Kirpa Ram (D) Tr.Lrs. . vs Surender Deo Gaur on 16 November, 2020
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Supreme Court of India
Kirpa Ram (D) Tr.Lrs. . vs Surender Deo Gaur on 16 November, 2020
Author: L. Nageswara Rao
Bench: L. Nageswara Rao, Hemant Gupta, Ajay Rastogi
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8971 OF 2010 KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES & ORS. .....APPELLANT(S) VERSUS SURENDRA DEO GAUR & ORS. .....RESPONDENT(S) JUDGMENT
HEMANT GUPTA, J.
1. The present appeal has been preferred by Defendant No. 4, against
the concurrent findings of three Courts arising out of a suit for
permanent injunction.
2. The plaintiffs, now represented as respondent Nos. 1 and 2, filed a
suit for permanent injunction on 31.7.1971 claiming that Khasra
No. 238 measuring 4 Bighas 3 Biswas, situated in the revenue
estate of Village Basai Darapur, Delhi is owned and possessed by
them. Earlier, the plaintiffs had filed a suit for declaration
challenging the vesting of the said land in Gaon Sabha in a suit
filed on 20.7.1959. The said suit was decreed on 7.10.1960
Signature Not Verified
holding that the plaintiffs are owners and Bhumidars of land
Digitally signed by
ASHWANI KUMAR
Date: 2020.11.16
17:58:33 IST
Reason:
comprising in Khasra No. 238. The Union of India had filed an
application under Section 161-B of the Delhi Land Reforms Act,
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19541 for setting aside the said decree dated 7.10.1960 but such
application was dismissed by Sub-Judge, First Class, Delhi on
24.5.1968.
3. The plaintiffs alleged that defendant No. 1 claimed that Khasra No.
238 is part of the land allotted to it. The suit for permanent
injunction was thus filed by the plaintiffs apprehending threat to
their possession of land comprising Khasra No. 238, Village Basai
Darapur, Delhi against defendant No. 1 i.e. The Refugees’ Co-
operative Housing Society Ltd., its President – defendant No. 2,
Secretary – defendant No. 3 and defendant No. 4, Kirpa Ram,
predecessor in interest of the present appellants. Two separate
sets of written statements were filed before the Court, one by
defendant Nos. 1 to 3 and another by defendant No. 4. The
defendant Nos. 1 to 3 raised preliminary objection that the
jurisdiction of the Civil Court relating to Bhumidari land is barred
under Section 85 of the Reforms Act. It was stated that defendant
No. 4 threatened to encroach upon the land in the Society
comprising of Khasra No. 1273 which led to proceedings under
Section 145 of the Code of Criminal Procedure, 1973. Such
proceedings have nothing to do with land comprising in Khasra No.
238.
4. The defendant No. 4 in written statement asserted that the
plaintiffs were not in possession of the land in dispute and suit for
injunction was therefore not maintainable. It was further stated
1 For short, the ‘Reforms Act’
2
that defendant Nos. 1 to 3 were not concerned with the land in
question and that land did not belong either to plaintiffs or
defendant Nos. 1 to 3 and they were not in possession thereof.
Such land was in fact only in the possession of the defendant No.
4. It was also stated that the land in dispute does not bear Khasra
No. 238 and that it is not situated in the revenue estate of Village
Basai Darapur. Instead, the land in dispute bears Khasra No. 79
and is situated in revenue estate of Village Shakarpur.
5. In view of the pleadings of the parties, the following issues were
framed by the trial court:
“1. Whether any notice u/s 70 of the Bombay Societies
Act as extended to the Delhi was not necessary to be
served on the defendants no. 1 to 3 before instituting
the present suit? If so, then to what effect? (Objected
to).
2. Whether this Court has no jurisdiction to try this suit
as mentioned in the written statement?
3. Whether the plaintiffs are the owners in possession
of the land in dispute bearing khasra no. 238 as alleged
in the plaint?
4. Whether the land in dispute formed the part of
khasra no. 238 of village Basai Darapur, Delhi as alleged
in the plaint?
5. Whether the land in dispute formed the part of
khasra no. 79 situated in village Shakar Pur as
mentioned in the written statement? (objected to)
6. Whether this suit is properly valued for the purposes
of court fee and jurisdiction? If not, then to what effect?
7. Whether the suit is bad on account of mis-joinder of
defendants as mentioned in the written statement? If
so, then to what effect?
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8. Whether the plaintiffs are entitled for a decree for
permanent injunction claimed in the plaint?
9. Relief.”
6. With respect of Issue No. 2, the learned trial court held that the suit
was a simpliciter suit for injunction and the Court has the
jurisdiction to find out in which khasra number the land in dispute
falls. It was thus held that suit land falls in Khasra No. 238 in
Village Basai Darapur and is in the possession of the plaintiffs,
therefore, the suit was decreed.
7. Issue Nos. 4 and 5 were taken up for decision together. The
plaintiffs had produced site plan (Ex.PW-3/1) pertaining to the year
1953-54 when consolidation took place in Village Shakarpur. The
plaintiffs also produced site plan (Ex.PW-3/3) of Village Basai
Darapur. The learned trial court held that the consolidation had
taken place in Village Shakarpur and not in Village Basai Darapur.
Therefore, the area of Khasra No. 238 could not be reduced from 4
Bighas 3 Biswas to 2 Bighas 6 Biswas. It was held by the trial court
as under:
“18. …One thing remains certain that the present
defendants have no concern in Khasra no. 238 village
Basai Darapur. Either it belongs to the plaintiffs or it
vests in the Gaon Sabha. The present defendants, who
are third parties, have no right to challenge the said
judgment and decree passed in favour of the present
plaintiffs. Therefore, I hold that plaintiffs are the owners
of khasra no. 238, village Basai Darapur.”
8. The first appeal was filed by defendant No. 4 only. The First
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Appellate Court after reappreciating the evidence recorded the
following findings:
“14. From the above discussion it is clear that
appellant/defendant No.4 has not been successful
before the trial court to show that he was in possession
of Khasra No.79 of village Shakarpur so he cannot say
that he is entitled to possession of the same under the
claim that this land forms part of Khasra No. 79 of
village Shakarpur and not to Khasra No. 238 of village
Basaidarapur. The claim of appellant/defendant No.4
stands falsifies upon his own documents produced by
him before.”
9. In the memorandum of second appeal, the defendant No. 4 alleged
that the following substantial questions of law arise for
consideration:
“1. Whether the appellate court could in law dispose of
the appeal without deciding the Preliminary issue of
jurisdiction of the civil court.
2. Whether the appellate court could in law dispose of
the appeal without passing any order on the application
dated 18th October, 1984 of the appellant under order
41 rule 27 of the Civil Procedure Code for permission to
lead additional evidence?
3. Whether the appellate court in law was jurisdiction in
not considering the provision of section 28 of the Delhi
Land Revenue Act, 1974 which bars the jurisdiction of
the Civil Court to entertain boundary disputes?”
10. The first substantial question of law was based on an interim order
passed by the First Appellate Court on 9.5.1996 wherein the parties
were directed to first address the arguments on the issue of
jurisdiction. It has also come on record that the High Court had
directed reconstruction of the record of the First Appellate Court on
31.7.2007, as the same was destroyed in an incident of fire during
5
the year 1996.
11. The second substantial question of law raised was in respect of an
application for additional evidence filed under Order XLI Rule 27 of
the Civil Procedure Code2. The defendant No. 4 sought to produce
the revenue record, Khasra Girdawari for the years 1953-54, 1954-
55, 1955-56, 1956-57, 1966-67 and 1983-84, Jamabandi for the
year 1944-45 and mutation No. 2151, all of which pertained to
Village Basai Darapur vide the said application.
12. Mr. Mehta, learned senior counsel for the appellants vehemently
argued that the jurisdiction of Civil Court is barred as it is a
boundary dispute between the Village Basai Darapur and Village
Shakarpur and such dispute has to be decided in terms of Section
28 of the Delhi Land Revenue Act, 1954 by the Commissioner.
13. The High Court vide judgment dated 25.8.2008 dismissed the
second appeal filed by the appellants herein. Aggrieved by the
findings of the High Court, defendant No. 4 is in appeal before this
Court.
14. The primary argument raised by learned counsel for the appellants
is that the High Court has dismissed the appeal without framing
any substantial question of law which is mandatory in terms of
Section 100 of the Code. It was submitted that since the High
Court has dismissed the appeal without framing substantial
question of law, the matter should be remitted back to the High
2 For short, the ‘Code’
6
Court for determination of such substantial question of law framed
by the appellants, as reproduced above. In support of the
arguments, the appellants relied upon various judgments3.
15. It has been argued that the First Appellate Court had ordered that
the question of jurisdiction of Civil Court would be decided first,
however the appeal was decided without dealing with the said
issue. It is, thus, said to have caused serious prejudice to the
rights of the appellants. Similarly, the application under Order XLI
Rule 27 of the Code was not decided which was again prejudicial to
their rights.
16. We find that such substantial questions of law, in fact, do not arise
for consideration. The issue of jurisdiction was not an issue of fact
but of law. Therefore, it could very well be decided by the First
Appellate Court while taking up the entire appeal for hearing. The
trial court had also not treated issue No. 2 relating to the
jurisdiction of the Civil Court as a preliminary issue. Therefore, it
cannot be said that any prejudice has been caused to the
appellants by not deciding the issue of jurisdiction of the Civil Court
in the first instance by the First Appellate Court. It may also be
noticed that the plea of bar of jurisdiction was raised by defendant
Nos. 1 to 3 and not by the appellants.
3 Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita & Ors., (2004) 1 SCC 271; Hubli
Dharwar Municipal Corporation & Anr. v. H.S. Mohd. Khan (dead) by LRs. & Ors. , (2002) 2
SCC 109; Madhavan Nair v. Ramankutty & Anr., (2000) 2 SCC 356; N. Venkatareddy & Ors.
v. Gopal & Ors., (2000) 10 SCC 309; Chandragouda & Anr. v. Shekharagouda S.
Pittanagoudar (dead) by LRs. & Ors. , (2000) 10 SCC 617 and Kshitish Chandra Purkait v.
Santosh Kumar Purkait & Ors., (1997) 5 SCC 438
7
17. Furthermore, the application under Order XLI Rule 27 of the Code
was in respect of revenue documents in respect of Village Basai
Darapur. Admittedly, the appellants have no claim on any part of
the land of Village Basai Darapur. The appellants are asserting their
possession relating to Khasra No. 79 of Village Shakarpur. The
appellants have sought such revenue record in the additional
evidence as the same was not in their knowledge and that no issue
was also framed as to the correctness of the area of Khasra No. 238
of Village Basai Darapur. The plaintiffs have asserted their
possession and title over Khasra No. 238 of Village Basai Darapur
whereas defendant No. 4 averred that the land in dispute bears
Khasra No. 79 situated in Village Shakarpur, Delhi. It is to be noted
that Issue Nos. 3, 4 and 5 were related to ownership and
possession of Khasra No. 238 and whether the land in dispute
formed a part of Khasra No. 79 of Village Shakarpur. Therefore, the
entire argument that no issue was framed in respect of correctness
of area of Khasra No. 238 is untenable. The parties have
understood the case about the area of Khasra No. 238 falling in
Basai Darapur or in Khasra No. 79 of Village Shakarpur. Once the
parties have understood the said controversy and had adduced
evidence before the trial court, the appellant cannot be permitted
to produce additional evidence in the first appeal. Thus, the
additional documents cannot be permitted to be produced as they
are not relevant to the plea raised by the appellant.
18. The Land Revenue Act does not expressly bar the jurisdiction of the
8
Civil Court in respect of boundary disputes. The boundary disputes
are between two revenue estates and does not include the
demarcation of the land of the parties. Section 83 of the Land
Revenue Act bars the jurisdiction of the Civil Court in respect of :
(a) the arrangement of area of the patwaris; (b) claims by any
person to any of the offices mentioned in section 13 or 14 or to any
emolument or fees appertaining to such office, or in respect of any
injury caused by his exclusion therefrom, or claims by any person
to nominate persons to such offices; (c) the formation of the record
of rights or the preparation, signing, or attestation of any of the
documents contained therein, or the preparation of the annual
register. No such dispute arises for consideration in the present
matter.
19. Still further, the suit is simpliciter for injunction based upon
possession of the property. The said suit could be decided only by
the Civil Court as there is no mechanism prescribed under the Land
Revenue Act for grant of injunction in respect of disputes relating to
possession. The Civil Court has plenary jurisdiction to entertain all
disputes except in cases where the jurisdiction of the Civil Court is
either expressly or impliedly barred in terms of Section 9 of the
Code.
20. Since there is no implied or express bar of jurisdiction of the Civil
Court in terms of Section 9 of the Code, the Civil Court has plenary
jurisdiction to decide all disputes between the parties. The issue of
jurisdiction of the civil court has been considered by this Court in
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South Delhi Municipal Corporation & Anr. v. Today Homes
and Infrastructure Pvt. Ltd. etc.4 wherein this Court held as
under:
“11. Any person having a grievance that he had been
wronged or his right has been affected can approach a
civil court on the principle of ‘ ubi jus ibi remedium’ –
where there is a right, there is a remedy. As no internal
remedy had been provided in different statutes creating
rights or liabilities, the ordinary civil courts had to
examine the grievances in the light of those statutes.
With the advent of a ‘Welfare State’, it was realised that
enactments creating liabilities in respect of payment of
taxes, obligations after vesting of estates and conferring
rights on a class of citizens, should be complete codes
by themselves. With that object in view, forums were
created under the Acts themselves where grievances
could be entertained on behalf of the persons aggrieved
(Shiv Kumar Chadha v. Municipal Corporation of
Delhi, (1993) 3 SCC 161).
12. Wherever a right or liability, not pre-existing in
common law is created by a statute and that statute
itself provides a machinery for enforcement of such
right or liability, both the right/liability and the remedy
having been created uno flatu and a finality is intended
to the result of the statutory proceedings, then, even in
the absence of an exclusionary provision the jurisdiction
of the civil court is impliedly barred. ( Raja Ram Kumar
Bhargava (Dead) By LRs v. Union of India, (1988) 1 SCC
681).
13. We find that a liability for payment of tax is created
by the Delhi Municipal Corporation Act, 1957. Further, a
remedy by way of an appeal against an order of
assessment, before an appropriate forum or authority,
has been provided by the same statute.”
21. In view of the above, we find that the High Court did not commit
any illegality in not framing any substantial question of law while
dismissing the appeal filed by the appellants.
22. The argument of Mr. Mehta is that substantial question of law is
4 2019 SCC OnLine SC 1052
10
required to be framed by the High Court while deciding the second
appeal. We don’t find any merit in the argument. Section 100 of
the Code reads as under:
“100. Second appeal.—(1) Save as otherwise
expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie
to the High Court from every decree passed in appeal by
any Court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of
law involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of
the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if
it is satisfied that the case involves such question.”
23. Sub-section (1) of Section 100 of the Code contemplates that an
appeal shall lie to the High Court if it is satisfied that the case
involves a substantial question of law. The substantial question of
law is required to be precisely stated in the memorandum of
appeal. If the High Court is satisfied that such substantial question
of law is involved, it is required to formulate that question. The
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appeal has to be heard on the question so formulated. However,
the Court has the power to hear appeal on any other substantial
question of law on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the substantial
question of law framed by the appellants are found to be arising in
the case, only then the High Court is required to formulate the
same for consideration. If no such question arises, it is not
necessary for the High Court to frame any substantial question of
law. The formulation of substantial question of law or re-
formulation of the same in terms of the proviso arises only if there
are some questions of law and not in the absence of any
substantial question of law. The High Court is not obliged to frame
substantial question of law, in case, it finds no error in the findings
recorded by the First Appellate Court.
24. Still further, we find that none of the judgments referred to by the
learned counsel for the appellants mandate the High Court to
frame substantial questions of law while upholding the findings
recorded by the First Appellate Court. All the judgments referred to
by the learned counsel for the appellants except in Md.
Mohammad Ali are the judgments wherein the High Court has set
aside the findings of the First Appellate Court without framing
substantial questions of law. In Md. Mohammad Ali, this Court
found that the High Court erred in dismissing the appeal without
formulation of substantial question of law which arises for
consideration. This Court held as under:
12
“33. The proposition of law relating to ouster of a co-
sharer vis-à-vis adverse possession had been overlooked
by the High Court. There are also certain other aspects
of the matter which could not be overlooked and
probably would require closer examination by the High
Court.
34. The High Court while determining the question
should have formulated substantial questions of law in
terms of Section 100 of the Code of Civil Procedure,
1908. In absence of formulation of such substantial
questions of law, probably the High Court committed the
errors as pointed out hereinbefore.”
25. In a judgment reported as Ashok Rangnath Magar v. Shrikant
Govindrao Sangvikar5, this Court held that the second appeal
can be dismissed without even formulating the substantial question
of law. The Court held as under:
“18. In the light of the provision contained in Section
100 CPC and the ratio decided by this Court, we come to
the following conclusion:
(i) On the day when the second appeal is listed for
hearing on admission if the High Court is satisfied that
no substantial question of law is involved, it shall
dismiss the second appeal without even formulating the
substantial question of law;
(ii) In cases where the High Court after hearing the
appeal is satisfied that the substantial question of law is
involved, it shall formulate that question and then the
appeal shall be heard on those substantial question of
law, after giving notice and opportunity of hearing to the
respondent;
(iii) In no circumstances the High Court can reverse the
judgment of the trial court and the first appellate court
without formulating the substantial question of law and
complying with the mandatory requirements of Section
100 CPC.”
5 (2015) 16 SCC 763
13
26. In view of the above findings, we do not find any error in the
judgment and order of the High Court dismissing the Second
Appeal. The present appeal is thus dismissed. Pending
applications, if any, shall stand disposed of.
………………………………………J.
(L. NAGESWARA RAO)
………………………………………J.
(HEMANT GUPTA)
………………………………………J.
(AJAY RASTOGI)
NEW DELHI;
NOVEMBER 16, 2020.
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