STATE OF M.P. & ANR. versus DUNGAJI (D) BY LRS. & ANR. on 16 July 2019

STATE OF M.P. & ANR.

v.

DUNGAJI (D) BY LRS. & ANR.

(Civil Appeal No.11326 of 2011)

JULY 16, 2011

[M.R. SHAH AND A.S. BOPANNA, JJ.]

Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960:

s. 46 – Competent Authority while determining surplus landof the plaintiff, included the land inherited by his wife from hermother – Suit by plaintiff against the State challenging order ofCompetent Authority and also against his wife seeking declarationthat the marriage between them was already dissolved by way ofcustomary divorce and hence land of her wife could not have beenconsidered for determining his surplus land – Suit dismissed bytrial court as well as first appellate court – High Court, in secondappeal, decreed the suit – Appeal to Supreme Court – Held: In viewof s. 46 there was a complete bar against maintainability of the suitbefore civil court challenging the decision of Competent Authority–However, the suit qua his wife seeking declaration for divorce wasmaintainable – The trial as well as first appellate court in theirconcurrent finding disbelieved the customary divorce – Therefore,High Court, in exercise of powers u/s. 100 CPC, was not justifiedin interfering with the concurrent finding of facts and thus exceededits jurisdiction – Even on merits, the plaintiff failed to prove thecustomary divorce – Plaintiff had come out with the case ofcustomary divorce only with a view to get out of the provisions ofthe Act – Suit is liable to be dismissed – Code of CivilProcedure, 1908 – s. 100.

Allowing the appeal, the Court

HELD: 1. By Order dated 18.05.1976 and after followingdue procedure required to be followed under the provisions ofMadhya Pradesh Ceiling on Agricultural Holdings Act, 1960, theCompetent Authority declared 57.32 acres of land as surplus landunder the provisions of the Act 1960. As wife of the plaintiff hadinherited 19.89 hectares of land from her mother, therefore, as

A

B

C

D

E

F

G

H

Asuch, she became the absolute owner of the aforesaid land. Asper the provisions of the Act, the land held by the wife wasrequired to be included in the holding of the family of the husband.Therefore, the Competent Authority included 19.89 hectares ofland in the holding of the family of the plaintiff and consequentlyby Order dated 18.05.1976 declared 57.32 acres of land as surplusBland. [Para 7] [990-C-D]

2. The Order passed by the Competent Authority declaringthe land as surplus land is subject to appeal and further revisionas provided under the Act 1960 (Section 41 and 42 of the Act1960). Section 46 of the Act 1960 provides that no Civil CourtChas jurisdiction to settle, decide or deal with any question whichis by or under the Act 1960 required to be settled, decided ordealt with by the Competent Authority. Therefore, as per Section46 of the Act 1960 there shall be a complete bar againstmaintainability of the suit challenging the decision of the DCompetent Authority. Despite the above and without preferringany appeal/revision as provided under the Act 1960 challengingthe Order passed by the Competent Authority dated 18.05.1976,the plaintiff filed the suit before the Civil Court praying for adeclaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. It is true that in the suitEthe plaintiff also prayed for declaration to declare that the divorcehad taken place between him and his wife on the basis of thecustomary procedure. Therefore, as such, the suit qua the samerelief can be said to be maintainable. But certainly, the suitchallenging the Order passed by the Competent Authority datedF18.05.1976 was not maintainable at all. Therefore, in the factsand circumstances of the case, the High Court has materiallyerred in quashing and setting aside the Order dated 18.05.1976passed by the Competent Authority. [Para 7] [990-E-H;991-A-C]

GSooraj v. SDO (1995) 2 SCC 45 : [1994] 5 Suppl. SCR686; Mohanlal NanbhaiChoksi (Dead) by LRs. v. Stateof Gujarat (2010) 12 SCC 726 : [2010] 12 SCR499 – relied on.

Dhulabhai v. State of Madhya Pradesh AIR 1969 SC–H78 : [1968] SCR 662 distinguished.

Union of India v. Shri Kant Sharma (2015) 6 SCC773 : [2015] 4 SCR 676; Swapnanjali Sandeep Patilv. Sandeep Ananda Patil(2019) SCC Online SC 329;Subramani v. M. Chandralekha(2005) 9 SCC 407:[2004] 6 Suppl. SCR 285;Yamanaji J. Jadhav v. Nirmala(2002) 2 SCC 637;Dwarka Prasad Agarwal v. RameshChander Agarwal (2003) 6 SCC 220 : [2003] 1 Suppl.SCR 376 – referred to.

3. There were concurrent findings of facts recorded by boththe Courts below that the original plaintiff has failed to prove andestablish that the divorce had already taken place between theplaintiff and his wife by way of customary divorce. Both the Courtsbelow specifically disbelieved the Divorce Deed at Exhibit P5.The aforesaid findings were recorded by both the Courts belowon appreciation of evidence on record. Therefore, as such, inexercise of powers under Section 100 of the CPC, the High Courtwas not justified in interfering with the aforesaid findings of factsrecorded by both the Courts below. Therefore, the High Courthas exceeded in its jurisdiction while passing the impugnedJudgment and Order in the Second Appeal under Section 100 ofthe CPC. [Para 8] [991-F-H]

4. Even on merits both the Courts below were right inholding that the plaintiff failed to prove the customary divorce asclaimed. At no point of time earlier either the plaintiff or his wifeclaimed customary divorce on the basis of Divorce Deed atExhibit P5. At no point of time earlier it was the case on behalf ofthe plaintiff or his wife that there was a divorce in the year 1962between the plaintiff and his wife. In the year 1971, wife of theplaintiff executed a Sale Deed in which she is stated to be thewife of the plaintiff. Before the Competent Authority neither theplaintiff nor his claimed the customary divorce. Even in theRevenue Records the name of plaintiff’s wife was mutated. Inthe circumstances and on appreciation of evidence on record,the Trial Court rightly held that the plaintiff has failed to provethe divorce between as per the custom. Only with a view to getout of the provisions of the Ceiling Act 1960, subsequently andmuch belatedly, the plaintiff came out with a case of customarydivorce. Exhibit P5 was got up and concocted document with a A

B

C

D

EF

GH

Aview to get out of the provisions of the Ceiling Act 1960. TheHigh Court has clearly erred in interfering with the findings offacts recorded by the Courts below which were on appreciationof evidence on record. [Paras 9 and 9.1] [992-A-F]

D

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11326of 2011

From the Judgment and Order dated 29.10.2010 of the High CourtEof Madhya Pradesh, Bench at Indore in Second Appeal No. 580 of 2003

Ms. Prachi Mishra, Harsh Parashar, Chaitanya, Aman Pandey,Sunny Choudhary, Advs. for the Appellants.

Guru Krishna Kumar, Sr. Adv., Divyakant Lahoti, Anand Soni,Piyush Singh, Ardhendumauli Kumar Prasad, Advs. for the Respondents.F

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with theimpugned Judgment and Order dated 29.10.2010 passed by the HighCourt of Madhya Pradesh, Bench at Indore in Second Appeal No.580Gof 2003 by which the High Court has allowed the said appeal preferredby the respondent-original plaintiff – Dungaji (now represented by hislegal representatives) and consequently has decreed the suit declaringthat the marriage between Dungaji (original plaintiff) and his wifeKaveribai had been dissolved by way of customary divorce, much prior H

H

to the coming into force the provisions of the Madhya Pradesh Ceilingon Agricultural Holdings Act, 1960 (hereinafter referred to as ‘the Act’)and that the property inherited by Kaveribai from her mother, after divorce,cannot be treated to be a family property of Dungaji for the purposes ofdetermination of surplus area under the Act and the High Court has alsoheld that the Competent Authority had not followed the mandatoryprovisions of law before passing the order dated 18.05.1976 andconsequently has declared the same order as null and void, the State ofMadhya Pradesh and another have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That, Kaveribai, wife of Dungaji, in the year 1966 inherited 19.89hectares of land (land in dispute) after the death of her mother. That thesaid Kaveribai said to have sold the land in dispute through a Sale Deeddated 18.11.1971. That the proceedings were initiated before theCompetent Authority under the Act regarding determination of surplusland. That the Competent Authority by its order dated 18.05.1976 treatedKaveribai as a member of the family of Dungaji and included 19.89hectares of land inherited by her from her mother as the land held by thefamily of Dungaji for the purpose of determination of surplus area.

2.1 That Dungaji instituted a suit before the learned Civil Court,Ujjain challenging the order dated 18.05.1976 passed by the CompetentAuthority under the Act, 1960.That the learned Trial Court by its Judgmentand Decree dated 27.04.1988 dismissed the suit and upheld the orderdated 18.05.1976 passed by the Competent Authority. That beingaggrieved by Judgment and Decree dated 27.04.1988 passed by thelearned Civil Judge, Ujjain, Dungaji preferred First Appeal No. 26-A/1989 before the First Appellate Court. The said appeal came to beallowed. The learned First Appellate Court remanded the matter back tothe learned Civil Judge for fresh consideration after giving an opportunityof hearing toDungaji. That thereafter Dungaji instituted a Civil Suit No.48-A/2002 before the learned Civil Judge, Ujjain against State of MadhyaPradesh and Kaveribai for declaration that the Order dated 18.05.1976passed by the Competent Authority under the Act is illegal and null &void and also for a declaration of divorce between the plaintiff andKaveribai and also for declaration that the plaintiff (Dungaji) does nothave excess land under the provisions of the Act, 1960.

AB

CD

EFG

A2.2 That, it was the case on behalf of the original plaintiff-Dungajithat he had three wives Kaveribai, Kashibai and Nanibai. That after hehad married Kashibai and Nanibai, his first wife Kaveribai startedquarrelling with him and consequently, being fed up with the daily quarrelin the family, he had divorced Kaveribai 17 years prior to the filing of thesuit as per the custom prevalent in the community. According to theBplaintiff after the said divorce he and Kaveribai had been living separatelyand there had been no relationship of husband and wife between them.According to the plaintiff, after the aforesaid divorce, Kaveribai startedliving with her mother Amritabai. Amritabaihad died and as such Kaveribaihad inherited the land owned by her mother-Amrita Bai and the sameCland had been even mutated in the name of Kaveribai. The plaintiffpleaded that he had no concern with the aforesaid land owned byKaveribai and therefore the same cannot be included in the holdings ofthe family of Dungaji. According to the plaintiff, Kaveribai is wronglybeing treated as member of the family of plaintiff even after the divorce.According to the plaintiff, Order dated 18.05.1976 was null and void andDnot binding upon the rights of the plaintiff. The plaintiff also pleaded thatproper procedure had not been followed by the Competent Authoritywhile passing the order dated 18.05.1976.

2.3 Kaveribai as original defendant no.3 filed a written statement

2.3 Kaveribai as original defendant no.3 filed a written statement and admitted that she had been divorced from the plaintiff-Dungaji. SheEalso admitted that she had inherited a land measuring 19.89 hectaresfrom her mother-Amritabai. The original defendant nos.1 and 2-the Stateof Madhya Pradesh and another(appellants herein) opposed the suit byfiling a separate written statement. Defendant nos.1 and 2 denied thatDungaji had ever been divorced with Kaveribai and the land inherited byFher from her mother was not to be included in the land held by the familyof Dungaji. The Trial Court framed the requisite issues. The parties ledtheir evidence. On appreciation of evidence, the learned Trial Courtdismissed the suit by Judgment and Decree dated 22.10.2002. The learnedTrial Court specifically observed and held that the plaintiff has failed toprove that there is any customary divorce which has taken place betweenGthe plaintiff and Kaveribai. The Judgment and Decree passed by thelearned Trial Court came to be confirmed by the First Appellate Court.The original plaintiff carried the matter to the High Court by way ofSecond Appeal No.580 of 2003. The High Court framed the followingsubstantial questions of law :H

“1. Had the findings recorded by both the Courts below that thecustomary divorce between late Dungaji and late Smt. Kaveribaihad not been proved, been perverse and arbitrary, disregardingthe oral evidence which had support of the documents andaffidavits of both late Dungaji and late Smt. Kaveribai, though,there had been no cross-examination on the point and no rebuttalwas led evidence on mere surmises or suspicion that theory ofsuch divorce was put to defeat the provision of the Ceiling Act?

2. Could the property inherited by Smt. Kaveribai from her motherform part of family property of late Dungaji and thus be declaredsurplus?

3. Could the competent authority dismiss the objections of lateDungaji without holding any enquiry which was mandatory underthe Provisions of the Ceiling Act?”

2.4 That by the impugned Judgment and Order, the High Courthas allowed the said appeal and has quashed and set aside the Judgmentand Decree passed by the First Appellate Court as well as the learnedTrial Court, dismissing the suit and consequently has decreed the suitand has held that the marriage between Dungaji and Kaveribai has beendissolved by way of customary divorce, much prior to the coming intoforce the provisions of the Act,1960 and also that the property, inheritedby Kaveribai from her mother, after divorce, cannot be treated to befamily property of Dungaji for the purposes of determination of surplusarea. By the impugned Judgment and Order, the High Court has alsoheld that the Competent Authority had not followed the mandatoryprovisions of law before passing order dated 18.05.1976 and consequentlyhas held the order dated 18.05.1976 as null and void.

2.5 Feeling aggrieved and dissatisfied with the impugned Judgmentand Order passed by the High Court in Second Appeal No.580 of 2003,original defendant nos.1 and 2-the State of Madhya Pradesh and another,have preferred the present appeal.

3. Ms. Prachi Mishra, learned Counsel has appeared on behalfof the appellant-State and Mr. Guru Krishna Kumar, learned SeniorCounsel has appeared on behalf of the respondents.

4. Ms. Prachi Mishra, learned Counsel appearing on behalf ofthe appellant-State has vehemently submitted that in the facts and A

B

C

D

EF

G

H

Acircumstances of the case, the High Court has committed a grave errorin allowing the Second Appeal and interfering with the findings of factsrecorded by both the Courts below.

4.1 It is further submitted by Ms. Prachi Mishra, learned Counselappearing on behalf of the appellant-State that while passing the impugnedBJudgment and Order, the High Court has exceeded in its jurisdictionwhile deciding the Second Appeal under Section 100 of the CPC whichwas against the concurrent findings recorded by both the Courts below.

4.2 It is further submitted by Ms. Prachi Mishra, learned Counselappearing on behalf of the appellant-State that the High Court hasCmaterially erred in not appreciating the fact that suit filed by the originalplaintiff challenging the Order passed by the Competent Authority dated18.05.1976 declaring 57.32 acres of land as surplus under Section 7 ofthe Act, was not maintainable at all. It is submitted that the High Courthas failed to appreciate the fact that the jurisdiction of the Civil Courtwas expressly barred under Section 46 of the Act, 1960. In support ofDher above submissions, learned counsel for the State has heavily reliedupon the decisions of this Court in the case of Sooraj v. SDO (1995) 2SCC 45; Mohanlal Nanbhai Choksi (Dead) by Lrs. v. State of Gujarat(2010) 12 SCC 726; Dhulabhai v. State of Madhya Pradesh AIR1969 SC 78 as well as Union of India v. Shri Kant Sharma (2015) 6ESCC 773. Relying upon the above decisions and relying upon Section 46of the Act 1960, it is vehemently submitted that the suit filed by theoriginal plaintiff challenging the Order passed by the Competent Authoritydated 18.05.1976 was not maintainable at all. It is submitted, therefore,the High Court has materially erred in quashing and setting aside theOrder passed by the Competent Authority declaring 57.32acres of landFas surplus land. It is submitted that therefore the entire proceedingsbefore the Civil Court were void abinitio.

4.3 It is further submitted by Ms. Prachi Mishra, learned Counselappearing on behalf of the appellant-State that even otherwise on meritsalso the High Court has failed to appreciate that there are concurrentGfactual findings recorded against Dungaji and Kaveribai by both the Courtsbelow. It is submitted that both the Courts below, on appreciation ofevidence on record, specifically observed and held that the plaintiffDungaji has failed to prove the customary divorce between him and Kaveribai. It is submitted that the High Court has materially erred in notproperly appreciating the fact that on appreciation of evidence on recordboth the Courts below specifically gave the finding that the plaintiff-Dungaji failed to prove customary divorce between Dungaji andKaveribai.

4.4 It is submitted that the High Court has failed to appreciatethe fact that Kaveribai herself executed a Sale Deed in favour of PadamSingh in the year 1971 in which she has specifically stated that she is thewife of Dungaji. It is submitted that, therefore, both the Courts below, assuch, rightly found that the plaintiff has failed to prove any customarydivorce between Dungaji and Kaveribai.

4.5 It is further submitted by Ms. Prachi Mishra, learned Counselappearing on behalf of the appellant-State that the High Court has failedto appreciate the fact that Dungaji has failed to prove and establish thefactum of customary divorce and has also not proved that such acustomary practice exists in his society. It is submitted that no suchevidence was led in this regard. It is submitted that, as per the settledproposition of law, Hindu marriage can be dissolved only in accordancewith the provisions of the Hindu Marriage Act, 1955. It is submitted thatas held by this Court in the case of Swapnanjali Sandeep Patil v.Sandeep Ananda Patil (2019) SCC Online SC 329; Subramani v. M.Chandralekha (2005) 9 SCC 407 and Yamanaji J. Jadhav v. Nirmala(2002) 2 SCC 637, if a customary divorce practice is claimed in acommunity then the same needs to be clearly established. It is submittedthat in the present case, the original plaintiff failed to prove and establishthe factum of divorce/customary divorce. It is submitted that in anycase when on appreciation of evidence both the Courts below disbelievedconcurrently a customary divorce as prayed by the plaintiff, the samewas not required to be interfered with by the High Court in exercise ofits powers under Section 100 of the CPC. It is submitted that as suchthere was no substantial question of law before the High Court. It issubmitted that the High Court has materially erred in allowing the SecondAppeal and quashing and setting aside the concurrent findings recordedby both the Courts below on the customary divorce pleaded by theplaintiff.

4.6 Making the above submissions, it is prayed to allow the presentappeal.

A

B

C

D

EF

G

H

A5. Present appeal is vehemently opposed by Mr. Guru KrishnaKumar, learned Senior Counsel appearing on behalf of the respondent(s)herein-original plaintiff.

5.1 Mr. Guru Krishna Kumar, learned Senior Counsel appearingon behalf of the respondent(s) herein-original plaintiff has vehementlyBsubmitted that in the facts and circumstances of the case, the High Courthas not committed any error in passing the decree of declaration declaringthat the marriage between Dungaji and Kaveribai was dissolved in theyear 1962. It is submitted that once there was a divorce as per thecustomary divorce between Dungaji and Kaveribai, the land held byKaveribai could not have been included in the holdings of the family ofCDungaji. It is submitted that, therefore, the High Court has rightly allowedthe appeal.

5.2 It is submitted that while allowing the appeal and decreeingthe suit, the High Court has considered the relevant evidence on recordincluding Deed of Divorce; statement of PW1-Padam Singh; statementDof PW2-Ram Chandra; statement of PW3-Mangilal and affidavit ofKaveribai. It is submitted that the appellants herein-original defendantshave not cross-examined any of the aforesaid witnesses who firmlydeposed on the factum of divorce. It is submitted that therefore statementof aforesaid witnesses remained unchallenged before the lower Courts.

E

E

5.3 It is further submitted by Mr. Guru Krishna Kumar, learnedSenior Counsel appearing on behalf of the respondent(s) herein-originalplaintiff that as the land held by Kaveribai which she inherited from hermother, was not required to be included in the holdings of the family ofDungaji and no proper procedure, as required to be followed under theFAct 1960, was followed, the suit filed by the plaintiff for a declaration todeclare the Order dated 18.05.1976 of the Competent Authority as nulland void was maintainable. It is submitted that the relief sought in thesuit would not fall in either of the two categories mentioned in Section 46of the Act 1960. It is submitted that the major issue is in respect of thedivorce between Dungaji and Kaveribai. It is submitted that therefore,Gthe said issue was not covered under Section 46 of the Act 1960. It isvehemently submitted by Mr. Guru Krishna Kumar, learned SeniorCounsel appearing on behalf of the respondent(s) herein-original plaintiffthat as held by this Court in the case of Dwarka Prasad Agarwal v.Ramesh Chander Agarwal (2003) 6 SCC 220 that the bar of jurisdiction H

of a Civil Court is not required to be readily inferred and a provisionseeking to bar jurisdiction of a Civil Court requires strict interpretation.It is submitted that as held by this Court in the aforesaid decision theCourt, it is well settled, would normally lean in favour of construction,which would uphold retention of jurisdiction of the Civil Court.

5.4 It is submitted by Mr. Guru Krishna Kumar, learned SeniorCounsel appearing on behalf of the respondent(s) herein-original plaintiffthat even otherwise as there was a grave procedural lapse on the part ofthe Competent Authority, the jurisdiction of the Civil Court cannot bebarred. In support of his above submission learned Senior Counselappearing on behalf of the original plaintiff has vehemently relied uponthe decision of this Court in the case of Dhulabhai(supra).

5.5 Making the above submissions, it is prayed to dismiss thepresent appeal.

6. Heard learned counsel appearing on behalf of the respectiveparties at length. At the outset, it is required to be noted that by theimpugned Judgment and Order, the High Court in exercise of its powersunder Section 100 of the CPC has allowed the Second Appeal and hasreversed the concurrent findings recorded by both the Courts below andconsequently has decreed the suit and has declared and held that themarriage between Dungaji and Kaverbai had been dissolved by way ofcustomary divorce, much prior to the coming into force the provisions ofthe Act 1960. The High Court has also set aside the Order dated18.05.1976 passed by the Competent Authority declaring 57.32 acres ofland as surplus land under the provisions of the Act 1960. The learnedTrial Court dismissed the suit by specifically observing on appreciationof evidence on record that the plaintiff has failed to prove that divorcehas already been taken place between the plaintiff-Dungaji and Kaveribaiaccording to the prevalent custom of the society. The learned Trial Courtalso specifically observed and held on appreciation of evidence on recordthat the execution of the Divorce Deed at Exhibit P1 is not proved. TheJudgment and Decree passed by the learned Trial Court came to beconfirmed by the First Appellate Court. However, in Second Appealunder Section 100 of the CPC, the High Court has interfered with theaforesaid findings of facts recorded by the learned Trial Court confirmedby the First Appellate Court. Therefore the short question which is posedfor the consideration of this Court is, whether in the facts and A

B

C

DEFG

H

Acircumstances of the case, the High Court was justified in allowing theSecond Appeal and consequently decreeing the suit and holding that themarriage between Dungaji and Kaveribaihad been dissolved by way ofcustomary divorce and therefore the Order passed by the CompetentAuthority dated 18.05.1976 is null and void?

B7. Having heard learned Counsel appearing on behalf of therespective parties and considering the evidence on record and the findingsof facts recorded by the learned Trial Court confirmed by the FirstAppellate Court, it appears that by Order dated 18.05.1976 and afterfollowing due procedure required to be followed under the provisions ofMadhya Pradesh Ceiling on Agricultural Holdings Act, 1960, theCCompetent Authority declared 57.32 acres of land as surplus land underthe provisions of the Act 1960. AsKaveribai-wife of Dungabai inherited19.89 hectares of land from her mother Amritabai, therefore, as such,she became the absolute owner of the aforesaid land. As per the provisionsof the Act, the land held by the wife was required to be included in the Dholding of the family of the husband. Therefore, the Competent Authorityincluded 19.89 hectares of land in the holding of the family of Dungajiand consequently by Order dated 18.05.1976 declared 57.32 acres ofland as surplus land. It is not in dispute that the Order passed by theCompetent Authority declaring the land as surplus land is subject to appealand further revision as provided under the Act 1960 (Section 41 and 42Eof the Act 1960). Section 46 of the Act 1960 provides that no CivilCourt has jurisdiction to settle, decide or deal with any question which isby or under the Act 1960 required to be settled, decided or dealt with bythe Competent Authority. Therefore, as per Section 46 of the Act 1960there shall be a complete bar against maintainability of the suit challengingFthe decision of the Competent Authority. Despite the above and withoutpreferring any appeal/revision as provided under the Act 1960 challengingthe Order passed by the Competent Authority dated 18.05.1976, Dungajifiled the suit before the Civil Court praying for a declaration to declarethe Order dated 18.05.1976 of the Competent Authority as null and void.Therefore, as such, considering the bar under Section 46 of the ActG1960, the suit filed by Dungaji challenging the Order dated 18.05.1976passed by the Competent Authority, was not at all maintainable. It is truethat in the suit the plaintiff also prayed for declaration to declare that thedivorce had taken place between Dungaji and Kaveribai on the basis of H

the customary procedure. Therefore, as such, the suit qua the samerelief can be said to be maintainable. But certainly, the suit challengingthe Order passed by the Competent Authority dated 18.05.1976 was notmaintainable at all. The view which we are taking is supported by thedecisions of this Court in the case of Sooraj(supra); Mohanlal NanbhaiChoksi (Supra) and in the case of Dhulabhai (Supra). The decision ofthis Court in the case of Dhulabhai(Supra) relied upon by the learnedCounsel appearing on behalf of the original plaintiffs, shall not beapplicable to the facts of the case on hand and/or the same shall not beapplicable to any reliefs sought in the suit. Therefore, in the facts andcircumstances of the case, the High Court has materially erred in quashingand setting aside the Order dated 18.05.1976 passed by the CompetentAuthority.

8. Now, so far as the impugned Judgment and Order passed bythe High Court declaring and holding that the marriage between Dungajiand Kaveribai had been dissolved by way of customary divorce, muchprior to the coming into force the provisions of the Act 1960 and thereforeafter divorce, the property inherited by Kaveribai from her mother cannotbe treated to be holding of the family property of Dungaji for the purposesof determination of surplus area is concerned, at the outset, it is requiredto be noted that as such there were concurrent findings of facts recordedby both the Courts below specifically disbelieving the dissolution ofmarriage between Dungaji and Kaveribai by way of customary divorceas claimed by Dungaji-original plaintiff. There were concurrent findingsof facts recorded by both the Courts below that the original plaintiff hasfailed to prove and establish that the divorce had already taken placebetween Dungaji and Kaveribai according to the prevalent custom ofthe society. Both the Courts below specifically disbelieved the DivorceDeed at Exhibit P5. The aforesaid findings were recorded by both theCourts below on appreciation of evidence on record. Therefore, as such,in exercise of powers under Section 100 of the CPC, the High Courtwas not justified in interfering with the aforesaid findings of facts recordedby both the Courts below. Cogent reasons were given by both the Courtsbelow while arriving at the aforesaid findings and that too afterappreciation of evidence on record. Therefore, the High Court hasexceeded in its jurisdiction while passing the impugned Judgment andOrder in the Second Appeal under Section 100 of the CPC.

A

BC

D

E

F

G

A9. Even on merits also both the Courts below were right in holdingthat Dungaji failed to prove the customary divorce as claimed. It isrequired to be noted that at no point of time earlier either Dungaji orKaveribai claimed customary divorce on the basis of Divorce Deed atExhibit P5. At no point of time earlier it was the case on behalf of theDungaji and/or Kaveribai that there was a divorce in the year 1962BbetweenDungaji and Kaveribai. In the year 1971, Kaveribai executed aSale Deed in favour of Padam Singh in which Kaveribai is stated to bethe wife of Dungaji. Before the Competent Authority neither Dungajinor Kaveribai claimed the customary divorce. Even in the RevenueRecords also the name of Kaveribai being wife of Dungaji was mutated.CIn the circumstances and on appreciation of evidence on record, theTrial Court rightly held that the plaintiff has failed to prove the divorcebetween Dungaji and Kaveribai as per the custom.

9.1 At this stage, it is required to be noted that before theCompetent Authority, Kaveribai submitted the objections. Before theDCompetent Authority, she only stated that she is living separately fromDungaji and Ramesh Chandra, son of Padam Singh, has been adoptedby her. However, before the Competent Authority neither Dungaji norKaveribai specifically pleaded and/or stated that they have already takendivorce as per the customs much prior to coming into force the Act of1960. Therefore, as rightly observed by the learned Trial Court and theEFirst Appellate Court only with a view to get out of the provisions of theCeiling Act 1960, subsequently and much belatedly, Dungaji came outwith a case of customary divorce. As rightly observed by the learnedTrial Court that Divorce Deed at Exhibit P5 was got up and concocteddocument with a view to get out of the provisions of the Ceiling ActF1960. As observed hereinabove, the High Court has clearly erred ininterfering with the findings of facts recorded by the Courts below whichwere on appreciation of evidence on record.

10. In view of the above and for the reasons stated above, thepresent appeal succeeds. Impugned Judgment and Order datedG29.10.2010 passed by the High Court is hereby quashed and set asideand the Judgment and Decree passed by the learned Trial Courtconfirmed by the learned First Appellate Court is hereby restored.Consequently, the suit preferred by Dungaji stands dismissed. No costs.

HKalpana K. Tripathy

Appeal allowed.