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State of Rajasthan and anr. Vs. Gulam Ahmed - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeals No. 202 and 203 oof 1976
Judge
Reported in1981WLN(UC)518
AppellantState of Rajasthan and anr.
RespondentGulam Ahmed
DispositionAppeal dismissed
Cases ReferredVithal Yashwant Jathar v. Shikandarkhan Makhtumkhan Sardesai
Excerpt:
rajasthan land revenue act, 1956 - section 259--jurisdiction of civil court--damages for breach of contract not to be recorded as arrears of land revenue--action of state government in recovering arrears of land is not an action under the act--held, jurisdiction of civil court is not barred--civil court an examine question of jurisdiction.;no recovery could be made from the respondent under section 85 of the forest act as arrear of land revenue. therefore, it can not be said that the action of the state government in trying to make recovery as an arrear of land revenue was a matter arising under and provided for by the act and the jurisdiction of the civil court atands excluded by the provisions of section 259 of the act.;the civil court can examine whether the jurisdiction of the civil..........money for the contract. the state of rjasthan did not return the earnest money and, therefore, civil suit no. 66 of 1969 for the recovery of the same was filed in the court of additional district judge, sirohi which was transferred to the court of learned additional civil judge, sirohi. the district forest officer, sirohi issued a notice on 19-10-68 to the plaintiff that he has not tendered the resignation according to the rules and some damage was caused to the surrounding forest area for which, he was liable to pay the damages in the sum of rs. 30, 722/-. the plaintiff suitably replied to the notice and denied his liability to pay any damages and furher asserted that the possession of the forest area was handed over on 30-6-66. some more correspondence was exchanged between the.....
Judgment:

S.N. Deedwania, J.

1. These two civil misc. appeals involving similar questions of law and facts are disposed by this judgment. Appeal No. 202 of 1976 State of Rajasthan and Anr. v. Gulam Ahmed son of Haji Peerji is against the judgment and decree, dated July 30, 1976 of learned Additional District Judge, Sirohi and the other appeal No. 203 of 1976 State of Rajasthan and Anr. v. Akbar son of Gulam Ahmed is against judgment the and decree, dated July 29, 1976 of the same court.

2. Briefly stated the facts relating to the State of Rajasthan and Anr. v. Gulam Ahmed are these. Gulam Ahmed filed a suit in the court of Munsif, Abu Road for permanent injunction against the State of Rajasthan and the District Forest Officer, Sirohi for restraining them to recover the amount alleged to be due against him for wrongful felling of the trees. The allegations contained in the plaint were these. Plaintiff Gulam Ahmed took contract for the manufacture of coal from the State of Rajasthan for the year 1966-67 in forest area namely 'Kumbha coupe matar mata' in Compartment No. 20-A for a sum of RS. 60, 100/-. The plaintiff took possession of the area on 19-11-66. He could cat the wood and manufacture the coal up to 30-4-66 and remove manufactured coal by 30-6-66. The possession of the said area was handed over to the Forest Range Officer, Sirohi and foliar-book was also delivered on 30-6-66. The plaintiff had deposited RS. 6.010/-as earnest money for the contract. The State of Rjasthan did not return the earnest money and, therefore, civil suit No. 66 of 1969 for the recovery of the same was filed in the court of Additional District Judge, Sirohi which was transferred to the court of learned Additional Civil Judge, Sirohi. The District Forest Officer, Sirohi issued a notice on 19-10-68 to the plaintiff that he has not tendered the resignation according to the rules and some damage was caused to the surrounding forest area for which, he was liable to pay the damages in the sum of Rs. 30, 722/-. The plaintiff suitably replied to the notice and denied his liability to pay any damages and furher asserted that the possession of the forest area was handed over on 30-6-66. Some more correspondence was exchanged between the parties. It appears that a notice under Section 256 of the Rajasthan Land Revenue Act (here in-after referred to as 'the Act') was issued to the plaintiff by the Tehsildar, Pindwara for the recovery of Rs. 30, 722/-. It is further alleged that the said recovery is illegal and the defendants, be restrained from effecting this recovery. The defendants denied the allegations contained in the plaint and further asserted that the civil court had no jurisdiction to try the suit. It appears that before the issues were framed, the suit of the plaintiff pending in the court of Additional Civil Judge, Sirohi was decreed Learned Munsif framed several issues and the following issues were decided as preliminary issues:

(1) Whether the plaintiff had surrendered the Coupe Matar Mata to the defendants on 30-6-66 ?

(2) Whether the judgment passed in civil suit No. 54 of 1970 Gulam Ahmed v. State of Rajasthan of learned Civil Judge, Sirohi is res-judicata for this suit ?

The finding of learned Munsif on these issues by its order, dated April 9, 1973 was that the plaintiff had surrendered the said Coupe to the defendants on 30-6-66 but the earlier suit would not operate as res judicata with regard to issue No. 2 but operate a res judicate in respect of issue No. 1. These issues in the earlier suit were as follows:

1. Whether the plaintiff surrendered the Coupe on 30-6-67 to the Range Forest Officer ?

2. Whether the plaintiff is entitled to get RS. 6,310/- from the defendant as alleged in para No. 6 of the plaint ?

Learned Munsif who decided those issues was transferred and his successor completely ignoring the issues and findings of his predecessor framed new issues and tried the following issues as preliminary-

11. Whether this Court has no territorial jurisdiction over the matter ?

12. Whether the suit is under valued if so whether this Court has no pecuniary jurisdiction over the matter ?

13. Whether this Court is barred by any provision of Land Revenue Act from entertaining this suit ?

14. Whether plaintiff is bound to deposit Rs. 30,722/-and only then can be no heard ?

The finding of the new Munsif was that the court had territorial jurisdiction to try the suit and it was properly valued. It was further held that the civil court had no jurisdiction to try the suit in view of the fact that the dispute fell under Section 256(a) (i) and (b) and (c) of the Act and Section 259 of the Act is a bar to the suit. It was also held that the suit could not be tried before the plaintiff deposited a sum of RS. 37,722/-. In view of these findings, the suit of the plaintiff was dismissed. The plaintiff filed an appeal against this judgment, dated March 26, 1974. The appellate court framed the following three questions for determination-

1. Whether the decision of the Civil Judge, Sirohi will operate as res judicata in respect of issue No. 2 framed by the Court below on 3.5.72 ?

2. Whether the jurisdiction of the Civil Court is barred by the provisions of the Rajasthan Land Revenue Act ?

3. Whether the plaintiff was bound to deposit Rs. 30,722/- before vindicating his right in the civil court ?

It was held by the appellate court that the decision of the Civil Judge, Sirohi would operate as res judicata in respect of issue No. 2 framed by the earlier Munsif on 3.5.72 and jurisdiction of the civil court was not barred as the proceedings under the Act for the recovery of the said amount had not been started at the time of the institution of the suit in the court of Munsif, Abu Road. It was further held that the plaintiff was not required to deposit the amount of compensation claimed by the defendant as the proceedings under Section 256(a) of the Act had not started before the suit was filed. The facts in the other appeal are similar except that the forest area is different and so also the amount of damages claimed by the defendant.

3. I have heard the learned Counsel for the parties and perused the record of the case carefully.

4. It is argued by learned Counsel for the appellants that the appellate court was grossly in error in observing that the process of recovery under Section 256(a) of the Act has been not started at the time of the institution of the suit, and, therefore, this suit was not maintainable. The plaintiff, in para 8 of the plaint had specifically stated that a notice under Section 256 of the Act was issued by the Tehsildar, Pindwara to him for recovery of Rs. 33,722/-. Once the process of recovery had started, no court was competent to grant any injunction because of the provisions of the Act. The contention was substantiated by the observations made in Ratanlal v. State of Rajasthan 1973 R.L.W. 437.

5. On the other hand, it is argued by learned Counsel for the respondent that a particular procedure had been provided for making recoveries under the Act. The appellants failed to lead evidence or show that such a procedure was followed and the recovery proceeding had been started. At this stage, I may say that it does appear on the admission of the respondents that the recovery proceedings under the Act had been started as was evident from the allegations made in para 8 of the plaint, the presumption is that the Tehsildar, Pindwara issued a notice for the recovery after complying with the formalities of law. However, this would not be conclusive to decide the controversy because if the recovery could not be made under the Act then in my opinion, the suit would not be barred. Section 259 of the Act bars the jurisdiction of the civil courts and it reads as under :

259. Jurisdiction of civil courts excluded: No suit or other proceedings shall, unless otherwise excepted by any express provision made in this Act or in any other enactment or 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 boundary dispute or any other dispute between estate-holders, a question of title is involved, a civil suit may be brought for the adjudication of such question.

Therefore, the jurisdiction of the civil court is only excluded with respect to any matter arising under and provided for, by the Act. The question, therefore, is whether this recovery could be made under the provisions of the Act. Section 256(a) of the Act reads as under:

256. Recovery of miscellaneous revenue and other moneys: The following moneys may be recovered under this Act in the same manner as an arrear of revenue-(a) all sums of money declared by this Act or by any law for the time being in force, other than the Rajasthan Public Demands Recovery Act, 1952 (Rajasthan Act 5 of 1952).

Therefore, all arrears of money may be recovered as an arrear of revenue, which is so recoverable as declared by the Act or by any la w for the time being in force other than the money recoverable under the Rajasthan Public Demands Recovery Act, 1952. If at all the money claimed against the respondents can be recovered, it can so be done only under Section 256(a) of the Act because on other Clause of Section appears to be applicable. Learned Counsel for the appellants also relied upon Section 256(a) of the Act. At this stage, I may meet the argument advanced on behalf of the respondents that the amount claimed could not be recovered as arrears of land revenue as it could be recovered under the Rajasthan Public Demands Recovery Act. Its schedule is to the following effect-

1. Section 31 ( x x x )

2. The Schedule Public Demands

[Section 2(5)]

(1) XX XX XX (2) XX XX XX(3) XX XX XX (4) XX XX XX(5) XX XX XX6. Any money payable to the Government or to a department or an officer of Government-

(i) Under or in pursuance of written instrument, or

(ii) under or in pursuance of an agreement evidenced by a writing, a correspondence or otherwise, in repayment of any advances or in liew of any services rendered or supplies made by the Government or such department or officer of Government.

(7) Any money payable to any local authority in respect of which the person liable to pay the same has agreed, by a written instrument, or agreement, duly registered, that it shall be recoverable as a demand or a public demand or as an arrear of revenue or land revenue.

(8) Any money payable to the State Government or to a department or an officer of the State Government in consequence of loss, misappropriation, defacation or breach of trust by a public servant.

(9) Any money due from a person who is a surety for the payment of any sum recoverable under the provisions of this Act.

(10) Any money due from a purchaser at a sale held in execution of a certificate under this Act, whether the sale is subsisting or not.

6. From the bare perusal of this it is evident that the recovery could not be made under this Act. It could not be said that any money was payable in pursuance of a written instrument or an agreement evidenced by a writing. The alleged sum-due against the respondents appears due to the damage to the surrounding forest area. Therefore, the question is whether the amount claimed can be recovered as arrears of land revenue under the provisions of Section 256(a) of the Act read with Section 85 of the Rajasthan Forest Act, which reads as under:

85. Recovery of penalties due under bond : When any person in accordance with any provisions of this Act, or in compliance with any Rule made there under, binds himself by any bond or instrument to perform any duty or act or coverants by any bond or instrument that he or that he and his servants and agents, will abstain from any act, the whole sum mentioned in conditions there of may, not with standing anything in Section 74 of the Indian Contract Act, 1872, be recovered from him in case of such breach as if it were an arrear of land revenue.

7. It is evident that under certain conditions, the sum due against a person can be recovered as arrears of land revenue by virtue of Section 85 of the Rajasthan Forest Act. But, the essential condition for the recovery of sum as arrears of land revenue under Section 85 of the Rajasthan Forest Act is that a definite sum should be mentioned is any bond or instrument as the amount to be paid in case of breach of a condition contained in such bond or instrument. Of course, the respondent entered into a written contract for the lease of the Forest area. The respondent is sought to be made liable because he failed to surrender the possession of the leased area, after completion of the contract in writing and some damage to the surrounding leassed area was found to have been caused. It appears that certain rules have been framed by the Government, which are known as ^^fu;e Bsdstkr taxy jkt0^^ At the out set, I may observe that they are not framed under the ruler making power of the Rajasthan Forest Act. learned Counsel for the appellant could not show that these rules were framed under the Rule making power of the Rajasthan Forest Act. Therefore, in my opinion, these rules could at best be the part of the written contract between the parties. Rule 30 of these rules provides that after the work of contract has been finished, the contractor would submit written resignation and until it has been accepted by the District Forest Officer, the contractor would be liable for every loss caused to the lots. It is provided under Rule 25 of these rules that the contractor would be liable for the damages caused to the forest adjoining the lots. The case of the State appears to be that the possession of the lots was of the contractor in the eye of law because he has not submitted his resignation in writing. He is liable for any loss caused to the lots till the resignation has been accepted by the District Forest Officer. As already stated that ^^fu;e Bsdstkr taxy jkt0^^ are not statutory and strict compliance of its Rule 30 is not necessary. It is an admitted position that in fact the plaintiff has surrendered the foliary book and actually delivered the possession of the lots. In this view of the matter, I am of the opinion that no vicarious liability can be fastend on the contractor. That apart, at the best, the respondent is liable for any damages caused to the lots but for this alleged damage no fixed penalty or amount has been named in the contract. Therefore, any damages for the alleged breach of the contract can not be recovered as arrears of land revenue. Section 85 of the Forest Act is very specific. Any sum named in bond or instrument as the amount to be paid incase of breach of any condition thereof is only recoverable from the contractor as arrears of land revenue. I am of the opinion that no recovery could be made from the respondent under Section 85 of the Forest Act as arreas of land revenue. Therefore, it can not be said that the action of the State Government in trying to make recovery as an arrear of land revenue was a matter arising under and provided for by the Act and the jurisdiction of the civil court stands excluded by the provisions of Section 259 of the Act. It is true that under Section 259 of the Act the jurisdiction of the civil court is excluded but in respect of those matters only which arise under or are provided for by the Act. The civil court certainly has the jurisdiction to examine whether the alleged action is a matter arising under or provided for by the Act. In this respect, a reference may be made to the following authorities;

(1) Secretary of State v. Mask & Co. AIR 1940 P.C. 105-

The exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act has not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Union of India v. Tarachand Gupta and Bros : 1983(13)ELT1456(SC) -

The principle thus is that exclusion of the jurisdiction of the civil courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word 'jurisdiction' has both a narrow and a wider meaning. In the sence of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.

Thus, it is well settled that the civil court can examine whether the jurisdiction of the civil court has been ousted in respect of any action. Since, the alleged action is not a matter arising under or provided by any of the provisions of the Act, I am definitely of the view that the jurisdiction of the civil court is not excluded by virtue of Section 259 of the Act. Learned appellate court also came to this conclusion but for different reasons. Once, it is held that the State could not make the recovery as arrear of land revenue, it is evident that the hands of the civil court would not be tied by any of the provision or scheme of the land revenue Act. The ratio enunciated in case of Ratan Lal v. State (Supra) is, therefore, not applicable to the facts of this case. In this regard, I may make reference to the case of Purshottamdas v. The Collector 1967 RLW 209-

Before the stringent provisions of this Section can be properly called into application, the particular demand (sic) must fall within the four walls of Section 256 or Section 257, and where such a foundation is lacking, the provisions of Section 757-B cannot possibly be availed of. Where it is impossible to hold on the material which has been placed on this record that the demand notice issued against the petitioners falls under any Clause of Section 256 there is no alternative but to allow the further proceedings by which the petitioners' objection repudiating their liability was turned down.

I, therefore, find no force in the contention of the learned Counsel for the appellant, that because of the provisions of the Act, the jurisdiction of the civil court was excluded or the alleged recovery proceedings could not be challenged in a civil court.

8. As regards, res judicata, the learned first appellate court was of the opinion that in the earlier suit decided by the Civil Judge, Sirohi, issue No. 2 of that suit was substantially or directively in dispute and, therefore, issue No. 2 of the present suit was covered by the principles of res judicata by the decision of the earlier suit. Learned Government Advocate could not point out any mistake in the approach of the first appellate court. It is well settled that not only a decision in the earlier suit is conclusive but also such decision as formed the grounds of that decision is also conclusive. In this connection, I may refer to the following authorities:

1. Laxmichand and Ors. v. Ramkumar and Ors. -

From the first passage it will be evident that the former judgment concludes not only the points actually decided, but also matters which it was necessary to decide and which were actually decided as the ground-work of the decision itself though not then directly the point at issue. This recent judgment of the House of Lords shows that what is conclusive is not merely the decision in the earlier litigation, but also decision of such points as formed the ground-work of that decision and according to the judgment of the Privy council, already referred, what is in substance the ratio and fundamental to the decision is also res judicata. 2. Gangappa Gurupedappa Gugwad v. Rachawwa and Ors. : [1971]2SCR691 -

It is open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If, however, final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the partieS. 3. Vithal Yashwant Jathar v. Shikandarkhan Makhtumkhan Sardesai : [1963]2SCR285 -Where the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties

9. I, therefore, see no reason to disagree with the view taken by the first appellate court on the question of res judicata and jurisdiction.

10. These appeals, therefore, being devoid of any force are dismissed but no order as to costs are made in their circumstances.


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