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REPORTABLE     

IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL No(s).  3122    OF 2019 (Arising out of SLP (C ) No. 34559 of 2016)

Pooran Singh                                                 Appellant(s)

                               VERSUS

Dhaniram (since dead) thr. Legal Heirs and Anr        Respondent(s)

JUDGEMENT

Dr. Dhananjaya Y Chandrachud, J

Delay condoned.

Leave granted.

This appeal arises from a judgment of the High Court of Chhatisgarh

at Bilaspur dated 25 February 2015 in a Second Appeal1 under Section 100 of

the Code of Civil Procedure.

Beniram Gond, who belonged to a notified Scheduled Tribe, executed

a sale deed of the suit  property consisting of agricultural land admeasuring

5.36 acres located at Village Naragaon, Tehsil Balod, District Durg in favour of

Dhaniram, a non tribal.  The sale on 9 October 1964 was for a consideration of

Rs.2,400.  The suit property is described thus:

1 No 2 of 1998

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“Agricultural Land bearing Survey No. 69/2, Area 1.10 Acre; Survey no. 69/5, Area 1.98 Acre; Survey No. 69/9, Area 0.50 Acre; Survey No. 69/12, Area 0.19 Acre; Survey No. 69/23, Area 0.61 Acre; Survey No.69/15,  Area  0.28 Acre; Survey No.69/16, Area 0.29 Acre; Survey No. 172/2, Area 0.41 Acre; Total  8  Surveys  comprising  5.35  Acres,  Located  at  Village Naragaon, Tehsil Barod, District Durg, MP now Chhatisgarh”

The  appellant  is  Beniram’s  son.  The  respondents  are  the  legal  heirs  of

Dhaniram, who has died.

On 24 October, 1980 Section 170B was inserted into the provisions of

the MP Land Revenue Code 1959 by MP Act  15 of  1980.   Section 170B,

insofar as is material, reads as follows:

“170B. Reversion of land of members of aboriginal tribe which was transferred by fraud. - (1) Every person who on the date of commencement of  Madhya Pradesh Land Revenue Code (Amendment)  Act,  1980  (hereinafter  referred  to  as  the Amendment Act of 1980) is in possession of agricultural land which  belonged  to  a  member  of  a  tribe  which  has  been declared to be an aboriginal tribe under sub-section (67) of Section  165  between  the  period  commencing  on  the  2nd October, 1959 and ending on the date of the commencement of  Amendment  Act,  1980  shall,  within  two  years  of  such commencement, notify to the Sub-Divisional  Officer  in such form  and  in  such  manner  as  may  be  prescribed,  all  the information as  to  how he has come in  possession of  such land.

(2) If any person fails to notify the information as required by sub-section (1) within the period specified therein it shall be presumed that  such person has been in  possession of  the agricultural  land  without  any  lawful  authority  and  the agricultural  land  shall,  on  the  expiration  of  the  period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs.

3(2-A) If a Gram Sabha in the Scheduled area referred to in clause  (1)  of  Article  244  of  the  Constitution  finds  that  any person,  other  than  a  member  of  an  aboriginal  tribe,  is  in possession  of  any  land  of  a  bhumiswami  belonging  to  an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that person to whom it originally belonged and if that person is dead to his legal heirs :

Provided that if the Gram Sabha fails to restore the possession of  such  land,  it  shall  refer  the  matter  to  the  Sub-Divisional

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Officer,  who shall  restore the possession of such land within three months from the date of receipt of the reference.

(3) On receipt of information under sub-section (1), the Sub- Divisional Officer shall make such enquiry as may be deemed necessary  about  all  such  transactions  of  transfer  and  if  he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order revesting the agricultural land in the transferor and, if he is dead, in his legal heirs.”

Proceedings were initiated before the Sub Divisional Officer, Balod2 at

the instance of Beniram under Section 170B.  On 28 July 1984, the plea was

initially rejected by the SDO, Balod.  However, on 5 June 1985, the Collector,

Durg, allowed the Revenue Appeal3 against the order of the SDO Balod. The

Collector directed the reversion of the land in favour of Beniram.  On 11 June

1986, the Additional Commissioner Raipur Division dismissed the Appeal4 filed

by Dhaniram.   Dhaniram initiated writ proceedings5, before the High Court of

Madhya Pradesh in order to challenge the order passed under Section 170B

against him.   

A learned single Judge of the High Court dismissed the petition on 16

February 1987 in the following terms:

“Petitioner  by  Shri  R.N.  Tiwari.   He  is  heard.   The  sole question in the instant case which arises for consideration is whether  the notice of  appeal  preferred by respondent no.5 before the Collector Durg, respondent no.3, had been served on  the  petitioner  or  not.   That  question  essentially  is  a question  of  fact  and  the  finding  of  the  Collector  and  of Additional  Commissioner  in  appeal  that  the  petitioner  had been served with notice, does not suffer from any manifest error of law or jurisdiction requiring interference under Article 226 of the Constitution of India.

The  petitioner  does  not  appear  to  have  made  any request  either  to  the  collector  or  to  the  additional

2 SDO 3 No. 11-A/23 year 1984-85 titled as Beniram v  Dhaniram 4 case No. 42/A-23/85-86 5 M.P. No. 367 of 1987

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commissioner  for  permission  to  produce evidence to  show that  the  notice  said  to  have  been  served  on  him  and purporting  to  bear  his  signature  in  fact  does  not  bear  his signature  and  that  it  contains  a  forge  signature  of  the petitioner.  He having failed to take this plea before the fact finding authorities, cannot take it for the first time under Article 226  of  the  Constitution.  If  the  petitioner  was  given  an opportunity by serving notice on him and he failed to appear without any sufficient cause, he alone is to be blamed for that.

It was then urged by counsel for the petitioner that in view of  section 170C of  the M.P.  Land Revenue Code, no counsel could have appeared for respondent no.5 before the Collector  without  obtaining  the  permission  of  the  Collector. The  question  as  to  whether  counsel  who  appeared  for respondent  no.  5  had  obtained  any  permission  from  the Collector or not, is again a question of fact and it should have been raised before the fact finding authorities.  It cannot be raised for the first time in a writ petition.

No other point has been pressed. In the result, the petition is dismissed.”

 On  19  July  1986,  possession  was  restored  to  Beniram,  the

predecessor-in-interest of the appellant.  

After the dismissal of the writ petition by the High Court, Dhaniram

filed a suit6before the Civil Judge Class II, Balod against the appellant seeking

a permanent injunction, possession and a declaration that the order dated 5

June 1985 of the Collector was null and void.  The appellant contested the suit.

The suit was rejected on 11 December 1995.  However, in a first appeal7, the

District Judge, Durg set aside the order of the Trial Court and decreed the suit.

The appellant unsuccessfully challenged the order of the first appellate court in

a Second Appeal.  The Second Appeal having been dismissed on 25 February

2015, these proceedings were instituted.   

After the rejection of the suit on 11 December 1995, Section 257 (L-1)

was  introduced  by  an  amendment  of  the  Madhya  Pradesh  Land  Revenue

6 No. 20A of 1992 7 Civil Appeal No. 6-A/1996

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Code  in  order  to  bar  the  jurisdiction  of  the  civil  court  to  entertain  suits

pertaining to orders under Section 170B.  Section 257, insofar as is material,

reads as follows:

“257. Except  as otherwise provided in this Code, or  in any other  enactment  for  the time being in  force,  no Civil  Court shall entertain any suit instituted or application made to obtain a  decision  or  order  on  any  matter  which  the  State Government,  the  Board,  or  any  Revenue Officer  is  by  this Code, empowered to determine, decide or dispose of, and in particular  and  without  prejudice  to  the  generality  of  this provision, no Civil Court shall exercise jurisdiction over any of the following matters :-

a) any decision regarding the purpose to which land is appropriated under Section 59;

(b)  any  question  as  to  the  validity  or  effect  of  the notification of a revenue survey or any question as to the term of a settlement;

(c) any claim to modify a decision determining abadi made by a Settlement Officer or Collector;

(d)  any  claim against  the  State  Government  to  hold land  free  of  land  revenue,  or  at  less  than  the  fair assessment, or to be assigned in whole or in part the land revenue assessed on any land;

(e) the amount of land revenue assessed or reassessed under  this  Code or  any other  enactment for  the time being in force;

(f) any claim against the State Government to have any entry made in any land records or to have any such entry omitted or amended.

(g)  any  question  regarding  the  demarcation  of boundaries or fixing of boundary marks under Chapter X;

(h) any claim against the State Government connected with or arising out of, the collection of land revenue or the recovery of any sum which is recoverable as land revenue under this Code or any other enactment;

(i) any claim against the State Government or against a Revenue Officer  for  remission or  suspension of  land revenue, or for a declaration that crops have failed in any year;

(j) any decision regarding forfeiture in cases of certain transfers under Section 166;

(k) ejectment of a lesser of a bhumiswami under sub-

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section (4) of Section 168;

1(l)  any claim to set aside transfer  by a bhumiswami under  subsection  (1)  of  Section  170 and clauses  (a) and (b) of sub-section (2) of Section 170-A;]

2(l-1) any matter covered under Section 170-B.]”

The High Court by its impugned order held that:

(i) no enquiry had been made by the Collector under Section 170B;   (ii) the presumption under Section 170B is rebuttable; (iii) the amendment introducing Section 257 (L-1) on 15 December 1995

would  have  no  application  to  the  suit  which  was  instituted  on  18

February 1992; and  (iv) in view of (ii), the bar of jurisdiction was not attracted.

The basic issue which falls for consideration is whether it was open to

the  respondent  to  institute  a  suit  to  challenge  the  order  passed  by  the

Collector, Durg on 5 June 1985, when an earlier challenge to the legality of the

order had culminated in the final judgment of the High Court on 16 February

1987.  The answer to that issue must lie in the negative.  The order of the

Collector was placed in issue before the High Court in MP 367 of 1987.  The

order which has been extracted in the earlier part of the judgment indicates

that the challenge was on the ground that the notice of the appeal before the

Collector  had not  been served on the original  respondent,  Dhaniram.  The

judgment of the High Court enquired into the legality of the order passed by the

Collector.  The  High  Court  came  to  the  conclusion  that  the  order  was  in

accordance with law.  The writ petition was dismissed.  Once the order of the

Collector was affirmed in the final judgment and order of the High Court dated

16 February 1987, it was not open to a civil court to arrive at a conclusion to

the contrary.  The High Court, in our view, has manifestly erred in ignoring the

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clear effect of the earlier order dated 16 February 1987.  

For  the  above  reasons,  we  allow  the  appeal  and  set  aside  the

impugned judgment and order of the High court dated 25 February 2015.  In

consequence, we restore the judgment of the Trial Court, dismissing Civil Suit

No. 20A of 1992 instituted by the respondent.  There shall be no orders as to

costs.

......................................................J.                 (Dr. Dhananjaya Y Chandrachud)

  ......................................................J.                        (Hemant Gupta)

New Delhi; March 14, 2019