(D) Through LRS. Vs. Luxman Mahto & Ors.
Jurisdiction Special Leave Petition (Civil ) No. 8225 of 2003]
O R D E R
maintainability of a Civil Suit filed by the respondents being titled suit No. 34
of 1996 filed in the Court of Subordinate Judge, Bhagalpur is the question raised
in the Special Leave Petition. The suit is filed with the following prayer:- "
That the plaintiffs pray for the following reliefs:
A. The court be pleased to
hold and declare that the plaintiffs are the bonafide owners of the suit property
having acquired Kayami right (right of occupancy) at the time of last cadastral
survey and the entry of the suit property in the Khaitiayan of the defendant is
wrong and illegal and result of collusion of survey amlas and did/does not
confer any right to the defendant at any material time and the same is not
binding upon the plaintiffs.
B. The court be further
pleased to restrain the defendant from dispossessing the plaintiffs from the suit
property or from disposing of the suit property by passing an order of the
temporary injunction till the disposal of the suit.
C. The cost of the suit
be awarded to the plaintiff. "
the sake of convenience the parties are referred to as they are arrayed in the
plaintiffs claim that the Suit Scheduled Property admeasuring 7.29 acres is owned
by them and their ancestors and they have been in an uninterrupted possession of
the same for the period of about 100 years. The instant suit is filed with the
allegation that the defendants (petitioners herein), threatened to dispossess them
(plaintiffs) on the ground that the Suit Scheduled Property has been recorded in
the name of the defendant in the Consolidation Survey.
The Relevant portion
of the plaint reads as follows:- "That on 26.11.1995 for the first time the
defendant came to the plaintiffs and disclosed that an area on 7.29 acres of land
of the family of the plaintiffs have been recorded in the name of the defendant
during consolidation survey for which P.S. Plot No. 793 area 5.97 and P.S. Plot
No.755 area 1.32 have been made and land P.S. Khata No.4 the above two plots have
been included along with other land of defendant so on such knowledge, the plaintiff
sent a messenger to Bhagalpur for taking certified copy of Khatiyan of consolidation
survey and when the copy of said Khatiyan was delivered to the messenger of the
plaintiff on 2.12.1995 the above information of defendant was found to be correct
on perusal of certified copy of Khatian aforesaid."
instant Special Leave Petition is filed urging various questions of law
regarding the maintainability of the suit in the light of Sections 37 and 15 of
the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.
(Here in after referred to as "the Act").
the counter affidavit filed on behalf of the first respondent in the instant
Special Leave Petition, it appears that after the trial of the suit commenced and
two witnesses were examined on behalf of the plaintiffs, a petition was filed praying
to determine the preliminary issue. The relevant portion of the counter
affidavit reads as follows:-
"That during the
pendency of the suit aforesaid when the case was opened for trial and evidences
on behalf of the respondents were started and two witnesses were examined,
thereafter for the purpose of delaying the disposal of the suit, the petitioner
filed a petition dated 11.9.2002 praying therein to determine preliminary issue
on two questions namely, (1) the certificate of final Khatiyan of consolidation
survey is a conclusive proof and for want of notice under section 80 C.P.C., the
present suit cannot proceed which was replied by these respondents on
learned sub-judge, Bhagalpur by his order dated 26.09.2002 rejected the said petition.
Aggrieved by the same, the defendant carried the matter by way of a revision to
the High Court of Patna.
High Court dismissed the Revision by its order dated 14.1.2003 and hence the
instant Special Leave Petition.
the defendants did not chose to place on record either the written statement
filed by them in suit No. 34 of 1996 nor a copy of the application dated 11.9.2002
referred (supra). In order to enable this Court to understand the exact scope of
the defence and also the preliminary objections raised in the above-mentioned
petition. Neither the order of the Trial Court dated 26.9.2002 nor the order of
the High Court dated 14.1.2003 throw any light on the question.
in the instant Special Leave Petition, the submission made is that the suit is barred
in view of Sections 15 and 37 of the Act.
a perusal of the order of the trial court dated 26.09.2002, it appears that the
objection raised is that in view of the declaration under Section 15 of the
Act, the certificate issued under Section 15 is conclusive proof of the title of
the holder of the certificate, and, therefore, the suit is not maintainable. It
does not appear from the above-mentioned order that any specific objection on
the basis of the bar contained under Section 37 of the act was pleaded.
our opinion, the statutory declaration that a particular document is conclusive
proof of a particular fact or legal right by itself, does not oust the
jurisdiction of the Civil Courts. The effect of such a statutory declaration is
that in any enquiry regarding the existence of such fact or a legal right, Courts/Tribunals
are forbidden from entertaining any further evidence on such an issue the
moment the document which is declared to be conclusive proof of such fact/legal
rights is produced before the Court or Tribunal conducting 5such an enquiry. The
ouster of the jurisdiction is altogether a different matter.
learned senior counsel Shri S.B. Sanyal, argued that the suit which is a subject
matter of discussion is barred in view of the express language of Section 37 of
the Act. He also relied upon the following decisions, Ram Krit Singh Vs. State
of Bihar, AIR 1979 Patna 250 and Sheoratan Chamar and Ors. Vs. Ram Murat Singh alias
Kishori Raman Singh & Ors., 1985 PLJR 86 in an attempt to support is
submission that the suit is barred under Section 37 of the Act.
the other hand learned counsel for the respondents Shri A.N. Choudhry relied upon
a full Bench decision of the Patna High Court reported in 1990 (1) BLJR 51, Kalika
Kaur alias Kalika Singh Vs. State of Bihar and Ors., in support of his
submission that the suit is maintainable.
an appreciation of the issue on hand, an examination of the scheme of the Act
and relevant provisions is necessary.
Act is virtually a sequel to the Abolition of Zamindaries in the State of
Bihar. The purpose behind the Act is the consolidation of the small holdings and
prevention of the fragmentation of the small pieces of land held by the
raiyats. The expression `fragmentation' and `holding' and `raiyat' are defined under
the Act. Section 3 of the Act 6authorises the State Government to declare an intention
to make a scheme for consolidation of holdings in any area by notification in
the official gazette.
4 declares that on the publication of such notification certain consequences
enumerated therein would ensue. One of them being the "abatement" of all
suits or legal proceedings for the correction of records, declaration of rights
or interest in any land etc. covered by the notification. Such abatement is
subject, of course, to certain conditions. The details of such are not necessary
for the present purpose.
8 of the Act stipulates that after publication of the notification under Section
3, an up to date record of rights shall be prepared in accordance with the various
enactments specified therein. Section 8, in so far as it is relevant for the present
purpose reads:- 8. Preparation of up-to-date record of-rights before consolidation.-
(1) Save as provided
in sub- section (2) as soon as may be after the publication of a notification under
section 3, an up-to-date record of-rights, in respect of all lands comprised in
the notified area, together with a map shall be prepared in accordance with the
provisions of Chapter X of the Bihar Tenancy Act, 1885 (Act VIII of 1885), or
as the case may be, Chapter XII of the Chota Nagpur Tenancy Act, 1908 (Ben. Act
VI of 1908) or the Santhal Parganas Settlement Regulation, 1872 (Regulation III
of 1872: [or the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar
Act 28 of 1975]:
the preparation of such record-of-rights, the various steps contemplated in the
subsequent provisions of the Act are required to be taken.
a. The details of which are
not necessary for the purpose of this case except to note that Section 11
contemplates the preparation of draft scheme. To indicate the nature of the
draft scheme, we may extract Section 11 in so far as it is relevant. "11. Preparation
of draft scheme-- Xxx xxx xxx
b. The Village Advisory Committee
and the Assistant Consolidation Officer shall in preparation of a scheme of consolidation,
keep the following factors in view, namely-- Xxx xxx xxx xxx
c. every raiyat is, as
far as possible allotted a compact area of the plots where he holds the largest
part of his holdings; Provided that no raiyat may be allotted more chaks than
three except with the approval in writing of the Deputy Director of
d. every raiyat is, as far
as possible allotted the plot on which exists his private source of irrigation or
any other improvement, together with an area in the vicinity equal to the
valuation of the plots originally held by him;
e. every raiyat is, as far
as possible, allotted chaks in conformity with the process of rectangulation in
rectangular units; and
f. subject to rules made
in this behalf by the State Government, the lands held by an under raiyat is consolidated:
Provided that the land allotted under the scheme to an under raiyat in lieu of
any land held by him before the confirmation of the scheme shall form part of the
new holding allotted under the scheme to the raiyat under whom the under raiyat
originally held the land. Section 13 prescribes that the draft scheme is required
to be confirmed after considering the objections, if any, raised against such
draft scheme. The section further mandates that the relevant extracts of the Consolidation
scheme shall be granted to the concerned raiyat and declares that such extracts
shall be the final allotment orders.
15 contemplates the grant of a certificate:- 15(1) The Consolidation Officer shall
grant to every raiyat to whom a holding has been allotted in pursuance of a
scheme of consolidation a certificate in the prescribed form containing the prescribed
particulars. Such certificate shall be conclusive proof of the title of such
raiyat to such holding and he shall be liable for payment of such rent as may
be specified in the certificate."
Section 35 provides
for a revision etc. to the Director of Consolidation against any case decided
or proceedings taken under the provisions of the Act by any authority
subordinate to him. The only other provision which is relevant for the present
purpose is Section 37 which reads as follows:- "37. Bar of jurisdiction of
Civil Courts.--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
substance, under the said Section, 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 9with respect to any matter
for which a proceeding ought to have been taken is ousted.
the background of the scheme of the Act, the question before us is the maintainability
of Civil Suit filed by the respondent out of which the instant special leave
counsel for the defendant/petitioner relied upon the judgment in Ram Krit Singh
(supra) and Sheoratan Chamar (supra) in support of the submission that the suit
is not maintainable. In our opinion, neither of the judgments support the submission
made by the learned counsel for the petitioner.
In Ram Krit Singh (supra),
a Full Bench of the Patna High Court was dealing with the effect of Section 4
of the Act on pending Civil Suits. We have already noticed that Section 4
declares that all pending suits with respect to the lands in the notified area shall
abate. It was a case where the petitioners before the Patna High Court filed a
suit in the year 1966 questioning certain alienation made by the first
defendant in the suit in favour of the second defendant. While the suit was
pending trial, a notification under Section 3 of the Act came to be issued.
defendant raised preliminary objections that in view of the declaration under
Section 4 of the Act, the suit had abated. The trial Court accepted the preliminary
objection. Challenging the said decision of the trial Court and also the
constitutionality of Section 4, 12A and 37 of the Act, the 10plaintiffs thereon
approached the High Court on the ground that those provisions violated Article
14 of the Constitution of India.
Full Bench did not examine the scope of the content of Section 37. It was not necessary
for the Full Bench to examine the question because the limited issue which fell
for the consideration of the Full Bench on the facts of the case was the effect
and constitutionality of Section 4 of the Act.
to the next decision, Sheoratan Chamar and ors. Vs. Ram Murat Singh alias Kishori
Raman Singh & Ors., 1985 PLJR 86 (Full Bench). In this case also the High
Court was concerned with the effect of Section 4 on the pending suit on the date,
the Notification under Section 3 of the Act was issued.
scope of section 37 did not fall for consideration of the Full Bench.
the other hand, the learned counsel for the respondent relied upon a judgment, Kalika
Kuar alias Kalika Singh Vs. State of Bihar and Ors. reported in 1990 (1) BLJR
51 (Full Bench) in support of his submission that the respondents suit is
maintainable. We need not examine the content of the judgment of the High Court
for the simple reason that the said judgment stood set aside by this Court in a
Judgment reported in Kalika Kuar alias Kalika Singh Vs. State of Bihar and
Ors., 2003 (5) SCC 448.
the averment whether the instant suit is barred either under Section 15 or 37
of the Act is required to be examined. We have already held that Section 15
only embodies a rule of evidence and does not create any bar of the
jurisdiction of the Civil Courts. No doubt Section 37 creates a bar to the
jurisdiction of the Civil Courts to entertain any suit or application;
a. to vary any decision or
set aside any order given or passed under the Act;
b. with respect to any
mater for which a proceeding could or ought to have been taken under the Act.
the material on record, it is not clear as to what exactly is the nature of the
objection raised by the defendants to the maintainability of the suit. Whether
the objection of the defendants to the maintainability of the suit is either under
(a) or (b) mentioned above and what are the relevant facts are pleaded in support
of the objection. It is also not possible to ascertain from the record whether the
objection of the defendants is with rspect to both the prayers of the suit
(extracted earlier) or otherwise.
On the other hand, it
appears that the trial of the suit is in progress. Therefore, we are of the
opinion the extraordinary jurisdiction of this Court under Article 136 ought
not to be exercised to interdict the suit. It is always open to the 12defendants
to seek the framing of an appropriate issue regarding the maintainability of
the suit upon proper pleadings and invite a decision thereon.
Special Leave Petition is, therefore, dismissed.
( P. SATHASIVAM)
( J. CHELAMESWAR )