Gendur Vs Surendra Jasiwal

1 - Surendra Jasiwal S/o Bansi, Aged About 40 Years R/o Village Harratoli, P. S. And Tahsil Shankargarh District Balrampur Ramanujganj Chhattisgarh. At Present Balrampur Aasram, P. S. Balrampur District Surguja Chhattisgarh Now District Balrampur Ramanujganj Chhattisgarh

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2 - Smt. Fuleshwari, D/o Nadhiya, Aged About 40 Years R/o Village Harratoli, P. S. And Tahsil Shankargarh District Balrampur Ramanujganj Chhattisgarh. At Present Balrampur Aasram, P. S. Balrampur District Surguja Chhattisgarh Now District Balrampur Ramanujganj Chhattisgarh

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3 – The State of Chhattisgarh Through The Collector, Surguja At Ambikapur District Surguja Chhattisgarh

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... Respondents

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For Appellant	: Mr. Rishikant Mahobia, Advocate
For State	: Mr. S.K. Puria, PL

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board

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11/03/2025

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1. This Second Appeal has been preferred against the judgment and decree dated 29.06.2017 passed in Civil Appeal No.426-A/2013 by the 4^th Additional District Judge, Ambikapur, District Surguja, whereby the judgment and decree dated 01.03.2012 passed in Civil Suit No.57A/2010 by the 5^th Civil Judge, Class II, Ambikapur, District Surguja, whereby the Suit was dismissed, was upheld.

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2. For the sake of convenience, the parties are addressed as per the nomenclature given before the trial Court.

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3. Necessary facts of the case are that the appellant/plaintiff filed a Civil Suit for declaration of title, permanent injunction and possession in respect of suit land bearing Khasra No.409/1 area 0.061 hectares and Khasra No.797 area 0.182 (wrongly written as 497/1) hectares total area 0.243 hectares situated at Village Hargaowan, Tahsil Shankargarh, District Surguja, Now Balrampur (C.G.). It has been averred that suit lands were settled in the name of father of plaintiff namely Binua, during the Surguja Estate Settlement and since then he has been in possession of the suit property. After the death of his father, the property came to him and the plaintiff belongs to the Khairwar Caste which is a Scheduled Tribe. It has been further averred that father of defendant No.1, late Bansi Jaiswal, was a non-tribal and the father of the plaintiff has taken a loan of Rs.1,500/- from late Bansi Jaiswal and has mortgaged his

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property and without knowledge of the plaintiff, a sale deed has been executed. When the plaintiff wanted to return the loan amount, the father of defendant No.1 refused to take back the amount and has also denied to return the mortgage property. Hence, the plaintiff/appellant moved an application under Section 170-B of the C.G. Land Revenue Code, which was dismissed by the SDO, Shankargarh by holding that the transaction is between tribal to tribal. Thereafter, an Appeal has also been preferred before the Collector, which was also dismissed.

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4. Respondents No.1 and 2/defendants remained ex parte. The trial court based on the pleadings of the parties, framed as many as 6 issues and after evaluating the evidence available on record, dismissed the Suit, which was affirmed by the Appellate Court and both the Courts below have reached to the conclusion that the material document of the alleged sale deed, which has been challenged, has not been filed, and the orders of the Revenue Courts for which relief was sought were also not filed.

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5. Learned counsel for the appellant submits that indisputably the subject property earlier belonged to the father of the plaintiff, Binua and they belong to the tribal community. He submits that respondent No.1 in a fraudulent manner obtained a sale deed from the father of the plaintiff and the same was executed in the name of respondent No.2, therefore, he would submit that both the Revenue Courts have not passed the proper order. Lastly, he would submit that this Appeal may be allowed and the matter may be remitted back to the trial Court to examine whether both the Revenue Courts have properly complied with the procedure or not, or alternatively, the appellant may be given a liberty to challenge the

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aforesaid order in a writ jurisdiction as there is a bar under Section 257(l1) of the C.G. Land Revenue Code.

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6. Indisputably, the appellant/plaintiff has preferred an application under Section 170-B of the C.G. Land Revenue Code before the competent authority, which was dismissed by the SDO, Ramanujganj and the same was affirmed by the Collector in Appeal thereafter, the appellant has not challenged the aforesaid order any further and filed the instant Civil Suit.

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7. In a celebrated decision of Hon’ble Supreme Court in the matter of Dhulabhai vs. State of M.P., AIR 1969 SC 78, it has been observed that where the statute gives a finality to the orders of the special Tribunals the civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

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8. The said issue also came up before this Court in the matter of Lalsay and Others vs. Prakasiyus Kerketta and Others, MANU/CG/1135/2019 passed in SA No.370/2023. The relevant Paras 9 to 15 read thus:-

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“9. On the first substantial question of law, as to whether the suit filed by the plaintiff was barred under the law, it is appropriate to look into relevant provision contained in the Land Revenue Code creating bar against jurisdiction of the Civil Court. Section 257 (l-1) of the Code is extracted as below :-

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“257. Exclusive jurisdiction of revenue authorities. - Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters :-

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“10. From perusal of the aforesaid provision, it is clear that ordinarily, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is, by the Land Revenue Code, empowered to determine, decide or dispose of, any matter covered under Section 170-B of the Land Revenue Code. Therefore, it is clear that ordinarily, the jurisdiction of the Court in matters and orders passed under Section 170-B of the Land Revenue Code or any matter covered thereunder would be barred. However, the legal position with regard to ouster of jurisdiction of the Civil Court despite bar created under Section 257 (l1) was considered by coordinate Bench of this Court in the case of Dhanajiram MANU/CG/0073/2014. Principles laid down in number of judgments of the Supreme Court were noted.”

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“ 11. One of the leading decision on the point as laid down by the Supreme Court in the case of Dhulabhai Vs. State of M.P. (AIR 1969 SC 78) was examined. In the case of Dhulabai, the Supreme Court laid down several tests with regard to interference of Civil Court in proceedings relating to exclusive jurisdiction by

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the Special Tribunal/Revenue Authorities and held as under :-

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“(1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

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(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

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Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

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(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

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(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

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(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.

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(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

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(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”

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“12. The other decision which was considered, was in the case of State of Andhra Pradesh Vs. Manjeti Laxmi Kantha Rao (dead) by LRs and Ors. (2000) 3 SCC 689, wherein it was held as below :-

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“5. The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai & Ors. vs. The State of Madhya Pradesh & Anr., 1968 (3) SCR 662, it was noticed that where a statute gives finality to the orders of the Special Tribunals jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not

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acted in conformity with the fundamental principles of judicial procedure.”

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“13. Another decision of MP High Court in the case of Dhumaniya Vs. Harisingh and Ors. (2001 RN 85) was also considered in Dhanajiram's case, wherein it was also held as under:-

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“22. The civil Court has gone into the questions which were required to be decided by the SDO and as a matter of fact, decided by the SDO. The matters which are required to be decided by the SDO are not final as against the order of the SDO there is further appeal and revision provided under the Code. The orders thus passed are final and the jurisdiction of civil Court is barred u/s. 257(l-1) of the Code. Thus, the Courts below could have seen only to the extent whether basic fundamental principles of the judicial process have been followed or not by the competent authority passing the order and the jurisdiction of the civil court is limited as laid down in the case of Dhulabhai (supra) and case must fall within the parameter of the tests mentioned in para 19 of this order. The Courts below have not considered the material such as the voters list which was referred to by the SDO and also the lease deed filed by the respondent, granted to Luraiya Sahariya.”

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“14. From survey of the aforesaid decision, the settled legal position appears to be that even though, ordinarily, jurisdiction of the Civil Court may be ousted in view of express bar created under the law, such exclusion may not be come in the way of exercise of ordinarily jurisdiction of the Civil Court where the provision of particular Act have not been complied with or the statutory Tribunal has not acted in conformity with fundamental principles of judicial procedure. In the decision of the coordinate Bench in the case of Dhanajiram (MANU/CG/0073/2014) after survey of aforesaid decision, it was held as under :-

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“12. In view of the aforesaid legal position inspite the bar created under section 257 (1) (L-1) of

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the Code against orders passed by the Revenue Authorities under Section 170-A and 170-B of the Code in their exclusive jurisdiction even then the civil Court had jurisdiction to entertain and consider the matter up to the extent whether the authority concerned has complied with the prescribed procedure or not while holding the enquiry and passing the order. But such jurisdiction is limited as laid down in the case of Dhulabhai (supra). The civil Court cannot consider the questions decided by such revenue authorities on merits under their exclusive jurisdiction. Thus, it is held that the Civil Court has jurisdiction to entertain such suit upto the afore stated extent.”

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“ 15. Therefore, the well settled legal position would be that even though, there exists a bar created in Section 257 (l-1) of the Land Revenue Code against order passed by Revenue Authority under Section 170-B of the Land Revenue Code, the Civil Court will have jurisdiction to entertain and consider the matter only up to limited extent to see whether the authority concerned has complied with the provision or not while dealing with the enquiry or passing the order. Further, in view of the Supreme Court decision in the case of Manjeti Laxmi Kantha Rao (MANU/SC/0238/2000), the Civil Court will have jurisdiction to examine those cases where the provision of particular Act have not been complied with or where challenge is made on the ground that the statutory Tribunal has not acted in conformity with fundamental principles of judicial procedure.”

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9. From perusal of the averments made in the plaint, it appears that there

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are no such averments that the competent Revenue Authority has not complied with the procedure. So the order passed by the Revenue Authority is final, and there is a bar under Section 257(l-1) of the C.G. Land Revenue Code.

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10. However, this Court would observe that the appellant may take recourse to the other legal remedy available to him under the law, if he so desires.

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11. In view of the above settled legal proposition, I do not find any question of law, much less any substantial question of law, which arises for determination in this Appeal

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12. Accordingly, the Appeal is dismissed at the motion stage itself.

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13. A decree be drawn accordingly.

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14. No order as to cost(s).

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Priyanka

Gendur v. Surendra Jasiwal

Case brief

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Gendur v. Surendra Jasiwal

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