Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL ) NO. 8225 OF 2003

ACHYUTANAND CHOUDHARY  (D) THROUGH LRS. ……PETITIONERS

Versus

LUXMAN MAHTO & ORS. ……RESPONDENTS

O R D E R

CHELAMESWAR, J.

1. The maintainability of a Civil Suit filed by the respondents being  

titled suit  No. 34 of 1996 filed in the Court of  Subordinate Judge,  

Bhagalpur is the question raised in the Special Leave Petition.  The  

suit is filed with the following prayer:-

“ That the plaintiffs pray for the following reliefs:

(A) The  court  be  pleased to  hold and declare  that  the  plaintiffs  are  the  bonafide  owners  of  the  suit  property  having  acquired  Kayami  right  (right  of  occupancy)  at  the  time  of  last  cadastral survey and the entry of the suit property in the Khaitiayan  of  the  defendant  is  wrong  and  illegal  and  result  of  collusion  of  survey amlas and did/does not confer any right to the defendant at  any material time and the same is not binding upon the plaintiffs.

(B) The court be further pleased to restrain the defendant  from dispossessing  the  plaintiffs  from the  suit  property  or  from  disposing of the suit property by passing an order of the temporary  injunction till the disposal of the suit.

(C)  The cost of the suit be awarded to the plaintiff. “

2.  For the sake of convenience the parties are referred to as they  

are arrayed in the suit.

3.  The  plaintiffs  claim  that  the  Suit  Scheduled  Property  

admeasuring  7.29 acres is owned by them and their ancestors and  

they have been in an uninterrupted  possession of the same for the  

period of about 100 years.  The instant suit is filed with the allegation  

that  the  defendants  (petitioners  herein),   threatened  to  dispossess  

them (plaintiffs) on the ground that the Suit Scheduled Property has  

been  recorded  in  the  name  of  the  defendant  in  the  Consolidation  

Survey. The Relevant portion of the plaint reads as follows:-

“That on 26.11.1995 for the first time the defendant  came to the plaintiffs and disclosed that an area on 7.29  acres  of  land  of  the  family  of  the  plaintiffs  have  been  recorded  in  the  name  of  the  defendant  during  consolidation survey for which P.S. Plot No. 793 area 5.97  and P.S. Plot  No.755 area 1.32 have been made and land  P.S. Khata No.4 the above two plots have been included  along with other land of defendant so on such knowledge,  the  plaintiff  sent  a  messenger  to  Bhagalpur  for  taking  certified copy  of  Khatiyan  of  consolidation survey  and  when  the  copy  of  said  Khatiyan  was  delivered  to  the  messenger  of  the  plaintiff  on  2.12.1995  the  above  information  of  defendant  was  found  to  be  correct  on  perusal of certified copy  of Khatian aforesaid.”

4.   The instant Special Leave Petition is filed urging various questions  

of law regarding the maintainability of the suit in the light of Sections  

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37 and 15 of the Bihar Consolidation of Holdings and Prevention of  

Fragmentation Act, 1956. (hereinafter referred to as “the Act”).

5.   From the counter affidavit filed on behalf of the first respondent in  

the instant Special Leave Petition, it appears that after the trial of the  

suit commenced and two witnesses were examined on behalf of the  

plaintiffs,  a petition was filed praying to determine the preliminary  

issue. The relevant portion of the counter affidavit reads as follows:-

“That during the pendency of the suit aforesaid  when the case was opened for trial and evidences on  behalf  of  the  respondents  were  started  and  two  witnesses were examined, thereafter for the purpose  of  delaying  the  disposal  of  the  suit,  the  petitioner  filed a  petition dated 11.9.2002  praying  therein to  determine  preliminary  issue   on  two  questions  namely,  (1)  the  certificate  of  final  Khatiyan  of  consolidation  survey  is  a  conclusive  proof  and  for  want of notice under section 80 C.P.C., the present  suit  cannot  proceed  which  was  replied  by  these  respondents on 12.9.2002.”

6.  The learned sub-judge, Bhagalpur by his order dated 26.09.2002  

rejected  the  said  petition.   Aggrieved  by  the  same,  the  defendant  

carried the matter by way of a revision to the High Court of Patna.

7. The  High  Court  dismissed  the  Revision  by  its  order  dated  

14.1.2003 and hence the instant Special Leave Petition.

8.  Unfortunately  the  defendants  did  not  chose  to  place  on  record  

either the written statement filed by  them in suit No. 34 of 1996 nor a  

copy of the application dated 11.9.2002 referred (supra). In order to  

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enable this Court to understand the exact scope of the defence and  

also the preliminary objections raised in the above-mentioned petition.  

Neither the order of the Trial Court dated 26.9.2002 nor the order of  

the High Court dated 14.1.2003 throw any light on the question.

9. However, in the instant Special Leave Petition, the submission  

made is that the suit is barred in view of Sections 15 and 37 of the  

Act.  

10. From a perusal of the order of the trial court dated 26.09.2002,  

it appears that the objection raised is that in view of the declaration  

under Section 15 of the Act, the certificate issued under Section 15 is  

conclusive  proof  of  the  title  of  the  holder  of  the  certificate,  and,  

therefore, the suit is not maintainable.  It does not appear from the  

above-mentioned order that any specific objection on the basis of the  

bar contained under Section 37 of the act was pleaded.

11. In  our  opinion,  the  statutory  declaration  that  a  particular  

document  is  conclusive  proof  of  a  particular  fact  or  legal  right  by  

itself, does not oust the jurisdiction of the Civil Courts.  The effect of  

such  a  statutory  declaration  is  that  in  any  enquiry  regarding  the  

existence of such fact or a legal right,  Courts/Tribunals are forbidden  

from entertaining any further evidence on such an issue the moment  

the  document  which  is  declared  to  be  conclusive  proof  of  such  

fact/legal rights is produced before the Court or Tribunal conducting  

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such  an  enquiry.   The  ouster  of  the  jurisdiction  is  altogether  a  

different matter.

12. The learned senior counsel Shri S.B. Sanyal, argued that the  

suit which is a subject matter of discussion is barred in view of the  

express language of Section 37 of the Act. He also relied upon the  

following decisions, Ram Krit Singh Vs. State of Bihar, AIR 1979 Patna  

250  and  Sheoratan  Chamar  and  Ors. Vs.  Ram  Murat  Singh  alias   

Kishori Raman Singh & Ors., 1985 PLJR 86 in an attempt to support is  

submission that the suit is barred under Section 37 of the Act.

13. On the  other  hand learned counsel  for  the  respondents  Shri  

A.N. Choudhry relied upon a full Bench decision of the Patna High  

Court reported in 1990 (1) BLJR 51,  Kalika Kaur alias Kalika Singh  

Vs. State of Bihar and Ors., in support of his submission that the suit  

is maintainable.

14. For an appreciation of the issue on hand, an examination of the  

scheme of the Act and relevant provisions is necessary.

15. The Act is virtually a sequel to the Abolition of Zamindaries in  

the State of Bihar. The purpose behind the Act is the consolidation of  

the small holdings and prevention of the fragmentation of the small  

pieces of land held by the raiyats. The expression ‘fragmentation’ and  

‘holding’ and ‘raiyat’ are defined under the Act. Section 3 of the Act  

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authorises the State Government to declare an intention to make a  

scheme for consolidation of holdings in any area by notification in the  

official gazette.  

16. Section 4 declares that on the publication of such notification  

certain consequences enumerated therein would ensue. One of them  

being  the  “abatement”  of  all  suits  or  legal  proceedings  for  the  

correction of records, declaration of rights or interest in any land etc.  

covered by the notification.  Such abatement is subject, of course, to  

certain  conditions.  The  details  of  such  are  not  necessary  for  the  

present purpose.  

17. Section  8  of  the  Act  stipulates  that  after  publication  of  the  

notification under Section 3, an up to date record of rights shall be  

prepared  in  accordance  with  the   various  enactments  specified  

therein. Section 8, in so far as it is relevant for the present purpose  

reads:-

8.  Preparation  of  up-to-date  record  of-rights  before consolidation.—(1) Save as provided in sub- section (2) as soon as may be after the publication of  a notification under section 3, an up-to-date record  of-rights,  in  respect  of  all  lands  comprised  in  the  notified area, together with a map shall be prepared  in accordance with the provisions of Chapter X of the  Bihar Tenancy Act, 1885 (Act VIII of 1885), or as the  case  may  be,  Chapter  XII  of  the  Chota  Nagpur  Tenancy  Act,  1908  (Ben.  Act  VI  of  1908)  or  the  Santhal  Parganas  Settlement  Regulation,  1872  (Regulation  III  of  1872:  [or  the  Bihar  Tenants  Holdings (Maintenance of Records) Act, 1973 (Bihar  Act 28 of 1975]:

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18. On the preparation of such record-of-rights, the various steps  

contemplated in the subsequent provisions of the Act are required to  

be taken. The details of which are not necessary for the purpose of  

this case except to note that Section 11 contemplates the preparation  

of draft scheme.  To indicate the nature of the draft scheme, we may  

extract Section 11 in so far as it is relevant.  

“11.     Preparation of draft scheme—

Xxx xxx xxx

(2)  The  Village  Advisory  Committee  and  the  Assistant  Consolidation Officer shall  in preparation of  a scheme of  consolidation, keep the following factors in view, namely--  

Xxx xxx xxx xxx

(d) every raiyat is, as far as possible allotted a compact area  of the plots where he holds the largest part of his holdings;

Provided  that  no  raiyat may  be  allotted  more  chaks than three except with the approval in writing of the  Deputy Director of Consolidation.”

(e)  every raiyat is, as far as possible allotted the plot on  which exists his private  source of  irrigation or any other  improvement, together with an area in the vicinity equal to  the valuation of the plots originally held by him;

(f)   every  raiyat  is,  as  far  as  possible,  allotted  chaks  in  conformity with the process of rectangulation in rectangular  units; and

(g)   subject   to  rules  made  in  this  behalf  by  the  State  Government,  the  lands  held  by  an  under  raiyat  is  consolidated:

Provided  that  the  land  allotted  under  the  scheme to an under raiyat in lieu of any land held by him  before the confirmation of the scheme shall form part of  the new holding allotted under the scheme to the raiyat  under whom the under raiyat originally held the land.

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Section  13  prescribes  that  the  draft  scheme  is  required  to  be  

confirmed after considering the objections, if any, raised against such  

draft scheme.  The section further mandates that the relevant extracts  

of the  Consolidation scheme shall be granted to the concerned raiyat   

and declares that such extracts shall be the  final allotment orders.

19. Section 15 contemplates the grant of a certificate:-

15(1) The Consolidation Officer shall grant to every  raiyat  to  whom  a  holding  has  been  allotted  in  pursuance of a scheme of consolidation a certificate  in  the  prescribed  form  containing  the  prescribed  particulars.   Such  certificate  shall  be  conclusive  proof of the title of such raiyat to such holding and  he shall be liable for payment of such rent as may be  specified in the certificate.”

Section 35 provides for a revision etc. to the Director of Consolidation  

against any case decided or proceedings taken under the provisions of  

the Act by any authority subordinate to him.  The only other provision  

which is relevant for the present purpose is Section 37 which reads as  

follows:-

“37. Bar of jurisdiction of Civil Courts.—No Civil  Court shall entertain any suit or application to vary  or set aside any decision or order given or passed  under this Act with respect to any other matter for  which a proceeding could or ought  to  have been  taken under this Act.”

20.  In substance, under the said Section, the jurisdiction of the  

ordinary Civil Courts to entertain any suit, application  either to stay  

or set aside  any decision given or any order passed under the Act  or  

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with respect to any matter for which a proceeding ought to have been  

taken is ousted.

21. In the background of the scheme of the Act, the question before  

us is the maintainability of Civil Suit filed by the respondent out of  

which the instant special leave petition arises.

22. Learned counsel  for  the  defendant/petitioner  relied  upon the  

judgment in Ram Krit Singh (supra) and Sheoratan Chamar (supra) in  

support of the submission that the suit is not maintainable.  In our  

opinion, neither  of the judgments support the submission made by  

the learned counsel for the petitioner.  In  Ram Krit Singh (supra), a  

Full Bench of the Patna High Court was dealing with the  effect of  

Section 4 of the Act on pending Civil Suits.  We have already noticed  

that Section 4 declares that all pending suits with respect to the lands  

in the notified area  shall abate.  It was a case where  the petitioners  

before the Patna High Court filed a suit in the year 1966 questioning  

certain alienation made by the first defendant in the suit in favour of  

the second defendant. While the suit was pending trial, a notification  

under Section 3 of the Act came to be issued. Therefore, the defendant  

raised preliminary objections that  in  view of  the  declaration under  

Section 4 of the Act, the suit had abated. The trial Court accepted the  

preliminary objection. Challenging the said decision of the trial Court  

and also the constitutionality of Section 4, 12A and 37 of the Act, the  

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plaintiffs thereon approached the High Court on the ground that those  

provisions violated Article 14 of the Constitution of India.

23. The  Full  Bench did not  examine the  scope of  the content  of  

Section 37.  It was not necessary for the Full Bench to examine the  

question because the limited issue which fell for the consideration of  

the  Full  Bench  on  the  facts  of  the  case  was  the  effect  and  

constitutionality of Section 4 of the Act.

24. Coming to the next decision,  Sheoratan  Chamar and ors. Vs.   

Ram Murat Singh alias  Kishori  Raman Singh & Ors.,  1985 PLJR 86  

(Full Bench).  In this case also the High Court was concerned with the  

effect of Section 4 on the pending suit on the date, the Notification  

under Section 3 of the Act was issued.

25. The scope of section 37 did not fall for consideration of the Full  

Bench.

26.  On the  other  hand,  the  learned counsel  for  the  respondent  

relied upon a judgment,  Kalika Kuar  alias Kalika Singh Vs. State of   

Bihar and Ors. reported in 1990 (1) BLJR 51 (Full Bench) in support  

of his submission that the respondents suit is maintainable.  We need  

not examine the content of the judgment of the  High Court for the  

simple reason that the said judgment stood set aside by this Court in  

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a Judgment reported in  Kalika Kuar  alias Kalika Singh Vs. State of   

Bihar and Ors., 2003 (5) SCC 448.

27. Therefore,  the  averment  whether  the  instant  suit  is  barred  

either under Section 15 or 37 of the Act is required to be examined.  

We have already held that Section 15 only embodies a rule of evidence  

and does not create any bar of the jurisdiction of the Civil Courts.  No  

doubt Section 37 creates a bar to the jurisdiction of the Civil Courts to  

entertain any suit or application;

(a) to  vary  any  decision  or  set  aside  any  order  given  or  passed  

under the Act;

(b) with respect to any mater for which a proceeding could or ought  

to have been taken under the Act.

28. From the material on record, it is not clear as to what exactly is  

the  nature  of  the  objection  raised  by  the  defendants  to  the  

maintainability of the suit.  Whether the objection of the defendants to  

the maintainability of the suit is either under (a)  or (b) mentioned  

above and what are the relevant facts are pleaded in support of the  

objection.  It is also not possible to ascertain from the record whether  

the objection of the defendants is with rspect to both the prayers of  

the suit (extracted earlier) or otherwise. On the other hand, it appears  

that the trial of the suit is in progress. Therefore, we are of the opinion  

the extraordinary jurisdiction of this Court under Article 136 ought  

not  to  be exercised to interdict  the  suit.   It  is  always open to  the  

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defendants to seek the framing of an appropriate issue regarding the  

maintainability of the suit upon proper pleadings and invite a decision  

thereon.

29. The Special Leave Petition is, therefore, dismissed.

………………………………….J. ( P. SATHASIVAM)

………………………………….J. ( J. CHELAMESWAR )

New Delhi; January 06, 2012.

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