Madhya Pradesh High Court
Grasim Industries Limited vs Ramlal on 23 January, 2018
THE HIGH COURT OF MADHYA PRADESH
M.A. No. 1386/2015
1 Grasim Industries Limited V/s. Sramlal Bagri & others.
Indore, dated : 23.01.2018
Shri A.S. Garg, learned Sr. Advocate with Shri
Sapnesh Jain, Advocate for the appellant.
Shri R.S. Raghuwanshi, learned counsel for the
respondents.
Learned senior counsel for the appellant submits
that the trial Court has fixed the case for final arguments on
24.1.2018, therefore, this appeal may be heard today.
The appellant has filed I.A. No.8344/2015, an
application seeking permission to raise additional grounds at
the time of hearing. After due consideration, the application
is hereby allowed.
The appeal is accordingly heard finally.
ORDER
The appellant (hereinafter referred to as 'defendant No.1') has filed the present appeal under Order XLIII Rule 1 of C.P.C. being aggrieved by order dated 17.6.2015 passed by learned Additional District Judge, Khachrod, District Ujjain in Civil Appeal No.43-A/2012, whereby the judgment and decree dated 11.9.2012 passed by learned Civil Judge, Class-I, nagda in Civil Suit No.21- A/2009 has been set aside and the suit has been remanded back to the trial Court to decide the same on merits.
2. Respondents No.1 to 13 along with 7 others filed the civil suit in representative capacity for declaration and THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 2 Grasim Industries Limited V/s. Sramlal Bagri & others.
permanent injunction in respect of land bearing various survey numbers. According to the plaintiffs, the suit land is being used for grazing ('Charnoi') and recorded in the name of "Shri Dwarkadhish Mandir Dev Sthan. The defendant No.1 started construction of pond on the said land and the nature of the land cannot be changed under the provisions of Section 234 of M.P. Land Revenue Code (MPLRC). During pendency of the suit, the Collector passed the order under Part 4, Serial No.3, Clause 20(1) of Revenue Book Circular (RBC) dated 19.7.2006, by which, the suit land has been given to defendant No.1 by way of exchange. The plaintiffs by way of amendment also challenged the order dated 9.3.2006 as void and contrary to the provisions of MPLRC.
3. Defendant No.1 filed the written statement denying all the plaint averments. The defendant No.1 challenged the maintainability of the suit as the jurisdiction of the District Court is hit by Section 257 of the MPLRC. The learned trial Court framed as many as 11 issues for adjudication. Defendant No.1 filed an application under Order VII Rule 11 of the C.P.C. seeking rejection of the plaint. By order dated 24.3.2006, learned Civil Court has rejected the said application. Being aggrieved, defendant No.1 filed Civil Revision No.177/2006 before this Court. By order dated 13.12.2006, said revision was disposed of with a direction to defendant No.1 to file written statement raising THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 3 Grasim Industries Limited V/s. Sramlal Bagri & others.
the ground relating to maintainability of the suit and if such ground is raised, the trial Court shall frame the issues and decide the same.
4. The trial Court initially has refused to grant temporary injunction to the plaintiffs, but in a Misc. Appeal, the Additional District Judge has granted temporary injunction in favour of the plaintiffs. Thereafter, defendant No.1 preferred W.P. No.2562/2006. Said writ petition was allowed subject to furnish an undertaking by defendant No.1 that it would demolish the pond at its own costs and would not put forward any claim for damages, etc. Thereafter, defendant No.1 raised objection with regard to pecuniary jurisdiction of the Civil Court to try the suit by way of an application under Order XIV Rule 5 of C.P.C. The said issue also came before this Court by way of W.P. No.5784/2007. By order dated 5.5.2011, the writ petition was disposed of with a direction to decide the suit keeping in view the order dated 13.12.2006 passed in C.R. No.177/2006.
5. Against the order dated 17.5.2006 passed in W.P. No.2562/2006, plaintiffs approached the Supreme Court by way of S.L.P. No.13581/2006 and by order dated 25.8.2006, the S.L.P. was dismissed with a liberty to the plaintiffs to move the trial Court for early disposal of the suit.
6. The learned trial Court vide order dated 11.9.2012 decided the Issue No.9 and 11 as preliminary THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 4 Grasim Industries Limited V/s. Sramlal Bagri & others.
issues. While answering the Issue No.9, the learned trial Court has held that by virtue of Section 257 (f) and (w) of MPLRC, the suit is not maintainable before the Civil Court. The Issue No.9 has been decided against defendants as the Court is having pecuniary jurisdiction to decide the same.
7. Being aggrieved by order dated 11.9.2012, 13 out of 20 plaintiffs filed Misc. Appeal under Order XLI Rule 1 read with Section 96 of C.P.C. before the lower appellate Court. The learned Additional District Judge vide judgment dated 17.6.2015 allowed the appeal and set aside the order of trial Court and remanded the case to the trial Court to decide the suit on merits. The lower appellate Court has held that the suit is maintainable in the light of judgment passed by apex Court in the case of Madhosingh V/s. Monisingh (Deceased) through LRs. : (2004) 12 SCC 214. Being aggrieved by the judgment dated 17.6.2015, defendant No.1 preferred this appeal.
8. The defendant No.1 has raised following substantial questions of law :-
"(a) Whether the learned First Appellate Court erred in not passing a reasoned order while remanding the suit back to the trial Court for fresh adjudication on merits ?
(b) Whether the learned First Appellate Court erred in not considering that the suit is apparently barred by virtue of the provisions of S. 257(f) and (w) of the Land Revenue Code ?
THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 5 Grasim Industries Limited V/s. Sramlal Bagri & others.
(c) Whether the learned First Appellate Court erred in not considering that under the provisions of Or. 7, 11(d), a suit which "appears" to be barred by the statement in the plaint to be barred by any law is liable to be rejected ?
(d) Whether the learned First Appellate Court erred in setting aside the judgment and decree passed by the learned trial Court, without dislodging/considering the findings recorded by the learned trial Court ?"
9. Shri Garg, learned senior counsel appearing for the defendant No.1, submitted that Section 257 of MPLRC bars the jurisdiction of the Civil Court and specifically provides that no Civil Court shall entertain any suit instituted or application made to obtain a decision or order in any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of. The plaintiffs ought to have challenged the order of Collector before the Commissioner u/s. 44 of MPLRC and the suit is expressly barred u/s. 257 (f) and (w) of the MPLRC. The learned trial Court had rightly dismissed the suit and the judgment passed by the learned trial Court ought not to have interfered with by the first appellate Court. In support of his contention, he has placed reliance on M.P. Housing board V/s. Shiv Shankar Mandil : 2009 (II) THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015
6 Grasim Industries Limited V/s. Sramlal Bagri & others.
MPJR 99; and Rameshwar & others V/s. Dwarka Prasad : 1970 JLJ 184.
10. By way of additional ground, Shri Garg, learned senior counsel for defendant No.1 has emphasised that the suit was filed by 20 plaintiffs and out of them, only 13 have preferred the First Appeal, therefore, the judgment of the trial Court has attained finality in respect of those 7 persons and hence, the first appellate Court could not have reversed the judgment and decree passed by the learned trial Court.
11. Shri Raghuwanshi, learned counsel appearing for the plaintiffs, submitted that the plaintiffs claimed the relief of declaration that the exchange-deed dated 19.7.2006 be declared void and for the said relief, only the Civil Court is competent to grant the relief. The suit in the representative capacity is maintainable in respect of right to graise livestock thereon as held by the apex Court in the case of Madhosingh (supra). It is further submitted that under Part 4, Serial No.3, Clause 20(1) of RBC, only the Government agricultural land can be exchanged with the agricultural land of 'Bhoomi Swami' and other Government land cannot be exchanged specially the Nazul land ('Charnoi'). In support of his contention, he placed reliance on Banwarilal Gupta V/s. State of M.P. : 2001 (II) MPJR 45 and Division Bench decision of this Court in Gangaram Lonia Chouhan V/s. State of M.P. : 2016 RN 214. He further submitted that the THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 7 Grasim Industries Limited V/s. Sramlal Bagri & others.
plaintiffs filed the suit in 2006 and more than 11 years have passed and the defendant No.1 is not making free the trial Court to conclude the same and now, the trial Court has fixed the case for final arguments.
12. I have heard the learned counsel for the parties.
13. The plaintiffs filed the suit seeking declaration that the land bearing Survey No. 15 area 0.26 Hect. be declared as land of "Shri Dwarkadhish Mandir Dev Sthan"
and the land bearing Survey No. 22 area 0.85 Hect., Survey No.31 area 0.25 Hect., Survey No.133/6 area 3.80 Hect. be declared as 'Chernoi', land bearing Survey No.135 be declared as 'Road'. The plaintiffs also claimed the relief that permission of Water Resources Department dated 8.3.2006 be declared as void and the exchange-deed dated 19.7.2006 be also declared as void. It is further prayed that the defendant No.1 be restrained by way of permanent injunction from constructing the pond on the said land. The relief claimed in the suit is reproduced below :-
" v- ;g fd xzke Vdjkonk rg- ukxnk esa fLFkr losZ dzekad 15 jdc 0-26 gsDVs;j Hkwfe dks Jh }kjdknkol eafnj nso LFkku Hkwfe ?kksf"kr fd;k tkosA c- ;g fd xzke Vdjkonk rg- ukxnk esa fLFkr losZ u-22 jdck 0-85 gsDVs;j] losZ u 31 jdck 0-25 gsDVs;j] losZ u 133@6 jdck 3-80 gsDVs;j Hkwfe dks pjukSbZ Hkwfe ?kksf"kr fd;k tkos A l- losZ ua- 135 dh Hkwfe dks vke jkLrk ?kksf"kr fd;k tkos A THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 8 Grasim Industries Limited V/s. Sramlal Bagri & others.
n- ;g fd ty lalk/ku foHkkx izfrokjh dzekad 3 } kjk fnukad 8@3@2006 dks izfroknh dzekad 1 dks nh x;h rkykc fuekZ.k dh vuqefr 'kwU; ?kksf"kr dh tkosA b- ;g fd izfroknh dzekad 1 ds fo:) bl vk'k; dh Lfkk;h fu"ks?kkKk tkjh dh tkos dh ;g okn i= ds pj.k nks esa mYysf[kr xzke Vdjkonk dh pjukSbZ] fuLrkj o nso LFkku] jkLrk Hkwfe ij dksbZ rkykc fuekZ.k u rks Lo;a djs u fdlh vU; ls djkosA bZ- ;g fd izfroknh dzekad 2 ds fo:) bl vk'k; dh LFkk;h fu"ks?kkKk tkjh dh tkos dh og xkao dh pjukSbZ Hkwfe dqy jdcs ls 2 izfr'kr de u gksus ns o nso LFkku Hkwfe dk fdlh Hkh izdkj ls mi;ksx o fofue; u gksus nsA m- ;g fd izfroknh dzekad 4 o 5 ds fo:) bl vk'k; dh Lfkk;h fu"ks?kkKk tkjh dh tkos dh og izfroknh dzekad 1 dks 903 ,e-lh-,Q-Vh ls T;knk ikuh laxzfgr djus o voS/k rkykc fuekZ.k djus ls izfrcaf/kr djsaA"
14. The plaintiffs assailed the order of Collector dated 19.7.2006 passed under Part 4, Serial No.3, Clause 20(1) of RBC. The RBC is nothing but a collection of various circulars issued by the State Government time to time in respect of management and disposal of Government land, whereas Section 257 of MPLRC specifically provides that 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. Therefore, the Revenue Officer, the Board and the State Government must be empowered under the MPLRC to decide any matter. Section 41 and 50 of the THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 9 Grasim Industries Limited V/s. Sramlal Bagri & others.
MPLRC provides remedy of appeal and revision. As per Section 44, 50 and 51, remedy of appeal, revision and review is provided. Section 44 provides that an appeal shall lie from every original order under this Code or the rules made thereunder and likewise, the revision also lies against the order passed by Revenue Officer. The order dated 19.7.2006 passed by the Commissioner under the RBC is neither under any Act nor Rules passed by the Legislature in exercise of powers u/s. 258 of the MPLRC, therefore, the contention of Shri Garg that against the order of Collector, the plaintiffs are having the remedy of appeal before the Commissioner, is liable to be rejected. (Emphasis supplied)
15. The apex Court in the case of Madhosingh (supra) has set aside the order of the High Court by which the suit was treated to be barred by Section 257 of MPLRC. The suit was for declaration of title, permanent injunction and also for possession and the suit was the only remedy available to the plaintiffs. Para 8 and 9 of the said judgment of apex Court is reproduced below :-
"8. Considering the rival submissions of the parties, in our opinion, the appeal deserves to be allowed. It is not in dispute between the parties that in the proceedings initiated by Kalu Singh against the Revenue Authorities, the appellants herein were not made parties. THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 10 Grasim Industries Limited V/s. Sramlal Bagri & others.
Three authorities rejected the claim of Kalu Singh but the Board of Revenue upheld the claim and directions were issued to the Collector. That had happened in 1959. In 1968, consequential order was passed by the Collector. Since the land was Charnoi (grazing) land and not grove, it affeted the rights of the appellants as also of the village people. They, therefore, approached the civil court by instituting a suit in a representative capacity invoking Order 1 Rule 8 of the Code of Civil Procedure. The suit was for declaration of title and permanent injunction as also for possession. Such a suit was maintainable and was the only remedy available to the plaintiffs. The trial court decreed the suit holding that the villagers had right to graze cattle. The High Court could not have held the suit to be barred by Section 257 of the Code nor could it have recorded a finding that the suit filed by the plaintiffs in representative capacity was not maintainable. The High Court, in our opinion, also committed an error of law in considering the merits of the matter after coming to a conclusion in the second appeal, albeit incorrect, that a civil court had no jurisdiction in the matter.
9. For the foregoing reasons, in our opinion, the order passed by the High Court deserves to be quashed and set aside by remitting the matter to the High Court to consider the rights of the village people on the basis that a civil court has THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 11 Grasim Industries Limited V/s. Sramlal Bagri & others.
jurisdiction in the matter. The High Court will now decide the matter afresh holding the suit to be maintainable and will take an appropriate decision in accordance with law. The appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs."
16. Section 9 of C.P.C. clearly provides that the courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. As held above, Section 257 of MPLRC is applicable only to the orders passed under the MPLRC, therefore, the suit filed by the plaintiffs is very much maintainable before the learned trial Court.
17. So far as ground raised by Shri Garg, learned senior counsel appearing for defendant No.1, that the Misc. Appeal was filed only by 13 plaintiffs and the order of learned trial Court has attained finality in respect of remaining 7 plaintiffs, is concerned, the defendant No.1 has never took this objection before the first appellate Court and for the first time, he is raising the said ground before this Court. Order XLI Rule 33 of C.P.C. gives power to the appellate Court to pass the decree in favour of all or any of the respondent or parties though such respondent or parties may not have filed any appeal. Even otherwise, this Court does not find any merit in this appeal. Now, the suit is liable THE HIGH COURT OF MADHYA PRADESH M.A. No. 1386/2015 12 Grasim Industries Limited V/s. Sramlal Bagri & others.
to be decided on all issues and, therefore, such an objection is not tenable as the learned trial Court has already fixed the case for final arguments on 24.1.2018, hence, no interference is called for.
18. In view of the foregoing discussion, this appeal fails and is hereby dismissed. However, there shall be no order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Alok Digitally signed by Alok Gargav DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Gargav Pradesh, 2.5.4.20=10ffc095e99ebde5fcd7c3 f1f517fd958a070f17607a9a6db30 71d4a39e9cb81, cn=Alok Gargav Date: 2018.02.05 18:23:08 +05'30'