Patna High Court
Sk. Halaluddin And Ors. vs Nabi Hasan And Ors. on 21 May, 1982
Equivalent citations: AIR1982PAT228, 1982(30)BLJR457, AIR 1982 PATNA 228, 1982 BLJR 457
JUDGMENT S.K. Choudhuri, J.
1. This second appeal by the defendants first party is directed against the concurrent judgments of the Courts below decreeing the plaintiffs' suit.
2. In order to appreciate the points raised in this appeal, the relevant facts which are not in dispute are these.
The defendants second party purchased the disputed land from one Sirajuddin on 6th Sept., 1968. On the 23rd Nov., 1968, the defendants first party who are the appellants before this Court filed a petition under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) (hereinafter called 'the Act') before the Deputy Collector Incharge Land Reforms CD. C. L. R.' for short) claiming themselves to be the adjacent raiyats of the land in question. In this application, Sirajuddin the vendor and the defendants second party the purchasers under the document dated 6th Sept., 1968, were the opposite party. This application was registered as Case No. 35 of 1968, and it was rejected by the D. C. L. R. on 8th April, 1969. It may be stated here that on 8th Nov., 1968, the defendants second party executed a Ladavi deed in favour of Sagiruddin who was their father. The said Ladavi deed was registered on 2nd Dec., 1968.
Aggrieved by the decision rejecting the application under Section 16 (3) of the Act as aforesaid, the defendants first party filed an appeal before the Sub-Divisional Officer which was registered as Appeal Case No. 10-CA of 1969-70. The appeal was allowed by the Sub-Divisional Officer by his order dated 24th Sept., 1969, and he directed the defendants second party to execute a deed of reconveyance in favour of the defendants first party. The revenue appellate authority held that Sagiruddin was not a raiyat within the meaning of Section 2 (k) of the Act, as the Ladavi deed did not confer any right upon him. It would be relevant to state here that the stand of the defendants second party before the Revenue authority was that they were Benamidars of their father Sagiruddin It appears that thereafter the party aggrieved did not move the higher revenue authorities, but Sagiruddin the father of the defendants second party chose to file the present suit on the 10th October, 1969. The sole plaintiff died during the pendency of the suit, and the defendants second party were substituted in his place.
3. The plaintiffs case was that he not being a party at any stage before the revenue authorities and he being the real purchaser of the property in question, the orders passed by these authorities were nullity, without jurisdiction and not binding upon the plaintiff. The defence, inter alia, was that this Civil Court has no jurisdiction to try the suit and Section 43 of the Act is a complete bar for a civil suit.
4. The trial Court held that the plaintiff was not a party before the revenue authority and, therefore, the orders passed by them were not binding upon him. It held that the original plaintiff Sagiruddin was the real purchaser of the disputed land and in spite of the fact that it was brought to the notice of the Deputy Collector Incharge Land Reforms and the appellate authority namely, the Sub-Divisional Officer, he was not made a party and, therefore, the orders passed by them were without jurisdiction. It also held that Section 43 of the Act was not a bar to the maintainability of the suit. Accordingly, it decreed the suit. The learned District Judge in appeal upheld the judgment of the trial Court and dismissed the appeal. Hence the present second appeal.
5. The first question for determination in the present appeal is as to whether Section 43 of the Act was not a bar for a civil suit.
6. Mr. A. K. Samaiyar learned Counsel appearing on behalf of the appellants contended that Section 43 of the Act makes complete bar upon the Civil Court to entertain the present suit. Mr. Harendra Prasad, learned Counsel appearing on behalf of the plaintiffs-respondents on the other hand supported the judgments of the Courts below by contending that Section 43 is not attracted. In order to appreciate the arguments of the parties, it is necessary to read Section 43 of the Act. It reads thus :--
"43. Bar of jurisdiction of Civil Court.--(1) Save and except as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector.
(2) No order of the Board of Revenue, the appellate authority or the Collector made under this Act, shall be questioned in any Court."
Therefore, under Sub-section (1) of this section, the jurisdiction of the Civil Court is barred to settle, decide or deal with a question which is by or under the Act required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector. Under Sub-section (2) of this section, the orders passed by the Board of Revenue, the appellate authority or the Collector under this Act shall not be questioned in any Court. However, the bar of the Civil Court, it cannot be disputed, would not apply in a case, where the decision of the Board of Revenue, the appellate authority or the Collector was without jurisdiction, or that the orders passed by such authorities were not passed under the Act. It has not been argued by any of the learned Counsel for the parties that the original application under Section 16 (3) of the Act was not cognizable by the Deputy Collector Incharge Land Reforms.
7. The only attack by learned Counsel for the respondents was that the appellate authority which decided the matter in appeal from the decision of the original authority having failed to decide the question of Benami, such order is without jurisdiction. His further argument was that admittedly the real owner, namely, Sagiruddin Was not a party either before the D. C. L. R. Or before the Sub-Divisional Officer, who was the appellate authority, the orders passed by them would not be binding on the said Sagiruddin, and, therefore, he was competent to challenge the order passed by the revenue authorities in a Civil Court. Reliance was placed by learned Counsel for the appellants in Rai Brij Raj Krishna v. S. K. Shaw and Brothers (AIR 1951 SC 115). The law on the subject as stated by Lord Esher, M. R. in the Queen v. Commr. for Special Purposes of the Income-tax, (1888) 21 QBD 313 at page 319 has been quoted in this Supreme Court decision which reads thus :--
"When an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."
In Brij Raj Krishna's case (supra) the trial Court and the lower appellate Court dismissed the suit in which the order of eviction passed by the Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, on the ground of non-payment of rent was challenged. High Court allowed the appeal and decreed the suit. The Supreme Court of India set aside the judgment of the High Court. It held that the suit fell within the second category mentioned by Lord Esher, M. R. and, therefore, the suit was held to be maintainable in a civil court. In holding that the suit was not maintainable by the Civil Court, it has been stated that the Rent Control Act entrusted the Controller with a jurisdiction which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is nonpayment of rent, to order eviction of a tenant'. The decision further said that 'even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a Civil Court'.
The appellants' counsel relied upon Section 43 of the Act. It has been argued that except as provided in the Act, an order passed by an authority or a tribunal cannot otherwise be challenged in a suit. Admittedly the application filed under Section 16 (3) of the Act was cognizable by the D. C. L. R. According to the learned counsel, if he had jurisdiction to entertain the said application, then he had jurisdiction also to decide the question of benami which was raised by the ostensible owner, namely, the defendants second party. It has been pointed out that therefore any decision on the question of benami by a revenue authority even if it is wrongly decided, cannot be challenged in a suit. Argument further was that the language of Section 16 (3) of the Act is wide enough to include the question of benami and the question as to whether the intention of the parties was that title would pass on payment of consideration. Therefore, if these questions are raised then it is within the competencies of the Revenue Authorities to determine such questions.
8. In support of this contention, learned counsel referred to the decision in Narendra Kumar Ghose v. Sheodeni Ram (AIR 1972 Pat I). In this case also the question of benami was raised by the ostensible owner. One Sheodeni Ram in that case filed an application under Section 16 (3) of the Act claiming himself to be an adjacent owner. The Sub-divisional Officer allowed the petition. On appeal filed by the ostensible owner, it was held that the real owner was not a party, and, therefore, the determination of Benami question would not be binding upon him. Accordingly, the appeal was allowed. The matter went up in revision before the Board of Revenue.
The Board of Revenue allowed the revision application observing that the real owner may get the dispute settled in a Civil Court. The matter came to High Court in its writ jurisdiction. Their Lordships noticed the principles laid down in Gur Narayan v. Sheolal Singh (AIR 1918 PC 140), namely, that, "the bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him"
Their Lordships following the aforesaid principle interpreted Section 43 of the Act and stated as follows :--
"Applying the said principle for interpretation of Section 43 of the Act, it would be noticed that if an application under Section 16 (3) of the Act is allowed under Clause (iii), it would be binding on the real owner if the question of benami was not raised by the ostensible owner or, if raised, it was decided against him or the real owner. Such a decision being binding on the real owner, if seems to me that if the question is raised then it is a question which is, by or under the Act, required to be settled, decided, or dealt with by the Board of Revenue, the appellate authority or the Collector within the meaning of Section 43 of the Act, which bars the jurisdiction of the Civil Court in regard to a question which falls to be decided by the revenue authorities. I do not find any escape from the view I have expressed above that an order under Section 16(3) of the Act made against an ostensible transferee would be binding on the real transferee. That being so, if the question is raised by the ostensible transferee that he is not the real owner of the property but the real owner is somebody else, it is in the discretion of the Collector to add that person as party to the proceeding and decide the question in his presence or to decide it even without adding him as a party; in either event the decision will be binding on the real owner. It is plain that the real owner will be debarred under Section 43 of the Act from going to the Civil Court to claim recovery of possession of a property which has been directed to be transferred to the pre-emptor under Section 16 (3) of the Act. The language of Sub-section (2) of Section 17 would also indicate that the real owner in occupation of the land is also liable to be ejected by the Collector if action is taken under Section 17 of the Act. I am, therefore, of the opinion that it was necessary for Board of Revenue to decide this question of benami within the ambit of its revisional powers when the point had been decided by the Additional Collector in appeal. Its view that it was open to Narendra Kumar Ghose to lay his claim over the disputed land in a Civil Court is not correct. It is not open to him to do so."
I fully agree with the view taken in Narendra Kumar Ghose's case (supra). As it is now settled, that the Benami question can be entertained by the revenue authority in the absence of the real owner and the decision would be binding upon the latter, it cannot be argued that the decision of the D. C. L. R. on that score is without jurisdiction.
The other case cited by learned Counsel for the appellants is the case of Gujan Yadav v. Sitaram Choudhary, 1973 BLJR 734 : (AIR 1974 Pat 124) in support of the contention that the revenue authority can investigate the question as to whether the intention of, the party was that the title would pass on payment of the consideration, if such a point is raised in a proceeding initiated under Section 16 (3) of the Act. It has been held that the phraseology of Section 16 (3) of the Act has not undone the effect of the well settled principle of law that the transferor in spite of the recitals in the document, can show that the intention was that title would pass on payment of the consideration, and, therefore, for an effective order of pre-emption under Section 16 (3) of the Act, it is necessary that there should be a valid transfer, in the eye of law, which view is supported by the language of Clauses (ii) and (in) of Section 16 (3) of the Act.
It has further been held that 'the transferor may come and say, if it is a fact, that the document of transfer purporting to have been executed and registered by him was not so done by him; it is a forged document. In other words, he can say that he did not transfer the land by executing any document at all. Such a question, if raised by a transferor, it is plain, will have to be investigated by the revenue Court in a proceeding under Section 16 (3) of the Act. If that be so, I fail to understand why the question of the kind at issue cannot be raised by the transferee and why it should be held that investigation of such a question would be, beyond the purview of the Revenue Court in, a proceeding under Section 16 (3) of the Act". Both the aforesaid two decisions support the contention of the learned Counsel for the appellants.
9. To counter-act the argument put forward on behalf of the appellants, Mr. Harendra Prasad learned Counsel for the respondents relied upon the decision in the case of Nand Kishore Singh v. Satya Narain Singh (AIR 1978 Pat 315 : 1978 BBCJ (HC) 555), for the proposition that the Civil Court has jurisdiction to entertain a suit challenging the decision of the revenue authorities deciding an application under Section 16 (3) of the Act one way or the other. This case is clearly distinguishable, as the application under Section 16 (3) of the Act was filed in this case before the, registration of the sale deed was completed. Accordingly, the revenue authority could not entertain such an application for initiation of a proceeding under Section 16 (3) of the Act, as such an application could be filed, only after the registration is complete.
This decision has relied upon an unreported Bench decision of this Court in C. W. J. C. No. 133 of 1969 (Budh Nandan Ram v. State of Bihar) decided on 30th Jan., 1970, wherein it has been held that if action is taken by the Collector on an application filed under Section 16 (3) of the Act before the registration of the sale deed was complete, the entire proceeding commenced on such an application was void and without jurisdiction and as such the application would fail on that ground alone. Learned Counsel for the appellants has rightly distinguished this case by pointing out that there was initial want of jurisdiction to take cognizance by the revenue authority in Nand Kishore Singh's case (supra) and, therefore, all orders passed in that proceeding were without jurisdiction. In the case under consideration, hardly there was any want of jurisdiction upon the revenue authority in entertaining an application under Section 16 (3) of the Act.
10. Learned Counsel for the respondents, however, argued that the question of Benami has not been answered by the Revenue Appellate Authority. This contention does not find support from the judgments of the Courts below deciding the suit. The only argument that appears to have been advanced before the Courts below was that the question of Benami should not have been decided by the revenue authority in the absence of the real owner. In other words, the argument was that Sagiruddin the real owner not being made a party before the revenue authorities, their decisions were not binding upon him and so far as he was concerned those decisions were nullity and without jurisdiction. Both the Courts below while decreeing the suit held that Sagiruddin was not a party before the revenue authorities and as such the question of Benami could not have been decided in his absence and the order passed by the revenue appellate authority allowing the application under Section 16(3) of the Act was illegal and without jurisdiction and, therefore, the present suit was maintainable. This conclusion of the Courts below in my view is patently erroneous in view of the decisions discussed above. Accordingly, the suit should not have been decreed by the Courts below.
It is the admitted position that the Benami question was raised by the defendants second party before the D. C. L. R. The learned Counsel for the respondents argued that the revenue appellate authority, namely, the Subdivisional Officer did not decide this question. I have already pointed out while stating the facts that the revenue appellate authority held that Sagiruddin was not a raiyat within the meaning of Section 2 (k) of the Act as the Ladavi deed did not confer any right upon him. Even if it be assumed that the Benami question has not been discussed in the manner as required under the law by the revenue appellate authority, the same could have been rectified by challenging the said order before a proper forum under the Act Admittedly that was not done nor any writ application was filed before this Court challenging the decision of the revenue authorities. In my view, therefore, such orders cannot be rectified in a civil suit as Section 43 of the Act would be a complete bar for such a civil suit. The decision on the question of Benami, right or wrong, would be deemed to have been decided by the revenue authority under the Act; they having power to decide such questions which fall within the purview of Section 16 (3) of the Act. Therefore, this contention of the learned Counsel for the respondents also cannot be accepted.
11. The next point argued vehemently by the learned Counsel for the respondents is that the D. C. L. R. and the Sub-Divisional Officer having concurrent jurisdiction under Rule 48 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 (hereinafter called the Rules'), the Sub-Divisional Officer could not have entertained an appeal which was filed against the order passed by the D. C. L. R. According to the learned Counsel, therefore, there was inherent lack of jurisdiction in the revenue appellate authority in entertaining the appeal and allowing the same and therefore a civil suit would He. Though no direct decision was cited by learned Counsel for the respondents, but he tried to support the argument by citing the decision in Ram Janam Gareri v. Narbade shwar Singh, 1973 BLJR 566 : (AIR 1973 Pat 396). Learned Counsel pointed out that in this case it has been decided that the Sub-divisional Officer had no jurisdiction to transfer a case from his file to the file of the Land Reforms Deputy Collector and such power has been given only to the Collector of the district under Section 31 of the Act.
This argument was upheld. By way of analogy, therefore, it was argued that the Sub-Divisional Officer who had concurrent jurisdiction with that of D. ,C. L. R. could not have entertained the appeal far less, allowed the same. This argument or examination of the relevant provision of the Rules, in my view, is fallacious. The whole argument on this point of the learned Counsel for the respondents was founded on the language of Section 30 and Rule 48 as they now stand. Both Section 30 and Rule 48 have undergone changes. The present R. 48 shows inter alia that the appeal shall lie from the order passed by the Sub-Deputy Collector, or Deputy Collector, other than the Land Reforms Deputy Collector or the Sub-Divisional Officer to the Land Reforms Deputy Collector or the Sub-Divisional Officer. It is on this basis that the argument has been put forward by learned Counsel for the respondents that an appeal against the order of the Land Reforms Deputy Collector would not lie before the Sub-Divisional Officer as they have concurrent appellate jurisdiction and the appeal under the present Rule He to the Additional Collector or the Collector of the District. It is therefore necessary to quote Section 30 as also Rule 48 as were in force at that time when an appeal under Section 16(3) of the Act was filed. Section 30 reads as follows :--
"(1) An appeal from any final order made by the Collector under this Act except an order under Section 8 or Sub-section (5) of Section 28, if preferred within sixty days of the date of such order, shall lie to the prescribed authority;
Provided that any such appeal may be admitted after sixty days of the date of the order appealed against, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within such period.
(2) An appeal under this section shall be heard and disposed of in the prescribed manner."
Rule 48 as it then was reads thus :--
"(I) Subject to Sub-section (1) of Section 30 an appeal against an order passed under the Act by a Collector of the rank mentioned below in the first column shall lie to a Collector of the area concerned of the rank mentioned in the corresponding entry in the second column:
(See corresponding entry below) These two provisions were pointed out by the learned Counsel for the appellants to (Contd. on Col. 2)
(i) Sub-Deputy Collector.
(ii) Deputy Collector other than Sub-divisional Officer, (iii) Subdivisional Officer.
(iv) Additional Collector or Collector of the district.
counter-act the argument put forward by the learned Counsel for the respondents. The latter relied upon a notification given in Appendix B being notification No. S. O. 99 dated 30th May, 1967 (published in the Bihar Gazette (Extraordinary) dated 19-7-1967. This notification reads thus:--
"In exercise of the powers conferred by Clause (b) of Section 2 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962), the Governor of Bihar is pleased to appoint all Land Reforms Deputy Collectors to discharge the functions of a Collector under Sub-section (3) of Section 16 of the aforesaid Act, within the local limits of their respective jurisdictions."
This notification, no doubt, gives power to the D. C. L. R. to discharge the functions of a Collector under Sub-section (3) of Section 16 of the Act, but that does not mean that an application under Section 16 (3) of the Act if decided by the D. C. L. R., an appeal would not lie before the Subdivisional Officer. Rule 48 (ii) itself provides that the prescribed appellate authority from the decision of the Deputy Collector other than the Subdivisional Officer to be the Subdivisional Officer. Therefore, if the law as it then was prescribed the appellate authority to be the Subdivisional Officer for entertaining an appeal from the decision of the Deputy Collector (other than the Subdivisional Officer), then the appellate forum would be the Subdivisional Officer. In a Bench decision, of this Court in Ram Bilas Mahto v. Addl. Member, Board of Re-venue (1975 BBCJ (HC) 528) it has been held as follows :--
".. .. ... under Rule 48 of the Rules read with Section 30 of the Act, if the original order is passed by the Sub-Deputy Collector, the appeal will He before the Land Reforms Deputy Collector or Additional Sub-divisional Officer, if the original order is passed by the Deputy Collector other than the Subdivisional Officer then the appeal will lie before the Subdivisional Officer, if the original order is passed by the Subdivisional Land Reforms Deputy Collector, or Additional Subdivisional Officer. Subdivisional Officer.
Additional Collector or the Collector of the district.
Divisional Commissioner, or to such authority as may be appointed from time to time by the State Government by notification published in the Bihar Gazette."
Officer the appeal will lie before the Additional Collector or the Collector of the district and if the original order is passed by the Additional Collector or the Collector of the district, the appeal will lie before the Divisional Commissioner or such other authority as may be appointed from time to time by the State Government by notification published in the Bihar Gazette. There is no scope for a second appeal either under the provision of Rule 48 or the Rules read with Section 30 of the Act. .. ... .."
Therefore, it has to be held that this contention of the learned Counsel for the respondents has also no substance.
12. For the reasons stated above, the appeal is allowed, and the judgment and the decree passed by the Courts below are set aside and the suit stands dismissed with costs throughout payable to the appellants.
M.P. Varma, J.
I agree.