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Ramibai and anr. Vs. Harchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 503 of 1978
Judge
Reported inAIR1980MP75
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 100 - Order 14, Rule 2; Madhya Pradesh Land Revenue Code, 1959 - Sections 131, 131(2) and 257
AppellantRamibai and anr.
RespondentHarchand and ors.
Appellant AdvocateS.D. Sanghi and ;B.L. Pavecha, Advs.
Respondent AdvocateP.K. Saxena, Adv.
DispositionAppeal allowed
Cases ReferredMahant Gopidas v. Ramkrishna Pande
Excerpt:
.....appellants contended that although the trial court had framed a preliminary issue and decided the question of jurisdiction, but when the revision was heard and decided by this court the learned judge hearing the revision specifically observed in his order that the question of jurisdiction prima facie has to be determined on the averments in the plaint and the judgment of this court in the revision clearly goes to show that the learned judge did not go into the question on merits but felt that the suit could not be thrown out on the plaint averments themselves and therefore dismissed the revision petition. ramkrishna pande, 1971 mplj 893, clearly decides that civil court will have jurisdiction to entertain a suit challenging the decision of the revenue tribunals under section 131 of the..........such a right granted under sub-section (1) of section 131 of the code cannot be challenged in a civil suit except on the ground of want of jurisdiction or on the ground of the decision having been obtained arbitrarily without following the judicial procedure. it was therefore contended that the suit itself was not competent as the civil court had no jurisdiction to entertain the suit. consequently learned counsel contended that the decree passed against the appellants deserves to be set aside. 4. learned counsel for the respondents, on the other hand, contended that the question of jurisdiction was treated as preliminary issue and decided by the trial court in favour of the plaintiff-respondents. against that order of the trial court a revision petition was filed and this court.....
Judgment:

G.L. Oza, J.

1. This second appeal has been filed by the appellants against the Judgment and decree passed by Civil Judge Class II Narayangarh and maintained on appeal by the Additional District Judge, Mandsaur.

2. The appellant-defendants submitted an application before the Tehsildar Malhargarh under Section 131 of the Madhya Pradesh Land Revenue Code (hereinafter referred to as 'the Land Revenue Code') for a right of way to approach the agricultural lands in their possession. The Tehsildar, after examining the evidence and also visiting the spot and hearing the parties, by his order dated 30-3-1966 allowed the application of the appellants and granted them way through the lands of the plaintiff-respondents. This order passed toy the Tehsildar was ultimatelyaffirmed by the Board of Revenue, Thereafter the respondents filed the present suit seeking an injunction restraining the appellants from using the right of way granted by the revenue tribunals. It was alleged in the plaint that this right has been conferred on the basis of easement. The appellant-defendants in their written statement raised the question of jurisdiction of the civil court to entertain such a suit and the learned Judge framed issues and treated the issue of jurisdiction as preliminary issue and disposed it of by holding that the civil court had jurisdiction to entertain the suit. Against this a revision petition was filed in this Court and by orders of this Court dated 24-3-1975 the revision petition filed by the appellants was dismissed. Thereafter the suit was tried on merits and has been decreed and the decree has been affirmed on appeal. Hence the present second appeal has been filed by the appellants.

3. Learned counsel for the appellants contended that under Section 131 of the Land Revenue Code the order passed by the revenue tribunals conferred a right of way as based on custom and convenience. The order passed by the Tehsildar is not at all based on any easementary rights. It was therefore contended that such a right granted under Sub-section (1) of Section 131 of the Code cannot be challenged in a civil suit except on the ground of want of jurisdiction or on the ground of the decision having been obtained arbitrarily without following the judicial procedure. It was therefore contended that the suit itself was not competent as the civil Court had no jurisdiction to entertain the suit. Consequently learned counsel contended that the decree passed against the appellants deserves to be set aside.

4. Learned counsel for the respondents, on the other hand, contended that the question of jurisdiction was treated as preliminary issue and decided by the trial Court in favour of the plaintiff-respondents. Against that order of the trial Court a revision petition was filed and this Court rejected the revision petition thereby maintaining the order passed by the trial Court holding that Civil Court had jurisdiction to entertain the suit. According to learned counsel this question having been decided in the revision petition cannot now be reopened at the appellate stage as so far as this Court is concerned the judgment of this Court in revision is binding and the appellantsCannot now reagitate the question. In support of this contention learned counsel placed reliance on Jasraj v. Hemraj, AIR 1977 SC 1011.

5. Learned counsel for the appellants Contended that although the trial Court had framed a preliminary issue and decided the question of jurisdiction, but when the revision was heard and decided by this Court the learned Judge hearing the revision specifically observed in his order that the question of jurisdiction prima facie has to be determined on the averments in the plaint and the judgment of this Court in the revision clearly goes to show that the learned Judge did not go into the question on merits but felt that the suit could not be thrown out on the plaint averments themselves and therefore dismissed the revision petition. He therefore contended that the question of jurisdiction not having been decided by the learned Judge hearing the revision on merits it could not be said that the question has been decided by this Court and the appellants therefore cannot be stopped from raising that question in this appeal. Learned counsel contended that the consistent view of this Court about the interpretation of Section 131 of the Land Revenue Code is as has been held in Ramlal v. Hiralal, Civil Revn. No. 496 of 1971, D/- 13-11-1972 (Madh. Pra. Ind, B.) and in the Division Bench judgment reported in Nathuram v. Siyasharan, AIR 1970 MP 79. However, it was contended that in the Division Bench judgment the observations go a little wider than the language of Sub-section (2) of Section 131 of the Land Revenue Code. Learned counsel for the respondents, on the other hand, contended that the view taken in Mahant Gopidas v. Ramkrishna Pande, 1971 MPLJ 893, clearly decides that Civil Court will have jurisdiction to entertain a suit challenging the decision of the revenue tribunals under Section 131 of the Land Revenue Code and according to learned counsel it was in view of this decision that the learned Judge disposed of the revision by dismissing it.

6. The learned trial Court framed an issue about jurisdiction and treating it as a preliminary issue decided it holding that the civil court has jurisdiction to entertain the suit. It is also clear that in the plaint it was alleged that the order of the revenue tribunals was obtained on the allegation of easement right. In the written statement custom, convenience and easement,-- all the three were alleged as the grounds for obtaining the order. When the matter came up before this Court in revision petition the learned Judge deciding the revision (Civil Revision No. 369 of 1974) by his order dated 24-3-1975 observed:

'It is no doubt true that the Civil Court can set aside an order of a special tribunal only in certain circumstances but when the plaint alleges any of those circumstances the suit is triable by a civil court. At this stage it is not necessary to say any thing further on this question since the only question is whether on the plaint averments the suit is triable by a civil court.'

This clearly indicates that the learned Judge applied his mind only to the plaint averments and felt that in this view of the matter the civil court had jurisdiction to try the suit. It is apparent from the order that the learned Judge did not go into the merits of the question to determine as to whether the civil court could grant a decree as prayed for. Under these circumstances, therefore, it cannot be said that in the revision petition this Court examined the merits of the matter and came to a conclusion as to whether the suit could be tried by a civil court. In fact, the judgment of the learned Judge does not show any consideration of the merits of the matter and the observations quoted above clearly go to show that the learned Judge felt that at that stage it was not necessary to go into the merits. He only meant that the merits can be gone into at appropriate occasion and the appropriate occasion could only be when the matter comes up in appeal after the decision by the trial Court on the suit itself.

7. Learned counsel for the respondents placed reliance on the decision reported in AIR 1977 SC 1011 (supra). In that decision their Lordships observed:

'Be that as it may, in an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court, It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it.'

These observations clearly go to show that if the High Court on an earlier occasion has considered a question and decided it, then the High Court hearing the matter on a second occasion cannot reconsider the decision as the earlier decision is binding. But, as stated above, in the present case in the earlier decision in Civil Revision No. 369 of 1974 this Court did not decide the question itself but as it appears from the observations made in the order it left the matter open, Consequently, this Supreme Court decision is of no assistance to the respondents.

8. Section 131 of the Land Revenue Codeprovides:

'131. (1) In the event of a dispute arising as to the route by which a cultivator shall have access to his fields or to the waste or pasture lands of the village, otherwise than by the recognised roads, paths or common land, including those lands and paths recorded in the village Wajib-ul-arz prepared under Section 242 or as to the source from or course by which he may avail himself of water, a Tahsildar may, after local enquiry decide the matter with reference to the previous custom in each case and with due regard to the conveniences of all the parties concerned.

(2) No order passed under this section shall debar any person from establishing such rights of easement as he may claim by a civil suit.'

This section clearly contemplates an order by the revenue tribunal conferring a right of way to a person based on custom or practice and convenience. Section 257 of the Land Revenue Code provides:

'257. Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is, by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters......'

The words 'no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer is, bythis Code empowered to determine' clearly lay down that where it is provided in this Code that a particular question should be determined by a revenue tribunal, the Civil Court cannot entertain a suit with regard to the same matter except if it is specifically provided for. Section 131 clearly confers a right on a party to obtain an order pertaining to right of way on the basis as contemplated in Section 131 and this could be grantee by the Tehsildar who is a revenue officer. There is no provision either in Section 131 or in any other section in this Code which makes the decision of the revenue officer under Section 131 subject to the decision of a Civil Court. Apparently therefore, the question once decided by a revenue tribunal under Section 131 could not be reopened in a Civil Court except as provided for in Sub-section (2) of Section 131. Sub-section (2) of Section 131 clearly refers to a party who wants to establish his right of easement. Sub-section (2) of Section 131 clearly confers a right on any person to establish such right of easement in a Civil Court in spite of an order passed by the revenue tribunal under Section 131 of the Code. This therefore clearly saves the right of a party to establish the common law right under the Easement Act which otherwise also is available to him; and this sub-section therefore cannot be interpreted to mean that the decision of the revenue tribunal under Section 131 is subject to a decision by a Civil Court.

9. A Division Bench of this Court in AIR 1970 Madh Pra 79 (supra) has considered this question : but while interpreting 'any person' in Sub-section (2) of Section 131 has held that 'any person' in Sub-section (2) will include either plaintiff or defendant, although the language of Sub-section (2) clearly indicates that the person only means a person who wants to establish a right of way on the basis of easement. But so far as Section 131 (1) is concerned, the Division Bench has clearly held that the jurisdiction of the Civil Court is barred once the revenue tribunals confer a right under this section on the ground of practice or convenience. According to the view taken by the Division Bench it is only in cases where a right on the basis of easement is agitated that the jurisdiction of the Civil Court is saved and according to this view it is saved for both the parties. In Civil Revision No. 496 of 1971 (supra) this Court held that once an order is passed under Section 131 (1) on the basis of customor convenience the Civil Court will have no jurisdiction to entertain a suit except if it is contended that the revenue tribunals have acted beyond their jurisdiction or have acted not in compliance with the principles of natural justice.

10. Learned counsel for the respondents also referred to a decision by a single Judge of this Court reported in 1971 MPLJ 893 (supra) where it has been held that in view of the fact that in Section 257 of the Land Revenue Code where various provisions have been specifically mentioned, as Section 131 has not been mentioned, the jurisdiction of the Civil Court is not barred. It appears that in view of the Division Bench decision this view cannot be accepted. So far as the present case is concerned, the order passed by the revenue tribunal clearly goes to show that right of way has been conferred on the appellant-defendants on the basis of old custom, i.e., practice and convenience. No question of easement has at all been considered or decided by the revenue tribunals although in the pleadings in the civil suit the plaintiffs alleged that the decision is based on the basis of easementary rights, apparently to bring the matter within the jurisdiction of the Civil Court. But in the written-statement the defendant-appellants initially alleged that the order of the revenue tribunals was based on the basis of custom, convenience and also easementary rights and this phrase ultimately has been deleted by an amendment. But on what basis the revenue tribunals have determined the question cannot be decided on the basis of what the parties allege but can be decided on the basis of what the revenue tribunals have held. And it cannot be disputed that the order passed by the revenue tribunals clearly indicates that they have only considered the question of custom coupled with convenience and the right of way having been based on that question the order clearly falls within 1st part of Section 131 of the Land Revenue Code. It is not proved that the revenue tribunals have acted beyond their jurisdiction or have acted not in compliance with the principles of natural justice. The only question that appears to have been raised is that the revenue tribunals have conferred the right on the basis of easement; but that has been held as not correct. The revenue tribunals have clearly determined the question on the basis of convenience and custom and even inthat view of the matter the Division Bench decision does not come to the rescue of the plaintiffs. The observations made by the Division Bench contemplate a suit by either party if the matter has been decided on the basis of easementary rights. As in the present case the question of easementary right was not at all before the revenue tribunals and the decision is not based on the right of easement, consequently, even on the basis of the observations of the Division Bench the suit cannot be held to be within the jurisdiction of the Civil Court.

11. Apparently therefore, the suit filed by the plaintiff-respondents is a suit which could not be entertained by a Civil Court. Consequently, the appeal is allowed. The judgment and decree passed by both the Courts below are set aside, and the suit filed by the respondent-plaintiffs is dismissed with costs, The appellants shall also be entitled to costs of this appeal. Counsel fee as per schedule, if certified.


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