Jharkhand High Court

Sushila Devya vs Kartik Pasi on 23 January, 2024

Author: Subhash Chand

Bench: Subhash Chand

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
             M.A.No. 646 of 2016
  1. Sushila Devya, widow of Late Hardeo Manjhi
  2. Mahendra Manjhi, son of Late Hardeo Manjhi
  3. Udeshwar Manjhi, son of Late Hardeo Manjhi
  4. Mitan Manjhi, son of Late Hardeo Manjhi
  5. Karu Manjhi, son of Late Bishan Manjhi
  6. Ranjeet Manjhi, son of Late Tentu Manjhi
  7. Rama Manjhi, son of Late Tentu Manjhi
  8. Sachi Devi, widow of Late Muthi Manjhi
  9. Naresh Manjhi, son of Late Muthi Manjhi
10. Congress Manjhi, son of Late Muthi Manjhi
11. Prem Manjhi, son of Late Pandu Manjhi
12. Jamun Manjhi, son of Late Devi Manjhi
13. Wakil Manjhi, son of Late Devi Manjhi
14. Moti Manjhi, son of Late Gangu @ Ganu Manjhi
15. Nitlal Manjhi, son of Late Gangu @ Ganu Manjhi
16. Jageshwar Manjhi, son of Late Gulo Manjhi
17. Dina Manjhi @ Dinesh Manjhi, son of Late Gulo Manjhi
All resident of village-Gidhani, P.O.-Deopur, P.S.-Jasidih,
Sub-Division and District-Deoghar            ....     ... Appellants
                          Versus
  1. Kartik Pasi, son of Late Ganesh Pasi
  2. Anil Pasi @ Oling Pasi son of Late Ganesh Pasi
  3. Chigu Pasi, son of Late Ganesh Pasi
  4. Khokhan Mahtha, son of Late Ganesh Pasi
  5. Dilip Pasi, son of Late Ganesh Pasi
  6. Bajrangi Pasi, son of Late Kishun Pasi
  7. Samar Pasi, son of Late Sufal Pasi
  8. Manoj Pasi, son of Late Suresh Pasi
  9. Fulmani Devi, wife of Late Tilo Pasi
10. Fagu Pasi, son of Tilo Pasi
11. Baali Pasi, son of Tilo Pasi
12. Pachni Devi daughter of Late Ganesh Pasi and wife of
     Jagarnath Pasi
13. Geeta Devi, daughter of Late Kishun Pasi and wife of Bihari
     Pasi.
 All are resident of village-Gidhani, P.O.Deopur, P.S.-Jasidih, Sub-
 Division and District- Deoghar.
 ....                 ....        ....Plaintiffs/Appellants/Respondents
14. Fulan Devi, daughter of Late Muthi Manjhi, resident of village-
 Gidhani, P.O.-Deoghar, P.S.-Jasidih, Sub-Division and District-
 Deoghar.
15. Rina Devi, daughter of Late Muthi Manjhi, resident of village-
 Gidhani, P.O.-Deoghar, P.S. Jasidih, Sub-Division and District-
 Deoghar
16. Tarni Devi widow of Late Ganga Manjhi @ Ganu Manjhi,
 resident of village-Gidhani, P.O.-Deoghar, P.S. Jasidih, Sub-
 Division and District-Deoghar
                              2



17. Sabui Devi wife of Chaturi Mahato, resident of village Tinkona,
 P.O.+P.S.-Chakai, District-Jamui (Bihar)
18. Bechani Devi wife of Kishni Choudhary, resident of village-
 Govindpur, P.O.+P.S.-Chanan, District-Banka (Bihar)
19. Rickhni Devi wife of Thakur Mahato, resident of village-
 Burwakura, P.O.+P.S.-Katoriya, District-Banka (Bihar)
20. Sita Devi wife of Basudeo Mahto, resident of village-Suthaniya,
 P.O.+P.S.-Mohanpur, District-Deoghar (Jharkhand)
21. Bilkhi Devi wife of Rajkumar Manjhi, resident of village-
 Kishanraipur, P.O.+P.S.-Chakai, District-Jamui (Bihar)
22. Rushan Roy son of Late Moti Roy, resident of village-Gidhani,
 P.O.-Deopur, P.S.-Jasidih, Sub-Division and District-Deoghar.
 ....         ....Defendants/Respondents/Performa Respondents
                      ---------

CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellants: Mr. Rahul Kumar, Advocate Mr. Arvind Kumar Choudhary, Advocate Mr. Shambhu Nath Tiwari, Advocate For the Res. No. 1 to 13: Mr. Suraj Prakash, Advocate Mr. Purnendu Sharan, Advocate

---------

Order No. 20/ dated 23.01.2024 Learned Counsel Mr. Rahul Kumar on behalf of the

appellants and on behalf of Respondent No. 1 to 13, learned

Counsel are present.

2. The instant Misc. Appeal has been directed against the

Judgment dated 03.09.2016 passed by the learned District

Judge-II, Deoghar in Civil Appeal No. 02 of 2014 whereby the

Judgment dated 18.12.2013 and decree dated 04.01.2014 passed

by the learned Civil Judge (Senior Division) I, Deoghar in Title

Suit No.45 of 2003 has been set aside and the plaint has been

returned to the plaintiff by exercising power under Order VII Rule

10 of CPC to file the same before the proper Court.

3. The plaintiffs have filed the suit with the prayer for declaring

void the orders passed in rent fixation cases, declaration of right,

title & interest in property in suit and for permanent injunction

as well.

4. The brief facts leading to this Misc. Appeal are that the

plaintiffs have filed the suit which was registered as Title Suit

No.45 of 2003 Kartik Pasi & Ors. vrs. Shushila Debya & Ors. with

these averments that village Gidhni, Mouja No. 244, was a

Pradhan village during last Gantzer survey settlement and Hari

Pd. Singh was the recorded Pradhan of village Gidhni and

plaintiff's are resident and Jamabandi Rayyat of village Gidhni,

and ancestral non transferable Rayyat Jamabandi land of the

plaintiff's have been recorded during last Gantzer survey

settlement in the name of their ancestor Katku Pasi. Plot No.233,

with an area 6.29 acres has been recorded as Patit (waste land)

during last Gantzer Survey Settlement and ancestor of plaintiff's

Katku Pasi approached the Pradhan Hari Pd. Singh of village

Gidhni for getting settlement of land of plot no.233 of Mouja

Gidhni on the ground of having much less land, recorded in his

name and Pradhan Hari Singh finding Katku Pasi suitable for

settlement and accordingly, settled plot no. 235 with an area 6.29

acres of village Gidhni with Katku Pasi by granting Amalnama

dated 14 Bhado 1343 BS, corresponding to August' 1936. And

thereafter Katku Pasi filed a petition before the S.D.O., Deoghar

on 31.8.1936 for confirmation of Amalnama granted by Pradhan

Hari Singh with respect to entire area of plot no.233 of village

Gidhni and after confirmation of Amalnama the settle prayed for

Basgarhi possession over the said settled land bearing plot

no.233, upon which Settlement Case No.75 of 1936-37 was

registered before S.D.O., Deoghar, in which Katku Pasi was

petitioner and Pradhan Hari Singh was opposite party and 16

Anna Rayyats of village Gidhni were noticed and in presence of

one an all of village Rayyats, including the Pradhan, kanongo was

asked to inquire and report the matter, upon which kanongo

submitted report to the S.D.O., Deoghar on 3.7.1937, and

thereafter again notice was issued to all Rayyats of village Gidhni

for final hearing and on 3.9.1937, the S.D.O., Deoghar confirmed

the settlement made by Pradhan with Kakaoo Pasi of plot no.233

and refused to confirm the settlement made by Pradhan with

Tanku Pasi of plot no.362. Thereafter, settle Katku Pasi applied

for actual delivery of possession of settled land, plot no.33. Court

Amin was deputed to effect the actual delivery of possession of

plot no.233 with settle Katkoo Pasi according to rule and was

given actual Basgarhi possession over plot no. 233 on 15 May'

1938. And the same settled land with Katku Pasi is the subject

matter of present suit. Further, case of plaintiff is that Katku Pasi

after getting settlement and actual delivery of possession of the

suit land re-claimed the same in Dhani and Bari land and settle

Katku Pasi and his descendents have been in peaceful cultivating

position over the suit land. Plaintiff has also given genealogical

table to show that they are descendents of Katku Pasi. Plaintiff's

are owner of the suit land and defendants behind back of the

plaintiff's procured forged and fabricated papers and made false

claim on the suit land of plaintiff's and started creating trouble on

plot no.233 (suit land). Thereafter, plaintiff Kartik Pasi filed a

petition before S.D.O., Deoghar for actual demarcation of the suit

land (plot no.233) against defendants first party Muthhi Manjhi,

and defendants claim settlement of suit land on the basis of

Amalnama dated 5th Poosh 1352 BS, corresponding to 1946, in

favour of their ancestor Ratan Manjhi by Pradhan Hari Pd. Singh.

Defendants, first party falsely claim reclamation and possession

of the suit land by virtue of alleged fake Amalnama and plaintiff

for the first time could know the said objection petition dated

4.9.99, filed by Muthi Manjhi, regarding party collusive

fraudulent and illegal proceeding of the court of L.R.D.C.,

Deoghar being Bhudan Confirmation Case No. 7/1979-80. Rent

Fixation Case No. 128, 129, 130, 131, & 132 of 1979-80, were

started at the instance of Muthhi Manjhi, which are ab initio,

illegal, fraudulent, mala fide, void and beyond jurisdiction of

L.R.D.C., C.O. and C.I. Further, case of the plaintiff is that

Amalnama and Bhudan Patta, produced and claimed by

defendants are fake and forged and are maneuver only to grab the

land of the plaintiff, and their ancestor which have all along been

in peaceful cultivating possession, and the plaintiff and their

ancestor after confirmation of settlement and actual delivery of

possession of entire suit plot no.233 in settlement case no. 75 of

1936-37 are claim of defendants in Bhudan Confirmation Case

No.7 of 1979-80, and Rent Fixation Case No. 128 of 1979-80.

Defendants are owner of the suit land and fixing the rent in their

names are ab initio, illegal, fraudulent and without jurisdiction,

and as such plaintiffs claim a declaration that they are Rayyats

and owner of suit land and confirmation of their possession and

in alternative if the plaintiffs are found to have been dispossessed

from the suit land the plaintiffs claim recovery of possession of

the same. Further, case of the plaintiffs is that order passed by

learned S.D.O., Deoghar dated 11.10.99, have thrown clouds on

the right, title, interest and possession of plaintiffs, and hence,

the necessity of the suit arose within jurisdiction of this court.

Cause of action arose on 11.9.99 when the learned S.D.O.,

Deoghar rejected the prayer for demarcation of suit plot no.233

on 11.10.99. Order of L.R.D.C., Deoghar of 5.7.80, in Bhudan

Confirmation Case No. 7 of 1979-80, denied right, title, interest

and possession of the plaintiff over the suit land and cause of

action arose within the jurisdiction of this Court.

5. In Title Suit No. 45 of 2003 the written statement was also

filed on behalf of the defendants.

6. The learned trial court had framed the following issues:

i. Whether suit as framed is maintainable under law? ii. Whether plaintiffs have got valid cause of action for filing the present suit.

iii. Whether the plaintiffs have got legal and valid right, title and possession over the suit land ?

iv. Whether the Court has jurisdiction to try this suit or not? v. Whether the settlement made with katku Pasi by the Pradhan and subsequently confirmed by the S.D.O., Deoghar was legal, valid and binding on parties? vi. Was the Pradhan competent to make settlement of the land in question. The settlement made with Ratan Manjhi on 5th Poosh 1352 BS of the suit land is legal and valid one ?

vii. Whether proceeding of Bhudan Case No. 07 of 1979-80, is legal, valid and genuine one or vitiated by fraud and misrepresentation ?

viii. Whether Rent Fixation proceeding started in the year 1979-80, are legal and valid one ?

ix. Whether the plaintiffs have got valid right, title and interest on the suit land after order of S.D.O., passed in Settlement Case No. 75 of 1936-37 and actual delivery of possession on the suit land ?

x. Whether the order passed by L.R.D.C. in Rent Fixation Proceeding and the order of S.D.O., passed in R.M. Case No. 29 of 2000, are ab initio, illegal, void and beyond jurisdiction ?

xi. Is the suit barred by law of limitation, estoppel, waiver and accusation ?

xii. To what relief or reliefs plaintiffs are entitled to.

7. In oral evidence 13 witnesses have been examined on behalf

of plaintiffs P.W.1 Shri Ballav Deo, P.W.2 Birbal Prasad Verma,

P.W.3 Shri Prasad Tanti, P.W.4 Satruhan Singh, P.W.5 Mali Ram,

P.W.6 Sukdeo Ramani, P.W.7 Sudama Prasad Yadav, P.W.8 Hari

Narayan Mahtha, P.W.9 Shankar Mirdha, P.W.10 Rajendra Singh,

P.W.11 Bachu Pasi, P.W.12 Ganga Raut & P.W.13 Kartik Pasi.

8. In oral evidence 12 witnesses have been examined on behalf

of defendants D.W.1 Ganesh Prasad Sah, D.W.2 Sukhdeo Marik,

D.W.3 Fuleshwar Marik, D.W.4 Tilo Thakur, D.W.5 Moti Manjhi,

D.W.6 Bhairav Prasad, D.W.7 Upendra Yadav, D.W.8 Sikander

Das, D.W.9 Govind Mandal, D.W.10 Dilip Prasad Singh, D.W.11

Byasdeo Pandey and D.W.12 Natilal Manjhi.

9. On behalf of the plaintiff in documentary evidence filed

Ext.1, 1/1, ½ Revenue Rent Receipt 198894, 813342, 351891,

Ext. 1/3 Revenue Rent Receipt No.457252, Ext. ¼ Revenue

Receipt No. 3867218, Ext. 1/5 Revenue Rent Receipt 441723,

Ext. 1/6 Revenue Rent Receipt 951369, Ext. 1/7 Revenue Rent

Receipt 712003, Ext. 1/8 Revenue Rent Receipt 664639, Ext.2

Order dated 2.9.1936, Ext.3 Writ, Ext. 4 to 4/A Basgadi Parwana,

Ext.5 Enquiry Report, Ext. 5/A Map, Ext.6 Objection Application,

Ext.7 Amalnama, Ext.8 Order dated 2.09.1936, Ext. 8/A Amin

Report, Ext.8/B Order dated 17.06.1938, Ext.8/C Kanongo

Report.

10. On behalf of the defendant in documentary evidence filed

Ext. A to A/3 Rent Receipt, Ext. A/4 to A/6 Rent Receipt, Ext.

A/7 to A/9 Rent Receipt, Ext.B signature of Late Devendra Nath

Mishra on c/c of Amalnama, Ext. B/1 signature of Sukumar on

c/c Amalnama, Ext. B/2 signature of Parasmani Jha on c/c of

Amalnama, Ext. C to C/4 C/C of orders dated 5.7.80, 11.10.99,

04.09.02, 12.10.79 & 4.11.82, Ext. A/10 to Ext. A/12 Rent

Receipt No. 426339, 0785689 & 3867296.

11. The learned trial court dismissed the suit of the plaintiff vide

Judgment dated 18.12.2013 and the decree dated 04.1.2014.

12. Aggrieved from the impugned Judgment dated 18.12.2013

and the decree dated 04.01.2014, the appeal was preferred on

behalf of the plaintiff before the Court of the District Judge,

Deoghar which was registered as Civil Appeal No.02 of 2014.

13. The learned Appellate Court disposed of this appeal vide

Judgment dated 03.09.2016 holding that the jurisdiction to try

the suit lies to the Settlement Officer concerned in view of the

Section 5 of Santhal Pargana Tenancy Regulation, 1872.

14. Aggrieved from the impugned Judgment dated 03.09.2016

passed by the learned first Appellate Court the instant Misc.

Appeal has been directed under Order 43 Rule 1 (a) of C.P.C. on

the ground that the impugned Judgment dated 03.11.2016

passed by the learned District Judge, Deoghar is bad in the eye of

law. The learned District Judge failed to appreciate that the

plaintiff has chosen the forum for adjudication of the dispute with

regard to the land in question. Even in appeal they had not

challenged the Judgment and decree passed by the learned Civil

Judge (Sr. Division)-I in Title Suit No. 45 of 2003 on the point of

jurisdiction. The learned District Judge-II, Deoghar had failed to

appreciate that even if the suit is filed to Settlement Officer under

Section 5 of Survey Settlement Regulation, 1872, the same was to

be transferred to the Civil Court for adjudication under Section 5

(a) of Santhal Pargana Regulation, 1872. The learned District

Judge-II, Deoghar had failed to appreciate that the appeal was fit

to be heard on merit taking into consideration the pleadings filed

by the parties on record. In view of the above prayed to allow this

appeal and to set aside the impugned order passed by the learned

Appellate Court directing the Appellate Court to decide the appeal

on merit.

15. I have heard the learned Counsel of parties and perused the

material on record.

16. It is the settled law that the jurisdiction of a Court is to be

decided in the light of the averment made in the plaint. The

defence averment in the written statement or evidence

cannot be looked into at the time of deciding the jurisdiction

of the Court.

16.1 The Hon'ble Apex Court held in Abdulla Bin Ali and others

vs Galappa and others AIR 1985 SC 577:

5. There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs-

appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil Court and not in the revenue Court. The High Court, however, took the view that the plaintiffs-appellants had not claimed a declaration of title over the disputed plots and all that has been set up by them in the plaint is the relationship of landlord and tenant.

16.2 The Hon'ble Apex Court held in Ramesh Chand

Ardawatiya vrs. Anil Panjwani 2003 AIR SCW 2590:

21.In the present case there is nothing to show that the defendant is also a member of the Society or claiming under a member. The plaintiff does not have any dispute with another member of the Society or the Society itself. The question of jurisdiction is to be determined primarily on the averments made in the plaint. The plaint as framed by the plaintiff is for declaration of title as owner (and in the alternative, his possessory title) and seeking restoration of possession, as also issuance of mandatory and preventive injunctions against a recent encroachment. Neither is it a dispute between the parties referred to in Clauses (a) to (e) of sub-section (1) of Section 75, nor does the nature of the dispute fall in Clauses

(a) to (c) of sub-section (2) of Section 75, so as to be one excluded from the domain of a Civil Court. At no stage of the proceedings has the defendant-appellant taken any objection to the jurisdiction of the Civil Court to try the suit. We are not satisfied - even prima facie to hold that the Civil Court suffered from any jurisdictional incompetence to hear and try the suit. Several revision petitions were preferred in the High Court against the orders passed at several stages of the proceedings of the trial Court. An objection to the jurisdiction of the trial Court was not taken before the High Court in any of the civil revisions. It will be too late in the day to permit such an objection being taken and urged at the hearing before this Court. The plea as to want of jurisdiction in the trial Court is devoid of any merit and is, therefore, rejected.

16.3 The Hon'ble Apex Court held in Saleem Bhai vrs. State of

Maharastra 2003 (1) SCC 557:

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 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. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects.

16.4 The Hon'ble Apex Court held in Smt. Bismillah vrs.

Janeshwar Prasad & ors. ACJ 1990 at 179:

4.In the instant case, the High Court has construed, in our opinion not quite correctly, appellant's pleadings to amount to a plea of nullity of the sales and has held that the prayer for cancellation of the sale deeds was 'simply illusory' and that such a relief was neither necessary nor appropriate in the context of a plea of nullity.

The High Court has further held that the relief of possession, though appearing to be a consequential relief, was really the main relief and would fall within the statutory jurisdiction.SC542. It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the precise nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by the High Court the expression 'void' occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit in the need for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said "parties do not have the farsight of prophets and their lawyers the draftsmanship of a chalmers".

16.5 The Full Bench of Hon'ble Allahabad High Court held in

Ram Awalamb and ors. vrs. Jata Shankar and ors. AIR 1969

Allahabad 526:

76.The main point for consideration in all cases where on a definite cause of action two reliefs can be claimed is which of the two reliefs

is the main relief and which relief or other reliefs are ancillary reliefs. Where from facts and circumstances of the case the relief for demolition and injunction is the main @page-All539 relief there could be no reason why the jurisdiction of the civil court should be barred. On the other hand if it could be said that the main relief that is to say, the real and substantial relief, could on that cause of action be of possession only then the suit will definitely lie in the revenue court. In our opinion Registered To : Registra General © Copyright with AIR Infotech, All India Reporter. All rights reserved

All India Reporter it is difficult to lay down any hard and fast rule that where the suit is brought against a trespasser the only relief which the plaintiff should claim as an effective relief is that of possession and he need not try to obtain an injunction order and get the constructions made by the trespasser demolished. The revenue courts have not been empowered to grant the reliefs of injunction and demolition and in case the defendant refuses to take away the materials from the land in dispute after the decree for possession has been passed against him the main object of the plaintiff would be frustrated. A civil court will therefore, have the power to entertain the suit where the main relief sought by the plaintiff is that of injunction and demolition a relief which could be granted by the civil court only.

The relief of possession will be merely ancillary relief which the civil court could grant after having taken cognizance of the suit for injunction and demolition. We respectfully agree with the view expressed by Dayal and Seth, JJ. in the case of 1966 All LJ 1084 : (AIR 1967 All 358) that once the suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. We, however, with great respect, differ from the view taken by the Division Bench in the case of 1965 All LJ 1137 that whenever a suit is for demolition and possession against a trespasser it must always be held that the main relief was that of possession. We are of the view that the determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case.

77. Further we are of the view that where, on the basis of a cause of action

(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit:

(b) the main relief is cognizable by the civil court the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court

16.6 The Hon'ble Apex Court held in Ram Swarup and ors. vrs

Shikar Chand and Anr. AIR 1966 SC 893:

12.One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Courts' jurisdiction, is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is: does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it does appear that the words used in S. 3 (4) and S. 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any Court. This is an express provision excluding the civil Courts' jurisdiction. Section 3 (4) does not expressly exclude the jurisdiction of the civil Courts, but, in the context, the inference that the civil Courts jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in contending that the jurisdiction of the civil Courts is excluded in relation to matters covered by the orders included within the provisions of S. 3 (4) and S. 16.

17.The same principle has been emphasised by the Privy Council in Secretary of State v. Mask and Co., 67 Ind App 222: (AIR 1940 PC

105). In that case, thought the words used in Ss. 188 and 191 of the Sea Customs Act (1878) were held to exclude the jurisdiction of the civil Courts the Privy Council observed that even where jurisdiction is excluded, the civil Courts have jurisdiction. "to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure".

This latter clause presumably covers cases where orders are passed in violation of the principles of natural justice.

17. From the very perusal of the plaint, it is found that the

plaintiff has sought the main relief for declaration of right, title

and interest in the property in suit. So far as the prayer first in

the very plaint is concerned though the same is to be decided by

the Settlement Officer yet in view of the averment made in the

plaint, the main relief which the plaintiff has sought in the plaint

is for declaration of right, title and interest. So far as the relief for

declaring void the order passed in the Rent Fixation Case is

concerned the same is secondary relief, which can be granted

only when the right, title and interest of the plaintiff is declared.

In such a condition, the jurisdiction also lies to the Civil Court

who is empowered to adjudicate the right, title and interest of the

plaintiff in regard to the property in suit.

18. Herein it is pertinent to mention the certain statutory

provisions of Santhal Parganas Settlement Regulation, 1872 and

Code of Civil Procedure as under:

5. Bar of jurisdiction of Civil Court during settlement.-(1) From the date on which under Section 9 of the [State) Government declares, by a notification in the [Official Gazette], that a settlement shall be made of the whole or any part of the Sonthal Parganas, until the date on which such settlement is declared, by a like notification, to have been completed no suit shall lie in any Civil Court established under the Bengal, [Agra] and Assam Civil Courts Act, 1887 [12 of 1887] in regard to,-

(a) any land or any interest in, or arising out of, land, or

(b) the rent or profits of any land, or

(c) any village hardship or other office connected with any land in the area covered by such first-mentioned notification nor shall any Civil Court proceed with the hearing of any such suit which may be pending before it. (2) Between the dates referred to in sub-section(1), all suits of the nature therein described shall be filed before or transferred to an officer appointed by the [State] Government under section 2 of the Sonthal Parganas Act, 1855 (37 of 1855), or Section 10 of this Regulation according as the [State] Government may from time to time direct and such officer shall hear and, even though during the hearing the settlement may be declared to haves been completed, determine them.

5-A. Re-transfer of suit to Civil Court.-(1) Notwithstanding anything contained in Section 5, whenever it appears to any officer empowered thereby to try any such suit to be just and expedient that the suit or any issue arising therein should be tried by a Civil Court established under the Bengal, Agra and Assam Civil Courts Act, 1887 (12 of 1887) which but for that section would have had jurisdiction to try the suit, he may, either on the prayer of the parties or of his own

motion but subject to the control of the officers to whom he is subordinate, make a certificate to that effect and transfer the record, if any, to such Court.

(2) On receipt of any such certificate and on payment of such Court-fee as would have been payable if the suit had been originally filed in such Court (if the said fees have not already been paid), the Court shall proceed to hear and determine such suit or issue as if the suit had been originally instituted therein.

(3) Any issue so transferred shall be dealt with, and shall be charged with Court-fee, as if it were a separate suit.

(4) The decision of the said Court in any such suit or issue shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure (14 of 1882) and shall be carried into effect in the manner provided by law for the execution of decrees of such Court. (5) Every such decision, and every decision given in appeal therefrom shall be certified by the said Court to the officer by whom the certificate mentioned in sub- section (1) was made, or to such officer as the [State] Government may appoint in this behalf; and its purport, so far as relevant, shall thereupon be entered in the record-of-rights].

Section 9 of Code of Civil Procedure-

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.

19. In view of the Section 5 of Santhal Pargana Settlement

Regulation,1872, the jurisdiction of civil court is barred in regard

to the any land or any interest arising out of the rent if the

declaration of the notification in official gazette is made in regard

to the whole or any part of Santhal Pargana until the date the said

proceeding has been completed and notification to that effect has

been made. Admittedly, the notification in official gazette in

regard to the settlement proceeding has been declared and

settlement of the completion has not been done. It is

pertinent to mention herein that during the pendency of this

Misc. Appeal the Settlement Officer by exercising power under

Section 5(a) of Santhal Pargana Settlement Regulation Act,

1872 has transferred the plaint to the Civil Court concerned

which was remitted to him by the order of the first Appellate

Court exercising power under Order 7 Rule 10 of C.P.C. The

certified copy of the very order is filed on behalf of the learned

Counsel for the appellant while passing the order.

20. This is the admitted fact the title suit which was filed before

the Settlement Officer, Santhal which was registered as Title Suit

No. 23 of 2018 in the Court of Settlement Officer, Santhal, the

same was also transferred by the Court of Settlement Officer,

Santhal Pargana at Dumka to the Civil Court concerned.

21. It is also the admitted fact the title suit which was

transferred by the Settlement Officer, the same was registered as

Original Suit No. 210 of 2018 in the Court of Civil Judge,

Senior Division-I Deoghar.

22. Herein in the case in hand, it transpires from the Judgment

dated 18.12.2013 passed by the learned trial court that the

learned trial court has decided all the 12 issues on merits. The

learned trial court has decided the issue No.3,5,7,8,9 & 10

pertaining to the title of the plaintiff while the issue No.1, 2 and 4

which are in regard to the jurisdiction has come to the conclusion

that the trial court concerned had no jurisdiction to entertain the

suit.

23. The impugned Judgment dated 18.12.2013 passed by the

learned trial court which was assailed before the Appellate Court

learned District Judge, Deoghar. The learned Appellate Court had

transferred the same under Order 7 Rule 10 of C.P.C. The

impugned Judgment passed by the learned Appellate Court is

based on the finding that the Section 11 of the Survey Settlement

Regulation,1872 is very clear as soon as the Mouza has been

notified for the Survey Operation, the jurisdiction of the Court is

barred and any plaint will be filed before the Settlement Officer

under Section 5 of the Survey Settlement Regulation,1872 and if

the Settlement Case is again transferred to the Civil Court in view

of Section 5 (a) of the Act thereafter the Civil Court can try the

suit.

23.1 Herein Section 11 of the Santhal Pargana Settlement

Regulation Act, 1872 is reproduced as under:

11. Bar to jurisdiction of Civil Courts.- Except as provided in [Section 25-A], no suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules; but the decisions and orders of the Settlement Courts made under these rules, regarding the interests and rights above mentioned, shall have the force of a decree of Court.

24. In view of the Section 9 of Code of Civil Procedure the Civil

Court has power to entertain any suit except where the

jurisdiction is barred expressly or impliedly.

24.1 In view of Section 5 of the Santhal Pargana Settlement

Regulation, 1872, the jurisdiction is barred of the Civil Court but

at the same time the Settlement Officer while exercising his power

during the settlement proceeding is also empowered to transfer

the same if he comes to the conclusion that the dispute

between the parties is to be decided by the Civil Court.

24.2 In view of the Section 5(a) the Settlement Officer is also

empowered to transfer the same to the Civil Court. In the case in

hand though the Settlement Officer has also transferred the said