IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2139 of 2008 BABLOO JHA & ORS Versus RAM PADARATH JHA & ORS ----------- 2 7.1.2009 Heard Mr. Ambar Nath Banerjee, learned counsel appearing on behalf of the petitioners. In the opinion of this Court, the application filed by the defendants-petitioners seeking disposal of the suit on the ground that the suit was not maintainable in terms of Section 43 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 hereinafter referred to as the Act, was wholly misconceived. It has to be taken into account that such a plea on the part of the petitioners came only because of the order passed in a preemption case under Section 16(3) of the Act which had armed the petitioner to make a submission that since a pre-emption proceeding between him and the plaintiffs-opposite parties had already been favorably adjudicated in favour of the petitioners, the civil court had no jurisdiction to entertain the suit in hand filed by the plaintiffs- petitioners. Precisely the question of bar of suit under Section 43 of the Act has to be decided from the pleadings in the plaint and the relief sought therein. The pleadings in the plaint are that the sale deed in question executed by 2 Godavari Devi was itself void inasmuch as she had no capacity to transfer such land to the petitioner. That is the plea in paragraph nos.11 & 12 of the plaint. The plaintiffs-opposite parties in fact have not suppressed the fact with regard to contesting the pre-emption proceedings and have sought relief in the suit filed in the year 1992 immediately after passing of the order by the Additional Collector in the preemption proceeding on 3.12.1991 and the relief prayed therein is out and out for declaration of title and confirmation of the possession of the petitioner with regard to five dhoors of land. The plea of the petitioner that since the plaintiffs- opposite parties had once staked claim on the same land in a pre-emption proceeding that will stand as an estoppel against them in filing the suit is only to be noted for its being rejected. The plaintiffs-opposite parties had initially found himself to be in a comfortable situation to claim the title and therefore, they had asked for a relief of pre-emption but then that was not all. They had specifically raised the question before the pre- emption authorities deciding the claim pre-emption that Godavari Devi had no capacity to transfer such land and that the sale deed in favour of the petitioners containing a clause of the transfer having been effected some thirty 3 years back in favour of the petitioners was sought to be only acknowledged in the sale deed executed in the year 1977 definitely was touching the fringe of fraud on the part of the Godavari Devi to disentitle the plaintiffs- opposite parties from his title in possession of land. In such a situation, if even after the disposal of the preemption case, the plaintiffs-opposite parties had filed the suit strictly for claiming declaration of right, title and possession, such a suit cannot be said to be barred in terms of Section 43 of the Act. Section 43 of the Act reads as follows:- “43. Bar of jurisdiction of Civil Court. – (1) Save and except as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue the appellate authority or the Collector. (2) No order of the Board of Revenue, the appellate authority or the Collector made under this Act, shall be questioned in any Court.” In terms of the aforementioned provision of Section 43, it cannot be said that declaration of right, title and interest including the capacity of Godavari Devi was such an issue which could not have been decided or dealt with by the authority under the Act. The authority in fact proceeded on a presumption that there is a valid 4 sale deed because the pre-emptor also accepts the validity of the sale deed. Here in the suit, the very sale deed is being questioned and therefore, to say that the suit is barred under Section 43 of the Act will be of no avail. The reliance placed by the petitioners on the judgment of the Apex Court in the case of Dolhin Padharo Devi Vs. Indrajeet Tiwary & Anr. reported in 2008 (1) PLJR 267 (SC) is also wholly misplaced inasmuch as in that suit as a matter of fact the order passed by the preemption authority was specifically questioned and relief was sought in the suit for setting aside those very orders. It was in this background that the Apex Court had held such a suit to be not maintainable in view of bar under Section 43 of the Act. Further reliance placed on a judgment of this Court in the case of Bhagirath Mandal & Anr. Vs. The State of Bihar & Ors. reported in 1993 (2) PLJR 369 is also equally misplaced inasmuch as whatever has been held by this Court in the said judgment is with regard to the powers which can be exercised by an authority under Section 16(3) of the Act. There can be no two views that even a complicated question of title can be decided for the limited purposes of considering the claim of pre-emption but that will not by itself mean that a 5 suit claiming title on the basis of fraud as made in the present case will be barred. Section 9 of the Code of Civil Procedure reads as follows:- “9. Courts to try all civil suits unless barred. – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” From bare perusal of the aforementioned provisions of Section 9 of the C.P.C., it would be clear that normally all the suits have to be tried save and except only such suit which are specifically bared under a statute or they may be barred even by way of impleadment. In the present case, this Court would not find that the suit in hand filed by the plaintiff-opposite party is barred under expressed provision of Section 43 of the Act. That being so, this Court would not find any jurisdictional error in the impugned order rejecting the prayer of the petitioner and accordingly, this civil revision application is wholly misconceived and the same is hereby dismissed. Rsh (Mihir Kumar Jha, J.)