Order On Board

11/03/2025

1. This Second Appeal has been preferred against the judgment and decree dated 29.06.2017 passed in Civil Appeal No.426-A/2013 by the 4^th Additional District Judge, Ambikapur, District Surguja, whereby the judgment and decree dated 01.03.2012 passed in Civil Suit No.57A/2010 by the 5^th Civil Judge, Class II, Ambikapur, District Surguja, whereby the Suit was dismissed, was upheld.

2. For the sake of convenience, the parties are addressed as per the nomenclature given before the trial Court.

3. Necessary facts of the case are that the appellant/plaintiff filed a Civil Suit for declaration of title, permanent injunction and possession in respect of suit land bearing Khasra No.409/1 area 0.061 hectares and Khasra No.797 area 0.182 (wrongly written as 497/1) hectares total area 0.243 hectares situated at Village Hargaowan, Tahsil Shankargarh, District Surguja, Now Balrampur (C.G.). It has been averred that suit lands were settled in the name of father of plaintiff namely Binua, during the Surguja Estate Settlement and since then he has been in possession of the suit property. After the death of his father, the property came to him and the plaintiff belongs to the Khairwar Caste which is a Scheduled Tribe. It has been further averred that father of defendant No.1, late Bansi Jaiswal, was a non-tribal and the father of the plaintiff has taken a loan of Rs.1,500/- from late Bansi Jaiswal and has mortgaged his property and without knowledge of the plaintiff, a sale deed has been executed. When the plaintiff wanted to return the loan amount, the father of defendant No.1 refused to take back the amount and has also denied to return the mortgage property. Hence, the plaintiff/appellant moved an application under Section 170-B of the C.G. Land Revenue Code, which was dismissed by the SDO, Shankargarh by holding that the transaction is between tribal to tribal. Thereafter, an Appeal has also been preferred before the Collector, which was also dismissed.

4. Respondents No.1 and 2/defendants remained ex parte. The trial court based on the pleadings of the parties, framed as many as 6 issues and after evaluating the evidence available on record, dismissed the Suit, which was affirmed by the Appellate Court and both the Courts below have reached to the conclusion that the material document of the alleged sale deed, which has been challenged, has not been filed, and the orders of the Revenue Courts for which relief was sought were also not filed.

5. Learned counsel for the appellant submits that indisputably the subject property earlier belonged to the father of the plaintiff, Binua and they belong to the tribal community. He submits that respondent No.1 in a fraudulent manner obtained a sale deed from the father of the plaintiff and the same was executed in the name of respondent No.2, therefore, he would submit that both the Revenue Courts have not passed the proper order. Lastly, he would submit that this Appeal may be allowed and the matter may be remitted back to the trial Court to examine whether both the Revenue Courts have properly complied with the procedure or not, or alternatively, the appellant may be given a liberty to challenge the aforesaid order in a writ jurisdiction as there is a bar under Section 257(l-

1) of the C.G. Land Revenue Code.

6. Indisputably, the appellant/plaintiff has preferred an application under Section 170-B of the C.G. Land Revenue Code before the competent authority, which was dismissed by the SDO, Ramanujganj and the same was affirmed by the Collector in Appeal thereafter, the appellant has not challenged the aforesaid order any further and filed the instant Civil Suit.

7. In a celebrated decision of Hon’ble Supreme Court in the matter of Dhulabhai vs. State of M.P., AIR 1969 SC 78, it has been observed that 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 C