Patna High Court
Jagnarayan Singh vs Shubhraji Devi & Ors on 10 March, 2010
Author: S.K. Katriar
Bench: Sudhir Kumar Katriar, Kishore K. Mandal
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CIVIL REVISION No.1120 OF 2008
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Against the order dated 3.6.2008 passed by the
learned Additional Munsif 2nd, Kaimur at Bhabua in
Title Suit No.62 of 1995.
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Jagnarayan Singh, son of late Ghurahu Singh,
resident of Village Lurpurawan, P.S. Mohania,
District- Kaimur ---- Defendant--- Petitioner.
Versus
1. Shubhraji Devi wife of Sheopujan Singh
2. Saroj Kumari (minor)
3. Pinki Kumari (minor) Both 2 and 3 are daughters
of Sheopujan Singh under the Guardianship of their
mother namely Shubhraji Devi, all 1 to 3 are
resident of Village Lurpurawan, P.S. Mohania,
District- Kaimur at Bhabua.
4. Sanju Devi wife of Vinod Singh, resident of
Village Turakwalia, P.S. Mohania, District-Kaimur
5. Manju Devi wife of Omprakash Singh, resident of
Village Gurari, P.S. Baburi, District-Chandouli
U.P. ---- Plaintiffs----Opposite Parties.
6. Sheopujan Singh, son of late Ghurahu Singh,
resident of Village Lurpurawan, P.S. Mohania,
District-Kaimur Bhabua -- Defendant--- Opposite
Party (since deceased))
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For the Petitioner : Mr. Arbind Nath Pandey.
For the Opposite Party: Mr. Vijayendra Nath &
Mr. Rajani Kant Pandey.
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PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE K. MANDAL S.K. Katriar J. This application under Section 115 of the Code of Civil Procedure has been preferred by defendant no.1 and is directed against the order dated 3.6.2008, passed by the learned Additional Munsif II, Kaimur at Bhabua, in Title Suit No.62 of 1995 (Shubhraji Devi Vrs. Jagnarayan Singh), whereby it has been held that the suit does not abate in terms of Section 4(C) of the Bihar 2 Consolidation of Holdings and Prevention of Fragmentation Act, 1956(hereinafter referred to as „the Act‟). The petitioner herein is defendant no.1 before the learned trial court, opposite party nos. 1 to 5 herein are the plaintiffs, and opposite party no.6 (Sheopujan Singh since deceased), was defendant no.2. We shall go by the description of the parties occurring in the plaint.
2. A brief statement of facts essential for the disposal of the civil revision application may be indicated. According to the plaint, the two defendants are full brothers. Defendant no.2 was the husband of plaintiff no.1, and was given to intoxication. Under the evil influence of intoxication, defendant no.2 executed the registered deed of gift in favour of defendant no.1, to the exclusion of the plaintiffs who are his wife and daughters. The suit has, therefore, been instituted, inter alia, for the declaration that the deed of gift is illegal, and void ab initio.
3. During pendency of the suit, defendant no.1 filed an application on 12.8.2008 (Annexure-2), stating therein that the same has abated in terms of Section 4(C) of the Act. The application has been rejected by the learned trial court on the ground that, in view of the nature of reliefs 3 sought for in the plaint, jurisdiction of the civil court is not excluded. Hence this application at the instance of defendant no.1. As stated hereinabove, the defendant no.2 died during the pendencny of the present proceedings and has been expunged.
4. The matter was on the first occasion laid before a learned Single Judge on 5.8.2008, and was admitted on the following grounds:
"...In view of the conflict in the judgment of this Court in the case of Ashok Kumar Singh Vs. Mithilesh Kumar Singh reported in 2005(4) PLJR 274 and the subsequent judgment of this Court in the case of Ram Bhajan Mahto Vs. Bam Mahto & Anrs. reported in 2008(1) BBCJ 421, it would be desirable that the controversy is resolved by a Division Bench.
Accordingly, this civil revision application will be heard..."
This is how the matter comes up before us, inter alia, to resolve the controversy whether or not decision of this Court in the case of Ashok Kumar Singh Vs. Mithilesh Kumar Singh, 2005(4) PLJR 274, is in conflict with that of Ram Bhajan Mahto Vs. Bam Mahto and Anrs., 2008(1) BBCJ 421.
5. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the parties in their elaborate submissions before us had addressed us on the questions referred by the learned Single Judge, as well as on the merits of 4 the suit. We, therefore, proceed to dispose of the whole matter to save further time and harassment to the parties, and also in view of the position that no intra-court appeal shall lie against the order of a learned Single Judge. It appears that the State Government had issued notification in terms of Section 3 of the Act with the object to ensure consolidation operation in the area where the lands in question are situated. This was followed by a notification under Section 4(A) of the Act, where by the notification under Section 3 of the Act was cancelled. The matter travelled to the Supreme Court at the instance of the State Government and the same was dismissed on 8.7.2003, passed in S.L.P. No. 9326 of 2003. Consequently, the State Government issued the notification which was published in the Bihar Gazette Extra-Ordinary dated 15.3.2004 (Annexure-1), whereby the notification under Section 4(A) of the Act was withdrawn and, consequently, the notification under Section 3 of the Act stood restored. After issuance of this Gazette notification, defendant no.1 filed an application under Section 4(C) of the Act before the learned trial court with the prayer that the suit should abate in view of the relief set out in the relief portion of the plaint. The same has been rejected by the impugned order.
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6. We must first of all notice the provisions of Section 4(C) of the Act which provides for abatement of the suit during the currency of notification under section 3 of the Act. The relevant portion of Section 4 of the Act is reproduced hereinbelow:
"4. Effect of notification under section 3(1) of the Act.- Upon the publication of the notification under sub-section (1) of section 3 in the official gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification, till the close of the consolidation operation, ensue in the area to which the notification relates, namely-
(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) every proceeding for the
correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated:
Provided that if the State Government empowers any other officer appointed under this Act to dispose of any proceeding relating to survey settlement operations under the provisions of chapter X of the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), or chapter 12 of the Chotanagpur Tenancy Act, 1908 (Bengal Act 6, 1908) or Santhal Parganas Settlement Manual, 1872(Manual 3, 1872) and transfer such proceeding to such officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated:6
Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard:
Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in the said suits or proceeding before the appropriate consolidation authorities under and in accordance with the provision of this Act and the rules made thereunder:
Provided that the State Government may, by notification in the Official gazette exempt any such proceeding suit, appeal, reference or revision or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act:
Provided further that nothing in this section shall apply to any proceedings under [sections 144 to 148 of Chapters X of the Code of Criminal Procedure, 1973 (Act 2 of 1974) the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1973), section 48E of the Bihar Tenancy Act 1885(Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962)."
7. The interpretation, scope, content and sweep of Section 4 (C) of the Act has been the subject matter of a large number of the judgments of this Court. We may usefully recall the judgment of a Full Bench of this Court in the case of Ram Krit Singh and others Vrs. The State of Bihar & others, 1979 BBCJ 259=AIR 1979 Patna 250. Paragraph 15 of the judgment is reproduced hereinbelow:
"15. It was contended by the learned counsel for the petitioners that there 7 may be composite suits where two reliefs, namely, one relating to title to land and some other independent relief may be prayed for. In those cases also the abatement of suit would lead to clear injustice. Such abatement would have neither any nexus with the object of the Act nor amount to a reasonable restriction on the right to property. It would thus be violative of the right to property as guaranteed under the Constitution. This argument is on the assumption that there is the abatement as a whole of a suit of this nature. In my view, such is not the position. Controversy in a suit may relate to right and title in land and certain reliefs dependant on the determination of the aforesaid title. Only in such a situation, in my opinion, the suit abates not only in relation to ancillary or dependant reliefs. But the position is different where independent relief or reliefs, unconnected with the declaration and determination of title to land are involved in a suit. In such a situation the suit does not abate in relation to such controversies. It is perfectly legitimate, as a rule of construction, to give a restricted meaning to the words used if the context so requires. (See Attorney General Vs. H.R.H Prince Earnest Augustus of Hanover). More so where the effect of giving a wider meaning may render the provisions constitutionally invalid. It is trite law that where a provision can be read in two ways: one of which makes it constitutional and the other unconstitutional, it should be so read and interpreted that it does not become invalid. In my view, therefore, the second contention of the learned Advocate General is also sound."
(Emphasis added).
8. A Division Bench of this Court in the case of Shrimati Shanti Devi & anr. Vs. Tribeni Tiwary and others, 1993 (I) PLJR 81, had the occasion to 8 consider Section 4(C) of the Act, wherein the same view has been taken.
9. It is evident on a perusal of the provision under Section 4(C) of the Act that a suit with respect to declaration of rights and interest in any land lying in the area, or for declaration or adjudication of any other right, shall abate. The Full Bench has interpreted the provision and has held that a suit which seeks declaration of right and title in land and certain reliefs dependant upon the title, the same shall abate during currency of notification under Section 3 of the Act. On the other hand, if independent relief or reliefs unconnected with the declaration and determination of title in law are involved in a suit, then the same does not abate in terms of section 4(C) of the Act, and the suit shall have to be adjudicated on merits. In other words, a suit which seeks the only relief of avoiding a document of title by declaring it as void has to be decided by the civil court and shall not abate.
10. R. N. Prasad, J. of this Court in the case of Ashok Kumar Singh (supra), has held in paragraph 4 as follows:
"4. However, on consideration this much is obvious from the copy of the plaint produced before the Court that the suit was filed for declaration of the sale deeds null and void and inoperative and such suit will not abate because no declaration over the 9 land has been sought for in the plaint. In this regard reference may be made to a decision in the case of Smt. Shanti Devi & Anr. Vs. Tribeni Tiwary & Ors., 1993 PLJR 81. However, there is nothing on the record to show as to whether any amendment of the plaint has been made or not."
(emphasis added) We are of the view that law has been correctly seen by the learned Single Judge which is in consonance with that of the Full Bench and is correctly decided.
11. On the other hand, another learned Single Judge of this Court has held as follows in the case of Ram Bhajan Mahto (supra):
"4. The only ground given by the trial court in rejecting the defendant‟s prayer is that the question of title cannot be decided by the consolidation authority for which it is only the Civil Court that it is competent. I am afraid the conception of the learned Judge is totally misconceived. The said question has been set at rest by a Full Bench of this Court in the case of Ramkrit Singh & Ors. Vs. State of Bihar & Ors. since reported in AIR 1979 Patna 250.
This judgment has been further considered in several decisions and ultimately it has been held by this Court that except where there is necessity to set aside a document after calling for it, there suit will lie, that is the exclusive jurisdiction of the Civil Court. In other words, if a document has to be set aside, Civil Suit is maintainable but a mere declaration of title or a mere declaration that a document is void that can be done by the consolidation authority."
(emphasis added).
10We are of the view that the law as seen by the learned Single Judge in this case does not seem to fall in line with the view taken by the Full Bench. It would be laying down the correct law consistent with the Full Bench if the expression "...or a mere declaration that a document is void ..." is excluded from the judgment. Identical error has occurred in the judgment of the same learned Judge in the judgment in Kashi Bhagat @ Kashi Nath Bhagat Vs. Keshar Bhat & Ors.,2006(4) PLJR 250, paragraph 7 of which is reproduced hereinbelow:
"7. The question now arises where a document is partly void and partly voidable what is course of action. The answer is simple. As the document cannot be dealt with by two different authorities, the jurisdiction of civil court is excluded. The document then would have been tested as held by the competent authority who is only a Civil Court as canceling a document is the exclusive jurisdiction of Civil Court."
(emphasis added) The correct law would be if the underlined portion, namely, "... the jurisdiction of civil court is excluded ...." were excluded from the judgment. To that extent, we disagree with the judgment of the learned Single Judge in the case of Ram Bhajan Mahto (Supra), and Kasi Bhagat (supra). We further state that the judgment of the learned Single Judge in the case of Ashok Kumar Singh (supra), takes the correct view of law and is consistent with the view taken by the Full Bench.
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12. We now pass to the next question, whether or not the present case is covered by the first category, or the second category, indicated in the judgment of the Full Bench. Paragraph 6 of the plaint is reproduced hereinbelow:
"6.;g fd dfFkr olhdk fgCckukek fcYdqy tkyh oks uktk;t gS oks eqnk0 ua02 ds fnekx dh detksjh dk uktk;t uQk mBkdj oks eqnk0 ua02 dks u'kk f[kykdj xyr rF;ksa dk c;ku dj oks lPpkbZ dks fNikdj otwn es yk;k x;k gS@"
In our view, a perusal of paragraph 6 of the plaint is sufficient to hold that the present suit shall not abate.
13. A perusal of the plaint creates the impression in our mind that the dominant relief prayed for in the suit is that the deed of gift is a false, fabricated, and void document, inter alia, for the reason stated in paragraph 6 of the plaint.
14. Law is well settled that the scope of litigation is determined by the frame of the plaint. Paragraph 6 of the plaint, inter alia, sets out the relief of declaration that the registered deed of gift is void ab initio because it was obtained by defendant no.1 by fraud or misrepresentation, was the result of a weak state of mind of defendant no.2, and also because he was under the influence of liquor at the instance of defendant no.1. This issue can be adjudicated and the relief can be granted only by the civil court. 12 It is, therefore, not required to be considered whether or not the relief relating to declaration of right, title, and interest in the land is sought for or not. That becomes wholly irrelevant in the present context because, as has been held by the Full Bench, in a situation where both the reliefs are sought for, the suit shall not abate and the civil court shall have exclusive jurisdiction to deal with the matter.
15. Law is well settled that a suit is the basic remedy of a citizen in this country for adjudication of right and interest unless barred in clear terms, or by necessary implication, by a specialized enactment. Section 9 of the Code of Civil Procedure is reproduced hereinbelow:
"9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation [1].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
[Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]"13
16. The same has been the subject matter of a large number of decisions by different courts, wherein it has been consistently held that in a situation where section 9 applies then its exclusion in view of a specialized enactment is not to be readily inferred. If doubt or difficulty arises about the jurisdiction of the civil court, then the courts shall lean in favour of the civil court. Reference may be made to the judgment reported in 2003(3) PLJR 100, Sheo Chand Chaudhary alais Sheochan Chaudhary Vs. Adalat Hussain & Ors. The relevant portion of the judgment is reproduced hereinbelow:
"13. Section 9 of the C.P.C. reads as follows:
"9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation [1].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
Exclusion of jurisdiction of civil court is not to be readily inferred (Dhulabhai vs. S., AIR 1969 SC 78, S.Vs. Indian Iron & Steel, AIR 1970 SC 1298; Kul Bhushan vs. Faquira, AIR 1976 P & H 341). Ouster of jurisdiction of the civil court 14 is not to be readily inferred (Narahari vs. Jadu Moni, AIR 1987 Or. 122. Unless the six conditions are fulfilled, the civil court‟s jurisdiction cannot be ousted (Agriculture & C vs. Pautappa (AIR 1973 Bom. 348). The Statute ousting jurisdiction must be strictly construed (Abdul Waheed vs. Bhanwani, A.I.R. 1966 SC 1718), and it is for the party seeking to oust the jurisdiction to establish his right to do so (Abdul Waheed vs Bhanvani, AIR 1967 SC
781). A presumption is against the ouster of jurisdiction of the ordinary courts and this presumption has to be over-borne (Desikacharyulu vs.S., AIR 1964 SC 807). In case of doubt as to jurisdiction, Court shall lean towards assumption of jurisdiction (Gurdwara & C vs. Shiv Rattan, AIR 1955 SC 576). The judgment of the Supreme Court in Premier Automobiles vs. K.S. Wadke (AIR 1975 SC 2238) is also relevant in the present contest.
14. The following passage occurring in the speech of Viscount Haldane at page 391 in the case of Neville vs. London "Express" Newspaper Ltd. (1919 Appeal Cases 368 HL) is illuminating:
"There are three classes of cases in which a liability may be established by Statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statue with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is second class which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it ..."
With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute."
17. Reference may also be made to the judgment reported in the case of Shyam Dulari Devi vs. The 15 Principal, Consolidation Training Institute & Ors., 2005 (1) PLJR 319. The relevant portion is reproduced hereinbelow:
"9.Section 9 of the Code of Civil Procedure provides that the courts shall have jurisdiction to try all suits of civil nature except either expressly or impliedly barred. Law is well settled by a long line cases of high authority that civil suit is the basic remedy of a citizen in this country for adjudication of civil disputes unless barred by a specialized enactment. The circumstances under which a particular issue can be agitated in a civil court in view of such non-obstante clause has been the subject-matter of a long line cases of high authority. I had the occasion to deal with this issue in my judgment reported in 2003(3) P.L.J.R. 100 (Sheo Chand Chaudhary alias Sheochan Chaudhary vs. Adalat Hussain and others), wherein I recapitulated the leading judgments of the Supreme Court and other High Courts."
18. We also recall the provisions under the Bihar Buildings (Lease, Rent and eviction) Control Act, 1982. Section 11 of the Act enumerates various grounds on which an order of eviction can be passed against the tenant. Section 14 of the Rent Control Act provides the special procedure for disposal of cases for eviction on the ground of bonafide requirement. In other words, summary procedure has been provided for eviction on this ground. A situation may arise where eviction is sought on the ground of bonafide requirement to be adjudicated as per the summary procedure, as well as any other ground(s) which calls for a detailed 16 procedure. The court has held that, in such a situation, detailed procedure will have to be followed. Reference may be made to the case of Ladu Gopal Kedia Vs. Bibi Jaibunissa, 1991(2) PLJR 1(F.B). The relevant portion of the said judgment is reproduced hereinbelow:
" 10. From a combined reading of Sections 11 and 14 of the Act, therefore, it becomes clear that the special procedure laid down under section 14 of the Act can be taken recourse to only in a case where the ground for eviction is covered by clause „c‟ or „e‟ of sub-section (1) of section 11 of the Act. Where, however, the landlord choses to join more than one ground of eviction which may include one of the grounds specified in clause „c‟ or clause „e‟ of sub-section (1) of section 11 of the Act, the general provisions laid down for deciding a suit shall be applicable."
19. In the result, we do not find any merit in this civil revision application. We agree with the impugned order. It is accordingly dismissed. In the facts and circumstance of the case, there shall be no order as to costs.
( S.K. Katriar, J.) Kishore K. Mandal, J. I agree.
(Kishore K. Mandal, J.) High Court Patna.
Dated 10th March, 2010.
Vinay/ A.F.R.