HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No.766 of 1997
Savitribai
...Petitioners
Versus
1. Raghuraj Prasad
2. Basant Prasad
3. Raghunandan Prasad Sao
4. State of Madhya Pradesh
...Respondents
{Second appeal under Section 100 of the Code of Civil
Procedure, 1908}
! Mr. Shree Kumar Agrawal, Senior Advocate with Mr. Anand Kumar Gupta, Advocate for the appellant
^ Mr. Sanjay K. Agrawal with Mr. Sourabh Sharma, counsel for respondents No.1 & 2.
Mr. A.K. Yadav, counsel for respondent No.3
Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.4
Honble Mr. T.P. Sharma, J
Dated:28/07/2009
: Judgment
JUDGMENT
(Delivered on 28th July, 2009)
1. By this second appeal, the appellant has challenged the
judgment & decree dated 15-9-97 passed by the 1st Additional
District Judge, Bilaspur in Civil Appeal No.20-A/83 affirming
the judgment & decree of dismissal of suit passed by the
Additional Civil Judge Class-I, Bilaspur in Civil Suit No.56-
A/83 vide judgment & decree dated 9-8-83.
2. Judgment & decree are challenged on the ground that
learned Court below has illegally dismissed the suit and
appeal even in absence of any adverse pleading.
3. I have heard learned counsel for the parties, perused
the impugned judgment & decree and record of the Courts
below.
4. The present appellant/plaintiff had filed civil suit
against the respondents/defendants for declaration and
permanent injunction from interfering in possession by the
respondents in Khasra No.318/14 area 18.10 acres & Khasra
No.318/1 area 36.90 acres and in alternate declaration of
damages. The present respondents have not filed any written
statement. After providing opportunity of hearing to the
parties, Court below has dismissed the suit and the same has
been affirmed in appeal vide the impugned judgment & decree.
5. Following substantial question of law has been
formulated For deciding the present appeal: –
“Whether the plaintiff’s claim for
declaration of title and injunction in
relation to the land in area 36.90 acres
ought to have been decreed against
respondents No.1 to 3 by both the Courts
below?”
6. Learned counsel for the appellant argued that the
defendants have not filed their written statement and in
absence of any pleading on behalf of the defendants the suit
ought to have been decreed in terms of sub-rule (2) of Rule 5
of Order 8 of the C.P.C. but the Court below has even after
recording evidence of plaintiff witness dismissed the suit.
7. On the other hand, learned counsel appearing on behalf
of respondents No.1 to 3 opposed the appeal and submitted
that even in absence of any pleading of the defendants the
Court is not under obligation to decree the suit under sub-
rule (2) of Rule 5 of Order 8 of the C.P.C. Both the Courts
below have rightly dismissed the claim of the plaintiff in
absence of such proof.
8. In order to appreciate the claims of the parties, I have
examined pleadings & evidence adduced on behalf of the
parties.
9. In the present suit, the respondents/defendants had not
filed any written statement/pleading. The
plaintiff/appellant has not examined herself as witness, but
she has examined her husband Shatrughan Prasad Gupta as PW-1
who has deposed that the present plaintiff has purchased part
of Khasra No.21/1 measuring area of 55 acres of land from her
mother. True copy of the said deed is Ex.P-2. One ceiling
case under the Chhattisgarh Ceiling on Agricultural Holdings
Act, 1960 (for short `the Act’) was initiated against father,
mother, uncle & aunt of respondents No.1 & 2 and in the said
ceiling proceeding 18.10 acres of land was vested in the
State. At the time of such purchase, the appellant was
minor, therefore, the land was cultivated by deceased
defendant Krishna Devi, mother of the appellant. The
appellant demanded possession of land from the respondents/
defendants and on refusal the appellant has filed civil suit.
In his cross-examination, husband of the appellant Shatrughan
Prasad Gupta (PW-1) has deposed that original sale deed was
with mother of the appellant/plaintiff, he has not summoned
mother of the appellant/plaintiff and other attesting
witnesses of the sale deed. He has also admitted that even
after having knowledge that 18.10 acres of land belonging to
the plaintiff was vested in the State they have not taken any
action.
10. Learned Additional Civil Judge Class-I has dismissed the
suit on the ground that the proceeding relating to the land
in dispute was initiated & decided against mother & father of
the appellant and mother & father of respondents No.1 & 2 by
the competent authority under the Act vide order dated 28-9-
68, and 18.10 acres of land was vested in the State, but
knowing well about the fact that 18.10 acres of land has been
vested in the State, the present appellant/plaintiff has not
filed any objection before the competent authority that she
has purchased the land from mother & father of respondents
No.1 & 2 and in the said ceiling proceeding the disputed land
was calculated and considered in the names of father & mother
of respondents No.1 & 2 and father & mother of the appellant.
Even after the order passed in ceiling proceeding in the year
1968, the present appellant has not filed any civil suit
against the respondents. The suit was dismissed also on the
ground of bar created under Section 46 of the Act against the
order of the competent authority.
11. Admittedly, in this case, the respondents have not filed
their pleadings and in case of absence of pleading it was
lawful for the Court to pronounce judgment on the basis of
facts contained in the plaint in accordance with sub-rule (2)
of Rule 5 of Order 8 of the C.P.C. which reads as follows: –
“5. Specific denial.-(1) Every allegation of
fact in the plaint, if not denied
specifically or by necessary implication, or
stated to be not admitted in the pleading of
the defendant, shall be taken to be admitted
except as against a person under disability:
Provided that the Court may in its
discretion require any fact so admitted to be
proved otherwise than by such admission.
(2) Where the defendant has not filed a
pleading, it shall be lawful for the Court to
pronounce judgment on the basis of the facts
contained in the plaint, except as against a
person under a disability, but the Court may,
in its discretion, require any such fact to
be proved.
(3) In exercising its discretion under
the proviso to sub-rule (1) or under sub-rule
(2), the Court shall have due regard to the
fact whether the defendant could have, or
has, engaged a pleader.
(4) Whenever a judgment is pronounced
under this rule, a decree shall be drawn up
in accordance with such judgment and such
decree shall bear the date on which the
judgment was pronounced.”
12. Section 46 of the Act creates bar of jurisdiction of
Civil Courts which reads as follows: –
“46. Bar of jurisdiction of Civil
Courts.-Save as expressly provided in this
Act, no Civil Court shall have any
jurisdiction-
(i) to settle, decide or deal with any question which is by
or under this Act required to be settled, decided or dealt
with by the competent authority; and
(ii) to grant stay in any case under this Act.”
13. According to the allegation of the plaint, entire land
was subject matter of the ceiling proceeding initiated and
decided against father & mother of respondents No.1 & 2 and
father & mother of the plaintiff who were possessors of the
suit land and out of total 65 acres of land 18.10 acres of
land was vested in the State. In the said ceiling
proceeding, the present petitioner was required to file her
objection and in case of rejection of her objection remedy to
file appeal or revision and finally civil suit under Section
11 (5) of the Act was available to the plaintiff, but the
plaintiff has neither filed any objection nor any claim
before the competent authority even during the pendency of
the said proceeding. The property was not recorded in the
name of the present appellant. Burden to prove the fact
before the competent authority appointed under the Act, that
the transaction was genuine, was on the plaintiff, but the
plaintiff has neither filed any objection nor claim before
the said authority knowing well about the pendency of
proceeding and order of the competent authority, even she has
not filed any civil suit against the said order but has filed
the present suit after lapse of 12 years in the year 1980.
Such civil suit is admittedly not maintainable and bar has
been created under Section 46 of the Act. Both the Courts
below have dismissed the suit and appeal on the aforesaid
grounds. The plaintiff has not claimed any declaration of
land in dispute, but has in alternative claimed that she be
declared for damages.
14. In absence of any pleading on behalf of opposite party,
the Court is competent to pass decree in accordance with the
pleading under Order 8 Rule 5 (2) of the C.P.C. but in
suitable cases the Court may in its discretion require any
such fact to be proved. In exercising such power, the Court
has not decided the suit in the light of pleading especially
relating to pendency, initiation and decision of proceeding
under the provisions of the Act. The Court below has rightly
not decided the suit on the basis of pleading and has
directed the parties to adduce evidence to prove the fact.
15. It is clear from the pleading and evidence of the
husband of the appellant namely, Shatrughan Prasad Gupta that
proceeding under the Act was initiated against father &
mother of respondents No.1 & 2 and father & mother of the
appellant. The land in dispute was taken into consideration
in the holding of father & mother of respondents No.1 & 2 and
father & mother of the appellant and 18.10 acres of land was
declared surplus and vested with the State knowing well the
fact that the present appellant has not filed any objection
or has not filed any civil suit. Even mother of the
appellant, the alleged seller of the suit land, was alive at
the time of evidence, but the present appellant has not
examined her in support of her claim or execution of such
sale deed. It reveals that the sale deed has not been used
as genuine even by the mother of the appellant and has not
been acted upon. In absence of such proof of transfer of
land by sale deed, both the Courts below have dismissed the
claim of the appellant. In absence of any proof of transfer
of land, the Court below has rightly dismissed the claim.
Even the present appellant has not claimed any declaration of
ownership over the land, but she has cleverly claimed
declaration of right to recover damages. The Courts below
have not committed any illegality in dismissing the suit and
claim.
16. In the light of the bar created under Section 46 of the
Act, the Court below has rightly dismissed the claim of the
plaintiff. Court below has not committed any illegality and
the substantial question of law is decided as negative. In
the light of finding on the aforesaid substantial question of
law formulated for the decision of this second appeal, the
appeal is liable to be dismissed and it is hereby dismissed.
17. The appellant shall bear her costs of the suit as well
as appeal and also the costs of the respondents. Advocate
fees as per schedule.
18. Decree be drawn up accordingly.
J U D G E