POORAN SINGH versus DHANIRAM (SINCE DEAD) THR. LEGAL HEIRS AND ANR. on 14 March 2019

1. Delay condoned.

2. Leave granted.

3. This appeal arises from a judgment of the High Court ofDChhatisgarh at Bilaspur dated 25 February 2015 in a Second Appeal[1]under Section 100 of the Code of Civil Procedure.

4. Beniram Gond, who belonged to a notified Scheduled Tribe,executed a sale deed of the suit property consisting of agricultural landadmeasuring 5.36 acres located at Village Naragaon, Tehsil Balod, DistrictEDurg in favour of Dhaniram, a non tribal. The sale on 9 October 1964was for a consideration of Rs.2,400. The suit property is described thus:

“Agricultural Land bearing Survey No. 69/2, Area 1.10 Acre;Survey no. 69/5, Area 1.98 Acre; Survey No. 69/9, Area 0.50Acre; Survey No. 69/12, Area 0.19 Acre; Survey No. 69/23, AreaF0.61 Acre; Survey No.69/15, Area 0.28 Acre; Survey No.69/16,Area 0.29 Acre; Survey No. 172/2, Area 0.41 Acre; Total 8Surveys comprising 5.35 Acres, Located at Village Naragaon,Tehsil Barod, District Durg, MP now Chhatisgarh”

The appellant is Beniram’s son. The respondents are the legalGheirs of Dhaniram, who has died.

On 24 October, 1980 Section 170B was inserted into the provisionsof the MP Land Revenue Code 1959 by MP Act 15 of 1980. Section170B, insofar as is material, reads as follows:

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“170B. Reversion of land of members of aboriginal tribe whichwas transferred by fraud. - (1) Every person who on the date ofcommencement of Madhya Pradesh Land Revenue Code(Amendment) Act, 1980 (hereinafter referred to as the AmendmentAct of 1980) is in possession of agricultural land which belongedto a member of a tribe which has been declared to be an aboriginaltribe under sub-section (67) of Section 165 between the periodcommencing on the 2nd October, 1959 and ending on the date ofthe commencement of Amendment Act, 1980 shall, within twoyears of such commencement, notify to the Sub-Divisional Officerin such form and in such manner as may be prescribed, all theinformation as to how he has come in possession of such land.

(2) If any person fails to notify the information as required bysub-section (1) within the period specified therein it shall bepresumed that such person has been in possession of theagricultural land without any lawful authority and the agriculturalland shall, on the expiration of the period aforesaid revert to theperson to whom it originally belonged and if that person be dead,to his legal heirs.

3(2-A) If a Gram Sabha in the Scheduled area referred to inclause (1) of Article 244 of the Constitution finds that any person,other than a member of an aboriginal tribe, is in possession of anyland of a bhumiswami belonging to an aboriginal tribe, withoutany lawful authority, it shall restore the possession of such land tothat person to whom it originally belonged and if that person isdead to his legal heirs :

Provided that if the Gram Sabha fails to restore the possession ofsuch land, it shall refer the matter to the Sub-Divisional Officer,who shall restore the possession of such land within three monthsfrom the date of receipt of the reference.

(3) On receipt of information under sub-section (1), the Sub-Divisional Officer shall make such enquiry as may be deemednecessary about all such transactions of transfer and if he findsthat the member of aboriginal tribe has been defrauded of hislegitimate right he shall declare the transaction null and void andpass an order revesting the agricultural land in the transferor and,if he is dead, in his legal heirs.”

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A7. Proceedings were initiated before the Sub Divisional Officer,Balod[2] at the instance of Beniram under Section 170B. On 28 July1984, the plea was initially rejected by the SDO, Balod. However, on 5June 1985, the Collector, Durg, allowed the Revenue Appeal[3] againstthe order of the SDO Balod. The Collector directed the reversion of theland in favour of Beniram. On 11 June 1986, the Additional CommissionerBRaipur Division dismissed the Appeal[4] filed by Dhaniram. Dhaniraminitiated writ proceedings[5], before the High Court of Madhya Pradesh inorder to challenge the order passed under Section 170B against him.

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8. A learned single Judge of the High Court dismissed the petitionon 16 February 1987 in the following terms:C

“Petitioner by Shri R.N. Tiwari. He is heard. The sole questionin the instant case which arises for consideration is whether thenotice of appeal preferred by respondent no.5 before the CollectorDurg, respondent no.3, had been served on the petitioner or not.That question essentially is a question of fact and the finding ofDthe Collector and of Additional Commissioner in appeal that thepetitioner had been served with notice, does not suffer from anymanifest error of law or jurisdiction requiring interference underArticle 226 of the Constitution of India.

The petitioner does not appear to have made any request eitherEto the collector or to the additional commissioner for permissionto produce evidence to show that the notice said to have beenserved on him and purporting to bear his signature in fact does notbear his signature and that it contains a forge signature of thepetitioner. He having failed to take this plea before the fact findingFauthorities, cannot take it for the first time under Article 226 ofthe Constitution. If the petitioner was given an opportunity byserving notice on him and he failed to appear without any sufficientcause, he alone is to be blamed for that.

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It was then urged by counsel for the petitioner that in view ofGsection 170C of the M.P. Land Revenue Code, no counsel couldhave appeared for respondent no.5 before the Collector withoutobtaining the permission of the Collector. The question as to 2 SDO

3 No. 11-A/23 year 1984-85 titled as Beniram v Dhaniram 4 case No. 42/A-23/85-86

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5 M.P. No. 367 of 1987

whether counsel who appeared for respondent no. 5 had obtainedany permission from the Collector or not, is again a question offact and it should have been raised before the fact findingauthorities. It cannot be raised for the first time in a writ petition.

No other point has been pressed.

In the result, the petition is dismissed.”

9. On 19 July 1986, possession was restored to Beniram, thepredecessor-in-interest of the appellant.

10. After the dismissal of the writ petition by the High Court,Dhaniram filed a suit[6]before the Civil Judge Class II, Balod against theappellant seeking a permanent injunction, possession and a declarationthat the order dated 5 June 1985 of the Collector was null and void. Theappellant contested the suit. The suit was rejected on 11 December1995. However, in a first appeal[7], the District Judge, Durg set aside theorder of the Trial Court and decreed the suit. The appellant unsuccessfullychallenged the order of the first appellate court in a Second Appeal.The Second Appeal having been dismissed on 25 February 2015, theseproceedings were instituted.

11. After the rejection of the suit on 11 December 1995, Section257 (L-1) was introduced by an amendment of the Madhya PradeshLand Revenue Code in order to bar the jurisdiction of the civil court toentertain suits pertaining to orders under Section 170B. Section 257,insofar as is material, reads as follows:

“257. Except as otherwise provided in this Code, or in any otherenactment for the time being in force, no Civil Court shall entertainany suit instituted or application made to obtain a decision or orderon any matter which the State Government, the Board, or anyRevenue Officer is by this Code, empowered to determine, decideor dispose of, and in particular and without prejudice to thegenerality of this provision, no Civil Court shall exercise jurisdictionover any of the following matters :-

a) any decision regarding the purpose to which land isappropriated under Section 59; 6No. 20A of 1992

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(b) any question as to the validity or effect of the notificationof a revenue survey or any question as to the term of asettlement;

(c) any claim to modify a decision determining abadi made bya Settlement Officer or Collector; (d) any claim against the State Government to hold land freeof land revenue, or at less than the fair assessment, or to beassigned in whole or in part the land revenue assessed on anyland; (e) the amount of land revenue assessed or reassessed underthis Code or any other enactment for the time being in force; (f) any claim against the State Government to have any entrymade in any land records or to have any such entry omitted oramended.

(g) any question regarding the demarcation of boundaries orfixing of boundary marks under Chapter X; (h) any claim against the State Government connected with orarising out of, the collection of land revenue or the recovery ofany sum which is recoverable as land revenue under this Codeor any other enactment;

(i) any claim against the State Government or against aRevenue Officer for remission or suspension of land revenue,or for a declaration that crops have failed in any year; (j) any decision regarding forfeiture in cases of certaintransfers under Section 166; (k) ejectment of a lesser of a bhumiswami under sub-section(4) of Section 168; 1(l) any claim to set aside transfer by a bhumiswami undersubsection (1) of Section 170 and clauses (a) and (b) of sub-section (2) of Section 170-A;]

2(l-1) any matter covered under Section 170-B.]”

12. The High Court by its impugned order held that:

(i) no enquiry had been made by the Collector under Section 170B;

(ii) the presumption under Section 170B is rebuttable;

(iii) the amendment introducing Section 257 (L-1) on 15 December 1995 would have no application to the suit which was institutedon 18 February 1992; and

(iv) in view of (ii), the bar of jurisdiction was not attracted.

13. The basic issue which falls for consideration is whether it wasopen to the respondent to institute a suit to challenge the order passed bythe Collector, Durg on 5 June 1985, when an earlier challenge to thelegality of the order had culminated in the final judgment of the HighCourt on 16 February 1987. The answer to that issue must lie in thenegative. The order of the Collector was placed in issue before theHigh Court in MP 367 of 1987. The order which has been extracted inthe earlier part of the judgment indicates that the challenge was on theground that the notice of the appeal before the Collector had not beenserved on the original respondent, Dhaniram. The judgment of the HighCourt enquired into the legality of the order passed by the Collector. TheHigh Court came to the conclusion that the order was in accordancewith law. The writ petition was dismissed. Once the order of the Collectorwas affirmed in the final judgment and order of the High Court dated 16February 1987, it was not open to a civil court to arrive at a conclusion tothe contrary. The High Court, in our view, has manifestly erred in ignoringthe clear effect of the earlier order dated 16 February 1987.

14. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High court dated 25 February 2015.In consequence, we restore the judgment of the Trial Court, dismissingCivil Suit No. 20A of 1992 instituted by the respondent. There shall beno orders as to costs.

Ankit Gyan

Appeal allowed.

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