Suryabansh Upadhyay vs Awadhesh Choudhary and Others

S.N. Jha, J.—This civil revision by the Defendant arises from an order by which the Plaintiffs'' suit has been held to be maintainable and the petition filed by the Defendant in that regard has been rejected.

The Plaintiffs filed Title Suit No. 141 of 1992 in the court of 2nd Munsif, Sasaram, for declaration that they are occupancy Raiyats of the lands described in Schedules A to D to the plaint and for permanent injunction against the Defendant restraining him from making interference with their peaceful possession. According to the Plaintiffs, they are in possession of the lands as Sikmidar since about 1960. With the passage of time, after 12 years, they have acquired occupancy right as under Raiyat. However, the Defendant in collusion with certain undesirable elements has been holding but threats to dispossess them from the lands. Hence the suit.

The Defendant-Petitioner filed written statement stating, inter alia, that the suit is barred under Birch Tenancy Act, 1885 (in short ''the Act''). It is said that the Plaintiffs had filed petitions u/s 48D of the Act vide Case Nos. 7, 8, 17 and 18 of 1992-93 before the Anchal Adhkari, Kargahar, which were rejected. According to the Petitioner, after the claim was rejected by the Anchal Adhikari, the civil court has no jurisdiction to entertain the suit. The Petitioner filed application to dismiss the suit as not maintainable on the aforesaid grounds. The application has been rejected by the impugned order.

The point for consideration is whether the suit is barred by the provisions of Birch Tenancy Act or the principle of res judicata.

Mr. Gajendra Kumar Jha, learned Counsel for the Petitioner referred to the provision of Section 48E of the Act and submitted that where the statute creates right and also provides the remedy for enforcement of such right it is that remedy alone, to the exclusion of the remedy under the general law, which can be availed of. Since the Plaintiffs claim to be under raiyats in occupation of the land the remedy available to them was/is to file application for prevention of threatened ejectment u/s 48E of the Act and not to file suit for injunction for the same relief.

Section 48E(1) of the Act runs as follows:

If an under raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land, crop or produce thereof either on the ground of non- existence of relationship of landlord and tenant between them or otherwise or if any under raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this section in contravention of the provisions of Section 89 the Collector may, of his own motion or on application made in this behalf by the under raiyat, initiate a proceeding for preventing the landlord from ejecting the under raiyat or for settlement of the said dispute or for restoration to possession under raiyat unlawfully ejected from his tenancy or portion thereof.

It is true that Section 48E provides for a complete remedy for prevention of threatened ejectment of under raiyat and restoration of possession to under raiyat unlawfully ejected but there is nothing to indicate the ouster of the jurisdiction of the civil court. Section 9 of the CPC provides that subject to the provisions contained in the Code, the courts shall have jurisdiction to try all suits of the civil nature except the suit of which cognizance is barred either expressly or impliedly. Law is well settled that where statute creates a right and also provides the remedy and forum for enforcement of that right, it is that remedy alone which can be availed of. To that extent the submission of the counsel is well founded. It cannot however be said that Section 48E has created a new right. Any person under the general law of the land can file a suit for declaration of his status as an under raiyat and seek injunction. In the present case, the suit has been filed for declaration that the Plaintiffs are occupancy raiyats of the land, besides injunction. Any under raiyat irrespective of the period of occupancy can file application and seek the remedy arising out of threatened ejectment and/or restoration of possession in case he has been unlawfully ejected.

Counsel referred to Sub-section (13) of Section 48E. That Sub-section, in my opinion, has no relevance in the present case. The Sub-section runs like this,

Save as expressly provided in this Act, no Civil or Criminal Court shall have any jurisdiction over the subject matter of a dispute after a proceeding is initiated under Sub-section (1) by the Collector.

From bare perusal of the above provision it is clear that it bars the entertainment of suit after proceeding in terms of Section 48E(1) has been initiated by the authority. In the present case no such application was filed by the Plaintiffs much less any proceeding initiated under that provision.

Section 49P which was next referred to by the counsel is also of no avail to the Petitioner. Section 48P bars jurisdiction of the Civil Court to vary or set aside any order passed by any officer in any proceeding under "this Chapter", i.e. Chapter VIIA except on the ground of fraud or want of jurisdiction. Chapter VIIA begins from Section 49AA and ends with Section 490. Both the Sections 48D and 48E fall in Chapter VII. It would appear that the entire Chapter VIIA of the Act was inserted in the Act by the Birch Tenancy (Amendment) Act, 1935 (Act 7 of 1935). The words "under this Chapter" exclude the applicability of the provisions of Section 49P to orders passed by the authority in any proceeding not falling under Chapter VIIA including Chapter VII in which Section 48E occurs.

The submissions based on Section 48D of the Act, however, appears to be well-founded. Section 48D provides for acquisition of raiyati rights by occupancy under raiyat. It would be useful to quote the provision as hereunder:

An occupancy under raiyat shall if he makes an application in this behalf in the prescribed manner, be entitled to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State Government and the right of the land-holder in such land shall extinguish.

The above provision, which is not very happily worded, seems to lay down that if an occupancy under raiyat makes an application before the competent authority, it shall declare his status to be that of raiyat whereupon the right of the land-holder in such land shall extinguish. Section 48C of the Act provides for acquisition of right of occupancy by an under raiyat. It lays down,

Every person, who for a period of twelve years, whether wholly or partly before or after the commencement of the Birch Tenancy (Amendment) Act 1938, (Birch Act 11 of 1938), has continuously held land as an under raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired on expiration of that period, a right of occupancy in the land which he has so held for the said period.

From a combined reading of Sections 48C and 48D it is clear that a person by efflux of time on expiry of period of twelve years acquires occupancy right as well as raiyats'' rights, subject to declaration as such by the prescribed authority u/s 48D. It is noteworthy that Section 48C does not contemplate any proceeding. The person concerned acquires occupancy right by legal fiction by efflux of time on expiry of the prescribed period. Any enquiry in this regard as to whether he has in fact acquired occupancy rights in terms of Section 48C, that is to say, whether requisite conditions contemplated by that Section are satisfied or not, can be made only u/s 48D.

The acquisition of occupancy and raiyati rights by an under raiyat is thus conferred by the statute, i.e. the Birch Tenancy Act. Such a right is not available to him under the general law of the land. The Act also provides for remedy and forum. Therefore, in my opinion, it is the forum created by the Act which alone is competent to declare the status of the person as an occupancy under raiyat or raiyat within meaning of Sections 48C and 48D. The present suit seeking declaration that the Plaintiffs acquired status of occupancy under raiyat (and consequently, status of full-fledged raiyat), therefore, does not seem to be maintainable. As a matter of fact the Plaintiffs had already sought a declaration that they be held to be raiyat u/s 48D which was rejected on finding that they are not under raiyat.

In Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, , the Supreme Court has laid down that where a particular Act creates a right and also provides a forum for enforcement of such right, the jurisdiction of the Civil Court is ousted. Reference may also be made to the case of Saraswati and Others Vs. Lachanna (Dead) through Lrs., .

In Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, , the Apex Court observed that the plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction like revenue court, land acquisition courts, administration court etc. These courts are not entitled to try a regular suit, they can exercise special jurisdiction conferred on them by the statute.

It would be worth pointing out that by virtue of Birch Tenancy (Amendment) Rules, 1992 framed vide notification No. 11-L.R.-10/92-156 dated 28.2.92 published in the Extraordinary Gazettes dated 11.3.92 the Anchal Adhikari was authorised to dispose of the application u/s 48D of the Act. As a matter of fact by the same very Rules the Sub Divisional Officer was authorised to hear appeals against the order passed by the Anchal Adhikari. The Plaintiffs having lost before the Anchal Adhikari, in the ordinary course, they should have preferred appeal before the Sub-divisional Officer, in stead they filed the suit.

A positive order u/s 48D of the Act is dependent on the declaration that the person concerned has acquired occupancy rights as an under raiyat. The Anchal Adhikari having held that the Plaintiffs are not even under raiyat, it is obvious that the declaration as to Plaintiffs being occupancy raiyats, sought in the present suit, would run contrary to the finding of the Anchal Adhikari and amount to varying or setting it aside. The authority under the Act having been conferred with the exclusive power to grant declaration with respect to occupancy or raiyati rights of an under raiyat, I do not think the civil courts have any inherent jurisdiction to grant similar relief. In these premises, I am inclined to hold that the present suit is not maintainable.

In the result, the impugned order is set aside. The civil revision is allowed. Title Suit No. 141/92 is held to be not maintainable. There will be no order as to cost.