Narpatsang @ Narpatsinh ... vs Man Industries India Ltd
2023 Latest Caselaw 684 Guj

    C/FA/7/2012                                       CAV JUDGMENT DATED: 25/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 7 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1 Whether Reporters of Local Papers may be allowed to see the Yes judgment ?

2     To be referred to the Reporter or not ?                                   Yes

3     Whether their Lordships wish to see the fair copy of the                  No
      judgment ?

4     Whether this case involves a substantial question of law as to            No

the interpretation of the Constitution of India or any order made thereunder ?

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NARPATSANG @ NARPATSINH TAKHATSINH JADEJA & 3 other(s) Versus MAN INDUSTRIES INDIA LTD & 11 other(s)

========================================================== Appearance:

MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1,2,3,4 for the Defendant(s) No. 4.1,4.2,4.3,4.4 ADVOCATE NOTICE SERVED for the Defendant(s) No. 6.1,7.1,7.2 DECEASED LITIGANT for the Defendant(s) No. 4,7

RULE SERVED for the Defendant(s) No. 10,11,12,2,3,6,9 UNSERVED EXPIRED (N) for the Defendant(s) No. 5

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C/FA/7/2012 CAV JUDGMENT DATED: 25/01/2023

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date :25/01/2023

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

This First Appeal is directed against judgment and decree dated 3.12.2008 passed by learned Additional Senior Civil Judge, Anjar, Kachchh, whereby the court below granted application Exhibit 58 filed by defendant Nos.8, 9 and 10 under Order VII Rule 11 of the Code of Civil Procedure, 1908, consequentially rejected the claim.

2. The Special Civil Suit No.16 of 2008 was instituted by five plaintiffs for the relief of permanent injunction and declaration, further to get cancelled the registered deeds. The subject matter of the suit was land bearing survey No.503/1 ad measuring 11 acres and 5 gunthas and survey No.503/2 ad measuring 3 acres and 21 gunthas, situated at village Moti Khedoi Taluka Anjar, Kachchh, which bear old survey No.576 paiki.

2.1 It was the case of the plaintiffs that as per the old record, in Sud book, one Takhatsang Bhupatsang Jadeja was shown as owner whereas one Pataji Becharji was named as agriculturists. The plaintiffs averred that plaintiff No.1 was heir of said one Takhatsang Jadeja whereas plaintiff Nos.2 to 5 were the heirs of Isharji Bhupatsang Jadeja.

3. The prayers sought for in the suit were as under,

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(i) To permanently injunct defendant No.1- Company or its agent and servants from transferring, mortgaging etc. or doing any act including handing over the possession of the suit land to anybody.

(ii) To direct defendant Nos.10 and 11- the Mamlatdar and the Talati to mutate the entry and certify the same of three brothers named Takhatsang Bhupatsang Jadeja and Isharji Bhupatsang Jadeja declaring that they all have equal share in the suit property in view of Sud book of the land and the document of Fargati (the document dividing the shares).

(iii) To direct defendant No.1 to hand over to the plaintiffs the vacant and peaceful possession of the land.

(iv) To restrain the defendant No.1 and its agents and servants from utilizing in any manner either for industrial purpose or for placing the pipes etc. thereon till the final disposal of the suit.

(v) To declare as illegal and invalid the redemption of the mortgage deed dated 23.11.2004 got executed by defendant No.4, from defendant Nos.4 to 7 as well as the consequential mutation entry No.2340 entered in the revenue record.

(vi) To declare as illegal registered sale deed dated 19.5.2007 executed by defendant No.4 and Power of Attornies defendant Nos.2 and 3 and consequential kachha entry No.2798 made in the revenue record on 28.5.2007.

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(vii) To declare as illegal that the promulgation entry No.329 dated 15.2.1970 and succession entry No.2240 made by defendant Nos.8 and 9 authorities. It was further prayed to substitute the same by making promulgation entry in the name of Takhatsang Bhupatsang and to direct the respondent Nos.8 and 9 authorities accordingly.

(viii) To permanently restrain defendant Nos.8 to 11 authorities from granting non-agricultural permission in respect of land survey No.503/1 and further to permanently restrain the said defendants from making any non-agricultural entry for both the suit lands.

(ix) To declare that defendant No.4 alone has no right or authority to sell, mortgage or redeem the mortgage or to execute the Power of Attorney, nor she alone has got ownership or possessory rights in respect of and over both the lands.

(x) To declare in favor of the plaintiff against defendant No.4 in particular that in respect of both the suit lands Takhatsang Bhupatsang and his two brothers had joint ownership and possession.

3.1 The plaintiffs averred in the plaint that since first promulgation in the year 1960, the land was in the name of one Takhatsang Bhupatsang Jadeja, that on particular in the Kachchhi Samvat Year 2002, a writing was executed amongst said Takhatsang and his two brother Ratansang and Isharji to avail them equal shares in the land, and therefore the plaintiffs has shares accordingly in capacity of heirs. The name of the

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agriculture field in question was 'doniyo' which was mentioned in the records of the erstwhile ruler in which also Takhatsang was shown as occupant and Pataji Becharji and Jashubha Takhatsang was shown as agricultural, however the name of Jashubha was wrongly stated as Takhatsang has no son named Jashubha. Plaintiff No.1 Narpatsang Takhatsang has right in the land, it was stated.

3.1.1 It was averred that therefore the name of said Jashubha was entered wrongly in Form No.8A and in other revenue records, whereas name of Narpatsang was required to be mentioned who was the heir of the Takhatsang. Referring to the document of division of shares, it was averred that all the plaintiffs have share in the property. It was further stated that in view of the said error, at the time of new promulgation entry on 15.2.1970, name of one Jadeja Manubha was wrongly entered in revenue entry No.329, therefore the said entry No.329 was liable to be cancelled. It was under Inam Abolition Act, also the wrong name was required to be corrected. The succession entry No.2240 was also liable to be cancelled.

3.1.2 It was the further case that subsequently the registered document of redemption mortgage executed in favor of defendant No.4 on 23.11.2004 by defendant Nos.5 to 7 was also invalid and liable to be cancelled inasmuch as defendant No.4 Hasuba had never mortgaged the land and even otherwise she had no right to mortgage the land. It was claimed that Hasuba was wife of Jashubha and that the false case was put up. The said document and the consequential entry No.2340 was liable to be cancelled.

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3.1.3 It was averred that defendants had created documents so as to wrongly claim their share in the property, even as defendant No.4 had no right to sell the entire property. It was stated that through advocate, the copies of the documents were obtained. As far as the cause of action is concerned, it was stated that the cause of action had arisen when the defendant No.9 and subordinate authorities made promulgation entry No.329 on 23.11.2004 and since redemption deed No.6162 was executed and when by filing First Information Report against the plaintiffs, the defendants took away the possession of the property.

3.2 In the said suit, defendant Nos.8 to 10 filed application Exhibit 58 under Order VII Rule 11, CPC to pray that the plaint was liable to be rejected as the Civil Court did not have the jurisdiction to try the suit of such nature. It was contended that the plaintiff had substantially challenge the entry in village Form No.6 and record of right entry No.329 which was made when the promulgation took place under the provisions of Bombay Land Revenue Code. The promulgation of entry, it was contended, was after publishing the same at village place and upon beating up drums and inviting objections. It was contended that when entry was certified on 15.2.1970, Jadeja Manubha was declared as occupant of the land under Section 7 of Bombay Inams (Kutch Area) Abolition Act, 1958. It was further stated in application 58 that other entry Nos.2340, 2798 and 2240 were also certified which were sought to be set aside in the prayers of the suit.

3.2.1 The defendants relied on Section 203 of the Bombay

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Land Revenue Code, 1879, it provided for appeal to lie from any order passed by revenue officer or the superior also relied on Section 11 of the Bombay Revenue Jurisdiction Act, 1876. It provides that suit shall not be entertained unless the plaintiff has exhausted right to appeal. It was contended on the basis of the above provisions that they limit the jurisdiction of the civil courts in the matters relating to the land revenue. It was contended that the plaintiffs had not preferred any appeals and did not exhaust his right of appeal. It was contended that provision of Section 203 of Land Revenue Code and Section 11 of the Bombay Revenue Jurisdiction Act would apply, the suit was premature and the plaint was liable to be rejected on such grounds under Order VII Rule 11 (d), CPC.

3.3 The plaintiff filed written statement cum reply to the said Exhibit 58 application raising various contentions.

3.4 The court below took view that the plaintiff was required to prefer appeal against the revenue entry made in the year 1970 and had not challenged the same under Section 11 of the Act since the said challenge was not pursued, the civil court had no right to try such type of dispute which was barred by law before the civil court. The court below held that when the revenue entry was not challenged before the higher authority, the suit was not competent before the civil court for the prayers it made. Resultantly, the impugned order was passed rejecting the plaint.

4. Heard learned advocate Mr.Kirtidev Dave for the appellant, learned Assistant Government Pleader Ms.Nidhi Vyas for the respondent Nos.8 to 10 and learned advocate

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Mr.B.Y.Mankad for the private respondents.

5. It is on the basis of provisions of Section 203 of the Land Revenue Code as well as with reference to Section 11 of the Bombay Revenue Jurisdiction Act, that the plea under Order VII Rule 11 (d), CPC is based to contend that the civil court has not jurisdiction to try the suit. In order to appreciate this contention, at the outset, the provisions of Section 203 and Section 11 respectively may be noticed.

5.1 Section 203 of the Bombay Land Revenue Code reads as under, "Appeal to lie from any order passed by a revenue officer to his superior. - In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not."

5.1.1 Thus, the provision contemplates appeal to lie to the Superior Officer from any order passed by Revenue Officer. The Section is sought to be pressed into service to contend that the remedy of appeal was not exhausted by the plaintiff, therefore the direct institution of the suit was not permissible and the civil court had not jurisdiction.

5.2 In the same way Section 11 of the Bombay Revenue Jurisdiction Act is as under,

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11. Suits not to be entertained unless plaintiff has exhausted right of appeal.--

No Civil Court shall entertain any suit against the [Government] on account of any act or omission of any Revenue- officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present."

5.2.1 The above Section is also on similar lines to provide that unless the right to appeal is exhausted, the civil court shall not entertain the suit. However, here it could be immediately noticed that the embargo contemplated in respect of entertaining the suit by the civil court is with regard to the suit against the Government. It could be therefore said that where the only prayer in the suit is against the Government or revenue authorities then in such cases the question of operation of Section arise.

5.3 The Supreme Court in Sakalchand Jaychandbhai Patel Vs. Vitthalbhai Jaychandbhai Patel [(1997) 2 SCC 1041], held that bar of civil court's jurisdiction under Section 11 of the Bombay Revenue Jurisdiction Act applies only to suit against Government. It was held that the suit between the private parties regarding inter se claim was maintainable. The decision of this court in Rukmanibai Vs. State of Gujarar [1960 GLR 179] was held to be not correct law and the Apex Court stated that the Section 11 would not apply to such suits.

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5.3.1 The similar contention was negatived,

"The primary question raised by Mr.Yashank Adharyu, learned counsel for the appellant, is that Section 11 is a bar on entertaining the suit. The High Court, therefore, was not right in restraining the appellant form alienating the property without deciding jurisdictional issue i.e. whether the suit itself is maintainable. In support thereof, he placed strong reliance on a judgment of a single judge of the Gujarat High Court in Rukmanibai vs. The state of Gujarat [(1960) 1 GLR 1791. The question, therefore is:

whether Sections 11 is a bar for maintainability of the suit? It is sen that the bar of Section 37 of the Bombay Land Revenue Code would be only as against the lands vesting in or belonging to the State. Therefore, it has no relevance to the inter se claims of the private parties. The High Court, therefore was not right in relying on Section 37." (para 4)

5.3.2 Upon reproducing Section 11 and noticing its language, it was in term stated by the Supreme Court that embargo would operate in respect of entertaining any suit against Government only.

"A reading of the section would clearly indicate that there is a prohibition on the Civil Court to entertain any suit against the Government. on account of any act or omission of any Revenue Officer, unless the plaintiff first process that he previously brought it by way of an appeal before the competent authority and within the time prescribed. Without availing of that remedy, he cannot present the suit against the State. The question is: whether Section 11 applies to the inter se claim of the private parties ? It would be seen that learned single judge has construed Section 11 of the Bombay Revenue Jurisdiction Act, and concluded that Section 11 prohibits entertainment of the suit between

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private parties unless the plaintiff has exhausted right of appeal or revision prescribed therein and available to him before he resorts to the suit challenging the order passed by the Revenue officer. A reading of Section 11 does not indicate any prohibition on private parties inter se to avail of the remedy of a suit provided under the Code of Civil Procedure, 1908 [CPC]. Section 9 of CPC.

does not expressly or by necessary implication, prohibits the jurisdiction of the civil Court to entertain the based on title."

(para 6)

5.4 Section 9 of the Code of Civil Procedure deals with the civil court's jurisdiction. It says that unless barred expressly, all suits of civil nature shall be tried by the civil court. It is well settled principle that the civil court's jurisdiction cannot be readily ousted unless the ouster is expressly provided. The jurisdiction of the civil court under Section 9 of the CPC, extents to whole range of disputes which are of civil nature.

5.5 Adverting to the prayers in the suit, they are in the nature of seeking declaration and permanent injunction, what is prayed by the plaintiff is to permanently restrain the private respondents from transferring, mortgaging the suit lands. This prayer is addressed to the private defendants and are claimable against such defendants. The other prayer is to declare that in the suit lands, three brother have equal share. This limb of the prayer represents private dispute between the parties. The declaration prayed for is of civil nature.

5.5.1 Also the attendant prayer is made to handover the

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possession of the property to the plaintiffs. The prayer is made against user of the property by the defendants. The plaintiffs seek to declare as illegal the deed of redemption of mortgage. They have further prayed to declare the registered sale deed to be invalid. This all are the prayers representing subject matter dispute to be necessarily of civil kind and nature. The prayer regarding declaration that defendant No.4 alone has no right to sell, mortgage or execute Power of Attorney is also of civil character and sought against the private defendant.

5.5.2 The prayer to set aside the promulgation entry No.329 and succession entries sought to be set aside is the only prayer against the Government. Even if this prayer is to be granted and suit qua that prayer could be said to be affected by the aforesaid provisions of Section 203 and Section 11 of the Code and the Bombay Land Revenue Jurisdiction respectively, the other suit prayers could be segregated. The suit remains unaffected in respect of those prayers and the aforesaid provisions would have no application enable the contention that civil court jurisdiction is barred. It is trite principle that amongst several prayers in the suit, if for single prayer the suit is maintainable, the plaint cannot be rejected. The suit shall stand for that prayers to be maintainable before the civil court.

5.6 In Kalipindi Appala Narsamma Vs. Old Nageshwara Rao [(2008) 10 SCC 107], the Apex Court considered the provisions of Section 9, CPC vis-a-vis, Section 16 of Andra Pradesh Tenancy Act, 1956. The question was whether Section 16 of the Andra Act would ousted the jurisdiction of civil court

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where the suit instituted in the civil court was for recovery of possession and declaration of title. The High Court set aside the judgment on the question of maintainability, however, the Supreme Court remitted the case to High Court holding thus,

"... the suit jointly filed by the appellant and Bhavaraju Nagamani was, in effect and substance, for declaration of title and recovery of possession and the same was maintainable before the civil court and merely because for grant of ancillary relief claimed by the plaintiffs, including the relief of recovery of possession, the Special Officer could have been moved, the civil court's jurisdiction cannot be treated to have been ousted and the High Court committed an error in dismissing the suit on the ground that civil court did not have jurisdiction to entertain the suit. " (para 7)

6. Coming to the instant suit and the prayer made therein, as highlighted above the prayers in the suit are of civil nature representing inter se civil dispute between the private parties. The declaration is sought regarding defendant not having right to deal with the property. Declaration is sought for regarding the plaintiffs' possessing the share in the property. Relief for possession is prayed for against the private respondents.

6.1 The only prayer about the setting aside the mutation entry is focused to contend that the suit is not maintainable. Mutation entries are only for fiscal purpose and have nothing to do with the title or share related disputes between the parties, which are private civil disputes. Merely, because ancillary prayer is made which may be viewed as ousting the jurisdiction in some

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way of the civil court, for the rest of the prayers, the suit would stand maintainable and entertainable. The powers under Order VII Rule 11, CPC would only be misapplied in such case.

7. For the aforesaid reasons and discussion, impugned order dated 3.12.2008 below Exhibit 58 in Special Civil Suit No.16 of 2008, passed by learned Additional Senior Civil Judge, Anjar, Kachchh, is hereby set aside. The First Appeal is allowed. The suit shall proceed in accordance with law and shall be decided preferably within one year.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J) Manshi