Chattisgarh High Court

Ram Kumar Choudhary vs Sanjay Bhushan Pandey on 9 November, 2021

                                          1

                                                                               NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                               CR No. 135 of 2018

                        Order Reserved On : 29/10/2021
                         Order Passed On : 09/11/2021

    Sanjay Bhushan Pandey S/o Brijbhushan Pandey, aged about ___ years
     Occupation Agriculture, At Present President Janpat Panchayat Sarangarh,
     Tahsil Sarangarh, District Raigarh, Chhattisgarh. ...........Defendant.

                                                                        ---- Petitioner

                                       Versus

    Ramkumar Chaudhary S/o Late Ishwar Prashad Chaudhary Aged About 59
     Years Occupation Advocate And Agriculture, R/o Village Jail Para Vard No.
     12, Sarngarh, Tahsil Sarngarh, District Raigarh, Chhattisgarh. .........Plaintiff,

                                                                     ---- Respondent

CR No. 114 of 2018

 Ram Kumar Choudhary S/o Late Ishwar Prasad Choudhary Aged About 59 Years Occupation Advocate And Agriculture, R/o Jail Para Ward No. 12 Sarangarh, Tehsil Sarangarh, District Raigarh Chhattisgarh................. (Plaintiff)

---- Petitioner

Versus

 Sanjay Bhushan Pandey S/o Brijbhushan Pandey Occupation Agriculture, President (Then) Janpad Panchayat Sarangarh R/o Bademath Para Ward No. 7 Sarangarh Tehsil Sarangarh District Raigarh Chhattisgarh............... (Defendant)

---- Respondent

For Petitioner in CR No.135/2018 : Shri Vineet Kumar Pandey, Advocate. For Respondent in CR No.135/2018 : Shri SN Nande, Advocate. For Petitioner in CR No.114/2018 : Shri SN Nande, Advocate. For Respondent in CR No.114/2018 : Shri Vineet Kumar Pandey, Advocate.

Hon'ble Shri Deepak Kumar Tiwari, J

C A V Order

1. Both the Civil Revisions are being disposed of by this common order,

as common question of law is involved for adjudication.

2. For the purpose of disposal, facts mentioned in Civil Revision

No.114/2018 are being dealt with.

3. The petitioner has an agriculture holding at Village Sahaspur, Patwari

Circle No.24, within Tehsil Sarangarh, District Raigarh. The land

bearing Khasra No.90/3 (k) ad measuring 0.085 hectare is in exclusive

right, interest and possession of the petitioner. The said land was

purchased by the petitioner by a registered sale deed dated 21.3.2002

from one Mohd. Azim, who allegedly purchased the same from the

earlier land owner namely, Mohd. Hanif Quereshi by a registered sale

deed dated 14.10.1999. However, the defendant/respondent got

illegally dispossessed the petitioner from the parcel of land. The

petitioner/plaintiff filed a civil suit seeking restoration of possession

from the dispossessed part described in Schedule K appended with the

plaint.

4. The defendant put his appearance before the Court below denying the

case as set-out by the plaintiff/petitioner and submitted written

statement stating that the allegations levelled against him with regard to

dispossession are not true, as the plaintiff did not have title and

possession over the subject land as mentioned in Schedule K appended

with the plaint.

5. Considering the rival pleadings, learned Court below framed as many as

6 issues. During the course of trial, the plaintiff and defendant adduced

their respective evidence. After hearing learned counsel for the parties

and considering the material available on record, the learned Court

below dismissed the suit for want of jurisdiction being barred by

Section 257 (Bh) of the CG Land Revenue Code, 1959 (for short 'the

Code').

6. From the plaint averments, it is explicit that it was filed on 24.09.2009,

for restoration of possession of the suit land, under Section 6 of the

Specific Relief Act, 1963. In para 12 & 13 of the plaint and in the cause

titile it was specifically mentioned that suit was based on for such

summary relief. Under Section 6 (3) of the Specific Relief Act, No

appeal shall lie from any order or decree passed in any suit instituted

under that section, so both the parties challenged the impugned

judgment by way of revision. So, in this background contention of the

learned counsel Shri Nande that suit may be treated as on the basis of

possessory title or otherwise not tenable.Scope of S.5 & S.6 of the Act

are different, and it was explained in Nair Service Society v K.C,

Alexander AIR 1968 SC 1165, holding S.8 & 9 (now S.5.& 6 ) of the

Act are not mutually exclusive. His Lordship observed that S.8 of the

Act does not limit the kinds of suit but only lays down that the

procedure laid down in the Civil Procedure Code must be followed.

This is very different from saying that a suit based on possession alone

is incompetent after the expiry of six months. If S.9 of the Act is

utilized, the plaintiff need not prove his title and the title of the

defendant does not avail him. When, however, the period of six months

has passed, question of title can be raised by the defendant, and if does

so, the plaintiff must establish a better title or fail. Article 64 of the

Limitation Act enables a suit to be filed within 12 years from

dispossession, for possession of immovable property based on

possession and not on title, when the plaintiff while in possession of the

property has been dispossessed, Article 65 of the Limitation Act

provides for a suit for possession of immovable property or any interest

therein based on title.

7. In Nathu v. Dilbande Hussain {AIR 1967 MP 14}, while answering

the reference, it was held that the remedy of a suit under section 9 of the

Specific Relief Act for obtaining possession of an agricultural land is

not available to a Bhumiswami who has been dispossessed from that

land; that such a Bhumiswami, if he wishes to have the land restored to

him in a speedy manner and after a summary enquiry, must resort to the

remedy given by Section 250 of the Code; and that the view expressed

in Kittu Paramlal v. Jamnaprasad [1962 MP LJ 738.] , Santprasad v.

Jawaharsingh [1963 MP LJ (SN) 45.] and Phattelal v. Nandlal [1963

MP LJ 292.] that a dispossessed Bhumiswami can file a suit under

Section 9 of the Specific Relief Act is not correct.

8. In the aforesaid judgment, it was specifically said that it must be noted

that an aggrieved Bhumiswami is not bound to resort to the remedy

provided by section 250. This is clear from the provision in section

250(1) that "the Bhumiswami or his successor-in-interest may apply to

the Tahsildar for restoration of the possession...". The word "may"

means that the aggrieved Bhumiswami is not bound to avail himself of

the summary and speedy remedy provided by section 250 of the Code.

He may, if he likes, straightway bring a suit in a civil court for the

establishment of his title to the land and to recover possession thereof.

The word "may" does not mean that the aggrieved Bhumiswami can at

his option launch proceedings in a civil court under section 9 of the

Specific Relief Act or in a revenue court under section 250 of the Code

for recovery of possession of the land. But if he wishes to have the land

restored to him, then he has two courses open. He can either approach

the Tehsildar under section 250 of the Code or he may bring a suit in a

civil court founded on title. But so far as the recovery of possession of

land after summary enquiry is concerned, the aggrieved Bhumiswami

has no option. For that remedy, he must approach the Tehsildar under

section 250 of the Code. The remedy of a suit under Section 9 of the

Specific Relief Act is clearly not available to him in view of Section

257(x) of the Code.

9. Learned Counsel Shri Nande has referred "Ramgopal Kanhaiyalal vs

Chetu Batte 1976 MPLJ 325 (FB), in which the questions were referred

that whether the Civil Court can not take cognizance of a suit instituted

by Bhumiswami on the basis of his title, against a trespasser; and

whether the decision in Nathu v. Dilbande Hussain {AIR 1967 MP

14}, is no longer good law. The S.C. while upholding the decision in

'Nathu' case reiterated the principle that a Bhumiswami is not bound to

avail himself of the speedy remedy provided in S. 250 of the Code.

Even if there has been decision under S. 250 by a revenue court, the

party aggrieved may institute a civil suit to establish his title to the

disputed land.

10.The judgments in the matters of Rohini Prased & Ors vs

Kasturchand & Anr {(2000) 2 SCC 668, decided on 03.03.2000),

State of M.P. vs Balveer Singh and Others {AIR 2001 MP 268 (FB)},

Nek Parveen and another v Chamaklal {2000 RN 80 (HC)}, are of

no help to petitioner Chaudhary as they are distinguishable on facts.

Shri Pandey relied on a decision in the matter of Dhudo Bai v BajiRao

and another {2004(4) M.P.L.J. 364} wherein a reliance was placed on

Lal Kunwar and others vs Shivnarain and another, {1998 RN 89}.

It was held that the plaintiff has not sought declaration, but made a

casual averment that he was the Bhumiswami of the suit land and

claimed possession and mesne profit, the said suit was not based on

title, hence not maintainable before the civil Court.

11.Section 257 of the Chhattisgarh Land Revenue Code, 1959 reads as

under :--

"257. Exclusive jurisdiction of revenue authorities.-- Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters :