Dismissed

Abdul Ghani Ansari v. Biswanath Kalo

Orissa HC23 Apr 2021RSA/13/2012

Case brief

AI extract

What is this about?

In an appeal against the confirmation of a lower court's judgment dismissing a suit for declaration of title over land, the High Court dismissed the appeal. The Court held that the Civil Court had no jurisdiction under Regulation 7-E of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956, as the matter had been adjudicated by the competent authority an

What did the court decide?

The appeal filed under section 100 of the Code of Civil Procedure was dismissed; no order as to costs was passed.

Abdul Ghani Ansari Vs Biswanath Kalo — Civil Procedure and Limitation | Orissa HC (2021)

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HIGH COURT OF ORISSA : CUTTACK

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R.S.A. No.13 of 2012

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In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment dated 20.08.2011 passed by the learned Adhoc Additional District Judge, Sundargarh in R.F.A. No.13/566 of 2009-11 confirming the judgment and decree dated 06.03.2009 and 19.03.2009 respectively passed by the learned Civil Judge (S.D.), Sundargarh, in C.S. No.64 of 2006.

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………

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Abdul Ghani Ansari … Appellant.

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-::VERSUS ::-

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Biswanath Kalo (Dead) & others

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… Respondents.

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Advocate(s) who appeared in this case by Video Conferencing Mode

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For Appellant	…	M/s.U.K.Samal, C.D.Sahoo, S.P.Patra and S. Naik, Advs.
For Respondents	…	M/s.B.Sahoo, B.Mohanty, P.K.Patel, A.Tripathy, Advs. (Respondent Nos.1 and 2)
		Mr.Byomokesh Sahoo, Adv.
		(For R.1(a) to R.1(d)
	………	Addl. Standing Counsel (For Respondent Nos.3 and 4)

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P R E S E N T :

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THE HON’BLE MR. JUSTICE D.DASH

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---------------------------------------------------------------------------------------------Date of Hearing : 05.04.2021 ::: Date of Judgment:23.04.2021

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---------------------------------------------------------------------------------------------- D.Dash,J . The Appellant, by filing this Appeal under section 100 of

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the Code of Civil Procedure (for short, ‘the Code’), has assailed the judgment

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dated 20.08.2011 passed by the learned Adhoc Additional District Judge, Sundargarh in R.F.A. No.13/566 of 2009-11. By the same, the judgment and decree dated 06.03.2009 and 19.03.2009 respectively passed by the learned Civil Judge (S.D.), Sundargarh, in C.S. No.64 of 2006 have been confirmed.

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This Appellant, as the Plaintiff, had filed the Suit for declaration of his right, title and interest over the suit land and confirmation of possession with further prayer to declare the entire proceeding and the decision rendered in Misc. Case No.3 of 1998 by the Officer on Special Duty (Land Reforms), Sundargar arraigned as Defendant No.3 as also the Appeal proceeding and the decisions rendered by the Additional District Magistrate, Sundargarh in R.A. No.49 of 2002.

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2. For the sake of convenience and clarity as also to avoid confusion; the parties hereinafter have been referred to in the same rank as assigned to them in the original proceeding before the Trial Court.

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Heard learned counsel for the Appellant and the learned counsel for the Respondents at length. The judgments of the Trial Court as well as the First Appellate Court have been carefully gone through.

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3. The Plaintiff’s case is that the suit land originally belonged to one Jayadev Kalo, the predecessor-in-interest of Defendant Nos.1 and 2. It is his case that said Jayadev Kalo, during his life time, had sold the land to two persons, namely, Harun Nag and Abdul Gony Ansari on 05.03.1955. Said

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Harun Nag had purchased the suit land measuring Ac.0.06 decimals from Jayadev Kalo under unregistered plain paper document for a consideration of Rs.140/-. It is stated that from the date of said purchase, Harun Nag becoming the owner possessed the land in question. Later Harun Nag sold the suit land to the Plaintiff by executing a registered sale deed on 17.05.1961 and accordingly, the Plaintiff possessed the suit land being owner thereof. When the matter stood thus, the Defendant No.3 initiated a proceeding under Orissa Scheduled Areas Transfer of Immovable Property ( By Scheduled Tribes) Regulations, 1956 (hereinafter referred to as “The Regulations 2 of 1956”) vide Misc. Case No.3 of 1998 against the Plaintiff and his vendor Harun Nag. The auction was to evict from the suit land and restore the possession of eth said land to the successor-in-interest of Jayadev Kalo. The proceeding finally ended with an order of eviction of the Plaintiff and his vendor Harun Nag followed by an order of restoration of possession of the suit land in favour of the Defendant Nos.1 and 2. The order being passed on 30.11.2002, the Plaintiff carried an Appeal as provided under Regulations 2 of 1956 to the Appellate Authority, i.e, Defendant No.4. The Appeal being numbered as R.A. No.49 of 2002, had finally came to be dismissed. The order passed by the Defendant No.3 stood confirmed. The Plaintiff being aggrieved by the said orders, challenged those by carrying writ petitions before this Court in W.P.(C) Nos.8994 and 8995 of 2005. Those also stood dismissed. The

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Plaintiff thereafter filed Writ Appeal No.71 of 2005, which was also dismissed on merit by a Division Bench of this court on 19.12.2005. Thus, having failed in all attempts, the Suit was instituted with the reliefs as already stated.

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The Defendant Nos.1 and 2 in whose favour the orders had been passed by Defendant Nos.3 and 4, contested the Suit by filing their written statement and so also the Authorities acting under the Regulations 2 of 1956, i.e, Defendant Nos.3 and 4 have also filed their written note of submission.

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The case of the Defendant Nos.1 and 2 is that they are members of Scheduled Tribes community residing in the Schedule Districts. Jayadev Kalo was there predecessor-in-interest. They denied the case of the Plaintiff that Jayadev Kalo had ever sold the suit land to Harun Nag, who is a member of their community. It is their case that the suit land had been erroneously recorded in the name of Harun Nag in the settlement operation, By virtue of erroneous recording, Harun Nag had not acquired any short of interest over the suit land. Since Harun Nag has no interest over the land in question, he had alienable right over the same and the sale of the land in favour of the Plaintiff, according to them is of no value in the eye of law nor the Plaintiff has been clothed with any right, title and interest by virtue of the said sale. It is their case that Misc. Case No.3 of 1998 had been initiated to evict Harun and the Plaintiff alone with another co-purchaser Abdul Gony Ansari from

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the suit land in exercise of the power under the Regulations 2 of 1956 by Defendant No.3. The proceeding was rightly concluded and final order therein having been passed the same, has stood the test by the Appellate Authority, i.e. Defendant No.4 as also by this Court in original as well as appellate side. It is stated that the Suit is barred by the Regulation 7-E of the Regulations 2 of 1956.

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The Defendant Nos.3 and 4, reiterating the stand taken by the Defendant Nos.1 and 2 have stood in support of the orders passed in Misc. Case No.3 of 1998 as well as Appeal No.49 of 2002. It is stated that all such due procedure as provided in law holding the field have been scrupulously followed and the orders being free from any illegality or infirmity have gone uninterferred in the writ proceeding as well as the appeal carried thereon. It is stated that the Suit is vexatious for no reason but to harass the Defendant Nos.1 and 2, who are the members of the Scheduled Tribe with a bid to deprive them of the fruit of the proceeding under the Regulations 2 of 1956.

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4. The Trial Court, on the above rival pleadings, have framed in all ten issues. Answering the crucial issue as to the jurisdiction of the Civil Court with which we are here in the second Appeal are concerned, as on that score, the substantial question of law has been formulated for being answered, together with other two issues which are consequential as to the right, title

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and interest of the Plaintiff over the suit land vis-à-vis that of the Defendant, the Trial Court has non-suited the Plaintiff.

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The unsuccessful Plaintiff having carried the First Appeal has also lost therein. So, now the Plaintiff has filed an Appeal before this Court.

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5. The Appeal has been admitted on the following substantial question of law:-

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“Whether the finding of both the Courts below with regard to issue no.v is contrary to principles laid down in Paramananda Pradhan and another v. Palau Sahu and others; 56(1983) CLT 482 (F.B.) and Mangulu Jal and others v. Bhagaban Rai and others; 41 (1975) CLT 526?” In Regulation 7-E of the Regulations 2 of 1956 reads that no

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Civil Court has any jurisdiction to decide any matter in a Suit which has already been adjudicated by the Competent Authority under the Regulations. This Regulation creates a bar for the jurisdiction of the Civil Court to entertain the Suit.

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In case of Manglu Jal and others –v- Bhagaban Rai and others ; 41 (1975) CLT 526, the Hon’ble Full Bench of this Court had the occasion to deal with the question of exclusion of the jurisdiction of the Civil Court by a provision in the special statute.

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Legal position has been well explained in the said decision as

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also in another one in case of Paramananda Pradhan and another –v- Palau

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Sahu and others; 56 (1983) CLT 482 (FB). The position that even

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Legal position is well explained therein again that even if jurisdiction is excluded, it is always open to the Civil Courts which are courts of general jurisdiction to consider and decide whether the Statutory Tribunal has acted within the ambit of the powers conferred upon it by the Statute to which it owes its existence of the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure or it has transgressed the limits placed on its powers by the legislature. The Civil Court would interfere if it finds that the order of the Statutory Tribunal is unfair, capricious or arbitrary.

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It has been held therein that :-

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The question about the exclusion of the jurisdiction of the Civil

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Courts to entertain a suit by virtue of the specific provisions contained in Orissa Act 10 of 1963 has been examined in the Full Bench decision of this Court in the case of Mangulu Jal and others v. Bhagaban Rai and others , to which one of us (P.K.Mohanti) was a party. In that case some Bhogra lands were settled by the Collector after abolition of the village office by a Press Note which had been issued prior to the enactment of Orissa Act 10 of 1963. The trial court set aside the settlement made in favour of the defendants and granted a decree for declaration of title and recovery of possession in favour of the plaintiff. The appeal preferred by the defendants proved abortive.

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During the pendency of the second appeal Orissa Act 10 of 1963 came into force. Construing the provisions of the Act, the Full Bench held as follows:-

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“………The Act provides a complete machinery for determination of rival claims and when revision and appeal have been provided to the High Court subject to which the decision of the Board of Revenue will be final, it will be fantastic to contend that the Civil Court has jurisdiction to try those disputes. Ouster of jurisdiction of the Civil Court is clearly implied………”

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It was further held :

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“Settlement made under the Press Note before the Act came into force whether prior to the suit or during the pendency of the litigation would be governed by the provisions of the Press Note. Civil Court will have no jurisdiction to set aside such settlement except in the limited manner already pointed out.

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Settlements made under the provisions of the Act during the pendency of a litigation would be governed by the provisions of the Act.”

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In the above cited case, during pendency of the suit one schedule

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property being dealt under OMT (VOA) Act were settled with appellants and respondent no. 8 on 22.10.1971 under the provision of section 6 of the said Act. The appeal was even pending when the second appeal was disposed of. After the Act came into force, the Gopunti-raiyati lands settled with the appellants and respondent no. 8 Dibakar Sahu. The decree for partition of those lands among all the parties was found virtually amounting to setting aside the settlement. It has been held that by virtue of section 3(g) of the Act the Gountia ceased to have the right to hold the Gountia-raiyati lands and after the lands

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were settled with the appellants and respondent no.8 under section 6 of the Act, they acquired good title to the same. So it is said that the settlement thus made cannot be questioned in Civil Court when it is not shown that the settlement was made without complying the provisions of the Act or that the Statutory Tribunal did not act in conformity with the fundamental principles of judicial procedure, when nothing is also shown that the order of settlement made by the Statutory Tribunal is unfair, capricious or arbitrary, the Civil Court’s jurisdiction to entertain the suit for partition of the gountia-raiyati lands has been held to be not there.

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6. While approaching the matter to examine the contentions raised,

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it is necessary to state that the Trial Court, on examining the evidence on record has held as under:-

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“The plaintiff has also filed and proved the entire order sheet in Misc. Case No.3/98 disposed of by defendant no.3 and marked as Ext.10 in the suit. It is stated in the affidavit evidence at para-5 that proper opportunity was not given to the present plaintiff in the court of Defendant No.3 to call for some document and this is the only allegation against the defendant no.3 in the affidavit evidence of P.W.1 finds place at para-4 of its pleading. Upon perusal of the order sheet in Misc. Case No.3/98 marked as Ext.10, it appears that there is no material in the order sheet to show that the plaintiff intended to call for some document on 19.10.20001 but on 19.11.2001 the Advocate for the OP filed a petition praying therein to call for the original service book of the OP namely Harun Nag from the S.P., Sundargarh. The further order sheet shows that the said record was called for from the

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office of S.P., Sundargarh. The order dated 7.3.2002 passed in the said misc. case shows that Superintendent of Police reported that no such A.S.I. namely Harun Nag was posted since last ten years and the S.P. has requested the place of posting and year of posting of Harun Nag and as such defendant no.3 directed the present plaintiff to furnish details of informations as pointed out by the S.P. Sundargarh to call for said documents. The further order sheet shows that the present plaintiff did not comply the said order for which the service book of Harun Nag could not be called for from the S.P. office and on 8.7.2002 the case was fixed for argument.

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The plaintiff the challenged procedural irregularity by defendant no.3 in not calling for the service book of Harun Nag. There is no material to show either in the case record of Misc. Case No.4 of 1998 as to how service book of Harun Nag was a material document for just decision of that case under clause-3 of Orissa Regulation-2 of 1956. Moreover, in case it is a material document for some or other and the plaintiff intends to get relief in this suit what debarred him to file a petition in this Court to call for the said document when the plaintiff has filed and proved some other ten documents. Furthermore upon perusal of the facts and materials involved in the case before the defendant no.3. I find from the entire order-sheet supplied by the plaintiff marked as Ext.10, it appears that defendant No.3 has acted in conformity with the law laid-down in Regulation-2 of 1956 after giving reasonable opportunity and affording natural justice to the plaintiff. Hence, this Court has no jurisdiction to entertain a suit in view of bar under clause-7(E) of Orissa Regulation - 1 of 1956.”

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According to clause-3 of Orissa Regulation-2 of 1956, transfer

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of immovable property by member of Schedule Tribe in favour of a nonSchedule Tribe without prior permission is absolutely null and void and of no

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force or effect whatsoever. Order dtd.7.6.2002 passed in Misc. Case No.4/98 shows that Book No.1 in Vol.6 from page No.153 to 156 pertaining to R.S.D. No.580 dtd.17.05.61 was called for from the office of District Sub-Registrar, Sundargarh and it was produced by one Niranjan Patel, Sr. Clerk and both parties accepted the same to be a genuine one and it was compared with the certified copy submitted by the petitioner. The plaintiff in his pleading has stated that the transaction was in the year 1955, but it appears that the transaction was made on 17.5.1961 by registered sale deed that is after coming into force of Orissa Regulation-2 of 1956.

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7. The First Appellate Court, referring to certain decision, as to taking recourse to general law on the face of the special law providing special forum has held that the issues raised in the Suit having already been raised before the Competent Authorities in different forums and those having been answered finality has been attained thereto. Therefore, the bar for the Plaintiff to raise said similar and identical issues in a Suit is not permissible and accordingly, the Suit cannot be maintained.

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The Authorities, in exercise of the jurisdiction conferred upon them even though it is said for a moment have gone to decide the matter wrongly which was available to be correct by higher forum, the Civil Court certainly cannot assume the jurisdiction to examine the sufficiency or adequacy of the materials in support of the aid decisions. The procedure and

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the remedies normally associated with actions in Civil Suits are provided and prescribed and the same imply to oust the jurisdiction of the Civil Court. The principles has been authoritatively set at rest in the cited decisions that the Civil Court cannot sit over to examine the legality and propriety of the said order touching the fundamental aspects which are required to be decided by the authority and its interference is permissible only on two grounds that the order is unfair, arbitrary and capricious which conclusion has to be reached if on the materials placed before the Collector, a reasonable man could not have reached the same conclusion, but however unsatisfactory Collector’s conclusion may be it cannot be set aside merely because a different view is taken by the Civil Court on the materials before it. Similarly, the correctness of the Collector cannot said to be the subject matter of decision before the Civil Court. The other grounds of interference is the violation of the judicial procedures which if are found to be there can lead to hold the order as unfair, capricious and arbitrary.

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8. In the case at hand, the Trial Court has examined the entire order-sheet of the proceeding before the Authorities under the Regulations 2 of 1956 has not found anything to be surfacing therefrom to conclude that the orders are unfair, capricious and arbitrary which have gone uninterfered in exercise of the writ jurisdiction and the appellate jurisdiction thereunder of this Court. The First Appellate Court has not found any reason/justification to

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accord any note of descent to the said conclusion arrived at by the Trial Court.

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9. The Appeal is accordingly dismissed. However, in the peculiar

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facts and circumstances, no order as to cost is passed.

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As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order

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available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed, vide Court’s

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Notice No.4587, dated 25^th March, 2020 as modified by Court’s Notice No.4798 dated 15^th April, 2021.

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……………………..

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D. Dash, J.

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Orissa High Court, Cuttack Dated the 23^rd day of April, 2021/ B.Nayak.

Abdul Ghani Ansari v. Biswanath Kalo

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Abdul Ghani Ansari v. Biswanath Kalo

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