Madhya Pradesh High Court
Madhusudan Prasad & Ors. vs Udaibhan Singh & Ors. on 5 April, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 05th OF APRIL 2023
SECOND APPEAL No. 448 of 1998
BETWEEN:-
1. MADHUSUDAN PRASAD S/O SHRI NATH
AGED ABOUT 71 YEARS, R/O VILLAGE
DEORI SENGRAN P.O. NAIGARHI, P.S.
NAIGARHI TAHSIL MAUGANJ, DISTRICT
REWA (MADHYA PRADESH) (DELETED AS
PER C.O. DATED 19/02/2010) THROUGH LRS
1(1). MST. CHIRAUNJIYA WIDOW OF
MADHUSUDAN PRASAD, AGED ABOUT 60
YEARS, R/O VILLAGE DORI SEGRAN, P.O.
NAIGARHI, TAHSIL MAUGANJ, DISTRICT
REWA (M.P.)
2. GANESH PRASAD S/O SHRINATH , AGED
ABOUT 67 YEARS, R/O VILLAGE DEORI
SENGRAN P.O. NAIGARHI, P.S. NAIGARHI
TAHSIL MAUGANJ, DISTRICT REWA (M.P.)
3. MATHURA PRASAD S/O SUDAM PRASAD,
AGED ABOUT 66 YEARS, R/O VILLAGE
BARROHA, P.O. NAIGARHI, P.S. NAIGARHI,
TAHSIL MAUGANJ DISTRICT REWA M.P.
4. BHIM SEN (SINCE DECEASED), NOW BY
LEGAL REPRESENTATIVES.
(a) GENDLAL S/O BHIMSEN, AGED ABOUT 37
YEARS, R/O VILLAGE BARROHA P.O.
NAIGARHI P.S. NAIGARHI TAHSIL
DISTRICT REWA M.P.
(b) MEWALAL S/O BHIMSEN, AGED ABOUT 32
YEARS, R/O VILLAGE BARROHA P.O.
NAIGARHI, P.S. NAIGARHI, TAHSIL
2
MAUGANJ DISTRICT REWA M.P.
(c) SMT. PARANUA D/O BHIMSEN, WIFE OF
BINAYAK, AGED ABOUT 42 YEARS, R/O
VILLAGE - SILAPARI P.S. MANGAWAN,
TAHSIL RAIPUR KARCHULIAN, DISTRICT
REWA M.P.
(d) SMT. RANIA D/O BHIMSEN WIFE OF
SUNDERLAL, AGED ABOUT 33 YEARS R/O
VILLAGE MATHAURI P.S. MANGAWAN,
TAHSIL RAIPUR KARCHULIAN DISTRICT
REWA M.P.
(e) SMT. GEETA D/O BHIMSEN, AGED ABOUT
34 YEARS R/O VILLAGE DHANGAN P.S.
LAUR (DEO TALAB), TAHSIL MAUGANJ,
DISTRICT REWA M.P.
(f) SMT. INDRA BASUA WIDOW OF BHIMSEN
AGED ABOUT 62 YEARS R/O VILLAGE
BARROHA P.S. NAIGARHI TAHSIL
MAUGANJ DISTRICT REWA M.P.
5. RAMAN PRATAP SON OF KAMLA PRASAD,
AGED ABOUT 37 YEARS, R/O VILLAGE
BARROHA, P.S. NAIGARHI TAHSIL
MAUGANJ, DISTRICT REWA M.P.
6. JANKI PRASAD (SINCE DECEASED), NOW
BY LEGAL REPRESENTATIVE
(a) RAMVATI PATEL WIDOW OF JANKI
PRASAD AGED ABOUT 30 YEARS R/O
VILLAGE BARROHA (BEING SECOND
WIFE) P.S. NAIGARHI TAHSIL MAUGANJ,
DISTRICT REWA M.P.
(b) SANJAYA KUMAR PATEL SON OF JANKI
PRASAD AGED ABOUT 18 YEARS R/O
VILLAGE BARROHA P.S. NAIGARHI
TAHSIL MAUGANJ DISTRICT REWA M.P.
(c) PRAMILA PATEL D/O JANKI PRASAD
PATEL AGED ABOUT 20 YEARS R/O
VILLAGE GARH TAHSIL SIRMAUR.
3
7. PREMCHANDRA SON OF KAMLA PRASAD
AGED ABOUT 39 YEARS, R/O BARROHA
P.S. NAIGARHI TASHIL MAUGANJ
DISTRICT REWA M.P.
8. MOOLCHAND SON OF KAMLA PRASAD
AGED ABOUT 35 YEARS R/O BARROHA P.S.
NAIGARHI TAHSIL MAUGANJ, DISTRICT
REWA M.P.
9. SMT. LOLLI D/O KAMLA PRASAD WIFE OF
RAM LALLU AGED ABOUT 47 YEARS R/O
VILLAGE KANTI P.S. MANGAWAN TAHSIL
RAIPUR KARCHULIAN DISTRICT REWA
M.P.
10. SMT. BABANI WIDOW OF KAMLA PRASAD
AGED ABOUT 80 YEARS R/O VILLAGE
BARROHA, P.S. NAIGARHI, TAHSIL
MAUGANJ, DISTRICT REWA M.P.
.....APPELLANTS
(BY MS.SANJANA SAHNI - ADVOCATE)
AND
1. UDAIBHAN SINGH SON OF RAJ BAHADUR
SINGH @ SUNDAR SINGH AGED ABOUT 45
YEARS R/O VILLAGE BEHIKHOR P.O.
AGOCHIPUR TAHSIL DALMAU, DISTRICT
RAIBARELI U.P.
2. DEVI BAKHSHA SINGH SON OF RAJ
BAHADUR SINGH AGED ABOUT 35 YEARS
R/O VILLAGE BEHIKHOR P.O. AGOCHIPUR
TAHSIL DALMAU DISTRICT RAIBARELI
U.P.
3. SAROJINI DEVI D/O RAJ BAHADUR SINGH
R/O BEHIKHORI P.O. AGOCHIPUR TAHSIL
DALMAU, DISTRICT RAIBARELI U.P.
4
4. STATE OF M.P. THROUGH THE
SECRETARY REVENUE DEPARTMENT,
MANTRALAYA, BHOPAL
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
"Reserved on : 29.03.2023"
"Pronounced on : 05.04.2023".
This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
JUDGMENT
1. This Second Appeal under Section 100 of CPC has been filed against the Judgment and Decree dated 20-3-1998 passed by 4th Additional District Judge, Rewa, Distt. Rewa in Civil Appeal No. 8A/1994 arising out of Judgment and Decree dated 27-4-1994 passed by 2nd Civil Judge, Class 2, Rewa in Civil Suit No. 140A/1989.
2. The Appellants are Plaintiffs who have lost their case before the First Appellate Court.
3. The Appellants filed a civil suit in the year 1978 pleading interalia that lands situated in village Devri Sengran General bearing Kh. No. 574 area 2.90 decimal, 580 area 0.28 decimal, 558 area 0.09 decimal, 559 area 0.77 decimal, 560 area 0.83 decimal, 595 area 0.48 decimal, and area 596 area 6.48 decimal were allotted to Pawaidar Dwarika Singh by Tahsildar, Mauganj Tahsil by order dated 3-9-1959, under Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952. Dwarika Prasad alienated Kh. No. 574 area 2.90 decimal and 580 area 0.28 acres to Plaintiff Ganesh Prasad by registered sale deed dated 1-8-1962 for a consideration of Rs. 2400/-, and from the said date, Ganesh Prasad is in 5 possession of the same. The name of Ganesh Prasad was also mutated on 29-3-1964. The remaining lands i.e., Kh. No. 558 area 0.09 acres, 559 area 0.77 acres, 560 area 0.86 acres were alienated by Dwarika Singh in favor of Madhusudan Prasad (Original Plaintiff) by registered sale deed dated 10-12-1965 for a consideration of Rs.4,000/-. The name of original plaintiff was also mutated on 12-6-1968. By registered sale deed dated 29-6-1961, Dwarika Singh alienated Kh. No. 595 area 0.48 acres, 596 area 6.48 acres to Mathura Prasad, Kamla Prasad and Bheemsen (Plaintiffs) for a consideration of Rs. 4,500/-. In the said land, Mathura Prasad had 5/12th, Kamla Prasad had 1/3rd and Bheemsen had 1/4 share. After the death of Kamla Prasad, his legal heirs are in joint possession with Mathura Prasad and Bheemsen. The names of the purchasers were mutated in the revenue records on 17-6-1966. On 24-6-1968, Shanker Bahadur Singh made an application before Naib Tahsildar, and challenged the allotment of land in favour of Dwarika Singh under Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952. In this application, Madhusudan Prasad, Ganesh Prasad, Mathura Prasad, Kamla Prasad and Bheemsen were not made party. Dwarika Singh died in the year 1972. On 27-1-1977, the Naib Tahsildar cancelled all the mutation orders and directed for recording of land in the name of State Govt. Mathuraprasad, Kamla Prasad and Bheemsen had filed an application for mutation of their names which was allowed by Tahsildar and S.D.O, but on an appeal filed by Shanker Bahadur, the Additional Commissioner, Rewa Division set aside the order of mutation. However, the possession of Plaintiffs continued. Thereafter, the Board of Revenue by order dated 24-3-1967 also set aside the allotment of land in favor of Dwarika Singh. Accordingly, on the basis of order of Board of Revenue, 6 the Tahsildar by order dated 27-10-1977 directed for recording of disputed property in the name of Government. Accordingly, the order dated 7-6-1976 passed by Board of Revenue was claimed to be bad on the following grounds :
(a) No appeal was filed against the order of allotment by anyone.
(b) The question of allotment of land was not before the Board of Revenue.
(c) As per Section 37 of Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952, the order of allotment cannot be challenged.
Similarly, it was claimed that the order of Add. Commissioner was bad in law on the following grounds :
(a) The order of allotment in favor of Dwarika Singh was never challenged, therefore, the same had become final.
(b) The reconsideration of allotment of order by the Additional Commissioner is not permissible in the light of order dated 37 of Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952.
Similarly, the Tahsildar, on the basis of null and void orders have acted beyond his jurisdiction by declaring the land as Govt. land. Accordingly, the suit was filed for declaration of title and for permanent injunction.
4. The defendants no. 2 (a), (b) and (c) filed their written statement and denied the allotment of land in favour of Dwarika Singh. The sale of some part of land to Ganesh Singh and handing over of possession to Ganesh Singh was also denied. However, mutation of name of Ganesh 7 Singh was admitted. It was claimed that the order of mutation of Ganesh Singh was set aside by the Board of Revenue. Dwarika Singh had no right or title to alienate the land to Ganesh Singh. Similarly the alienation of land in favour of Madhusudan Singh and his possession over the said land was also denied. The mutation of name of Madhusudan Singh was claimed to be null and void to the extent of rights of the answering defendants. The sale of some part of land to Mathura Prasad, Kamla Prasad and Bheemsen was also denied. Their possession was also denied. The death of Dwarika Singh in 1972 was admitted. The remaining contents were denied. The cancellation of allotment order was accepted by the answering defendants. It was denied that declaration of land as Govt. land was bad. In additional pleadings it was pleaded that original Pawaidar was Prem Shah. The family tree as per defendants was as under
:
Prem Shah _____________________________|____________________ | | | | | | Mathura Ayodhya Kailash Bahadur Ambika Dwarika Devraj Kumari Singh Singh Singh Singh Singh |__________________________ | | | Vansh Bahadur Raj Bahadur Manvas Kumari Singh Singh _____|__________________________ | | | Udaibhan Singh Devi Baksh Singh Sarojani Def. No. 2(a) Def. No. 2(b) Def. No. 2(c)
5. It was claimed that all the five sons of Premshah have expired. His daughter Devraj Kunwar is alive, but She has not been made party to the 8 suit. The defendants no. 2 (a),(b) and (c) are the legal representatives of Mathura Singh. Thus, the answering defendants have 2/3 share in the property of Prem Shah whereas Devraj Kunwar has 1/3 share in the property. The properties in dispute were never allotted. After the death of Prem Shah, Dwarika Singh, Devraj Kunwar and Mathura Singh got 1/3rd share. The disputed property has not been partitioned. Mathura Singh was very old and Dwarika Singh was looking after the family business. In order to get minimum account, Dwarika Singh had applied for allotment which was rejected and Khasra No. 595,596,560,574,580,558 and 559 were never allotted to Dwarika Singh. The joint possession of Mathura Singh, Dwarika Singh and Devraj Kunwar continued. Even if any allotment was done in favor of Dwarika Singh, then the same has to be considered as on behalf of all the co- sharers. Kh. No. 185, 595 and 596 are in possession of answering defendants. And accordingly, it was prayed that the suit be dismissed.
6. The Trial Court after framing issues and recording evidence decreed the suit.
7. Being aggrieved by Judgment and Decree passed by the Trial Court, the respondents/defendants preferred an appeal, which has been allowed by the impugned judgment and decree.
8. The appeal has been admitted on the following Substantial Questions of Law :
(a) Whether the Civil Court has no jurisdiction to go behind the order of allotment dated 3-9-1959, in view of Section 37(2) of Vindhya Pradesh Abolition of Jagirs and Land Reforms Act 1952?
(b) Whether the proceedings initiated by Shankar Bahadur Singh against the order of allotment is not legally maintainable and 9 Shankar Bahadur Singh had no locus standi to call in question the order of allotment and the acquisition of title by the plaintiffs over the suit land?
9. It is submitted by the Counsel for the Appellants that as per Section 37(2) of Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952, the jurisdiction of Civil Court is barred, therefore, the order of allotment could not have been set aside by the Civil Court. It is further submitted that Shankar Bahadur Singh had no jurisdiction to challenge the allotment order which was passed in favor of Dwarika Singh.
10. Per contra, the Counsel for the State has supported the findings recorded by the First Appellate Court.
11. Considered the submissions made by the Counsel of the parties.
12. The first question for consideration is that whether the Civil Court had set aside the order of allotment, or the order of allotment was set aside by the Additional Commissioner which was affirmed by Board of Revenue, and whether the orders of the Additional Commissioner and Board of Revenue could have been challenged before the Civil Court and whether the plaintiffs had ever challenged the orders of Additional Commissioner and Board of Revenue or not?
13. It is submitted by the Counsel for the Appellants that since, the jurisdiction of the Civil Court was barred under Section 37(2) of Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952, therefore, the Civil Suit to challenge the correctness of the orders passed by Additional Commissioner and the Board of Revenue was not maintainable, therefore, the Appellants had filed a civil suit for 10 declaration of their title without challenging the orders of Additional Commissioner and Board of Revenue.
14. Section 37 of Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952, reads as under :
37. Bar of Jurisdiction of Civil Courts.- (1) 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 Tahsildar, the Collector, the Land Reform Commissioner or the Board of Revenue.
(2) Except otherwise provided in this Act, no order of a Tahsildar, a Collector, the Land Reform Commissioner or the Board of Revenue under this Act, shall be called in question in any Court.
15. Thus, the question for consideration is that whether in view of Section 37(2) of Vindhya Pradesh Jagir Unmulan Aivam Bhumi Sudhar Adhiniyam, 1952, the civil suit filed by the Appellants was maintainable or not?
16. It is submitted by the Counsel for the Appellants that the Additional Commissioner had no jurisdiction to cancel the order of allotment as the question of allotment was not in dispute, but the subject matter of the litigation before the Additional Commissioner was mutation.
17. Thus, the basic contention of the Counsel for the Appellants is based on the principle of Coram Non Judice. The basic ground of attack before the Trial Court as well as before this Court is that the Additional Commissioner had no jurisdiction to cancel the order to allotment.
18. But one thing is clear, that the orders of Additional Commissioner and the Board of Revenue were not challenged in the civil suit.
1119. The question whether the civil suit is maintainable or not is not res integra.
20. The Supreme Court in the case of Dhulabai Vs. State of M.P. reported in AIR 1969 SC 78 has held as under :
35. Neither of the two cases of Firm of Illuri Subayya or Kamla Mills can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:
(1) 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.
(2) 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.
(3) 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. (4) 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 12 the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected a suit lies.
(6) 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.
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
21. Thus, 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, then the Civil Court shall certainly have jurisdiction to entertain the civil suit. In the present case, the contention of the Appellants is that the order passed by the Additional Commissioner was without jurisdiction, therefore, the Appellants should have challenged the order of Additional Commissioner on the said ground, but that was not done.
22. The Appellants merely sought declaration of their title. The said relief cannot be granted to the Appellants unless and until the order passed by Additional Commissioner and Board of Revenue are set aside. But the orders passed by Additional Commissioner and Board of Revenue were never challenged, therefore, the said orders have attained finality.
23. It is submitted by the Counsel for the Appellants that since, the orders passed by Additional Commissioner and Board of Revenue were without 13 jurisdiction therefore, they were nullity and thus, it was not necessary for the Appellants to challenge the same.
24. Considered the submissions made by the Counsel for the Appellants.
25. The moot question for consideration is that whether an illegal order is required to be challenged, or the party on its own can refuse to obey it?
26. The Supreme court in the case of M. Meenakshi v. Metadin Agarwal, reported in (2006) 7 SCC 470 has held as under :
17. The competent authority under the 1976 Act was not impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-
matter thereof. The plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject-matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the letters patent appeal.
(Underline supplied)
27. The Supreme Court in the case of Anita International v.
Tungabadra Sugar Works Mazdoor Sangh, reported in (2016) 9 SCC 44 has held as under :
54. We are also of the considered view, as held by the Court in Krishnadevi Malchand Kamathia case, that it is not open either to parties to a lis or to any third parties to determine at their own that an order passed by a court is valid or void. A party to the lis or a third party who considers an order passed by a court as void or non est, must approach a court of competent jurisdiction to have the said order set aside on such grounds as may be available in law. However, till an order passed by a competent court is set aside as was also held by this Court in Official Liquidator and Jehal Tanti cases, the same would have the force of law, and any act/action carried out in violation 14 thereof would be liable to be set aside. We endorse the opinion expressed by this Court in Jehal Tanti case. In the above case, an earlier order of a court was found to be without jurisdiction after six years. In other words, an order passed by a court having no jurisdiction had subsisted for six years. This Court held that the said order could not have been violated while it subsisted. And further that the violation of the order before it is set aside is liable to entail punishment for its disobedience. For us to conclude otherwise may have disastrous consequences. In the above situation, every cantankerous and quarrelsome litigant would be entitled to canvass that in his wisdom the judicial order detrimental to his interests was void, voidable, or patently erroneous. And based on such plea, to avoid or disregard or even disobey the same. This course can never be permitted.
28. The Supreme Court in the case of Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, reported in (2011) 3 SCC 363 has held as under :
16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
29. Thus, it is incorrect on the part of the Appellants to say that since, in the assessment of Appellants, the orders passed by Additional Commissioner and Board of Revenue were void, therefore, they were not required to be challenged.15
30. Since, the order of cancellation of allotment was passed by the Additional Commissioner and Board of Revenue and not by the Civil Court, therefore, the first Substantial Question of Law is answered in Negative against the Appellants. In fact the suit filed by the Appellants itself was not maintainable in view of Section 37(2) of Vindhya Pradesh Abolition of Jagirs and Land Reforms Act 1952.
31. So far as the second Substantial Question of Law is concerned, the same has to be answered in negative, for the reason that once, the orders passed by the Additional Commissioner and Board of Revenue were never challenged then the locus of Shanker Bahadur Singh to challenge the order of allotment cannot be considered.
32. No other argument is advanced by the Appellants.
33. Ex-consequenti, the Judgment and Decree dated 20-3-1998 passed by 4th Additional District Judge, Rewa, Distt. Rewa in Civil Appeal No. 8A/1994 is hereby Affirmed.
34. The Appeal fails and is hereby Dismissed.
(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.04.05 17:55:27 +05'30' HS