I E; : ;‘ i " x ‘ {I ‘ Q; Q. ‘1 ‘ ;‘ .; ‘ , ,- j I L I : ‘ i r i ~ BILASPUR CHHA'ITISGARH sECOND APPEAL No. i 3 0 OF 2004 APHELLANT Butiram, aged about fLAINTIFF S/o (Sanvra), Motiram occupation, Ram agriculture, presently of Pandaripani (East) & Dist.Raigarh Versus RESPONDENTS ,1 1. Kirtan, aged about /DEE‘.EI_\IDANTS f "“ S/o Bhagirathi f \\ / 2. Sankirtan, years, S/o aged Bhagirathi z ‘ 'i,"($. . Wh‘ct‘ 3. Sadram, aged about 6%QA Qggg' Vs.‘ 31$ 9f i“ V 4. S/o Banshiram, Sakram . t aged Sounra .~ E3“ / years, S/o Sakram Cax‘avf $S~g§ Cf: /’ 5. Shyamlal, years, S/o aged Harichand Leg) 5;? §£ / 6; Dokri, Widow aged of Harichand about 7.,Suiochana, ag‘e‘d / years, Widow of 8. Ghasiya, aged r“ S/o Ramlal /9. ‘Phulki, aged‘about (Died), S/o represented aged about 38 f Rusiram, resident ; . Jashpurnagar . N‘ 1»0.Bedmati, aged years, D/o Bhrugdev 11.Bedram, aged . z” S/o Satyanand 12.State of Chhattisgarh the Coilector, w Raigarh (Chhattisgarh) §$wg 68 years Sounra resident Tehsii (Chhattisgarh) 65 years, Sounra about 34 Sounra 70 years, about 65 Sounra about 40 Sounra 65 years, about 48 Ramlal about 26 years, 58 years, Bhrugdev, ‘ by“Laxman Singh, g. years, S/o v of * (Chhattisgarh) about 55 about 58 years, Aghariya through Raigarh, District HIGH COURT OF JUDICATURE AT BILASPUR SECOND APPEAL NO.13O OF 2004 Butiram Vs. Kirtan Ram and others Post for )3 .122004 Sd/— Sunil Kumar nha Jdge JUDGMENT . u“ Si HIGH COURT OF JUDICATURE AT BILASPUR ECOND APPEAL NO. 130 OF 2004 Butiram Vs. Kjrtan Ram and others ‘ . Shri H. S. Patel, counsel for the appellant. State by Shrl Neeraj Mehata, Panel Lawyer. . ‘ ha, J Sunil Kumar Sin JUDGEMENT (/g [12/2004) Heard on he question of admission. t This appeal has been nled under section 100 of the Code of Civil Procedure. The plaintiff’has med this appeal against the mpugned judgment and decree dated 30.1272003 passed in Civil Appeal No.37-A of 2002 by the First Additional District Judge, Raigar, arising out of the judgment and decree dated 2.8m Janualy 2002 passed in Civil Suit No.49-A/ 1999 by the Civil Judge, Class-II Raigarh, District Raigarh (CG). The piE ost in both the courts. (2) Brief facts for disposal of this appeal are as under: The plaintiE Eled a civil suit for the relief of declaration of tle and also for declaration that the order passed by the Sub- visional O$cer in Revenue Case No.85/A—23/ 1989/90, on 25.3.19 (E.P.5) is void. He also prayed for confirmation of psession and the alternative prayed that if his possession is S i . ~ i h laint l : it : Di 91 x ; os 1n not found, the suit lands be restored to his poésession. The suit lands am agricultural lands beaijing Khasra Nos. 121/ 2 area 31 decimals and 365/4 area 1.43 acres. It is admitted in this case that the plaintin‘ and defendants No. 1 to 10 are the members of the Scheduled Tribe and are “Swara” by caste. It is also i admitted that the defendant no.11 Vedram is “Aghariya” by ; caste which is neither a Scheduled Caste nor a Scheduled Tribe. i It is also admitted that the sale deed dated 24.5.1967 which relates to Khasra No.1‘21/2 area 31 decimals (Ex.P.1) and sale deed dt.28.8.1970 which relates to Khasra No.365/4 area 1.43 acres (EX.P.2) were executed in the name of plaintiE by the predecessors of defendants 110:1 to 10. It is also admitted that the Sub-Divisional omcer, Raigarh conducted an enquiry under = section 170-B of the‘MP. Land Revenue Code 1959 (hereinafter referred to as the “Code") through the revenue case number referred to above in which the plaintiff participated and on ‘ 25.3. 1991 an order was passed by the Sub-Divisional Officer for i restoration of the suit lands to defendant no.1 to 10 under the provisions of sech‘on 170-B of the Code. It is also admitted that against the aforesaid order, passed by the Sub-Divisional omcer I ,no appeal was med by the plaintih' or the defendant no. 11 and the order became finala 5(3) The plaint allegations are that plaintid' purchased the E'aforesaid lands from the predecessors of defendants no.1 to 10 iby the said two registered sale deeds dated 24.5.1967 and i k t y ) x 28.8.1970 (EX.P..1 & P—2) for tha considerah'on of Rs.600/- and Rs.3000/- respectively. It is further alleged that the possession of the said agricultural lands were also handed over to the plaintiil‘ and the sale was complete in all respects. However on a report of the Revenue OtTicer regarding transfer in contravention 4 ‘of section 165 of the Code, the said proceedings under section 1'70-B were initiated by the Sub—Divisional O$cer on the allegations that the lands recorded in the name of plaintiE under the aforesaid sale deeds were in fact the lands of ownership and possession of defendant no.1l who belongs to a general caste and the transaction between the plaintih‘ and the predecessors of the defendants 1 to 10 was a Benami transaction. The plaintin' further alleges that the Sub-Divisional O$cer came in the camp court and he was noticed by hinrrk Though the statements were recorded by the S.D.O. but no proper opportunity of hearing was given to him. In fact, the plaintin‘ was not knowing about the order dated 25.3:1991 which was passed by the Sub-Divisional Onicer in the aforesaid € _ proceedings and when this order came to his knowledge on 21.02. 1994 then only he nled the aforesaid civil suit. He further alleges that defendant no.11, namely Vedram is not at all concerned with thenplaintid‘ and since the transaction was between the homogeneous categories (Adivasi to Adivasi), section 165(6) of the Code are not applicable in his case hence section 170—B is not attracted and the order passed in the said L g ‘ ; ‘ ‘ ,Lt, proceedings am illegal. It is also pleaded that the order has been passed Without adopu'ng proper procedure. (4) That some of the contesting defendants among defendants no. 1 to 10 filed their written statement denying the contentions V , of the plaintiK. It was pleaded by them that in fact no purchase was made by the plaintih‘ and the actual purchaser of the :property was the defendant no.11. Since the defendant no.11 was not legally entitled to purchase the property on his own name, therefore, the sale deeds in the name of the plaintiE vide ‘ EXP. 1 8a P-2 were executed. They denied the contentions of the plaintiE about not giving proper opportunity of hearing before the Sub-divisional O$cer and'pleaded that the order passed by the Sub—Divisional O$cer was fully justifiedmtDefendant no. 11 has not filed any written statement in this case. (5) Learned trial Court framed various. issues and after recording the evidence of parties, dismissed the suit of the plaintiE holding that in fact, the defendant no.11 was the real purchaser of the suit lands and the order passed by the Sub- Divisional Officer was legal and binding and the same was t i passed after givingdue opportunity of hearing to the parties. (6) Against the aforesaid judgment and decree passed by the trial Court, the plaintin' med an appeal before the lower appellate Court, but the lower appellate Court also dismissed his appeal. The lower appellate Court while confirming the judgment and decree passed by the trial Court also considered this point that since the provisions of section 170~B of the Code are attiacted, therefore, the civil suit would be barred u/s 257(1) of the Code. In this way having been lost in the two Courts below, the plaintiE has come up in the‘second appeal before this Court under section 100 of the Code of Civil Procedure. c (7) The learned counsel for the appellant argues that in fact the real purchaser of the land is the plaintiE who purchased the same Vide Ex.P.1 and P-2 from the predecessors of defendants no.1 to 10. Defendant no. 11 is not at all concerned with the aforesaid transactions and the finding in this regard recorded by the Sub-Divisional O$cer u/s 170-B of thee€ode isillegal and not binding on him. He further submits that in fact, no opportunity of hearing was ah'orded to the plaintiff before the . Sub-Divisional O$cer and the order passed by the Sub— Divisional O$cer Vide EXP-5 cannot be sustained. He also argues that since the order was passed violating the fundamental principles of natural justice and the same is a nullity, therefore, the civil court will have jurisdiction to entertain the civilsuit even after a bar created by section 257(1) of the Code. He further argues that the transactions were not the Benami transactions and the findings are bad in law. V \ l I u \ I i ‘ (8) This Court has gone through the judgment and decree passed by the two courts below and has also perused the records. It is apparent from the bare perusal of Ex.P.5 that a regular proceeding u/s 170-B of the MP. Land Revenue Code 1959 was initiated by the Sub-Divisional Oftlcer and after issuing notice to the plaintid‘ the matter was taken up for hearing in his camp court. The plaintih‘ had also participated in the said prqceedings and his evidence was also recorded during the comse of enquiry. The evidence of the plainti§ has been med by the defendants and is marked as Ex.D.2. In the said evidence, he has made admission that in fact, defendant no. 11 had purchased the suit lands nom the predecessors of defendants no. 1 to 10, but the sale deeds were executed on his name. The sale considerations were also paid by defendant no. 11 and it was not paid by him. In fact the defendant no.11 was holding the possession of the suit land. On the face of these admissions and also on the face of the evidence recorded by the Sub-Divisional Omcer, it cannot be said that either the Sub- Divisional Onicer has not given an adequate opportunity of hearing to the plaintin‘ or the finding recorded by him in relation to the aforesaid transactions are bad in law. As a matter of fact, after going throughtthe entire order (EX.P.5) it would be clear that a proper opportunity of hearing was ah‘orded to the plaintin‘ and the plaintiE‘himself admitted before the Sub-Divisional Ofncer regarding the real purchase by the defendant no. 11 from ) .AI‘ 3 Q3 ‘ ‘ i 1 ¢ I ' ‘ the predecessors of the defendants no.1 to 10 Vide sale deeds EXP. 1 8r. R2. i (T) On the basis of the aforesaid discussion and also on the I biasis of material available on record it cannot be said that two i t coiQrts below committed error of law while recording this finding tliat the order passed by the Sub-Divisional omcer vide EX.P.5 l w‘tas not illegal and the same was binding on the parties. E i ‘“”1r/, (lb) In the facts and circumstances of the case, it cannot be i l held that the aforesaid orders passed by the Sub—Divisional Ofncer was either a nullity or was passed Violating the fundamental principles of natural justice. In the opinion of this Co%urt, such orders passed by the Revenue Authority under the proivisions of Section 170-B of the M.P. Land Revenue Code are i t no;t open for challenge before the Civil Court under the bar created u/s 257(1) of the Code and the same are final and binding. In this View of the matter, the trial Court as well as the first appellate Court has not erred in holding that the plaintiff could not establish his case for passing a decree in his favour and correct judgment and decree have been passed by the two courts below. v ‘e.-\ (11;) Since the existence of a substantial question of law is the sin? qua non for the exercise of jurisdiction under the amended prolvisions of section 100 C.P,C., as has been laid down by the t t i [I Apex Court in the matter of Miaaaraian and others ‘Vs- Sri Venu Gopala SwamiIB. Koil’ reported in {2004) 5 SCC Pa. 762 and no substantial question of law is involved in this case waxranting interference by this Court under section 100 of the Code of Civil Procedure, this appeal Eed by the plaintiii‘ deserves ‘tq be and is accordingly dismissed at the admission stage itself. No order as to cost. (12) Conseguently, M.C.P.No.347 of 2004 for stay and l.A.No.751/ 2004 for urgent hearing stand disposed of. x Sd/— Sunil Kumar Sinha ' Judge” //'” < L i S .,'