Chattisgarh High Court
Vijay Kumar Toppo vs Amar Bilas, 20 Wpc/1773/2020 Vardhman ... on 24 August, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on:04/08/2020
Judgment delivered on:24/08/2020
Second Appeal No.428 of 2008
Vijay Kumar Toppo, S/o Julyus Toppo, Uranav, aged
about 40 years, Service man, R/o Vill. Khutera, Tah:
Bagicha, Dist: Jashpur (CG)
Appellant/Plaintiff
Versus
1. Amar Bilas, S/o Jakharias, aged about 36 years, Uranv,
Teacher and agriculturist, R/o Vil. Khutera, Tah.
Baticha, Dist. Jashpur (CG) At present R/o.
Patthalgaon, Tah. Patthalgaon, Dist. Jashpur (CG)
2. Dashrath, S/o Dhundha, aged about 55 years, Cast
Kanwar, agriculturist,
3. Munaki (died and deleted)
Defendants
4. State of C.G. through Collector Jashpur, Dist. Jashpur
(CG)
Respondents
For Appellant/Plaintiff : Mr.B.P.Gupta, Advocate For Res.No.1&2/Defendants: None present For Respondent No.4/State: Mr.Matin Siddiqui, Dy.A.G. Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment
1. This second appeal has been takenup for final hearing through video conference.
2. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the plaintiff are as under: "1. Whether the first appellate Court was justified in reversing the judgment and decree of the trial Court by recording a 2 perverse finding that the civil Court has no jurisdiction in respect of the dispute brought before the Court in view of the provisions contained under Section 257 (f) of the Chhattisgarh Land Revenue Code, 1959 ?
2. Whether the first appellate Court was justified in reversing the decree of the trial Court on merits by recording a finding which is perverse and contrary to record ?"
[For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].
3. The suit property bearing Khasra Nos.1111/1 and 1114/2 were previously registered in the names of defendant No.2Dashrath, Munki and one Jhalo in revenue records. The plaintiff purchased the suit land bearing Khasra Nos.1111/1 area 0.50 hectare (subsequently renumbered as Khasra No.1111/3) and Khasra No.1114 area 0.80 hectare (subsequently renumbered as Khasra No.1114/2) only from defendant No.2Dashrath by registered sale deed dated 7.7.93 (Ex.P31) and claimed that his name was duly recorded in revenue records in presence of defendant No.2 on 20.7.1992 pursuant to sale deed and he is continuing in possession over the suit land till 2002. In 2003, defendant No.1 started disputing his possession over the suit land in Khasra No.1111/3 area 0.15 decimal (0.057 hectare) and Khasra No.1114/2 area 3 0.40 decimal (0.186 hectare) claiming that the plaintiff has no title and he has purchased the suit land by registered sale deed dated 01.11.2000 (Ex.P1) and thereby defendant No.1 dispossessed the plaintiff from the suit land, as such, the plaintiff has purchased the suit land, he is entitled for declaration that he is titleholder of the land bearing Khasra No.1111/3 area 0.50 hectare and Khasra No.1114/2 area 0.80 hectare and sale deed executed by defendants No.2 and 3 in favour of defendant No.1 is null & void and map annexed with sale deed dated 01.11.2000 (Ex.P1) is also void and the plaintiff is entitled for restoration of possession of the suit land area 0.057 hectare of Khasra No.1111/3 and area 0.186 hectare of Khasra No.1114/2 shown in Schedule 'B' of the plaint from defendant No.1.
4. Resisting the suit, defendants No.1, 2 and 3 filed their joint written statement and denied the averments made in the plaint stating interalia that defendant No.1 has purchased the suit land bearing Khasra No.1111/1 area 0.36 acre and Khasra No.1114/1 area 1.70 hectares vide Ex.P1 on 01.11.2000 vide Ex.P1 from defendants No.2 & 3 and is in possession of the suit land and as such, the plaintiff is not entitled for any relief.
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5. The trial Court after framing as many as 8 issues including the issue of jurisdiction, by its judgment and decree dated 29.1.2007, decreed the suit holding that the plaintiff is titleholder of the suit land on the basis of sale deed (Ex.P31) and defendant No.1 has forcibly encroached upon the said land and sale deed executed by defendants No.2 and 3 in favour of defendant No.1 is void and the civil Court has jurisdiction to hear the suit by virtue of the provisions contained in Section 9 of the Code of Civil Procedure. On appeal being preferred by defendants No.1 to 3, the first appellate Court allowed the appeal holding that by virtue of the provisions contained in Section 257(f) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter called as 'Code') the jurisdiction of the civil Court is expressly barred and further held that the plaintiff has failed to prove his title over the suit land and thereby, by granting the appeal dismissed the suit, against which, this second appeal under Section 100 of the CPC has been filed by the appellant/plaintiff, in which substantial questions of law have been formulated, which have been setout in the opening paragraph of this judgment for sake of completeness.
6. Mr.B.P.Gupta, learned counsel for the 5 appellant/plaintiff, would submit that the plaintiff's suit is for restoration of possession based on title and for declaration of his title, as such, the jurisdiction of the civil Court is not barred by the provisions contained in Section 257(f) of the Code. He would further submit that finding of the first appellate Court that the plaintiff has no title over the suit land is also perverse and contrary to evidence available on record, as such, the judgment and decree of the first appellate Court deserves to be set aside and that of the trial Court be restored.
7. None present for respondents No.1 and 2 though served.
8. I have heard learned counsel for the appellant/plaintiff, considered his submissions made hereinabove and also went through the records with utmost circumspection.
Answer to substantial question of law No.1:
9. Section 257(f) of the Code provides as under: "257. Exclusive jurisdiction of revenue authorities.Except as otherwise provided in this Code, or in any other enactment for the time being in force, 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, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters: 6
(f) any claim against the State Government to have any entry made in any land records or to have any such entry omitted or amended."
10. A careful perusal of the aforesaid provision would show that the Civil Court shall have no jurisdiction to entertain any claim against the State Government to have any entry made in any land records or to have any such entry omitted or amended, as such, the Civil Court has no jurisdiction to entertain the suit claiming correction of number and entry made in any land records or suit of the plaintiff seeking relief contrary to the existing revenue records would not be maintainable.
11. At this stage, it would be appropriate to notice the reliefs claimed by the plaintiff in a suit which state as under: "1. ;g fd oknh ds i{k esa LoRo dh ?kks"k.kk dh tkos fd oknh us fnukad 7@7@1993 dks izfroknh dza-1 ls iathd`r fodz; i= ds vk/kkj ij ewy fodz; i= ds lkFk layXu VqdM+k uD'kk esa yky L;kgh ls fpUgkfdar Hkwfe;ksa dks fof/kor~ [kjhnk gS tks [k0dz0&1111@3 jdck&0-50 fMlfey ,oa 1114@2 jdck&0-80 fMlfey ij oknh dk LoRo gSA
2. ;g fd izfroknh dz-1 ds i{k esa izfroknh dz-&2 ,oa dfFkr equdh }kjk fnukad& 01@11@2000 dks fu"ikfnr fodz; i= ftlds dkj.k oknh ds }kjk [kjhnh xbZ Hkwfe izHkkfor gksrh gS ewyr% voS/kkfud O;FkZ ,oa 'kwU; rFkk fu"izHkkoh ?kksf"kr fd;k tkosA
3. ;g fd ?kksf"kr fd;k tkos fd fodz; i= fnukad&01@11@2000 dks fu"ikfnr fodz; i= esa layXu VqdM+k uD'kk esa n'kkZ;s x;s 7 Hkw&[k.Mks dh pkSgnh cukoVh QthZ vkSj dqVjfpr gS vkSj okLrfod VqdM+k uD'kk ls loZFkk fHkUu gksus ls voS/kkfud gksdj fu"izHkkoh gSA
4. ;g fd oknh dks izfroknh dz-1 ls okn i= dh vuqlwph "c" esa of.kZr [k0 dz0 ,oa mlds {ks=Qy dk vkf/kiR; fnyk;k tkosA
5. ;g fd oknh dks izfroknh dz-1 ls vuqlwph "c" esa of.kZr Hkwfe dk vkf/kiR; izkIr gksrs rd izfro"kZ 2000@& :0 ¼nks gtkj :i;s½ dk e/;orhZ ykHk fnyk;k tkosA
6. ;g fd oknh ds i{k esa izfroknh dz-1 ds fo:) bl vk'k; dh LFkkbZ fu"ks/kkKk dh vkKfIr ?kksf"kr dh tkos dh okn i= dh vuqlwph "v" esa of.kZr Hkwfe ds 'kkafriwoZ vf/kiR; esa izfroknh dz-1 Lo;a vFkok fdlh vU; vfHkdRrkZ ds ek/;e ls gLr{ksi u djsaA
7. vU; vuqrks"k fnyk;s tkus dh d`ik gksA"
12. A careful perusal of the aforesaid reliefs would show that the plaintiff has sought declaration of his title on the basis of sale deed dated 7.7.93 (Ex.P31) and also sought relief for declaration that sale deed dated 01.11.2000 (Ex.P1) executed by defendants No.2 and 3 in favour of defendant No.1 is null & void and also sought relief that the plaintiff is entitled for restoration of possession of the land shown in Schedule 'B' of the plaint from defendant No.1 and eventually, also sought relief that map annexed with sale deed dated 01.11.2000 (Ex.P1) is forged and fabricated, as such, the relief is substantially declaration of title, also for restoration of possession based on title and for permanent injunction.8
13. The question as to whether in the suit claiming declaration of title and restoration of possession, the jurisdiction of the civil Court is barred ?
14. This issue is no longer resintregra. The Supreme Court in the matter of Rohini Prasad and others v. Kasturchand and another1 relying upon the Full Bench decision of the Madhya Pradesh High Court in the matter of Ramgopal v. Chetu2 held that determination of question of title is the province of the civil court and unless there is any express provision to the contrary, exclusion of the civil court cannot be assumed or implied. It was observed as under:
"8......We find there have been consistent decisions of the Madhya Pradesh High Court holding that the determination of the question of title is the province of civil court and unless there is any express provision to the contrary, exclusion of the civil court cannot be assumed or implied. A Full Bench of the Madhya Pradesh High Court in Ramgopal vs. Chetu [1976 RN 146] was considering the question whether the civil court cannot take cognizance of a suit instituted by a bhumiswami on the basis of his title against the trespassers. The Full Bench repelled the argument that in proceedings under Section 250 of the Code, since the Revenue Authority has no jurisdiction to go into the question of title, it would lead to anomalous results if again it is held that the civil court has jurisdiction to decide any question relating to the title. The Full Bench observed:
"Under the general law, a suit for
1 (2000) 3 SCC 668
2 1976 RN 146
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possession based on title can be instituted in the civil court within 12 years from the date of dispossession. The principle that possession must follow title has received greater weight and sanctity when the distinction between the scope and effect of Article 142 and those of Article 144 of the Limitation Act, 1908, has been watered down and simpler provisions have been substituted in Articles 64 and 65 of the Limitation Act of 1963. It will be anomalous to read Section 250 as providing for a suit for possession based on title, which is to be instituted within two years only. It will entail a fantastic result that if a suit is not brought within two years under Section 250, the bhumiswami's right will be extinguished, because by virtue of Section 26 of the Limitation Act, if a suit for possession is not instituted within the period of limitation prescribed therefor, not only the remedy is barred but the right is also extinguished. Section 26 is an exception to the general rule that limitation bars the remedy but does not extinguish the right." The Full Bench then went to hold :
"The remedy provided in Section 250 of this Code can be resorted to by a bhumiswami by an application to the Tehsildar. He has to show either (1) that he was dispossessed by the nonapplicant otherwise than in due course of law, or (2) that he was dispossessed within two years from the date on which the possession of such person became unauthorised (although initially the possession of that person may be authorised). Thus, clearly enough, this section provides for a remedy at the hands of the Tahsildar for restoration of possession, when a bhumiswami is improperly dispossessed, that is, without due process of law. Clause (x) of Section 257 excludes the jurisdiction of the Civil Court to challenge 'any decision regarding reinstatement of a bhumiswami, improperly dispossessed under Section 250'. In both these provisions the subject matter of enquiry is possession not title.10
Determination of the question of title is the province of the civil court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the civil court cannot be assumed or implied...."
As such, suit for declaration of title and suit for restoration of possession based on title is not barred by the provisions contained in Section 257(f) of the Code merely because the plaintiff has eventually claimed the relief that the map annexed with sale deed dated 01.11.2000 executed by defendants No.2 and 3 in favour of defendant No.1 is forged and fabricated. It cannot be held that the suit is barred by the provisions contained in Section 257(f) of the Code. In view of above analysis, findings recorded by the first appellate Court in this regard is hereby setaside.
Answer to substantial question of law No.2:
15. Admittedly, according to pleading of the parties, the suit land was held by defendant No.2Dashrath, Munki and one Jhalo. It is not in dispute that Jhalo, one of coowner of suit land is missing and is not traceable. Even the defendants have admitted in their written statement. Now the plaintiff got the suit land purchased only from defendant No.2Dashrath vide Ex.P31 and got his name mutated in revenue records 11 and claimed to be in possession till 2002 until defendant No.1 dispossessed him from the part of the suit land mentioned in Schedule 'B' of the plaint.
16. Witness of defendant No.1 Khistodas, who is also witness to sale deed (Ex.P31), has also admitted that only Dashrath has executed sale deed in favour of plaintiff Vijay Toppo and the plaintiff is in possession of the suit land, whereas defendant No.1 has purchased the part of the suit land from defendants No.2 and 3 jointly vide Ex.P1, as such, the plaintiff is purchaser of one of coowner out of three coowners.
17. The plaintiff claimed that out of Khasra No.1113/3 area 0.50 decimal and Khasra No.1114/2 area 0.80 decimal which he purchased from defendant No.2, defendant No.1 has encroached by forcibly taking possession of, which defendant No.1 is disputing.
18. The plaintiff has filed demarcation report (Ex.P2) in which certain recommendation has been made by revenue inspector to the Tahsildar and countersigned by the Tahsildar holding that defendant No.1 has made some encroachment on the plaintiff's suit land, but the revenue officer who has made demarcation has not been examined to prove the said report (Ex.P2), as such, the fact as to whether 12 defendant No.1 has encroached upon the plaintiff's land has not been proved without examining the revenue officer who has made demarcation.
19. The Madhya Pradesh High Court in the matter of Laxman Singh v. Jagannath3 which has been followed by this Cort in the matter of Radhey Shyam v. Shankar Lal Gupta4 has held as under: "12. The plaintiff alone has entered the witness box. In his deposition, he has not specified the specific portion encroached upon by the defendant. He has submitted a document Ex.P1 which is a certified copy of demarcation of the lands at village Bamuliya Uda sent by the Office of Revenue Inspector to the NaibTahsildar. Ex.P2 is a certified copy of Panchanama. Original documents and records were not called from the Revenue Courts. The Revenue Officers, who measured the land were also examined. The plaintiff in his deposition has stated that he does not remember the survey number of suit land and has stated that it must be recorded in the map. In the plaint, sufficient specifications of the land encroached is not mentioned and no map is furnished."
As such, examination of revenue officer who made demarcation (Ex.P2) was absolutely necessary to hold that defendant No.1 has encroached upon the plaintiff's land, which the plaintiff did not examine for the reason best known to him, as such, it cannot be held that the plaintiff has proved the fact that defendant No.1 has forcibly taken possession of the 3 2000(1) M.P.H.T. 384 4 ILR 2019 CHH 715 13 suit land shown in Schedule 'B' of the plaint.
20. In view of the aforesaid legal position, the plaintiff has failed to prove demarcation report (Ex.P2) in accordance with law and thus failed to prove alleged encroachment made by defendant No.1. Consequently, the finding recorded by the first appellate Court setting aside the judgment and decree of the trial Court on merits cannot be held to be bad and contrary to oral and documentary evidence on record.
21. Consequently, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own cost(s).
22. A appellate decree be drawnup accordingly.
Sd/ (Sanjay K.Agrawal) Judge B/