are different from the facts of this case. Additionally it was also recorded that the provisions of Urban Land (Ceiling and Regulation) Act applied to the land categorized as vacant land and the disputed land is an agricultural land and does not fall within the purview of Urban Land (Ceiling and Regulation) Act, 1976 and the factum of disputed land is vacant or not, disputed land being agricultural or diverted land cannot be decided on the basis of mere pleadings of plaint. To decide this question recording of evidence is necessary and that cannot be decided at this stage. 6. Challenging the legality of the impugned order this revision has been preferred on the ground that trial Court committed error in not holding that Civil suit filed by the present respondent is not related with the Urban Ceiling proceeding and also committed error in interpreting the Apex Court judgment in State of M.P. Vs. Ghisilal (supra). 7. Firstly, Court is referring the relevant paragraphs i.e 14 and 15 of the judgment State of M.P. Vs. Ghisilal , 2022 (2) MPLJ 587 is reproduced as under :- "14. The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 19763. We are totally in agreement with the aforesaid view taken by this Court. 15. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 19763. We are totally in agreement with the aforesaid view taken by this Court. 15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective." 8. The judgment of Gopal Jamdar (dead) through Lrs (supra) is to the effect that Urban Land Ceiling and Regulation Act, 1976 is not applicable to land used for agricultural purposes. Sudhir Agrawal and another (supra) is to the effect that if proceedings with regard to taking over of possession were not initiated then possession cannot be taken after the repeal of the Act of 1976 and Radheshyam and others (supra) is to the effect that possession cannot be said to have been taken, in accordance with law, if notice to possession on each and every person interested in the holding is not served. Shantibai Vs. State of M.P (supra) is to the effect that land mainly used for the purpose of agriculture in an urban agglomeration cannot be included within the ambit and scope of term "vancant land" under the Urban Land (Ceiling and Regulation) Act, 1976. Govind Prasad Yadav (supra) is to the effect that possession of the land in question was never taken from the petitioner then Section 3 of the Repeal Act will be triggered and set in motion and the proceedings under the Act of 1976 shall stand abated in favour of the petitioner. Sunil Vs. State of M.P . (supra) is to the effect that possession of the land in question has remained with petitioners through out and they were tilling land. Sunil Vs. State of M.P . (supra) is to the effect that possession of the land in question has remained with petitioners through out and they were tilling land. Accordingly, notice under Section 10(3) and (5) of he Urban Land (Ceiling and Regulation) Act, 1976 is liable to be quashed. In In Bhau Ram Vs Janak Singh (supra) and P.V. Guru Raj Reddy (supra) mentions that the averment in the plaint has to be seen and the plaint has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under the law and accordingly the averments in the plaints are being produced for examining the legality of the impugned order. 9. In Dahiben Vs. Arvind Bhai Kalyanji, Bhanusali (2020) 7 SCC 366 it is held that the test for exercising the power under Order VII Rule 11 of CPC is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. It is further held that it is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the Court would be justified in exercising the power under Order VII Rule 11 pf CPC. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. It is also held that the provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose. 10. Now the Court is examining the plaint in the light of above pronunciation of law. 11. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose. 10. Now the Court is examining the plaint in the light of above pronunciation of law. 11. Paragraph-3 of the plaint averments discloses that husband of the plaintiff, namely, Shri Narayan has filed the statement in the proceedings initiated under The Urban Land (Ceiling and Regulation) Act, 1976. Paragraph-4 of the plaint reveal that Shivnarayan challenged the Ceiling proceedings before the competent authority. Paragraph-4 of the plaint discloses that proceedings were challenged through appeal also. Paragraph-5 of the plaint discloses that Shivnarayan filed the appeal also and Paragraph- 6 of the plaint discloses that Shivnarayan participated in various proceedings and also presented appeals. The reference of Case No.130/1977-78 before the competent officer discloses that 'panchanama' of possession was prepared on 20.05.1986. 12. In Kapilaben Amalal Patel and others Vs. State of Gujarat and another , (2021) 12 SCC 95 it is held that, "the normal mode of taking possession is drafting the 'Panchnama 'in the presence of 'Panchas' and taking possession and giving delivery to the beneficiaries is accepted mode of taking possession of the land Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession". 13. The Supreme Court in the case of Tamil Nadu Housing Board Vs. A.Viswam (Dead) by LRs. reported in AIR 1996 SC 3377 has held as under:- "9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or 'Panchanam'a by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land." 14. Accordingly, the challenge on the ground that possession of the disputed land is with the petitioners/respondents does not survive and arguments does not succeeds that after 17.12.2000, the date on which Urban Land (Ceiling and Regulation) Repeal Act, 1999, the provisions of Uraban Land (Ceiling and Regulation) Act, 1976 does not apply to the disputed land in question. 15. Accordingly, the challenge on the ground that possession of the disputed land is with the petitioners/respondents does not survive and arguments does not succeeds that after 17.12.2000, the date on which Urban Land (Ceiling and Regulation) Repeal Act, 1999, the provisions of Uraban Land (Ceiling and Regulation) Act, 1976 does not apply to the disputed land in question. 15. Now we examine the rest of the arguments advanced on behalf of the respondent plaintiff. When the disputed land was the subject matter of Ceiling Proceedings then the remedy of appeal, revision before the designated appellate and Revisional Authority was available to the plaintiffs/respondents, but they cannot invoke the jurisdiction of Civil Court to try the suit regarding the suit land. Accordingly, when the jurisdiction of Civil Court is barred then the Civil Court cannot examine the questions that Urban Land (Ceiling and Regulation) Act, 1976 was not applicable to the suit land or notices were not issued to the present plaintiffs. Arguments advanced on behalf of the plaintiffs/respondents on the ground that the case of State of M.P. Vs. Ghisilal (supra) is distinguishable on the facts also does not succeed when the jurisdiction of trial Court is barred and plaintiffs/respondents cannot defend themselves on the basis of R.S.I.D.I Corporation Vs. S.S Co-operative House Society Jaipur , AIR 2013 SCC 1226 submitting that proceedings before the competent authority under Urban Land (Ceiling and Regulation) Act, 1976 were void ab initio. 16. Accordingly, in the light of State of M.P. Vs. Ghisilal (supra), Shri Mukund Rao Pohankar Vs. State of Madhya Pradesh , 2024 Latest Caselaw 21396 MP and Smt Shantibai and others Vs. State of M.P. and another judgment dated 24.04.2023 in Second Appeal No. 948 of 2014 before the High Court of Madhya Pradesh at Jabalpur the findings of Trial Court in rejecting the application under Order VII Rule 11 of CPC suffers from patent illegality and cannot be sustained. Proceedings before the trial Court is covered under Order VII Rule 11 (d) of the CPC, the Civil Revision is allowed and the order dated 07.07.2023 is set aside and the plaint is rejected under Order VII Rule 11 (d) of the CPC. No order as to costs.