Patna High Court
Sk. Hijju @ Md. Hifzur Rahman & Ors vs Awadh Lal Sharma & Ors on 17 May, 2016
Equivalent citations: AIR 2016 (NOC) 529 (PAT.)
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.324 of 2013
===========================================================
1. Sk. Hijju @ Md. Hifzur Rahman, son of late Motiur Rahman.
2. Md. Sharifuddin, son of late Zarifur Rahman.
3. Md. Ashabuddin, son of late Zarifur Rahman.
4. Md. Fakhruddin, son of Late Zarifur Rahman.
5. Safina, daughter of Late Zarifur Rahman.
6. Bibi Shakina, Wife of late Zarifur Rahman.
7. Md. Afaque, son of late Zarifur Rahman.
8. Md. Arif, son of late Zarifur Rahman.
All resident of Village Maheshpur Salehpur, P.O. Salehpur, P.S. Falka, Dist.
Katihar.
Defendant Nos. 3 to 6, 8 and 9, Respondent Nos. 1, 7 to 9, 12 and 13.
.... .... Appellant/s
Versus
1. Awadh Lal Sharma son of late Malhu Sharma, Resident of Village Govindpur,
P.O. Salehpur, P.S. Falka, Dist. Katihar.
---- Plaintiff/Appellant/Oppsoite Party 1st Party
2. Ashiya Khatoon, wife of late Sk. Anish.
3. Julrur Rahman, son of Late Sk. Anish.
4. Bazo Khatoon, daughter of late Sk. Anish.
5. Sarjoon Khatoon, daughter of Late Sk. Anish.
6. Najrun Khatoon, daughter of late Sk. Anish.
2-6 Heirs of defendant no.2,
Respondent no.2 to 6 Proforma
.... .... Respondent/s
All resident of Village Maheshpur, P.O. Salehpur, Police Station Falak, Dist.
Katihar.
Defendant nos. 7 and 8 --- Respondent
Nos. 10 and 11 - Proforma -- Respondents
===========================================================
Appearance :
For the Appellant/s : Mr. Raghib Ahsan, Sr. Adv.
Mr. Shahab Khalil, Adv.
For the Resp. No.1 : Mr. Kumar Uday Singh, Adv.
===========================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV JUDGMENT
Date: 17-05-2016
In the present case, the appellants are challenging the
order dated 10.9.2009 passed in Misc. Appeal No. 5 of 2008 passed
by the learned District Judge, Katihar, whereby and whereunder, the
order dated 28.5.2008 passed by the Sub-Judge-1, Katihar in Title Suit
Patna High Court MA No.324 of 2013 dt.17-05-2016 2
No. 94 of 2000 has been set aside and the matter has been remitted
back for fresh consideration.
This case has a chequered history, as the petitioners
and the respondents, on many occasions, approached this Court with
respect to suit land. Basically, the dispute relates to claim of under
raiyat as all through, the present appellant is refusing to recognize the
respondent no.1 as under raiyat of the land.
In the present case, the defendant is the appellant who
is challenging the order of appellate court claiming the dispute with
respect to under raiyat with respondent no.1 has already been
concluded under 48E of the Bihar Tenancy Act (hereinafter to be
referred to as „the Act‟) proceeding. The tenancy dispute is related to
land pertaining to Khata no. 289, plot no. 1722, area 3.14 acre, plot
no. 1756 area 3.76 acre, plot no. 1759 area 0.95 acre, plot no. 1760
area 0.47 acre and plot no. 1761 area 0.13 acre total land comes to
8.45 acres.
The short fact of this case, admittedly the original land
holders were Motiur Rahman and Zarifur Rahman. As per the claim
of the respondent no.1 Malhu Sharma, father of the plaintiff no.2 was
under raiyat of the suit land since 1941. The relationship of landlord
and tenant was cordial and the name of his father was not recorded in
the Tenant Register i.e. the R.S. Khatian. In the year 1958, the father
Patna High Court MA No.324 of 2013 dt.17-05-2016 3
of the plaintiff died and, accordingly, the plaintiff stepped in the shoe
of his father and became under raiyat. As the landlord threatened his
forceful ejectment, he filed an application under Section 48E of the
Bihar Tenancy Act (in short „B.T. Act‟) which was registered as Case
No. 200 of 1971. In terms of Section 4E of B.T. Act, Conciliation
Board was constituted which submitted its recommendation in favour
of the plaintiff respondent, accordingly, vide order dated 25.4.1974,
the plaintiff was declared as under raiyat with respect to plot no. 1028,
1756, 1759 and 1760. As there was no recommendation with respect
to plot no 1722 and 1761, the D.C.L.R. called the fresh report and on
receipt of the report, the D.C.L.R. vide order dated 2.5.1975 declared
the plaintiff as under raiyat. After lapse of seven years, the heirs of the
original landlord filed writ application, CWJC No. 4295 of 1982
which was allowed vide order dated 19.9.1988 vide Annexure-3 to the
writ application and a direction was given for denovo enquiry. While
the writ application was pending, the plaintiff respondent filed an
application under Section 10 of the Bihar consolidation Act before the
Assistant Consolidation Officer which was registered as Case No.
607/1985-86with a prayer for recording his name in the record of right prepared during consolidation proceeding. As per the claim of the plaintiff-respondent, he remained ignorant about the order dated 19.9.1988 passed by this Court. He could not appear before the Patna High Court MA No.324 of 2013 dt.17-05-2016 4 D.C.L.R. which led to rejection of 48E application of Awadh Lal Sharma, Respondent no.1 by the D.C.L.R. whereby the claim of Awadh Lal Sharma, Respondent no.1, for under raiyat was rejected. In view of the order of the D.C.L.R., the plaintiff filed an appeal which was registered as Revenue Appeal No. 442 of 1988-89 before the Collector, Katihar who by his order dated 5.3.1989 remanded the matter back to the D.C.L.R. again, in order to give opportunity to the respondent no.1, to place his case as he did not receive any opportunity. Against the order passed by the Collector, Katihar, a writ application was filed by Bibi Rayeesa Khatoon and other heirs of the present petitioner in CWJC No. 3315 of 1989 and this Court quashed the order passed by the Collector, Katihar and this Court observed that the writ application filed by the Awadh Lal Sharma Bataidar i.e. the plaintiff respondent registered as CWJC No. 4837 of 1989 will be decided in its own merit having regard to the fact and circumstances of that case, the order passed in CWJC No. 3315 of 1989 will not be taken to prejudice the outcome of writ application of Awadh Lal Sharma. This Court while rejecting the writ petition CWJC No. 4837 of 1989, has taken notice of existence of the mortgage of the land. As the mortgage was/is subsisting, no grievance was ever raised against either the mortgagee or the transferee from the mortgagee and, as such, no case under Section 48E of the B.T. Act is made out. Patna High Court MA No.324 of 2013 dt.17-05-2016 5 Accordingly, the court did not find any merit in the application and the same was rejected. In the meantime, the case filed by Awadh Lal Sharma before the Assistant Conciliation Officer which was referred to the Consolidation Officer was rejected. Against that, Awadh Lal Sharma filed an appeal, registered as, Appeal No.250 of 1991. The claim of the petitioner, regarding entry of his name in the record of right as a Bataidar, taking note of the order passed in the writ application against the plaintiff respondent was rejected. Against the order of the appellate authority, filed revision before the Director, Consolidation under Section 35 of the Conciliation Act, which was registered as Revision Case No. 80 of 93 / 91 of 2000 and the same was rejected vide order dated 28.4.2000 (Annexure-B to the counter affidavit) of the plaintiff respondent. Against that order of the revisional court, the plaintiff respondent filed a writ application which was registered as CWJC No. 10046 of 2000 and that was dismissed vide order dated 28.9.2000 as the Court did not find any merit in the writ application.
After disposal of the case filed under B.T. Act as well as consolidation proceeding, the plaintiff respondent filed title suit which was registered as Title Suit No. 94 of 2000 before the Sub- Judge, 1st, Katihar who refused to entertain the suit filed by the plaintiff respondent holding that suit is not maintainable in view of the Patna High Court MA No.324 of 2013 dt.17-05-2016 6 final adjudication of Bataidari dispute in a B.T. Act proceeding. Against that order, Awadh Lal Sharma, the plaintiff-respondent no.1 approached to the Appellate Court in Misc. Appeal No. 5 of 2008, the Appellate Court held, for deciding the jurisdictional issue, it requires evidence and without embarking the correct procedure, the trial court wrongly rejected the plaint and dismissed the suit and, accordingly, remanded back the matter for fresh consideration.
In the present case, learned counsel for the appellant submits that as the issue, with regard to relationship of landlord and under raiyat has already been discussed and has been concluded in the B.T. Act proceeding so much so mortgage deed was created on 31.7.1967 by Matiur Rahman and Jasitar Rahman in favour of Asmatin Nisa as well as gift deed was created by Maitur Rahman in favour of his wife Rayeesa Khatoon on 28.2.1972 who were not made party to the proceeding and the issue of relationship of tenant and landlord has already been gone into the B.T. Act proceeding which has finally been settled cannot be revived by filing of suit, is completely barred.
The respondents, on the other hand, have taken a plea that the order has not been passed under Section 48E, (7) and (8) of the Act and, as such, the right of tenant cannot be taken away from approaching the civil court for declaration that the plaintiff has Patna High Court MA No.324 of 2013 dt.17-05-2016 7 acquired the title as under raiyat having occupancy right and possession therein.
In the present case, the issue is of maintainability of the suit as the respondents have exhausted his remedy under Section 48E of the Bihar Tenancy Act unsuccessfully. The appellants have taken a plea that Awadh Lal Sharma, respondent no.1, claiming to be a Bataidar, filed an application before the D.C.L.R. Collector under the B.T. Act, decided the case against him, same has been affirmed by the High Court. Now he cannot turn around and file fresh suit with regard to the same subject matter with respect to same issue, is barred under the res judicata as well as when he has exhausted the remedy under the BT Act, the door of civil court is closed and, as such, the court of appeal below has misdirected himself, committed an illegality in remanding the matter back to the trial court with direction to dispose of the issue of maintainability after taking evidence from both sides.
Before addressing this issue, it will be appropriate to examine the provision of Section 48E, 48F(4), 48F(5) of the B.T. Act in order to understanding the mechanism of the Bihar Tenancy Act specially Section 48E which deals with prevention of a threatened ejectment of under-raiyat and restoration to possession of under-raiyat unlawfully ejected. It will be relevant to examine the provisions of Patna High Court MA No.324 of 2013 dt.17-05-2016 8 Section 48E of the B.T. Act which reads as follows:-
"48-E.Prevention of threatened ejectment of under raiyat and restoration to possession of under raiyat unlawfully ejected.-
(1) If an under raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land, crop or produce thereof either on the ground of non-
existence of relationship of landlord and tenant between them or otherwise or if an under raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this section in contravention of the provisions of Section 89 the Collector may, of his own motion or an application made in this behalf by the under raiyat, initiate a proceeding for preventing the landlord from ejecting the under raiyat or for settlement of the said dispute or for restoration to possession under raiyat unlawfully ejected from his tenancy or portion thereof.
Explanation : If in the midst of the proceeding it is found that the landlord has during or before the initiation of the proceeding transferred the land to any other person who is not a party to the proceeding initiated under Sub-section (1), the Collector shall make such transferee a party to the proceeding.
(2) The Collector may, after hearing the parties, about which due notice shall have been given to them ex-parte, in cases of emergency by an order in writing, prevent the landlord from ejecting the under raiyat until any disposal of the Patna High Court MA No.324 of 2013 dt.17-05-2016 9 proceeding or until further orders and if he is of opinion that any crop or produce of the land which is subject matter of dispute in the proceeding under this section, is liable to speedy and natural decay, he may, if the situation so warrants and in similar manner as aforesaid direct the proper custody or harvesting or sale, as the case may be, of such crop or produce or the sale proceeds thereof.
(3) When a proceeding is initiated under Sub-section
(1) the Collector may refer the matter
(hereinafter referred to as dispute) to a Board to be appointed by him for promoting the settlement of the dispute between the under raiyat and the landlord.
(4) A Board to be appointed by the Collector in the prescribed manner under Sub-section (3) shall consist of a Chairman; who shall be unconnected with the dispute referred to such Board or with any party directly affected by such dispute and two members to represent the parties to the dispute and the persons appointed as a member to represent any party shall be appointed on the recommendation of that party :
Provided that if any party does not nominate any person to represent him in the Board or nominates a person who is not available within such time as the Collector considers reasonable, the Collector may appoint such person as he thinks fit; to represent that party.
(5) If any time before the Board has completed its
work, the service of the Chairman or any
members of the Board ceases to be available, or any member of the Board fails to attend the Patna High Court MA No.324 of 2013 dt.17-05-2016 10 meeting of the Board on two successive dates without showing cause to the satisfaction of the Chairman, the Collector may appoint any suitable persons in the prescribed manner to take his place and the proceeding shall be continued before such Board as so constituted.
(6) The Chairman of the Board to which a dispute is referred shall give written notice to the under raiyat and his landlord in the prescribed manner and the Board shall make endeavours to bring about an amicable settlement of the dispute and when an amicable settlement of the dispute is brought about, the Board shall forthwith submit a report containing the terms on which settlement had been brought about, to the Collector, who may dispose of the proceeding in accordance with the terms of the report:
Provided that failure on the part of any member of the Board to sign the report shall not affect the validity of the same.
(7) Where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall make enquiry into the same, receive such evidence as it considers necessary, record its findings on the dispute and transmit the entire record of the proceeding forthwith to the Collector who may dispose of the proceeding in accordance with the terms of the findings:
Provided that failure on the part of any members of the Board to sign the finding shall not effect the Validity of that finding:
Provided further that if any member does not want to sign the findings of the Board he will submit his disagreement on the findings in Patna High Court MA No.324 of 2013 dt.17-05-2016 11 writing failing which the Chairman will submit his notes on the subject.
(8) In case of disagreement with the report of the findings of the Board, the Collector shall, after recording his reasons for such disagreement and after giving the parties concerned a reasonable opportunity of being heard, make such enquiry, if any, as he thinks necessary and on being satisfied that:
(i) the person threatened with ejectment is an under raiyat the Collector shall declare the threatened ejectment illegal and direct that the landlord shall not interfere with the possession of the under raiyat in his tenancy or any portion thereof;
(ii) the land under dispute is in the tenancy of the under raiyat the Collector shall declare possession of the under raiyat and order the crop or produce or the sale proceeds thereof, as the case may be, to be divided between the under raiyat and his landlord in accordance with the provisions of Sections 69 to 71 of the Act;
(iii) the person alleged to have been ejected was an under raiyat of the disputed land on the date of ejectment and was ejected within twelve years before the commencement of proceeding under this section in contravention of Section 89, the Collector shall order that the landlord, or where any other person, is in possession of the land comprised in the under raiyat tenancy or portion thereof under any claim derived from the landlord, such persons Patna High Court MA No.324 of 2013 dt.17-05-2016 12 shall restore the under raiyat to possession of the tenancy or portion from which he was so ejected.
(9) The order of the Collector under Sub-sections (6), (7) or (8) shall be in writing and shall state the grounds on which it is made and specify the period which shall not exceed six months from the date of the order within which his order shall be carried out.
(10) If the Board fails to record its findings or transmit the records as required under Sub-section (7) within a period of six months (which shall be reckoned from the date of its appointment under Sub-section (3) the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section.
(11) If the person against whom an order has been made under Sub-sections (6), (7) or (8) fails to carry out the orders of the Collector within such reasonable time as may be specified in the order or the order passed to appeal under Section 48F the Collector shall take or cause to be taken such steps or use or cause to be used such force as in his opinion may be necessary for securing compliances with the order or for preventing such threatened ejectment of under raiyat or for restoring possession to under raiyat unlawfully ejected.
(12) The Board shall have the same power regarding the summoning and attendance of witnesses and compelling the production of documents as a Civil Court has under the Code of Civil Procedure, 1908 (V of 1908) and the Collector shall have Patna High Court MA No.324 of 2013 dt.17-05-2016 13 general control and superintendence over the Board.
(13) -------"
As the claim has been made by the respondent that there is no bar for the civil court to entertain a suit even after exhaustion of remedy under Section 48E of the Act, it will be relevant to quote Section 48E (13), Section 48F(4) and Section 48F(5) side by side and examined closely which reads as follows:-
"48E(13) Save as expressly provided in this Act, no Civil or Criminal Court shall have any jurisdiction over the subject matter of a dispute after proceeding is initiated under Sub-section (1) by the Collector:
Provided that nothing in this sub-
section shall be deemed to affect the power of a criminal court to, take such action as may be necessary for preventing breach of the peace pending the final disposal of the proceeding by the Collector."
48F(4) An order duly made under section 48-E or on appeal under this section shall be final and shall not be called in question in any Civil Courts.
48F(5) If a suit is instituted challenging an order made under Section 48E or on appeal under this section, the Civil Court shall have no power, during the pendency of the suit, to stay the enforcement of such order."
Section 9 of the Code of Civil Procedure empowers Patna High Court MA No.324 of 2013 dt.17-05-2016 14 the civil court to try all suits of a civil nature except those which is either expressly or impliedly barred. The jurisdiction of civil court cannot easily be inferred to have been excluded even in cases where jurisdiction has been conferred to the Tribunal or authority on particular subject matter. Even in those cases also the civil court may entertain the suit in the matter where a provision of Act has not been complied with by the Tribunal or the Authority has not acted in conformity with the fundamental principle of judicial procedure or the order amounts to nullity or there is a jurisdictional error resulting into the order being nullity or void. The privy counsel in the case of Secretary of the State Vs. Mask & Co., reported in 1940 Privy Council 105 has held as follows:-
"It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily interfered (sic inferred), but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction is so excluded, the Civil Court have jurisdiction to examine into the cases where the provisions of the Act have not been complied with or statutory Tribunal has not acted in conformity with the fundamental principle of judicial procedure."
The power of civil court to try suits of civil nature and when the jurisdiction of civil court explicitly or impliedly treated to Patna High Court MA No.324 of 2013 dt.17-05-2016 15 have been exclude has been dealt by the Supreme Court in the case of Dhulabhai etc. Vs. State of M.P. reported in 1969 S.C. 78 wherein the Hon‟ble Supreme Court has categorized the situational fact and grounds where the jurisdictional issue can be examined. In the said judgment, grounds have been cataloged dealing with inclusion and exclusion of jurisdiction of civil court.
"-------- From the facts of the said case it appears that a suit was filed by the Assessee for refund of the tax on the ground that it was calculated against the constitutional prohibition. Section 17 of the relevant Act provided that the order passed under the Act or the rules by a statutory authority shall not be called in question in any case and remedy of appeal, revision, reference etc. was provided under the said Act. The Apex Court held that as the tax was levied without complying with the provision of the charging section the order was without jurisdiction and so the suit was maintainable. The Apex Court in the said case Laid down the principle regarding exclusion of the jurisdiction of the Civil Court in paragraph 32 which runs as follows:
(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.
(2) Where there is an express bar of the Patna High Court MA No.324 of 2013 dt.17-05-2016 16 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 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 liability shall be determined by the Tribunals so constituted, and whether, (emedies 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 Patna High Court MA No.324 of 2013 dt.17-05-2016 17 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 the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."
In view of Section 48F(4), an order passed by the authority under the provision of 48E, the same question cannot be looked into by the civil court as sub-clause 4 specifically excludes the jurisdiction of Civil Court. In that view of the matter, the direction of the appellate court to relegate the matter is completely barred but at the same time provides if a suit is instituted challenges the order passed under Section 48E or on appeal under Section 48F, Civil Court will not have power during the pendency of the suit, to stay the enforcement of such order. The mechanism provided under Section 48E has come for consideration on different occasions side by side the power of the civil court to entertain and pass order with respect to right of under raiyat in the case of Ram Narain Singh & Ors. Vs. State of Bihar & Ors. reported in AIR 1973 Patna 275. In that case, the vires of the provision of 48E was challenged. It was claimed that the Patna High Court MA No.324 of 2013 dt.17-05-2016 18 provisions of 48E are discriminatory, arbitrary does not conform to the provisions of Article 14 of the Constitution of India claiming that provisions of BT Act leaves unfettered discretion to the Collector in the matter of initiating a proceeding against the landlords without laying down any guideline for initiation of proceeding, as in identical circumstances, the Collector may initiate proceeding against the landlord, it may not be started against the other landlord, in that circumstances, and the civil suit may be filed against him by the under-raiyat It was submitted that the provision of Section 48E does not completely take away the power of under-raiyat to institute a suit before the civil court.. It was argued that if there is a dispute of landlord and under-raiyat, the under-raiyat will have a discretion of either he may approach to the authority under Section 48E or he can go to the civil court. In such situation, the tenant will have certain advantage against land lord. In alternative, it was argued that the provision of Section 48E is in the nature of supplementary not a substitutive and merely provides for an additional remedy to the under raiyat. One under-raiyat may file an application before the Collector for institution of the proceeding, the other may institute a suit for the same issue before the civil court. The court has given an answer that on plain construction of provision of sub-section 48E(1) except for express provision in the Act, the civil and criminal court shall have no Patna High Court MA No.324 of 2013 dt.17-05-2016 19 jurisdiction over the subject matter of dispute in proceedings. In the other word, it expressly barred the institution of civil suit in respect of property which is subject matter of dispute in 48E proceeding. If the intention of the Legislature would have been to make sub-section (13) applicable to pending procedure, it would have specifically stated in the section that civil or criminal court shall cease to have jurisdiction in pending proceedings over subject-matter of a dispute in respect whereof a proceeding under sub-section (1) is initiated. Provisions of a statute are ordinarily to be given a plain meaning and words thereof are to be given exceptional construction only in certain limited circumstances. In this regard, the Court has held as follows:-
"------- In my opinion, it is not possible to accept this submission of Mr. Sinha. On a plain construction, this sub- section means that after a proceeding is initiated under sub- section (1) of Sec. 48-E, except for express provisions in the Act, civil and criminal courts shall have no jurisdiction over the subject-matter of dispute in the proceedings. In other words it expressly debars institution of a suit in respect of property which is subject-matter of a dispute in a proceeding. If the intention of the Legislature would have been to make sub-section (13) applicable to only pending proceedings, it would have been specifically stated in the section that civil or criminal court shall cease to have jurisdiction in pending proceedings over subject-mater of a dispute in respect whereof a proceeding under sub-section (1) is initiated. Provisions of a statute are ordinarily to be given a plain meaning and words thereof are to be given exceptional construction only in certain limited circumstances."
Patna High Court MA No.324 of 2013 dt.17-05-2016 20
------ Therefore, the very basis on which Mr. Sinha built up this argument does not appear to be correct; unless it is expressly provided for, statutes are not to be interpreted so as to exclude the general remedy available to the citizens under the law of the land. Section 48-E, in my opinion, does not completely take away from the under-raiyats the right to institute a suit before the civil court. It merely confers upon them an additional remedy of getting a proceeding under sub- section (1) of that section initiated. So long the proceeding is not initiated, he can institute a suit. But once a proceeding is initiated, the jurisdiction of the civil court or criminal court over the subject-matter of the proceeding is taken away. Thereafter no suit can be instituted in respect thereof. In other words, the remedy provided by Section 48-E to an under-raiyat is merely supplemental and not substitutive."
The court has considered the effect of sub-section (4) of Section 48F where the court has said that if an order is unduly made under Section 48E or in an appeal under Section 48F, it shall not be final and can be called in question in a civil Court. Sub-section (5) of Section 48F lays down that if a suit is instituted challenging an order made under Section 48E or an appeal under the section the civil court shall have no power during the pendency of the suit to stay the enforcement of such order. This sub-section also makes it clear that a suit can be instituted challenging an order made under Section 48E if that order is "not duly made". Only rider has been created that Civil Court will not pass any stay order against the order passed in 48E proceeding. In this regard, the Court has held as follows:-
"----- The bar imposed on the jurisdiction of the civil Patna High Court MA No.324 of 2013 dt.17-05-2016 21 Court under sub-section (13) is subject to other express provisions of the Bihar Tenancy Act. Sub-section (4) of Section 48-F says that an order duly made under Section 48-E or an appeal under this section shall be final and shall not be called in question in any civil Court. The effect of sub-section (4) of Section 48-F or in an appeal under Section 48F, it shall not be final and can be called in question in a civil Court. Sub-sectoin (5) of Section 48-F lays down that if a suit is instituted challenging an order made under Section 48-E or an appeal under the section the civil Court shall have no power during the pendency of the suit to stay the enforcement of such order.
This sub-section also makes it clear that a suit can be instituted challenging an order made under Section 48-E if that order is not duly made. The provisions of sub-sections (3) to (7) of Section 48-E, therefore, in my opinion, cannot be held to be drastic or prejudicial to the landlord."
On analysis of the aforesaid discussion, it is clear that even if the order passed under Section 48E by the Collector under the Act, it cannot be said to be completely immune from challenge in the civil court but can be said, the civil court will have a jurisdiction to entertain the suit in a situation when the proceeding under Section 48E, has been initiated, the order is "not duly made".
In the case of Dhanji Singh Vs. State of Bihar & Ors. reported in AIR 1979 Patna 259 (F.B.), a question was raised, while initiating the proceeding under Section 48(E) of the B.T. Act that it was not open to the Collector under the Act to record findings on merit of the case rather after initiating a proceeding, he will have to constitute a Board as contemplated under Section 48E of the Act. The Patna High Court MA No.324 of 2013 dt.17-05-2016 22 court has made a forensic examination of the provision of Section 48E and the court has held that the Collector has been provided with general power of control and superintendence over the proceeding in connection with the dispute between the landlord and tenant, still, at the first instance, after having initiated the proceeding under sub- section (1) of Section 48E, the Collector has to refer the dispute to the Board. The Board has first to make endeavour for an amicable settlement, failing which it has to make enquiry and has to receive such evidence as it considers necessary, and, thereafter to record a finding in respect of the dispute. The Collector can decide the dispute only under two contingencies, if he differs with the findings and report of the Board, or, if the Board fails to record its finding within a period of six months from the date of its appointment. The Court has also an occasion to consider the effect of use of word „may‟ in sub- section 3 of Section 48E which itself says that after initiating the proceeding under sub-section (1), the Collector may refer the matter to a Board to be appointed by him where the Court has said that it has to be interpreted that after initiating the proceeding, he has to refer the matter to the Board and the court said that the word used "may" be read as „must‟ which is in the nature of mandatory provisions where the court held that when the power is conferred by the statute, coupled with the duty of the person to whom it is given to exercise it, then Patna High Court MA No.324 of 2013 dt.17-05-2016 23 even though the word "may" is used, it has to be construed as imperative. The Court has given answer as to whether the Collector is bound to initiate a proceeding under sub-section (1) in case an application is filed under Section 48E where the Court said that while initiating a proceeding, the Collector has to apply his judicial mind for the purpose of ascertaining as to whether the requisite condition for initiating a proceeding is existing. The Court has further held that Section 48E does not conceive two enquiries, one preliminary and other the final. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord, he can initiate a proceeding. Of course, in some cases where the claim on behalf of the under-raiyat has been made by suppressing the material facts, like an order under Section 145 of the Code of Criminal Procedure between the same parties, upholding the claim of the landlord and negativing the claim of possession made by the under-raiyat or a recent delivery of possession having been effected in favour of the landlord over the lands in question, then the landlord may bring to the notice of the Collector that the claim of the applicant lacks bona fide and there the Collector may refuse to proceed with the matter further but at the behest of landlord at the initial stage, the proceeding cannot be converted into mini trial or a parallel enquiry Patna High Court MA No.324 of 2013 dt.17-05-2016 24 and he has to wait till the matter is placed before the Board. In this regard, it will be relevant to quote following from the said judgment as follows:-
"8. Being faced with this situation, the learned counsel for the respondent submitted that the impugned order does not amount to deciding the dispute finally, but it only amounts to refusal to initiate a proceeding under sub-sec. (1) of that section. Learned counsel further urged that the Collector is not bound to initiate a proceeding, no sooner an application is filed on behalf of the under-tenant, he has to apply his judicial mind and in appropriate cases he may reject the prayer of the under-tenant. What is the scope of sub-sec. (1), can be determined only after it is ascertained as to whether under sub-sec. (1) the Collector has to exercise an administrative power or a quasi judicial one.
----- Is the Collector bound to initiate a proceeding under sub-sec. (1), if an allegation has been made in the petition of the under-tenant, that he had been dispossessed on a date which is beyond 12 years from the date of the filing of this application? Similarly, is he bound to initiate a proceeding if the allegation or information is that the under-tenant has been dispossessed not by his landlord but by a third person? The answer in both the cases shall be in the negative. Therefore, it cannot be said that at the time of initiating a proceeding, the Collector has not to apply his judicial mind for the purpose of ascertaining as to whether the requisite conditions for initiating the proceeding exist or not."
9. Learned Government Advocate submitted that sub-
sec. (1) does not say in so many words that the Patna High Court MA No.324 of 2013 dt.17-05-2016 25 Collector should be satisfied about the existence of the dispute. According to me, merely because of the absence of expression like "if the collector is satisfied", it cannot be held that the reference to the Board is an automatic action, without any application of mind. It is well settled that where a particular statute vests power in a particular authority to initiate or not to initiate a proceeding on its own opinion, still it can be shown that those circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefore, suggestive of the aforesaid things. In other words, the opinion can be challenged on the ground of non-application of mind or perversity, or on the ground that it was formed on collateral grounds and was beyond the scope of the statute.
----- I have no hesitation in holding that a proceeding under S. 48-E can be initiated only after the Collector is satisfied that one of the three requisite conditions exists. On what materials and in what manner the Collector shall be satisfied about existence of one or the other requisite conditions for initiation of the proceeding, no hard and fast rule can be laid down. It will depend on the facts and circumstances of each case."
The same type of issue was raised in the case of Jyotish Lal Mandal Vs. The State of Bihar & Ors. reported in 1994(2) PLJR 394 wherein an application under Section 48E was filed and was rejected on the ground that in 145 proceeding, the land was declared in possession of the landlord which was affirmed by the revisional court. After disposal 145 Cr.P.C. proceeding, under raiyat filed petition Patna High Court MA No.324 of 2013 dt.17-05-2016 26 before the D.C.L.R. for initiation of proceeding under Section 48E of the B.T. Act, which was dismissed, against that order, filed revision application before the Collector, who quashed the order of Revisional Court, remanded back the proceeding. The order of Collector was challenged before this Court, this Court held that the Collector does not has jurisdiction to entertain appeal or revision. In paragraph no.18, this Court has held that a civil suit would, thus, be maintainable at the instance of respondent nos. 5 to 7 as no proceeding under sub-section 7 & 8 of Section 48E of the Act was initiated, sub-section 13 thereof does not impose any bar for maintainability of the suit. It is relevant to quote paragraph no.18 of this judgment, which reads as follows:-
"18. A civil suit would, thus, be maintainable at the instance of respondent Nos. 5 to 7. Further as no proceeding under sub-sections (7) and (8) of Section 48-E of the Act was initiated, sub-section (13) thereof does not impose any bar for maintainability of the suit."
In the case of Lakhan Paswan & Ors. Vs. Shiwnandan Pd. & Ors. reported in 2001(1) PLJR 174, the facts are that the disputed land was belonging to Raghubans Mani Singh and Yaduban Mani Pd. Singh who sold the same to Abu Singh by registered sale deed and later on Abu Singh sold the land to Shivnandan Prasad. Shivnandan Prasad purchased 2 acres 42 decimals of land which was in dispute in connection with proceeding initiated under Section 48E of the B.T. Patna High Court MA No.324 of 2013 dt.17-05-2016 27 Act. The plaintiff claimed that Mahanth of Nandiha Math namely Garibanand Das has no concern with the said land. In that case some of the persons, namely, Lakhan Paswan, Ram Bachchan Rai and Jang Bahadur Prasad filed a Bataidari cases under Section 48E of the Act claiming Bataidari right against Mahanth Garibanand Das of Nandiha Math. The plaintiff and other purchasers filed an application for being impleaded as party but the same was rejected by the Collector, ultimately the case was decided in favour of the defendants Bataidars, later on a civil suit was filed by Shivnandan Prasad claiming to be rightful owner of the land, claiming that Lakhan Prasad and others did not have any right and title or possession over the land. Under Raiyats challenged the maintainability of the suit on the ground that Section 48F(4) of the Act prescribes that the order passed under Section 48E of the Act or order of appeal under Section 48F attained finality, the same shall not be called in question in the civil court and during pendency of the proceeding, the civil court or the criminal court shall not have jurisdiction over the subject matter. In that case, the suit was filed for declaration of title, confirmation of possession over the land in question and claim of Bataidar was false. Claim was made by Bataidar that their right as Bataidar has been decided in 48E proceeding, in view of conclusive decision on account of the order passed in 48E proceeding or order of appeal under Section 48F the Patna High Court MA No.324 of 2013 dt.17-05-2016 28 Civil Court has not power to entertain the suit so much so cannot issue injunction restraining the enforcement of the order. This court has taken into account that plaintiffs were not made party or they were not allowed to participate in the proceeding on consideration of facts and circumstances of the case held that if the order is not duly made under the Act, a suit is maintainable, only bar has been created under the statute that no interim order would be passed staying the operation of the order passed under the act. This Court after considering the facts and provisions of statute, held that suit is maintainable. It would be relevant to quote paragraph nos. 20, 21 and 22 which reads as follows:-
"20. Thus, the law is well settled that when the Act creates a right and liability and also creates forum including right of appeal etc. and bars the jurisdiction of the civil court either expressly or impliedly in that case the jurisdiction of the civil court is excluded and no suit is maintainable to challenge the order on merits.
However, even in such cases suit would be maintainable on the ground that the provision of the Act has not been complied with or the Tribunal has not acted in conformity with the fundamental principle of judicial procedure or the order is without jurisdiction which amounts to nullity or void in the eye of law.
21. The conjoint reading of Section 45F (4) & (5) show that the suit is barred only with regard to an order duly made under Section 48E or on appeal under Section 48F. If the order is not duly made under the Act a suit is maintainable and the only bar created is that in that Patna High Court MA No.324 of 2013 dt.17-05-2016 29 case no interim order shall be granted staying the operation of the order passed under the Act.
22. According to Stroud's Judicial Dictionary 4th Edition word "duly" means done in due course or according to law. Thus, if an order is not passed after following the procedure prescribed under the Act or it has been passed without following the fundamental principle of judicial procedure or is without jurisdiction then the order is not duly made and the suit is maintainable. The bar created under Section 48F(4) is not attracted in such situation. However, no suit will be maintainable to challenge the order passed under Section 48E or oh appeal under 48F on merits."
The nutshell of the judgment is that if an order is not passed after following the procedure prescribed under the Act or it has been passed without following the fundamental principle of judicial procedure or order passed by Collector is without jurisdiction then in that circumstances, the order will be treated to have not been duly made and the suit is maintainable.
Similar occasion came for consideration in the case of Sant Pandey Vs. Kedar Nath Tiwary & Ors. reported in 2012(4) PLJR 817. There the proceeding reached to a finality in a Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and, thereafter, suit was filed. The plea was taken that the suit is barred in view of Section 37 of the Bihar Consolidation of Holding Act which provides that no civil court will have jurisdiction to entertain any suit or application to vary or set aside any decision or order given or passed Patna High Court MA No.324 of 2013 dt.17-05-2016 30 under this Consolidation Act with respect to any matter for which a proceeding could or ought to have been taken under this Act. The Court has held that the jurisdiction of the civil court is not barred in view of Section 37 of the Consolidation Act as relief was not sought to set aside order of Consolidation Authorities but suit was filed for declaration about gift deed and partition and counter claim was also filed. It would be relevant to quote paragraph no.14 of this judgment, which reads as follows:-
"14. In the case of Horil Vs. Keshav & Anr. 2012 (2) BLJ Supreme Court 1, the Hon'ble Apex Court has held that under Section 9 of the Code of Civil Procedure, the Civil Court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication by any statutory provision and conferred on any other tribunal or authority. Section 37 of the Bihar Consolidation of Holdings Act provides that no civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. As stated above, the plaintiff never claimed to set aside any decision or order given or passed under the Consolidation Act with respect to any matter. The suit has been filed simply for declaration about the gift deed and partition and likewise the counter claim was also filed simply for the declaration of title. In my opinion, therefore, the jurisdiction of Civil Court under Section 37 of the Consolidation Act in the present case is not barred."
Patna High Court MA No.324 of 2013 dt.17-05-2016 31 Thus, in view of the analysis of the aforesaid judgments, it is culled out that the proceeding of the civil court is not barred. In such view of the matter, the Under Raiyat has two forums, namely, civil suit or proceeding under Section 48E of the B.T. Act for adjudication of their grievances. The remedy provided under Section 48E of the B.T. Act is supplemental and not substitutive. But when a proceeding has been initiated under Section 48E and finally issues have been settled, the suit is only maintainable challenging the order passed under Section 48E when the order has not been duly made. Meaning thereby, the authority while adjudicating the dispute has not followed the procedure as envisaged under Section 48E of the Act and the order of appeal passed under Section 48F of the Bihar Tenancy Act but it cannot be said that when proceeding has been conducted in terms of the provisions of Section 48E, it does not reach to a finality and the order passed under Section 48E of the B.T. Act cannot be challenged seeking a relief in the suit for setting aside the order passed by Collector under Section 48E and under Section 48F of Bihar Tenancy Act otherwise it will lead to multiplicity of proceeding for same dispute. In such view of the matter, the principle of res judicata would be applicable in terms of Section 11 of the Cr.P.C. It cannot be said that if a matter has finally been concluded that can again be reopened in civil suit unless it is found that there is Patna High Court MA No.324 of 2013 dt.17-05-2016 32 jurisdictional error or any procedural infirmity having been done and proceeding was conducted and concluded dehors the provision of the Act.
The Hon‟ble Supreme Court in the case of Sheodan Singh Vs. Daryao Kunwar reported in AIR 1966 SC 1332 has held that when the matter is said to have been heard and finally decided, the decision in the former suit must have been on merit, the parties to the suit cannot be vexed twice for the same subject matter subject to exception has been provided where the suit has been dismissed by the trial court for want of jurisdiction or for default in appearance or non- joinder of parties or misjoinder of parties or multifariousness or on the ground of a technical mistake or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree or for failure to furnish security for costs or on the ground of improper valuation or for failure to pay additional court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal the decision not being on the merits would not be res judicata in a subsequent suit. It would be relevant to quote paragraph no.13 of the said judgment, which reads as follows:-
"(13) Re. (iv): This brings us to the main point Patna High Court MA No.324 of 2013 dt.17-05-2016 33 that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for Patna High Court MA No.324 of 2013 dt.17-05-2016 34 want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the Patna High Court MA No.324 of 2013 dt.17-05-2016 35 decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the me- rits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming into the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismis- sal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have Patna High Court MA No.324 of 2013 dt.17-05-2016 36 decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties.
We 30 9 are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
In view of the aforesaid discussion, let us examine the facts of present case in view of law discussed with regard to its maintainability of the suit in view of the fact that admittedly the respondent no.1 has initiated a proceeding under Section 48E which was passed in his favour. That was challenged by the appellant in CWJC No. 4295 of 1982 was allowed, matter was remanded back to Patna High Court MA No.324 of 2013 dt.17-05-2016 37 DCLR and direction was given to appear before DCLR who will adjudicate and decide the case, respondent no.1 did not appear, DCLR passed the order against the respondent no.1 holding that respondent no.1 was/is disobeying the order of this Court or having left interest as landlord and tenant relationship does not/did not exist but, thereafter, he has decided the case on merit and held that the respondent no.1 could not make out a case of relationship of under-raiyat and landlord and the application is based on wrong matrix of fact. Accordingly, the claim of Bataidar was rejected. It would be relevant to quote paragraph nos. 3, 4 & 5 of the order dated 9.1.1989 passed by the D.C.L.R. which reads as follows:-
^^3- tgka rd vU; fooknh [ksljs ij oknh }kjk cVkbZ nkos dh iqf'V dk iz"u gS] izfroknh }kjk izLrqr nyhy ls bl rF; dh iqf'V gksrh gS fd dsl ua0 200@71&72 ewy izfroknh "ks0 erhmj jgeku ,oa ljhQwj jgeku }kjk lu 1967 bZ0 esa fooknh Hkwfe chch vlekrqu fu"kk ifr Lo0 "ks[k vtgj vyh lkfeu lkysiqj ds lkFk ikl ;FkSok iVkSok ¼lwnHkjuk ds :i esa j[kk x;k Fkk tks vius HkkbZ vlQkd mQZ tqEeu ls [ksrh djk jgh Fkh tSlk fd o'kZ 1968&69 ls 1976&77 rd nkf[ky ikuh iVou jlhn ls irk pyrk gSA bl ifjis{; esa oknh }kjk lacaf/kr Hkwfe ij cVkbZ gd dks fn;k nkok dks vfo"oluh; gh dgk tk;sxkA pwafd ;g LoHkkfor gS fd xz/kksuk iVksuk j[kusokys O;fDr eqQr esa fdlh dks tehu lFkksok iVksok ugha j[ksaxsA l/kksok iVksok nyhy ls ;g ckr Li'V gks tkrh gS fd chch vlekre fu"kk o'kZ 1976 esa rd mDr Hkwfe ij n[kydkj jgdj iSnkokj dj miHkksx djsaxhA tcfd blh chp erhmj jgeku us vius Patna High Court MA No.324 of 2013 dt.17-05-2016 38 fgLls dh tehu viuh iRuh chch jbZlk [kkrqu dks ;kuh 28-3-72 dks nku i= dj fn;k ysfdu o'kZ 1976 bZ0 rd lFkksok iVksok gh jghA ;g Hkh mYys[kuh; gS fd oknh us [ksljk ua0 1759 ij 0-47 lSrkyhl fMley ,oa 1760 ij 0-13 rsjg fMley rFkk 1028 ij 2-35 nks ,dM+ iSrhl fMley tehu dk cVkbZ gd ds fy, vkosnu fd;k Fkk] ijUrw bl U;k;ky; }kjk [ksljk ua0 1759 ij 0&95 iapkuos fMley ,oa 1760 ij 0-47 lSrkyhl rFkk 1028 lSra kyhl rFkk 1028 ij 2&36 nks ,dM+ NRrhl fMley tehu ij oknh dks okLrs rd ?kksf'kr fd;k x;k Fkk tks mfpr ugha dgk tk ldrk gSA 4- /kkjk 69 ch0Vh0 ,DV dsl u0 20@81&82 esa fnukad 18-3- 82@20-3-82 dks vapy inkf/kdkjh] Qydk rFkk /kkjk 144lh vkj0ih0lh0 dsl ua0 91,e@82 esa fnukad 20-5-82 dks dk;Zikyd naMkf/kdkjh Jh eqa"kh Hkkstjkt }kjk izfroknh ds i{k esa ikfjr vkns"k ls Hkh oknh nkos cy ugha feyrk gSA 5- tgka rd fcgkj dkLrdkjh vf/kfu;e dh /kkjk 48bZ0 vUrxZr izfroknh }kjk cVkbZnkjh okn ls twV ikus ds jS;r dk nkok djus ds lca/k gS] bl ifjis{; esa izfroknh ua01 ,oa 8 dks fo/kok jgus ds otg ls /kkjk 48oh0 ¼11½ esa rgr cVkbZokn ls NqV nsuk U;k;laxr gSA tcfd oknh ua02 ls 7 rd dks mDr /kkjk vUrxZr izek.k i= izLrqr ugha djus ds dkj.k cVkbZnkj ls NwV nsuk U;k;ksfpr ugha gSA mijksDr of.kZr rF;ksa ds vkyksd esa ;g Li'V gks tkrk gS fd oknh us eku~uh; mPp U;k;ky; ds vkns"k dh vogsyuk dj Lo;a ;g iqf'V dj fn;k gS fd iwoZ esa dsl ua0 200@71&2 ds ek/;e ls muds }kjk izLrqr cVkbZ vkosnu i= iwjh rjg xyr ,oa >wBs vk/kkj ij izLrqr fd;k x;k Fkk tks U;k;laxr ugha dgk tk ldrk gSA vr,o dafMdk 1 oks 5 ij of.kZr rF;ksa dks en~nsutj j[krs gq, oknh dk cVkbZnkjh dk nkok iqu% vLohd`r djrs gq, eku~uh; mPp U;k;ky; ds vkns"k ds vkyksd esa eqdnesa dh Patna High Court MA No.324 of 2013 dt.17-05-2016 39 dk;Zokgh lekIr dh tkrh gSA** Against that order, the respondent no.1 approached in appeal before the Collector, Katihar vide Case No. 442 of 1988-89.
The Collector, Katihar found that the respondent no.1 was not heard.
Set aside the order vide order dated 5.3.1989 and remanded for the same. That was again challenged by the present appellant in CWJC No. 3315 of 1989 and this Court vide order dated 22.5.1989 has set aside the order of the Collector as having found that the appeal was not maintainable and so much so that the Court has taken cognizance of the fact that the respondent no.1 has approached this Court in CWJC No. 4837 of 1989 and this Court in the aforesaid writ application has not only considered the aspect of non-appearance of respondent no.1 but so much so the court has also examined into the merit of the case and held that there is no error in the order passed by the Collector under the Act. The Court has also considered the point of non-constitution of Board claiming to be order of Collector under the Act per se illegal and, after discussing the matter, the Court has held that prima facie the Collector did not find any existence of relationship of under-raiyat and landlord. The relevant portion of the order dated 12.9.1989 reads as follows:-
"We are not impressed by the contentions raised on behalf of the petitioner that he had no information about the proceeding before the Collector under the Act as this Court had left no ambiguity as to the knowledge of the proceeding at Patna High Court MA No.324 of 2013 dt.17-05-2016 40 the instance of the petitioner. No notice was required to be served as ordered by this court as quoted above. We are also not impressed by the contention of the learned counsel for the petitioner that the Collector under the Act could not dispose of the proceeding without constituting a Board and without awaiting for the report of the Board or proceeding in the event of the Board not functioning as required by the law in accordance with the provisions under section 48E of the Bihar Tenancy Act. The answer is available in the language of sub-sections (1) and (2) of Section 48E of the Act. The Collector could not proceed to decide whether there was any dispute or not until prima facie determined that there was a dispute for adjudication. In making such prima facie determination the Collector under the Act has taken notice of the existence of the mortgage of the land and transfer made by the landholder. While the mortgage was still subsisting petitioner had made no grievance against either the mortgagee or the transferee from the mortgagee. That being the position there is no prima facie case for adjudication under section 48E of the Act. In view of the findings aforementioned we do not find any merit in this application. It is accordingly dismissed."
In view of the aforesaid position, in the suit as per the Plaint, it contains the facts, as facts relates to the proceeding under Section 48E of the Act and relief that has been sought by the respondent no.1 wherein a prayer has been made to adjudicate and decide, that plaintiff has acquired the perfect title as an under raiyat having occupancy right and possession therein and accordingly the suit be declared in favour of the plaintiff. A further prayer has been sought for decree of recovery of possession be passed in favour of the Patna High Court MA No.324 of 2013 dt.17-05-2016 41 plaintiff in case it is found that he has been evicted forcibly during the pendency of the suit, inasmuch as, he has claimed his right on the basis of being under-raiyat, have acquired the occupancy right that has been held by the Collector non-existence. That has been approved by this Court. Nowhere in the paint, the plaintiff has made out a case that the procedure adopted by the Collector was fundamentally wrong, have not followed the due procedure of law as it is absolutely clear in term of sub-section 4 of Section 48F that the order passed by the Collector under Section 48E proceeding attained finality as per the judgment of this Court, in case the authority has followed fundamentally wrong procedure of law, suit will lie as no complaint has been made that without following the fundamental principle and procedure nor having claimed the order was without jurisdiction, in such circumstances, the bar created under Section 48F (4) is attracted and so much so as the issue has finally been decided under Section 48E of the B.T. Act, the same cannot be challenged as it is barred in view of principle of res judicata. In the suit, the respondent no.1 has not claimed the relief by way of independent right apart from claiming on the basis of landlord and under Raiyat, in such circumstances, allowing the suit to proceed would amount to multiplicity of suit for same subject matter, which, certainly cannot be conceived idea.
In such view of the matter, the impugned order dated Patna High Court MA No.324 of 2013 dt.17-05-2016 42 10.9.2009 passed by the appellate court in Misc. Appeal No. 5 of 2008 remanding back the matter is set aside.
In the result, the appeal is allowed.
(Shivaji Pandey, J) Rishi/-
AFR/NAFR AFR CAV DATE 14.12.2015 Uploading Date 17.05.2016 Transmission Date