Himachal Pradesh High Court
Shri Rajinder Kumar Sood vs The Decee Has Though Been Accepted ... on 4 October, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF OCTOBER 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL MISC. PETITION MAIN (ORIGINAL) No. 286 of 2018
Between:-
SHRI RAJINDER KUMAR SOOD
SON OF LATE SHRI SANT RAM,
RESIDENT OF AMAR NIWAS,
THE MALL, SHIMLA-171001. .....PETITIONER
(BY SH. NEERAJ GUPTA SENIOR ADVOCATE
WITH SH. AJEET JASWAL, ADVOCATE)
AND
SHRI OM PRAKASH SOOD
SON OF LATE SHRI SANT RAM,
RESIDENT OF 17, RAELANE,
NORTHWALK,CT 06850 USA.
AT PRESENT RESIDENT OF
VILLAGE AND P.O. MATIANA,
TEHSIL THEOG,
DISTRICT SHIMLA (HP). .....RESPONDENT
(BY SMT. DEVYANI SHARMA, ADVOCATE)
WHETHER APPROVED FOR REPORTING? YES.
_______________________________________________________
This petition coming on for admission this day, the
Court passed the following:
ORDER
An application moved by defendant for rejection of
the plaint under Order 7 Rule 11 of Code of Civil Procedure was
dismissed by the learned trial court. This order has been
assailed by the defendant in the present petition.
.
Parties to the litigation are real brothers, sons of late
Shri Sant Ram. The status of the parties hereinafter has been
referred to as it was before the learned trial court.
2. Facts
Plaint
2(a) to
a civil suit was filed by the respondent/plaintiff for-
i) declaration to the effect that the order dated 13.7.2012
passed by the Assistant Collector IInd Grade, Theog, District
Shimla was illegal, null and void; ii) for permanent prohibitory
injunction to restrain the petitioner/defendant from alienating
transferring, encumbering, changing the nature of the suit
property; and iii) for recovery of Rs. 2,00,000/- as damages on
account of mental harassment.
2(b) The suit was in relation to property comprised in
Khata No. 85/78, Khatauni No. 202/197, Khsra No. 1000, 1001,
1002, 1003, 1004 1005 and 1028 total measuring 02-04-41
Hect. situated in Up Mohal Kalinda, Tehsil Theog, District
Shimla. It was pleaded that:-
2(b)(i) The suit property was initially owned by late Shri
Sant Ram who had six daughters and three sons. The plaintiff
.
and defendant had 1/9th share in the suit property. The
possession of the suit property was with three sons of late Shri
Sant Ram i.e. plaintiff, defendant and Shri Rajneesh Sood. Shri
Rajneesh Sood, brother of the parties died during the year
1993.
2(b)(ii) to
Plaintiff shifted to USA in the year 1972. He kept
coming to India to maintain and look after his share in the
ancestral property. He filed a civil suit No. 67-S/1 of 95/93
against the defendant titled Om Prakash vs. Rajinder Kumar
Sood for partition and rendition of accounts. The suit was partly
decreed by the learned District Judge, Shimla on 16.9.2000.
The decee has though been accepted by the defendant,
however, the plaintiff has preferred an appeal against it before
this Court. The appeal bearing RFA No. 365/2000 is as yet
pending adjudication in this Court. In CMP No. 487/2000 filed
in this Regular First Appeal, vide order dated 3.1.2001 the
parties including the defendant were restrained from selling,
transferring or encumbering the properties in dispute. The
order dated 3.1.2001 was modified vide order dated 5.3.2002 to
the extent that any transfer or alienation of the subject matter of
dispute by any of the parties was made subject to final decision
.
of the appeal and further that the parties will not create any
equity in favour of third party. This order is still in force. Suit
property involved in the present suit is part and parcel of the
properties involved in Civil Suit No. 67-S/1 of 95/93.
2(b)(iii)
During pendency of RFA No. 365 of 2000, the
defendant moved an application before Assistant Collector IInd
Grade ( in short A. C. IInd Gade), Theog under Section 37 of
the H.P. Land Revenue Act, 1953 (hereinafter 'Act') for
correction of entries of possession in the revenue record with
respect to the suit property. The A.C. IInd Grade allowed the
application vide order dated 13.7.2012. On the basis of this
order, mutation No. 15 was attested on 11.9.2012. The order
dated 13.7.2012 is to be declared void and illegal for the
reasons that:-
a) Defendant in his application for correction of
revenue entries moved before the A.C. IInd Grade had
suppressed the orders passed by the High Court in RFA No.
365/2000.
b) Defendant in a fraudulent manner mentioned wrong
address of the plaintiff in his application under Section 37 of the
.
Act with a view to obtain order behind the back of the plaintiff.
c) Defendant impleaded Shri Rajneesh Sood (brother
of parties) in the application by his nickname 'Kuka' despite
being aware that Shri Rajneesh Sood had died during the year
1993.
d) to
The plaintiff was not served in the application
moved by the defendant under Section 37 of the Act.
2(b)(iv) The order passed by the A.C. IInd Grade on
13.7.2012 came to the knowledge of plaintiff in July 2014. The
defendant was trying to lease out and encumber the suit
property to third party not only in violation of the orders passed
by the High Court in RFA No. 365 of 2000 but also causing
detriment to the rights, title and interest of the plaintiff.
2(c) With the above averments, the suit was filed for the
following prayers:-
"(a) Declaration be given in favour of the plaintiff and against the
defendant to the effect that the order dated 13.7.2012 in
Case No. 2/2012 titled as Sh. Rajinder Kumar Vs. Sh. Om
Prakash & Other passed by Ltd. Assistant Collector, IInd
Grade Theog, Shimla is illegal, null and void and not binding
on the rights, title and interest of the plaintiff and
consequently mutation No. 15 dated 11.9.2012 entered on
the basis of said order is factually incorrect, illegal, null and
.
void and not binding upon the rights, title and interest of the
plaintiff in any manner whatsoever and same is a result of
fraud and deception.
(b) Decree for permanent prohibitory injunction be also passed
in favour of the plaintiff and against the defendant thereby
restraining the defendant from alienating, transferring,
encumbering, changing the nature of the property or
creating any third party interest in any manner whatsoever in
the property comprised in Khata No. 85/78, Khatauni No.
202/197, Khasra No. 1000, 1001, 1002, 1003, 1004, 1005
and 1028 total measuring 02-04-41 Hct. Up Mohal Kalinda,
Tehsil Theog, District Shimla.
(c) Decree for recovery of Rs. 2,00,000/- (Rs. Two lakhs only)
as damages for mental harassment and agony suffered by
the plaintiff as also expenditure incurred by the plaintiff in
coming from USA to India for the purposes of taking
remedial measures illegal and unlawful acts of the
defendants and protecting his rights and interest"
2(d) Written statement
Present petitioner took following defence in his
written statement:-
2(d)(i) Civil Suit No. 67-S/1 of 95/93 filed by the plaintiff
was for partition and rendition of accounts of the entire property
co-owned by the parties. The entire estate involved in that suit
was initially owned by the parents of the parties i.e. late Shri
Sant Ram and Smt. Shakuntla Devi. The three brothers
including the present parties were owners to the extent of 1/3rd
share each in the entire suit land-the subject matter of civil Suit
.
No. 67-S/1 of 95/93. The shares of the three brothers were
separated by their mother Smt. Shakuntla Devi during her life
time. Subsequent thereto, the plaintiff, defendant and the third
brother late Shri Rajneesh Sood had been managing their
respective shares. Possession of the suit property involved in
the instant suit i.e. Kharsra Nos. 1000-1005 was given to the
defendant who had raised an apple orchard thereupon and had
been managing the same independently. In the civil suit No.
67-S/1 of 1995/93, the plaintiff had challenged the authenticity,
validity and legality of the Will dated 26.3.1974 executed by Shri
Sant Ram and the Will dated 10.2.1975 executed by Smt
Shakuntla Devi. The suit was partly decreed by the learned
District Judge, Shimla on 16.9.2000. The suit property involved
in the present lis, is one of the many properties involved in the
aforesaid Wills and subject matter of civil suit No. 67-S/1 of
1995/93.
2(d)(ii) The judgment and decree passed by learned District
Judge on 16.9.2000 in civil suit No. 67-S/1 of 1995/93 has been
challenged by the plaintiff in RFA No. 365/2000. This appeal is
pending adjudication. Pursuant to the interim orders passed
therein, the parties have been restrained from alienating or
.
creating third party rights over the entire joint property including
the present suit property. Injunction, therefore, has already
been granted with respect to suit property. Matter in issue in
the present suit was also directly and substantially in issue in
RFA No. 365/2000.
r to
civil suit No. 67-S/1 of 1995/93. It is now pending adjudication in
2(d)(iii) The defendant moved an application under Section
37 of the Act before the A.C. IInd Grade for correcting the
revenue record pleading therein that the plaintiff was wrongly
shown to be in joint possession of the suit property whereas suit
property was in exclusive possession of the defendant on the
spot. The application was proceeded in accordance with law. It
was allowed on 13.7.2012. The existing revenue entries in
respect of possession over the suit property were ordered to be
corrected and changed in favour of the applicant/defendant.
Plaintiff is not entitled to take the plea of alleged wrong
impleadment of third brother late Shri Rajneesh Sood.
Defendant denied that there was infraction of any procedure or
law in passing the order dated 13.7.2012 and stated that order
dated 13.7.2012 was passed after following due process of law.
The plaintiff was aware of the order. The order dated 13.7.2012
.
was appealable. Plaintiff had already taken legal recourse
against this order by filing an appeal under Section 14 of the
Act. The fact that the plaintiff had already availed the statutory
remedy available to him against the order dated 13.7.2012 was
not disclosed by him in the plaint. Plaintiff cannot simultaneous
avail two remedies against a single order.
2(d)(iv) Section 171 of the Act expressly bars the
jurisdiction of the civil court in matters within the jurisdiction of
the revenue officers. Correction of revenue entry in record of
rights, in accordance with law, was within the domain of the
revenue officer. Statutory remedy was available to the plaintiff
against the order dated 13.7.2012. The statutory remedy was
availed by the petitioner. The civil suit filed by plaintiff cannot
proceed in view of bar of jurisdiction created by Section 171 of
the Act.
2(d)(v) It was denied that the procedure contemplated in
law was not followed by Assistant Collector IInd Grade in
deciding the application moved by the defendant under Section
37 of the Act. The Kanungo was directed to submit his report.
The Kanungo visited the spot, recorded the statements and
submitted in his report that the defendant was in exclusive
.
possession over the suit property. After complying the
procedure in law, the order was passed by A.C. IInd Grade on
13.7.2012 for changing the existing revenue entries in respect
of possession over the suit land in favour of the
defendant/applicant. The other contentions raised by the
plaintiff were also denied in the written statement.
2(e) Application under Order 7 Rule 11 CPC
2(e)(i) Alongwith the written statement, the defendant
moved an application under Order 7 Rule 11 CPC for rejection
of the plaint. The defendant submitted that plaintiff had sought
declaration in the suit with respect to the order dated 13.7.2012.
This order was passed by the Assistant Collector IInd Grade,
Theog under Section 37 of H.P. Land Revenue Act. In terms of
the order the exiting revenue entries of possession over the
suit property were changed in favour of defendant. Section 14
of the Act provides remedy of filing an appeal against the order
dated 13.7.2012. The plaintiff, at the time of filing the civil suit
had simultaneously availed the statutory remedy by challenging
the order dated 13.7.2012 before the Collector, Shimla. He
cannot simultaneously avail two remedies in respect of single
cause of action against same order of 13.7.2012. Invoking
.
Section 171 of the Act, bar of jurisdiction of civil court against
the order dated 13.7.2012 was also pleaded. On the basis of
these averments, it was prayed that the plaint deserved to be
rejected.
2(e)(ii)
Opposing the application, the plaintiff submitted in
his reply that the plaint was not hit by Section 171 of H.P. Land
Revenue Act as the civil suit filed by the plaintiff was for
declaration with consequential reliefs of permanent prohibitory
injunction and damages. That the plaintiff had raised intricate
question of title in the civil suit. Determination of such question
was within the sole domain of the civil court. The question
raised in the plaint could not be answered by the revenue court.
The order dated 13.7.2012 was passed behind the back of the
plaintiff and on the basis of this illegal order, the mutation was
attested on 11.9.2012. Under the garb of order dated
13.7.2012, the defendant was usurping the apple crop from the
suit property and was trying to dispossess the plaintiff. It was
admitted that plaintiff had filed an appeal before the Collector
under Section 14 of the Act against the order dated 13.7.2012
passed by Assistant Collector IInd Grade. However, it was
submitted that the appellate authority being the revenue court
.
could only adjudicate regarding the mutation entries and could
neither delve into question of title nor could restrain the
defendant from selling, alienating and encumbering the suit
property. That grant of such relief was only within the domain of
the civil court.
The possession and ownership rights of the
plaintiff can only be protected by the civil court and, therefore,
plaintiff was within his right to file the suit for the reliefs prayed
by him.
3. Order passed by trial Court
Learned trial Court after hearing the parties, vide
order dated 11.7.2018 dismissed the application moved by the
defendant under Order 7 Rule 11 CPC holding that question of
title involves complex issues of fact and law, which can be
referred by the revenue court for decision by the civil court.
That non-following of the statutory provisions or principle of
natural justice would invoke the jurisdiction of the civil court.
That in the instant case the revenue court had yet neither
ascertained the facts nor denied the relief to the plaintiff. The
trial court dismissed the application for the following reasons:-
"It is also significant to mention that the question
.
of title involves complex issues of fact and law for
which even a revenue Court can refer the matter
through parties to be decided by the civil court. But
non following of the statutory provisions or principle
of the natural justice makes the invoking the
jurisdiction of civil Court. However, the revenue
Court has yet not ascertained the truth of the fact
and not denied the relief to the plaintiff/non applicant.
The basic ground over which the challenge has been
made is that the order has been passed against
dead person and he has been proceeded against ex-
parte intentionally to defeat his right and interest. So
far as the non following of the statutory procedure or
not proceedings in accordance with the natural
justice is concerned it has yet not been concluded.
But the civil suit filed before this Court pertains to
declaration and injunction in which no evidence has
been led as yet. Without these being anything
prima-facie, this Court cannot conclude that it lack
express or implied jurisdiction to try the case."
Aggrieved against this order, the defendant has
moved the present petition under Article 227 of the Constitution
of India.
4. Contentions
Mr. Neeraj Gupta, learned Senior Counsel for the
petitioner/defendant painstakingly argued for rejection of the
plaint and reiterated the stand taken by the defendant in his
application under Order 7 Rule 11 CPC. Learned counsel in
.
support of his argument for rejecting the plaint under Order 7
Rule 11(d) CPC relied upon (2019) 3 SCC 692, titled Pyare Lal
vs. Shubhendra Pilania, minor through natural guardian
father Pradeep Kumar Pilania and (2020) 12 SCC 680, titled
Infrastructure.
r to
South Delhi Municipal Corporation versus Today Homes &
Mrs. Devyani Sharma, learned counsel for the
respondent/plaintiff vehemently defended the impugned order
and the stand taken by the plaintiff in reply to the application
moved under Order 7 Rule 11 CPC. In support of her
submissions, learned counsel relied upon AIR 1969 SC 78,
titled Dhulabhai etc. vs. State of Madhya Pradesh & another,
1992 (1) Sm. L.C. 320, titled Dalip Singh & others vs. State of
H.P. & others, (2003) 1 SCC 557, titled Saleem Bhai & others
vs. State of Maharashtra & others, (2005) 7 SCC 510, titled
Popat & Kotecha Property vs. State Bank of India Staff
Association, 2008 (1) Shim. L.C. 45, titled Jagannath vs. Om
Prakash, 2008 (2) Shim. L.C. 421, titled Smt. Bhekhalu Devi
vs. Smt. Ram Ditti & other, (2009) 4 SCC 299, titled
Rajasthan State Road Transport Corporation & another vs
Bal Mukind Bairwa, (2010) 8 SCC 329, titled Shalini Shyam
.
Shetty & another vs. Rajendra Shanka Patil, Latest HLJ
2002 (H.P.) 197, titled Roshan Lal vs. Krishan Dev and 2021
SCC Online 567, titled Ratul Mahanta vs. Nirmalendu Saha.
5. Observations
After hearing learned counsel for the parties at
length and on going through the record, I am of the considered
view that this petition deserves to be allowed for the following
reasons:-
5(i) The application was moved by the defendant for
rejection of the plaint in terms of Order 7 Rule 11 (d) of the
Code of Civil Procedure, which reads as under:
"11. Rejection of Plaint:- The plaint shall be rejected
in the following cases:-
(a) to (c)xxxxxxxxxxxx
(d) where the suit appears from the statement in
the plaint to be barred by any law."
The remedy under Order 7 Rule 11 CPC is an
independent and special remedy, wherein the Court is
empowered to summarily dismiss a suit at the threshold, without
proceeding to record evidence and conducting a trial on the
basis of evidence adduced, if it is satisfied that the action
should be terminated on any of the grounds contained in the
.
provision. A duty is cast on the court to determine whether the
plaint discloses a cause of action by scrutinizing the averments
in the plaint, read in conjunction with the documents relied upon
or whether the suit is bared by law. It is not permissible to cull
out a sentence or a passage and to read it in isolation. It is the
substance and not merely the form, which has to be looked into.
If on a meaningful reading of the plaint, it is found that suit is
manifestly vexatious and without any merit and does not
disclose a right to sue, the court would be justified in exercising
the power under Order 7 Rule 11 CPC [Refer (2020) 7 SCC
366, titled Dahiben vs. Arvind Bhai Kalyanji Bhanusali].
5(ii) The basic relief sought by the plaintiff in the plaint is
in respect of order dated 13.7.2012 passed by Assistant
Collector IInd Grade Theog, District Shimla. Under relief No. 1,
plaintiff has prayed for declaration that this order be declared
null, void and not binding on his rights over the suit property. In
terms of the order dated 13.7.2012, the Assistant Collector IInd
Grade had allowed an application moved by the defendant
under Section 37 of the Land Revenue Act. The defendant in
this application had prayed for correction in the existing revenue
entry, which showed the suit property to be jointly owned and
.
possessed by the three brothers i.e. the plaintiff, defendant and
Shri Rajneesh Sood. The case of the defendant before the
Assistant Collector IInd Grade was that the suit property was in
his exclusive possession, over which he had planted an apple
orchard. Therefore, revenue entry in respect of the possession
of the suit property should be changed in his favour.
r After
getting an inquirty conducted in this regard through Kanungo,
the Assistant Collector IInd Grade recorded in the order dated
13.7.2012 that it was the defendant who was in possession over
the suit property. The Assistant Collector IInd Grand by
resorting to the provisions of Section 37 of the Act allowed the
application moved by defendant and ordered change of the
revenue entry for reflecting defendant's possession over the suit
property. Chapter IV of the H.P. Land Revenue Act
encompassing sections 32 to 46 pertains to 'Records- of rights
and Periodical Records'. Sections 32-34 provide for preparation
of record of rights. Section 35 onwards lay down the procedure
for making the records. Section 37 provides for determination
of disputes in respect of any entry in a record or in a register of
mutations. It would be appropriate at this stage to take note of
the Section 37 of the Act, which reads as under:
.
37. Determination of dispute.- (1) If during the
making, revision or preparation of any record or in
the course of any enquiry under this Chapter, a
dispute arises as to any matter of which an entry is to
be made in a record or in a register of mutations, a
Revenue Officer may of his own motion or on the
application of any party interested, but subject to the
provisions of the next following section and after
such inquiry as he thinks fit, determine the entry to
be made as to that matter.
(2) If in any such dispute the Revenue Officer is
unable to satisfy himself as to which of the parties
thereto is in possession of any property to which the
dispute relates, he shall ascertain through the Gram
Panchayat constituted under the Himachal Pradesh
Panchayati Raj Act, 1994 (Act No. 4 of 1994) or any
other agency so prescribed by the Financial
Commissioner or by summary inquiry who is the
person best entitled to the property and shall by
order direct that, that person be put in possession
thereof, and that an entry in accordance with that
order, be made in the record or register.
(3) A direction of a Revenue Officer under sub-
section (2) shall be subject to any decree or order
which may be subsequently passed by any Court of
competent jurisdiction.
The order dated 13.7.2012 was passed by the A.C.
IInd Grade in exercise of powers under Section 37 of the Act. It
.
is not the case of the plaintiff that the A.C. IInd Grade had no
jurisdiction to pass the order dated 13.7.2012 for correction of
revenue entry.
5(iii) The order passed by Assistant Collector IInd Grade
on 13.7.2012 was appealable under Section 14 of the Act. This
remedy admittedly has been availed by the plaintiff. He has filed
an appeal against the order dated 13.7.2012 before the
Collector. Simultaneously, the plaintiff has filed present civil
suit for declaration that the order dated 13.7.2012 is illegal, void
and not binding upon his right, title and interest. On that basis,
he has also sought injunction against the defendant from
interfering over the suit property and for recovery of Rs.
2,00,000/- for damages.
5(iv) The grievance in the plaint is in respect of order
dated 13.7.2012. It has been contended that the A.C. IInd
Grade had embarked upon question of title regarding the suit
land in the order dated 13.7.2012. During hearing of the case,
with the consent of learned counsel for the parties, certain
documents produced by them viz order dated 13.7.2012 and
related proceedings, the judgment and decree dated 16.9.2000
were looked into. It is significant to notice that under order
.
dated 13.7.2012 the A.C. IInd Grade had not decided any title
dispute between the parties. He had only ordered to change
the existing revenue entry of possession over the suit land. The
assertion of the plaintiff that A.C. IInd Grade under the order
dated 13.7.2012 had decided question of title is not correct.
Neither any question of title was raised before the A.C. IInd
Grade nor he decided any question of title.
5(v) It was also contended for the plaintiff that plaint
involved intricate question of title which could not be determined
by the revenue court. That determination of such questions
was within the sole domain of civil court. However, examination
of plaint leads to the conclusion that it is only the order dated
13.7.2012 passed by the A.C. IInd Grade, which is challenged
in the plaint. Declaration sought is with respect to this order.
The plaint per se does not raise any question of title. Various
issues including question of title etc. raised by the plaintiff are
presently pending adjudication before this Court in another
litigation i.e. RFA No. 365 of 2000 filed by the plaintiff, arising
out of judgment and decree dated 16.9.2000 passed by learned
District Judge in civil suit No. 67-S/1 of 1995/93 instituted by the
plaintiff. The observations of learned trial court and contentions
.
advanced by the plaintiff that intricate question of title has been
raised in the plaint, which could be decided only by the civil
court are not borne out from the record.
5(vi) Learned Senior Counsel for the defendant raised an
objection that the civil suit filed by the plaintiff was barred in
terms of Section 171 of the Act, relevant part of which reads as
under:
"171. Exclusion of jurisdiction of Civil Courts in
matters within the jurisdiction of Revenue Officers.-
Except as otherwise provided by this Act-
(1) A Civil Court shall not have jurisdiction in any
matter which the State Government or a Revenue
Officer is empowered by this Act, to dispose of or
take cognizance of the manner in which the State
Government or any Revenue Officer exercises any
powers vested in it or him by or under this Act; and in
particular-
(2) a Civil Court shall not exercise jurisdiction over
any of the following matters, namely-
(i) to (v) xxxxxxxxxxx
(vi) the correction of any entry in a record-of-rights,
periodical record or register of mutations."
Section 9 of Code of Civil Procedure provides for
jurisdiction of the Civil Court as under:
"Section-9. Courts to try all civil suits unless
barred .- The Courts shall (subject to the provisions
.
herein contained) have jurisdiction to try all Suits of a
civil nature excepting suits of which their cognizance
is either expressly or impliedly barred.
Explanation I--A suit in which the right to property or
to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely
on the decision of questions as to religious rites or
ceremonies.
Explanation Il--For the purposes of this section, it is
immaterial whether or not any fees are attached to
the office referred to in Explanation I or whether or
not such office is attached to a particular place."
It was argued that record of rights are to be
maintained and entries are to be recorded in accordance with
law and procedure mandated under Chapter IV of the Act. The
disputes in relation to the record of right are to be determined
as per Section 37 of the Act. Section 171 of the Act expressly
bars the jurisdiction of civil court in matters of correction of
entries in record of rights or register of mutations. It was further
contended that the existing revenue entry showed the joint
owners including the plaintiff to be in possession over the suit
land. The entry was contrary to the spot position. It was only
the defendant, who was in possession of the suit land.
Therefore, defendant moved an application for correction of
revenue entry to show his exclusive possession over the suit
.
land. The application was moved under Section 37 of the H.P.
Land Revenue Act and was decided in his favour by A.C. IInd
Grade vide order dated 13.7.2012. Against such an order,
jurisdiction of civil court was barred in view of bar imposed by
Section 171 of the Act.
Learned
r to
counsel for the respondent/plaintiff
submitted that the plaintiff had alleged that while passing order
dated 13.7.2012, principles of natural justice were not adhered
to and mandatory provisions of law and procedure were not
complied with. In view of these assertions and the grounds
taken in the plaint, the civil court had the jurisdiction to entertain
and adjudicate the dispute raised in the plaint.
Hon'ble Apex Court in (2020) 12 SCC 680, titled
South Delhi Municipal Corporation and another versus
Today Homes and Infrastructure Private Limited and others
held that jurisdiction of civil court cannot be completely taken
away in spite of either an express or implied bar. Civil courts
despite such bar continue to have jurisdiction to examine a
matter in which there is an allegation of non compliance with
statutory provisions or any fundamental principle of judicial
procedure. Principles on point of ouster of jurisdiction of civil
.
courts laid down in Dhulabhai vs. State of M.P. (1968) 3 SCR
662 were reiterated in para-9 of the judgment as under:-
"9. Section 17 of the Madhya Bharat Sales
Tax Act, 1950 barred the jurisdiction of any court in
matters pertaining to assessments made under the
Act. The recovery of Sales Tax under the said Act
was the subject matter of civil suits filed by the
asessees. The State objected to the maintainability
of the civil suits on the ground that jurisdiction of civil
court was barred. After taking note of several
judgements of this Court on the point of ouster of
jurisdiction of the civil courts, Hidayatullah, J. in
Dhulabhai and Ors. vs. The State of M.P. observed
as follows:
(1) Where the Statute gives a finality to the orders of
the special tribunals the Civil Courts' jurisdiction
must be held to be excluded if there is adequate
remedy to do what the Civil Courts would normally
do in a suit. Such provision, however, does not
exclude those 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.
(2) Where there is an express bar of the jurisdiction
of the Court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the
examination of the remedies and the scheme of the
.
particular Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case it is necessary to see if
the Statute creates a special right or a liability and
provides for the determination of the right or liability
and further lays down that all questions about the
said right and liability shall be determined by the
tribunals so constituted, and whether remedies
normally associated with actions in Civil Courts are
prescribed by the said Statute or not.
(3) Challenge to the provisions of the particular Act
as ultra vires cannot be brought before Tribunals
constituted under that Act. Even the High Court
cannot go into that question on a revision or
reference from the decision of the Tribunals.
(4) When a provision is already declared
unconstitutional or the constitutionality of any
provision is to be challenged, a suit is open. A writ of
certiorari may include a direction for refund if the
claim is clearly within the time prescribed by
the Limitation Act but it is not a compulsory remedy
to replace a suit.
(5) Where the particular Act contains no machinery
for refund' of tax collected in excess of constitutional
limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment
apart from its constitutionality are for the decision of
the authorities and a civil suit does not lie if the
orders of the authorities are declared to be final or
there is an express prohibition in the particular Act.
In either case the scheme of the particular Act must
.
be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court
is not readily to be inferred unless the conditions
above set down apply."
Apex Court also held that wherever a right or
liability, not pre-existing in common law is created by a statute
and that statute itself provides a machinery for enforcement of
such right or liability, both the right/liability and the remedy
having been created uno flatu and a finality is intended to the
result of the statutory proceedings, then, even in the absence of
an exclusionary provision the jurisdiction of the civil court is
impliedly barred. In the facts of the case, the Hon'ble Apex
Court observed that remedy by way of an appeal against an
order of assessment was provided under the statute. The
remedy provided was adequate and effective. Therefore,
applying the criteria laid down in Dhulabai's case, it was held
that jurisdiction of civil court was impliedly barred. Suit was held
to be not maintainable with following concluding observations:-
"12. Wherever a right or liability, not pre-existing in
common law is created by a statute and that statute
itself provides a machinery for enforcement of such
right or liability, both the right/liability and the remedy
having been created uno flatu and a finality is
.
intended to the result of the statutory proceedings,
then, even in the absence of an exclusionary
provision the jurisdiction of the civil court is impliedly
barred.
13-16 xxxxxxxxxxx
17. We have examined the plaint filed by the
Respondents carefully. We do not see any allegation
made regarding the violation of any provisions of the
statute. There is also no pleading with regard to non-
compliance of any fundamental provisions of the
statute. It is settled law that jurisdiction of the civil
courts cannot be completely taken away in spite of
either an express or implied bar. The civil courts shall
have jurisdiction to examine a matter in which there
is an allegation of non-compliance of the provisions
of the statute or any of the fundamental principles of
judicial procedure. A plain reading of the plaint would
suggest that the order impugned in the suit is at the
most an erroneous order. No jurisdictional error is
pleaded in the plaint. Therefore, the question of
maintainability of the suit does not arise. In the
absence of any pleadings in the plaint, the High
Court ought not to have remanded the matter back to
the learned Single Judge."
In (2019) 3 SCC 692, titled Pyarelal vs.
Shubhendra Pilania (Minor) through Natural Guardian
(Father) Shri Pradeep Kumar Pilania and Others, the Apex
Court while considering the provisions of Rajasthan Tenancy Act
vis-a-vis an application moved under Order 7 Rule 11(d) CPC
.
held that jurisdiction to declare khatedari rights exclusively vests
with the Revenue Court. Only after declaration of rights by
Revenue Court, suit in respect of land in question can be
maintained. Relevant paras from the judgments are as under:-
"22.
The appellant has prayed that the gift
deed dated 10-2-2011 be declared void to the extent
of the share claimed by the appellant and that
respondent Nos. 1 to 5 be restrained from alienating
the share of the appellant. The civil court may decree
the relief prayed only if it is first determined that the
appellant is entitled to khatedari rights in the suit
property. Under the provisions of the Tenancy Act,
the jurisdiction to declare khatedari rights vests
exclusively with the revenue courts. Only after such
determination may the civil court proceed to decree
the relief as prayed. The explanation to Section 207
clarifies that if the cause of action in respect of which
relief is sought can be granted only by the revenue
court, then it is immaterial that the relief asked from
the civil court is greater than, or in addition to or not
identical with the relief which the revenue court
would have granted. In view of this matter, the civil
court may not grant relief until the khatedari rights of
the appellant have been decreed by a revenue court.
27. In the present case, the High Court has
proceeded on the basis that the suit seeking a
declaration of the gift deed relating to disputed
agricultural land situated in Sikar as void and
restraining Respondent Nos. 1 to 5 from transfer or
.
sale of the agricultural land before the civil court is
squarely covered by the bar to the jurisdiction of the
civil court under the provisions of the Tenancy Act.
The claim of the appellant to khatedari rights is
pending adjudication by a revenue court which has
the exclusive jurisdiction to adjudicate upon such a
claim. The appellant has no right to seek relief before
the civil court without first getting his khatedari rights
decreed by the revenue court."
In the instant case, as observed earlier, the basic
order challenged in the civil suit by the plaintiff was dated
13.7.2012. This order was passed by A.C. IInd Grade. The order
was passed on an application moved by the defendant under
Section 37 of the Act. Section 171 of the Act bars jurisdiction of
the civil court in respect of matters falling within jurisdiction of
the revenue officers. Correction of revenue entry in record of
rights is within the domain and jurisdiction of revenue officers in
terms of Chapter IV of the Act. In the civil suit the plaintiff
alleged that he was not served in the application moved by
defendant under Section 37 of the Act and that the order was
passed behind his back. Assuming that on these grounds,
plaintiff could have filed the civil suit challenging the order dated
13.7.2012, then also, the fact remains that on these very
assertions the plaintiff has also filed statutory appeal under
.
Section 14 of the Act. Plaintiff could not simultaneously resort to
two parallel remedies on same cause of action on same set of
facts against the same order. Having availed statutory remedy
against order dated 13.7.2012, plaintiff could not file civil suit on
the same cause of action. Having chosen to avail the statutory
remedy which the plaintiff is still pursuing, civil suit filed by him
was not maintainable. It would be apt to refer to (2007) 6 SCC
120, titled Arunima Baruah versus Union of India and Others,
where the Supreme Court following the judgment in Jai Singh
vs. Union of India reported in (1977) 1 SCC 1 deprecated
pursuing two parallel remedies by the parties in respect of one
subject-matter and held as under:-
"18. There is another doctrine which cannot
also be lost sight of. The court would not ordinarily
permit a party to pursue two parallel remedies in
respect of the same subject matter......."
5(vii) Conclusion
(a) Plaintiff in the instant civil suit prayed for declaring
the order dated 13.7.2012 as illegal, null and void.
(b) Order dated 13.7.2012 was passed by the A.C. IInd
Grade in an application moved by the defendant under Section
.
37 of the H.P. Land Revenue Act 1953. In the application,
defendant had prayed for correction of existing revenue entry,
showing the defendant and his brothers including the plaintiff-the
joint owners of the suit land, to be in joint possession of the
same.
Defendant asserted in the application that he was in
exclusive possession over the suit land. The A.C. IInd Grade
allowed defendant's application vide order dated 13.7.2012.
Thereby revenue entry of possession over the suit land was
corrected in defendant's favour. The A.C. IInd Grade had the
jurisdiction to pass the order dated 13.7.2012.
(c) Plaint does not raise any question of title. It only
challenges order dated 13.7.2012 passed by A.C. IInd Grade.
A.C. IInd Grade had not decided any question of title under
order dated 13.7.2012. Defendant had not raised any question
of title in his application moved under Section 37 of the Act
before the revenue officer. Plaintiff and defendant both continue
to be joint owners of the suit land. The possession over suit
land was however found by A.C. IInd Grade to be that of the
defendant. Correction of revenue entry to this effect was
accordingly ordered on 13.7.2012.
.
(d) Plaintiff had statutory remedy under Section 14 of
H.P. Land Revenue Act against correction of revenue entry
ordered on 13.7.2012. Plaintiff availed this statutory remedy
and challenged the order before the Collector. Appeal filed by
(e) to
him is pending adjudication. Plaintiff is pursuing this remedy.
Having elected to avail statutory remedy against the
order dated 13.7.2012, plaintiff cannot simultaneously institute
civil suit against the same order dated 13.7.2012. In the facts of
the case, two parallel remedies against the same order, on
same cause of action on same set of grounds cannot be
simultaneously resorted to. Plaintiff is pursuing the statutory
remedy of appeal, which is pending adjudication before the
revenue courts.
(f) Plaintiff has already filed another civil suit No. 67-1/S
of 95/03 for partition and rendition of accounts against the
defendant and others with respect to various parcels of
lands/properties jointly owned by plaintiff, defendant and others.
Suit property involved in the present case is also part of suit
property involved in civil suit No. 67-1/S of 95/93. Question of
title is raised in that civil suit (67-1/S of 95/93), which was partly
decreed by learned District Judge on 16.9.2000. RFA No.
.
365/2000 filed by the plaintiff arising out of this judgment and
decree is as yet pending adjudication. In terms of interim orders
passed in the RFA No. 365/2000, parties have already been
restrained from creating third party rights over the subject matter
of suit. The subject matter of RFA No.
property involved in the instant suit.
r The
365/2000 includes
injunction order
passed in RFA No. 365/2000 is already operating with respect
to the property involved in the present suit and is also
applicable to the parties herein.
For all the aforesaid reasons, this petition is
allowed. The application moved by the defendant under Order 7
Rule 11 of Code of Civil Procedure is allowed. The order
passed by learned trial court on 11.7.2018 in CMA No. 28-6 of
2018/16 in Civil Suit No. 43/1 of 17/14 is set aside.
Consequently, plaint is ordered to be rejected. Pending
miscellaneous applications, if any, shall also disposed of.
Jyotsna Rewal Dua
Judge
4th October, 2021 (vs)
