AI Structured Summary
Not yet generated for this judgment
Judgment
S.B. Sinha, J.—This First Appeal arises out of a judgment and decree dated 30th August, 1976 passed by Shri Kamala Prasad Sinha, IVth Additional Sub-ordinate Judge, Ranchi in T.S. No (174/1973)/(227/1976) whereby and where under the said learned court dismissed the plaintiff-appellant''s suit. The plaintiff filed the aforementioned suit claiming, Inter alia the following reliefs :
(a) That it be declared that the order dated 13.11.72 passed by the Circle officer, Mandar in Tana Case No. 2 of 1971-72 is illegal and without jurisdiction and the possession of the plaintiff be confirmed over the lands in suit or in the alternative, if the court finds that the defendants have taken possession in pursuance of the order passed, a decree for recovery of possession be passed.
(b) That the defendants nos. 1 and 2 be permanently restrained from taking possession of the lands in suit in pursuance of the impugned order.
(c) That a decree for the cost of the suit be passed.
(d) That a decree for such other further relief or reliefs to which the plaintiff is entitled be passed.
In view of the points which arise for consideration in this appeal it is not necessary for me to state the facts of the case in details.
Suffice it to say that one Bhosa Uraon was the recorded tenant in respect of the lands in question. The said lands were sold in auction in Execution Case No. 324(R)/9/194-43 and in the said auction one Alfons Kujur purchased the lands, held on 27.10.1942 and took delivery of possession thereof on 11.1.1943. It would not be out of place to mention that the aforementioned auction took place in execution of a decree passed for recovery of rent. The said decree was passed in a suit filed by the landlord Rameshwar Marwari.
It is alleged that Alfons Kujur sold the land to one Victor Kandey by a registered deed of sale dated 10.6.1944 but in his turn he sold the same to one Rev. Robert Minz by virtue of registered sale deed dated 26.8.1955.
The plaintiffs further case is that the aforementioned Rev. Robert Minz made a gift of the said land in favour of the plaintiff by virtue of a registered deed of gift dated 8.9.1965 which was accepted by the plaintiff done. It is the further case of the plaintiff that the aforementioned Bhosa Uraon had been claiming possession of the lands in question, as a result whereof a proceeding u/s 145 of the Code of Criminal Procedure was initiated. The said proceeding u/s 145 of the Criminal Procedure Code ended in favour of the aforementioned Bhosa Uraon by an order dated 27.9.1948 as a result whereof a suit was instituted by Rev. Robert Minz being T.S. No. 227 of 1949 for declaration of title and recovery of possession.
In the said suit, it is alleged that the defendants thereof, namely, Bhosa Uraon did not take any plea in his written statements that either he was a Tana or the lands in question were sold in auction as he stopped payment of rent consequent upon his participation in the freedom movement. The aforesaid Title suit was decreed in favour of the aforementioned Rev. Robert Minz. The said Bhosa Uraon purported to be being aggrieved by and dissatisfied with the aforementioned judgment and decree passed in the aforementioned Title Suit No. 277 of 1949 (Judgment and decree dated 21.12.1950) preferred an appeal but later on withdrew the same.
It is further alleged that the delivery of possession was effected throughout. Thereafter the aforementioned Bhosa Uraon filed an application before the Circle Officer, Mandar Purported to be under the provisions of Ranchi District Tana Bhagat Raiyats Agricultural Land Restoration Act, 1947 (Bihar Act 2 of 1948) hereinafter referred to as the said Act, and the said Circle Officer in his capacity as a Deputy Commissioner under the provision of the said Act purported to have held that the auction sale in respect of the lands in question had taken place in the aforementioned Execution Case No. 324(R)/9/1942/43 in execution of a decree for arrears of rent due to default in payment of the said arrears made by the said Bhosa Oraon, who was a Tana Bhagat, in pursuance of the freedom movement. The Circle Officer, Mandar, therefore, by an order dated 13.11.1972 in Tata Case No. 2 of 1971-72 directed that the suit land be restored in favour of defendants no. 1 and 2 who are the sons of aforementioned Bhosa Uraon.
Mr. Debi Prasad, the learned counsel appearing on behalf of the appellant submitted that the judgment and decree passed by the learned court below is wholly erroneous in so far as it held that the Civil Court has no jurisdiction to set aside the order dated 13.11.1972 passed by the Circle Officer, Mandar in view of the provisions of section 8of the said Act. He firstly submitted that the Civil Court''s jurisdiction is not ousted by reason of section 8of the aforementioned Act for the purpose of examining as to whether the Circle Officer, Mandar lacks inherent jurisdiction in passing the impugned order or not. He further submitted that in the facts and circumstances of the case it was open to the Civil Court also to consider as to whether Bhosa Uraon was a Tana Bhagat or not or whether the land in question was sold in auction in terms of the provisions of section 4of the said Act or not.
Mr. Debi Prasad further submitted that the Civil Court''s jurisdiction is not ousted in terms of section 8of the said Act if the plaintiff was able to show that there had been total non-compliance of the provisions of section4 to 6 of the said Act.
Mr. S. K. Chattopadhyaya, learned Government Pleader No. I appearing on behalf of respondent no. 3 and Mr. L.N. Deo learned counsel appearing on behalf of respondent Nos. 1 and 2 on the other hand submitted that section 8imposes as a complete bar on the exercise of jurisdiction by the Civil Court. The learned counsel further submitted that the said Act is a complete Code in itself and in that view of the matter the plaintiff had no other remedy before any other forum except to pursue the remedies provided for in the Act itself. In this connection my attention has been drawn by the learned counsels to the provisions of section 7of the said Act which provides for a forum of appeal from the decision of the original tribunal.
On behalf of the plaintiff-appellant it was further contended that as in T.S. No. 227 of 1949 Bhosa Uraon did not raise any plea that either he was a Tana Bhagat or that the lands in question were sold in auction by reason of his taking part in a freedom movement and he did not pay the rent to the landlord pursuant thereto; the finding of the learned Circle Officer, Mandar as also the finding of the learned court below that Bhosa Uraon was a Tana Bhagat or that he participated in freedom movement between 1913-42 or the lands in question were sold in auction in execution of a decree for arrears of rent are apparently bad in law at they had no jurisdiction to decide the said question in view of the fact that Bhosa Uraon himself and consequently his heirs in view of the facts mentioned in paragraph-6 hereinbefore were estopped and precluded from raising the said plea.
In support of his submission Mr. Debi Prasad relied upon the decisions of the cases of Kishun Sah vs. Harinandan Prasad Sab and others (1963 B.L.J.R. 95), Addanki Tiruvenkata Thata Desika Charyulu (Since deceased) and after him his legal representatives Vs. State of Andhra Pradesh and Another, , Magulu Jal and others vs. Bhagban Rai and others (1975 Orissa 219) and a recent Full Bench decision of this Court in the case of Paritosh Maity vs. Ghasinam Maity (AIR 1987 Patna 167 : 1987 PLJR 354). Mr. Debi Prasad also drew my attention to an unreported decision of this Court in S.A. No. 96 of 1979(R) (Padam Sahu and ors. vs. Langra Kharia and ors) decided on 22nd July, 1985.
Mr. S.K. Chattopadhyaya the learned Government Pleader No. I, on the other hand, placed strong reliance upon the decision of the Supreme Court reported in Shree Raja Kandregula Srinivasa Jagannatha Rao Pantulu Bahadur Garu Vs. State of Andhra Pradesh, . Mr. Chattopadhyays has also drawn my attention to the Full Bench decision of this Court itself in Paritosh Matty''s case (supra) and submitted that the said decision also goes in favour of the contention that in the circumstances of this case the Civil Court has no jurisdiction to try the suit.
For the purpose of decision whether the Civil Court has jurisdiction or not to adjudicate upon the aforementioned question, as in other words whether the jurisdiction of the Civil Court is barred u/s 8of the said Act the same, in my opinion, have got to be decided taking into consideration the relevant decision referred to by learned counsel and as mentioned hereinbefore, but also keeping in view the scope; purport and object of the Act. In this connection reference may be made to case of Welver Hampton New Water Works Co. vs. Hawkesford (1859) 6 (CB) NS 336. The aforementioned decision has been followed by the Supreme Court in various judgments including the case of the The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, .
In the aforementioned decision it has clearly been laid down that where the right has been created for the first time by reason of the provisions contained in special statute and remedy to enforce such right has also been provided thereunder by constituting a forum; invariably the rights and obligation of the parties arising under such statute have got to be adjudicated in the forum provided for in the said Act and no other court or tribunal will have jurisdiction to decide the same. In this connection the following passage from the aforementioned decision may be quoted which reads as follows :
There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it.....With respect to that class it has always been held that the party most adopt the form of remedy given by the statute.
The said Act was enacted to provide for restoration of Tana Bhagat Raiyats on certain agricultural lands in the district of Ranchi sold in execution of a decree for arrears of rent in pursuance of any freedom movement launched or believed to have been launched in any of the year between 1913-42, it would be evident from the preamble of the Act.
Section 2 (1) defines Tana Bhagat in relation to the agricultural lands in the district of Ranchi sold in execution of a decree for arrears of rent, means a raiyat or under raiyat who defaulted in payment of arrears of rent or any decree for such arrears in pursuance of any freedom movement launched or believed to have been launched in any of the years 1913-42. Section 2 (3) defines a ''Deputy Commissioner'' as meaning the Deputy Commissioner of Ranchi or any Officer not below the rank of a Sub-Deputy Collector who is empowered by the Deputy Commissioner to discharge any of the functions of the Deputy Commissioner-Section 2 (4) defines ''holding'' as meaning a parcel or parcels of tend held by a Tana Bhagat Raiyat within a separate tenancy and includes a portion or undivided share in such land. Section 3of the said Act provides for effect of provisions of law to the effect that the provision thereof shall have effect notwithstanding anything contained in any other law for the time being in force. Section 4of the said Act lays down the procedures for effecting restoration of the holding which reads as follows : --
Sec. 4. Procedure for effecting restoration of holdings sold for arrears of rent;
(1) If the holding of any Tana Bhagat raiyat has been sold in execution of a decree for arrears of rent due to the default, in payment of such arrears of decree, made by such raiyat in pursuance of any freedom movement launched or believed to be launched in any of the year 1913 to 1942, the Deputy Commissioner shall, on an application made in the prescribed form and in the prescribed mariner by the Tana Bhagat raiyat or if he is dead, his legal representative or any other person duly authorised in this behalf by such Tana Bhagat raiyat or his legal representative, for the restoration of such holding to the ownership and possession of the Tana Bhagat raiyat or, as the case may be, his legal representative, make an inquiry in the prescribed manner after giving the parties a reasonable opportunity of being heard.
(2) If after the inquiry under sub-section (1), the Deputy Commissioner is satisfied about the claim of such Tana Bhagat raiyat or his legal representative he may require him to deposit with the Deputy Commissioner within the time allowed by him such sum as may be determined by him having regard to the amount for which the holding was sold to the auction purchaser or alienated, in any of the ways specified in subsection (2) of section 6, to the person in possession of the holding, either in whole or in part for valuable consideration and the amount of any compensation for improvements effected to the holding which the Deputy Commissioner may deem fair and equitable.
(3) If the Tana Bhagat raiyat, or, as the case may be, his legal representative makes the deposit required under sub-section (1) the Deputy Commissioner shall make an order in writing restoring the holding to the ownership and possession of such Tana Bhagat raiyat or his legal representative.
(4) Notwithstanding anything contained in sub-section (1), the Deputy Commissioner may, on receipt of any information, or on his own knowledge, that the holding of any Tana Bhagat raiyat has been sold in execution of a decree for arrears of rent for the reasons stated in sub-section (1) initiate of his own motions proceedings for restoration of such holding to the ownership and possession of such Tana Bhagat raiyat or, if he is dead, to his legal representative and thereupon the provisions of sub-section (1), (2) and (3) shall apply mutatis mutandis to such proceedings; Provided that no proceedings shall be initiated under sub-section (1) or sub-section (4) after the 31st day of March, 1962.
The other provisions which require notice for the purpose of disposal of this appeal are sections 7and 8of the Act which are as follows :--
Section 7. Appeals (1) An appeal shall lie from an order passed u/s 4--
(i) If such order is passed by an Officer, other than the Deputy Commissioner, to the Deputy Commissioner;
(ii) If such order is passed by the Deputy Commissioner, to the Commissioner; and the decisions of the Deputy Commissioner or of the Commissioner on any such appeal shall be final.
(2) Appeals under this section shall be heard and disposed of in accordance with the prescribed procedure.
Section 8. Exclusion of jurisdiction of Civil Court and High Court.--Neither the High Court nor any Civil Court shall have jurisdiction in any matter which the Deputy Commissioner is empowered to dispose of under this Act and the order of the Deputy Commissioner under any provision of the Act shall, subject to the provisions of section 7, be final and shall not be questioned in any court.
From a perusal of the aforementioned provisions it would be evident that not only a right has been created in favour of a Tana Bhagat Raiyat, which right evidently did not exist prior to coming into force the aforementioned Act, but a forum to enforce such right has also been provided thereunder. From the provisions of the aforementioned Act as mentioned hereinbefore it would be absolutely clear that the said Act is a self-contained Code and in my opinion, comes within the third category of cases referred to in the case of welver Hampton New Water Works Co. (supra).
Section 9 of the CPC confers jurisdiction upon the Civil Court to try all suits of civil nature excepting such suit, which is expressly or impliedly barred.
From a perusal of section 8of the said Act it would be evident that the same imposes a complete embargo upon the exercise of jurisdiction of the Civil Court. In this connection it is useful to refer to section 8of the said Act whereby and whereunder not only bar to the jurisdiction of the Civil Court has expressly been created but also it has specifically been declared that the order of the Deputy Commissioner under the provisions of the Act shall be final and shall not be questioned in any Court (Underlining is mine). It has not been contended that the impugned order dated 13.11.1972 passed by the Circle Officer, Mandar in Tana Case No. 2 of 1971-72 was not an order passed under the provisions of the aforementioned Act.
For the purpose of giving a true and effective interpretation of section 8of the said Act, the same has to be gathered not only with reference to the wordings mentioned thereunder but also after taking into consideration the scheme of the entire Act. In my opinion, the jurisdiction of the Civil Court is completely ousted by reason of the provisions of section 8aforementioned, inasmuch as the orders passed thereunder are absolutely final and cannot be questioned in any court whatsoever. The Supreme Court of India in the case of the State of Kerala Vs. Ramaswami Iyer and Sons, clearly laid down that the question with regard to the bar of the jurisdictions of the Civil Court should be decided on the basis of the scheme of the Act and further when the legislature sets up a special tribunal to determine the question relating to the rights which by necessary logical corollary includes the liability of the other parties to the lis which have been created by reason of the provisions of the statue the jurisdiction of the Civil Court would be deemed to be excluded by necessary implication.
As seen hereinbefore not only the jurisdiction of the Civil Court has been barred expressly but in view of the fact that new right has been created in favour of a class of persons and a forum has also been prescribed for determination of such rights and liabilities, there is, therefore, absolutely no doubt that the jurisdiction of the Civil Court is barred by reason of the provision contained in section 8of the said Act. In the decisions cited by Mr. Debi Prasad this aspect of the matter has not been taken into consideration.
Further it is useful to refer to the decision of the Supreme Court in the case of Shree Raja Kandregula Srinivasa Jagannatha Rao Pantulu Bahadur Garu Vs. State of Andhra Pradesh, wherein it has been held, while following the decision of that court in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, , that where the statute gives a finality of the orders of the special tribunal the Civil Courts'' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.
As seen hereinbefore that the order of the Deputy Commissioner can be challenged in an appeal under the provisions of section 7of the said Act.
However, in a recent decision in C.W.J.C. No. 1624 of 1981(R) it has been held by this Court that the jurisdiction of the High Court under Articles 226 of 227 of the Constitution of India is not ousted by reason of the provisions of section 8of the said Act.
In the recent Full Bench decision of this court in the case of Paritosh Maity vs. Ghasiram Maity and another it has been held in paragraph-18 of the judgment as follows :--
On the other hand, primal reliance by the learned counsel advocating the bar to the Civil jurisdiction was placed on A.I.R.S.C. 2320, (Hatti vs. Sundar Singh). Therein on a construction of the provisions of the Delhi Land Reforms Act, it was held that the jurisdiction of the Civil Courts was ousted. However, what fell for consideration by their Lordships in that case was S. 185(1) , Delhi Land Reforms Act, which is in the following terms : --
Except as provided by or under this Act, no Court other than a Court mentioned in Col. 7 of Schedule-1 shall, notwithstanding any thing contained in the Code of Civil Procedure, 1908, take cognizance of any suit application or proceedings mentioned in Col. 3 thereof." Now plainly enough, the aforesaid section in unequivocal terms bars the jurisdiction of any other court including a civil Court in spite of S 9, Civil P.C. There is no provision even remotely similar to the aforesaid one in the present Act. Consequently, it is inapt to invoke the ratio of the said case in the context of the provisions of the Chhotanagpur Tenancy Act, which have been discussed in detail.
So far as the unreported decision of this Court in Padam Sahu''s case (supra) it does not appear that argument was advanced therein that the Civil Court has no jurisdiction to decide the correctness or otherwise of an order passed under the provisions of the said Act. As the aforementioned question did not fall for consideration in Padam Sahu''s case, in my opinion, no reliance can be placed thereon for the purpose of showing that the Civil Court will have jurisdiction if the procedures laid down under the said Act have not been followed.
It is now well settled that a decision is an authority for which it decides and not what can logically be deduced from it. Reference in this connection may be made to a decision of Quinn vs. Latham (1900-3 A.E.R. re-print page-1 at page 6) (Per speech of Lord Halsbury).
From the perusal of the said decision in Palam Sahni case it appears that neither the question with regard to the ouster of the Civil Court''s jurisdiction in terms of section 8of the said Act was ever raised or answered, even remotely, there is no discussion in the said judgment about the implication of the provisions of section 8of the said Act.
In view of the fact that similar provisions like section 8of the said Act has been interpreted by the Supreme Court in its various decisions and as referred to hereinbefore the jurisdiction of the Civil Court will be completely barred. In my opinion, the aforementioned judgment of Padam Sabu (supra) strongly relied upon by Mr. Debi Prasad, therefore, cannot be said to have any application in the facts and circumstances of the case.
In view of my findings that the Civil-Court has no jurisdiction, I have no option but to dismiss the appeal. However, on the facts and circumstances of the case there will be no order as to costs. It was however, made clear that in view of my findings aforementioned 1 have not discussed the other points raised by Mr. Debi Prasad which were raised before the court below.