Kirpa Ram (D) Tr.Lrs. . vs Surender Deo Gaur

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8971 OF 2010

KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES & ORS. .....APPELLANT(S)

VERSUS

SURENDRA DEO GAUR & ORS. .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1. The present appeal has been preferred by Defendant No. 4, against

the concurrent findings of three Courts arising out of a suit for

permanent injunction.

2. The plaintiffs, now represented as respondent Nos. 1 and 2, filed a

suit for permanent injunction on 31.7.1971 claiming that Khasra

No. 238 measuring 4 Bighas 3 Biswas, situated in the revenue

estate of Village Basai Darapur, Delhi is owned and possessed by

them. Earlier, the plaintiffs had filed a suit for declaration

challenging the vesting of the said land in Gaon Sabha in a suit

filed on 20.7.1959. The said suit was decreed on 7.10.1960 Signature Not Verified

holding that the plaintiffs are owners and Bhumidars of land Digitally signed by ASHWANI KUMAR Date: 2020.11.16 17:58:33 IST Reason:

comprising in Khasra No. 238. The Union of India had filed an

application under Section 161-B of the Delhi Land Reforms Act,

1 19541 for setting aside the said decree dated 7.10.1960 but such

application was dismissed by Sub-Judge, First Class, Delhi on

24.5.1968.

3. The plaintiffs alleged that defendant No. 1 claimed that Khasra No.

238 is part of the land allotted to it. The suit for permanent

injunction was thus filed by the plaintiffs apprehending threat to

their possession of land comprising Khasra No. 238, Village Basai

Darapur, Delhi against defendant No. 1 i.e. The Refugees’ Co-

operative Housing Society Ltd., its President – defendant No. 2,

Secretary – defendant No. 3 and defendant No. 4, Kirpa Ram,

predecessor in interest of the present appellants. Two separate

sets of written statements were filed before the Court, one by

defendant Nos. 1 to 3 and another by defendant No. 4. The

defendant Nos. 1 to 3 raised preliminary objection that the

jurisdiction of the Civil Court relating to Bhumidari land is barred

under Section 85 of the Reforms Act. It was stated that defendant

No. 4 threatened to encroach upon the land in the Society

comprising of Khasra No. 1273 which led to proceedings under

Section 145 of the Code of Criminal Procedure, 1973. Such

proceedings have nothing to do with land comprising in Khasra No.

238.

4. The defendant No. 4 in written statement asserted that the

plaintiffs were not in possession of the land in dispute and suit for

injunction was therefore not maintainable. It was further stated 1 For short, the ‘Reforms Act’

2 that defendant Nos. 1 to 3 were not concerned with the land in

question and that land did not belong either to plaintiffs or

defendant Nos. 1 to 3 and they were not in possession thereof.

Such land was in fact only in the possession of the defendant No.

4. It was also stated that the land in dispute does not bear Khasra

No. 238 and that it is not situated in the revenue estate of Village

Basai Darapur. Instead, the land in dispute bears Khasra No. 79

and is situated in revenue estate of Village Shakarpur.

5. In view of the pleadings of the parties, the following issues were

framed by the trial court:

“1. Whether any notice u/s 70 of the Bombay Societies Act as extended to the Delhi was not necessary to be served on the defendants no. 1 to 3 before instituting the present suit? If so, then to what effect? (Objected to).

2. Whether this Court has no jurisdiction to try this suit as mentioned in the written statement?

3. Whether the plaintiffs are the owners in possession of the land in dispute bearing khasra no. 238 as alleged in the plaint?

4. Whether the land in dispute formed the part of khasra no. 238 of village Basai Darapur, Delhi as alleged in the plaint?

5. Whether the land in dispute formed the part of khasra no. 79 situated in village Shakar Pur as mentioned in the written statement? (objected to)

6. Whether this suit is properly valued for the purposes of court fee and jurisdiction? If not, then to what effect?

7. Whether the suit is bad on account of mis-joinder of defendants as mentioned in the written statement? If so, then to what effect?

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8. Whether the plaintiffs are entitled for a decree for permanent injunction claimed in the plaint?

9. Relief.”

6. With respect of Issue No. 2, the learned trial court held that the suit

was a simpliciter suit for injunction and the Court has the

jurisdiction to find out in which khasra number the land in dispute

falls. It was thus held that suit land falls in Khasra No. 238 in

Village Basai Darapur and is in the possession of the plaintiffs,

therefore, the suit was decreed.

7. Issue Nos. 4 and 5 were taken up for decision together. The

plaintiffs had produced site plan (Ex.PW-3/1) pertaining to the year

1953-54 when consolidation took place in Village Shakarpur. The

plaintiffs also produced site plan (Ex.PW-3/3) of Village Basai

Darapur. The learned trial court held that the consolidation had

taken place in Village Shakarpur and not in Village Basai Darapur.

Therefore, the area of Khasra No. 238 could not be reduced from 4

Bighas 3 Biswas to 2 Bighas 6 Biswas. It was held by the trial court

as under:

“18. …One thing remains certain that the present defendants have no concern in Khasra no. 238 village Basai Darapur. Either it belongs to the plaintiffs or it vests in the Gaon Sabha. The present defendants, who are third parties, have no right to challenge the said judgment and decree passed in favour of the present plaintiffs. Therefore, I hold that plaintiffs are the owners of khasra no. 238, village Basai Darapur.”

8. The first appeal was filed by defendant No. 4 only. The First

4 Appellate Court after reappreciating the evidence recorded the

following findings:

“14. From the above discussion it is clear that appellant/defendant No.4 has not been successful before the trial court to show that he was in possession of Khasra No.79 of village Shakarpur so he cannot say that he is entitled to possession of the same under the claim that this land forms part of Khasra No. 79 of village Shakarpur and not to Khasra No. 238 of village Basaidarapur. The claim of appellant/defendant No.4 stands falsifies upon his own documents produced by him before.”

9. In the memorandum of second appeal, the defendant No. 4 alleged

that the following substantial questions of law arise for

consideration:

“1. Whether the appellate court could in law dispose of the appeal without deciding the Preliminary issue of jurisdiction of the civil court.

2. Whether the appellate court could in law dispose of the appeal without passing any order on the application dated 18th October, 1984 of the appellant under order 41 rule 27 of the Civil Procedure Code for permission to lead additional evidence?

3. Whether the appellate court in law was jurisdiction in not considering the provision of section 28 of the Delhi Land Revenue Act, 1974 which bars the jurisdiction of the Civil Court to entertain boundary disputes?”

10. The first substantial question of law was based on an interim order

passed by the First Appellate Court on 9.5.1996 wherein the parties

were directed to first address the arguments on the issue of

jurisdiction. It has also come on record that the High Court had

directed reconstruction of the record of the First Appellate Court on

31.7.2007, as the same was destroyed in an incident of fire during

5 the year 1996.

11. The second substantial question of law raised was in respect of an

application for additional evidence filed under Order XLI Rule 27 of

the Civil Procedure Code2. The defendant No. 4 sought to produce

the revenue record, Khasra Girdawari for the years 1953-54, 1954-

55, 1955-56, 1956-57, 1966-67 and 1983-84, Jamabandi for the

year 1944-45 and mutation No. 2151, all of which pertained to

Village Basai Darapur vide the said application.

12. Mr. Mehta, learned senior counsel for the appellants vehemently

argued that the jurisdiction of Civil Court is barred as it is a

boundary dispute between the Village Basai Darapur and Village

Shakarpur and such dispute has to be decided in terms of Section

28 of the Delhi Land Revenue Act, 1954 by the Commissioner.

13. The High Court vide judgment dated 25.8.2008 dismissed the

second appeal filed by the appellants herein. Aggrieved by the

findings of the High Court, defendant No. 4 is in appeal before this

Court.

14. The primary argument raised by learned counsel for the appellants

is that the High Court has dismissed the appeal without framing

any substantial question of law which is mandatory in terms of

Section 100 of the Code. It was submitted that since the High

Court has dismissed the appeal without framing substantial

question of law, the matter should be remitted back to the High

2 For short, the ‘Code’

6 Court for determination of such substantial question of law framed

by the appellants, as reproduced above. In support of the

arguments, the appellants relied upon various judgments3.

15. It has been argued that the First Appellate Court had ordered that

the question of jurisdiction of Civil Court would be decided first,

however the appeal was decided without dealing with the said

issue. It is, thus, said to have caused serious prejudice to the

rights of the appellants. Similarly, the application under Order XLI

Rule 27 of the Code was not decided which was again prejudicial to

their rights.

16. We find that such substantial questions of law, in fact, do not arise

for consideration. The issue of jurisdiction was not an issue of fact

but of law. Therefore, it could very well be decided by the First

Appellate Court while taking up the entire appeal for hearing. The

trial court had also not treated issue No. 2 relating to the

jurisdiction of the Civil Court as a preliminary issue. Therefore, it

cannot be said that any prejudice has been caused to the

appellants by not deciding the issue of jurisdiction of the Civil Court

in the first instance by the First Appellate Court. It may also be

noticed that the plea of bar of jurisdiction was raised by defendant

Nos. 1 to 3 and not by the appellants.

3 Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita & Ors., (2004) 1 SCC 271; Hubli Dharwar Municipal Corporation & Anr. v. H.S. Mohd. Khan (dead) by LRs. & Ors. , (2002) 2 SCC 109; Madhavan Nair v. Ramankutty & Anr., (2000) 2 SCC 356; N. Venkatareddy & Ors. v. Gopal & Ors., (2000) 10 SCC 309; Chandragouda & Anr. v. Shekharagouda S. Pittanagoudar (dead) by LRs. & Ors. , (2000) 10 SCC 617 and Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors., (1997) 5 SCC 438 7

17. Furthermore, the application under Order XLI Rule 27 of the Code

was in respect of revenue documents in respect of Village Basai

Darapur. Admittedly, the appellants have no claim on any part of

the land of Village Basai Darapur. The appellants are asserting their

possession relating to Khasra No. 79 of Village Shakarpur. The

appellants have sought such revenue record in the additional

evidence as the same was not in their knowledge and that no issue

was also framed as to the correctness of the area of Khasra No. 238

of Village Basai Darapur. The plaintiffs have asserted their

possession and title over Khasra No. 238 of Village Basai Darapur

whereas defendant No. 4 averred that the land in dispute bears

Khasra No. 79 situated in Village Shakarpur, Delhi. It is to be noted

that Issue Nos. 3, 4 and 5 were related to ownership and

possession of Khasra No. 238 and whether the land in dispute

formed a part of Khasra No. 79 of Village Shakarpur. Therefore, the

entire argument that no issue was framed in respect of correctness

of area of Khasra No. 238 is untenable. The parties have

understood the case about the area of Khasra No. 238 falling in

Basai Darapur or in Khasra No. 79 of Village Shakarpur. Once the

parties have understood the said controversy and had adduced

evidence before the trial court, the appellant cannot be permitted

to produce additional evidence in the first appeal. Thus, the

additional documents cannot be permitted to be produced as they

are not relevant to the plea raised by the appellant.

18. The Land Revenue Act does not expressly bar the jurisdiction of the

8 Civil Court in respect of boundary disputes. The boundary disputes

are between two revenue estates and does not include the

demarcation of the land of the parties. Section 83 of the Land

Revenue Act bars the jurisdiction of the Civil Court in respect of :

(a) the arrangement of area of the patwaris; (b) claims by any

person to any of the offices mentioned in section 13 or 14 or to any

emolument or fees appertaining to such office, or in respect of any

injury caused by his exclusion therefrom, or claims by any person

to nominate persons to such offices; (c) the formation of the record

of rights or the preparation, signing, or attestation of any of the

documents contained therein, or the preparation of the annual

register. No such dispute arises for consideration in the present

matter.

19. Still further, the suit is simpliciter for injunction based upon

possession of the property. The said suit could be decided only by

the Civil Court as there is no mechanism prescribed under the Land

Revenue Act for grant of injunction in respect of disputes relating to

possession. The Civil Court has plenary jurisdiction to entertain all

disputes except in cases where the jurisdiction of the Civil Court is

either expressly or impliedly barred in terms of Section 9 of the

Code.

20. Since there is no implied or express bar of jurisdiction of the Civil

Court in terms of Section 9 of the Code, the Civil Court has plenary

jurisdiction to decide all disputes between the parties. The issue of

jurisdiction of the civil court has been considered by this Court in

9 South Delhi Municipal Corporation & Anr. v. Today Homes

and Infrastructure Pvt. Ltd. etc.4 wherein this Court held as

under:

“11. Any person having a grievance that he had been wronged or his right has been affected can approach a civil court on the principle of ‘ ubi jus ibi remedium’ - where there is a right, there is a remedy. As no internal remedy had been provided in different statutes creating rights or liabilities, the ordinary civil courts had to examine the grievances in the light of those statutes. With the advent of a ‘Welfare State’, it was realised that enactments creating liabilities in respect of payment of taxes, obligations after vesting of estates and conferring rights on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved (Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161).

12. Wherever a right or liability, not pre-existing in common law is created by a statute and that statute itself provides a machinery for enforcement of such right or liability, both the right/liability and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the jurisdiction of the civil court is impliedly barred. ( Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India, (1988) 1 SCC

681).

13. We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute.”

21. In view of the above, we find that the High Court did not commit

any illegality in not framing any substantial question of law while

dismissing the appeal filed by the appellants.

22. The argument of Mr. Mehta is that substantial question of law is

4 2019 SCC OnLine SC 1052

10 required to be framed by the High Court while deciding the second

appeal. We don’t find any merit in the argument. Section 100 of

the Code reads as under:

“100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”

23. Sub-section (1) of Section 100 of the Code contemplates that an

appeal shall lie to the High Court if it is satisfied that the case

involves a substantial question of law. The substantial question of

law is required to be precisely stated in the memorandum of

appeal. If the High Court is satisfied that such substantial question

of law is involved, it is required to formulate that question. The

11 appeal has to be heard on the question so formulated. However,

the Court has the power to hear appeal on any other substantial

question of law on satisfaction of the conditions laid down in the

proviso of Section 100 of the Code. Therefore, if the substantial

question of law framed by the appellants are found to be arising in

the case, only then the High Court is required to formulate the

same for consideration. If no such question arises, it is not

necessary for the High Court to frame any substantial question of

law. The formulation of substantial question of law or re-

formulation of the same in terms of the proviso arises only if there

are some questions of law and not in the absence of any

substantial question of law. The High Court is not obliged to frame

substantial question of law, in case, it finds no error in the findings

recorded by the First Appellate Court.

24. Still further, we find that none of the judgments referred to by the

learned counsel for the appellants mandate the High Court to

frame substantial questions of law while upholding the findings

recorded by the First Appellate Court. All the judgments referred to

by the learned counsel for the appellants except in Md.

Mohammad Ali are the judgments wherein the High Court has set

aside the findings of the First Appellate Court without framing

substantial questions of law. In Md. Mohammad Ali, this Court

found that the High Court erred in dismissing the appeal without

formulation of substantial question of law which arises for

consideration. This Court held as under:

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“33. The proposition of law relating to ouster of a co-

sharer vis-à-vis adverse possession had been overlooked by the High Court. There are also certain other aspects of the matter which could not be overlooked and probably would require closer examination by the High Court.

34. The High Court while determining the question should have formulated substantial questions of law in terms of Section 100 of the Code of Civil Procedure, 1908. In absence of formulation of such substantial questions of law, probably the High Court committed the errors as pointed out hereinbefore.”

25. In a judgment reported as Ashok Rangnath Magar v. Shrikant

Govindrao Sangvikar5, this Court held that the second appeal

can be dismissed without even formulating the substantial question

of law. The Court held as under:

“18. In the light of the provision contained in Section 100 CPC and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 CPC.”

5 (2015) 16 SCC 763

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26. In view of the above findings, we do not find any error in the

judgment and order of the High Court dismissing the Second

Appeal. The present appeal is thus dismissed. Pending

applications, if any, shall stand disposed of.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

.............................................J. (AJAY RASTOGI)

NEW DELHI;

NOVEMBER 16, 2020.

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