Babulal (Dead) Through Lrs vs Booti Bai

Heard on admission.

This Second Appeal under Section 100 of Civil Procedure Code, has been filed by the appellant against the judgment and decree dated 25.08.2008 passed by Second Additional District Judge (FTC) Manen-dragarh, District Korea in Civil Appeal No. 17-A/2007 affirming the judgment and decree dated 06.07.2006 passed by Civil Judge Class-I, Manendragarh in Civil Suit No. 2-A/2001 for declaring the judgment and decree passed in 25-A/1999 to be illegal.

For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 2-A /2001 before the trial Court.

The necessary facts for disposal of the present appeal, in short, are that the plaintiff and defendant were the party to Civil Suit No. 25-A/1999 wherein defendant Bootibai was the plaintiff and Babulal was defendant in that suit. It has been contended that in that suit Government of Mad-hya Pradesh was made as formal party but not as necessary, though considering the nature of dispute, the State should have been arrayed as necessary party and without arraying State as necessary party the suit has been decreed in favour of plaintiff of that case i.e. Bootibai which is illegal and deserves to be set aside by this Court. It has been further con-tended that the plaintiff Bootibai has filed the suit pleading that land situ-ated at village Sagra bearing khasra Nos. 90/27 area 1.088, 92/4 area 0.429, khasra no. 443/1 area 0.506 hectares of land was allotted in the name of Richkunbai by the State Government which was renumbered as khasra No. 147, 306 B, 431 areas 0.45, 0.68 and 106 hectare. It has been further contended that in that civil suit, plaintiff Bootibai has filed the suit for declaring her to be titleholder of the suit property and also prayed that possession of the suit property be taken over by Babulal and handed over to Bootibai as after death of her mother, Babulal was doing the agri-cultural work unauthorizedly on the said land. It has been further pleaded in the plaint that the cause of action arose on 08.06.1991, as the defen-dant Babulal has mutated his name in the revenue record fraudulently in the lifetime of Richkunbai and since then he was in illegal possession of the land therefore, the same be declared as null and void.

Plaintiff Babulal has filed the written statement contending that Richkun-bai in her lifetime has handed over the disputed property to him on 12.07.1978 and the possession of the said property in his favour is not il-legal. It is contended that he has received the right of land owner right of the disputed property as per the settlement. It has also been contended that Richkunbai was the mother of defendant Bootibai and plaintiff Babu-lal was the nephew of Rechkunbai. She was residing with the plaintiff and Babulal has performed last ritual of Richkunbai. It has also been contended that the land was given to the Richkunbai by the Government as Government lease holder after death of Rechkunbai, Babulal became the lease holder of the land and considering continuation of possession of the land, the government has allotted the lease to Babulal. Learned trial Court without appreciating the evidence and the fact that the Government was the necessary party but has been arrayed as formal party. It has been further contended that in pursuance of the judgment and decree passed by the trial Court in Civil Suit No. 25-A/1999, the Government has also recorded the name of Bootibai because of the ille-gal decree the right of the plaintiff has been adversely affected which has necessitated him to file the civil suit. On the above factual matrix, he has prayed that the judgment and decree passed by the trial court in Civil Suit No. 25-A/1999 be declared null and void.

Defendant Bootibai has filed written statement denying the allegation made in the plaint, contending that after death of Richkunbai, plaintiff Babulal was doing unauthorized agricultural work since 1998 and in the revenue record fraudulently, he has recorded his name and also denying the title of Bootibai which has necessitated to file the suit for declaration and possession. It has also been contended that in pursuance of judg-ment and decree passed by the trial Court, the name of plaintiff has been recorded. It has been further contended that being aggrieved by the judg-ment and decree passed by the Civil Judge, Byohari, the plaintiff has preferred Civil Appeal No. 30-A/2000 before the learned Additional Dis-trict Judge, Byohari and the learned Additional District Judge, Byohari has affirmed the judgment and decree passed by the learned trial Court against that he has not preferred any appeal, therefore, it becomes final. It has been further contended that since the parties are one and the same and the subject matter is one and the same, therefore, principle of res-judicata is applicable in the present case. It has been further con-tended that the Government is necessary party in the present suit but the plaintiff Babulal has not impleaded the Government as party to the case though they seek decree against the Government, as such the suit for want of necessary party deserves to be dismissed by this Court.

On the pleading of the parties, learned trial Court has framed as many as four issues. The plaintiff to substantiate his claim has examined himself as PW-1, Shivcharan Singh (PW-2) and exhibited documents I.e. certi-fied copy of order dated 28.06.2002 passed in Civil Suit No. 25-A/99, copy of plaint (Ex.P-2), written statement filed by the plaintiff on 08.01.2002 (Ex.P-3), written statement filed by the plaintiff 06.01.2003 (Ex.P-4), Panchshala (Ex.P-5) whereas defendant examined herself (DW-1) and exhibited documents i.e. Khasra panchashala for the year 2004-05 as (DW-1), demarcation report (Ex.D-2) and judgment and de-cree passed by Additional District Judge, Byohari (Ex.D-3).

The plaintiff in examination-in-chief has stated that the disputed property is a government land in which lease was given by Tahsildar. This witness was cross-examined wherein he has admitted that the land was given on lease to Richkunbai and Richkunbai has not recorded any lease in his favour and he has not submitted any document in his favour before the Court. He has stated that he has preferred an appeal before the Addi-tional District Judge, but he did not know whether he lost or won the case. He has also stated that he is not aware whether order for giving possession to Bootibai with regard to suit property has been passed or not. Shivcharan Singh (PW-2) has stated that Richkunbai is the daughter of my uncle and he has also stated that the lease was given by the Gov-ernment in favour of Richkunbai.

The defendant in her examination-in chief has reiterated the stand taken by her in written statement. The witness in the cross-examination, has admitted that Babulal is doing agricultural work forcefully on the suit property.

Learned trial Court after appreciating the evidence, material on record has dismissed the suit against that he has preferred an appeal before the learned Additional District Judge, Manendragarh, Korea which was dis-missed on 25.08.2008 by the learned Second Additional District Judge (FTC) Manendragarh affirming the judgment and decree passed by the learned trial Court on 06.07.2006. The learned First Appellate Court after appreciating the evidence, material on record, considered the fact that no lease has been allotted in favour the plaintiff Babulal, which can establish that he has received the property on transfer from Richkunbai, as such the government was not necessary party before the Civil Suit No. 25-A1999. The learned First Appellate Court has also recorded a finding that the plaintiff Babulal has preferred an appeal against the judgment and decree passed by the learned District Judge under Section 96 CPC which was dismissed but he has not preferred Second Appeal before the High Court, therefore, instead of challenging the judgment and decree passed by the trial Court affirmed by learned Additional District Judge, the subsequent suit declaring the judgment and decree to be null and void is not permissible and is against the provisions of CPC, therefore, the suit was rightly dismissed by the learned trial Court and affirmed by the Appellate Court.

Being aggrieved with the judgment and decree passed by the appellate Court, the plaintiff has preferred the Second appeal under Section 100 CPC. Learned Counsel for the appellant would submit that the learned trial Court should have seen that the Civil Suit No. 25-A1999 was barred by provisions of 257 of the Chhattisgarh Land Revenue Code, therefore, the judgment and decree passed is null and void. He would further sub-mit that the plaintiff was given Bhumiswami right over the suit land and earlier suit was filed without claiming the substantive relief from the State Government and the judgment and decree passed by both the Courts below deserve to be set aside. Learned counsel for the appellant would further submit that the Civil Suit No. 25-A/1999 as framed and filed is not maintainable in light of Section 257 and 57(2) of the Chhattisgarh Land Revenue Code. He would further submit that Section 57 provides that the State ownership in all lands and section 257 deals with exclusive jurisdic-tion of revenue authorities with regard to subject mentioned in section 257 of the Land Revenue Code and no Civil Court can exercise jurisdic-tion regarding delivery of actual possession of the land to the Bhu-miswami of the Government lessee, therefore, the Civil suit No. 25-A/99 was not maintainable and would submit that the substantial question of law is required to be answered and the appeal deserves to be admitted.

On the other hand, learned counsel for the defendants would submit that the judgment and decree passed by the learned trial Court and affirmed by the Appellate Court is legal, justified which does not warrant interfer-ence by this Court.

I have heard learned counsel for the parties, perused the document with utmost satisfaction.

From the record, it is quite vivid that the trial Court while deciding the is-sue No. 3 whether there is any violation of section 257 and 57(2) of the Chhattisgarh Land Revenue Code has recorded a finding that once the judgment and decree between the same party has been passed with re-gard to the same subject-matter of the property and appeal was filed be-fore learned Additional District Judge (FTC), Manendragarh and there-after no second appeal was preferred before this Court, therefore, the judgment and decree passed by the trial Court is affirmed and the trial Court ha no authority to interfere in the order which has been affirmed by the appellate Court, therefore, the trial Court has decided the issue no. 1,2 and 3. The Appellate Court has also recorded the finding that the plaintiff has not brought any document to substantiate that the property has been transferred in his name, even in the evidence recorded before the trial Court that plaintiff Babulal has categorically admitted that he has not filed any document that the property has been transferred in his favour. The plaintiff has not shown any right over the suit property, there-fore, the judgment and decree passed by the trial Court has rightly been affirmed by the first Appellate Court.

Further submission of learned counsel for the appellant is that the suit was not maintainable in view of Section 257 and 57(2) of the Chhattis-garh Land Revenue Code as the subject matter falls within the exclusive jurisdiction of the revenue authorities. This submission cannot be consid-ered as from bare perusal of the plaint averment made in the earlier Civil suit No. 25-A/1999, it is quite vivid that the plaintiff has filed the suit for declaration and possession over the suit property wherein the State of Madhya Pradesh was made party No. 2. Section 57 provides that the State owned in all the lands and section 257 of the Land Revenue Code provide that except as otherwise provided in the Code or in any other in-actment for the time being force no Civil Court shall entertain any suit in-stituted or application made to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer is by the Land Revenue Code empowered to determine or decide or dispose of the matter enumerated in the Section. From the evidence, material on record it is quite clear that plaintiff Babulal has clearly admitted that no lease by the Government was granted in his favour and on the evidence adduced by Bootibai, it is quite vivid that Babulal has unauthorizedly occupied the suit land, therefore, the Civil Court has only jurisdiction to pass a decree of vacant possession of the suit land. The relief sought by the plaintiff Bootibai in Civil Suit No. 25-A/99 does not fall within any of subject-matter described in Section 257 of the Land Revenue Code. Thus, the finding recorded by the learned trial Court and affirmed by the learned First Appellant Court the provisions of section 257 of the Land Revenue Code is not attracted, cannot be said to be illegal or suffers from perversity or non application of law which requires interference by this Court. This issue has come up for consideration before Division Bench of Madhya Pradesh High Court in the case of Nathu vs. Dilbande Hussain and Others reported in 1967 AIR MP 14 has held at paragraph 9 as under:-

“It must be noted that an aggrieved Bhumiswami is not bound to resort to the remedy provided by Sec-tion 260. This is clear from the provison in Section 250(1) that “ the Bhumiswami or his successor-in- in-terest may apply to the Tahsildar for restoration of the possession…………..” The word “may” means  that the aggrieved Bhumiswami is not bound to avail himself of the summary and seedy remedy provided by Section 250 of the Code. He may, if he likes, straightway bring a suit in a civil Court for the estab-lishment of his title to the land and to recover pos-session thereof. The word “may” does not mean that the aggrieved Bhumiswami can at his option launch proceedings in a civil Court u/s 9 of the Specific Re-lief Act or in a revenue Court u/s 250 of the Code for recovery of possession of the land. But if he wishes to have the land restored to him, then he has two Courses open. He can either approach the Tahsildar u/s 250 of the Code or he may bring a suit in a civil Court founded on title. But so far as the recovery of possession of land after summsary enquiry is con-cerned, the aggrieved Bhumiswami has no option. For the remedy, he must approach the Tehsildar u/s. 250 of the Code. The remedy of a suit u/s. 9 of the Specific Relief Act is clearly not avaialbe to him in view of Section 257(x) of the Code”.

Upon perusal of entire evidence, no substantial question of law requires to be formulated for hearing of this second appeal. There is concurrent finding of fact with regard to no lease was granted to the plaintiff Babulal and also with regard to non-application of Section 257 of the Land Rev-enue Code are finding of fact which is neither perverse nor contrary to the record. As such also no question of law requires to be determined by this Court. The Hon’ble Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others (2020) 4 SCC 659, has held at paragraph 28 as under:-

Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evi-dence or based on misreading of the material on records and documents. The Court held as under:

“When any concurrent finding of fact is as-sailed in second appeal, the appellant is enti-tled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on mis-reading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge act-ing judicially could reasonably have reached. (see observation made by learned Judge Vi-vian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vish-wanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para43).”

This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of sub-stantial question of law is the sine-qua-non for the exercise of the juris-diction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

In view of above, since no substantial question of law arises for determi-nation in the instant case, this is not a fit case for admission. Conse-quently, the appeal is dismissed at motion stage itself under the provi-sions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.

A decree be drawn up accordingly.