~W^S:^B^S'f3^ M-- ^: ;-^i'HEHI<^a!i3@!ER'I» .t^^ ': . .:{. .• ^.; . '•"•^ ^".•^.::-' ', •'' • '^ ^:''.:l^^^:;:^^i^Y^'^}^:'::^^\^;:':;:;,:..;^\. • '^":.::'::^':^:'::.'^:;l^'<'%^f^?'/".:''/ • ^.^•^'•::-\/:'::":^^::'^!^,..'^^.:a.f^- |.:: :1 ; i':'!: ^•SECONB::AipS| ^^<3i.(......^^ |iAppellants ^. Stot.^lianfi B^ IPlaintifis years'Wd/&latg^sl:irT^ yi.:\-SQ:E^^Mi^^^ia^^aSto\lK^^^^^ i' :S^ui^:;;Mislir^^|(^|ab6ut<3^^ears,' ','•. ^, ;• ^;^Sa|i®3i|IMyg|Hi^sageg|fabouf^35,:^ela^s^ .,,;:' ),A®|ipag|sg|^,Igg|oJi|t|^p{'^sShiii4:. .Msshi^^M^^'STW^MilSssra.c'Rssp^,.^ : SRat^;J(C^.)||ii.?»%{^:r'^^ ',SrEi fSud;l||t:^B.ffi^a[,^agedia^o^ ro^'l^&g^¥rincl|csi3:'rasad:^[^SBarmag:';R/o; »;Ro^HirpuFa^^'RaipuE'^i|%)^,;,. ;i:1^ ^^^'5S^^Si^.'®slia^Slaara|aa^^iagei8^a^ 'Vidyanagar W^o S&ri S. K.^SKaFEcEEcS^Ei Respondents/ Dgfendants Bilaspur, Tati. & Distf. Bitaspur (C.G.) {Wronglywritten as Raipur) 7.^ Smt. Sandhya Sharm.a aged about 32 years, W/o Prakash Ghandra Sharma, R/o Station Road, Near 310 A. K.ShuMa MaKasamunda, Distt. Mahasamunda (C.G.) VERSUS : 1 ^-Competerit Authority under M.P. Land Act, 1960/ Additional Comm.issioner, Raipur Division, Raipur (C.G.) y' Smt. Shanta Qai aged 78 years W/o Manishankardhar Sharma Through M.S.D. Sharma (Advocate) Masanganj Bilaspur S.^State of ehhattisgarh, Through Collector, Raipur (C.G.) APPEALUNDERSECTIONIOOOFTHECODEOF CIVIL PROCEDUKE ^aswt vs"'s B;..'!. HIGH COURTOF CHHATTISGARH AT BILSAPUR Second Appgal No. 332/2005 s: APPELLANTS VERSUS RESPONDENTS Smt. Shanti Bai Mishraandothers Gompetent Authorify under M.P. Land Ceiling Act andothers. €' :^ Shri B.P.Gupta learned counsel for theappellants, Shri J.D. Bajpai learned GA for the respondent No.S/State. JUDGMENT (Delivered on c5'.1.2006) Dhjrendra Mishra, J The appellants have preferred this Second Appeal against the impugned judgment and decree datedl 1,4.2005 passed by XIII Additiohal District Judge (FTC) Raipur in Civil Appeal No. 17-A/2004by which the appeal preferred by the appellants/plaintiffs against the judgment and decreedated 31.7;2003 passed by XI Civil Judge Class II Raipur in CMt Suit No. 153-A/2002 has been dismissed. 2. Brieffactsnecessaryfordisposalofthisappealarethatdefendant/ respondent No.1 - the Competent Authority registered a Ceiling Case lUider Ceiling on Agricultural 1-loldings Act, 1960 (hereinafter referredto|as Acf) ^ainst one Vishnu Prasadandbyorderdated 21.9.1978 passectin Ceiling C^seNo. 130-133-161-B^O (3) year 1974-75 anddeclared 72.78 aeres of land as surplus land and vested the same in the State Governmentout ofthe land belonging tosaid Vishnu!Prasad. Said Vishhu r1 r \( Prasadthereafter filed a suit for declaration and permanent prohibitory injunction with a prayer that the plaintiff be declared the owner of % share and the defendant No.2 be declared the owner of %share of the lahd described in schedule - A. Relieffor perpetual injunction restraining respondent/defendant No.1- the Competent Authority from dispossessing theplaintiff fromthe surplus landof 72.78 acresdescrjbed inScMedule—B appended with the plaint, was also sought. 3. Defendant No. 1 in his written statements denied the averments made in the plaint and submitted that the plaintiff did not file reports as per the provisions ofthe Act. The land described in sch^dyle Bstands vested in the State Government and thus he is not the owrierjof the suit property. This apart the defendant No.1 has stated in his written statement that the suit was barred under theprovisions of section 46 ofthe Act. 4. Defendant No.3 in its written statement has stated that there was 279.24 acres 6f land in the name ofthe plaintiff and in the family partition 49.46 acresof land was allotted to the share of themotherofthe plaintiff namely Godavari Bai who died in the year 1964 and after her death the above land stood reverted to the plaintiff who sold it to one Sushil Chandra. Thus as per the Act of 1960 the ptaintiff was holdingsurplus land and it has been rightly vested in the State Govemment and that the suitwas barredbylimitation.Sjncetheplaintiffis inpossession ofthe land which is vested in the State Govemment he is liable to pay damages. Even otherwise the suit isbarred under the Aet of 1960. 5. On the basis of the pleadings of the respective parties the issues were framed by the trial Court and the suit was dismissed by recording a findingthatjthadnojurisdjctiontoentertainthesuitand assuch itwas not maintainable. ThetrialCourthasfurtherrecordedafindingthattheplaintifF is-flot entitled for declaration that he is the owner of % share and the defendant No.2 is the pwner of % share of the property described in schedule-A 'and accprdingly the plaintiff is not entitled for perpetual injunction against defendant No.1 from being dispossessed from the surpluslandorfrom recoveringthecompensation. i ^ . :s: \ I1] :n' 3.- 6. The plaintiff preferred civil appeai against the judgmentand discree WWe toaFTCQurt "which has also been dismissed by the irnpugned judgment and. decree by recording a finding that though the sujt is' maintaioable yet sinc& the ^plaintiff has not challenged the order of the Competent Authority vesting Ihe land of fhe plajntiff in the State Govemment, no declaratory decree with respect to the surplus land declared bydefendant No.1 byitsorderdated 27^.1977, canbepassed and without praying for setting aside the order 6f vesting of the land no prohibitory injunction againstdispossession from the disputed land can be ;passed. ! ' •": • ' ' . — ^ i 7.. Learned Gounsel ftir the appellants has challengedthe impugned judgraent and .deicree Solely On the ground that once the learned lower Appellate CQurt; airo^sjat the -conclusjon that the civil suit was maintainable and !s not tiarred^under section 46 of the Act of 1960, the 'plaintiff was entitledjlar ttie'diecree of declaration ancf perpetual injunction as prayed andthe suitcouklnot be dismissed on the ground that the plaintiff has not sought for declaration to set aside the order of vestingof surpluslandintlTeStateGovemmentpassedbydefendantNo.lasitwas notthe case Ofeither party. He furthersubmits that therespondent No.2 beingthelegalHeirofSmt.GodavariBai had a righttosucceed herestate and she cpuld ribt be denied the same simpty beeause she remained ex parte mthecase. 8. I have heard learned counsel for the appeilants and perused the records of theCourtsbelow. 9. From perusal of the order dated 21.9.1978 passed by defendant No,^| ifcappears that initially vide order dated 23.7.1976 72.re acresof lart&iwas declared surplus and it was Vested in theState Govemment, the plaintiffas also the transferees ofcertain land preferred an appeal agajnst the above order and the Bpard of Revenue remanded the ease with a diredion to dispose of the ceiling caseafterissuing notice undersection 4 v •e" of the Act of 1960 to the transferees. The competent authority after complying with the directions 6f remahd again vested the above land by order dated 27.8.1977. The plaintiff and fbur other transferees preferred four separate appealsagainst the above order and the Board of Revenue vide order dated 10.1.1978 dismissed the appeal preferred by three transferees. Hpwever, appeat preferred by one Bhuvanlal Mishra was allowed and the ease was remanded back with a direction to affprd an opportunity of hearing before passing ariy order and by orcter dated 21.9.1978 againitdeclared 72.78 acres of tand as surplus andvested the same inthe State Government. From perusal of tl}isjorder itis evidentthat there was no dispute of title before the competentauthority with respect to the land in question. The plaintiff by the instant suit has not prayed for setting aside the order dated 21.9.1978 by which his land has been declared as surplus and vested in the State Gbvernment under the provisions of the Act of 1960. The Competent Authority after hearing the partjes published a draft statement and the plaintiff or any interested person could raise the objection, if any against the pubtication <tf said idraft statement against the proposed vesting within 30 days and the competent authority if after considering such objection finds that any question has arisen regarding the title of the land in question which has not been decidedbythecourtofcompetentjurisdiction, he may institute a su'rt in the civil Court within three months from the date of such order and get the ordersetaside. The submission ofthe learned counsel for the appellant that by the suit fited undersection 9of the Code of Civil Procedure ttie plaintiff had prayed for declaration of his title with respect to %share of lan4and for % share for defendant No.2 in ttie property described in schedule - A appended to the plaint and as there was no prayer there in to set aside the order-erf the Competent Authority, the question of timitaUon of three months frem the date of passing of the prder by the Competeht Au1|h6rity does notarise.It is argued that Uie plaintiff was only entitledsfor %slTare in the property described in Schedule -A, beeause he has inherited the .^'^'"^s ••--'"•'•'i^ss^^^K^is^^^^SSSSSSSS^^^- ws7^XSS^^£V^SS "ST'— property from his father Manilal equally along with Godavari Bai, his motherand afterthe death ofGodavari Bai, the plaintiffas also defendant No.2, his real sister.were entitled to inherit % share each from the share allotted to Godavari Bai: Thus the plaintiff was entitled to %share and defendant No.2 was entitled for % share of the property described in schedule —A.hfowever, the competent Auttiority without considering the entitlementofdefendantNo.2andconsideringtheptaintifTtobetheowner of the whole property has declared . surplus and in the above cireumstances a declaratory decree as prayed ought to have been granted. , / ' • ' '..+ 11. Theabove argument is unacceptable inasmuch as unless the order of vesting of land passed by the Competent Authority is set-aside, declaration with respect to theland which has been declared surplusand vested in the State Govemment cannot be paSsed and without declaring the order of vesting illegal no prohibitoryorder restrainingdefendant No.1 from dispossessing the plaintiff from the vested land and further recovering compensation for continuing to be in possession ofthelandso vested in theStateGovernment, can bepassed, 12. Thus in view of the aforesaid discussion this Court is of the view that the learned lcwer Appellate Court hascommitted no illegality in confirmingthe judgment and decree passed by the trial Court dismissing- the suitofthe plaintiff byTecordinga finding that it-is npt maintaJnable.No substantial que?tion of taw is involved for adjudication in thisappeal and the appealbeing merit-less is herebydismfssed. Sd/- \ Dhu-endra Mishra| Judge