Saktipada Deb and Others vs Md. Jahir Ali and Others

S.C. Das, J.—1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the appellate judgment and decree dated 27.07.2011 passed by learned Addl. District Judge, Dharmanagar, North Tripura in Title Appeal No. 08 of 2011, whereunder, the judgment and decree dated 29.03.2011 passed by learned Civil Judge, Senior Division, Dharmanagar, North Tripura in Title Suit No. 16 of 2010 was affirmed and consequently the appeal filed by the plaintiff-appellants was dismissed.

The second appeal has been admitted for hearing on the following substantial questions of law:

"(i) Whether the Ld. Courts below acted illegally and failed to exercise jurisdiction by not considering that the SDM, after deciding issue No. 2 in his order dated 23.3.2010 to the effect that the second party(Plaintiffs) are unauthorized occupiers of public premises viz PWD road, could proceed under section 15 and 53 of the TLR & LR Act 1960 and not under the Tripura Public Premises(Eviction of Unauthorised Occupants) Act, 1983, herein after the Act 1983?

(ii) Whether the learned courts below acted illegally and failed to exercise jurisdiction by not considering that the SDM Dharmanagar could not have passed the impugned order dated 23.03.2010 solely on the basis of a perfunctory report of Amin(not the team leader) and without allowing the appellants to submit written statement and to adduce evidence as per the procedure of revenue courts(Schedule-III of the TLR & LR Rules) rendering the order dated 23.03.2010 illegal and without jurisdiction?

(iii) Whether the SDM as Revenue Court could decide that the plaintiffs have no title over land measuring 0.04 acre part of the suit?"

Heard learned senior counsel, Mr. K.N. Bhattacharjee, assisted by learned counsel, Ms. S. Chakraborty for the appellants. The respondents have chosen to remain absent.

The appellants as plaintiffs instituted Title Suit No. 16 of 2010 seeking declaration of their right, title and interest in the suit land described in Schedule A and B of the plaint along with perpetual injunction restraining the defendants from entering into and/or disturbing the possession of the plaintiffs in the suit land and further prayed for a decree declaring that order dated 23.03.2010 passed by learned SDM, Dharmanagar, North Tripura in Revenue Case No. 2 was illegal and to declare it as nal and void and not binding on the plaintiffs.

It is inter alia contended by the appellants (hereinafter mentioned as plaintiffs) that the suit land described in Schedule A and B of the plaint was originally a khas land and it was allotted in the name of their father Surendra Kumar Deb in the year 1975 and 1978 respectively and since the date of allotment the father of plaintiff Nos. 1 and 2 and the pro-defendants has/have been possessing the suit land. There was a pathway in the eastern side of the suit land which is in existence for more than forty years used by the villagers at large and the pathway was recorded as a khas land. To the eastern side of the pathway there was a plot of land allotted in the name of the predecessor of the defendant No. 1 and the defendant No. 1 possessing the said plot of land. The defendant No. 1 made an application before the Sub-Divisional Magistrate, Dharmanagar for demarcation of his land recorded in plot No. 4139 and accordingly SDM registered Revenue Case No. 2 under Sections 15 and 53 of the TLR & LR Act and by impugned order dated 23.03.2010 held that the plaintiffs illegally and unauthorizedly occupying 0.04 acres of khas land of the village pathway and that the village pathway has been constructed on the allotted land of the defendant No. 1 and directed eviction of the plaintiffs from the khas land and handing over of the allotted land to the defendant No. 1. The plaintiffs felt aggrieved by that order and therefore instituted the suit seeking relief as stated hereinbefore.

Defendant No. 1 contested the suit by filing written statement contending that his father was allotted land measuring 0.32 acres in the eastern side of the pathway and that the pathway was illegally occupied by the plaintiffs and thereafter the pathway run through the allotted land of the defendant and therefore he filed a petition before the SDM for demarcation of his land and accordingly SDM registered Revenue Case No. 2 under Sections 15 and 53 of the TLR & LR Act and after hearing both side directed eviction of unauthorized occupation and handing over of possession to him. The suit was not maintainable and the plaintiffs were not entitled to get any relief.

The trial Court formulated five issues, namely-

"i) Whether the suit is maintainable in its present form and nature.

ii) Whether the plaintiffs have cause of action for filing the suit.

iii) Whether the plaintiffs are entitled to a declaration of their right, title and interest over the suit land.

iv) Whether the order dated 23/03/10 passed by Ld. Sub-Divisional Magistrate, Dharmanagar in case No. 02 u/s. 15 and 53, TLR & LR act is liable to be declared as illegal.

v) Whether the plaintiffs are entitled to the decree as prayed for."

Both side adduced oral and documentary evidence. The trial Court decided the issues against the plaintiffs and accordingly dismissed the suit.

Aggrieved, the defendants filed Title Appeal No. 8 of 2011 and the learned Addl. District Judge by impugned judgment dated 27.07.2011 dismissed the appeal and hence this second appeal.

Learned senior counsel, Mr. Bhattacharjee has submitted that the decision of the trial Court which is affirmed by the appellate Court on issue No. 1 was wrong since the jurisdiction of the civil Court cannot be held to be ousted simply because a revenue proceeding was initiated and an order has been passed by the revenue officer. According to Mr. Bhattacharjee, learned senior counsel the revenue Court utterly failed to follow the provisions prescribed in Rule 124 of the TLR & LR Rules and therefore the aggrieved party has the right to challenge the order in a civil suit and under such situation the Court cannot held that the jurisdiction of the civil Court is totally barred. He has also submitted that if the trial Court found the suit was not maintainable he would frame a preliminary issue and decide it as prescribed under Order XIV Rule 2 of CPC and in that event he would not decide other issues. The trial Court committed a serious wrong deciding all the issues including the issue of maintainability and that is the inherent defect in the judgment of the trial Court which called for interference in the second appeal. It is also submitted by learned senior counsel that it will not be proper to put the civil Court''s jurisdiction in a water tight compartment that once an issue is taken up by the revenue Court the civil Court jurisdiction shall be treated as ousted altogether. If the revenue Court travelled beyond the jurisdiction or if it is found that the question of title is involved the civil Court has got the jurisdiction to decide it.

Exbt.7 is the order passed by the learned SDM, Dharmanagar under Sections 15 and 53 of the TLR and LR Act. The order has been passed pursuant to a petition filed by the defendant-respondent No. 1. It is an order in details determining the issues involved before the SDM. It appears that after hearing both side and obtaining inquiry report the order was passed. Exbt.7 shows that the plaintiffs put their signatures in the order sheet passed by the SDM.

It is an admitted position that the suit land described in Schedule A and B of the plaint is an allotted land. The land of defendant No1 is also an allotted land. It is an undisputed rather an admitted fact that a pathway runs between the land of the plaintiffs and defendant No. 1. It is also an admitted fact that the pathway is recorded in Khatian No. 7/1, R.S. Plot No. 38 97.

The defendant claimed that his allotted land has been occupied by the pathway and the original pathway has been wrongly occupied by the plaintiffs. On that issue SDM issued notice to both side and started an enquiry. Survey team was deputed for demarcation and the report was obtained. Both the parties were heard by the SDM.

Section 15(1) of the TLR & LR Act prescribes thus-

"15.(1) Any person who occupies or continues to occupy any land belonging to Government without lawful authority shall be regarded as a trespasser and may be summarily evicted there from by the competent authority and any building or other construction erected or anything deposited on such land, if not removed within such reasonable time as such authority may from time to time fix for the purpose, shall be liable to be forfeited to the Government and to be disposed of in such manner as the competent authority may direct:

Provided that the competent authority may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof."

The above provision clearly authorizes a revenue officer to evict any person unauthorizedly occupying any Government land. So the SDM cannot be said to be without jurisdiction while entertaining the revenue proceedings.

Section 53 of the TLR & LR Act reads thus-

"53. (1) The settlement of a boundary under this Chapter shall be determinative-

(a) of the proper position of the boundary line or boundary marks; and

(b) of the rights of the landholders on either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings.

(2) Where a boundary has been so fixed, the collector may at any time summarily evict any landholder who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims."

In view of the above provision a revenue officer is authorized to demarcate a land and has also been authorized to evict any landholder wrongfully occupied the land of other person.

Here the issue is that the plaintiffs are occupying the khas land of the pathway and the SDM directed eviction from the khas land. Section 15 clearly authorizes the SDM to pass such an order and so I have no hesitation to hold that SDM has got the authority to exercise power of evicting a trespasser from the Government land. There is no need of initiating a proceeding under the provisions of the Tripura Public Premises(Eviction of Unauthorized Occupants) Act.

In the revenue proceedings, as it appears, the SDM issued notice to both side and the plaintiffs appeared in the proceedings and they were heard. Inquiry report was obtained and after hearing both side order was passed. Learned senior counsel, Mr. Bhattacharjee contended that SDM was supposed to follow the procedure prescribed in Schedule III of the TLR & LR Rules in view of Rule 124 of the said Rules and according to Mr. Bhattacharjee Rules 58, 59, 60 and 61 of Schedule III have not been followed and therefore the order was not according to law and beyond jurisdiction and hence a civil suit is maintainable. Rules 58, 59, 60 and 61 of Schedule III read thus-

"58. In all formal inquiries the evidence shall be taken down in full, in writing, in the language, in ordinary use in the district, by or in the presence and haring and under the personal superintendence and direction of, the officer making the inquiry, and shall be signed by him.

In case in which the evidence is not taken down in full in writing by the officer making the inquiry he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by such officer with his own hand and shall form part of the record.

If such officer is prevented from making a memorandum as above required, he shall record the reason of his inability to do so.

When the evidence is given in English, such officer may take it down in that language with his own hand, and an authenticated translation of the same in the language in ordinary use in the district shall be made and shall form part of the record.

Every decision, after a formal enquiry, shall be written by the officer passing the same in his own handwriting and shall contain a full statement of the grounds on which it is passed.

In summary inquires the presiding officer shall himself, as any such inquiry proceeds, record a minute of the proceedings in his own hand in English or in the language of the district, embracing the material any averments made by the parties interested, the material parts of the evidence the decision, and the reasons for the same."

It is in the impugned order dated 23.03.2010 (Annexure-7) that the plaintiffs were noticed and they appeared and submitted their case. There is nothing to show that they intended to adduce any oral evidence or intended to produce any documentary evidence which was refused by the SDM. At least there is nothing in the pleadings that the plaintiffs were not allowed to adduce evidence or that the procedure prescribed in Schedule III has not been followed by SDM. The argument advanced by learned senior counsel is beyond the pleadings and hence not entertainable.

Be that as it may, while an order was passed by a revenue Court, the proper procedure was to challenge it in an appropriate forum as prescribed by the TLR & LR Act. There is provision of appeal, revision, review, etc. prescribed under the TLR & LR Act. The plaintiffs did not challenge the order in the proper forum according to the provisions prescribed in the TLR & LR Act. Section 4 of CPC prescribes that the provision of the Code of Civil Procedure shall not affect any special or local law or any special jurisdiction or power conferred under any special or local law. It is quite apparent that the plaintiffs after the impugned order dated 23.03.2010 was passed by SDM, jumped to the civil Court without following the provisions prescribed under the special law, i.e. the TLR & LR Act.

Learned senior counsel, Mr. Bhattacharjee referred the case of Tarasankar Chakraborty v. Union of India reported in (1991) 1 GLR 43 which was also referred before the trial Court and the appellate Court. In that case it was held that the jurisdiction of the civil Court would not be excluded in cases where the provisions of the particular act have not been complied or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. There is nothing to show that the revenue Court did not follow the provisions of TLR & LR Act or that the revenue Court acted not in conformity with the fundamental principles of judicial procedure. A revenue Court is also a Court as defined in Section 81 of the TLR & LR Act. A revenue Court cannot be expected to be at par of a civil Court and is not required by law to follow the procedure as a whole prescribed in the Code of Civil Procedure and in the Evidence Act. It has to follow the principles of natural justice fundamentally and to allow the parties to adduce all evidence as contemplated in Schedule III of the TLR & LR Rules. If the plaintiffs were aggrieved by that order for not following any particular provision or for not allowing them to adduce any evidence they would first approach the superior revenue Court according to the provisions prescribed under the TLR & LR Act. As already stated hereinbefore there is nothing in the pleadings that the revenue Court violated any provision prescribed in the rules or that the plaintiffs intended to adduce a particular item of evidence and that was not allowed.

The jurisdiction of a civil Court is ousted in respect of the matters prescribed under the TLR & LR Act except where the dispute involves a question of title.

Section 188 of TLR & LR Act reads as follows:

"188. No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act.

Provided that if in a dispute between parties a question of title is involved, a civil suit may be brought for the adjudication of such question."

The above provision clearly barred a civil Court in entertaining a civil suit questioning any matter provided in the Act. The revenue Court decided that the plaintiffs occupied khas land which was meant for the pathway and the revenue Court directed eviction of the plaintiffs from the khas land. The plaintiffs in the plaint claimed adverse possession in para 10 of their pleadings and in that case the plaintiffs were supposed to make the State as a party in the suit but the State was not made a party.

The submission of the learned senior counsel that trial Court would formulate a preliminary issue on maintainability and decide it first and would not decide other issues before decision of the preliminary issue cannot be accepted since all the issues were framed after hearing learned counsel of both side and at that stage the plaintiffs did not insist to decide the preliminary issue first. Since several issues were framed and both side adduced evidence, the trial Court decided all the issues at a time. I find nothing wrong in doing so.

Under such circumstances, I find nothing wrong in the judgment passed by the trial Court and affirmed by the appellate Court and hence the second appeal stands dismissed with cost.

Send back the L.C. records along with a copy of this judgment.