Patna High Court
Nand Kishore Singh And Anr. vs Satya Narain Singh And Anr. on 14 February, 1978
Equivalent citations: AIR1978PAT315, 1978(26)BLJR416, AIR 1978 PATNA 315
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT
1. This second appeal has been filed by the defendants 1 and 2 against the decision of the lower appellate court in a suit for declaration that certain orders passed in a proceeding under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as 'the Act') are without jurisdiction and for a decree for recovery of possession of the land in dispute with mesne profits. The State of Bihar and the Subdivisional Officer, Aurangabad, who had passed the orders in the impugned proceedings were added as defendants 3 and 4 after filing of the suit, but were later expunged. Two questions have been raised in this appeal, namely, (1) whether the suit is at all maintainable; and (2) whether the State of Bihar and the Subdivisional Officer, Aurangabad are necessary parties to the suit, in whose absence the suit cannot be decreed. A learned single Judge, who heard the second appeal earlier has referred it to a Division Bench.
2. In the month of Sept., 1964 a sale deed was executed in regard to the suit land, fully detailed in the plaint, by Juga Singh, the defendant No. 5, in favour of the plaintiff. On the 30th of Sept., 1964 the defendant appellants filed an application under Section 16 (3) of the Act which was registered as Case No. 16 of 1964-65 by the authority, i. e., the Sub-divisional Officer, Aurangabad, who is the Collector for the purposes of the Act. The defendants claimed that they are neighbouring raiyats and are entitled to pre-empt. The Subdivisional Officer entertained the application and passed an order on that very day directing the deposit of the consideration money along with the additional amount of ten per cent. The claim was contested by the present plaintiff, but ultimately the prayer for pre-emption was allowed on the 6th of Dec., 1965. An appeal provided under the Act was filed and was also dismissed on the 3rd of Aug., 1966. On the 18th of Aug., 1966 the present suit was filed and several grounds were taken in the plaint. Subsequently an amendment of the plaint was allowed whereby it was pleaded that since the sale deed executed in favour of the plaintiff was registered on the 2nd of Dec., 1964, the proceeding in Case No. 16 of 1964-65, having been started on the 30th of Sept., 1964 was without jurisdiction.
3. The suit was defended by the appellants inter alia, on the grounds that the State of Bihar and the Subdivisional Officer, Aurangabad. who is Collector under the Act and had passed the order dated the 6th of Dec., 1965 in the proceeding were necessary parties; and, that the Civil Court has no jurisdiction to entertain the suit.
4. The trial Court dismissed the suit, but on appeal by the plaintiff, the lower appellate court has decreed it. It has been held that the orders passed in the impugned proceedings were without jurisdiction and void and the sale deed executed in pursuance of the order in the proceedings did not confer any right, title or interest on the defendants. The reliefs asked for in the plaint have been granted.
5. Mr. Prem Lal appearing for the appellants has contended that the decision of the lower appellate court is er-roneous and illegal on both the points formulated above.
6. On the question whether the State of Bihar and the Subdivisional Officer are necessary parties to the suit or not, we think that the answer is dependent on the point whether the impugned decision passed in the proceeding is completely void or not. If the finding be in favour of the order being void and nullity, in that event, the Civil Court has merely to ignore the same collaterally. It will not be necessary in that case to set aside the order, and the presence of the State of Bihar and Subdivisional Officer cannot be insisted upon. If, on the other hand, it is held that the order passed by the Subdivisional Officer ia not without jurisdiction, then in view of the decision which we are proposing to give on the second point, the suit will have to be dismissed as not maintainable, and a decision on this question will not be necessary. We, therefore, propose to deal with the other question which appears to be decisive in the present litigation.
7. Mr. Prem Lal contended that the impugned decision in the proceeding may be incorrect, but it is not possible to hold that the same is absolutely without jurisdiction. He placed reliance on the judgment of the Supreme Court in Hiralal Agrawal v. Rampadarath Singh (AIR 1969 SC 244). Relying upon the observations in para. 17 of the judgment Mr. Lall invited us to hold that the fact whether the sale deed in question was actually registered or not within the meaning of the Registration Act before the application under Section 16 (3) of the Act was entertained does not go to the root of the matter. The jurisdiction of the Collector, it was suggested, does not depend upon this fact. Mr. Lall further placed the provisions of Section 43 of the Act which is in the following terms and urged that the decision of the Civil Court is barred thereby :--
"43. Bar of jurisdiction of Civil Court--(1) Save and except as provided in this Act, 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 Board of Revenue, the Commissioner, the appellate authority or - the Collector.
(2) No order of the Board of Revenue, the Commissioner, the appellate authority or the Collector made under this Act, shall be questioned in any Court." He also placed a decision of this Court in Narendra Kumar Ghose v. Sheodeni Ram (AIR 1972 Pat 1) and urged that the facts of that case provided an illustration of the operation of Section 43 of the Act barring the jurisdiction of the Civil Court.
8. The decision of the Supreme Court in Hiralal Agrawal's case (supra), so far it is relevant to the present question, has been the subject-matter of interpretation by several Division Benches of this Court in past and we do not consider it necessary to reconsider the inter-pretation again. An argument similar to one advanced on behalf of the present appellants was pressed in C.W.J.C. No. 133 of 1969 (Budhnandan Ram v. State of Bihar) which was decided by this Court on the 30th of Jan., 1970 by Mr. Justice Untwalia (as he then was) and Mr. Justice S. N. P. Singh. After a very elaborate consideration of all the relevant aspects on the matter, the Division Bench held that if some action was taken by the Collector on an application filed before the registration of the sale deed in question, the entire proceeding commenced on such an application was void and without jurisdiction and such an application had to fail on that ground alone. It was pointed out that in such a case the Collector could have permitted the application to be withdrawn to be refiled later on within the period of limitation or could have refused to entertain the application by refusing to take cognizance of it. But if the Collector entertained the application and passed any orders thereupon, then there was no escape but to hold that the entire proceeding was null and void. Mr. Justice Untwalia (as he then was) had to reconsider the point in the case of Kauleshwar Singh v. Parmanand (AIR 1972 Pat 407). He again came to the same decision holding that if a proceeding was commenced by taking action on an application filed for pre-emption before completion of registration of the sale deed, then the proceeding was without jurisdiction and void. It was pointed out in para. 2 of the reported judgment that this view was taken in several other cases, each one decided by a Division Bench. It was reiterated on several occasions that such a proceeding started prematurely was void ab initio and could not become a good proceeding later on after the registration was complete during its pendency. The decisions mentioned above as well as the other decisions referred to in the reported judgment are binding on us and we, accordingly, hold that the entire proceeding in the Case No. 16 of 1964-65 was void ab initio and without jurisdiction and the orders passed therein are nullity, because cognizance of the application was taken by passing orders as mentioned above (vide Ext. 2) on the 30th of Sept., 1964, i. e. before registration of the sale deed was complete.
9. The only question which now remains is to consider as to whether the suit is maintainable in spite of the bar of Section 43 of the Act. The decision in Ram Swarup v. Shikar Chand (AIR 1966 SC 893) has been relied upon before us by both sides. Mr. Lall argued that only in such cases as are enumerated in paragraph 13 of the reported judgment, it can be held that a suit is maintainable, It is firmly established that the jurisdiction of the Civil Court to deal with civil rights can be excluded by the Legislature, but the statutory provision in this regard must be express and clear. After recognising this well established principle, the Supreme Court proceeded to say that the bar created by the relevant provisions of statute excluding the jurisdiction of the Civil Court cannot, however, operate in cases where the plea raised before the Civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity. In that case, the Supreme Court was concerned with a section in the U. P. (Temporary) Control of Rent and Eviction Act raising a bar against the jurisdiction of the Civil Court and in that connection, the Court gave certain illustrations in para. 13 of the judgment where a suit could be held to be maintainable. The learned Judges did not make an exhaustive enumeration of all the cases in which suits could be maintained. Besides, the illustrations which have been given by the Supreme Court being referable to another Act do not help us in deciding the scope of the bar of section of the Bihar Act. What has been held in unambiguous terms in the decision is that if the proceedings or the orders passed therein are completely without jurisdiction, then the bar to the maintainability of a suit in the ordinary Civil Court would not apply. This principle fully covers the appeal before us. The point is also supported by the view taken by a Division Bench of this Court is Jagdeo Gope v. State of Bihar (1965 BLJR 744). The petitioner, in that case, challenged an order passed under the Bihar Public Land Encroachment Aci and the application was refused on the ground that the alternative remedy by way of a suit was available to the petitioner. It was contended on behalf of the petitioner that the suit was not maintainable in view of the provisions of Section 16 of that Act which barred the jurisdiction of the Civil Court. Repelling the argument, this Court held that the bar referred only to such orders which were passed under the Act and if the petitioner could satisfy that the decision in the impugned proceeding was without jurisdiction, the bar would not apply. We, therefore, hold that the bar raised by Section 43 of the Act does not operate against the maintainability of the present suit.
10. We have already indicated above that the State of Bihar and the Subdivi-sional Officer are not necessary parties to the suit, if the impugned orders passed in the land reforms proceedings be held to be without jurisdiction.
11. In the result, it must be held that there is no merit in this appeal which must be dismissed, but without costs.