RSA 199/2000 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the plaintiff is directed against the judgment and decree dated 04.09.2000 passed by the learned Civil Judge (Sr. Division), Golaghat, in Title Appeal No.1/1994 dismissing the appeal preferred by the plaintiff by upho lding the judgment and decree dated 01.10.1993 passed by the learned Munsiff No. 2, Golaghat, whereby and whereunder the suit of the plaintiff was dismissed. 2. The appellant as plaintiff instituted a suit praying for declaration, am ongst other, that the order dated 09.02.1976 passed by the authority under Secti on 7 of the Assam Fixation of Ceiling on Land Holdings Act, 1956 (in short the 1 956 Act) is void and inoperative, contending inter alia that though the Sub-Divi sional Officer, Golaghat made the final order under Section 7(6) of the said Act declaring 1702 bighas 2 kathas 14 lechas of land as excess, within the meaning of the said Act, on 09.02.1976, as the plaintiff has subsequent to the said orde r utilized the said land for the special cultivation and for other ancillary pur poses i.e. for construction of the labour quarters, football ground, cremation g round etc. for the welfare activities, the defendants are not entitled to take o ver the possession of the land declared as excess vide order dated 09.02.1976 an d as such the notice dated 27.10.1992 issued by the Deputy Commissioner, Golagha t to the Tea Estate in question of which the plaintiff is the Executive Director , to submit the details of the dag number and patta number of the said excess la nd, is also illegal and void. 3. The said suit was eventually transferred to the Court of the learned Mun siff No.2 and numbered as Title Suit No.33/1992. 4. The defendants on receipt of the summons entered appearance and conteste d the suit by filing written statement contending inter alia that the suit of th e plaintiff is not maintainable, that it is barred by law of limitation, that th e civil court in view of Section 32 of the 1956 Act has no jurisdiction to enter tain the suit where the order dated 09.02.1976 passed by the authority in exerci se of the power conferred under Section 7(6) of the 1956 Act has been put to cha llenge, that the suit is bad for want of notice under Section 80 CPC and that th e final order as contemplated under the provisions 1956 Act having been passed b y the authority on 09.02.1976 the land vest on the Government, the plaintiff the reafter cannot in any manner utilize the said land. 5. The learned Trial Court on the basis of the pleadings of the parties, fr amed the following issues for considerations and decisions:- (1) Whether there is cause of action in the suit? (2) Whether the suit is barred by law of limitation? (3) Whether the suit is bad and illegal for non-compliance of the provision of Section 80 CPC? (4) Whether the suit is beyond the jurisdiction of this Court? (5) Whether the plaintiff is entitled to get the declaratory decree as praye d for in the suit? (6) To what any other relief or reliefs the parties are entitled to? 6. Since the issue Nos.2, 3 and 4 which relate to the question of limitatio n and maintainability as well as the jurisdiction of the Court to entertain the suit, those issues, as agreed to by the parties, were taken up for decision as p reliminary issues. 7. The learned Trial Court on the basis of the pleadings of the parties and on hearing the learned counsel decided the issue Nos.2, 3 and 4 against the pla intiff by holding that the suit of the plaintiff is barred by law of limitation having been filed after 3(three) years from the date of the order dated 09.02.19 76; that the suit is bad for want of notice under Section 80 CPC and having not obtained the leave of the Court to file the suit without serving such notice as required under Section 80(2) of the CPC and the Civil Court has no jurisdiction to entertain the suit as filed by the plaintiff, in view of Section 32 of the 19 56 Act. 8. The plaintiff being aggrieved preferred Title Appeal No.1/1994 in the Co urt of the learned Civil Judge, Senior Division (now Civil Judge), Golaghat, whi ch appeal has also been dismissed by the learned First Appellate Court vide judg ment and decree dated 04.09.2000. The learned First Appellate Court, however, ha s decided the issue No.2 i.e. the issue relating to the question of limitation i n favour of the plaintiff and set aside the finding of the learned Trial Court r elating to the said issue. The finding of the learned Trial Court in respect of issue Nos.3 and 4, however, have been upheld by the learned First Appellate Cour t. Hence the present appeal. 9. Vide order dated 21.12.2000 the appeal has been admitted for hearing on the following substantial questions of law:- (i) Whether the jurisdictional restrictions contained in Section 32 of the A ssam Fixation of Ceiling on Land Holdings Act, 1956 would apply when the alleged surplus land has been used for purpose ancillary to tea cultivation? (ii) Whether land used for purposes of tea cultivation and for purposes ancil lary to tea cultivation for a long time still falls within the purview of Land C eiling Act? (iii) Whether the injunction is granted by entertaining a suit for urgent and immediate relief, whether the mere fact that no order was specifically passed th e Trial Court granting leave to file the suit without notice U/S 80(2) CPC would render the suit invalid? (iv) Whether the order declaring the land in question was itself without juri sdiction because the subject matter is not covered by the definition of ’land’ w ithin the Ceiling Act, 1956 and opposed to the very object of the Act? 10. I have heard Mr. Singh, learned counsel for the appellant/plaintiff and Mrs. Phukan, learned counsel appearing for the respondent/defendant. 11. It has been contended by the learned counsel for the appellant that it i s evident from the order dated 27.11.1992 passed by the learned Munsiff in Title Suit No.33/1992 that the application filed by the plaintiff under Section 80(2) of the CPC has in fact been allowed, though after writing the prayer is the r emaining part has been left blank. The learned counsel submits that had the pray er made under Section 80(2) of the CPC been not allowed, the learned Munsiff wou ld not have passed the order dated 27.11.1992 granting injunction in Misc.(J) Ca se No.23/1992, registered on the basis of the application filed by the plaintiff under Order 39 Rule 1 and 2 of the CPC. The learned counsel, therefore, submits that the finding recorded by the learned courts below relating to the issue No. 3 is contrary to the materials available on record and therefore needs to be set aside. 12. Relating to the question of jurisdiction of the Civil Court to entertain the suit, in view of Section 32 of the 1956 Act, it has been submitted by the l earned counsel that it is evident from the language used in Section 32 that the Civil Court jurisdiction has not been barred. According to the learned counsel t he Civil Court has the jurisdiction to try the suit under Section 9 of the Code of Civil Procedure, unless specifically barred by any enactment. It has, therefo re, been submitted that the learned courts below have committed illegality in de ciding the issue No.4 against the appellant/plaintiff by holding that the civil court has no jurisdiction to entertain the suit in view of the provision contain ed in Section 32 of the 1956 Act. 13. Mrs. Phukan, learned counsel for the respondent/defendant, on the other hand, has submitted that the order dated 27.11.1992 passed by the learned Munsif f in Title Suit No.33/1992 does not reveal granting of leave by the Court to the plaintiff to institute the suit even before service of notice as required under Section 80(1) of the CPC. According to the learned counsel such leave has to be specifically granted. In the instant case, it has been submitted by the learned counsel that merely because an injunction has been passed, it cannot, unless a specific order granting the leave is passed, be presumed that such an order has been passed by the learned Court below. 14. It has also been submitted by the learned counsel for the respondent/def endant that the Civil Court under Section 9 CPC has the jurisdiction to try all the suits of a civil nature provided such suit is either expressly or impliedly not barred. Referring to the provisions under Section 32 of the 1956 Act, the le arned counsel submits that the jurisdiction of the court to entertain any procee ding questioning the order passed under Section 7(6) of the 1956 Act has been ta ken away and as such the Civil Court jurisdiction to try a suit challenging such an order is barred. The learned counsel, therefore, submits that the learned Fi rst Appellate Court has rightly dismissed the appeal preferred by the appellant by affirming the findings recorded by the learned Trial Court relating to issue Nos.3 and 4. 15. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by the learned courts below. 16. The appellant as plaintiff instituted the said suit basically praying fo r declaration that the order dated 09.02.1976 passed by the authority under Sect ion 7(6) of the 1956 Act is invalid and inoperative, as, after the said order th e land has been utilized by the plaintiff either for special cultivation or for the purposes ancillary thereto. After the final order passed under Section 7(6) of the 1956 Act, the land vest on the Government. Section 32 of the said Act cre ates a bar to exercise the jurisdiction by any Court against the decision or ord er passed by the authority in exercise of the power conferred by or under the 19 56 Act. Section 32 for better appreciation is quoted below:- 32. Bar to jurisdiction. - Except as otherwise expressly provided in this Act, no decision or order made in exercise of any power conferred by or under this Ac t shall be called in question in any Court. 17. Section 9 of the CPC empowers the civil court to try all the suits of a civil nature, excepting suits of which their cognizance is either expressly or i mpliedly barred. Therefore, except where the jurisdiction of a civil court is ex pressly or impliedly barred, the Civil Court will have the jurisdiction to enter tain and try a suit. In the present suit, as noticed above, the plaintiff challe nged the order dated 09.02.1976 passed by the authority under Section 7(6) of th e 1956 Act. Section 32 of the 1956 Act creates a bar in exercising the jurisdict ion by any court where a decision or order made in exercise of the power conferr ed by or under the Act is put to challenge. The Civil Court jurisdiction in resp ect of the order passed by the authority under Section 7(6) of the 1956 Act, the refore, has been barred by Section 32 of the Act. The person aggrieved by the fi nal order passed by the authority under Section 7(6) of the said Act, however, c annot be remediless. The bar created to entertain any proceeding challenging suc h final order passed by the authority under the provisions of the said Act, howe ver, naturally cannot apply to the power of judicial review of the High Court un der Article 226 of the Constitution of India, the same being the basic feature o f the Constitution. 18. In view of the aforesaid discussion, I am of the view that the learned c ourts below have rightly decided the issue No.4 by holding that the civil court has no jurisdiction to entertain the suit as framed by the plaintiff. 19. The other grounds on which the suit of the plaintiff was dismissed is th at neither any notice as required under Section 80(1) CPC has been issued to the defendants nor the leave to file appeal even before issuance of such notice, as required under Section 80(2) CPC has been obtained. 20. It appears from the record of the Title Suit No.33/1992 that the appella nt/plaintiff, in fact, filed an application under Section 80(2) CPC seeking leav e of the Court to file the suit even without service of notice on the defendants . The learned Munsiff in his order dated 27.11.1992 passed in the suit has taken note of such an application and passed the following order:- The prayer is & & & & & & & &.. It also appears from the record that the appellant/plaintiff tog ether with the plaint also filed an application under Order 39 Rule 1 and 2 CPC praying for temporary injunction. The said application was registered as Misc.(J ) Case No.23/1992, where the learned Munsiff passed an order of injunction. Taki ng totality of the aforesaid fact, it, therefore, appears that the learned Munsi ff in fact granted the leave as sought for by the appellant/plaintiff under Sect ion 80(2) CPC to file the suit without serving notice on the defendant. The cour t below, however, without considering that aspect of the matter has decided the issue No.3 against the appellant/plaintiff. The finding of the learned Court bel ow in that issue is, therefore, set aside. 21. In view of the aforesaid discussion, the appeal preferred by the appella nt/plaintiff stands dismissed, as the Civil Court has no jurisdiction to enterta in the suit of the plaintiff as framed, in view of Section 32 of the 1956 Act. N o costs. 22. The Registry is directed to send down the records.