The Trial Court as can be seen has in a way glossed over the prayers sought in the suit in observing that since the title of the government is disputed therefore the civil court has jurisdiction. In the said process, the Trial court failed to notice that the Plaintiffs have already been divested of their title by virtue of acquisition which has taken place culminating in the declaration of the Award in 1984. The fact that the Plaintiffs have sought a declaration in respect of the letters issued by the Tahasildar and the Circle Officer is lost sight of by the Trial Court. On what basis the Trial Court has observed that there is no issue which is challenged under the said Act when the prayer made in the plaint stares us in the face. The Trial Court has therefore on a erroneous premise that the suit involves an issue of title and that the Plaintiffs are seeking to set up title by adverse possession has held that it has jurisdiction notwithstanding the fact that the Plaintiffs have to first get over the hurdle of the acquisition of their lands. The proposition of law laid down by the learned Single Judge in the judgment cited (supra) by the learned counsel for the Applicants cannot be disputed. However, as indicated above the prayers in the plaint in the instant case unmistakably and unequivocally point out that the challenge is to the acquisition of lands by virtue of seeking a declaration that the Award is illegal, null and void and not binding on the Plaintiffs, as also the letters of the Tahasildar and the Circle Officer, the reliefs therefore cannot be read in isolation and that the issue of jurisdiction has to be decided on the said basis. The suit was therefore clearly barred under Section
CIVIL APPELLATE JURISDICTION
Shri Dadu Rama Patil,
CIVIL REVISION APPLICATION NO.981 OF 2012
versus
Shri Bapu Krishna Kurane
CORAM :
DATE :
R. M. SAVANT, J.
20th March 2014.
Admit, with the consent of the learned counsel for the parties
taken up for hearing forthwith.
The revisionary jurisdiction of this Court is invoked against the
order dated 24/8/2012 passed by the learned Civil Judge, Senior Division,
Ichalkaranji by which order the Trial Court has decided the preliminary issue
by holding that it has the jurisdiction to try and entertain the present suit.
The Applicants herein are the original Defendant Nos.10, 11,13
and 15 to the suit in question being Regular Civil Suit No.247 of 2005. In the
context of the challenge which has been raised in the above Civil Revision
Application it would be apposite to refer to the reliefs claimed in the said suit.
(Vernacular omitted)
12)
English translation of which is as under :
Plaintiff therefore prays that :
(a) To declare that the Plaintiff become owner by adverse
possession;
(b) Order dated 29.11.2001 vide Desk 1512 Rehabilitation
RR 3867/2001 Vashi916/2001, Letter of Tahasildar Dt.
7/12/2001 vide S.B.N. 169/2001, remark of circle
officer, Hupari dt. 10.12.2001 and award
No.LAQ/10/4/1983 dated 17.7.1984 and possession
receipt dated 23.10.1985 all be declared illega, void ab
inition, hollow and not acted upon.
(c) In the alternative, if this Court comes to a conclusion
that the acquisition is legal and valid, then issue a
declaration that the Defendant Nos. 1 and 2 are not
entitled to acquire the Plaintiff's land, since the land in
Jangamwadi in Gat No.35, Area 5 H. 20 ares, is already
acquired for rehabilitation in the year 1984, ;
(d) To restrain by an injunction to Defendant No.5 and
others acting on his behalf to disturb the Plaintiff's
possession and enjoyment in the suit property on the
basis of the order referred in para 12 (b).
The subject matter of the suit is the land bearing Gat No.572 admeasuring 3
Hectors and 28 Ares. The Plaintiffs claim to be in possession of the said land.
In the plaint the acquisition which has taken place under the Maharashtra
Project Affected Persons Rehabilitation Act 1986 (herein after referred to as
“the said Act”) has been referred to, and in Paragraph 3B the lands have been
allotted by the District Rehabilitation Officer to the project affected persons has
been mentioned. The plaint also contains an averment that the Respondents
are seeking to intervene in the Plaintiffs' peaceful possession of the suit
property. The prayer clauses indicate that by prayer clause (b) the Plaintiffs
have sought declaration that the letters dated 29/11/2001, 7/12/2001, Award
dated 17/7/1984 and the possession receipt dated 23/10/1985 are all illegal,
void abinitio, hollow, bogus and not acted upon. By way of prayer clause (c) it
has been alternatively prayed that in the event the Trial Court comes to a
conclusion that the acquisition is legal then it be declared that in view of the
lands from Gat No. 35 admeasuring 5 Hectors and 20 Ares being already
acquired, the authorities are not entitled to acquire further lands from the
Plaintiffs. By prayer clause (d) injunction is sought that the Defendant No.5
should not interfered with the Plaintiffs' possession on the basis of the letters
and award which have been referred to in prayer clause (b).
4
A reading of the said prayer clauses therefore indicates that the
entire substratum of the suit is based on the acquisition of the Plaintiffs lands
from Gat No.572. It is in the said context that the Applicants above named i.e.
the Defendant Nos.10, 11, 13 and 15 applied for framing of a preliminary issue
as regards the maintainability of the suit. The said applications were Exhibits
85 and 96. Pursuant to the applications, the preliminary issue to the following
effect has been framed :
“Whether this Court has jurisdiction to try and entertain the suit as per
Sections 22 and 24 of the Maharashtra Project Affected Persons Rehabilitation
Act, 1986?
The Trial Court adjudicated upon the said preliminary issue and
has by the impugned order dated 24/8/2012 ruled that it has the jurisdiction
to try and entertain the suit. The gist of reasoning of the Trial Court can be
found in Paragraph No.18 of the said order wherein the Trial Court has
observed that from the pleadings and the documents produced on record it
shows that the title is disputed and therefore the civil court has jurisdiction to
try and entertain the suit. The Trial Court has further observed that the
Plaintiffs have not challenged the issue under the Maharashtra Project Affected
Persons Rehabilitation Act, 1986 and that the plea of adverse possession cannot
be decided under the said Act. The Trial Court has further observed that the
Plaintiffs have challenged mutation entries passed by the revenue officer and
not challenged the award, and has held that considering the judgments cited
before it the suit filed by the Plaintiffs was maintainable and the civil court has
jurisdiction to try and entertain the suit. As indicated above, the said order
dated 24/8/2012 passed by the Trial Court which is taken exception to by way
of the above Civil Revision Application.
Heard the learned counsel for the parties. The learned counsel
appearing on behalf of the Applicants Shri P D Dalvi would contend that
having regard to prayer clauses (b) and (c) in the plaint, the suit as filed by the
Plaintiffs was not maintainable in view of the fact that the Plaintiffs by
claiming the relief sought by way prayer clause (b) have in fact sought the
relief in respect of the award that was passed on 17/7/1984 and the letters of
the District Rehabilitation Officer which have been issued pursuant to the
acquisition of the lands of the Plaintiffs allotting the said lands to the project
affected persons. The learned counsel for the Applicants would contend that
the Trial Court glossed over the said prayer clauses (b) and (c) and has
erroneously held that there is no issue which arises under the said Act. The
learned counsel would further contend that the Trial Court has erred on laying
emphasis on the plea of adverse possession when the Plaintiffs in fact are
challenging the Award declared under the said Act. The learned counsel in
support of the contention that the suit was not maintainable sought to rely
upon the judgment of the Apex Court reported in (2013) 3 SCC 66 in the
matter of Commissioner, Bangalore Development Authority and another v/s.
Brijesh Reddy and another wherein the Apex Court has held that the Land
Acquisition Act is a complete code in itself and is meant to serve public
purpose, and therefore, by necessary implication, power of civil court to take
cognizance under Section 9 of the Code of Civil Procedure stands excluded and
civil court has no jurisdiction to go into the question of validity or legality of
notification under Section 4, declaration under Section 6 and subsequent
proceedings.
Per contra, the learned counsel appearing on behalf of the
Respondent Nos.1(a) to 1(e), 2 and 3 i.e. the original Plaintiffs Shri N J Patil
sought to support the impugned order. The learned counsel would contend that
the Plaintiffs claim to be in possession of the property since the year 1959. It is
the submission of the learned counsel for the Respondentsoriginal Plaintiffs
that the averments and the reliefs sought in the plaint would have to be read
together and if so read, it can be seen that the suit is filed for protecting the
possession of the Plaintiffs. The learned counsel sought to rely upon the
judgment of a learned Single Judge of this Court reported in 2010(1) Mah.
L.J. 187 in the matter of Lockwood Industrial and Transport Services,
Bombay v/s. Victoria Timber Supplying Company, Bombay in support of his
contention that the averments in the plaint would have to be taken into
consideration. The learned counsel would contend that the Trial Court has
rightly adjudicated upon the preliminary issue by considering what is essence
of the suit which is according to the learned counsel a suit for protecting the
possession of the Plaintiffs.
Having heard the learned counsel for the parties, I have
considered the rival contentions. As indicated above, the issue which arises for
consideration is whether the civil court has jurisdiction to try and entertain the
suit. The said issue would have to be addressed considering the reliefs which
have been sough in the suit. As indicated above, the reliefs sought in the suit
by way of prayer clauses (b) and (c) specifically relate to the acquisition of the
land of the Plaintiffs by award dated 17/7/1984. The challenge is also to the
letters issued by the District Rehabilitation Officer allotting the lands to the
project affected persons after the lands have been acquired. The prayer clause
(c) in the plaint is a pointer to the nature of challenge in the suit. By the said
prayer the Plaintiffs have alternatively prayed that in the event the acquisition
is held to be legal and valid, then the declaration be issued that in view of the
lands acquired from the Plaintiffs, further land cannot be acquired from the
Plaintiffs, meaning thereby that the Plaintiffs accepted the position that the
lands in question have been acquired under the provisions of the said Act. It
would therefore be apposite to refer to the relevant provisions of the said Act
which are Sections 29 and 22. The same are reproduced herein under for the
sake of convenience :
Bar of Jurisdiction No Civil Court shall have
jurisdiction to settled, decide or deal with any question
which is by or under this Act required to be settled,
decided or dealt with by the Director, Commissioner,
Deputy Director, Resettlement Officer or the State
Government.”
“22 Bar of Jurisdiction 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 project Authority,
Collector, Commission, or the State Government.”
The aforesaid Sections 29 and 22 are appearing in the 1976 Act and 1986 Act
respectively. It is therefore in the context of the said provisions that the said
preliminary issue ought to have been decided.
The Trial Court as can be seen has in a way glossed over the
prayers sought in the suit in observing that since the title of the government is
disputed therefore the civil court has jurisdiction. In the said process, the Trial
court failed to notice that the Plaintiffs have already been divested of their title
by virtue of acquisition which has taken place culminating in the declaration of
the Award in 1984. The fact that the Plaintiffs have sought a declaration in
respect of the letters issued by the Tahasildar and the Circle Officer is lost sight
of by the Trial Court. On what basis the Trial Court has observed that there is
no issue which is challenged under the said Act when the prayer made in the
plaint stares us in the face. The Trial Court has therefore on a erroneous
premise that the suit involves an issue of title and that the Plaintiffs are seeking
to set up title by adverse possession has held that it has jurisdiction
notwithstanding the fact that the Plaintiffs have to first get over the hurdle of
the acquisition of their lands. The proposition of law laid down by the learned
Single Judge in the judgment cited (supra) by the learned counsel for the
Applicants cannot be disputed. However, as indicated above the prayers in the
plaint in the instant case unmistakably and unequivocally point out that the
challenge is to the acquisition of lands by virtue of seeking a declaration that
the Award is illegal, null and void and not binding on the Plaintiffs, as also the
letters of the Tahasildar and the Circle Officer, the reliefs therefore cannot be
read in isolation and that the issue of jurisdiction has to be decided on the said
basis. The suit was therefore clearly barred under Section 29 and Section 22 of
the 1976 Act or the 1986 Act.
In my view, therefore, the Trial Court has erred in coming to a
conclusion that it has jurisdiction to try and entertain the suit. The Trial Court
has therefore assumed jurisdiction not vested in it. The impugned order is
therefore required to be set and aside and is accordingly set aside in the
revisionary jurisdiction of this Court under Section 115 of the Code of Civil
Procedure. The preliminary issue is answered in favour of the Defendants.
The suit in question is accordingly held to be not maintainable and dismissed
as such. The above Civil Revision is accordingly allowed.
[R.M.SAVANT, J]
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