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Madhya Pradesh High Court

Shabd Singh Kirar vs Kusum Devi Kirar on 18 April, 2017

Author: S.K.Awasthi

Bench: S.K.Awasthi

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                                       Civil Revision No.48/2015

          HIGH COURT OF MADHYA PRADESH
                       BENCH AT GWALIOR
                           SINGLE BENCH
              BEFORE JUSTICE S.K.AWASTHI
                    Civil Revision No.48/2015
                          Shabd Singh Kirar
                                   Versus
                    Kusum Devi Kirar & Others
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Shri Sankalp Sharma, learned counsel for the applicant.
Shri S.S.Rajput, learned counsel for the respondent
No.1.
None for the respondent No.2.
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                                ORDER

(18.04.2017) The present civil revision is directed against the order dated 30.04.2015 passed by Third Additional Judge to the Court of First Civil Judge Class-II, Morena application preferred by the applicant/defendant under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ( in short, CPC) has been dismissed.

2. The suit has been filed by the present respondents No.1/plaintiff seeking declaration that she is the owner and possession holder of the disputed land alongwith defendant no.1 and the order of the mutation in respect to this land passed by the Revenue Court is null and void and further, permanent injunction against the defendant No.1/ (applicant) has been sought.

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3. Upon filing of the suit, the present applicant/defendant No.1 was invited to file their Written Statement. Rather than presenting the written statement the defendant No.1 filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the plaintiff has filed the present suit in contrary to the Section 34 of Specific Relief Act. As per the said provision, the plaintiff was duty bound to claim the entire relief that was available to her. She ought to have sought possession as well as partition of the suit property amongst the relief as the plaintiff is neither in possession of the sold property nor she has claimed the partition of the said property. She has also not valued the suit appropriately and has not paid the court fees as per the market value of the alleged his property. The plaintiff by way of this suit is making an attempt to rectify land records for which a specific procedure has already provided under the M.P. Land Revenue Code (in short 'MPLRC') and it is well settled principle of law that where the specific provision is provided the remedy under the general law is barred.

4. The respondent No.1/plaintiff has denied all the contentions of the applicant/defendant No.1 in his reply to above application and stated that

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the suit is not barred by law, the suit has been properly valued and proper court fees has been paid. The Revenue Court has no power for granting declaration and injunction. Therefore, the present suit is maintainable and she has prayed for dismissal of the application.

5. After hearing both the parties, the application was dismissed by the learned trial Court which is subject matter to challenge before this Court.

6. Learned counsel for the applicant submitted that the plaintiff/respondent No.1 has only sought declaration and title of the share i.e. falling to the share of her husband but she has failed to seek the partition of the property so as to subsequently claim the possession of the declared share of the suit property. Therefore, looking to the provision of Section 34 of the Special Relief Act, the present suit is not maintainable because the plaintiff has not claimed the entire relief i.e. is available to her and brought the suit for the correction of entries of a land which falls under the category of agricultural land and any such change can only be made by the Revenue Court as per the MPLRC. Thus, Civil Court has no jurisdiction which is precluding the jurisdiction of the civil

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Courts.

7. The learned counsel for the respondents supported the reasoning given by the trial Court in the order dated 30.04.2015 and prayed that the revision application should be dismissed.

8. I have given my anxious consideration to the submissions advanced by the parties and have carefully examined the documents filed alongwith the present revision petition. From perusal of the plaint, it appears that plaintiff has filed the suit for declaration and permanent injunction of disputed land. As per the averments in the plaint, she is in possession of the disputed property, therefore, she does not require to seek relief of possession. For the purpose of partition of the agricultural land, the parties can apply for the partition before the Revenue Court under Section 164 of MPLRC.

9. The plaintiff has not paid any relief for correction of the entries of agricultural land. She has prayed only for the declaration that the distribution has been recorded in the revenue record by the entry No.55/2006-07 is bad in law and should be set aside.

10. The Hon'ble Apex Court in the case of Ramkanya Bai and another vs. Jagdish and others, (2011) 7 SCC 452, has categorically observed with respect to the scope of Section 257

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of MPLRC and the orders which fall under the exclusive jurisdiction of the Revenue Authorities. For ready reference, the relevant portion is reproduced below :-

"21. Section 257 relates to the exclusive jurisdiction of the Revenue Authorities. Any statutory provision ousting the jurisdiction of the civil courts should be strictly construed. A suit for enforcement of an easementary right or for a declaration that the defendant does not have any easementary right over the plaintiff's property or a suit for injunction to restrain a defendant from interfering with the possession of the plaintiff or exercising any easementary right over the plaintiff's property, is not barred by the Code. Such suits do not fall under any of the excluded matters enumerated in clauses (a) to (z-2) of Section 257 of the Code.

22. Section 257, no doubt, also provides that no civil court shall entertain any suit instituted to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer is empowered to determine by the provisions of the Code. But this is subject to the opening words of the section "except as otherwise provided in this Code or in any other enactment for the time being in force"."

11. If the facts of the present case are examined in the light of the observations made by the Hon'ble Supreme Court and on perusal of the list enumerated under Section 257 of the MPLRC, I have no hesitation in holding that the order

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regarding which the civil suit has been filed seeking declaration does not fall within any of the categories recognized under clauses (a) to (z-

2) of Section 257 of the MPLRC. As per the contention in respect to the proper valuation and payment of court fees concerned, the applicant/ defendant No.1 has not stated that in what manner valuation is not proper and this point has not been challenged in the present revision petition.

12. In view of the aforesaid, the revision application is dismissed being devoid of merits. The stay order dated 04.08.2015 is hereby vacated. No order as to costs.

A copy of this order be sent to the trial Court for information.

(S.K.Awasthi) Judge AK/-