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2014 Supreme(Chh) 296
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Yuvraj - Appellant
Vs.
Gram Panchayat Dudhli Vikaskhand and Ors. - Respondents
Second Appeal No. 24 of 2001
Decided On: 02.05.2014
For Appellant/Petitioner/Plaintiff:Anil Pandey, Advocate
Headnote:
Chhattisgarh Land Revenue Code, 1959 - Section 57 - Code of Civil Procedure, 1908 - Section 96 - Whether the First Appellate Court was justified in reversing the finding of the trial court in as much as holding that the civil suit filed by appellant/plaintiff was not maintainable - suit for declaration of title and permanent injunction - cancellation of allotment is contrary to the law - Trial Court - We, therefore, hold that a Bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250 of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. We further hold that Nathu v. Dilbande Hussain, AIR 1967 Madh Pra 14 : 1964 Jab LJ 707 was correctly decided – Held, Thus, upon examination of the relevant statutory provisions and following the principles laid down by their Lordships of the Supreme Court in the aforesaid cases and Full Bench decision of Madhya Pradesh High Court, it would appear that the instant civil suit for declaration of title and permanent injunction, claiming Bhumiswami rights over the suit land filed by plaintiff in relation to his rights as a Bhumiswami, the Civil Suit was maintainable and cognizable by Civil Court and there is no bar under Section 57(2) of the Code, as Full Bench decision of the Madhya Pradesh High Court in Ramgopal Kanhaiyalal, AIR 1976 Madhya Pradesh 160(1) (supra) has been approved by the Supreme Court in case of Rohini Prasad, (2000) 3 SCC 668 (supra) and further in case of Hukum Singh (2005) 10 SCC 124 (supra) it has held that aggrieved Bhumiswami has remedy of filing a civil suit for establishing his title on the suit land of his Bhumiswami rights and for recovery of possession. In the present case, the suit for declaration of his Bhumiswami rights and permanent injunction is maintainable and Civil Court was having jurisdiction to decide the Civil Suit - Thus, the impugned judgment and decree passed by First Appellate Court holding the jurisdiction of the Civil Court to be barred, is evidently and palpably suffers from manifest error of jurisdiction and is accordingly set-aside. Thus, the substantial question of law is answered accordingly against the defendants - view taken by the Full Bench of the Madhya Pradesh High Court is affirmed by the Court in Rohini Prasad v. Kasturchand, (2000) 2 SCC 668]. This being the position, the first substantial question of law is wrongly decided by the High Court. Under the circumstances, the impugned order cannot be sustained. Consequently, the civil appeal is allowed and the judgment and decree passed by the High Court is set aside. The second appeal is remitted to the High Court for disposal afresh on merits accepting that the suit is maintainable, having regard to the law laid down by the Full Bench of the Madhya Pradesh High Court in Ramgopal as affirmed by this Court in Rohini Prasad - Appeal allowed
Sanjay K. Agrawal, J.
1. The substantial question of law formulated and to be answered by this Court in Plaintiff's second appeal is as under:--
"Whether the First Appellate Court was justified in reversing the finding of the trial court in as much as holding that the civil suit filed by appellant/plaintiff was not maintainable?"
[For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]
Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are as under:--
"1.1 Plaintiff- Yuvraj filed a civil suit for declaration of title and permanent injunction stating inter alia that suit land bearing Khasra No. 508, area 2.50 decimal, situated at village Dudhli, Tehsil Dondilohara, District Durg was granted by the State Government in his Bhumiswami rights by Exhibit P-2 on 21/03/1994, in which, he is in possession from 26/10/1994 by constructing house, but the defendant-Gram Panchayat has issued notice for demolition, leading to filing of the instant suit for declaration of his title. The defendants have no right to dispossess him except in accordance with law.
1.2 The defendants filed their joint written statement stating inter alia that the Bhumiswami rights granted to the plaintiff has been canceled on 04/09/1995 (Exhibit P-6), thus, he has no right to continue in possession of the suit land.
1.3 On the pleadings of the parties, the Trial Court by its judgment and decree dated 24/12/1999, decreed the suit of the plaintiff holding that the cancellation of allotment is contrary to the law, and restrained the defendants from interfering with peaceful possession of the plaintiff and negatived the ground of the maintainability of the suit while answering the issue No. 4.
1.4 The defendant-Gram Panchayat filed First Appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). The First Appellate Court relying upon Section 57(2) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as "the Code") held that unless the dispute is adjudicated under Section57(2) of the Code, the suit as framed and filed was not maintainable and set-aside the judgment and decree passed by the Trial Court on the sole ground and did not consider the appeal on merits."
2. Questioning the legal acceptability and sustainability of the impugned judgment and decree dated 09/10/2000 passed by Additional District Judge Balod, District Durg in Civil Appeal No. 15-A/2000, this instant second appeal has been preferred by the plaintiff under Section 100 of the CPC, in which, substantial question of law has been formulated as mentioned in opening paragraph of this judgment.
3. Mr. Anil Pandey, learned counsel appearing for the appellant/plaintiff would submit that the plaintiff was granted Bhumiswami rights vide Exhibit P-2, which was cancelled by Revenue Authorities vide Exhibit P-6, thereafter, plaintiff has challenged the cancellation of Bhumiswami rights by filing the civil suit, which was maintainable in law. He would also submit that the First Appellate Court has fallen into manifest error of jurisdiction in granting the appeal filed by the defendant-Gram Panchayat.
4. No one appeared on behalf of the respondent No. 1 -Gram Panchayat/defendant No. 1, though duly served.
5. Per contra, Mr. Akhil Agrawal, learned Panel Lawyer appearing for the State/respondents No. 2 to 5/defendants No. 2 to 5 would support the impugned judgment and decree of the First Appellate Court.
6. I have heard learned counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection.
Answer to substantial question of law:--
7. In order to proper comprehension of the attack made to the decree, it would be profitable to have a look of Section 57 of the Chhattisgarh Land Revenue Code, 1959, which runs as under:--
"57. State ownership in all lands--(1) All lands belong to the St
