Case: STATE OF M.P Vs. DUNGAJI(D) BY LRS

dated 18.05.1976 declared 57.32 acres of land as surplus land. It is not in dispute that the Order passed by the Competent Authority declaring the land as surplus land is subject to appeal and further revision as provided under the Act 1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act 1960 provides that no Civil Court has jurisdiction to settle, decide or deal with any question which is by or under the Act 1960 required to be settled, decided or dealt with by the Competent Authority. Therefore, as per Section 46 of the Act 1960 there shall be a complete bar against maintainability of the suit challenging the decision of the Competent Authority. Despite the above and without preferring any appeal/revision as provided under the Act 1960 challenging the Order passed by the Competent Authority dated 18.05.1976, Dungaji filed the suit before the Civil Court praying for a declaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. Therefore, as such, considering the bar under Section 46 of the Act 1960, the suit filed by Dungaji challenging the Order dated 18.05.1976 passed by the Competent Authority, was not at all maintainable. It is true that in the suit the plaintiff also prayed for declaration to declare that the divorce had taken place between Dungaji and Kaveribai on the basis of the customary procedure. Therefore, as such, the suit qua the same relief can be said to be maintainable. But certainly, the suit challenging the Order passed by the Competent Authority dated 18.05.1976 was not maintainable at all. The view which we are taking is supported by the decisions of this Court in the case of Sooraj (supra); Mohanlal Nanbhai Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of this Court in the case of Dhulabhai (Supra) relied upon by the learned Counsel appearing on behalf of the original plaintiffs, shall not be applicable to the facts of the case on hand and/or the same shall not be applicable to any reliefs sought in the suit. Therefore, in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the Order dated 18.05.1976 passed by the Competent Authority.8. Now, so far as the impugned Judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgment and Order in the Second Appeal under Section 100 of the CPC.9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.9.1 At this stage, it is required to be noted that before the Competent Authority, Kaveribai submitted the objections. Before the Competent Authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the Competent Authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the customs much prior to coming into force the Act of 1960. Therefore, as rightly observed by the learned Trial Court and the First Appellate Court only with a view to get out of the provisions of the Ceiling Act 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned Trial Court that Divorce Deed at Exhibit P5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the Courts below which were on appreciation of evidence on record.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. Having heard learned Counsel appearing on behalf of the respective parties and considering the evidence on record and the findings of facts recorded by the learned Trial Court confirmed by the First Appellate Court, it appears that by Order dated 18.05.1976 and after following due procedure required to be followed under the provisions of Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960, the Competent Authority declared 57.32 acres of land as surplus land under the provisions of the Act 1960. As Kaveribai¬wife of Dungabai inherited 19.89 hectares of land from her mother Amritabai, therefore, as such, she became the absolute owner of the aforesaid land. As per the provisions of the Act, the land held by the wife was required to be included in the holding of the family of the husband. Therefore, the Competent Authority included 19.89 hectares of land in the holding of the family of Dungaji and consequently by Order dated 18.05.1976 declared 57.32 acres of land as surplus land. It is not in dispute that the Order passed by the Competent Authority declaring the land as surplus land is subject to appeal and further revision as provided under the Act 1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act 1960 provides that no Civil Court has jurisdiction to settle, decide or deal with any question which is by or under the Act 1960 required to be settled, decided or dealt with by the Competent Authority. Therefore, as per Section 46 of the Act 1960 there shall be a complete bar against maintainability of the suit challenging the decision of the Competent Authority. Despite the above and without preferring any appeal/revision as provided under the Act 1960 challenging the Order passed by the Competent Authority dated 18.05.1976, Dungaji filed the suit before the Civil Court praying for a declaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. Therefore, as such, considering the bar under Section 46 of the Act 1960, the suit filed by Dungaji challenging the Order dated 18.05.1976 passed by the Competent Authority, was not at all maintainable. It is true that in the suit the plaintiff also prayed for declaration to declare that the divorce had taken place between Dungaji and Kaveribai on the basis of the customary procedure. Therefore, as such, the suit qua the same relief can be said to be maintainable. But certainly, the suit challenging the Order passed by the Competent Authority dated 18.05.1976 was not maintainable at all. The view which we are taking is supported by the decisions of this Court in the case of Sooraj (supra); Mohanlal Nanbhai Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of this Court in the case of Dhulabhai (Supra) relied upon by the learned Counsel appearing on behalf of the original plaintiffs, shall not be applicable to the facts of the case on hand and/or the same shall not be applicable to any reliefs sought in the suit. Therefore, in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the Order dated 18.05.1976 passed by the Competent Authority.8. Now, so far as the impugned Judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgment and Order in the Second Appeal under Section 100 of the CPC.9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.9.1 At this stage, it is required to be noted that before the Competent Authority, Kaveribai submitted the objections. Before the Competent Authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the Competent Authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the customs much prior to coming into force the Act of 1960. Therefore, as rightly observed by the learned Trial Court and the First Appellate Court only with a view to get out of the provisions of the Ceiling Act 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned Trial Court that Divorce Deed at Exhibit P5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the Courts below which were on appreciation of evidence on record.