/ <. »\6 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPE'AL N0 ^L N0. c^<>/ ^ OF 2005 APPELLANT PLAINTIFF Amar Nath Singh S/o"Bodham Singh, aged about 50 years, Cast- Knawar, R/o Village - Turna, P.S. 85 Tehsil Ambikapur, Distt. Surguja,(C.G.) VE R 8 U^ ^ RESPQNDENTS DEFENDANTS Ramsundar, S/o Late Kalyan Singh, aged about 22 years, Cast- Gond, Shyambar Singh, S/o Late Kalyan Singh, aged about 18 years, Pathango Bai W/o Late Kalyan Singh, aged abut 56 years, Caste- Gond, 4. Rajnandan Singh S/o Late -j^j^L^i^Katyaii-Si&gh, aged about 45 ^ v years, ^ are R/o of Village - Amd^bhfitU, P.S. 8& Tehsil - Ambikapur, District - Sarguja, (C.G.) Shri D. R. Mandavi, Deputy Collector 8& Anuvibhagey Adhikari, Ambikapur, ^ State of C.G. through the Collector, Sarguja. £:<-^.J. x MEMO OF SECOND APPEAL UNDER SECTION 100 OF THE ^'^, CODE OF r.TVTT. PROCEDURE. 1908. '<" \" \» HI©HCOURT OF CHHATIS^RH. BIL^SPUR Second Afmeat No. 251 of 2005 Amar Nath Sir^h Vs. Ramsundar and others ORAL ORbER 31.8.2005 SUNIL KUMAR SINHA. J. (1) Shri ^oKesh Pandey, counsel for the appellant. Heard on admission. (2) The plaintiff, who ho^ lost in both the Courts, has filed this Second Appeal under Section 100 of the C.P.C., challenging the legality and validity of the impugned judgment and decree dated 14.2.2005, passed in Civil Appeal No. 16-A/2004 by the First ^dditional District Judge, Ambikapur, arising out of the judgment and decree dated 19.7.2001, possed in Civil Suit No. 161-A/1998 by ^dditional Civil Judge, Class-I, Ambikopur, District Surguja (C.6.). (3) The plaintiff's case is that he is the real purchaser of the suit lands, He belongs to Knawar caste, This lcxnd was purchased by him from a person belonging to fiond caste, -riierefore, the provisions of Section 165 (6) of the MP. Land Revenue Code,1959 (for short the Code) were not attracted in his case. Even after -^ this, the Sub-Divisional Officer. respondent No.5. took cognizance in the matt'er and opened an enquiry under Section 170-B of the Code and ultimately, directed the lands to be reverted back to the possessjon of the seller-Advasi. holding that the purchaser was only an ostensible purchaser ouid the actual purchaser of the land was respondent No.4 ond in this manner, the appellant/plaintiff who has been shown to be the actual purchaser of the lomd was only a Benamidar, (4) Alongwith the other issues, learned trial Court framed issues No. 5 & 6 in relation to the application of provisions of Section 170-B of the Land Revenue Code and also in relation to ouster of the jurisdiction by virtue of necessary implications of Section 257 of the said Code. Both these issues were replied against the plaintiff and it was held that the provisions of Section 170-B of the Code were rightly applied in this case ouid the provisions of Section 257 of the said Code will also apply and the Civil Courts' jurisdiction is barred. The suit wos dismissed. (5) A9ainst the aforesaid dismissal by the trial Court, the plaintiff filed an appeal before the lower appellate court oind the lower appellate court also dismissed the oppeal of the plaintiff, confirming the jud9ment and decree passed by the trial Court. (6) I have heard learned counsel for the appellouit at length. (7) There is no doubt that Section 257 (1) & (1-1) of the M.P. Land Revenue Code creates a bar against the entertainment of civil jurisdiction to try any claim to set cxside transfer by Bhoomiswami under sub-Section (1) of Sectjon 170 and clauses (a) and (b) of sub- 3 ^) Section (2) of Section 170-A as well as any matter covered under Section 170-B of the said Code. (8) However, even if a bar is created by a special statute, the civil Courts may entertain the civil suits under peculiar circumstances. The exception has been bid down by the old decision of the Privy Coundl. reported in the maUer of Secretary of State -ys.- Mask rf Co. ^.I.R. 1940 PHw Cowwil. 105. It laid down that the exclusion of civil jurisdjction must be explicitedly expressed or clearly implied. Even where it is so excluded, civil courts have jurisdiction to examine the cases where provision of Act are not complied or statutory tribunal does not act according to the fundamental principles of judicial procedure. It has further been held by the Apex Court while dealing with a matt-er under the Madhya Bharat Abolition of Jagirs Act, where the civil jurisdiction was barred, that the order of Tehsildar could not be challenged in the civil courts except on the ground that it was a "nullity". (Please see A.I.R. 1979 SC. 1936 Raohwiath fdead) bv Lrs. -Vs. - Kanahiya fdead) bv Lrs.) (9) In the facts and circumstances of the case, 1 find that the plaintiff could not establish before the civil court that the order of S.D.O. was either without jurisdiction or a nullity in 1+ie eye of law or the S.D.O. has complied wjth the provisions of Section 170-B of the Code without complying with the provisions of the fundamental principles of judicial procedure. (10) A perusal of section 100 C.P.C. makes it clear that the scope and exercise of jurisdiction by the High Court in the second appeal under section 100 is limited to the substantial questions of law ^ framed at the time of admission of the appeal or additional substantial questions of law framed at the later stage after recording reasons for the same, This makes it clear that the existence of substantial questions of law is sine qua non for the exercise of jurisdiction under the amended provisions of section 100 C.P.C. (Ptease see (2004) Vol. V SCC 762 -Thiaoaraian and others -Vs- Sri Vemawala Swamv B. Koil and others) (11) As to which would coristitute a substantial question of law, it has been observed by the Apex Court in case of Santosh Hazari - Ky- Purvshottam Tiwari fOeceased) by LRs. (2001) 3 SCC 179 that: WA point of law which admits af no two opinions may be a proposition of law but cannot be a substantiaf question of law. To be "wbsiantial" a question of law must be debatable. not pivviously settled by law of the hnd ar a binding pre^xdenf and must have a material bearing on the decisian of the ca^, if answered eiliier way, insofar as the rights of Ifie parties before it are concemed To be a questfon of hw inyolved in fhe case Ihere must be first a foundation for it laid in -the pleadings and the question ^iould emerge from ihe sustamable fmdings af fact arrivecf at by court of facts ovid it must be necessary to decide fhat question of law for a just an proper decision af Itfe case. An entirely new point raised for Ihe first time before Ihe High Court is not a question involved in the axse unless it goes to 1fie root of fhe inQtf'er. It will, thei'^fore. depend on ihe facts ond circumstance of each case whether a question of law is a substantial one and involved in the cas^, or nat; the paramount overall consideration being the need for striking a Judicious balance between ihe indispensable obligation to do justice at all stages ancf -6- ifnpefling necessit/ of awiding pralongatian in Ihe life ofany lis." (Emphasis siyplied) (12) In the opinion of this Court, no substantial question of law is involved in the appeal. (13)The oppeal has no merit. It is dismissed. There shall be no orders as to costs. Sd/- Sunil Kumar Sinha Judge fu^^