Himachal Pradesh High Court
Shri Rajinder Kumar Sood vs Rajinder Kumar on 4 October, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF OCTOBER 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL MISC. PETITION MAIN (ORIGINAL) No. 286 of 2018
Between:-
SHRI RAJINDER KUMAR SOOD
SON OF LATE SHRI SANT RAM,
RESIDENT OF AMAR NIWAS,
THE MALL, SHIMLA-171001. .....PETITIONER
(BY SH. NEERAJ GUPTA SENIOR ADVOCATE
WITH SH. AJEET JASWAL, ADVOCATE)
AND
SHRI OM PRAKASH SOOD
SON OF LATE SHRI SANT RAM,
RESIDENT OF 17, RAELANE,
NORTHWALK,CT 06850 USA.
AT PRESENT RESIDENT OF
VILLAGE AND P.O. MATIANA,
TEHSIL THEOG,
DISTRICT SHIMLA (HP). .....RESPONDENT
(BY SMT. DEVYANI SHARMA, ADVOCATE)
WHETHER APPROVED FOR REPORTING? YES.
_______________________________________________________
This petition coming on for admission this day, the
Court passed the following:
ORDER
An application moved by defendant for rejection of the plaint under Order 7 Rule 11 of Code of Civil Procedure was ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 2 dismissed by the learned trial court. This order has been assailed by the defendant in the present petition.
.
Parties to the litigation are real brothers, sons of late Shri Sant Ram. The status of the parties hereinafter has been referred to as it was before the learned trial court.
2. Facts Plaint 2(a) to a civil suit was filed by the respondent/plaintiff for-
i) declaration to the effect that the order dated 13.7.2012 passed by the Assistant Collector IInd Grade, Theog, District Shimla was illegal, null and void; ii) for permanent prohibitory injunction to restrain the petitioner/defendant from alienating transferring, encumbering, changing the nature of the suit property; and iii) for recovery of Rs. 2,00,000/- as damages on account of mental harassment.
2(b) The suit was in relation to property comprised in Khata No. 85/78, Khatauni No. 202/197, Khsra No. 1000, 1001, 1002, 1003, 1004 1005 and 1028 total measuring 02-04-41 Hect. situated in Up Mohal Kalinda, Tehsil Theog, District Shimla. It was pleaded that:-
::: Downloaded on - 31/01/2022 23:10:04 :::CIS 32(b)(i) The suit property was initially owned by late Shri Sant Ram who had six daughters and three sons. The plaintiff .
and defendant had 1/9th share in the suit property. The possession of the suit property was with three sons of late Shri Sant Ram i.e. plaintiff, defendant and Shri Rajneesh Sood. Shri Rajneesh Sood, brother of the parties died during the year 1993.
2(b)(ii) to Plaintiff shifted to USA in the year 1972. He kept coming to India to maintain and look after his share in the ancestral property. He filed a civil suit No. 67-S/1 of 95/93 against the defendant titled Om Prakash vs. Rajinder Kumar Sood for partition and rendition of accounts. The suit was partly decreed by the learned District Judge, Shimla on 16.9.2000.
The decee has though been accepted by the defendant, however, the plaintiff has preferred an appeal against it before this Court. The appeal bearing RFA No. 365/2000 is as yet pending adjudication in this Court. In CMP No. 487/2000 filed in this Regular First Appeal, vide order dated 3.1.2001 the parties including the defendant were restrained from selling, transferring or encumbering the properties in dispute. The order dated 3.1.2001 was modified vide order dated 5.3.2002 to ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 4 the extent that any transfer or alienation of the subject matter of dispute by any of the parties was made subject to final decision .
of the appeal and further that the parties will not create any equity in favour of third party. This order is still in force. Suit property involved in the present suit is part and parcel of the properties involved in Civil Suit No. 67-S/1 of 95/93.
2(b)(iii) During pendency of RFA No. 365 of 2000, the defendant moved an application before Assistant Collector IInd Grade ( in short A. C. IInd Gade), Theog under Section 37 of the H.P. Land Revenue Act, 1953 (hereinafter 'Act') for correction of entries of possession in the revenue record with respect to the suit property. The A.C. IInd Grade allowed the application vide order dated 13.7.2012. On the basis of this order, mutation No. 15 was attested on 11.9.2012. The order dated 13.7.2012 is to be declared void and illegal for the reasons that:-
a) Defendant in his application for correction of revenue entries moved before the A.C. IInd Grade had suppressed the orders passed by the High Court in RFA No. 365/2000.::: Downloaded on - 31/01/2022 23:10:04 :::CIS 5
b) Defendant in a fraudulent manner mentioned wrong address of the plaintiff in his application under Section 37 of the .
Act with a view to obtain order behind the back of the plaintiff.
c) Defendant impleaded Shri Rajneesh Sood (brother of parties) in the application by his nickname 'Kuka' despite being aware that Shri Rajneesh Sood had died during the year 1993.
d) to The plaintiff was not served in the application moved by the defendant under Section 37 of the Act.
2(b)(iv) The order passed by the A.C. IInd Grade on 13.7.2012 came to the knowledge of plaintiff in July 2014. The defendant was trying to lease out and encumber the suit property to third party not only in violation of the orders passed by the High Court in RFA No. 365 of 2000 but also causing detriment to the rights, title and interest of the plaintiff.
2(c) With the above averments, the suit was filed for the following prayers:-
"(a) Declaration be given in favour of the plaintiff and against the defendant to the effect that the order dated 13.7.2012 in Case No. 2/2012 titled as Sh. Rajinder Kumar Vs. Sh. Om Prakash & Other passed by Ltd. Assistant Collector, IInd Grade Theog, Shimla is illegal, null and void and not binding on the rights, title and interest of the plaintiff and ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 6 consequently mutation No. 15 dated 11.9.2012 entered on the basis of said order is factually incorrect, illegal, null and .
void and not binding upon the rights, title and interest of the plaintiff in any manner whatsoever and same is a result of fraud and deception.
(b) Decree for permanent prohibitory injunction be also passed in favour of the plaintiff and against the defendant thereby restraining the defendant from alienating, transferring, encumbering, changing the nature of the property or creating any third party interest in any manner whatsoever in the property comprised in Khata No. 85/78, Khatauni No. 202/197, Khasra No. 1000, 1001, 1002, 1003, 1004, 1005 and 1028 total measuring 02-04-41 Hct. Up Mohal Kalinda, Tehsil Theog, District Shimla.
(c) Decree for recovery of Rs. 2,00,000/- (Rs. Two lakhs only) as damages for mental harassment and agony suffered by the plaintiff as also expenditure incurred by the plaintiff in coming from USA to India for the purposes of taking remedial measures illegal and unlawful acts of the defendants and protecting his rights and interest"
2(d) Written statement Present petitioner took following defence in his written statement:-
2(d)(i) Civil Suit No. 67-S/1 of 95/93 filed by the plaintiff was for partition and rendition of accounts of the entire property co-owned by the parties. The entire estate involved in that suit was initially owned by the parents of the parties i.e. late Shri Sant Ram and Smt. Shakuntla Devi. The three brothers ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 7 including the present parties were owners to the extent of 1/3rd share each in the entire suit land-the subject matter of civil Suit .
No. 67-S/1 of 95/93. The shares of the three brothers were separated by their mother Smt. Shakuntla Devi during her life time. Subsequent thereto, the plaintiff, defendant and the third brother late Shri Rajneesh Sood had been managing their respective shares. Possession of the suit property involved in the instant suit i.e. Kharsra Nos. 1000-1005 was given to the defendant who had raised an apple orchard thereupon and had been managing the same independently. In the civil suit No. 67-S/1 of 1995/93, the plaintiff had challenged the authenticity, validity and legality of the Will dated 26.3.1974 executed by Shri Sant Ram and the Will dated 10.2.1975 executed by Smt Shakuntla Devi. The suit was partly decreed by the learned District Judge, Shimla on 16.9.2000. The suit property involved in the present lis, is one of the many properties involved in the aforesaid Wills and subject matter of civil suit No. 67-S/1 of 1995/93.
2(d)(ii) The judgment and decree passed by learned District Judge on 16.9.2000 in civil suit No. 67-S/1 of 1995/93 has been challenged by the plaintiff in RFA No. 365/2000. This appeal is ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 8 pending adjudication. Pursuant to the interim orders passed therein, the parties have been restrained from alienating or .
creating third party rights over the entire joint property including the present suit property. Injunction, therefore, has already been granted with respect to suit property. Matter in issue in the present suit was also directly and substantially in issue in RFA No. 365/2000.
r to civil suit No. 67-S/1 of 1995/93. It is now pending adjudication in 2(d)(iii) The defendant moved an application under Section 37 of the Act before the A.C. IInd Grade for correcting the revenue record pleading therein that the plaintiff was wrongly shown to be in joint possession of the suit property whereas suit property was in exclusive possession of the defendant on the spot. The application was proceeded in accordance with law. It was allowed on 13.7.2012. The existing revenue entries in respect of possession over the suit property were ordered to be corrected and changed in favour of the applicant/defendant.
Plaintiff is not entitled to take the plea of alleged wrong impleadment of third brother late Shri Rajneesh Sood.
Defendant denied that there was infraction of any procedure or law in passing the order dated 13.7.2012 and stated that order ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 9 dated 13.7.2012 was passed after following due process of law.
The plaintiff was aware of the order. The order dated 13.7.2012 .
was appealable. Plaintiff had already taken legal recourse against this order by filing an appeal under Section 14 of the Act. The fact that the plaintiff had already availed the statutory remedy available to him against the order dated 13.7.2012 was not disclosed by him in the plaint. Plaintiff cannot simultaneous avail two remedies against a single order.
2(d)(iv) Section 171 of the Act expressly bars the jurisdiction of the civil court in matters within the jurisdiction of the revenue officers. Correction of revenue entry in record of rights, in accordance with law, was within the domain of the revenue officer. Statutory remedy was available to the plaintiff against the order dated 13.7.2012. The statutory remedy was availed by the petitioner. The civil suit filed by plaintiff cannot proceed in view of bar of jurisdiction created by Section 171 of the Act.
2(d)(v) It was denied that the procedure contemplated in law was not followed by Assistant Collector IInd Grade in deciding the application moved by the defendant under Section 37 of the Act. The Kanungo was directed to submit his report.
::: Downloaded on - 31/01/2022 23:10:04 :::CIS 10The Kanungo visited the spot, recorded the statements and submitted in his report that the defendant was in exclusive .
possession over the suit property. After complying the procedure in law, the order was passed by A.C. IInd Grade on 13.7.2012 for changing the existing revenue entries in respect of possession over the suit land in favour of the defendant/applicant. The other contentions raised by the plaintiff were also denied in the written statement.
2(e) Application under Order 7 Rule 11 CPC 2(e)(i) Alongwith the written statement, the defendant moved an application under Order 7 Rule 11 CPC for rejection of the plaint. The defendant submitted that plaintiff had sought declaration in the suit with respect to the order dated 13.7.2012.
This order was passed by the Assistant Collector IInd Grade, Theog under Section 37 of H.P. Land Revenue Act. In terms of the order the exiting revenue entries of possession over the suit property were changed in favour of defendant. Section 14 of the Act provides remedy of filing an appeal against the order dated 13.7.2012. The plaintiff, at the time of filing the civil suit had simultaneously availed the statutory remedy by challenging the order dated 13.7.2012 before the Collector, Shimla. He ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 11 cannot simultaneously avail two remedies in respect of single cause of action against same order of 13.7.2012. Invoking .
Section 171 of the Act, bar of jurisdiction of civil court against the order dated 13.7.2012 was also pleaded. On the basis of these averments, it was prayed that the plaint deserved to be rejected.
2(e)(ii) Opposing the application, the plaintiff submitted in his reply that the plaint was not hit by Section 171 of H.P. Land Revenue Act as the civil suit filed by the plaintiff was for declaration with consequential reliefs of permanent prohibitory injunction and damages. That the plaintiff had raised intricate question of title in the civil suit. Determination of such question was within the sole domain of the civil court. The question raised in the plaint could not be answered by the revenue court.
The order dated 13.7.2012 was passed behind the back of the plaintiff and on the basis of this illegal order, the mutation was attested on 11.9.2012. Under the garb of order dated 13.7.2012, the defendant was usurping the apple crop from the suit property and was trying to dispossess the plaintiff. It was admitted that plaintiff had filed an appeal before the Collector under Section 14 of the Act against the order dated 13.7.2012 ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 12 passed by Assistant Collector IInd Grade. However, it was submitted that the appellate authority being the revenue court .
could only adjudicate regarding the mutation entries and could neither delve into question of title nor could restrain the defendant from selling, alienating and encumbering the suit property. That grant of such relief was only within the domain of the civil court.
The possession and ownership rights of the plaintiff can only be protected by the civil court and, therefore, plaintiff was within his right to file the suit for the reliefs prayed by him.
3. Order passed by trial Court Learned trial Court after hearing the parties, vide order dated 11.7.2018 dismissed the application moved by the defendant under Order 7 Rule 11 CPC holding that question of title involves complex issues of fact and law, which can be referred by the revenue court for decision by the civil court.
That non-following of the statutory provisions or principle of natural justice would invoke the jurisdiction of the civil court.
That in the instant case the revenue court had yet neither ascertained the facts nor denied the relief to the plaintiff. The ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 13 trial court dismissed the application for the following reasons:-
"It is also significant to mention that the question .
of title involves complex issues of fact and law for which even a revenue Court can refer the matter through parties to be decided by the civil court. But non following of the statutory provisions or principle of the natural justice makes the invoking the jurisdiction of civil Court. However, the revenue Court has yet not ascertained the truth of the fact and not denied the relief to the plaintiff/non applicant. The basic ground over which the challenge has been made is that the order has been passed against dead person and he has been proceeded against ex- parte intentionally to defeat his right and interest. So far as the non following of the statutory procedure or not proceedings in accordance with the natural justice is concerned it has yet not been concluded. But the civil suit filed before this Court pertains to declaration and injunction in which no evidence has been led as yet. Without these being anything prima-facie, this Court cannot conclude that it lack express or implied jurisdiction to try the case."
Aggrieved against this order, the defendant has moved the present petition under Article 227 of the Constitution of India.
4. Contentions Mr. Neeraj Gupta, learned Senior Counsel for the petitioner/defendant painstakingly argued for rejection of the ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 14 plaint and reiterated the stand taken by the defendant in his application under Order 7 Rule 11 CPC. Learned counsel in .
support of his argument for rejecting the plaint under Order 7 Rule 11(d) CPC relied upon (2019) 3 SCC 692, titled Pyare Lal vs. Shubhendra Pilania, minor through natural guardian father Pradeep Kumar Pilania and (2020) 12 SCC 680, titled Infrastructure.
r to South Delhi Municipal Corporation versus Today Homes & Mrs. Devyani Sharma, learned counsel for the respondent/plaintiff vehemently defended the impugned order and the stand taken by the plaintiff in reply to the application moved under Order 7 Rule 11 CPC. In support of her submissions, learned counsel relied upon AIR 1969 SC 78, titled Dhulabhai etc. vs. State of Madhya Pradesh & another, 1992 (1) Sm. L.C. 320, titled Dalip Singh & others vs. State of H.P. & others, (2003) 1 SCC 557, titled Saleem Bhai & others vs. State of Maharashtra & others, (2005) 7 SCC 510, titled Popat & Kotecha Property vs. State Bank of India Staff Association, 2008 (1) Shim. L.C. 45, titled Jagannath vs. Om Prakash, 2008 (2) Shim. L.C. 421, titled Smt. Bhekhalu Devi vs. Smt. Ram Ditti & other, (2009) 4 SCC 299, titled ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 15 Rajasthan State Road Transport Corporation & another vs Bal Mukind Bairwa, (2010) 8 SCC 329, titled Shalini Shyam .
Shetty & another vs. Rajendra Shanka Patil, Latest HLJ 2002 (H.P.) 197, titled Roshan Lal vs. Krishan Dev and 2021 SCC Online 567, titled Ratul Mahanta vs. Nirmalendu Saha.
5. Observations After hearing learned counsel for the parties at length and on going through the record, I am of the considered view that this petition deserves to be allowed for the following reasons:-
5(i) The application was moved by the defendant for rejection of the plaint in terms of Order 7 Rule 11 (d) of the Code of Civil Procedure, which reads as under:
"11. Rejection of Plaint:- The plaint shall be rejected in the following cases:-
(a) to (c)xxxxxxxxxxxx
(d) where the suit appears from the statement in the plaint to be barred by any law."
The remedy under Order 7 Rule 11 CPC is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence and conducting a trial on the ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 16 basis of evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in the .
provision. A duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon or whether the suit is bared by law. It is not permissible to cull out a sentence or a passage and to read it in isolation. It is the substance and not merely the form, which has to be looked into.
If on a meaningful reading of the plaint, it is found that suit is manifestly vexatious and without any merit and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC [Refer (2020) 7 SCC 366, titled Dahiben vs. Arvind Bhai Kalyanji Bhanusali].
5(ii) The basic relief sought by the plaintiff in the plaint is in respect of order dated 13.7.2012 passed by Assistant Collector IInd Grade Theog, District Shimla. Under relief No. 1, plaintiff has prayed for declaration that this order be declared null, void and not binding on his rights over the suit property. In terms of the order dated 13.7.2012, the Assistant Collector IInd Grade had allowed an application moved by the defendant under Section 37 of the Land Revenue Act. The defendant in ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 17 this application had prayed for correction in the existing revenue entry, which showed the suit property to be jointly owned and .
possessed by the three brothers i.e. the plaintiff, defendant and Shri Rajneesh Sood. The case of the defendant before the Assistant Collector IInd Grade was that the suit property was in his exclusive possession, over which he had planted an apple orchard. Therefore, revenue entry in respect of the possession of the suit property should be changed in his favour.
r After getting an inquirty conducted in this regard through Kanungo, the Assistant Collector IInd Grade recorded in the order dated 13.7.2012 that it was the defendant who was in possession over the suit property. The Assistant Collector IInd Grand by resorting to the provisions of Section 37 of the Act allowed the application moved by defendant and ordered change of the revenue entry for reflecting defendant's possession over the suit property. Chapter IV of the H.P. Land Revenue Act encompassing sections 32 to 46 pertains to 'Records- of rights and Periodical Records'. Sections 32-34 provide for preparation of record of rights. Section 35 onwards lay down the procedure for making the records. Section 37 provides for determination of disputes in respect of any entry in a record or in a register of ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 18 mutations. It would be appropriate at this stage to take note of the Section 37 of the Act, which reads as under:
.
37. Determination of dispute.- (1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter, a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested, but subject to the provisions of the next following section and after such inquiry as he thinks fit, determine the entry to be made as to that matter.
(2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain through the Gram Panchayat constituted under the Himachal Pradesh Panchayati Raj Act, 1994 (Act No. 4 of 1994) or any other agency so prescribed by the Financial Commissioner or by summary inquiry who is the person best entitled to the property and shall by order direct that, that person be put in possession thereof, and that an entry in accordance with that order, be made in the record or register.
(3) A direction of a Revenue Officer under sub- section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.
::: Downloaded on - 31/01/2022 23:10:04 :::CIS 19The order dated 13.7.2012 was passed by the A.C. IInd Grade in exercise of powers under Section 37 of the Act. It .
is not the case of the plaintiff that the A.C. IInd Grade had no jurisdiction to pass the order dated 13.7.2012 for correction of revenue entry.
5(iii) The order passed by Assistant Collector IInd Grade on 13.7.2012 was appealable under Section 14 of the Act. This remedy admittedly has been availed by the plaintiff. He has filed an appeal against the order dated 13.7.2012 before the Collector. Simultaneously, the plaintiff has filed present civil suit for declaration that the order dated 13.7.2012 is illegal, void and not binding upon his right, title and interest. On that basis, he has also sought injunction against the defendant from interfering over the suit property and for recovery of Rs.
2,00,000/- for damages.
5(iv) The grievance in the plaint is in respect of order dated 13.7.2012. It has been contended that the A.C. IInd Grade had embarked upon question of title regarding the suit land in the order dated 13.7.2012. During hearing of the case, with the consent of learned counsel for the parties, certain documents produced by them viz order dated 13.7.2012 and ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 20 related proceedings, the judgment and decree dated 16.9.2000 were looked into. It is significant to notice that under order .
dated 13.7.2012 the A.C. IInd Grade had not decided any title dispute between the parties. He had only ordered to change the existing revenue entry of possession over the suit land. The assertion of the plaintiff that A.C. IInd Grade under the order dated 13.7.2012 had decided question of title is not correct.
Neither any question of title was raised before the A.C. IInd Grade nor he decided any question of title.
5(v) It was also contended for the plaintiff that plaint involved intricate question of title which could not be determined by the revenue court. That determination of such questions was within the sole domain of civil court. However, examination of plaint leads to the conclusion that it is only the order dated 13.7.2012 passed by the A.C. IInd Grade, which is challenged in the plaint. Declaration sought is with respect to this order.
The plaint per se does not raise any question of title. Various issues including question of title etc. raised by the plaintiff are presently pending adjudication before this Court in another litigation i.e. RFA No. 365 of 2000 filed by the plaintiff, arising out of judgment and decree dated 16.9.2000 passed by learned ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 21 District Judge in civil suit No. 67-S/1 of 1995/93 instituted by the plaintiff. The observations of learned trial court and contentions .
advanced by the plaintiff that intricate question of title has been raised in the plaint, which could be decided only by the civil court are not borne out from the record.
5(vi) Learned Senior Counsel for the defendant raised an objection that the civil suit filed by the plaintiff was barred in terms of Section 171 of the Act, relevant part of which reads as under:
"171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.-
Except as otherwise provided by this Act-
(1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and in particular-
(2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely-
(i) to (v) xxxxxxxxxxx
(vi) the correction of any entry in a record-of-rights, periodical record or register of mutations."
Section 9 of Code of Civil Procedure provides for jurisdiction of the Civil Court as under:
::: Downloaded on - 31/01/2022 23:10:04 :::CIS 22"Section-9. Courts to try all civil suits unless barred .- The Courts shall (subject to the provisions .
herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I--A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation Il--For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
It was argued that record of rights are to be maintained and entries are to be recorded in accordance with law and procedure mandated under Chapter IV of the Act. The disputes in relation to the record of right are to be determined as per Section 37 of the Act. Section 171 of the Act expressly bars the jurisdiction of civil court in matters of correction of entries in record of rights or register of mutations. It was further contended that the existing revenue entry showed the joint owners including the plaintiff to be in possession over the suit land. The entry was contrary to the spot position. It was only the defendant, who was in possession of the suit land.
::: Downloaded on - 31/01/2022 23:10:04 :::CIS 23Therefore, defendant moved an application for correction of revenue entry to show his exclusive possession over the suit .
land. The application was moved under Section 37 of the H.P. Land Revenue Act and was decided in his favour by A.C. IInd Grade vide order dated 13.7.2012. Against such an order, jurisdiction of civil court was barred in view of bar imposed by Section 171 of the Act.
Learned
r to
counsel for the respondent/plaintiff
submitted that the plaintiff had alleged that while passing order dated 13.7.2012, principles of natural justice were not adhered to and mandatory provisions of law and procedure were not complied with. In view of these assertions and the grounds taken in the plaint, the civil court had the jurisdiction to entertain and adjudicate the dispute raised in the plaint.
Hon'ble Apex Court in (2020) 12 SCC 680, titled South Delhi Municipal Corporation and another versus Today Homes and Infrastructure Private Limited and others held that jurisdiction of civil court cannot be completely taken away in spite of either an express or implied bar. Civil courts despite such bar continue to have jurisdiction to examine a matter in which there is an allegation of non compliance with ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 24 statutory provisions or any fundamental principle of judicial procedure. Principles on point of ouster of jurisdiction of civil .
courts laid down in Dhulabhai vs. State of M.P. (1968) 3 SCR 662 were reiterated in para-9 of the judgment as under:-
"9. Section 17 of the Madhya Bharat Sales Tax Act, 1950 barred the jurisdiction of any court in matters pertaining to assessments made under the Act. The recovery of Sales Tax under the said Act was the subject matter of civil suits filed by the asessees. The State objected to the maintainability of the civil suits on the ground that jurisdiction of civil court was barred. After taking note of several judgements of this Court on the point of ouster of jurisdiction of the civil courts, Hidayatullah, J. in Dhulabhai and Ors. vs. The State of M.P. observed 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.::: Downloaded on - 31/01/2022 23:10:04 :::CIS 25
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 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 illegally 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 ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 26 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."
Apex Court also held that wherever a right or liability, not pre-existing in common law is created by a statute and that statute itself provides a machinery for enforcement of such right or liability, both the right/liability and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the jurisdiction of the civil court is impliedly barred. In the facts of the case, the Hon'ble Apex Court observed that remedy by way of an appeal against an order of assessment was provided under the statute. The remedy provided was adequate and effective. Therefore, applying the criteria laid down in Dhulabai's case, it was held that jurisdiction of civil court was impliedly barred. Suit was held to be not maintainable with following concluding observations:-
"12. Wherever a right or liability, not pre-existing in common law is created by a statute and that statute itself provides a machinery for enforcement of such ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 27 right or liability, both the right/liability and the remedy having been created uno flatu and a finality is .
intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the jurisdiction of the civil court is impliedly barred.
13-16 xxxxxxxxxxx
17. We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non- compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order impugned in the suit is at the most an erroneous order. No jurisdictional error is pleaded in the plaint. Therefore, the question of maintainability of the suit does not arise. In the absence of any pleadings in the plaint, the High Court ought not to have remanded the matter back to the learned Single Judge."
In (2019) 3 SCC 692, titled Pyarelal vs. Shubhendra Pilania (Minor) through Natural Guardian (Father) Shri Pradeep Kumar Pilania and Others, the Apex ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 28 Court while considering the provisions of Rajasthan Tenancy Act vis-a-vis an application moved under Order 7 Rule 11(d) CPC .
held that jurisdiction to declare khatedari rights exclusively vests with the Revenue Court. Only after declaration of rights by Revenue Court, suit in respect of land in question can be maintained. Relevant paras from the judgments are as under:-
"22.
The appellant has prayed that the gift deed dated 10-2-2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court.
27. In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 29 agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or .
sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act.
The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court."
In the instant case, as observed earlier, the basic order challenged in the civil suit by the plaintiff was dated 13.7.2012. This order was passed by A.C. IInd Grade. The order was passed on an application moved by the defendant under Section 37 of the Act. Section 171 of the Act bars jurisdiction of the civil court in respect of matters falling within jurisdiction of the revenue officers. Correction of revenue entry in record of rights is within the domain and jurisdiction of revenue officers in terms of Chapter IV of the Act. In the civil suit the plaintiff alleged that he was not served in the application moved by defendant under Section 37 of the Act and that the order was passed behind his back. Assuming that on these grounds, plaintiff could have filed the civil suit challenging the order dated ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 30 13.7.2012, then also, the fact remains that on these very assertions the plaintiff has also filed statutory appeal under .
Section 14 of the Act. Plaintiff could not simultaneously resort to two parallel remedies on same cause of action on same set of facts against the same order. Having availed statutory remedy against order dated 13.7.2012, plaintiff could not file civil suit on the same cause of action. Having chosen to avail the statutory remedy which the plaintiff is still pursuing, civil suit filed by him was not maintainable. It would be apt to refer to (2007) 6 SCC 120, titled Arunima Baruah versus Union of India and Others, where the Supreme Court following the judgment in Jai Singh vs. Union of India reported in (1977) 1 SCC 1 deprecated pursuing two parallel remedies by the parties in respect of one subject-matter and held as under:-
"18. There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter......."
5(vii) Conclusion
(a) Plaintiff in the instant civil suit prayed for declaring
the order dated 13.7.2012 as illegal, null and void.::: Downloaded on - 31/01/2022 23:10:04 :::CIS 31
(b) Order dated 13.7.2012 was passed by the A.C. IInd Grade in an application moved by the defendant under Section .
37 of the H.P. Land Revenue Act 1953. In the application, defendant had prayed for correction of existing revenue entry, showing the defendant and his brothers including the plaintiff-the joint owners of the suit land, to be in joint possession of the same.
Defendant asserted in the application that he was in exclusive possession over the suit land. The A.C. IInd Grade allowed defendant's application vide order dated 13.7.2012.
Thereby revenue entry of possession over the suit land was corrected in defendant's favour. The A.C. IInd Grade had the jurisdiction to pass the order dated 13.7.2012.
(c) Plaint does not raise any question of title. It only challenges order dated 13.7.2012 passed by A.C. IInd Grade.
A.C. IInd Grade had not decided any question of title under order dated 13.7.2012. Defendant had not raised any question of title in his application moved under Section 37 of the Act before the revenue officer. Plaintiff and defendant both continue to be joint owners of the suit land. The possession over suit land was however found by A.C. IInd Grade to be that of the ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 32 defendant. Correction of revenue entry to this effect was accordingly ordered on 13.7.2012.
.
(d) Plaintiff had statutory remedy under Section 14 of H.P. Land Revenue Act against correction of revenue entry ordered on 13.7.2012. Plaintiff availed this statutory remedy and challenged the order before the Collector. Appeal filed by
(e) to him is pending adjudication. Plaintiff is pursuing this remedy.
Having elected to avail statutory remedy against the order dated 13.7.2012, plaintiff cannot simultaneously institute civil suit against the same order dated 13.7.2012. In the facts of the case, two parallel remedies against the same order, on same cause of action on same set of grounds cannot be simultaneously resorted to. Plaintiff is pursuing the statutory remedy of appeal, which is pending adjudication before the revenue courts.
(f) Plaintiff has already filed another civil suit No. 67-1/S of 95/03 for partition and rendition of accounts against the defendant and others with respect to various parcels of lands/properties jointly owned by plaintiff, defendant and others.
Suit property involved in the present case is also part of suit property involved in civil suit No. 67-1/S of 95/93. Question of ::: Downloaded on - 31/01/2022 23:10:04 :::CIS 33 title is raised in that civil suit (67-1/S of 95/93), which was partly decreed by learned District Judge on 16.9.2000. RFA No. .
365/2000 filed by the plaintiff arising out of this judgment and decree is as yet pending adjudication. In terms of interim orders passed in the RFA No. 365/2000, parties have already been restrained from creating third party rights over the subject matter of suit. The subject matter of RFA No. property involved in the instant suit.
r The
365/2000 includes
injunction order
passed in RFA No. 365/2000 is already operating with respect to the property involved in the present suit and is also applicable to the parties herein.
For all the aforesaid reasons, this petition is allowed. The application moved by the defendant under Order 7 Rule 11 of Code of Civil Procedure is allowed. The order passed by learned trial court on 11.7.2018 in CMA No. 28-6 of 2018/16 in Civil Suit No. 43/1 of 17/14 is set aside.
Consequently, plaint is ordered to be rejected. Pending miscellaneous applications, if any, shall also disposed of.
Jyotsna Rewal Dua Judge 4th October, 2021 (vs) ::: Downloaded on - 31/01/2022 23:10:04 :::CIS