HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 331 of 1993
1 Smt Nanbutia
2 Laxmi
...Petitioners
Versus
1 Smt Manglinbai
2 Shyamlal
3 Jagdish
...Respondents
! Mr H S Patel
^ Mr R S Patel
Honble Mr T P Sharma
Dated: 14/09/2010
: JUDGEMENT
Second Appeal under Section 100 of C P C
1. By this second appeal, the appellant has challenged the
legality & propriety of the judgment and decree dated 26.4.1993
passed by the District Judge, Raigarh, in Civil Appeal No.22A/92,
dismissing the appeal filed against the judgment and decree dated
3.3.1992 and decreeing the suit passed by the Third Civil Judge
Class-II, Raigarh, in Civil Suit No.60A/87.
2. The present second appeal has been admitted for
consideration on the following substantial question of law:-
“Whether the suit is barred by Section 257 clause (l)
of the M.P. land Revenue Code, 1959 ?”
3. As per pleadings of the parties, on 18.2.72 original
plaintiff Hariram predecessor-in-title of the respondents
purchased agricultural land bearing khasra No.171 area 1.955
hectares and khasra No.31/2 area 0.50 hectare and came into
possession from Chitki predecessor-in-title of the appellants.
Chitki filed an application under Section 170-B of the C.G. Land
Revenue Code, 1959 (for short `the Code’) for declaration of the
alleged transactions as null and void. Same was allowed and
transactions were declared null and void vide order dated
10.1.1983 in Revenue Case No.35/A-23/81-82. Alleged purchaser
Hariram has challenged the order by filing civil suit and has
also claimed declaration of title. Original respondent Chitki
and after death of Chitki, the present appellants have contested
the case and by filing written statement, they have denied the
claim of the plaintiff and alleged that civil suit is barred
under the provisions of Section 257 (l) of the Code. After
providing opportunity of hearing to the parties, learned Third
Civil Judge Class-II, Raigarh decreed the suit against the
present appellants. Same was challenged before the lower
appellate Court and learned lower Appellate Court by affirming
the judgment and decree has dismissed the appeal.
4. I have heard learned counsel for the parties, perused the
judgment and decree impugned, judgment and decree of the trial
Court and records of the Courts below.
5. Learned counsel for the appellant vehemently argued that
admittedly Chitki was a member of aboriginal tribe and in case of
sale by aboriginal tribe of his land, purchaser was required to
notify his possession over the property, but the present
purchaser/plaintiff had not notified his possession. Thereafter
proceeding under Section 170-B of the Code was initiated and
finally transaction was declared null and void by the competent
authority. The order was challengeable before the revenue
authority in appeal or revision but original plaintiff Hariram
has filed civil suit against the decision under Section 170-B of
the Code. Learned counsel further argued that in the light of
bar created under Section 257 (l) of the Code, the suit was not
maintainable and the Court below has illegally decreed the suit
and thereby committed illegality.
6. On the other hand, learned counsel for the respondents
supported the judgment and decree impugned and argued that the
fact is not disputed that Chitki was a member of aboriginal
tribe. Original plaintiff Hariram has not notified his
possession over the property to the competent authority.
7. Proceeding was initiated under Section 170-B of the Code
which was allowed and the alleged transaction was declared void.
Learned counsel further argued that the plaintiff has challenged
the legality and propriety of the decision of the revenue
authority before the Civil Court. Section 170-B of the Code was
amended vide Act 15 of 1980 which came into force from
24.10.1980. Subsequently, clause (1) of sub-section (2) of
Section 170-B of the Code was amended vide Amendment Act No. 1 of
1988 which came into force from 5.1.1988. As per clause (l) of
Section 257 of the Code, civil suit relating to proceeding under
Section 170-A of the Code was barred and the aforesaid provisions
was amended by amending Act No.18 of 1984. The provision of
clause (l-1) was inserted by Act No.38 of 1995 which came into
force from 15.12.1995. On the date of alleged transaction of sale
viz., on 18.2.1972 clause (l-1) was not in force, therefore,
transaction relating to that day was not barred under the
provisions of Section 257 (l-1) of the Code.
8. In the present case, only one substantial question of law
has been formulated for consideration whether the suit is barred
by Section 257 clause (l) of the M.P. Land Revenue Code 1959.
The provisions of Section 170-B of the Code have been inserted
vide Act of 15 of 1980 w.e.f. 10.10.1980. The provision was
further amended the word within one year and was subsequently
amended and substituted by the words within two years vide Act
No.38 of 1995 which came into force from 9.12.1995. Section 257
was amended and clause (l-1) was added as follows:-
“(l-1) any matter covered under Section 170-B.”
9. Definitely, amendment of Section 257 of the Code by
inserting new clause (l-1) which came into force on 9.12.1995
was not retrospective and was not applicable and available to the
parties on the date of filing of the suit i.e. on 6.4.1983, but
the provisions of Section 170-B of the Code was in force on
6.4.1983 on the date of filing of the suit.
10. As per pleadings of the original plaintiff, order passed by
the Sub Divisional Officer under Section 170-B of the Code casts
cloud over his title, therefore, he has filed civil suit for
declaration of such order as null and void and also claimed
relief for declaration of such order null and void and for
declaration of title on the basis of alleged sale deed.
11. As per pleadings of the parties, sale deed was executed on
18.2.1972 by a person member of aboriginal tribe. The provision
of Section 170-B of the Code is existing till today which reads
as under:-
“170-B. Reversion of land of members of aboriginal
tribe which was transferred by fraud.-(1) Every person
who on the date of commencement of the Chhattisgarh Land
Revenue Code (Amendment) Act, 1980 (hereinafter referred
to as the Amendment Act of 1980) is in possession of
agricultural land which belonged to a member of a tribe
which has been declared to be an aboriginal tribe under
sub-section (6) of section 165 between the period
commencing on the 2nd October, 1959 and endings on the
date of the commencement of Amendment Act, 1980 shall,
within two years of such commencement, notify to the Sub-
Divisional Officer in such form and in such manner as
may be prescribed, all the information as to how he has
come in possession of such land.(2) If any person falls to notify the information
as required by sub-section (1) within the period
specified therein it shall be presumed that such person
has been in possession of the agricultural land without
any lawful authority and the agricultural land shall, on
the expiration of the period aforesaid revert to the
person to whom it originally belonged and if that person
be dead, to his legal heirs.(2-A) If a Gram Sabha in the Scheduled area
referred to in clause (1) of Article 244 of the
Constitution finds that any person, other than a member
of an aboriginal tribe, is in possession of any land of
a Bhumiswami belonging to an aboriginal tribe, without
any lawful authority, it shall restore the possession of
such land to that persons to whom it originally belonged
and if that person is dead to his legal heirs:Provided that if the Gram Sabha fails to restore
the possession of such land, it shall refer the matter
to the Sub-Divisional Officer, who shall restore the
possession of such land within three months from the
date of receipt of the reference.(3) On receipt of the information under sub-
section (1), the Sub-Divisional Officer shall make such
enquiry as may be deemed necessary about all such
transactions of transfer and if he finds that the member
of aboriginal tribe has been defrauded of his legitimate
right he shall declare the transaction null and void and
pass an order revesting the agricultural land in the
transferor and, if he is dead, in his legal heirs.[(3) On receipt of the information under sub-
section (1) the Sub-Divisional Officer shall make such
enquiry as may be necessary about all such transactions
of transfer and if he finds that the member of
aboriginal tribe has been defrauded of his legitimate
right he shall declare the transaction null and void and-(a) Where no building or structure has been erected
on the agricultural land prior to such finding
pass an order revesting the agricultural land in
the transferor and if he be dead, in his legal
heirs,(b) Where any building or structure has been
erected on the agricultural land prior to such
finding, he shall fix the price of such land in
accordance with the principles laid down for
fixation of price of land in the Land
Acquisition Act, 1894 (No.I of 1894) and order
the person referred to in sub-section (1) to pay
to the transferor the difference, if any,
between the price so fixed and the price
actually paid to the transferor:
Provided that where the building or structure has
been erected after the 1st day of January, 1984 the
provisions of clause (b) above shall not apply:
Provided further that fixation of price under
clause (b) shall be with reference to the price of
registration of the case before the Sub-Divisional
Officer.”
12. As per provisions of Section 170-B of the Code, in case any
transaction between the period commencing on the 2nd October,
1959 and ending on the date of the commencement of the Act, 1980
i.e. on 10.10.1980, a person in possession of agricultural land
belonged to a member of tribe which has been declared to be an
aboriginal tribe under sub-section (6) of section 165 of the Code
is required to notify his possession to Sub Divisional Officer
that how he has come in possession of such land, failing such,
Sub Divisional Officer shall presume that such person has been in
possession of the agricultural land without any lawful authority
and the agricultural land shall, on the expiration of the period
aforesaid revert to the person to whom it originally belonged and
if that person be dead, to his legal heirs. Specific procedure
has been prescribed under Section 170-B of the Code and a person
not a member of Scheduled Tribe if he was in possession of the
agricultural land originally belonged to a member of tribe was
under obligation to notify such possession to the Sub Divisional
Officer.
13. In the present case, admittedly original plaintiff has not
notified his possession to the Sub Divisional Officer. Inquiry
was made by the Sub Divisional Officer in Revenue Case No.35/A-
23/81-82 and proceeding was quashed by the Sub Divisional
Officer. Order passed under the provisions of Section 170-B of
the Code was appealable and Second Appeal was barred in terms of
Section 170-B of the Code, but still revision against the order
passed by the first appellate Court was maintainable under
Section 50 of the Code. It shows complete procedure and
opportunity for inquiry, investigation and opportunity of hearing
to the parties.
14. Definitely, clause (l-1) of Section 257 of the Code relating
to bar for exercising jurisdiction by Civil Court is created vide
Act No.38 of 1995 which came into force from 9.12.1995, but the
provisions of Section 50 of the Code was in force on the date of
transaction, date of filing civil suit and date of possession by
the Civil Court. Section 257 of the Code creates bar for
entertaining suit by the Civil Court relating to the matters
which the State Government, Board or any Revenue Officer is
empowered to determine, decide or dispose of the matters under
the Code and also create bar relating to the matters included in
clause (a) to (z-2) appended in Section 257 of the Code.
15. While dealing with the exclusion of jurisdiction of the
civil Courts by any institute, the Supreme Court in the matter of
State of A.P. v. Manjeti Laxmi Kantha Rao (Dead) by LRs. and
others1 held that the normal rule of law is that civil courts
have jurisdiction to try all suits of civil nature except those
of which cognisance by them either expressly or impliedly
excluded as provided under Section 9 CPC but such exclusion is
not readily referred and the presumption to be drawn must be in
favour of the existence rather than exclusion of jurisdiction of
the civil courts to try a civil suit. The test adopted in
examining such a question is (i) whether the legislative intent
to exclude arises explicitly or by necessary implication, and
(ii) whether the stature in question provides for adequate and
satisfactory alternative remedy to a party aggrieved by an order
made under it. Para 5 of the said judgment reads as under:-
“5. The normal rule of law is that civil courts have
jurisdiction to try all suits of civil nature except
those of which cognisance by them either expressly or
impliedly excluded as provided under Section 9 CPC
but such exclusion is not readily referred and the
presumption to be drawn must be in favour of the
existence rather than exclusion of jurisdiction of
the civil courts to try a civil suit. The test
adopted in examining such a question is (i) whether
the legislative intent to exclude arises explicitly
or by necessary implication, and (ii) whether the
stature in question provides for adequate and
satisfactory alternative remedy to a party aggrieved
by an order made under it. In Dhulabhai v. State of
M.P.2 it was noticed that where a stature gives
finality to the orders of the Special Tribunals,
jurisdiction of the civil courts must be held to be
excluded if there is adequate remedy to do what the
civil courts would normally do in a suit and such
provision, however, does not exclude these cases
where the provisions of the particular Act have not
been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles
of judicial procedure.”
16. While dealing with the exclusion of jurisdiction of the
Civil Court relating to the matters appealable under Section 170-
B of the Code, the High Court of Madhya Pradesh in the matter of
Dhumaniya v. Harisingh and others3 held that the suit against the
order passed by the Sub Divisional Officer under Section 170-B of
the Code cannot be decided on merits of the matter. Civil Curt
has to see whether an inquiry was conducted as provided under
Section 170-B of the Code or not. While placing reliance in the
matter of Manjeti Laxmi Kantha Rao (Dead) by LRs. and others
(supra), the High Court of Madhya Pradesh held that Civil Court
has no jurisdiction to decide the case on merits but has only
jurisdiction to see whether an inquiry was conducted as provided
under Section 170-B of the Code or not.
17. While dealing with the question of exclusion of jurisdiction
in case of matters triable by Revenue Court, a Division Bench of
the High Court of Madhya Pradesh in the matter of Nathuram Arjun
v. Siyasharan Harprasad4 held that in case private right of way
of cultivator through the field of another for access to his
field, the revenue Courts are having exclusive jurisdiction to
decide the matter and decision of revenue authorities under this
section is exclusive and suit to enforce the common law right
i.e., under Easements Act, does not lia.
18. While dealing with the question of exclusion of jurisdiction
of the Civil Court, the Supreme Court in the matter of K.S.
Venkataraman & Co. (P) Ltd. v. State of Madras5 held that if a
statute imposes a liability and creates an effective machinery
for deciding questions of law or fact arising in regard to that
liability, it may, by necessary implication, bar the
maintainability of a civil suit in respect of the said liability.
A stature may also confer exclusive jurisdiction on the
authorities constituting the said machinery to decide finally a
jurisdictional fact thereby excluding by necessary implication
the jurisdiction of a Civil Court in that regard.
19. While dealing with the same question, the Supreme Court in
the matter of State of Kerala v. N. Ramaswami Iyer and Sons6 held
that after referring to earlier cases, the view was reiterated
that where the legislature sets up a special tribunal to
determine questions relating to rights or liabilities which are
the creation of a statute, the jurisdiction of the Civil Court
would be deemed excluded by implication.
20. In the light of legal propositions enumerated in the matters
of Manjeti Laxmi Kantha Rao (Dead) by LRs. and others1(supra),
Nathuram Arjun4(supra), K.S. Venkataraman & Co. (P) Ltd.5(supra)
and N. Ramaswami Iyer and Sons6 (supra), exclusion of
jurisdiction of the civil Court is not readily to be inferred.
The Courts are required to examine the provisions of law namely,
(i) whether it explicitly or by necessary implication intent to
exclude the jurisdiction of the civil Court and (ii) does the
statute provide adequate remedy in case of grievance against
order made under the statute.
21. Section 170-B of the Code provides procedure for inquiry
relating to transaction hit by Section 170-B of the Code. Order
made under Section 170-B of the Code is appealable under the
provisions of Section 44 of the Code. Second appeal against such
order is barred, but revision against the order passed by the
first appellate Court is maintainable in accordance with Section
50 of the Code which shows that legislature has taken proper care
and has provided adequate remedy in case of grievance against the
order made under Section 170-B of the Code. Section 170-A of the
Code deals with transaction relating to the land between
aboriginal tribe and the person not belonging to aboriginal tribe
and competent authority is competent to pass the order for return
of the land and restore the possession after making detail
inquiry. In continuance of procedure prescribed under Section
170-A of the Code, additional procedure/remedy has been provided
under Section 170-B of the Code. As per clause (l) of Section
257 of the Code, jurisdiction of the civil Court is barred
relating to the matter covered under Section 170-B of the Code,
although in the year 1995 by amending Act No.38 of 1995 bar has
been created relating to Section 170-B of the Code. Section 257
of the Code is in two parts. Principle provisions exclude
jurisdiction of the civil Court relating to the matter triable by
the revenue officers and authorities under the Code and clause
(a) to (z-2) appended in Section 257 of the Code, especially
creates bar in exercising the jurisdiction by the civil Court.
The section confers exclusive jurisdiction to the Revenue Courts
in respect of certain matters as enumerated in this section. The
section is drafted in a peculiar manner. It keeps in tact
jurisdiction of civil Court in respect of following:-
(i) Where jurisdiction is either conferred on civil court or it
is stated that a civil suit will be competent in respect of
certain matter; and
(ii) Where jurisdiction is conferred on civil Court under any
other provision of law specifically in respect of certain matter.
Under this section, jurisdiction of civil Court is excluded in
respect of the following:-
(i) such matters which the State Government, the Board or any
Revenue Officer is competent to decide under the provisions of
this Code; and
(ii) matters which are enumerated in clauses (a) to (z-2) of this
Section.
Clause (l) of Section 257 read with principle provision of
Section 257 of the Code creates bar in exercising the
jurisdiction of the civil Court relating to the matter covered
under Section 170-B of the Code.
22. Although clause (l-1) of Section 257 of the Code was not
amended or inserted before 1995, but principle of Section 257 of
the Code was in force on the date of transaction, date of filing
of suit and date of possession by the Civil Court which creates
bar in exercising the jurisdiction by the Civil Court in the
matter in which the State Government, Board or Revenue Officers
is by the Court empowered to determine, decide and dispose of.
The Revenue Officers are empowered to determine, decide and
dispose of the matters relating to Section 170-B of the Code,
especially relating to transaction between the periods of
2.10.1959 till 10.10.1980. The Sub Divisional Officer has
decided the case in accordance with the provisions of the Code.
While decreeing the suit and dismissing the appeal, both the
Courts below have not considered the provisions of Sections 170,
170-A and principle provisions of Section 170-B of the Code and
have decreed the suit and dismissed the appeal only on the ground
that Section 170-B of the Code does not create bar in exercising
the jurisdiction of the civil Court, but have not considered the
main clause of Section 257 of the Code and complete procedure
provided under Section 170-B of the Code, thereby committed
illegality.
23. Consequently, substantial question of law formulated for
decision of the appeal is decided as positive. On the basis of
decision on the substantial question of law formulated for the
decision of the appeal, the appeal is allowed. Judgment and
decree of both the Courts below are hereby set aside.
Considering the peculiar facts that instead of filing the appeal
and revision provided under the Code, the present respondents
have filed civil suit, they may challenge the order passed by the
Sub Divisional Officer before appellate or revisional forum and
if appeal or revision is filed, then delay in filing such appeal
or revision may be considered in the light of pendency of civil
suit and civil appeal. Parties shall bear their own cost.
24. Advocate fee as per schedule.
25. A decree be drawn accordingly.
JUDGE
