Khora (Dead) Through Legal Heirs vs Mohar Sai

CIVIL APPEAL NO…………………OF 2023 (Arising out of Special Leave Petition (Civil) No.6061 of 2019)

Khora (Dead) Through Legal Heirs & Ors. … Appellant(s) Versus Mohar Sai & Ors. …Respondent(s)

JUDGMENT

V. Ramasubramanian, J.

1. Challenging the judgment and decree passed by the High

Court of Chhattisgarh in a second appeal, confirming the

concurrent judgment and decrees of the Trial Court and the First

Appellate Court, the defendants have come up with the above

appeal.

2. We have heard the learned counsel for the parties.

3. Respondent No.1 herein filed a suit in Civil Suit No.11-A/95,

on the file of the Third Civil Judge Class-2, Ambikapur, Sarguja, Signature Not Verified Digitally signed by POOJA SHARMA

M.P., for declaration of title and permanent injunction in respect Date: 2023.02.20 17:34:23 IST Reason:

of a land purchased by him under a deed of sale dated 02.04.1981.

1 Respondent No.1 purchased the said land from one Phool Chand

Cherwa. The seller Phool Chand belonged to the Scheduled Tribe.

Though respondent No.1 was also a Scheduled Tribe, the

appellants contended that the purchase was on behalf of his

master who was not a Tribal and that the purchase was actually a

benami transaction for the benefit of a non-tribal. The Trial Court

rejected the stand taken by the appellants and decreed the suit

and the decree came to be confirmed both by the First Appellate

Court and the High Court. Therefore, defendant Nos. 1 and 2 have

come up with the above appeal.

4. The main ground of attack to the impugned judgment is

(i) that the question of validity of the sale has already been decided

in the proceedings before the Revenue Authorities and hence

operated as res judicata; and (ii) that there was a clear bar of

jurisdiction of the civil court, under Section 257 of the

Chhattisgarh Land Revenue Code, 1959 (for short “the Code”).

5. The first ground of attack is premised on an order passed by

the Departmental Officer, Ambikapur on 03.02.1983, in terms of

Section 170 of the Code declaring the sale deed dated 02.04.1981

executed by Phool Chand in favour of respondent No.1 (plaintiff) to

be fraudulent and benami and in violation of Section 165 of the

2 said Code. It appears that the order of the Departmental Officer

dated 03.02.1983 was confirmed by the Appellate Authority by an

order dated 28.03.1984. The same was confirmed by the Board of

Revenue/Tribunal on 14.03.1990, in a revision petition filed by

respondent No.1. The challenge made to all these three orders, by

respondent No.1 by way of a writ petition, also failed with the

dismissal of the writ petition for want of prosecution.

6. In the light of the aforesaid facts it is contended that the

proceedings under the Land Revenue Code have attained finality

in the year 1991 and that the proceedings before the Civil Court

initiated in 1995 were barred by res judicata.

7. But we do not think so. Admittedly respondent No.1 who filed

the suit on the strength of the sale deed executed in his favour was

also a tribal person. In such circumstances, the question as to

whether respondent No.1 was only the ostensible owner and not

the beneficial owner could not have been gone into by the Revenue

Authorities. It is true that under Section 165(6c), the Collector is

entitled to go into the question whether the transaction is spurious

or benami. But the power conferred by Section 165(6c) is to be

exercised while passing an order under sub-section (6a), granting

or refusing to grant permission or under sub-section (6b), ratifying

3 or refusing to ratify the transaction. Such a power is not expressly

extended to avoidance of transfers under Section 170.

8. Moreover, sub-sections (6a) to 6(f) appear to have been

inserted by a Notification dated 15.04.1981, which was

subsequent to date of execution of the sale deed in question. When

the transferee himself was a tribal person and he himself had come

to Court seeking a declaration that his purchase was genuine and

valid, the Court is certainly entitled to hold an enquiry. In fact,

the Trial Court framed an issue on the question of possession and

found that respondent No.1 had constructed a house on the

property and that his sons are living there. They were also

domesticating cattle in the said property. An attempt was made by

the appellants herein to show that the transaction was hit by

Benami Transaction (Prohibition) Act, 1988. That was also rejected

by the Trial Court. Since all these questions could not have been

gone into by the Revenue Authorities, the findings recorded by

them could not have operated as res-judicata.

9. As rightly pointed out by the High Court, the bar of

jurisdiction under Section 257 of the Code relates to any matter

which the Authorities are empowered to determine/decide or

dispose of. The question whether the purchase by a tribal was a

4 sham and nominal transaction for the benefit of a non-tribal, may

not fall exclusively within the jurisdiction of the Authorities.

Therefore, the High Court was right in rejecting the said

contention.

10. In fact, the case set up by the appellants was that Phool

Chand was an employee of defendant No.3 and was addicted to

liquor and that defendant No.3 got the sale executed without

paying proper consideration, when Phool Chand was in an

inebriated condition. But the Trial Court found on evidence that

Phool Chand was working as a Clerk in the Nagar Palika.

11. In view of the above, we find no grounds to interfere with the

concurrent judgment and decrees of all the three Courts below.

Hence the Civil Appeal is dismissed. There will be no order as to

costs. Pending application(s), if any, shall also stand disposed of.

………………...................J. (V. RAMASUBRAMANIAN)

……..............................J. (PANKAJ MITHAL) New Delhi;

February 20, 2023

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