Smt. Durgawati W/O Late Shri ... vs Ramsahai Meena Alias Ramsi (Since ...
2023 Latest Caselaw 3099 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 19271/2017

Smt. Durgawati W/o Late Shri Aanandilal, aged about 87 years,

r/o Plot No. 18/34, Gandhi Nagar, Ratlam (Madhya Pradesh)
                                                                 ----Petitioner
                                   Versus
1. Ramsahai Meena Alias Ramsi (Since Deceased) through Lrs

1/1. Ramphool

1/2. Lalaram

1/3. Girdhari (since deceased) through LR's

1/3/1. Smt. Lali Devi w/o Girdhari, aged about 40 years,
1/3/2. Suraj s/o Girdhari, aged about 15 years
1/3/2. Mankush s/o Girdhari, aged about 13 years

Since Minor through their Natural Guardian- Mother- Smt. Lali
Devi

All r/o Village Khatipura alias Kalyanpura, Tehsil Sanganer,
District Jaipur

                                       ...Contesting Respondent-Plaintiff

2. State of Rajasthan through Tehsildar Sanganer, Jaipur, Rajasthan

3. Rajasthan Housing Board through its Commissioner, Rajasthan Housing Board, Head Office, Avasan Bhawan, Jyoti Nagar, Jaipur

....Performa Respondents- Defendants

For Petitioner(s) : Mr. Gaurav Sharma Saraswat For Respondent(s) : Mr. Parag Rastogi Mr. Sandeep Sharma

HON'BLE MR. JUSTICE GANESH RAM MEENA

Judgment / Order

Date of Reserve :: August 01, 2023 Date of Pronouncement :: August 04, 2023

(2 of 15) [CW-19271/2017]

1. The petitioner has filed the present writ

petition with the prayer to quash and set aside the

order dated 09.09.2016 passed by the Board of

Revenue, Rajasthan, Ajmer (for short 'the Second

Appellate Authority') in Appeal No.2295/2012,

allowing the second appeal of the appellant-

respondent/plaintiff- Ramsahai Meena and set aside

the order dated 05.03.2012 passed by the Court of

Revenue Appellate Authority, Jaipur (for short 'the

First Appellate Authority') in Appeal

No.405/2010/223, dismissing the appeal filed by the

respondent/plaintiff- Ramsahai Meena against the

order dated 15.11.2010 passed by the Court of

Assistant Collector, Jaipur City (I) [for short 'the

court below'], in Suit No.87/2010, whereby the

application filed by the defendant No.1- Anandi Lal

under Order 7 Rule 11 CPC was allowed and the suit

filed by the respondent/plaintiff- Ramsahai Meena

was dismissed being barred by law.

2. The brief facts of the case relevant for

consideration of this Court are that the

respondent/plaintiff- Ramsahai Meena filed a suit

for declaration and permanent injunction before the

court below with the averements that he is in

possession of the land in question since Samvat 2018

and the defendant No.1- Anandi Lal has wrongly got

the land mutated in his name in the revenue record.

The suit was filed by the respondent/plaintiff-

Ramsahai Meena with a prayer that he may be declared

as a khatedar tenant of the land in question and

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further the mutation in the name of defendant No.1-

Anandi Lal be declared illegal and further prayed

for permanent injunction that the defendant No.1-

Anandi Lal may not be made the payment of

compensation in lieu of the acquisition of the land

in question.

3. Defendant No.1- Anandi Lal filed an

application under Order 7 Rule 11 CPC stating that

the property in question has been acquired by the

Rajasthan Housing Board under the Land Acquisition

Act, 1894 (for short 'the Act of 1894') and the

award has also been passed. As a consequence of the

acquisition of the land, the land has vested with

the Rajasthan Housing Board and the said land no

more remains as an agricultural land, and therefore,

the suit for declaration as a khatedari tenant is

not maintainable. It was also stated that after

acquisition of the land and passing of the award by

the Competent Authority the respondent/plaintiff-

Ramsahai Meena has a remedy of Reference before the

Civil Court. It was prayed that the application

filed by him under Order 7 Rule 11 CPC be allowed

and the suit and the suit filed by the plaintiff/

respondent- Ramsahai Meena be dismissed being barred

by law.

4. The Court below allowed the application

filed by defendant No.1- Anandi Lal under Order 7

Rule 11 CPC vide its order dated 15.11.2010 and

dismissed the suit seeking declaration and permanent

(4 of 15) [CW-19271/2017]

injunction filed by the respondent/plaintiff-

Ramsahai Meena.

5. The respondent/ plaintiff- Ramsahai Meena

being aggrieved by the order dated 15.11.2010 passed

by the Court below preferred an Appeal

No.405/2010/223 under Section 223 of the Rajasthan

Tenancy Act, 1955 (for short 'the Act of 1955')

before the First Appellate Court. The First

Appellate Court vide its order dated 05.03.2012

dismissed the appeal and affirmed the order dated

15.11.2010 passed by the Court below.

6. Being aggrieved by the order dated

05.03.2012 passed by the First Appellate Court as

well as the order dated 15.11.2010 passed by the

Court below the respondent /plaintiff- Ramsahai

Meena preferred second appeal No.2295/2012 under

Section 224 of the Act of 1955 before the Second

Appellate Court. The Second Appellate Court vide its

order dated 09.09.2016 accepted the second appeal

and quashed and set aside the order dated 05.03.2012

passed by the First Appellate Court as well as the

order dated 15.11.2010 passed by the Court below and

further remanded the matter to the court below for

further trial proceedings.

7. Some relevant facts which also require

consideration by this Court are that the

Notification under Section 4 of the Act of 1894 was

notified on 07.03.1992 and Section 6 Notification

was notified on 19.02.1994 and further Section 9

Notification was notified on 17.04.1994 and the

(5 of 15) [CW-19271/2017]

final award was passed on 09.04.1996 in the name of

defendant No.1-Anandi Lal. It is also to be noted

that the suit for declaration and permanent

injunction was filed by the respondent/plaintiff on

02.02.1996.

8. Counsel appearing for the

petitioner/defendant submitted that the order of the

Second Appellate Authority dated 09.09.2016 is

against the settled principle of law that once the

land is acquired then the grievance in regard to the

award can only be agitated before the Civil Court

under Section 18 and/ or Section 30 of the Act of

1894, and therefore, the suit filed by the

respondent/plaintiff before the Revenue Court was

barred by law as on the date of filing the civil

suit, the land seized to exist as an agricultural

land. He further submitted that the bare perusal of

the plaint reveals that the respondent/ plaintiff

was well aware about the acquisition proceedings and

before the Appellate Court he has admitted the fact

that he has already availed the remedy available to

him under section 18 of the Act of 1894. He further

submitted that the Second Appellate Authority has

committed an error in passing the order dated

09.09.2016 as the same is in contravention of and

over-looking the provisions of Section 5(24),

16(vi), 63(3), 208 of the Act of 1955, Order 7 Rule

11 CPC read with Section 151 CPC and Section 18

and /or Section 30 of the Act of 1894.

(6 of 15) [CW-19271/2017]

9. Counsel appearing for the respondent No.3-

Rajasthan Housing Board submitted that the land in

question has been acquired after following the due

process of law and final award has been passed. He

further submitted that the possession of the land

has already been taken over by the respondent No.3-

Rajasthan Housing Board and they have deposited the

amount of compensation as awarded by the Competent

Authority.

10. No-one appeared on behalf of respondent/

plaintiff- Ramsahai Meena even after service of

notices upon him and filing of Vakalatnama on his

behalf.

11. Considered the submissions made at the Bar

by the counsels appearing for the respective

parties.

12. The basic issue raised by the counsel for

the petitioner/ defendant is that once the land

acquisition proceedings have commenced in respect of

the land in question it does not remain as an

agricultural land, and therefore, the Revenue Court

has no jurisdiction to entertain the suit for

declaration and permanent injunction. Thus, the suit

filed by the respondent/ plaintiff being barred by

law, deserves to be dismissed on an application

filed by him under Order 7 Rule 11 CPC. Order 7 Rule

11 CPC is quoted as under:-

(7 of 15) [CW-19271/2017]

"11. Rejection of plaint. The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

13. The application filed by the applicant-

Anandi Lal (predecessor of petitioner/ defendant)

under Order 7 Rule 11 CPC was mainly based on the

(8 of 15) [CW-19271/2017]

averment that the suit filed by the respondent-

plaintiff- Ramsahai Meena is barred by law as the

land acquisition proceedings have commenced and the

land in question does not remain as an agricultural

land for which the suit for declaration can be filed

before the Revenue Court.

14. In support of his submissions, the counsel

appearing for the petitioner/ defendant has relied

upon the judgment delivered by the Hon'ble Supreme

Court in State of Bihar Vs. Dhirendra Kumar & Ors.

(Civil Appeal No.5753 of 1995) decided on 27.04.1995. He has referred para No.3 of the

judgment which is quoted as under:-

"3. The question is whether a civil suit is maintainable and whether ad interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued under Section 9 of the Act and delivered to the beneficiary. The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The state is enjoined to comply with statutory requirements contained in Section 4 and Section 6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration under Section 6, the public purpose gets crystalised and becomes conclusive.

Thereafter, the State is entitled to authorise the Land Acquisition Officer to

(9 of 15) [CW-19271/2017]

proceed with the acquisition of the land and to make the award. Section 11A now prescribes limitation to make the award within 2 years from the last of date of publication envisaged under Section 6 of the Act. In an appropriate case, where the Govt. needs possession of the land urgently, it would exercise the power under Section 17(4) of the Act and dispense with the enquiry under Section 5- A. Thereon, the State is entitled to issue notice to the parties under Section 9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under Section 12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under Section 9 of CPC stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So, the order of injunction was without jurisdiction."

(10 of 15) [CW-19271/2017]

Counsel has also relied upon the judgment

delivered by this Court in Braj Mohan & Anr. Vs.

Rameshwar & Ors., reported in 2022 (2) cJ (civ.) (Raj.) 888. He has referred para Nos.3 and 4 of the judgment which are quoted as under:-

"3. The defendants filed an application under Order 7 Rule11 (d) readwith Section 151, wherein it was stated that in the plaint, the suit land was said to be agricultural land, therefore, in view of Section 256 of the Rajasthan Tenancy Act, the Civil Court had no jurisdiction to try the suit. It was also pleaded that the plaintiffs were not having actual and physical possession over the suit property and as the suit property had already been acquired by UIT for residential purposes and award was passed, jurisdiction of the Civil Court was barred. It was also contended that the plaintiffs concealed the material facts from the Court and did not file the suit with clean hands. It was further averred that since the matter in relation to the suit property had already been decided by this Court. Objection with regard to suit being time barred was also taken.

        4.    The    said      Court        vide       its         order    dated
        13.7.2015        in     view        of     the       provisions           of



                                  (11 of 15)                           [CW-19271/2017]

Order 7 Rule 10 CPC returned the plaint for presenting the same before the proper court. Against the order dated 13.7.2015, an appeal was filed and the appellate Court vide its order dated 24.4.2018 dismissed the appeal and affirmed the order dated 13.7.2015 passed by the Trial Court. The defendants filed the instant application under Order 7 Rule 11 readwith Section 151 CPC. The trial court vide its order dated dated10.3.2021 rejected the plaint filed by the plaintiffs being barred bylaw. Hence, this Civil First Appeal has been filed."

15. On consideration of the facts it is

revealed that the respondent/ plaintiff filed a suit

for declaration and permanent injunction stating

that he is a khatedar tenant of the land in question

and the defendant No.1- Anandi Lal got the mutation

of the said land executed in his favour wrongly and

when he came to know about the same, he immediately

filed a suit for declaration and permanent

injunction on 02.02.1996. The final award in the

land acquisition proceedings was passed on

09.04.1996 and prior to that the suit was filed by

the respondent/ plaintiff on 02.02.1996. The

respondent/ plaintiff- Ram Sahai Meena has filed the

suit for claiming his rights over the land in

question and on the date of filing the suit the land

in question was an agricultural land. It is also

(12 of 15) [CW-19271/2017]

pertinent to mention here that until and unless a

person seeks declaration from the Court competent in

regard to his rights, he cannot claim the benefits

under the Act of 1894 for compensation as there is a

dispute of the ownership and the title.

16. The petitioner /defendant has also raised

an issue that after initiation of the land

acquisition proceedings, the respondent /plaintiff

has an efficacious remedy under Sections 18 and 30

of the Act of 1894 if he has any grievance in regard

to the award or the land acquisition proceedings.

For ready reference Sections 18 and 30 of the Act of

1894 are quoted as under:-

"18 Reference to Court.- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or

(13 of 15) [CW-19271/2017]

within six months from the date of the Collector's award, whichever period shall first expire."

— "30 Dispute as to apportionment. When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court."

17. On bare perusal of the provisions of

Sections 18 and 30 of the Act of 1894 it is very

much clear that under the said provisions the

ownership and the tile over the property in question

cannot be decided. The judgment relied upon by the

counsel for the petitioner/ defendant delivered by

this Court in Braj Mohan & Anr. (Supra) was related

to a suit filed before the Civil Court in respect of

an agricultural land, as in regard to the suit

proceedings in respect of the agricultural land, the

suit could be entertained by the Revenue Courts in

view of the provisions of the Act of 1955. In the

present case also, on the date of filing of the suit

the land in question was an agricultural land and

the respondent/ plaintiff has rightly filed the suit

before the Revenue Court. The another judgment

relied upon by the counsel for the petitioner/

defendant delivered by the Hon'ble Supreme Court in

State of Bihar (supra) was in regard to the land

which was already acquired and held that the Civil

Court has no jurisdiction to go into the question of

(14 of 15) [CW-19271/2017]

validity and legality of the Notification under

Section 4 of the Act of 1894 and the declaration

under Section 6 thereof. The suit filed by the

respondent/ plaintiff in the present case is not in

regard to the legality of the Notifications issued

under the Act of 1894. Hence, both the case laws

referred are not applicable to the present case.

18. On consideration of the provisions of law,

the provisions of Order 7 Rule 11 CPC, the

provisions of the Act of 1894 and so also the

judgments referred by the counsel appearing for the

petitioner/ defendant and on critical scrutiny of

the findings given by the Second Appellate Authority

in the light of the provisions of law, this Court is

of the view that the Second Appellate Authority has

rightly held that the Land Acquisition Officer is

having no right to determine the share or decide the

rights of the parties under Sections 88 and 188 of

the Act of 1955 and the power is only with the

Revenue Courts. The Second Appellate Authority has

rightly observed that when a party is not

challenging the acquisition proceedings but asking

only for determination of his rights/ share, the

suit before the Revenue Court is maintainable. The

findings of the Second Appellate Authority that so

far as determination of the rights is concerned, the

right to get compensation has to be decided by the

Competent Authority to determine the share and

rights of the plaintiff over the land in question is

also valid. The findings of the Second Appellate

(15 of 15) [CW-19271/2017]

Authority that the acquisition proceedings cannot be

challenged in the civil suit but so far as the

determination of rights to get the compensation is

concerned, only the Revenue Court is competent to

decide the rights of the parties who are having

right to get compensation because on the date of

filing of the suit it has been alleged that the land

has been wrongly recorded in the name of the

defendant cannot be said to be illegal or perverse.

Until the Civil Court decides this issue that

whether the land was wrongly recorded in the name of

the defendant, plaintiff cannot go for claim of

compensation before the Competent Authority under

the provisions of the Act of 1894.

19. In view of the discussions made above, this

Court finds no error, illegality or perversity in

the findings recorded by the Second Appellate

Authority in its order dated 09.09.2016 and

therefore, no interference is called for.

20. As a result, the writ petition is

dismissed.

21. Since the main petition has been dismissed,

the stay application and pending applications, if

any, also stand dismissed.

(GANESH RAM MEENA),J

Sharma NK-Dy. Registrar

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