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Judgment
T.P. Sharma, J.—By this second appeal, the appellant has challenged the judgment & decree dated 15-9-97 passed by the 1st Additional District Judge, Bilaspur in Civil Appeal No. 20-A/83 affirming the judgment & decree of dismissal of suit passed by the Additional Civil Judge Class-I, Bilaspur in Civil Suit No. 56- A/83 vide judgment & decree dated 9-8-83.
Judgment & decree are challenged on the ground that learned Court below has illegally dismissed the suit and appeal even in absence of any adverse pleading.
I have heard learned Counsel for the parties, perused the impugned judgment & decree and record of the Courts below.
The present appellant/plaintiff had filed civil suit against the respondents/defendants for declaration and permanent injunction from interfering in possession by the respondents in Khasra No. 318/14 area 18.10 acres & Khasra No. 318/1 area 36.90 acres and in alternate declaration of damages. The present respondents have not filed any written statement. After providing opportunity of hearing to the parties, Court below has dismissed the suit and the same has been affirmed in appeal vide the impugned judgment & decree.
Following substantial question of law has been formulated For deciding the present appeal:
Whether the plaintiff''s claim for declaration of title and injunction in relation to the land in area 36.90 acres ought to have been decreed against respondents No. 1 to 3 by both the Courts below?
Learned counsel for the appellant argued that the defendants have not filed their written statement and in absence of any pleading on behalf of the defendants the suit ought to have been decreed in terms of Sub-rule (2) of Rule 5 of Order 8 of the C.P.C. but the Court below has even after recording evidence of plaintiff witness dismissed the suit.
On the other hand, learned Counsel appearing on behalf of respondents No. 1 to 3 opposed the appeal and submitted that even in absence of any pleading of the defendants the Court is not under obligation to decree the suit under sub- rule (2) of Rule 5 of Order 8 of the C.P.C. Both the Courts below have rightly dismissed the claim of the plaintiff in absence of such proof.
In order to appreciate the claims of the parties, I have examined pleadings & evidence adduced on behalf of the parties.
In the present suit, the respondents/defendants had not filed any written statement/pleading. The plaintiff/appellant has not examined herself as witness, but she has examined her husband Shatrughan Prasad Gupta as PW-1 who has deposed that the present plaintiff has purchased part of Khasra No. 21/1 measuring area of 55 acres of land from her mother. True copy of the said deed is Ex.P-2. One ceiling case under the Chhattisgarh Ceiling on Agricultural Holdings Act, 1960 (for short `the Act'') was initiated against father, mother, uncle & aunt of respondents No. 1 & 2 and in the said ceiling proceeding 18.10 acres of land was vested in the State. At the time of such purchase, the appellant was minor, therefore, the land was cultivated by deceased defendant Krishna Devi, mother of the appellant. The appellant demanded possession of land from the respondents/ defendants and on refusal the appellant has filed civil suit. In his cross-examination, husband of the appellant Shatrughan Prasad Gupta (PW-1) has deposed that original sale deed was with mother of the appellant/plaintiff, he has not summoned mother of the appellant/plaintiff and other attesting witnesses of the sale deed. He has also admitted that even after having knowledge that 18.10 acres of land belonging to the plaintiff was vested in the State they have not taken any action.
Learned Additional Civil Judge Class-I has dismissed the suit on the ground that the proceeding relating to the land in dispute was initiated & decided against mother & father of the appellant and mother & father of respondents No. 1 & 2 by the competent authority under the Act vide order dated 28-9- 68, and 18.10 acres of land was vested in the State, but knowing well about the fact that 18.10 acres of land has been vested in the State, the present appellant/plaintiff has not filed any objection before the competent authority that she has purchased the land from mother & father of respondents No. 1 & 2 and in the said ceiling proceeding the disputed land was calculated and considered in the names of father & mother of respondents No. 1 & 2 and father & mother of the appellant. Even after the order passed in ceiling proceeding in the year 1968, the present appellant has not filed any civil suit against the respondents. The suit was dismissed also on the ground of bar created u/s 46 of the Act against the order of the competent authority.
Admittedly, in this case, the respondents have not filed their pleadings and in case of absence of pleading it was lawful for the Court to pronounce judgment on the basis of facts contained in the plaint in accordance with Sub-rule (2) of Rule 5 of Order 8 of the C.P.C. which reads as follows:
Specific denial.-(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to Sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
Section 46 of the Act creates bar of jurisdiction of Civil Courts which reads as follows:
Bar of jurisdiction of Civil Courts.-Save as expressly provided in this Act, no Civil Court shall have any jurisdiction-
(i) 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 competent authority; and
(ii) to grant stay in any case under this Act.
According to the allegation of the plaint, entire land was subject matter of the ceiling proceeding initiated and decided against father & mother of respondents No. 1 & 2 and father & mother of the plaintiff who were possessors of the suit land and out of total 65 acres of land 18.10 acres of land was vested in the State. In the said ceiling proceeding, the present petitioner was required to file her objection and in case of rejection of her objection remedy to file appeal or revision and finally civil suit u/s 11 (5) of the Act was available to the plaintiff, but the plaintiff has neither filed any objection nor any claim before the competent authority even during the pendency of the said proceeding. The property was not recorded in the name of the present appellant. Burden to prove the fact before the competent authority appointed under the Act, that the transaction was genuine, was on the plaintiff, but the plaintiff has neither filed any objection nor claim before the said authority knowing well about the pendency of proceeding and order of the competent authority, even she has not filed any civil suit against the said order but has filed the present suit after lapse of 12 years in the year 1980. Such civil suit is admittedly not maintainable and bar has been created u/s 46 of the Act. Both the Courts below have dismissed the suit and appeal on the aforesaid grounds. The plaintiff has not claimed any declaration of land in dispute, but has in alternative claimed that she be declared for damages.
In absence of any pleading on behalf of opposite party, the Court is competent to pass decree in accordance with the pleading under Order 8 Rule 5 (2) of the C.P.C. but in suitable cases the Court may in its discretion require any such fact to be proved. In exercising such power, the Court has not decided the suit in the light of pleading especially relating to pendency, initiation and decision of proceeding under the provisions of the Act. The Court below has rightly not decided the suit on the basis of pleading and has directed the parties to adduce evidence to prove the fact.
It is clear from the pleading and evidence of the husband of the appellant namely, Shatrughan Prasad Gupta that proceeding under the Act was initiated against father & mother of respondents No. 1 & 2 and father & mother of the appellant. The land in dispute was taken into consideration in the holding of father & mother of respondents No. 1 & 2 and father & mother of the appellant and 18.10 acres of land was declared surplus and vested with the State knowing well the fact that the present appellant has not filed any objection or has not filed any civil suit. Even mother of the appellant, the alleged seller of the suit land, was alive at the time of evidence, but the present appellant has not examined her in support of her claim or execution of such sale deed. It reveals that the sale deed has not been used as genuine even by the mother of the appellant and has not been acted upon. In absence of such proof of transfer of land by sale deed, both the Courts below have dismissed the claim of the appellant. In absence of any proof of transfer of land, the Court below has rightly dismissed the claim. Even the present appellant has not claimed any declaration of ownership over the land, but she has cleverly claimed declaration of right to recover damages. The Courts below have not committed any illegality in dismissing the suit and claim.
In the light of the bar created u/s 46 of the Act, the Court below has rightly dismissed the claim of the plaintiff. Court below has not committed any illegality and the substantial question of law is decided as negative. In the light of finding on the aforesaid substantial question of law formulated for the decision of this second appeal, the appeal is liable to be dismissed and it is hereby dismissed.
The appellant shall bear her costs of the suit as well as appeal and also the costs of the respondents. Advocate fees as per schedule.
Decree be drawn up accordingly.