Achyutanand Choudhary (D) Thr. Lrs vs Luxman Mahto & Ors

(D) THROUGH LRS. ......PETITIONERS

Versus

LUXMAN MAHTO & ORS. ......RESPONDENTS

O R D E R

CHELAMESWAR, J.

1. The 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.

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(C) The cost of the suit be awarded to the plaintiff. "

2. For the sake of convenience the parties are referred to as they

are arrayed in the suit.

3. 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."

4. The instant Special Leave Petition is filed urging various questions

of law regarding the maintainability of the suit in the light of Sections

3 37 and 15 of the Bihar Consolidation of Holdings and Prevention of

Fragmentation Act, 1956. (hereinafter referred to as "the Act").

5. From 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 12.9.2002."

6. The 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.

7. The High Court dismissed the Revision by its order dated

14.1.2003 and hence the instant Special Leave Petition.

8. Unfortunately 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

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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.

9. However, 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.

10. From 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.

11. In 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

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such an enquiry. The ouster of the jurisdiction is altogether a

different matter.

12. The 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.

13. On 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.

14. For an appreciation of the issue on hand, an examination of the

scheme of the Act and relevant provisions is necessary.

15. The 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

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authorises the State Government to declare an intention to make a

scheme for consolidation of holdings in any area by notification in the

official gazette.

16. Section 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.

17. Section 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]:

7 18. On the preparation of such record-of-rights, the various steps

contemplated in the subsequent provisions of the Act are required to

be taken. 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

(2) 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

(d) 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 Consolidation."

(e) 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;

(f) every raiyat is, as far as possible, allotted chaks in

conformity with the process of rectangulation in rectangular

units; and

(g) 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.

8 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.

19. Section 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 this Act."

20. In 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

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with respect to any matter for which a proceeding ought to have been

taken is ousted.

21. In 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 petition arises.

22. Learned 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. Therefore, the 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

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plaintiffs thereon approached the High Court on the ground that those

provisions violated Article 14 of the Constitution of India.

23. The 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.

24. Coming 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.

25. The scope of section 37 did not fall for consideration of the Full

Bench.

26. On 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

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a Judgment reported in Kalika Kuar alias Kalika Singh Vs. State of

Bihar and Ors., 2003 (5) SCC 448.

27. Therefore, 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.

28. From 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

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defendants to seek the framing of an appropriate issue regarding the

maintainability of the suit upon proper pleadings and invite a decision

thereon.

29. The Special Leave Petition is, therefore, dismissed.

........................................J.

( P. SATHASIVAM)

........................................J.

( J. CHELAMESWAR )

New Delhi;

January 06, 2012.