Smt. R.Devika vs Shri. Deb Prasad Mistry

Prasenjit Biswas, J.

This second appeal is directed against the impugned Judgement and decree passed on 28.06.2024 by the learned District Judge, Andaman and Nicobar Islands in connection with Other Appeal No. 11 of 2022.

By the impugned judgment and decree dated 28.06.2024, the learned First Appellate Court partly allowed the appeal preferred by the plaintiff/appellant and, while setting aside the judgment and decree dated 29.07.2022 passed by the learned Trial Court in Other Suit No. 03 of 2014, subsequently renumbered as Other Suit No. 40 of 2015, declared the right, title and interest of the plaintiff/appellant in respect of the suit property.

Being aggrieved by and dissatisfied with the said judgment and decree of the learned First Appellate Court, the present second appeal has been preferred by the plaintiff/appellant.

The case of the plaintiff/appellant, in substance, is that she instituted the suit seeking a declaration of her right, title and interest in respect of the suit property, together with recovery of khas possession by evicting the defendant/respondent there from and for other consequential reliefs.

It is the specific case of the plaintiff/appellant that her father, namely, Gobind Swam, since deceased, had purchased the suit land comprised in Survey No. 488, measuring an area of 500 sq. metres, situated at Garacharma Village under Port Blair Tehsil, South Andaman, from one Jorge. Pursuant to the said purchase, the name of her father was mutated and duly recorded in the relevant revenue records in respect of the said property.

The plaintiff/appellant further pleaded that, during his lifetime, her father executed a Will dated 19.08.1996 whereby he bequeathed the suit property in her favour, making her the sole beneficiary there under. The said Will was duly registered in Book No. 3, Volume No. 7, at pages 415–418.

After the death of her father, the plaintiff/appellant, being the beneficiary under the said Will, instituted a probate proceeding before the learned District Judge, seeking grant of probate in respect of the Will, which was registered as Other Suit No. 10 of 2004. The said proceeding was contested by her brother. During the pendency of the said proceeding, however, the plaintiff/appellant came to learn that, in view of the law applicable to the Andaman and Nicobar Islands, obtaining probate in respect of the said Will was not necessary. Consequently, she not pressed the probate proceeding, and the same was dismissed as not pressed by the learned Court.

It is also the case of the plaintiff/appellant that her brother, namely, Jay Kumar, subsequently instituted a suit against her, being Title Suit No. 216 of 2011, before the learned Joint Civil Judge, Senior Division, Port Blair. However, the said suit was not proceeded with by her brother and was ultimately dismissed for default.

Thereafter, the plaintiff/appellant approached the Tehsildar, Port Blair, seeking mutation of the suit property in her favour on the basis of the Will executed by her father. The mutation was allowed by an order dated 04.03.2013, pursuant to which the name of the plaintiff/appellant was recorded in respect of the suit property and she became the recorded tenant thereof.

The further case of the plaintiff/appellant is that the suit property was lying vacant and that she intended to develop the same. Taking advantage of her absence, the defendant/respondent allegedly entered upon the property without any lawful authority and encroached upon a portion thereof measuring about 20 sq. metres out of the total area of 500 sq. metres comprised in Survey No. 488.

According to the plaintiff/appellant, upon coming to know of such alleged illegal and forcible occupation, she requested the defendant/respondent to vacate the encroached portion and hand over possession thereof. However, despite such request, the defendant/respondent failed and neglected to vacate the property. Having found no other efficacious remedy, the plaintiff/appellant instituted the suit seeking, inter-alia, declaration of her title over the suit property, recovery of khas possession by evicting the defendant/respondent there from, and other consequential reliefs.

Upon service of summons, the defendant/respondent entered appearance before the learned Trial Court and contested the suit by filing his written statement, denying the material allegations made in the plaint. The defence, in substance, was that the defendant/respondent had acquired the land from the brother of the plaintiff/appellant under a registered sale deed and had paid the agreed consideration to him. It was further contended that, pursuant to such transaction, possession of the property had been delivered to the defendant/respondent by the brother of the plaintiff/appellant. The defendant/respondent claimed that he had thereafter constructed a house over the property and had been residing therein along with his family members without any objection or interference from any quarter.

Upon consideration of the pleadings of the parties, the evidence adduced by them and the documents exhibited in the suit, the learned Trial Court dismissed the suit by its judgment and decree dated 29.07.2022.

Being aggrieved by and dissatisfied with the said judgment and decree, the plaintiff/appellant preferred a first appeal before the learned First Appellate Court.

The learned First Appellate Court, upon consideration of the materials on record, partly allowed the appeal on contest and set aside the judgment and decree dated 29.07.2022 passed by the learned Trial Court in Other Suit No. 03 of 2014, subsequently renumbered as Other Suit No. 40 of 2015. The learned First Appellate Court further declared the right, title and interest of the plaintiff/appellant in respect of the suit property.

It is against the aforesaid judgment and decree dated 28.06.2024 passed by the learned First Appellate Court that the present second appeal has been preferred by the plaintiff/appellant.

The second appeal has been admitted by the Hon’ble Division Bench of this Court by passing an order dated 26.09.2024 and the following substantial questions of law has been framed:

All the substantial question of law framed by the Hon’ble Division Bench of this Court are taken up together for discussion for the sake of brevity.

Mr. Jayapal, learned counsel appearing for the appellant, submits that both the learned Trial Court as well as the learned First Appellate Court failed to appreciate the true nature, substance and scope of the reliefs claimed in the suit and, consequently, committed an error in declining to grant the consequential relief of recovery of khas possession in favour of the plaintiff/appellant.

It is submitted that the plaintiff/appellant instituted the suit, inter-alia, seeking a declaration of her right, title and interest in respect of the suit property, together with the consequential relief of recovery of khas possession by evicting the defendant/respondent there from. According to learned counsel, the specific case made out in the plaint was that the defendant/respondent had, without any lawful authority, forcibly entered into and occupied a portion of the land belonging to the plaintiff/appellant, as more particularly described in the schedule to the plaint, and had continued to remain in such occupation despite repeated requests to vacate the same.

Mr. Jayapal, learned Advocate further submitted that the learned Trial Court dismissed the suit essentially by placing reliance upon Rule 204 of the Andaman and Nicobar Islands Land Reforms Regulations, 1966, read with Rule 161 thereof. According to learned counsel, such reliance was wholly misconceived and proceeded on an erroneous understanding of the nature of the jurisdiction exercised by the Civil Court in the present case.

It is argued that the suit was not merely a suit for recovery of possession simpliciter, nor was the plaintiff/appellant seeking determination of any matter which fell exclusively within the domain of the revenue authorities. Rather, the principal relief claimed was a declaration of title founded upon the plaintiff's asserted title to the suit property, coupled with the consequential relief of recovery of khas possession from a person who was alleged to be in unlawful occupation thereof. It is submitted that once the Civil Court was called upon to adjudicate upon the plaintiff's title and to grant consequential relief flowing from such declaration, the jurisdiction of the Civil Court could not have been declined merely by mechanically invoking Rules 204 and 161 of the Regulations.

Learned counsel submits that, significantly, the learned Trial Court, upon appreciation of the evidence and materials on record, had recorded findings concerning the title and possession in favour of the plaintiff/appellant. Having reached such findings, the learned Trial Court ought to have considered whether the plaintiff/appellant was entitled to the consequential relief of recovery of khas possession from the defendant/respondent. Instead, the learned Trial Court declined to grant such relief on the premise that, in view of Rules 204 and 161 of the Regulations, it lacked jurisdiction to order eviction of the occupant. According to Mr. Jayapal, learned Advocate such an approach amounts to a fundamental misconception of the legal effect and scope of the said provisions, particularly when the relief sought was consequential to the declaration of the plaintiff's civil right and title over the property.

It is further submitted that the learned First Appellate Court, though having independently considered the matter and having reversed the judgment and decree of the learned Trial Court to the extent of declaring the right, title and interest of the plaintiff/appellant in respect of the suit property, nevertheless failed to grant the consequential relief specifically claimed in the plaint, namely, recovery of khas possession after evicting the defendant/respondent from the portion of the property allegedly under his occupation.

According to learned counsel, the approach adopted by the learned First Appellate Court has resulted in an anomalous situation. On the one hand, the plaintiff/appellant has been declared to have right, title and interest over the suit property; on the other hand, she has been denied the consequential relief of recovery of possession, notwithstanding the finding regarding her title and the admitted occupation of the defendant/respondent. Such a decree, according to learned counsel, does not afford the plaintiff/appellant complete and effective relief in respect of the cause of action pleaded in the suit.

Mr. Jayapal further contended that the defendant/respondent has not seriously disputed the plaintiff/appellant's claim to title in the manner suggested by the Courts below and, significantly, the defendant/respondent admits his possession and occupation of the suit property. Therefore, once the title of the plaintiff/appellant has been declared and the occupation of the defendant/respondent is admitted, there remains no legal impediment to grant of the consequential relief of recovery of khas possession, subject, of course, to the identity and extent of the property as established from the pleadings and evidence.

It is therefore argued that the relief of declaration and the consequential relief of possession ought to have been considered together. The plaintiff/appellant having established her title and the defendant/respondent having admitted his occupation, the latter cannot, according to learned counsel, be permitted to continue in possession merely because of an erroneous view that the Civil Court is precluded by Rules 204 and 161 of the Regulations from granting consequential relief.

Learned Counsel accordingly submits that the impugned judgment and decree of the learned First Appellate Court, to the extent that it declares the right, title and interest of the plaintiff/appellant but fails to grant the consequential relief of recovery of khas possession, warrants interference in the present second appeal. It is, therefore, prayed that the present second appeal be allowed, the judgment and decree passed by the learned First Appellate Court be suitably modified by granting the plaintiff/appellant the consequential relief of recovery of khas possession upon eviction of the defendant/respondent from the suit property, and the judgment and decree passed by the learned Trial Court be set aside.

Per contra, Mr. Prohit Mohan Lall, learned counsel appearing for the defendant/respondent submits that the allegation of encroachment made by the plaintiff/appellant is wholly false, baseless and unsupported by the evidence on record. According to learned counsel, the defendant/respondent is not an unauthorized occupant or encroacher upon any portion of the land belonging to the plaintiff/appellant. Rather, it is his specific case that he lawfully acquired the land from the brother of the plaintiff/appellant by virtue of a registered sale deed, upon payment of the agreed consideration, and that possession of the property was duly delivered to him pursuant to such transaction.

It is further submitted that, after execution of the registered sale deed, the defendant/respondent entered into possession of the property and constructed a residential house thereon. He has been continuously residing in the said house along with his family members and has been in peaceful possession and enjoyment of the property without any interruption, objection or disturbance from any quarter. Learned counsel, therefore, submits that the defendant/respondent's possession is traceable to a lawful transaction and cannot be characterized as forcible or unauthorized occupation, as alleged by the plaintiff/appellant.

Learned counsel for the respondent further submits that the plaintiff/appellant has failed to establish the essential factual foundation for the relief of recovery of khas possession. It is contended that the plaintiff's allegation that the defendant/respondent subsequently encroached upon a portion of the suit property is inconsistent with the respondent's claim of lawful acquisition and long-standing possession pursuant to the registered sale deed. According to learned counsel, the plaintiff/appellant cannot obtain a decree for eviction merely on the basis of her assertion of title without establishing a corresponding legal entitlement to recover possession in the manner contemplated by law.

It is next contended that the suit instituted by the plaintiff/appellant before the learned Trial Court was specifically barred by the provisions contained in Rules 204 and 161 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations. According to learned counsel, the said provisions impose a statutory restriction upon the jurisdiction of the Civil Court in matters falling within the field covered by the Regulations, and the plaintiff/appellant, therefore, could not maintain the suit for recovery of possession before the Civil Court in the manner in which it had been framed.

Learned counsel submits that the bar created by the aforesaid statutory provisions cannot be circumvented merely by describing the relief claimed as a “consequential relief” to a declaration of title. According to him, the substance of the relief sought has to be examined and, if the substantive relief of restoration or recovery of possession is one which is excluded by the statutory scheme, the Civil Court cannot grant such relief merely because it has been couched as a consequential relief arising out of a declaration.

It is further argued that the reliance placed by the plaintiff/appellant upon section 34 of the Specific Relief Act, 1963 is misplaced. According to learned counsel, section 34 itself contemplates that where a plaintiff is able to seek further relief arising out of the declaration sought, such further relief has to be claimed in accordance with law. The provision cannot be invoked to overcome an express statutory bar upon the jurisdiction of the Civil Court. Thus, according to learned counsel, the plaintiff/appellant cannot rely upon the doctrine of consequential relief under section 34 of the Specific Relief Act for the purpose of obtaining an order for reinstatement or recovery of possession when such relief is, according to the respondent, specifically barred under the applicable Regulations.

Learned counsel further submits that the learned First Appellate Court, upon consideration of the pleadings, evidence and applicable statutory provisions, has already examined the controversy and has granted such relief as was legally permissible. The declaration of the plaintiff/appellant's right, title and interest, according to the respondent, does not automatically entitle her to a decree for recovery of khas possession when the latter relief is otherwise barred by the governing statutory provisions.

It is accordingly contended that no substantial question of law arises warranting interference by this Court in the present second appeal. The findings and conclusions reached by the learned First Appellate Court are based upon the materials available on record and suffer from no perversity or error of law requiring appellate interference.

On the aforesaid grounds, learned counsel for the defendant/respondent submits that the present second appeal is devoid of merit and is liable to be dismissed. It is accordingly prayed that the judgment and decree passed by the learned First Appellate Court be affirmed and no interference be made with the findings recorded therein.

I have considered the rival submissions advanced on behalf of the parties and have carefully examined the pleadings and the findings recorded by the Courts below.

The principal question which arises for consideration is whether the plaintiff/appellant can maintain a suit before the Civil Court for recovery of khas possession merely by couching the relief of possession as a consequential relief to a declaration under section 34 of the Specific Relief Act, 1963, when the subject matter of such relief is specifically governed by Regulations 161 and 204 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966.

At the outset, it is significant to notice that, according to the plaintiff/appellant's own case, the defendant/respondent has not set up any independent or competing title over the suit property. On the contrary, the plaintiff/appellant herself asserts that the defendant/respondent admits her right and title in respect of the property. Thus, there is no genuine controversy between the parties requiring adjudication of rival claims of ownership. The essential grievance of the plaintiff/appellant is that, despite her asserted title, the defendant/respondent is occupying a portion of the land and that such occupation is unauthorized. Consequently, the substantive relief which the plaintiff seeks to obtain is, in substance, recovery of possession of the portion allegedly occupied by the defendant/respondent.

In such circumstances, the mere inclusion of a prayer for declaration of title under section 34 of the Specific Relief Act cannot, by itself, confer jurisdiction upon the Civil Court if the substantive relief claimed is otherwise governed by a special statutory scheme. Jurisdiction is required to be determined with reference to the substance and true nature of the controversy and the relief which the plaintiff seeks ultimately to obtain, and not merely by reference to the nomenclature adopted in the plaint. A statutory bar cannot be defeated or circumvented merely by describing the relief of possession as being consequential to a declaratory relief.

Regulation 204 of the 1966 Regulations assumes particular significance in this regard. The said provision expressly places a restriction upon the institution of a suit or proceeding before a Civil Court in respect of any matter arising under and provided for by the Regulations, except where the Regulations themselves expressly provide otherwise. The provision, therefore, operates as a statutory restriction upon the ordinary jurisdiction of the Civil Court in matters falling within the field occupied by the special enactment. Consequently, before granting the relief claimed by the plaintiff, the Court is required to ascertain whether the controversy and the relief sought substantially fall within the statutory field governed by the Regulations.

Regulation 161 is equally material. The said provision creates a specific statutory mechanism for dealing with cases of dispossession of a tenant otherwise than by due process of law. It empowers the competent Tehsildar, upon an appropriate application, to inquire into the respective claims of the parties and, where the statutory requirements are satisfied, to restore possession to the dispossessed tenant and cause the opposite party to be ejected. Thus, where the substance of the dispute falls within the field contemplated by Regulation 161, the remedy prescribed by the special statutory scheme has to be pursued in the manner provided therein.

The plaintiff/appellant cannot, therefore, be permitted to circumvent the statutory mechanism merely by introducing a declaratory prayer under Section 34 of the Specific Relief Act. Section 34 is a general provision enabling a person entitled to a legal character or to a right as to property to seek an appropriate declaration. It does not purport to enlarge the inherent jurisdiction of a Civil Court, nor does it confer jurisdiction where such jurisdiction has otherwise been expressly excluded by a special statute. Consequently, the general remedy provided under Section 34 cannot override or nullify the statutory restriction contained in Regulation 204.

The principle assumes greater significance in the facts of the present case because, as already noticed, the plaintiff/appellant herself proceeds on the footing that her title is admitted by the defendant/respondent. If that be so, there is no independent or disputed question of title requiring adjudication by the Civil Court. The declaratory relief, therefore, does not constitute an independent substantive controversy between rival claimants to ownership. The real dispute is confined to the alleged occupation of a portion of the land and the plaintiff's consequential claim for restoration of possession. The plaintiff cannot, on the one hand, rely upon the alleged admission of her title by the defendant and, on the other hand, contend that the declaratory prayer gives rise to an independent civil dispute so as to avoid the statutory bar.

It is also necessary to bear in mind that the bar under Regulation 204 cannot be examined merely by looking at the form in which the plaint has been drafted. If the consequential relief of possession is, having regard to the nature of the parties, the character of the alleged occupation and the statutory status of the land, a matter specifically contemplated by Regulation 161, the plaintiff cannot obtain indirectly through the Civil Court what the statutory scheme requires to be pursued before the competent revenue authority. The form of the prayer cannot prevail over the substance of the relief sought.

At the same time, the bar contained in Regulation 204 cannot be understood as an absolute exclusion of Civil Court jurisdiction in every conceivable case involving possession of land. Where the dispute genuinely involves adjudication of an independent and disputed civil title which the statutory authority has no jurisdiction to determine, the jurisdiction of the Civil Court may still be attracted. However, that is not the situation disclosed by the plaintiff/appellant's own case here. The plaintiff herself asserts that her title is admitted by the defendant/respondent, and the substantive relief sought is recovery of possession from the occupant. The controversy, therefore, falls within the statutory field governing dispossession and restoration of possession.

In view of the aforesaid discussion, I am unable to accept the contention advanced on behalf of the plaintiff/appellant that the learned First Appellate Court committed any error in declining to grant the consequential relief of recovery of khas possession. Once the substantive relief sought is found to be one governed by Regulations 161 and 204 of the 1966 Regulations, the plaintiff cannot invoke section 34 of the Specific Relief Act as a device to bypass the special statutory mechanism.

Accordingly, the learned First Appellate Court was justified in refusing the prayer of the plaintiff/appellant for recovery of khas possession upon eviction of the defendant/respondent from the suit property. The impugned judgment and decree, therefore, do not suffer from any error of law warranting interference in the present second appeal.

The substantial questions of law formulated by this Court are accordingly answered in the light of the aforesaid findings.

Consequently, the present second appeal, being devoid of merit, is hereby dismissed.

The judgment and decree dated 28.06.2024 passed by the learned First Appellate Court in Other Appeal No. 11 of 2022 are hereby affirmed.

There shall, however, be no order as to costs.

The Registry is directed to draw up the decree accordingly.

Let a copy of this judgement along with Trial Court Record be sent down to the Trial Court immediately.

Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on payment of requisite fees.