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Sher Khan Vs. Bambhu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 45/77
Judge
Reported in1980WLN465
AppellantSher Khan
RespondentBambhu and ors.
DispositionPetition dismissed
Cases Referred and Dr. Brejendra Mohan v. Rajendra Nath
Excerpt:
.....to the civil court and continues to be in possession till today, inspite of the order of the board of revenue. the suit is such which is barred under section 256 of the act read with item 83 of schedule iii, and the civil court has no jurisdiction to try a suit of the present nature. to me, it appears to be a litigation which is fruitless, not bonafide.;revision dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h)..........as it only challenges the order of the appellate court and it should be treated as a revision. the learned trial court had ordered the return of the plaint to the appellant and be preferred an appeal against that order to the additional district judge (2), alwar which was disposed of. therefore the order is revisable. the prayer of the appellant is accepted and this civil misc. appeal is created as a revision and shall be disposed of as such.2. the disputes relates to agricultural land khasra no. 803 measuring 2 bighas and 4 bigwas situated in village chandoli, tehsil alwar. the petitioner claims himself to be the khatedar of the land in dispute and he filed a suit in the court of the learned munsif, alwar on 26.4.75 inter alia on the grounds that the order of the assistant collector.....
Judgment:

M.B. Sharma, J.

1. This is a plaintiff's appeal against the judgment of the learned Additional District Judge (2), Alwar accepting his appeal in part and modifying the order of the trial Court dated 21-2-77. The learned Advocate submits that this Miscellaneous Appeal is not maintainable, as it only challenges the order of the appellate court and it should be treated as a revision. The learned trial Court had ordered the return of the plaint to the appellant and be preferred an appeal against that order to the Additional District Judge (2), Alwar which was disposed of. Therefore the order is revisable. The prayer of the appellant is accepted and this Civil Misc. Appeal is created as a revision and shall be disposed of as such.

2. The disputes relates to agricultural land Khasra No. 803 measuring 2 Bighas and 4 Bigwas situated in village Chandoli, Tehsil Alwar. The petitioner claims himself to be the Khatedar of the land in dispute and he filed a suit in the Court of the learned Munsif, Alwar on 26.4.75 inter alia on the grounds that the order of the Assistant Collector dated 22-4-75 is invalid and ineffective so far as his rights are concerned. I will later on have the occasion to deal with that order in detail. The suit was contested by Bamboo, who claimed himself to be the Khatedar of the land in dispute and also pleaded that the order daied April 22-09-75 was passed by the Assistant Collector after hearing the petitioner and an appeal lies against that order under Section 225 of the Rajasthan Tenancy Act, l955 (hereinafter referred to as she Act). The suit was, therefore, barred under Section 256 of the Act as the suit was exclusively triable by a revenue court under Section 207 of the Act read with Schedule III, item No. 83,

3. It may also be mentioned here that in the suit itself, an application under Order 39. Rule 1 and 2. CPC was filed by the petitioner on 26-4 75, and the learned Munsif vide his order dated 13 12 75 made the exparte order dated 26 4-75 absolute. The non-petitioner (1)preferred an appeal against that order and according to the learned Advocate for the non petitioner (1) that the appeal was accepted and the case was remanded back to the trial court after framing an issue of jurisdiction and directing the trial court to first decide the issue of jurisdiction. The learned trial Court decided the issue of jurisdiction on the basis of record vide his order dated 21-2-77 and held that he had no jurisdiction to try the suit and dismissed the suit. The petitioner preferred an appeal before the learned District Judge, Alwar, which was decided by Additional District Judge No. 2, Alwar, who held that the order rejecting the suit was not an order under Order 7 r 10, CPC and as such it WAS Not necessary to frame a decree. He also directed the trial court to return the plaint under Order 7, Rule 10, CPC to the petitioner for being presented in the proper Court Both the parties agreed before the learned Additional District Judge that the Civil Court had no jurisdiction to try the suit,

4. It is submitted by the learned Advocate for the petitioner that a perusal of the impugned order will show that arguments were only heard on the point, as to whether the trial Court should be directed to frame a decree in terms of the judgment and the appeal was not heard on merits, and, therefore, the learned appellate Court has acted illegally or with material irregularity in the exercise of his jurisdiction when he disposed of the entire appeal. Mr. Khan, the learned Advocate for the non-petitioner (1), submits that because it is a revision now, if is for this Court to pass proper order and according to him the facts were so glaring that the suit does not lie in a Civil Court, and, therefore, notwithstanding the fact that the entire appeal was not heard this Court should not interfere in revision.

5. It appears from the perusal of the impugned order that arguments were only heard on the point as to whether the trial Court should be directed to frame a decree in terms of the, judgment rejecting the plaint. An affidavit has been filed by the petitioner's counsel, who argued the appeal and there is no rebuttal. It can therefore, be said that the entire appeal was not heard by, the learned Additional District Judge and only on one point arguments ware heard, but the entire appeal has been decided, and, therefore, the Court has acted illegally or with material irregularity in the exercise of its jurisdiction But, once a case comes in revision to this Court, it is the duty of this Court to pass necessary and legal orders. In this connection, reference may be made to Smt. Raj Laxmi Dasi and Ors. v. Banmai Sai and Anr. : AIR1950Cal510 Avirah Quseph v. Karthivayani Amma Ammukutt Amma Puthen and Anr. : AIR1965Ker179 and Dr. Brejendra Mohan v. Rajendra Nath AIR 1971 Asm 143. To my mind, which exercising the powers of revisiom, if the justice of the case requires, the Court should examine the case record and make the final order on the merits of the case. Apart from revisional powers, inherent powers are vested in this Court Under Section 151, CPC and they can always be exercised in the interest of justice, is the situation so demands. The courts are over-worked and if the case is such which upon the perusal of the plaint itself and the other record of the case, appears to be such which is without any foundation and to the Court it appears that the litigation is fruitless and the outcome is certain, that it has no merit, it is the duty of the Court to nib in the bud such sort of litigation.

6. In the instant case it is to be seen as to what should be the just order, whether the case should be sent back to the appellate court of the trial court or this court should pass such order which the circumstances of the case warrant and to the court appear to be JUST. Some facts which are not disputed are these.

7. Khasra No. 803 measuring 2 Bighas and 4 Big was situated in Gram Chandoli is agricultural land. Cases were pending in between the parties relating to this land in revenue courts and the Revenue Board vide its judgment dated 15 4-75 in Criminal Revision to which the petitioner and the non-petitioner (1) were pardes directed that the receiver shall take back possession of the land in dispute from the petitioner to whom the possession had been delivered under the orders of the Revenue Appellate Authority, and shall deliver the possession to such of the parties from whom the possession was takes in execution of the orders dated 7-11-74, After the orders of the Board of Revenue, the Assistant Collector, the: original court, where the suit was pending, passed the order dated April 22, 1975 that the possession of the land in dispute be taken from Sherkhan by the receiver and should be delivered to the non petitioner (1) Bamboo from whom it WAS taken The petitioner preferred an appeal against that order of the Revenue Appellate Authority, and a revision was also preferred by him is the Board of Revenue. The Board of Revenue passed an order on 26 5 75 to the effect that the Tehsildar should take possession from Sherkhan and keep it to himself fill an enquiry in held. The petitioner after having filed the appeal and also a revision in the Board of Revenue, and after securing the above mentioned order and concealing this fact, filed a suit for a declaration that the order of the Assistant Collector dated April 22, 1975 was invalid and ineffective so far as his interests are concerned for the reasons mentioned in para 5 of the plaint.

8. It can, therefore, be said that the order dated April 22, 197 which was passed by the Assistant Collector is an order passed in executions proceedings and was passed in pursuance of the order of the Board of Revenue, referred to above Even prima facie, it does not appear as to how the order is with out jurisdiction and invalid. Under Section 185 of the Act, the decree or order is to be executed and the order dated April 22, 1975 of the Assistant Collector is one under S, 185 of the Act for execution of the order of the Board of Revenue, referred to above. Such an order is appealable under Section 225 of the Act and an appeal was filed by the petitioner against that order before the Revenue Appellate Authority and a revision was also filed before the Board of Revenue. Under Section 256 of the Act read with Item 83 of Schedule III, if any matter, is arising under the Act, a remedy by way of appeal or otherwise is provided, then the jurisdiction of the civil court is barred. Therefore, it is so patent in the facts and circumstances of this case that the order of the Assistant Collector dated 22.4.75 was an appealable order and the appeal was filed and, therefore, that order could not have been challenged in the Civil Court.

9. It is submitted by the learned Advocate for the petitioner that a suit for declaration of the order dated 22.4. 75 is invalid and in effective so far as the rights of the petitioner are concerned could not have been filed in the Revenue Court and, therefore, the jurisdiction of the Civil Court was not barred But, to my mind, when the order dated 22.4.75 could be challenged in appeal, the challenge could be on all the grounds, and that order could have been set aside. In substance, the suit, was for setting aside that order, a relief which could have been granted in appeal, which was preferred and is pending. It may be observed here that litigation concerning the disputed land which is only 2 Bighas and 4 Bigwas is going on since long between the parties in revenue courts, and the petitioner himself got possession under the orders of the Revenue Appellate Authority from the receiver, and when the Revenue Board has set aside that order, the Assistant Collector in execution of that order directed the receiver to take possession from the petitioner. The petitioner rushed to the Civil Court and continues to be in possession till today, inspite of the order of the Board of Revenue, referred to above, passed on his revision. All these facts go to show that the suit is such which is barred under Section 256 of the Act read with item 83 of Schedule III, and the Civil Court has no jurisdiction to try a suit of the present nature. To me, it appears to be a litigation which is fruit less, not bonafide, and the outcome of the suit appears to be none she but rejection of the plaint, which has been done. As already observed above, the Court has got inherent powers in the interests of justice to nib in the bud such sort of litigation, rather than to allow the valuable time of the courts and the parties to be wasted.

10. Therefore, In the facts and circumstances of this case, no interference on revisional side in the order of the learnd Additional District Judge is called for, as even other wise the proper order appears to be one, which was passed by the trial Court. It may also be observed that the order which was challenged in the suit has already been modified by the Board of Revenue, as already observed above, and in the form it was passed on April 22, 1975 does not exist.

11. With these observations, the revision petition is here by dismissed, but the costs are made easy.


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