Tripura High Court
Sri Jyotirmoy Ghosh vs Sri Sudhangshu Das on 12 May, 2017
Author: Chief Justice
Bench: Chief Justice
THE HIGH COURT OF TRIPURA
AGARTALA
R.S.A. No.44/2010
1. Sri Jyotirmoy Ghosh,
S/O. Lt. Nani Gopal Ghosh.
2. Smti. Sankari Roy (Ghosh),
W/O. Sri Jyotirmoy Ghosh.
--- Both are residents of Ramnagar Road No.7,
P.S.-West Agartala, District-West Tripura.
..... Appellants.
-: Vrs. :-
1. Sri Sudhangshu Das,
2. Sri Rasu Das,
3. Sri Ashutosh Das,
--- All are sons of Late Sudhir Chandra Das.
4. Smti. Basanti Sarkar (Das),
W/O. Sri Dulal Krishna Sarkar.
5. Smti. Namita Das,
W/O. Sri Chandan Das.
--- Both are daughters of Late Sudhir Chandra Das.
--- All are residents of Nutan Pally,
Krishnanagar, Agartala, P.S.-West Agartala,
District-West Tripura.
6. Smti. Tapasi Das,
W/O. Sri Krishnendu Das,
D/O. Late Sudhir Chandra Das,
Resident of Khayerpur,
P.S. East Agartala, District-West Tripura.
..... Respondents.
7. Smti. Rani Bala Dhar alias Sandhya Rani Dhar, W/O. Late Chitta Ranjan Dhar.
8. Sri Subhash Dhar.
9. Sri Swapan Dhar.
10. Sri Ratan Dhar.
--- All are sons of Late Chitta Ranjan Dhar.
11. Smti. Babi Dhar alias Chitra Dhar, D/O. Late Chitta Ranjan Dhar.
12. Sri Haripada Chowdhury, R.S.A. No.44/2010 Page 1 of 14 S/O. Late Benode Behari Chowdhury.
--- All are residents of Ramnagar Road No.7, Agartala, P.S. West Agartala, District-West Tripura.
13. Sri Nayan Roy, S/O. Sri Paresh Roy, Resident of Nutan Nagar, P.S. Airport, District-West Tripura.
..... Proforma Respondents.
BEFORE HON'BLE THE CHIEF JUSTICE Counsel for the appellants : Mr. P.K. Dhar, Advocate, Mr. R.G. Chakraborty, Advocate, Ms. S. Das, Advocate.
Counsel for the respondents : Mr. D. Chakraborty, Sr. Advocate, Mr. H. Laskar, Advocate, Mr. S. Das, Advocate.
Date of hearing : 10-04-2017.
Date of Judgment & Order : 12-05-2017.
JUDGMENT & ORDER
This second appeal U/s 100 Code of Civil Procedure, 1908 ("the Code"
for short) was admitted for hearing on the following substantial question of law:
"Whether the learned first appellate court committed error by holding that the provision of Sections 26 and 44 of TLR and LR Act, 1960 is not applicable to the present case and that the suit was maintainable?"
2. The controversy arose when the predecessor of the respondent No. 1 to 6 instituted Title Suit No. 82 of 1994 before the learned Civil Judge (Junior Division), Court No. 1, Agartala against the predecessor of the pro forma respondent Nos. 7 to 11 and the appellants herein for declaration of title and perpetual injunction, etc. The appellants were initially made the pro forma defendants in that suit but were subsequently deleted as parties R.S.A. No.44/2010 Page 2 of 14 to the suit. According to the appellants, they purchased a part of the suit land from the predecessor of pro forma respondent No. 7 to 11 whereupon they came to be added as parties to the suit. As the value of the suit got increased, the jurisdiction of the learned Civil Judge, Junior Division came to be ousted, which resulted in the return of the plaint. This prompted the predecessor of the respondent Nos.1 to 6 to present plaint before the learned Civil Judge (Senior Division), Court No. 1, Agartala. The suit was ultimately transferred to the file of the learned Civil Judge (Senior Division), Court No. 2, Agartala. The appellants as well as the pro forma respondents contested the suit by filing their respective written statements. During the pendency of the suit, the predecessor of the respondent Nos. 1 to 6 died, and was substituted by the respondent Nos. 1 to 6 as his legal representatives. Again, during the pendency of the suit, the predecessor of the pro forma respondent Nos. 7 to 11 also expired and was substituted by them as his legal representatives. In the meantime, a part of the suit land was purchased by the pro forma respondent Nos. 12 and 13, who came to added as parties to the suit.
3. The genesis of the suit, as per the plaint, is that the suit land was originally a marshy and patit land of Kayemi Taluk No. 12(1) of Mouja old Ramnagar and had belonged to one Samser Ali Bhuiyan who granted rayati settlement to the predecessor of the respondent Nos. 1 to 6 in the year 1961 with delivery of possession with jote number. The rent was paid by the predecessor of respondent Nos. 1 to 6, who became raiyat under the said Samser Ali Bhuiyan. In the month of December, 1963, the predecessor of the respondent Nos. 7 to 11 trespassed into the suit land which prompted the predecessor of the respondent Nos. 1 to 6 to institute Title Suit No. 86 of 1964 against the predecessor of the pro forma respondent Nos. 7 to 11. The suit was, however, compromised with the result that the respondent Nos. 1 to 6 was granted a decree for recovery of possession. The suit land was thereafter let out to the predecessor of the respondent Nos. 7 to 11. After the R.S.A. No.44/2010 Page 3 of 14 expiry of the rent period, the predecessor of the pro forma respondent Nos. 7 to 11 surrendered the suit land and claimed certain amount of money allegedly spent by them for the improvement of the suit land, and the same was paid by the predecessor of the respondent Nos. 1 to 6 whereafter the appellants herein were inducted as monthly tenant of the predecessor of the respondent Nos. 1 to 6. On 15-3-2010, the predecessor of the respondent Nos. 1 to 6 came to learn from the written statement filed by the appellants that they purchased a portion of the suit land which resulted in amendment of the plaint by adding the prayer for recovery of khas possession. The appellants contested the suit by filing their written statement. After the plaint was returned, the suit was registered as Title Suit No. 52 of 2001 in the Court of the Civil Judge (Senior Division), Court No. 1, Agartala where the returned plaint was presented by the original plaintiff. The appellants, however, filed an application under Order XIV, Rule 2(2) of the Code for framing of preliminary issues with respect to the jurisdiction of the learned Civil Judge to entertain the suit. This was opposed by the respondent Nos. 1 to 6. The learned Civil Judge, after hearing the parties, passed the judgment dated 4-1-2010 holding that the suit was not maintainable. The respondent Nos. 1 to 6 carried the matter in appeal being Title Appeal No. 7 of 2010 before the learned District Judge, West Tripura, who by the impugned judgment dated 19-8-2010 set aside the judgment of the trial court and directed the trial court to proceed with the suit.
4. Before proceeding further, it will be instructive to refer to the provisions of Section 26, Section 44, Section 93, Section 94, Section 95, Section 96 and Section 188 of the Tripura Land Revenue and Land Reforms Act, 1960 ("TLR & LR Act" for short):
"26. Whenever the State Government thinks it expedient so to do, he may, by notification in the Official Gazette, direct the revenue survey of any local area with a view to the settlement of the land revenue and to the preparation of a record of rights R.S.A. No.44/2010 Page 4 of 14 connected therewith or the revision of any existing settlement or record of rights.
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44. (1) When a notification under section 26 directing the revenue survey of any local area with a view to settlement of the land revenue and to the preparation of a record-of-right connected therewith or the revision of any existing settlement or record-of-right in any local area has been published after the enforcement of the Tripura Land Revenue and Land reforms (Fifth Amendment) Act,1979, no civil court shall entertain any suit or application for the settlement or determination of land revenue or the incidence of any tenancy to the record-of-right relates and if any suit or application, in which any of the aforesaid matters is in issue, is pending before a civil court on the date of publication of the notification in the official gazette, it shall be stayed and it shall, on the expiry of the period for filing application for revision under section 45, or when such application has been field within time an expiry of the period prescribed under section 94 for filing an appeal under section 93 against the order disposing of such application or when an appeal has been filed under the section within time, as the case may be, on disposal of such appeal, abate so far as it relates to any of the aforesaid matters.
(2) No civil court shall entertain any suit or application concerning any land if it relates to alteration of any entry in the record-of-right finally published, revised corrected or modified under any of the provisions of this Chapter or Chapter VIII of this Act consequent upon the notification issued under section 26 after the enforcement of the Tripura Land revenue and Land reforms (Fifth Amendment) Act. 1979.
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93. (1) Save as otherwise expressly provided, an appeal shall lie from every original order passed under this Act,-- (a) If such an order is passed by an officer subordinate to the Sub-Divisional Officer to the Sub-Divisional Officer; (b) If such an order is passed by the Sub-Divisional Officer, to the Collector; (c) if such an order is passed by the collector, to the State Government; (d) if such an order is passed by an assistant survey and settlement officer, to the survey and settlement officer or to a revenue officer notified R.S.A. No.44/2010 Page 5 of 14 by the State Government in the Official Gazette to be the appellate authority; and (e) if such an order is passed by a survey and settlement officer, to the director of settlement and land records or to a revenue officer notified by the State Government in the Official Gazette to be the appellate authority.
(2) A second appeal shall lie against any order passed in first appeal,-- (a) if such an order is passed under clause (a) of sub-
section (1), to the Collector; (b) if such an order is passed under clause (b) of sub-section (2), to the State Government; (c) if such an order is passed under clause(d) of sub-section (1) to the director of settlement and land records or to a revenue officer notified by the State Government in the Official Gazette to be the second appellate authority; and (d) if such an order is passed under clause (e) of sub-section (1), to the State Government.
94. (1) No appeal shall lie,-- (a) in the case of a first appeal, after the expiry of thirty days from the date of the order appealed against; and (b) in the case of a second appeal, after the expiry of sixty days from the date of the order appealed against. (2) In computing the above periods, the time required to obtain copies of the order appealed against shall be excluded.
95. State Government or the Collector may, at any time, either on his own motion or on the application of any party, call for the records of any proceedings before any revenue officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of any order passed Appeals. Limitation of appeals. Revisions. 26 by such revenue officer, and may pass such order in reference thereto as he thinks fit: Provided that he shall not vary or reverse any order affecting any right between private persons without having given to the parties interested notice to appear and be heard.
96. (1) A revenue officer may, either on his own motion or on the application of any party interested, review any order passed by himself or by any of his predecessors-in-office and pass such order in reference thereto as he thinks fit: Provided that a revenue officer subordinate to the Collector shall, before reviewing any order under this section obtain the permission of the collector and the collector shall, before reviewing an order R.S.A. No.44/2010 Page 6 of 14 passed by any of his predecessors- in-office obtain the permission of the 1 [State Government.] (2) No order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings or except after notice to the other party and no application for the review of such order shall be entertained unless it is made within ninety days from the date of the order. (3) No order shall be reviewed except on the following grounds, namely:- (i) discovery of new and important matter of evidence; (ii) some mistake or error apparent on the face of the record; or (iii) any other sufficient reason. (4) For the purpose of this section, the collector shall be deemed to be the successor-in-office of any revenue officer who has left the district or who has ceased to exercise powers as a revenue officer and to whom there is no successor in the district. (5) An order which has been dealt with an appeal or on revision shall not be reviewed by any officer subordinate to the appellate or revisional authority.
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188. No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act."
5. A combined reading of Section 26 and Section 46 of the TLR & LR Act plainly shows that when a notification has been issued under Section 26 directing revenue survey of any local area with a view to settlement of land revenue and to the preparation of record of rights connected therewith or the revision of any existing settlement or record of rights in any local area, a Civil Court is prohibited from entertaining any suit or application for the settlement or determination of land revenue or the incidence of any tenancy to which the record of rights relates, and if any suit or application, in which any of the matters in issue, is pending before a Civil Court on the date of publication of the notification in the Official Ggazette, such suit or application shall have to be stayed. Section 44(2) imposes an embargo upon a Civil Court to entertain any suit or application concerning any land if it relates to alteration of any entry in the record of rights finally published, R.S.A. No.44/2010 Page 7 of 14 revised, corrected or modified under any of the provisions of Chapter IV and Chapter VIII of the TLR & LR Act consequent upon the notification issued under Section 26 after the commencement of the TLR & LR (First Amendment) Act, 1979.─ See Braja Mohan Reang v. Braja Gopal Dutta, 1996 (II) GLT 57.
6. It may also be noted that the procedure of revenue officers including appeals and revisions are adumbrated in Chapter VIII of the TLR & LR Act. Suffice it to refer to sub-section (1) of Section 81, which says that a revenue officer, while exercising power under the Act or any other law for the time being in force, to inquire into or to decide any question arising for determination between the Government and any person or between parties to any proceedings, shall be a revenue court. Sub-section (2) provides that nothing in the Act shall be deemed to limit or otherwise affect the inherent power of the revenue court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the revenue court. The term "revenue officer" is defined in Section 4 of the TLR & LR Act, which is as follows: (a) Collector, (b) Director of Settlement and land records, (c) Sub- Divisional officers, (d) Survey and Settlement officers, (e) Assistant Survey and Settlement Officer, (f) Circle Officers, (g) Revenue Inspectors. (h) Tehsildars, (i) Village Accountants and such other village officers and servants as may be specified by rules made under this Act. Though some amendment to the Act was made in 2014 by including some officers within the sweep of the term "revenue officers", they need not be included herein as irrelevant. Section 93 provides for the forum of first and second appeal from subordinate revenue officers to the superior officers such as Sub-Divisional Officer, Collector and the State Government at the apex level. Section 94 speaks of limitation of appeals. Then, Section 95 provides for the forum of revision, while Section 96 deals with the power of review. R.S.A. No.44/2010 Page 8 of 14
7. This then takes me to the provision of Section 188, which says that no suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil suit with respect to any matter arising under and provided for by the Act. What are matters arising under and provided for by the provisions of TLR & LR Act are those matters, which are adumbrated in Section 44, namely, the settlement or determination of land revenue or the incidence of any tenancy to which the record of rights relates or the alteration of any entry in the record of rights finally published, revised, corrected or modified under any of the provisions of this Chapter V of Chapter VIII of the Act consequent upon the notification issued under Section 26 after the commencement of the TLR and LR Act. Section 44 is exhaustive enough to cover virtually any matter in connection therewith for which the jurisdiction of a civil court is excluded. Moreover, in any suit or application in which any of the aforesaid matters is in issue, the same shall, on the circumstances specified therein, abate. Thus, under Section 188, the jurisdiction of the ordinary civil courts to entertain any suit, application either to stay or set aside any decision given or any order passed under the Act or with respect to any matter for which a proceeding ought to have been taken thereunder, is, therefore, ousted.
8. Having said that, it must be reiterated here that the civil courts shall nevertheless have the jurisdiction to try all suits of civil nature except the entertainment whereof is expressly or impliedly barred. In Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma, (1997) 5 SCC 460, at page 466, the legal position in this behalf has been summarized as under:
"15. This Court in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu2 after considering the entire case-law, had held that the civil court has no jurisdiction to go into the 2 1991Supp (2) SCC 288 R.S.A. No.44/2010 Page 9 of 14 correctness of the patta granted by the Settlement Authorities. Under Section 9 CPC, the courts shall, subject to the provisions contained therein, have jurisdiction to try all suits of civil nature excepting suits cognizance of which is either expressly or impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the civil courts would take cognizance of it. Therefore, the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set- up governed by rule of law and jurisdiction of the civil courts is assumed. The exclusion would, therefore, normally be an exception. Courts generally construe the provisions strictly when jurisdiction of the civil courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, statutes intervene and provide alternative mode of resolution of disputes with less expensive but expeditious disposal. It is settled legal position that if a tribunal with limited jurisdiction cannot assume jurisdiction and decide for itself the dispute conclusively, in such a situation, it is the court that is required to decide whether the tribunal with limited jurisdiction has correctly assumed jurisdiction and decided the dispute within its limits. It is also equally settled that when jurisdiction is conferred on a tribunal, the courts examine whether the essential principles of jurisdiction have been followed and decided by the tribunals leaving the decision on merits to the tribunal. It is also an equally settled legal position that where a statute gives finality to the orders of the special tribunal, the civil court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the R.S.A. No.44/2010 Page 10 of 14 civil court would normally do in a suit. Such a 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. Where there is an express bar of 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 enquiry may be decisive. In the latter case, it is necessary that the statute creates a special right or liability and provides procedure for the determination of the right or liability and further lays down that all questions about the said right or liability shall be determined by the tribunal so constituted and whether remedies are normally associated with the action in civil courts or prescribed by the statutes or not. Therefore, each case requires examination whether the statute provides right and remedies and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excludes the jurisdiction of the civil court in respect thereof. After the advent of independence, land reforms was one of the policies of the Government abolishing feudal system of land tenures and conferment of the ryotwari patta on the tiller of the soil. Thereby, the land reform laws extinguish pre-existing rights and create new rights under the Act. The Act confers jurisdiction on the tribunals in matters relating thereto and hierarchy of appeals/revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, by necessary implication, the jurisdiction of the civil court to take cognizance of the suits of civil nature covered under the land reform laws stands excluded giving not R.S.A. No.44/2010 Page 11 of 14 only finality to the decisions of the tribunal but also ensuring expeditious, inexpensive and simple procedure for disposal of the matters by the tribunal and make the ryotwari patta granted to the tiller of the soil conclusive. Under the normal course of civil procedure, the jurisdiction of the trial of the civil suits in relation to the matters covered under the Acts being time-consuming and tardy the lack of financial support or otherwise incapacity in defending or working the rights in the civil courts and by hierarchy of appeals defeat justice. Obviously, therefore, the civil suits by necessary implication stand excluded unless the fundamental principles of procedure are not followed by the tribunals constituted under the land reform laws. In this case, the Act concerned extinguishes the pre-existing right, creates new rights under the Act and requires tribunals to enquire into the rival claims and a form of appeal has been provided against the order of the primary authority. Thereby the right and remedy made conclusive under the Act are given finality by the orders passed under the Act. Thereby, by necessary implication, the jurisdiction of the civil court stands excluded."
9. Having understood the correct legal position, the point for determination boils down to this: what is the nature of suit instituted by the plaintiff-respondents in the trial court? In para 6(e) of the plaint, it is seen that the plaintiffs are aggrieved by the purchased of the suit land by the respondent-defendant Nos. 3 and 4 from the deceased defendant No. 1, which amounts to denial of their right, title and interest over the suit land and the possession of these defendants over the suit land has become hostile to the plaintiffs. This bundle of facts entitled the plaintiff- respondents to sue the defendants No. 3 and 4 for recovery of khas possession of the suit land by evicting them from the suit land by removal of all constructions created by the said defendants therein. In para 7 of the R.S.A. No.44/2010 Page 12 of 14 plaint, it is averred that the cause of action for the suit arose on 11 th September, 1994 when the defendants raised objection against the construction of boundary wall denying the right and title of the plaintiff over the suit land. It is further averred that the cause of action for the suit against the defendants No. 3 and 4 arose on 15-3-2001 when the plaintiff first came to know as to the purchase of the suit land by the defendants No. 3 and 4 on receipt of the copy of the written statement filed by them in the suit and in the subsequent period. Then, the reliefs claimed in the suit are as follows:
"(a) For declaration of plaintiff's right and title in the suit land, and,
(b) For recovery of khash possession by evicting the defendants from the suit land and by removal of all obstructions created by them therein.
(c) Any other relief or reliefs to which the plaintiff is entitled to according to law, justice, equity and good conscience, and,
(d) For full cost of the suit."
10. On careful examination of the averments made in the plaint as well as the reliefs claimed therein, it is abundantly clear that the suit does not even remotely have anything to do with, or about alteration of any entry in the record of rights finally published, revised, corrected or modified under any of the provisions of Chapter V or Chapter VIII of TLR & LR Act consequent upon the notification issued under section 26 after the enforcement of the TLR & LR Act. The suit so instituted is, as reproduced above, is for declaration of title to, and recovery of khas possession of, the suit land and has nothing to do with settlement of land revenue or preparation of records of rights or any entry therein, etc., for which a suit or application is barred by Section 44 or Section 188 of TLR & LR Act. Thus, I can, without fear of contradiction, hold that the reliefs claimed by the plaintiff are not the reliefs which can be granted by a revenue court constituted under Section 81 of R.S.A. No.44/2010 Page 13 of 14 TLR & LR Act. In other words, no revenue court can conceivably grant the reliefs for a decree of declaration of title to, or recovery of possession, of the suit land; such a decree can be granted only by a Civil Court. Moreover, I have perused the application 31-1-2007 filed by the defendant No. 3 and 4 under Order 14, Rule (2(2) of the Code for trying an issue relating the jurisdiction of the trial court to entertain the suit, but on examination of the application, it is not possible to ascertain as to under what circumstances the suit is not maintainable except that they merely make a bold statement that the suit is barred under Section 188 of the TLR and LR Act. Something more, I think, is necessary for urging the plea of non-maintainability of the suit. In this view of the matter, I hold that the learned District Judge, West Tripura did not err in interfering with the judgment of the trial court and in holding that the jurisdiction of the trial court to entertain the suit is not ousted. Therefore, the substantial question of law is answered accordingly.
11. For what has been stated in the foregoing, there is no merit in this appeal, which is, accordingly, dismissed. The trial court is, therefore, directed to proceed with the suit and dispose of the same in accordance with law, preferably, within a period of one year from the date of receipt of this judgment. Transmit the L.C. record forthwith.
CHIEF JUSTICE R.S.A. No.44/2010 Page 14 of 14