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Judgment
N. Kotiswar Singh, J.—Heard Mr. N. Ibotombi, learned senior counsel for the petitioner as well as Mr. R.K. Nokulsana, learned senior counsel for the respondent
The present petition has been filed under Article 227 of the Constitution of India against the orders dated 26.05.2014 and 2.06.2014 passed by the learned Civil Judge Sr. Divn. No. I, Manipur East in Original Suit No. 65 of 2013.
The issue raised in the present petition is whether the trial Court suo moto could direct the parties to proceed for demarcation to see whether the plaintiff or defendant had encroached upon the land and direct the Deputy Commissioner to depute his subordinate staffs for the said purpose relating to boundary dispute.
The petitioner as plaintiff claiming to be the owner of a land, instituted a suit before the learned Court of Civil Judge (Senior Division) No. I, Manipur East which was registered as Original Suit No. 65 of 2013 claiming for declaration of the boundary line, declaration that the defendant had no right in claiming for the suit land, a decree for permanent injunction, etc. against the respondent/defendant.
To understand the nature of the issue involved in this petition, it may be appropriate to reproduce the reliefs claimed in the Original Suit No. 65 of 2013 as follows:
"i) A decree of declaration that the ''demarcating lines'' as described in the Schedule-B of the plaint is the southern boundaries of the suit-land adjacent to the ''lands possessed by defendant'' and the defendant has no right to claim over any part of the suit land bounded by the said ''demarcating lines'';
ii) A decree of declaration that the defendant has no right to claim over any part of the suit land;
iii) A decree for permanent injunction restraining the defendant, his men, heirs, privies, agents and cohorts from entering, encroaching and trespassing over the suit land;
iv) A decree of permanent injunction restraining the defendant, his men, heirs, privies, agents and cohorts from interfering into the peaceful enjoyment and possession of the plaintiff over the suit land;
v) An order of temporary injunction restraining the defendant, his men, heirs, privies, agents and cohorts from entering and trespassing over the suit land and from making any alteration of the nature of the suit land, till the disposal of the suit."
A Misc. case was also filed for grant of temporary injunction in the said suit.
The respondent/defendant entered appearance in connection with the said suit and filed his written statement denying the averments and allegations. Thereafter, the learned trial Court vide order dated 26.05.2014 framed as many as 7 (seven) issues to decide the suit, which are again reproduced herein below for proper adjudication of the case:
"1. Whether the plaintiff is the owner and possessor of the homestead land under patta No. 135(pt.)(old), 210/1786(new), covered by C.S. Dag No. 2065/2213 measuring an area of about 0.0154 hectares of Rev. Village No. 86-Bijoy Govinda which is described in Schedule-A or not?
Whether the homestead land of the plaintiff at Schedule under patta No. 135, covered by C.S. Dag No. 1148 measuring an area of.22 acre encroached land of the defendant or not?
Whether the suit suffers from defect of parties or not?
Whether the plaintiff has locus standi to file the suit or not?
Whether the suit is barred by Section 159 of the MLR & LR Act?
Whether the suit is properly valued or not?
Whether the plaintiff or defendant is entitled to the reliefs claimed or not?"
It is the case of the petitioner/plaintiff that the trial Court instead of considering the prayer for passing temporary injunction and also proceeding the trial Court to decide the issues framed, without any application from any of the parties passed the orders dated 26.05.2014 and 2.06.2014 to cause demarcation of the land. The said impugned orders, being highly relevant are reproduced herein below again:
"COPY OF THE ORDER PASSED ON 26-05-2014.
The plaintiff by ld. counsel present. The defendant by ld. counsel present. Issues are heard and framed. Fix 2-6-2014 for filing list of witnesses.
In the meantime the parties along with their counsel are to proceed for demarcation or to see whether the plaintiff or defendant has encroached upon their land each other or not on 8-6-2014. The DC/IW is to depute his subordinate staff for the said purpose and submit the report on 13-6-2014. Send a copy of this order to the D/C, Imphal West and also to the parties. C.A. is to take step.
Sd/- (Ch. Shantibala Devi) Civil Judge(Senior Division) No. I, Manipur East."
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"COPY OF THE ORDER PASSED ON 2-06-2014.
The plaintiff by ld. counsel present. The defendant by ld. counsel present. The ld. counsel for the plaintiff prays for another date demarcation as he will be out of station and prays for another date for the said purpose which is objected by the ld. counsel of the defendant.
In the result the parties along with their counsel are to proceed for demarcation or to see whether the plaintiff or the defendant has encroached upon their land of village 86-Bijoy Govinda each other or not on 15-6-2014. The DC/IW is to depute his subordinate staff for the said purpose and submit the report on 21-6-2014.
Send a copy of this order to the DC/IW and also to the parties. Shri O. Anilkumar Singh, Steno of this Court is to carry the record. C.A. is to take step.
Sd/- (Ch. Shantibala Devi) Civil Judge(Senior Division) No. I, Manipur East."
Thus, as evident from the aforesaid orders, the learned trial Court suo moto directed the parties to proceed for demarcation or to see whether the plaintiff or defendant had encroached upon their lands each other or not. Further, the Deputy Commissioner was also directed to depute his subordinate staff for the said purpose and submit the report thereafter.
The aforesaid orders passed by the learned Civil Judge Sr. Divn. No. I, Manipur East, according to the petitioner/plaintiff is beyond his jurisdiction and also not provided under any provision of the Code of Civil Procedure.
The petitioner/plaintiff contends that neither the plaintiff nor the defendant sought for any demarcation nor submitted any application, and as such, the orders passed by the learned trial Court suo moto without any application of prayer from any parties is wholly illegal.
It has been contended by the petitioner that the trial Court below by adopting a procedure unknown to law and not provided in the Code of Civil Procedure, passed the impugned orders which are liable to be set aside. It has been also contended that one of the issues framed i.e. issue No. 5 is whether the suit is barred by Section 159 of MLR and LR Act and if the impugned orders passed by the trial Court is allowed to stand and implemented, it will amount to deciding the issue No. 5 without adducing any evidence or trial. Accordingly, Mr. N. Ibotombi, learned senior counsel, has submitted that the said orders are unsustainable and beyond the jurisdiction of the court and as such, are liable to be set aside by this Court in exercise of powers under Article 227 of the Constitution of India.
Mr. R.K. Nokulsana, learned senior counsel for the respondent defendant, however, supporting the orders passed by the learned trial Court has submitted that though no application had been filed, the Court had the power to issue Commissions under Section 75 of the CPC after considering the pleadings in the plaint and written statement and while framing the issues, and one of the issues involved in the suit was demarcation of the land. It has been submitted that these orders for demarcation of land are based on the pleadings of the parties and accordingly, it cannot be said that the Court had no power or jurisdiction to pass these orders.
It has been contended that these orders were passed by the trial Court to ascertain whether there was any dispute amongst the parties on the boundary. If it is found that there was some dispute regarding in the boundary, in that event, the civil court would not have jurisdiction and the matter would have to be referred to the competent Revenue Court as provided under Section 52 of the MLR and LR Act, 1960. It has been submitted that in respect of the dispute regarding boundary the jurisdiction of the civil court are barred and is to be decided by the Revenue Court as provided under Section 52 of the MLR and LR Act, 1960 and thereafter, the Deputy Commissioner may summarily evict any land holder who is wrongfully in possession of any land under Sections 52 and 53 read as follows:-
"52. Determination of village boundaries :- The boundaries of villages, survey numbers, sub-divisions and fields shall be fixed and all disputes relating thereto shall be determined by survey officers or by such other officers as may be appointed by the State Government for the purpose, in accordance with rules made in this behalf.
Effect of settlement of boundary :-
(1) The settlement of a boundary under this Chapter shall be determinative:-
(a) of the proper position of the boundary line or boundary marks, and
(b) of the rights of the landholders on either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings.
(2) Where a boundary has been so fixed, the Deputy Commissioner may at any time summarily evict any landholder who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims."
It has been further contended by Mr. R.K. Nokulsana, learned senior counsel that perusal of the order dated 2.06.2014 clearly shows that the plaintiff had also agreed to the passing of such order as the learned counsel for the plaintiff had prayed for another date for demarcation as he would be out of station. It has been submitted that the fact that the counsel for the plaintiff had prayed for another date for the demarcation clearly indicates that the plaintiff was also agreeable to such an order and accordingly having agreed to the said order, the petitioner/plaintiff herein could not have turned around and challenge the said orders.
As regards the aforesaid contention of the Mr. R.K. Nokulsana, learned senior counsel for the respondent, Mr. N. Ibotombi, learned senior counsel for the petitioner has submitted that Section 75 of the CPC conferring power on the Court to summon is to be read with provisions under Order XXVI. Though Section 75 of the CPC confers power on the Court to issue a commission to make a local investigation, the procedure as provided under Order XXVI Rule 9 has to be adopted. Under the said rules, the Court may issue a commission or to a particular person to cause investigation as provided. However, in the present case, the Court instead of directing a particular person to make local investigation, directed the Deputy Commissioner to depute one of his subordinate staffs in connection with the said demarcation, which is not contemplated under Rule 9. It has been submitted that in other words, no direction would be issued to another authority to depute his subordinate staff to act as a Commissioner of the Court as it is for the Court to specifically issue a commission to a particular person to make a local investigation, in exercise of its power conferred under Order XXVI Rule 9 read with Section 75 of the CPC.
To this, Mr. R.K. Nokulsana, learned senior counsel for the respondent has submitted that under Sections 52, 53, 54, 55, 56, 57 and 58 of the Manipur Land Revenue and Land Reforms Act, 1960, the Deputy Commissioner is the authority for making boundary marks and Deputy Commissioner under Section 53 of the said Act may evict any land which is wrongfully in possession. Thus, it has been submitted that Deputy Commissioner has power to make order for demarcation and as such, a direction issued by the Court below for directing the Deputy Commissioner to send its subordinate staffs cannot be faulted with. It has been also submitted that under Section 159 of the MLR and LR Act, 1960 jurisdiction of the civil courts is excluded in respect of dispute regarding boundary and trial Court below had directed for a local commission in order to ascertain whether there was any dispute regarding the boundary and if there is such, the matter has to be relegated to the competent Revenue Court. It has been submitted by Mr. R.K. Nokulsana, learned senior counsel, relying on the decision of the Supreme Court in Filmistan Private Ltd., Bombay Vs. Bhagwandas Santprakash and Another, , that the Court has ample power to issue commissions under Section 75 of the CPC and such power is to be exercised in the discretion of the Court and accordingly it has been submitted that it cannot be said that the Court below could not have passed such an order for a local investigation. Mr. R.K. Nokulsana, learned senior counsel for the respondent has also submitted that the said orders have been issued under Order XIV Rule 2(2) of the CPC. Order XIV Rule 2(2) provides that where issues both of law and of fact arise in the same suit, and if the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Accordingly, it has been submitted that the said impugned orders have been issued by the trial Court mainly to ascertain as to whether there was encroachment or not and if there be, the jurisdiction of the civil court would be barred.
On the other hand, Mr. N. Ibotombi, learned senior counsel, has submitted that issue had already been framed by the Court below as to whether the suit is maintainable or not in view of Section 159 of the MLR and LR Act which is to be decided by the Court by examining evidences to be produced by the parties. Mr. N. Ibotombi, learned senior counsel has further submitted that the case cited by the respondents is not applicable in the present case, as in that case, the Hon''ble Supreme Court was dealing with a commission for summon of witnesses. However, in the present case, we are concerned with issue of commission for the purpose of determining whether there is encroachment or not and not with commission for summon of witness.
Heard the learned counsel for the parties and also considered the materials on record.
As discussed above, the suit has been filed for a declaration that the particular demarcation line is a proper boundary of the petitioner plaintiff and for declaration that the defendant has no right to claim any part of the suit land etc. Accordingly, after considering the written statement of the defendant, the trial Court had framed some issues including the issue as to whether the suit is barred by Section 159 of the MLR and LR Act, 1960. Section 159 reads as follows:
"159. Jurisdiction of civil courts excluded- No suit or other proceedings shall unless otherwise expressly provided for in this Act or in any other law for the time being in force, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act:
Provided that if in a dispute between parties a question of title is involved, a civil suit may be brought for the adjudication of such question:
Provided further that the civil court shall have jurisdiction to decide any dispute to which the Government is not a party relating to any right or entry which is recorded in the record of rights."
As per MLR and LR Act, all disputes relating to the determination of village boundaries, survey numbers, sub-divisions and fields shall be determined by survey officers or by such other officers as may be appointed by the State Government for the purpose, in accordance with rules made in this behalf as provided under Section 52 of the MLR and LR Act. In other words, if there be any dispute regarding the boundary of any field it has to be settled by the survey officers as mentioned above. Therefore, if the suit involves dispute regarding the boundary of land, any such suit before the civil Court will be barred in view of provision under Section 159 of the MLR and LR Act. Accordingly, to that extent, framing of the issue whether the suit is barred by sections of the MLR and LR Act is in order and also ought to have been decided at the first instance before proceeding with the suit. Though it may be said as contended by the respondents that the impugned orders have been passed by the learned trial court in order to decide the said issue, this Court is of the view that the Court could not have proceeded in the manner it sought to do by passing the impugned orders. The Court could have treated this issue as preliminary issue and asked the parties to lead their evidence in support or against the issue framed and if after hearing the parties, the trial Court felt it necessary, it could have passed orders for appointment of local commission by invoking powers under Section 75 of the CPC read with Order XXVI. While Section 75 of the CPC provides the substantive power of the Court to issue commission, the procedure has been laid down in Order XXVI. This Court is of the view that the trial Court could have appointed commission to make local investigation for elucidating any matter in dispute as provided under Order XXVI Rule 9 of the CPC. However, such appointment could be made only after the Court forms an opinion in that regard of such requirement. It, therefore, follows that if the Court has to form an opinion in that regard that appointment of a local commission is required, it has to be done only after hearing parties in that regard and thereafter forming such an opinion. However, the orders do not indicate that the Courts after hearing the parties of the requirement of appointing the commission, had issued the said orders. In fact none of the parties has stated that such orders were passed after hearing the parties. In normal course, the hearing of the parties would be after necessary applications by either of the parties have been filed in that regard. In the present case, the Court had issued the order for appointment of commission suo moto. Though the ultimate purpose for passing the impugned orders may be to aid the Court in deciding the aforesaid issue of jurisdiction of the civil court as provided under Section 159 of the MLR & LR Act, this Court is of the view that the manner in which the trial Court had proceeded does not find support in any of the provisions of the CPC.
For the reasons discussed above, the present review petition is allowed and the impugned orders dated 26.05.2014 and 2.06.2014 passed by the learned Civil Judge Sr. Divn. No. I, Manipur East in Original Suit No. 65 of 2013 are set aside.