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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11326 OF 2011

State of M.P. & Anr.                 .. Appellants

Versus

Dungaji (D) by Lrs. & Anr.             .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

Judgment and Order dated 29.10.2010 passed by the High Court

of Madhya Pradesh, Bench at Indore in Second Appeal No.580 of

2003 by  which the  High  Court has allowed the said appeal

preferred by the respondent­original plaintiff – Dungaji (now

represented by his  legal  representatives)  and consequently has

decreed the  suit  declaring that the  marriage  between  Dungaji

(original plaintiff) and his wife Kaveribai had been dissolved by

way of customary divorce, much prior to the coming into force

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the  provisions of the  Madhya  Pradesh  Ceiling on  Agricultural

Holdings Act, 1960 (hereinafter referred to as ‘the Act’) and that

the property inherited by Kaveribai from her mother, after

divorce, cannot be treated to be a family property of Dungaji for

the purposes of determination of surplus area under the Act and

the High Court has also held that the Competent Authority had

not followed the mandatory provisions of law before passing the

order dated 18.05.1976 and consequently has declared the same

order as null and void, the State of Madhya Pradesh and another

have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as

under:

That, Kaveribai, wife of Dungaji, in the year 1966 inherited

19.89 hectares of  land (land in dispute) after the death of her

mother.  That the said Kaveribai  said to have sold the  land  in

dispute through a Sale Deed dated 18.11.1971. That the

proceedings were initiated before the Competent Authority under

the Act regarding determination of surplus land. That the

Competent Authority by its order dated 18.05.1976 treated

Kaveribai  as a  member of the family  of  Dungaji  and  included

19.89 hectares of land inherited by her from her mother as the

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land held by the family of Dungaji for the purpose of

determination of surplus area.

2.1 That Dungaji instituted a suit before the learned Civil Court,

Ujjain challenging the order dated  18.05.1976 passed by the

Competent Authority under the Act, 1960. That the learned Trial

Court by its Judgment and Decree dated 27.04.1988 dismissed

the suit and upheld the  order dated 18.05.1976 passed by the

Competent Authority. That being aggrieved by Judgment and

Decree dated 27.04.1988 passed by the learned Civil Judge,

Ujjain, Dungaji preferred First Appeal No. 26­A/1989 before the

First Appellate Court. The said appeal came to be allowed. The

learned First Appellate Court remanded the matter back to the

learned Civil Judge for fresh consideration after giving an

opportunity of hearing to Dungaji. That thereafter Dungaji

instituted a Civil Suit No.48­A/2002 before the learned  Civil

Judge, Ujjain against State of Madhya Pradesh and Kaveribai for

declaration that the Order dated 18.05.1976 passed by the

Competent Authority under the Act is illegal and null & void and

also for a declaration of divorce between the plaintiff and

Kaveribai and also for declaration that the plaintiff (Dungaji) does

not have excess land under the provisions of the Act, 1960.

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2.2 That, it  was the case on  behalf of the original plaintiff­

Dungaji that he had three wives Kaveribai, Kashibai and Nanibai.

That after he had married Kashibai and Nanibai,  his first wife

Kaveribai started quarrelling with him and consequently, being

fed  up  with the daily quarrel in the family, he  had  divorced

Kaveribai 17 years prior to the filing of the suit as per the custom

prevalent  in the community. According to the plaintiff after the

said  divorce  he  and  Kaveribai  had  been living separately  and

there  had  been  no relationship  of  husband  and  wife  between

them. According to the plaintiff, after the aforesaid divorce,

Kaveribai started living  with  her  mother  Amritabai.  Amritabai

had died and as such Kaveribai had inherited the land owned by

her mother­Amrita Bai and the same land had been even

mutated in the name of Kaveribai. The plaintiff pleaded that he

had no concern with the aforesaid land owned by Kaveribai and

therefore the  same cannot  be included in the  holdings  of the

family of Dungaji. According to the plaintiff, Kaveribai is wrongly

being treated as member of the family of plaintiff even after the

divorce. According to the plaintiff, Order dated 18.05.1976 was

null and void and not binding upon the rights of the plaintiff. The

plaintiff also pleaded that proper procedure had not been

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followed by the  Competent Authority  while passing the order

dated 18.05.1976.

2.3 Kaveribai as original defendant no.3 filed a written

statement  and admitted that she  had  been  divorced from  the

plaintiff­Dungaji. She also admitted that she had inherited a land

measuring 19.89 hectares from her mother­Amritabai. The

original defendant nos.1 and 2­the State of Madhya Pradesh and

another (appellants herein) opposed the suit by filing a separate

written statement. Defendant nos.1 and 2 denied that Dungaji

had ever been divorced with Kaveribai and the land inherited by

her from her mother was not to be included in the land held by

the family of Dungaji. The Trial Court framed the requisite

issues. The parties led their evidence. On appreciation of

evidence, the learned Trial Court dismissed the suit by Judgment

and Decree dated 22.10.2002. The learned Trial Court specifically

observed and held that the plaintiff has failed to prove that there

is  any  customary  divorce  which  has taken  place  between the

plaintiff and Kaveribai. The Judgment and Decree passed by the

learned Trial Court came to be confirmed by the First Appellate

Court. The original plaintiff carried the matter to the High Court

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by way of Second Appeal No.580 of 2003. The High Court framed

the following substantial questions of law :

“1. Had the findings recorded by both the Courts below that the customary divorce between late Dungaji and late Smt. Kaveribai had not been proved, been perverse and arbitrary,  disregarding the oral evidence which had support of the documents and affidavits of both late Dungaji and late Smt. Kaveribai, though, there had been no cross­examination on the point and no rebuttal was  led  evidence  on mere  surmises  or  suspicion that theory of such divorce was put to defeat the provision of the Ceiling Act?

2. Could the property inherited by Smt. Kaveribai from her mother form part of family property of late Dungaji and thus be declared surplus?

3. Could the competent authority dismiss the objections of late Dungaji without holding any enquiry which was mandatory under the Provisions of the Ceiling Act?”

2.4 That by the impugned Judgment and Order, the High Court

has allowed the said appeal and has quashed and set aside the

Judgment and Decree passed by the First Appellate Court as well

as the learned Trial Court, dismissing the suit and consequently

has decreed the suit  and has held  that  the  marriage between

Dungaji and Kaveribai has been dissolved by way of customary

divorce, much prior to the coming into force the provisions of the

Act, 1960 and also that the property, inherited by Kaveribai from

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her mother, after divorce, cannot be treated to be family property

of Dungaji for the purposes of determination of surplus area. By

the impugned Judgment and Order, the High Court has also held

that the Competent Authority had not followed the mandatory

provisions of law before passing order dated 18.05.1976 and

consequently has held the order dated 18.05.1976 as null and

void.

2.5 Feeling aggrieved and dissatisfied with the impugned

Judgment and Order passed by the High Court in Second Appeal

No.580 of 2003, original defendant nos.1 and 2­the State of

Madhya Pradesh and another, have preferred the present appeal.

3.  Ms. Prachi Mishra, learned Counsel has appeared on behalf

of the appellant­State and  Mr.  Guru  Krishna  Kumar, learned

Senior Counsel has appeared on behalf of the respondents.

4. Ms. Prachi Mishra, learned Counsel appearing on behalf of

the appellant­State has vehemently submitted that in the facts

and circumstances of the case, the High Court has committed a

grave error in allowing the Second Appeal and interfering with the

findings of facts recorded by both the Courts below.

4.1 It is further submitted by Ms. Prachi Mishra, learned

Counsel  appearing  on behalf  of the  appellant­State that  while

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passing the impugned Judgment and Order, the High Court has

exceeded in its jurisdiction  while deciding the  Second  Appeal

under Section 100 of the CPC which was against the concurrent

findings recorded by both the Courts below.

4.2 It is further submitted by Ms. Prachi Mishra, learned

Counsel appearing on behalf of the appellant­State that the High

Court has materially erred in not appreciating the fact that suit

filed by the original plaintiff challenging the Order passed by the

Competent Authority dated 18.05.1976 declaring 57.32 acres of

land as surplus under Section 7 of the Act, was not maintainable

at all. It is submitted that the High Court has failed to appreciate

the fact that the jurisdiction  of the  Civil  Court  was  expressly

barred under Section 46 of the Act, 1960. In support of her above

submissions, learned counsel for the  State  has  heavily relied

upon the decisions of this Court  in the case of  Sooraj v.  SDO

(1995) 2 SCC 45; Mohanlal Nanbhai Choksi (Dead) by Lrs. v. State

of  Gujarat  (2010)  12  SCC 726;  Dhulabhai  v.  State  of  Madhya

Pradesh  AIR 1969 SC 78 as well as  Union of India v. Shri Kant

Sharma (2015) 6 SCC 773. Relying upon the above decisions and

relying upon Section 46 of the Act 1960, it is vehemently

submitted that the suit filed by the original plaintiff challenging

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the Order passed by the Competent Authority dated 18.05.1976

was not maintainable at all. It is submitted, therefore, the High

Court  has  materially erred in  quashing  and setting  aside the

Order passed by the Competent Authority declaring 57.32 acres

of land as surplus land. It is submitted that therefore the entire

proceedings before the Civil Court were void ab initio.  

4.3 It is further submitted by Ms. Prachi Mishra, learned

Counsel appearing on  behalf of the appellant­State that even

otherwise on merits also the High Court has failed to appreciate

that there are concurrent factual findings recorded against

Dungaji and Kaveribai by both the Courts below. It is submitted

that both the Courts below, on appreciation of evidence on

record, specifically observed and held that the plaintiff Dungaji

has failed to prove the customary divorce between him and

Kaveribai. It is submitted that the  High  Court  has  materially

erred in not properly appreciating the fact that on appreciation of

evidence on record both the Courts below specifically gave the

finding that the plaintiff­Dungaji failed to prove customary

divorce between Dungaji and Kaveribai.

4.4 It is submitted that the High Court has failed to appreciate

the fact that Kaveribai herself executed a Sale Deed in favour of

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Padam Singh in the year  1971 in  which she  has specifically

stated that she is the  wife of  Dungaji. It is submitted that,

therefore, both the Courts below, as such, rightly found that the

plaintiff has failed to prove any customary divorce between

Dungaji and Kaveribai.

4.5 It is further submitted by Ms. Prachi Mishra, learned

Counsel appearing on behalf of the appellant­State that the High

Court has failed to appreciate the fact that Dungaji has failed to

prove and establish the factum of customary divorce and has also

not proved that such a customary practice exists in his society. It

is submitted that no such evidence was led in this regard. It is

submitted that, as per the settled proposition of law,  Hindu

marriage can be dissolved only in accordance with the provisions

of the Hindu Marriage Act, 1955. It is submitted that as held by

this Court in the case of  Swapnanjali Sandeep Patil v. Sandeep

Ananda Patil  (2019) SCC Online SC 329;  Subramani v. M.

Chandralekha  (2005) 9 SCC  407 and  Yamanaji J. Jadhav v.

Nirmala  (2002) 2 SCC 637,  if  a   customary divorce practice  is

claimed in a community then the same needs to be clearly

established. It is submitted that in the present case, the original

plaintiff failed to prove and establish the factum of

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divorce/customary divorce. It is submitted that in any case when

on appreciation of  evidence  both  the  Courts  below disbelieved

concurrently a customary divorce as prayed by the plaintiff, the

same was not required to be interfered with by the High Court in

exercise of its powers under Section 100 of the CPC. It is

submitted that as such there was no substantial question of law

before the High Court.   It is submitted that the High Court has

materially erred in allowing the Second Appeal and quashing and

setting aside the concurrent findings recorded by both the Courts

below on the customary divorce pleaded by the plaintiff.

4.6 Making the  above submissions, it is  prayed to  allow  the

present appeal.

5. Present appeal is vehemently opposed by Mr. Guru Krishna

Kumar, learned Senior Counsel appearing on behalf of the

respondent(s) herein­original plaintiff.

5.1 Mr. Guru Krishna Kumar, learned Senior Counsel

appearing on behalf of the respondent(s) herein­original plaintiff

has vehemently submitted that in the facts and circumstances of

the case, the High Court has not committed any error in passing

the  decree  of  declaration  declaring that the  marriage  between

Dungaji and  Kaveribai  was dissolved in the year 1962. It is

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submitted that once there was a divorce as per the customary

divorce between Dungaji and Kaveribai, the land held by

Kaveribai  could not have been included in the holdings of  the

family of Dungaji. It is submitted that, therefore, the High Court

has rightly allowed the appeal.

5.2 It is submitted that while allowing the appeal and decreeing

the suit, the High Court has considered the relevant evidence on

record including Deed of Divorce; statement of PW1­Padam

Singh; statement of PW2­Ram Chandra; statement of PW3­

Mangilal and affidavit of Kaveribai. It is submitted that the

appellants  herein­original  defendants  have  not  cross­examined

any of the aforesaid witnesses who firmly deposed on the factum

of divorce. It is submitted that therefore statement of aforesaid

witnesses remained unchallenged before the lower Courts.

5.3 It is further submitted by Mr. Guru Krishna Kumar, learned

Senior Counsel appearing on behalf of the respondent(s) herein­

original  plaintiff that as the  land held by Kaveribai  which she

inherited from her mother, was not required to be included in the

holdings of the family of  Dungaji  and no proper procedure, as

required to be followed under the Act 1960, was followed, the suit

filed by the plaintiff for a declaration to declare the Order dated

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18.05.1976  of the  Competent  Authority  as  null and  void  was

maintainable.  It is submitted that the relief  sought  in the suit

would not fall in either of the two categories mentioned in Section

46 of the Act 1960. It is submitted that the major  issue is in

respect of the divorce between  Dungaji and  Kaveribai.   It is

submitted that therefore, the said issue was not covered under

Section 46 of the Act 1960. It  is vehemently submitted by Mr.

Guru Krishna Kumar, learned Senior Counsel appearing on

behalf of the respondent(s) herein­original plaintiff that as held

by this Court in the case of Dwarka Prasad Agarwal v. Ramesh

Chander Agarwal (2003) 6 SCC 220 that the bar of jurisdiction of

a Civil Court is not required to be readily inferred and a provision

seeking to bar jurisdiction of a Civil Court requires strict

interpretation. It is submitted that as held by this Court in the

aforesaid decision the Court, it is  well  settled, would normally

lean in favour of construction, which would uphold retention of

jurisdiction of the Civil Court.

5.4 It is submitted by Mr. Guru Krishna Kumar, learned Senior

Counsel appearing on behalf of the respondent(s) herein­original

plaintiff that even  otherwise as there  was  a  grave  procedural

lapse on the part of the Competent Authority, the jurisdiction of

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the Civil Court cannot be barred. In support of his above

submission learned Senior Counsel  appearing on behalf  of  the

original plaintiff has vehemently relied upon the decision of this

Court in the case of Dhulabhai (supra).  

5.5 Making the above submissions, it is prayed to dismiss the

present appeal.

6. Heard learned counsel appearing on behalf of the respective

parties at length. At the outset, it is required to be noted that by

the impugned Judgment and Order, the High Court in exercise of

its powers under Section 100 of the CPC has allowed the Second

Appeal  and  has reversed the concurrent findings recorded  by

both the Courts below and consequently has decreed the suit and

has declared and held that the marriage between Dungaji  and

Kaverbai had been dissolved by way of customary divorce, much

prior to the coming into force the provisions of the Act 1960. The

High Court has also set aside the Order dated 18.05.1976 passed

by the  Competent  Authority  declaring  57.32  acres of land  as

surplus land under the provisions of the Act 1960. The learned

Trial Court dismissed the suit by specifically observing on

appreciation of evidence on record that the plaintiff has failed to

prove that  divorce  has  already  been taken  place  between the

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plaintiff­Dungaji and Kaveribai according to the prevalent custom

of the society. The learned Trial Court also specifically observed

and held on appreciation of evidence on record that the execution

of the Divorce Deed at Exhibit P1 is not proved. The Judgment

and Decree passed by the learned Trial Court came to be

confirmed by the First Appellate Court. However, in Second

Appeal under Section 100 of the CPC, the High Court has

interfered  with the  aforesaid findings  of facts recorded  by the

learned Trial Court confirmed by the First Appellate Court.

Therefore the short question which is posed for the consideration

of this Court is, whether in the facts and circumstances of the

case, the High Court was justified in allowing the Second Appeal

and consequently decreeing the suit and holding that the

marriage between Dungaji and Kaveribai had been dissolved by

way of customary divorce and therefore the Order passed by the

Competent Authority dated 18.05.1976 is null and void?

7. Having heard  learned Counsel appearing on behalf  of  the

respective parties and considering the evidence on record and the

findings of facts recorded by the learned Trial Court confirmed by

the First Appellate Court, it appears that by Order dated

18.05.1976 and after following due procedure required to be

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followed under the provisions of  Madhya Pradesh Ceiling on

Agricultural Holdings Act, 1960, the Competent Authority

declared 57.32 acres of land as surplus land under the

provisions of the Act 1960. As Kaveribai­wife of Dungabai

inherited 19.89 hectares of land from  her  mother Amritabai,

therefore, as such, she became the absolute owner of the

aforesaid land. As per the provisions of the Act, the land held by

the wife was required to be included in the holding of the family

of the husband. Therefore, the  Competent Authority included

19.89 hectares of land in the holding of the family of Dungaji and

consequently by Order dated 18.05.1976 declared 57.32 acres of

land as surplus land. It is not in dispute that the Order passed

by the Competent Authority declaring the land as surplus land is

subject to appeal and further revision as provided under the Act

1960 (Section 41 and 42 of the Act 1960).   Section 46 of the Act

1960 provides that no Civil Court has jurisdiction to settle,

decide or deal with any question which is by or under the Act

1960 required to be settled, decided or dealt with by the

Competent  Authority.  Therefore, as  per  Section  46  of the  Act

1960 there shall be a complete bar against maintainability of the

suit challenging the decision of the Competent Authority. Despite

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the above and without preferring any appeal/revision as provided

under the Act 1960 challenging the Order passed by the

Competent  Authority  dated  18.05.1976,  Dungaji filed the suit

before the Civil  Court  praying  for  a  declaration  to declare  the

Order dated 18.05.1976 of the Competent Authority as null and

void. Therefore, as such, considering the bar under Section 46 of

the  Act  1960, the  suit filed  by  Dungaji challenging the  Order

dated 18.05.1976 passed by the Competent Authority, was not at

all  maintainable. It is true that in the suit the plaintiff also

prayed for declaration to declare that the divorce had taken place

between Dungaji  and Kaveribai  on the basis  of the customary

procedure. Therefore, as such, the suit qua the same relief can be

said to be maintainable. But certainly, the suit challenging the

Order passed by the Competent Authority dated 18.05.1976 was

not maintainable at all. The view which we are taking is

supported by the decisions of this Court in the case of  Sooraj

(supra);  Mohanlal  Nanbhai  Choksi  (Supra) and in the case of

Dhulabhai  (Supra).  The decision of this  Court in the  case  of

Dhulabhai (Supra) relied upon by the learned Counsel appearing

on behalf of the original plaintiffs, shall not be applicable to the

facts of the case on hand and/or the same shall not be applicable

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to any reliefs sought  in the suit.    Therefore,  in the facts and

circumstances of the case, the High Court has materially erred in

quashing and setting aside the Order dated 18.05.1976 passed

by the Competent Authority.

8. Now, so far as the impugned Judgment and Order passed

by the High Court declaring and holding that the marriage

between Dungaji  and  Kaveribai  had  been  dissolved  by  way  of

customary divorce,  much prior to the coming into force the

provisions of the Act 1960 and therefore after divorce, the

property inherited by Kaveribai from her mother cannot be

treated to be holding of  the family property of Dungaji for  the

purposes of determination of surplus area   is concerned, at the

outset, it is required to be noted that as such there were

concurrent findings of facts recorded by both the Courts below

specifically disbelieving the dissolution of marriage between

Dungaji and Kaveribai by way of customary divorce as claimed by

Dungaji­original plaintiff. There were concurrent findings of facts

recorded by both the Courts below that the original plaintiff has

failed to prove and establish that the divorce had already taken

place between Dungaji and Kaveribai according to the prevalent

custom of the society. Both the Courts below specifically

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disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings

were recorded by both the Courts below on appreciation of

evidence  on record.  Therefore, as such, in exercise of  powers

under Section 100 of the CPC, the High Court was not justified in

interfering with the aforesaid findings of facts recorded by both

the Courts below. Cogent reasons were given by both the Courts

below while arriving at the aforesaid findings and that too after

appreciation of evidence on record. Therefore, the High Court has

exceeded in its jurisdiction while passing the impugned

Judgment and Order in the Second Appeal under Section 100 of

the CPC.

9. Even on merits also both the Courts below were right in

holding that  Dungaji failed to  prove the  customary  divorce  as

claimed.   It is required to be noted that at no point of time earlier

either  Dungaji or  Kaveribai claimed customary  divorce  on the

basis of Divorce Deed at Exhibit P5. At no point of time earlier it

was the case on behalf of the Dungaji and/or Kaveribai that there

was a divorce in the year 1962 between Dungaji and Kaveribai. In

the year 1971, Kaveribai executed a Sale Deed in favour of

Padam  Singh in  which  Kaveribai is stated to be the  wife of

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Dungaji.  Before the  Competent  Authority neither  Dungaji nor

Kaveribai  claimed the customary divorce. Even in the Revenue

Records also the name of Kaveribai  being wife of  Dungaji  was

mutated. In the circumstances and on appreciation of evidence

on record, the Trial Court rightly held that the plaintiff has failed

to prove the divorce between Dungaji and Kaveribai as per the

custom.  

9.1 At this stage, it is required to  be  noted that before the

Competent Authority, Kaveribai submitted the objections. Before

the Competent Authority, she only stated that she is living

separately from Dungaji  and Ramesh Chandra, son  of  Padam

Singh, has been adopted by her. However, before the Competent

Authority neither Dungaji nor Kaveribai specifically pleaded

and/or stated that they have already taken divorce as per the

customs  much prior to coming into force the Act of 1960.

Therefore, as rightly observed by the learned Trial Court and the

First Appellate Court only with a view to get out of the provisions

of the Ceiling Act 1960, subsequently and much belatedly,

Dungaji came out with a case of customary divorce. As rightly

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observed by the learned Trial Court that Divorce Deed at Exhibit

P5 was got up and concocted document with a view to get out of

the provisions of the Ceiling Act 1960. As observed hereinabove,

the High Court has clearly erred in interfering with the findings of

facts recorded by the Courts below which were on appreciation of

evidence on record.

10. In view of the above and for the reasons stated above, the

present appeal succeeds. Impugned Judgment and Order dated

29.10.2010 passed by the High Court is hereby quashed and set

aside and the Judgment and Decree passed by the learned Trial

Court confirmed by the learned First Appellate Court is hereby

restored. Consequently, the suit preferred by  Dungaji stands

dismissed. No costs.

……………………………….J.    [M.R. SHAH]

NEW DELHI,    ……………………………….J. JULY 16, 2019.    [A. S. BOPANNA]