Chattisgarh High Court
Jamuna Devi vs Suresh Kumar Agrawal And Anr on 14 June, 2022
Page 1 of 18
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 436 of 2012
Reserved on : 22.03.2022
Delivered on : 14.06.2022
Jamuna Devi, Wd/o Inder Singh Verma, Aged About 65 Years,
R/o Baikunthpur, Raigarh, P.S.- City Kotwali, Tahsil & District-
Raigarh (C.G.)
---- Appellant
Versus
1. Suresh Kumar Agrawal, S/o Sant Lal Agrawal, Aged About 55
Years, Businessman, R/o Kotra Road, Raigarh, P.S.- City
Kotwali, Tahsil & District- Raigarh (C.G.)
2. State of Chhttisgarh, Through- Collector, Raigarh (C.G.)
---- Respondents
For Appellant : Mr. B.P. Gupta, Advocate.
For Respondent No. 1 : Mr. Hari Agrawal, Advocate.
For State/Respondent No. 2 : Mr. Ravi Pal Maheshwari, P.L.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. Heard on admission.
2. The second appeal has been filed by the appellant/defendant
under Section 100 of the C.P.C. against judgment and decree
dated 16.09.2009 passed by District Judge, Raigarh, District-
Raigarh (C.G.) in Civil Appeal No. 10A/2008 (Suresh Kumar
Agrawal Vs. Jamuna Devi & another) allowing the appeal by
setting aside the judgment and decree dated 18.08.2008 passed
by Civil Judge Class-I, Raigarh, District- Raigarh (C.G.) in Civil
Suit No. 21A/2006, by which learned trial Court has allowed the
application under Order 7 Rule 11 of C.P.C. and dismissed the
suit filed by the plaintiff for declaration of title and grant of
permanent injunction.
3. For the sake of convenience, the parties shall be referred to in
terms of their status in Civil Suit No. 21A/2006 which was filed
by the plaintiff for declaration of title and grant of permanent
injunction.
4. The brief facts, as reflected from the plaint averments, are that
the plaintiff has filed a civil suit for declaration and grant of
permanent injunction mainly contending that the plaintiff has
purchased a land out of Khasra No. 16/2 area admeasuring
0.162 Hectare situated at Village- Baikunthpur, Patwari Halka
No. 13, Tahsil & District- Raigarh along with other lands from
previous owner of suit land Smt. Phuleshwari Bai through
registered sale-deed on 07.10.1992, as such, he is title holder of
the land (subsequently the same shall be referred to as suit
property) and he is in possession of the suit property. It has been
further contended that plaintiff has purchased remaining part of
land bearing Khasra No. 16/2, as such, defendant No. 1 has no
title over Khasra No. 16/2 (old). It has been further contended
that land area admeasuring 0.421 Hectare from Khasra No. 16/1
(total 5.59 acres) has been acquired by the State Government,
accordingly, sale-deed in favour of Public Works Department
Raigarh Sub-Division has been executed on 07.12.1988 and
after the sale-deed, 4.55 acres land remained in Khasra No.
16/1.
5. It has been further contended that husband of defendant No. 1-
Jamuna Devi namely Inder Singh Verma moved an application
on 14.09.1933 before Tahsildar, Raigah along with map of 16/1 &
16/2 for correction in the map of Khasra No. 16/1, in which, it
has been mentioned that Khasra No. 16/2 has already been
bifurcated and on the basis of this map, the case of correction of
map was registered. The Tahsildar taking cognizance on the
application, called for the report from Revenue Inspector and the
revenue inspector has submitted report on 28.03.1994. On the
basis of report submitted by the Revenue Inspector, the
Tahsildar has passed the order on 30.12.1994 which has not
been challenged before higher forum provided under the Land
Revenue Code, 1959 (for short "the Code, 1959") by defendant.
6. It has been further contended that the Government has made
bypass road, which has caused greed in mind of husband of
defendant No. 1, which has necessitated him to file another
application under Section 113 read with Section 129 of the
Code, 1959 for correction in the map of Khasra No. 16 without
disclosing about the earlier order passed by the Naib Tahsildar.
The Tahsildar vide order dated 10.09.2001 dismissed the
application filed by husband of defendant No. 1 without issuing
notice and giving opportunity of hearing to the plaintiff by
remanding the matter to Tahasildhar for deciding the application
afresh after arraying the plaintiff as party to the said application.
Being aggrieved with this order, Inder Singh Verma has
preferred an appeal before the Sub Divisional Officer without
impleading the plaintiff as party and the Sub Divisional Officer
vide order dated 14.01.2002 directed for correction in the map.
Since, this order was passed without giving any notice to the
plaintiff, therefore, he has filed review application, which was
also rejected by the Sub Divisional Officer vide order dated
29.01.2002. Thereafter, the matter was remanded and notice
was issued as plaintiff was arrayed as party to this case,
wherein, he has raised objected. The plaintiff has also preferred
an appeal before Commissioner, Bilaspur, wherein, stay has
been granted on 18.02.2002. The appeal preferred by the
plaintiff was dismissed for want of prosecution on 17.12.2003
and against that restoration application has been filed by the
plaintiff on 15.01.2004, which is pending consideration.
7. It has been further contended that the Tahsildar without giving an
opportunity of hearing to the plaintiff, has passed the order on
02.08.2004. Against which, the plaintiff has preferred an appeal
on 15.09.2004 before the Sub Divisional Officer, Raigarh, which
was rejected on 09.11.2004, against which, a revision was
preferred by defendant No. 1 which was also rejected on
07.02.2005. Against that, defendant No. 1 has preferred revision
before Commissioner, Bilaspur and after abolition of post of
Commissioner, the case has been transferred to Board of
Revenue, Bilaspur wherein, the Board of Revenue has passed
the order on the revision application on 15.12.2006 by observing
that the present plaintiff has not preferred any appeal against the
order dated 29.01.2002 passed by the Sub Divisional Officer, as
such, it became final. By order dated 29.01.2002, the Sub
Divisional Officer has held that the land bearing Khsasra No.
16/1 has been recorded in the name of husband of defendant-
Inder Singh Verma and he has purchased the property through
registered sale-deed. According to the revenue record, the
defendant is in possession of the said land, as such, the
correction which has been done in the map of defendant bearing
Khasra No. 16/1 is legal. The plaintiff- Suresh Kumar does not
have any interest over the said property, therefore, the order of
Sub Divisional Officer, Raigarh and Collector, Raigarh is set
aside. It has been further contended that the said order is illegal
and on the basis of the illegal order, the defendant is threatening
the plaintiff, which has necessitated the plaintiff to file the
present suit. On above factual matrix, the plaintiff has prayed for
following relief:-
"1- ;g fd ;g ?kksf"kr fd;k tkosa fd vuqlwph v esa yky L;kgh
ls n'kkZ;k x;k tehu dk iqjkuk ua- [kljk ua- [email protected] gS
ftldk ekfyd oknh gS rFkk rglhynkj jk;x<+ }kjk jk-iz-daz-
[email protected]&6¼v½@2000&2001 esa ikfjr vkns'k fnukad 2-8-2004
,oa blh dh vfxze dk;Zokgh jktLo eaMy] fcykliqj }kjk
iqujh{k.k iz-dza- [email protected]&6¼v½@05&06 esa ikfjr vkns'k fnukad
15-12-2006 voS/k ,oa 'kwU; gSA
2- ;g fd vuqlwph v esa nf'kZr yky L;kgh dh Hkwfe ftldk
iqjkuk uacj [email protected] gSa mlesa oknh ds dCts esa Lo;a ;k vU; ds
ek/;e ls izfroknh dza-1 dksbZ gLr{ksi u djsa rFkk bl tehu
ds fdlh Hkh Hkkx dks [email protected] crkdj fodz; u djsa ;k vU;
izdkj ls gLrkUrfjr u djsa bl vk'k; dk 'kk'or C;kns'k
izfroknh dza-1 ds fo:) tkjh fd;k tkosa rFkk rglhynkj ds
vkns'k fnukad 2-8-2004 ,oa jktLo eaMy ds vkns'k fnukad
15-12-2006 dk fdz;kUo;u u fd;k tkosa bl vk'k; dk
'kk'or C;kns'k dh fMdzh tkjh fd;k tkosaA
3- ;g fd bl okn dk O;; oknh dks izfroknh dza- 1 ls fnyk;k
tkosaA
4- ;g fd vU; dksbZ vuqrks"k tks U;k;ky; mfpr le>s oknh
dks izfroknhx.k ls fnyk;k tkosaA"
8. The defendant has filed written statement denying the allegation
made in the plaint and also filed counter claim and has prayed
for following relief:-
"1- ;g fd ;g ?kksf"kr fd;k tkosa fd rglhynkj jk;x<+ ds
U;k;ky; }kjk jk-iz-dza- [email protected]&6¼v½@2000&01 esa ikfjr
vkns'k fnukad 2-8-04 uD'kk lq/kkj dk ftldk fd [k-ua-
[email protected] ds laca/k esa uD'kk lq/kkj fd;k x;k gS ,oa ekuuh;
jktLo eaMy N-x- fcykliqj }kjk jk-iq-iz-dza-
[email protected]&6¼v½@2005&06 esa ikfjr vkns'k fnukad 15-12-
06 og oS/k gS vkSj mlds foijhr vkSj dksbZ uD'kk lq/kkj ugha
fd;k tk ldrkA
2- ;g fd oknh ds fo:) bl vk'k; dk 'kk'or O;kns'k tkjh
fd;k tkos fd oknxzLr Hkwfe dks og fdlh vU; dk
gLrkarfjr u djs rFkk izfroknh ds LokfeRo o dCts dh Hkwfe
[k-ua- [email protected] esa fdlh Hkh izdkj ls Lo;a ;k vU; ds ek/;e ls
gLr{ksi u djsa ,oa fuekZ.k esa fdlh izdkj ck/kk mRiUu u
djsA
3- ;g fd bl izfrnkok dk O;; izfroknh dks oknhx.k ls
fnyk;k tkosA
4- ;g fd vU; dksbZ vuqrks"k tks U;k;ky; mfpr le>s izfroknh
dks oknhx.k ls fnyk;k tkosA"
9. Thereafter, the defendant has filed an application under Order 7
Rule 11 of the C.P.C. on 14.06.2007 mainly contending that the
plaintiff by present suit has challenged the order of correction in
the map dated 02.08.2004 & 15.12.2006, which is not in
exclusive jurisdiction of Civil Court, as such, the Civil Court has
no jurisdiction to pass such order, therefore, the present suit
deserves to be dismissed by this Court. It has also been further
submitted that in pursuance of the order dated 14.01.2002
passed by the Sub Divisional Officer, the Tahsildar has ordered
for correction in the map on 02.08.2004 and the plaintiff has not
filed the suit within three years challenging the legality and
validity of the order dated 14.01.2002, as such, the same is
barred by limitation and deserves to be rejected by this Court.
10. The plaintiff has filed reply to this application mainly contending
that the present suit has been filed regarding status of Khasra
No. 16/1 & 16/2 and the suit has been filed as defendant has
deliberately made correction in the map of land bearing Khasra
No. 16/2 as 16/1 and an attempt is being made to sell the said
portion of land. In fact, it has been further contended that the
land which defendant is claiming to be land bearing Khasra No.
16/1, is actually land bearing Khasra No. 16/2, which is in
possession and title of the plaintiff. This factual matrix cannot be
determined without recording of the evidence, therefore, present
application deserves to be dismissed. It has been further
contended that while deciding an application under Order 7 Rule
11 of C.P.C. pleading made in the plaint has to be seen not the
defence taken by the defendant. The plaintiff has specifically
pleaded that cause of action arose on 15.12.2006 and the
application has been filed on 21.12.2006 within three years, as
such, the suit is within limitation and would pray for rejection of
the application.
11. Learned trial Court after considering the material placed on
record vide its order dated 18.08.2008 has allowed the
application filed by the defendant. The trial Court has only
reiterated the fact pleaded by the parties, but no reason has
been assigning by the trial Court, while allowing the application
filed under Order 7 Rule 11 of the C.P.C. Against that the plaintiff
has preferred first appeal before the First Appellate Court, i.e.
District Judge, Raigarh. Learned First Appellate Court has set
aside the order passed by the trial Court by recording the finding
that it cannot be said that the present suit is merely relates to
correction in the map because the plaintiff has sought relief on
the basis of actual title and possession of the suit property, which
is subject of trial and to be enquired after recording of the
evidence. The order passed by the revenue court is only
incidental and does not decide the lis between the parties,
therefore, the suit filed by the plaintiff is maintainable and
remanded the matter for deciding the case afresh in accordance
with law.
12. Being aggrieved with the judgment and decree passed by the
learned District Judge, Raigarh in Civil Appeal No. 10A/2008 on
16.09.2009, the appellant has preferred Misc. Appeal No.
99/2009 before this Court. This Court vide order dated
01.09.2010 has stayed the further proceeding pending before
the trial Court. The Misc. appeal was listed before this Court on
18.10.2012 on that day, the Misc. appeal was withdrawn with
liberty to the appellant to file second appeal. In view of the liberty
granted in favour of the appellant, the appellant has preferred
second appeal, which was delayed by 1060 days, therefore, this
Court has issued to the respondent and in pursuance of notice,
respondent No. 1 has entered appearance. This Court
considering the liberty granted in favour of the appellant, has
condoned the said period vide order dated 04.01.2022 and listed
the case for admission on 07.03.2022.
13. Learned counsel for the appellant would submit that the Code,
1959 provides under Section 107 of the Code, 1959 provides for
preparation of field map and if any dispute exists regarding entry
in the Khasra or in any land record, then remedy is available to
aggrieved person by moving an application before the Tahsildar
for correction within one year of the date of such entry. The
preparation of map and arising of dispute solely falls within the
exclusive jurisdiction of revenue authority and the averment
made in the plaint would show that it is a dispute regarding
which can be exclusively tried by revenue authority under
Section 257 of the Code, 1959 and the Civil Court has no
jurisdiction, therefore, the learned First Appellate Court has
committed illegality allowing the appeal filed by the plaintiff and
thus, the substantial question of law exists and would submit that
the appeal may kindly be admitted for hearing. In support of his
contention, he would refer to the judgment rendered by Hon'ble
Madhya High Court in Shivnath Prasad Shrivastava & others
Vs. Board of Revenue of M.P., Gwalior & others 1, Nagar
Panchayat Aaron Vs. Shanti Bai & others2 & judgment
rendered by Hon'ble the Supreme Court in Devinder Singh &
1 2002 (2) M.P.H.T. 459
2 2009 (III) MPJR 301
others Vs. State of Haryana & another3.
14. On the other hand, learned counsel of the plaintiff/respondent
No. 1 would submit that the order passed by the learned First
Appellate Court is legal, justified and in accordance with law,
which does not warrant any interference by this Court. He would
further submit that the trial Court while deciding the application
filed under Order 7 Rule 11 of the C.P.C. should only consider
the plaint averments and should not take into consideration the
defence taken by the defendant. He would further submit that
the defence taken by the defendant regarding limitation, is a
matter of evidence, which cannot be adjudicated without
examination of the evidence. He would further submit that the
plaintiff has not filed civil suit merely for correction in the map,
but he has filed the suit for declaration of title and grant of
permanent injunction as defendant by treating some part of land
bearing Khasra No. 16/2 as 16/1 attempting to sell the same, as
such, it is not simple correction in the map, therefore, provisions
of Section 107 read with Section 257 of the Code, 1959 cannot
be operated in the present case and the judgment cited by
learned counsel for the appellant is distinguishable from the
facts and circumstances of the present case and would submit
that since no substantial question of law in involved in the
appeal, the appeal may kindly be dismissed at the admission
stage itself. In support of his contention, he would refer the
judgment rendered by Hon'ble the Supreme Court in Rohini
Prasad & others Vs. Kasturchand & another4 & the judgment
rendered by Hon'ble High Court of Chhattisgarh in Government
of Madhya Pradesh & others Vs. Ishwar Chandra5.
15. Before adverting to the factual matrix of the case, it is expedient
for this Court to extract relevant provisions of Section 107, 116,
117 & 257 of the Code, 1959, which are as under:-
"107. Field map. - (1) There shall be prepared a
map showing the boundaries of survey numbers or
3 AIR 2006 SC 2850
4 (2000) 3 SCC 668
5 (2016) 4 CGLJ 512
plot numbers and waste lands called the field map
for every village except when otherwise directed by
the State Government.
(2) There may be prepared for the abadi of each
village a map showing the area occupied by private
holders and the area not so occupied and such
other particulars as may be prescribed.
(3) If the State Government considers that in the
case of any village it is necessary to show
separately in the map prepared under sub-section
(2) the plots occupied by private holders, it may
direct the Collector to get the map so prepared or
revised.
(4) If any Gram Panchayat passes a resolution that
a map of the village abadi should be prepared
showing separately the plots occupied by private
holders and is willing to contribute to the cost of
survey operations in such proportion as may be
prescribed, the State Government may undertake
the preparation of such map.
(5) Such map shall be prepared or revised, as the
case may be, by the Settlement Officer at revenue
survey and by the Collector at all other times and in
all other circumstances.
116. Disputes regarding entry in khasra or in
any other land records. - (1) If any person is
aggrieved by an entry made in the land records
prepared under Section 114 in respect of matters
other than those referred to in Section 108, he shall
apply to the Tahsildar for its correction within one
year of the date of such entry.
(2) The Tahsildar shall, after making such enquiry
as he may deem fit, pass necessary orders in the
matter.
117. Presumption as to entries in land records. -
All entries made under this Chapter in the land
records shall be presumed to be correct until the
contrary is proved are required to be prepared or
kept under this Code or any other enactment for
the time being in force, shall be open to the
inspection of the public at reasonable hours, and
certified extracts therefrom, or certified copies
thereof, shall be given to all persons applying for
the same.
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 :-
(a) any decision regarding any right under sub-
section (1) of Section 57 between the State
Government and any person.
[(a-1)] any decision regarding the purpose to which
land is appropriated under Section 59;
(b) any question as to the validity or effect of the
notification of a revenue survey or any question as
to the term of a settlement;
(c) any claim to modify a decision determining
abadi made by a Settlement Officer or Collector;
(d) any claim against the State Government to hold
land free of land revenue, or at less than the fair
assessment, or to be assigned in whole or in part
the land revenue assessed on any land;
(e) the amount of land revenue assessed or
reassessed under this Code or any other
enactment for the time being in force;
(f) any claim against the State Government to have
any entry made in any land records or to have any
such entry omitted or amended.
(g) any question regarding the demarcation of
boundaries or fixing of boundary marks under
Chapter X;
(h) any claim against the State Government
connected with or arising out of, the collection of
land revenue or the recovery of any sum which is
recoverable as land revenue under this Code or
any other enactment;
(i) any claim against the State Government or
against a Revenue Officer for remission or
suspension of land revenue, or for a declaration
that crops have failed in any year;
(j) any decision regarding forfeiture in cases of
certain transfers under Section 166;
(k) ejectment of a lesser of a bhumiswami under
sub-section (4) of Section 168;
(l) any claim to set aside transfer by a bhumiswami
under subsection (1) of Section 170 and clauses
(a) and (b) of sub-section (2) of Section 170-A;
(l-1) any matter covered under Section 170-B.
(m) ejectment of a Government lessee under
Section 182;
(n) resumption by a bhumiswami of land held by an
occupancy tenant under Section 189 and the
fixation of rent of land left, if any, with the
occupancy tenant;
(o) claims by occupancy tenants for conferral of the
rights of bhumiswami under Section 190;
(p) restoration of possession to an occupancy
tenant under Section 191,
(q) termination of tenancy of an occupancy tenant
under Section 193;
(r) any claim to set aside transfer by an occupancy
tenant under Section 197;
(s) the imposition of penalty on a bhumiswami
under Section 200;
(t) suspension and remission of rent under Section
201,
(u) any decision regarding reinstatement of
wrongfully ejected occupancy tenant under Section
202;
(v) amount payable as compensation under sub-
section (3) of Section 209, confirmation of the
scheme for consolidation of holdings under Section
210, transfers of rights in carrying out the scheme
under Section 213 and assessment and
apportionment of costs of consolidation of holdings
under Section 215;
(w) any claim to modify any entry in the Nistar
Patrak;
(w-i) any decision regarding penalty under Section
248, for unauthorisedly taking possession of land.
(x) any decision regarding reinstatement of a
bhumiswami improperly dispossessed under
Section 250;
(x-i) any decision regarding confinement in civil
prison under Section 250-A;
(x-ii) any decision regarding delivery of actual
possession of land to the bhumiswami or the
Government Lessee under Section 250 B.
(y) any decision regarding vesting of tanks in State
Government under Section 251 and any claim
against the State Government arising thereunder;
(z) any claim against the State Government to set
aside or modify any premium, penalty, cess or rate
imposed or assessed under the provisions of this
Code or any other enactment for the time being in
force;
(z-1) any claim against the State Government
arising under Section 255 regarding prescription of
standard cultivation and management;
(z-2) any claim to compel the performance of any
duty imposed by this Code on any Revenue Officer
or other officer appointed under this Code."
16. Learned counsel for the defendant would submit that the plaintiff
fraudulently got numbered some portion of Khasra No. 16/1 as
16/2, as such, it is question regarding demarcation of boundaries
or fixing the boundaries marks as provided under Chapter X of
the Code, 1959. The claim of the plaintiff in his suit falls within
ambit of Section 257(g) of the Code, 1959, as such, the revenue
authority has exclusively jurisdiction, therefore, the suit is not
maintainable and would submit that the case of the appellant is
covered from the judgment rendered by Hon'ble Madhya High
Court in Shivnath Prasad Shrivastava (Supra), wherein it has
been held at paragraph 11 as under:-
"11. Obviously no remedy was available to the
petitioners under Section 116 of the Code because
the entry was more than one year old. It is
noteworthy that well known commentary on the
Code by Dr. Harihar Nivas Dwivedi on page 468
has given a long list of cases in which an entry
made in the previous year was not corrected on
the ground of its being time barred. It is further
noteworthy that in Batulbi v. Munnawar Khan (1982
MPWN 304), this High Court has held that a Civil
Court has no jurisdiction to direct correction of
entries in revenue record. This is in exclusive
jurisdiction of a Revenue Court."
17. Hon'ble High Court of Madhya Pradesh in Nagar Panchayat
Aaron (Supra), has held at paragraph 9 as under:-
"9. Sub-section (5) (supra) confers jurisdiction on
the Settlement Officer and the Collector as the
case may be to prepare or revise the map.
Accordingly, Collector, Guna is not found to have
acted beyond jurisdiction in directing for
rectification of the mistake by making corrections
vide his order. Since power to prepare or revise the
map is vested in the Settlement Officer or Collector
as the case may be, it alone has a
power/jurisdiction to decide the objection and no
Civil Court shall have jurisdiction to nullify the order
made in exercise of power under section 107 of
M.P. Land Revenue Code. Section 257 of M. P.
Land Revenue Code excludes the jurisdiction of
Civil Court in such matter because Revenue
Officers named in section 107 alone are competent
to take action in respect of correction in the
revenue map. In view of the pleadings, it is clear
that the plaintiff has sought relief contrary to the
existing revenue record and has challenged the
order effecting thereby correction in the map which
was made in exercise of exclusive power by virtue
of sub-section (5) section 107 of M. P. Land
Revenue Code. This being so, the suit is held
rightly as not maintainable. I may successfully
derive strength on this point from Apex Court
decision in the case of Devinder Singh and others
vs. State of Haryana and another, (2006) 5 SCC
720 and this Court decision in the case of Shivnath
Prasad Shrivastava and others vs. Board of
Revenue of M. P., Gwalior and others, 2002(2)
MPHT 459. Accordingly, substantial question of
law is decided against the appellant. The appeal is
found to have no substance and the same is
hereby dismissed, however without order as to
costs. "
18. Hon'ble the Supreme Court in Devinder Singh (Supra), has
held at paragraph 17 as under:-
"17. The principles culled out from various
decisions of this Court are that even when the
statute has given finality to the orders of the
special tribunal, the Civil Court's jurisdiction can be
regarded as having been excluded if there is
adequate remedy to do what the Civil Court would
normally do in a suit. Section 26(1)(d) on the other
hand specifically excludes jurisdiction of the Civil
Court so far as matters which are required to be
settled, decided or dealt with by the Financial
Commissioner, the Commissioner, Collector or
prescribed Authority. The entitlement, choice of
land and the allotment are matters which are to be
dealt with specifically by the authorities under the
Act. Additionally, Section 18 provides a forum to
ventilate the grievances under the Act in respect of
several matters. This is a case of exclusion of the
remedy in certain contingencies. It is not a case
where the controversy cannot be resolved by the
forum provided under the Act. Further in case of
any grievance, the validity of the order could have
been questioned before the forum provided. That
has not been done and on the other hand, the suit
was filed after about nine years."
19. Learned counsel for the plaintiff would refer to the judgment
rendered by the Coordinate Bench of this Court in Government
of M.P. & others Vs. Ishwar Chandra 6, wherein it has been
held at paragraphs 16 & 17 as under:-
"16. The Full Bench finally answered the reference
by holding that a party aggrieved is entitled to
maintain civil suit to establish his title and held as
under:-
"17. We, therefore, hold that a Bhumiswami is
not bound to avail himself of the speedy
remedy provided in Section 250 of the Code.
It is open to him to take recourse to the
summary remedy under Section 250, or even
without it straightway bring a suit in the Civil
Court for declaration of his title and
possession. Even if there has been a decision
under Section 250 by a revenue Court, the
party aggrieved may institute a civil suit to
establish his title to the disputed land. We
further hold that Nathu v. Dilbande Hussain,
AIR 1967 M. P. 14 = 1964 Jab LJ 707 was
correctly decided. The Civil Court can take
cognizance of a suit. This is our answer to the
questions referred to us."
17. Thereafter, the Supreme Court in the matter of
Rohini Prasad and others v. Kasturchand and
another5 noticed the Full Bench decision of
Madhya Pradesh High Court with approval in 5
(2000) 3 SCC 668 S.A.No.72/2005 Ramgopal
(supra) and held that the civil suit for possession
based on title is triable by the Civil Court and held
as under:-
"8. ......... In three different appeals coming to
the Madhya Pradesh High Court, Hon'ble
Judges sitting singly have consistently held
that the civil suit of possession based on title
is triable by the Civil Court. That being the law
laid by the High Court of Madhya Pradesh
while interpreting the code which applies to
the State of Madhya Pradesh and having held
the field for all these years, it is not desirable
for the Supreme Court to give a different
interpretation and to upset the settled law.
Merely because a different view is possible
and that on that ground the decision of the
High Court is erroneous, in our view, should
not be a ground to interfere. Law should be
certain and parties should know where they
stand." "
20. Now coming the facts of the case, considering the pleadings
6 2016 (4) CGLJ 512
made by the plaintiff in the plaint, counter claim filed by the
defendant wherein, the defendant has also claimed that the
plaintiff be kindly restrained from interfering in the land bearing
Khasra No. 16/1 which is in possession and owned by her, thus,
defendant is claiming title and possession of the suit property
bearing Khasra No. 16/1, which according to the plaintiff, it is
16/2. Thus, it is not merely correction of map but status of suit
property, as such, it is purely title dispute between the parties,
therefore, law has been well settled by the Hon'ble High Court
as well as by Hon'ble the Supreme Court that the title dispute
can be resolved through civil suit only and the revenue
records/orders are incidental. As such, the finding recorded by
the learned First Appellate Court that the suit is maintainable, is
legal and justified and does not warrant any interference by this
Court. Even otherwise, law has been well settled by Hon'ble the
Supreme Court in case of considering the application under
Order 7 Rule 11 of the C.P.C. The pleading made in the plaint
has to be examined by learned trial Court and not the defence
taken by the defendant. The learned trial Court while considering
the application under Order 7 Rule 11 of C.P.C. has examined
the defence taken by the defendant, which is not permissible
and against the judgment rendered by Hon'ble the Supreme
Court in Shakti Bhog Food Industries Ltd. Vs. The Centra
Bank of India & another7, wherein it has been held as under:-
"19. In Sopan Sukhdeo Sable v. Asstt. Charity
Commr. [(2004) 3 SCC 137] this Court held thus:
(SCC pp. 146-47, para 15)
"15. There be compartmentalisation,
dissection, segregation and inversions of the
language of various paragraphs in the plaint. If
such a course is adopted it would run counter
to the cardinal canon of interpretation
according to which a pleading has to be read
as a whole to ascertain its true import. It is not
permissible to cull out a sentence or a
passage and to read it out of the context in
isolation. Although it is the substance and not
merely the form that has to be looked into, the
7 (2020) 17 SCC 260
pleading has to be construed as it stands
without addition or subtraction or words or
change of its apparent grammatical sense.
The intention of the party concerned is to be
gathered primarily from the tenor and terms of
his pleadings taken as a whole. At the same
time it should be borne in mind that no
pedantic approach should be adopted to
defeat justice on hair-splitting technicalities."
20. For our purpose, Clause (d) is relevant. It
makes it clear that if the plaint does not contain
necessary averments relating to limitation, the
same is liable to be rejected. For the said purpose,
it is the duty of the person who files such an
application to satisfy the court that the plaint does
not disclose how the same is in time. In order to
answer the said question, it is incumbent on the
part of the court to verify the entire plaint. Order 7
Rule 12 mandates where a plaint is rejected, the
court has to record the order to that effect with the
reasons for such order." On the same lines, this
Court in Church of Christ Charitable Trust &
Educational Charitable Society vs. Ponniamman
Educational Trust3, observed as follows: "10 ... It is
clear from the above that where the plaint does not
disclose a cause of action, the relief claimed is
undervalued and not corrected within the time
allowed by the court, insufficiently stamped and not
rectified within the time fixed by the court, barred by
any law, failed to enclose the required copies and
the plaintiff fails to comply with the provisions of
Rule 9, the court has no other option except to
reject the same. A reading of the above provision
also makes it clear that power under Order 7 Rule
11 of the Code can be exercised at any stage of the
suit either before registering the plaint or after the
issuance of summons to the defendants or at any
time before the conclusion of the trial.
11. This position was explained by this Court in
Saleem Bhai vs. State of Maharashtra, (2003) 1
SCC 557, in which, while considering Order 7 Rule
11 of the Code, it was held as under: (SCC p. 560,
para 9) "9. A perusal of Order 7 Rule 11 CPC
makes it clear that the relevant facts which need to
be looked into for deciding an application
thereunder are the 3 (2012) 8 SCC 706 averments
in the plaint. The trial court can exercise the power
under Order 7 Rule 11 CPC at any stage of the suit
-- before registering the plaint or after issuing
summons to the defendant at any time before the
conclusion of the trial. For the purposes of deciding
an application under clauses (a) and (d) of Rule 11
of Order 7 CPC, the averments in the plaint are
germane; the pleas taken by the defendant in the
written statement would be wholly irrelevant at that
stage, therefore, a direction to file the written
statement without deciding the application under
Order 7 Rule 11 CPC cannot but be procedural
irregularity touching the exercise of jurisdiction by
the trial court." It is clear that in order to consider
Order 7 Rule 11, the court has to look into the
averments in the plaint and the same can be
exercised by the trial court at any stage of the suit.
It is also clear that the averments in the written
statement are immaterial and it is the duty of the
Court to scrutinize the averments/pleas in the plaint.
In other words, what needs to be looked into in
deciding such an application are the averments in
the plaint. At that stage, the pleas taken by the
defendant in the written statement are wholly
irrelevant and the matter is to be decided only on
the plaint averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh
Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd.
vs. Vessel M.V. Fortune Express, (2006) 3 SCC
100."
21. Upon perusal of entire material on record, there is no substantial
question of law requiring to be formulated for hearing of this
second appeal. Learned First Appellate Court has correctly
analysed the facts for determining the correctness of order
passed under Order 7 Rule 11 of the C.P.C., which is neither
perverse nor contrary to the record. As such also no question of
law requires to be determined by this Court. The Hon'ble
Supreme Court in the case of C. Doddanarayana Reddy
(Dead) by Lrs. and others vs. C. Jayarama Reddy (dead) by
Lrs. & others8, has held at paragraph 28 as under:-
"28. Recently in another judgment reported as State
of Rajasthan v.Shiv Dayal, it was held that a concur-
rent finding of the fact is binding, unless it is pointed
out that it was recorded de hors the pleadings or it
was based on no evidence or based on misreading
of the material on records and documents. The
Court held as under:
"When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point out
that it is bad in law because it was recorded de hors
8 2020 (4) SCC 659
the pleadings or it was based on no evidence or it
was based on misreading of material documentary
evidence or it was recorded against any provision of
law and lastly, the decision is one which no Judge
acting judicially could reasonably have reached.
(see observation made by learned Judge Vivian
Bose,J. as His Lordship then was a Judge of the
Nagpur High Court in Rajeshwar Vishwanath
Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar
& Ors., AIR 1943 Nagpur 117 Para43)."
22. This Court cannot proceed to hear a second appeal without there
being any substantial question of law involved in the appeal.
Existence of substantial question of law is the sine-qua-non for
the exercise of the jurisdiction under the amended Section 100
of the Code. Learned counsel appearing for the appellant failed
to point out any substantial question of law which may arise for
determination in the case.
23. In view of above, since no substantial question of law arises for
determination in the instant case, this is not a fit case for
admission. Consequently, the appeal is dismissed at admission
stage itself under the provisions of Order 41 Rule 11 read with
Order 42 Rule 1 of CPC.
24. Before parting with this case, it is directed that the suit was filed
before the learned trial Court in the year 2007 and is pending for
final adjudication, therefore, it is directed that the learned trial
Court will make an endeavor to complete the trial within one and
half year from the date of first appearance of the parties before
the trial Court. The parties are directed to appear before the trial
Court on 12th July, 2022.
25. No order as to costs.
26. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
