Ramkishan vs Heeralal and others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment dated 5.10.2010 passed by Addl.District Judge, Kannod, District Dewas in Civil Appeal No. 12-A/2010, whereby judgment and decree dated 15.3.2010 passed by Civil Judge Class I, Khategaon in Civil Suit No. 13-A/2007, whereby suit filed by the appellant for possession and mesne profits was decreed, was set aside, present appeal has been filed.

This appeal was admitted for final hearing on the following substantial questions of law :-

i) Whether the learned appellate Court was justified in setting aside the judgment and decree passed by learned trial Court ?

ii) Whether leaned appellate Court was justified in holding that Civil Court has no jurisdiction to entertain the suit as filed ?

iii) Whether learned appellate Court was justified in passing the judgment on merits when appellate Court has come to the conclusion that Civil Court has no jurisdiction ?

Short facts of the case are that appellant filed a suit on 6.4.2007 alleging that appellant is owner of the land bearing survey No. 186 of which new number is 112/1 measuring 0.32 hectares situated at village Khal, Tehsil Khategaon, District Dewas. It was alleged that appellant was continuously in occupation of the land but because of the fact that appellant was from SC category, therefore, respondents took possession of the suit land forcibly somewhere in the month of June,2006. It was alleged that appellant is exclusively owner of the suit property. In the suit it was prayed that appellant be put into possession of the suit property and respondents be directed to pay mesne profits @ Rs. 1,000/-per year. The suit was contested by the respondents, wherein all the plaint allegations were denied. It was denied that suit property was the property at any point of time owned by the appellant. It was denied that respondents have taken the possession forcibly. It was alleged that respondent No. 1 has sold the suit property vide registered sale deed dated 31.5.2007. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit against which an appeal was filed, which was allowed by the judgment passed by the learned appellate Court and the judgment and decree passed by the learned trial Court was set aside with the result suit was dismissed against which present appeal has been filed.

Learned counsel for appellant argued at length and submits that impugned judgment is illegal, incorrect and deserves to be set aside. It is submitted that in the facts and circumstances of the case there was no justification on the part of the learned appellate Court in setting aside the judgment passed by learned trial Court. It is submitted that from the evidence documentary and oral it is amply proved that suit land was leased out to the appellant. It is submitted that learned appellate Court has allowed the appeal filed by the respondents also on the ground that Civil Court was having no jurisdiction. It is submitted that at the same time learned appellate Court passed the judgment on merits while the learned appellate Court was of the view that Civil Court was having no jurisdiction to decide the suit. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be allowed and the impugned judgment be set aside.

Shri S.R. Saraf, learned counsel for respondents, submits that no illegality has been committed by the learned appellate Court in setting aside the judgment passed by learned trial Court. It is submitted that since the suit was for possession and mesne profits, therefore, the Civil Court was having no jurisdiction to entertain the suit as per Section 257. Reliance is placed on a decision in the matter of Munne Khan Vs. Abbas Khan, reported in 1989 MPWN 84, wherein this Court has held that civil suit for possession within two years is not maintainable being barred. Further reliance is placed on a decision in the matter of Smt. Dhudo Bai Vs. Bajirao and Another, wherein in a suit for possession by a Bhumiswami, who had been illegally dispossessed and the suit was not for declaration of Bhumiswami rights nor for any other relief except possession, this Court held that suit is not maintainable. It is submitted that appeal has no merits and the same be dismissed.

From perusal of the record it appears that suit property is an agricultural land under Order 1 Rule 3(b) of CPC, which has been inserted by Amendment Act 1984 the State is necessary party but inspite of that appellant has not impleaded the State as party. In view of the provisions of Order 1 Rule 3(b)(ii) CPC, learned trial Court ought not to have proceeded with the case. So far as appellate Court is concerned, when the appellate Court was of the view that civil Court was having no jurisdiction, then appellate Court was also having no authority to make observations on merits of the case. Since appellate Court while passing the judgment has also taken into consideration merits of the case, therefore, appeal filed by the appellant is allowed in part and the judgment passed by learned appellate Court as well as by the learned trial Court stands set aside holding that civil Court was having no jurisdiction to entertain the suit. Since because of the pendency of the suit the time within which the appellant ought to have approached the revenue authorities has expired, therefore, appeal is disposed of with a direction that appellant shall approach the revenue authorities alongwith an application for exclusion of period, which the appellant spent in prosecuting the remedy in Civil Court. In that case learned Court below entertain the petition in accordance with law on merits. Substantial question of law is answered accordingly. With the aforesaid observations appeal stands disposed of.