Chattisgarh High Court
Bhartho vs Khaddu (Died) Through Legal Heirs- on 22 October, 2024
1
2024:CGHC:41612
Digitally
NAFR
signed by
REKHA SINGH
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 124 of 2011
Bhartho S/o Nando, Aged About 50 Years R/o Village Kachhar, Police
Station And Tahsil Lundra, District Surguja (Chhattisgarh), District :
Surguja (Ambikapur), Chhattisgarh
... Appellant/Plaintiff
versus
1 - Khaddu (Died) Through Legal Heirs- Nil
1.1 - (A) Septu Ram S/o Late Bhartho, Aged About 48 Years R/o Village
Rewai, Post Dumardih, Tahsil Lundra, District Surguja Chhattisgarh.,
District : Surguja (Ambikapur), Chhattisgarh
1.2 - (B) Rohni W/o Nanka, Aged About 50 Years R/o Village Rewai, Post
Dumardih, Tahsil Lundra, District Surguja Chhattisgarh., District : Surguja
(Ambikapur), Chhattisgarh
1.3 - (C) Smt. Sadal W/o Ghuran, Aged About 45 Years R/o Village
Bujwar, Post Lundra, Tahsil Dhourpur, District Surguja Chhattisgarh.,
District : Surguja (Ambikapur), Chhattisgarh
1.4 - (D) Smt. Gundari W/o Harbar, Aged About 40 Years R/o Village
Jargim, Tahsil Shankargarh, District Balrampur Ramanujganj
Chhattisgarh., District : Balrampur, Chhattisgarh
2 - State Of Chhattisgarh Through Collector, Surguja, Ambikapur, District
Surguja Chhattisgarh ----Respondents/Defendants
(Cause-title taken from Case Information System) For Appellant/Plaintiff : Mr. Shubhank Tiwari, Advocate holding the brief of Mr. Manoj Paranjpe, Advocate For LR's of respondents/ : Mr. Nishikant Sinha, Advocate defendants No.1(A) to 1(D) For State/Respondent No.2 : Mr. Pranjal Shukla, Panel Lawyer -2- Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 22.10.2024 Heard.
1) The appellant/plaintiff has challenged the judgment and decree passed by the learned Third Additional District Judge (F.T.C.) Surguja (Ambikapur), District Surguja (C.G.) in Civil Appeal No.24-A/2010 dated
23.02.2011 whereby the appeal preferred by the plaintiff was dismissed and the judgment and decree passed by the learned Trial Court was affirmed.
2) This appeal was admitted for hearing vide order dated 08.02.2021 on the following substantial question of law:-
"Whether both the Courts below are justified in dismissing the suit of the plaintiff holding that the suit filed by the plaintiff is barred by Section 257(l-1) of the Chhattisgarh Land Revenue Code, by recording a finding which is perverse to the record ?"
3) The plaintiff filed a civil suit for declaration of title and permanent injunction inter alia on the ground that the suit property bearing Survey No.83 area 1.55 acres and Survey No.87 area 1.13 acres situated at Village-Ravai, Lundra, District Surguja was purchased by the plaintiff through a registered sale deed dated 11.02.1966 from the father of defendant No.1/Aghanu. The possession was also handed over to the plaintiff and the name of the plaintiff was entered into the revenue records.
Defendant No.1 moved an application before the Sub-Divisional 3 Officer (Revenue), Ambikapur on 26.12.1990 to the effect that the suit property was mortgaged for consideration of Rs.1,000/- and by playing fraud, a sale deed was executed. The Sub-Divisional Officer (Revenue) after affording due opportunity of hearing passed an order in favour of defendant No.1 on 30.11.1995. Against the order passed by the Sub- Divisional Officer (Revenue), an appeal was preferred by the plaintiff before the Collector which was dismissed vide order dated 01.07.1996, therefore, the plaintiff filed the civil suit.
4) Defendant No.1 filed a written statement and denied the plaint averments. A stand was taken by defendant No.1 that the Civil Court has no jurisdiction to entertain the civil suit and the same is barred by Section 257(l-1) of the Chhattisgarh Land Revenue Code, 1959 (for short 'the Code of 1959'). It is stated that the Sub-Divisional Officer (Revenue) and the Collector have passed a well-reasoned order and there is no jurisdictional error. It is also alleged that the sale deed executed by the plaintiff was obtained by playing fraud.
5) Learned Trial Court framed issues and after appreciation of oral and documentary evidence, dismissed the suit vide judgment and decree dated 23.09.2010. Against the judgment passed by the Trial Court, the first appeal was preferred by the plaintiff which was also dismissed holding that the order passed by the Revenue Authority cannot be questioned before the Civil Court.
6) Mr. Tiwari, learned counsel appearing for the plaintiff would argue that defendant No.1 belongs to the 'Kissan' caste which is not a notified Scheduled Tribe either under Section 165 of the Code of 1959 or the -4- Constitution (Scheduled Tribes) Order, 1950 pertaining to scheduled tribes of the State of Chhattisgarh. He would further submit that the learned Courts below have recorded findings against the plaintiff on the ground that the Sub-Divisional Officer in its order has observed that the caste 'Kissan' comes sub-caste of 'Nagesia'. He would also submit that the suit filed by the plaintiff was not barred according to the provisions of Section 257 (l-1) of the Code of 1959. The issue involved before the Court below was whether the Sub-Divisional Officer and the Collector rightly held that defendant No.1 was a member of scheduled tribe. In support of his submissions, he placed reliance on the judgment passed by the Coordinate Bench of this Court in the matter of Dhanajiram Vs. Praveen Kumar, 2014 (2) CGLJ 334 and Mohd. Mustafa and another Vs. Ramapati and others, First Appeal No.374 of 1998 wherein it is held that the civil suit was not barred.
7) In the matter of Dhanajiram (supra), the Coordinate Bench while dealing with a similar issue from paras 6 to 9 held as under:-
"6.The provision of section 257(l-1) of Code reads thus:
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:
XXX (l-1) any matter covered u/s 170B.
It entails special bar on the jurisdiction of the Civil Court to entertain a dispute which requires to be decided by the Sub Divisional Officer u/s 170B of the Code.
7. The short question that arises for consideration as to what extent in a provision of exclusive jurisdiction any interference can 5 be made by the civil court. The Supreme Court in the case of Dhulabhai and Others Vs. The State of Madhya Pradesh and Another,
(i) Where the statute gives a finality to the orders of the special Tribunals the civil courts'' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(ii) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(iii) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(iv) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(v) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected a suit lies.
(vi) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(vii) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
-6-
8. The same principles are again enunciated by the Supreme Court in the case of State of Andhra Pradesh Vs. Manjeti Laxmi Kantha Rao (D) By L.rs. and Others, Dhulabhai and Others Vs. The State of Madhya Pradesh and Another,
5. The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided u/s 9 of the CPC but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try a civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai v. State of M.P., it was noticed that where a statute gives finality to the orders of the Special Tribunals, jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
9. Thus, in such cases civil court has to see only to the extent whether basic fundamental principles of the judicial process have been followed or not by the competent authority while passing the order impugned and the jurisdiction of the civil Court is limited as laid down in the case of Dhulabhai AIR 1969 SC 78 : (1968) 3 SCR 662 (supra) and case must fall within the parameter of the tests mentioned in case of Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, State of Andhra Pradesh Vs. Manjeti Laxmi Kantha Rao (D) By L.rs. and Others.
8) In the matter of Mohd. Mustafa (supra), the Coordinate Bench while dealing with the dispute between the caste 'Kissan' and 'Nagesia' held in para 16 as under:-
"16.In view of the aforesaid legal proposition, this Court has no hesitation to hold that the finding of the SDO by holding the Kissan to be within the definition of Nagesia cannot be given effect to and Kissan word has to be read independently without any influence by any other list as otherwise it would amount to defeat the spirit of Article 342 of the Constitution of India."
9) On the other hand, learned counsel appearing for defendant No.1/respondent No.1 would oppose the submissions made by Mr. Tiwari. He would submit that the jurisdiction of the civil Court is barred 7 according to the provisions of Section 257(l-1) of the Code of 1959. He would contend that the Civil Court has jurisdiction to see only to the extent whether basic fundamental principles of the judicial process have been followed or not by the competent authority while passing the order impugned and jurisdiction of the Civil Court is limited as laid down in the case of Dhulabhai And Others vs The State Of Madhya Pradesh And Another, 1969 AIR SC 78. He would further contend that in the dispute with regard to the caste of defendant No.1, the competent authority was the High Power Caste Scrutiny Committee. He would also submit that the plaintiff ought to have approached the High Power Caste Scrutiny Committee for determination of caste of defendant No.1. He would further argue that the issue raised before the learned Civil Court was whether the Sub-Divisional Officer (Revenue) has followed the due procedure of law while passing the order under Section 170-B of the Code of 1959 and therefore, the learned Courts below in categorical terms held that the dispute with regard to caste of defendant No.1 cannot be decided in civil suit. He would lastly submit that the present appeal filed by the plaintiff deserves to be dismissed.
10) Mr. Pranjal Shukla, learned Panel Lawyer appearing for State/respondent No. 2 would support the judgment passed by the learned Courts below.
11) I have heard learned counsel for the parties and perused the record with utmost circumspection.
12) The plaintiff in its plaint has pleaded that a sale deed was executed by the father of defendant No.1 in favour of the plaintiff on -8- 11.02.1966. The plaintiff got possession of the suit property. An application was moved by defendant No.1 under Section 170-B of the Code of 1959 for reversion of the land on the ground that though the suit property was mortgaged by his father but fraudulently a sale deed was executed. A case was registered by the Sub-Divisional Officer (Revenue) on 07.12.1990. A notice was issued to the plaintiff. The plaintiff appeared before the Sub-Divisional Officer (Revenue) on 25.01.1991. On 17.03.1992, a reply was filed by the plaintiff. The statement of the plaintiff was recorded on 31.03.1992. On 14.09.1994, defendant No.1 examined his witnesses. The witnesses were cross- examined. A report was called with regard to the caste of defendant No.1 and it was submitted on 27.03.1995. The parties advanced their arguments and thereafter, an order was passed on 30.11.1995. The Sub- Divisional Officer (Revenue) in its order recorded a finding that in Surguja District, the caste 'Kissan' comes within the definition of 'Nagesia' tribe as held by the Board of Revenue and the High Court and therefore, passed an order for reversion of land.
13) The plaintiff filed revenue records to substantiate his claim. The plaintiff examined himself and stated that he belongs to the 'Mahkool' caste and is a member of the scheduled tribe whereas defendant No.1 belongs to the 'Kissan' caste.
14) Defendant No.1 examined Septu Ram (DW1), who repeated the contents made in the written statement. He stated that the 'Kissan' caste is not a caste rather it is a title. He stated that his caste is 'Nagesia'.
15) Jhulan (DW2) also stated that the castes 'Kissan' and 'Nagesia' 9 belong to the same caste and they perform marriage in each other's families.
16) Bagru (DW3) has supported the case of defendant No.1.
17) An appeal was preferred by the plaintiff before the Collector but the same was dismissed.
18) The plaintiff contested the case before the Sub-Divisional Officer (Revenue) and the Collector making submissions on the ground that defendant No.1 belongs to the 'Kissan' caste and is not a notified scheduled tribe therefore, provisions of Section 170-B of the Code of 1959 would not attract. The Revenue Court after appreciating the material available on record passed an order in favour of defendant No.1.
19) In the Civil suit, the plaintiff had the liberty to challenge the procedure followed by the revenue authorities while deciding the case under Section 170-B of the Code of 1959.
20) In the matter of Dhanajiram (supra), the Coordinate Bench after considering the judgment passed in the matter of Dhulabhai (supra) has held that the civil court has to see only to the extent whether basic fundamental principles of the judicial process have been followed or not by the competent authority while passing the order impugned.
21) Though in the matter of Mohd. Mustafa (supra), the Coordinate Bench has held that the Sub-Divisional Officer committed an error of law in holding the 'Kissan' caste to be within the definition of 'Nagesia' and the same would amount to defeating the spirit of Article 342 of the -10- Constitution of India.
As held in the matter of Dhulabhai (supra), the Civil Court has limited jurisdiction to try a civil suit where the jurisdiction of the Civil Court is barred under any provisions of law. As per the provisions of Section 257(l-1) of the Code of 1959, the jurisdiction of the Civil Court is barred. The Civil Court could have seen only to the extent whether basic fundamental principles of the judicial process have been followed or not by the competent authority.
22) The issue with regard to the social status of a person cannot be decided by a Civil Court and only the High Power Caste Scrutiny Committee is empowered in this regard as held by the Hon'ble Supreme Court in the matter of Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and others, 1994(6) SCC 241.
23) Section 257(l-1) of the Code of 1959 is reproduced herein below for reference:-
"S.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:
XXX (l-1) any other covered under Section 170-B;"
24) From a perusal of the procedure followed by the Sub-Divisional Officer (Revenue), it cannot be held that the Revenue Authority has not complied with the principles of natural justice. 11
25) The plaintiff ought to have approached the High Power Caste Scrutiny Committee for notification of the caste and social status of defendant No.1. Therefore, in the opinion of this Court, the learned Courts below have not committed any error of law. The bar provided under Section 257(l-1) of the Code of 1959 was rightly applied by the Courts below and thus, the substantial question of law is decided in negative against the plaintiff. Consequently, the present appeal fails and is hereby dismissed. No order as to cost(s).
26) A decree be drawn accordingly.
Sd/-
(Rakesh Mohan Pandey) Judge Rekha