Madhya Pradesh High Court
Ramsunder Singh & Ors. vs Ramsajeevan & Anr on 4 October, 2012
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
1 F.A. 396/2000
HIGH COURT OF MADHYA PRADESH JABALPUR
SINGLE BENCH:
HON'BLE SHRI JUSTICE A.K. SHRIVASTAVA
F.A. No. 396/2000
.........Appellants: 1. Ram Sunder Singh (since deceased)
Defendants 2 to 4 now by LRs:
(a) Smt. Jaimanti Singh Gond w/o
Late Shri Ram Sunder Gond, R/o
Village Bharatpur, Block
Development Ram Nagar, District
Satna (M.P.)
(b) Shri Rampal Singh Gond s/o Late
Shri Ram Sunder Gond, R/o
Village Bharatpur, Block
Development Ram Nagar, District
Satna (M.P.)
(c) Shri Ram Prasad Singh Gond s/o
Late Shri Ram Sunder Gond, R/o
Village Bharatpur, Block
Development Ram Nagar, District
Satna (M.P.)
2. Motilal Singh, s/o Shri Devi Singh Gond,
R/o Bharatpur, Police Station Ramnagar,
Tahsil Amarpatan, District Satna (now
Tehsil New Ramnagar, District Satna.
3. Mohan Singh, s/o Shri Devi Singh Gond,
R/o Bharatpur, Police Station Ramnagar,
Tehsil Amarpatan, District Satna (now
Tehsil New Ramnagar, District Satna).
Versus
.........Respondents 1. Ram Sajeewan s/o Shri Mundu Patel, by
: occupation - Agriculturist, R/o village
2 F.A. 396/2000
(Plaintiff) Bela, Police Station Ramnagar, Tahsil
Amarpatan, District Satna (now Tehsil
New Ramnagar, District Satna).
(Defendant No.1) 2. Ramautar, s/o Shri Ram Dulare, by
occupation - Agriculturist, R/o village
Bharatpur, Police Station Ramnagar,
Tahsil Amarpatan, District Satna (now
Tehsil New Ramnagar, District Satna).
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Appellants by - Shri Neelesh Kotecha, Advocate
Respondent No.1 by - Shri Dinesh Patel, Advocate
Respondent no.2 by - Shri G.S. Ahuluwalia, Advocate
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JUDGMENT
(04/10/2012) This appeal has been preferred by the defendants no.2 to 4 against the judgment and decree dated 8.5.2000 passed by learned Additional District Judge, Maihar, District Satna in Civil Suit No. 16-A/1994 decreeing the suit of plaintiff.
2. In brief the suit of plaintiff/respondent no.1 is that the land in question was originally belongs to Kandhai who sold it to Jamuna Prasad vide sale deed dated 2.8.1955 and thereafter Jamuna Prasad sold the land in question to defendant no.1 Ramavtar/respondent no.2 and Ramavtar sold the said land vide registered sale deed dated 15.3.1990 to plaintiff Ram Sajeewan. Thus, the plaintiff/respondent no.1 Ram Sajeewan is the Bhumiswami of the suit property having possession over it. It has also been pleaded that the land in question was mutated in the name of Ramavtar from whom the plaintiff bought the suit land. 3 F.A. 396/2000 Since defendants no.2 to 4/appellants who are the heirs of Kandhai nor Kandhai during his life time never objected in regard to the sale and did not file any suit in any Court, the order passed by the Sub Divisional Officer, Amarpatan, District Satna dated 10.5.1994 is null and void and defendants 2 to 4 have no right in the suit property. It has also been pleaded that by keeping the plaintiff/respondent no.1 in dark, the proceeding under Section 170-B of M.P. Land Revenue Code, 1959 (in short the Code) was instituted by defendants 2 to 4 against defendant no.1/respondent no.2 Ramavtar and, therefore, the order of Sub Divisional Officer dated 10.5.1994 in Revenue Case No. 262A/23/82-83 is null and void. Further, it has been prayed that in pursuance to the order of the Sub Divisional Officer, the possession which has been obtained from plaintiff/respondent no.1 Ram Sajeewan be delivered to him back. An alternative relief has also been sought that in case the main reliefs cannot be granted, the consideration amount Rs. 76,000/- along with interest @ 12% p.a. from the date of filing of the suit be decreed against defendant no.1.
3. The defendant no.1/respondent no.2 Ramavtar filed written statement and pleaded that he sold the land in question to the plaintiff because plaintiff's predecessor Kandhai was not having any right in the suit property because he already sold the suit property to Jamuna Prasad who sold the suit property to him and he sold the suit property to plaintiff Ram Sajeewan. The 4 F.A. 396/2000 possession of plaintiff was also admitted and it has also been pleaded that in pursuance to the order of Sub Divisional Officer, the possession was obtained from plaintiff and it was delivered to defendants no. 2 to 4.
4. The defendants 2 to 4 filed separate written statement and denied the plaint averments. It has been pleaded that since the suit land was admittedly of Kandhai and that was not sold by executing registered sale deed in favour of Jamuna Prasad therefore, the sale deed dated 2.8.1975 is void since the property in question was sold to Rs. 1000/- to Jamuna Prasad. Further, it has been pleaded that upon the application filed by these defendants, proceeding under Section 170-B of the Code was initiated against vendor Ramavtar (defendant no.1) before Sub Divisional Officer and vide order dated 10.5.1994, their application was allowed and it was directed to take possession back from Ramavtar and thereafter it was delivered to these defendants. It is also pleaded that since Kandhai was an aboriginal tribe, therefore, there was a bar under Section 165(6) of the Code to sell the land of aboriginal tribe without obtaining permission from the Collector. The question of jurisdiction was also raised by defendants that the order passed under Section 170-B of the Code by the competent authority cannot be assailed in the civil suit and hence it has been prayed that civil suit be dismissed.
5 F.A. 396/2000
5. The learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit. In this manner this appeal has been filed by the defendants 2 to 4.
6. Shri Neelesh Kotecha, learned counsel appearing for the appellants argued the same points which have been raised by appellants in their written statement. However, Shri Ahuluwalia, learned counsel appearing for the respondent no.2/defendant no.1 Ramavtar (vendor of plaintiff) argued in support of the impugned judgment and submitted that much prior to coming into force the Code, on 2.8.1955 the land in question was sold by Kandhai to Jamuna Prasad who was a aboriginal person and who sold it to Ramavtar (defendant no.1). It has also been put forth by learned counsel that the property in question is in Tahsil Amarpatan, District Satna which is not a notified area under Section 165(6) of the Code and thus the provisions of Section 165(6) of the Code are not applicable. Further it has been submitted that since the plaintiff was not a party in the proceedings before the competent authority in the application filed under Section 170-B of the Code and further that the transaction took place much prior to the commencement of the Code between Kandhai and Jamuna Prasad and the land in question was sold to him on 2.8.1955, therefore, the said order of the Sub Divisional Officer dated 10.5.1994 is without jurisdiction. In support of his contention learned counsel has placed heavy 6 F.A. 396/2000 reliance on the decision of Constitution Bench of Supreme Court Dhulabhai etc. Vs. State of Madhya Pradesh and others AIR 1969 SC 78 and submitted that the civil suit was maintainable.
7. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed.
8. Admittedly defendants no.2 to 4 are the heirs of Kandhai. It is also not in dispute that Kandhai sold the land in question on 2.8.1955 by unregistered sale deed to Jamuna Prasad who sold it to respondent no.2/defendant no.1 Ramavtar and thereafter Ramavtar sold the suit land vide registered sale deed Ex. P/1 to plaintiff on 15.3.1990. The Land Revenue Code came into force with effect from 2nd October, 1959. On bare perusal of Section 165(6) of the Code, it is gathered that there is a bar to sell the land belonging to an aboriginal tribe which has been notified by the State Govt. in that regard. Admittedly, the land in question is in Tahsil Amarpatan, District Satna. On bare perusal of the notification of the State Govt., it is gathered that entire District Satna has not been notified for the purpose of bar under Section 165(6) of the Code. This would mean that any land of Satna District could be sold by an aboriginal tribe to a member who is not a aboriginal and if the land is to be sold to him, no permission as envisaged under this section is required to be obtained from the Collector. Thus, there was no bar to sell the land in question 7 F.A. 396/2000 by Kandhai (predecessor of defendants 2 to 4) to Jamuna Prasad.
9. Apart from what I have held hereinabove, the transaction of sale took place much prior to commencement of the Code which came into force on 2.10.1959. The unregistered sale deed executed by Kandhai in favour of Jamuna Prasad is dated 2.8.1955 (Ex. P/4). So far as the authenticity of unregistered sale deed is concerned, suffice it to say since the date of sale 2.8.1955 the possession was delivered to vendee Jamuna Prasad and he was possessing the same. Throughout in his life time, said Kandhai never filed any suit to obtain possession back. The name of Jamuna Prasad was also mutated as Bhoomiswami in the revenue record (see Ex. P8-C of Samvat 2012 = year 1955). Said Jamuna Prasad later on sold the suit property to Ramavtar (vendor of plaintiff) and possession was delivered to him and his name was also mutated in the revenue record on 26.7.1970 (see Ex. P6-C). Therefore, said Ramavtar (defendnat no.1) was enjoying and possessing the property. Only by virtue of an order of the Sub Divisional Officer dated 10.5.1994 which has been affirmed by the Collector in Appeal No. 19-A-23/93-94 (Ramavtar Vs. Ram Sajeewan and Others) dated 6.6.1996 (Ex. D/1), the possession was obtained and delivered to defendants 2 to 4. The proceedings under Section 170-B of the Code was filed by defendants no.2 to 4 and if this provision is considered in its 8 F.A. 396/2000 true perspective, it would reveal that every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 between the period commencing on the 2nd October 1959 (i.e. the date of commencement of the Code) and ending on the date of commencement of the Amendment Act of 1980, shall within two years of such commencement, notify to the Sub Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land. According to me, this provision will be applicable only if the transaction is between 2.10.1959 (the date of commencement of the Code) and M.P. Land Revenue Code (Amendment Act of 1980). Since the transaction was much prior to the date of commencement of the Code, therefore the provisions of Section 170-B of the Code will not be applicable.
10. The 5 Judge Bench of Supreme Court in Dhulabhai (Supra) has laid down the principle barring a civil suit which reads thus:-
(1) Where the statute gives a finality to the orders of the special tribunals the civil court's 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.9 F.A. 396/2000
(2) Where there is an express bar of the jurisdiction of the 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. Eve,, 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 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 jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
1 F.A. 396/2000The Supreme Court held that the suit in question for declaration that provisions of law relating to assessment were ultra vires and for refund of tax illegally collected was not barred by Section 17 of the Code. The aforesaid principle laid down by the Supreme Court is squarely applicable in the present case and, therefore, according to me, the present civil suit is not barred because the order is without jurisdiction and appears to be non-est.
11. I have gone through the reasonings assigned by learned Trial Court and I find that they are based on correct appreciation of the evidence placed on record and by placing reliance on the correct facts. This appeal is found to be bereft of substance, the same is hereby dismissed with no order as to costs.
(A.K. Shrivastava) Judge rao