Sukhdai v. Hariprasad Vishwakarma And Others

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 12 of 2010 Judgment reserved on 10/02/2021 Judgment delivered on 16/02/2021 Sukhdai D/o Paklu, Aged about 44 years, Caste Muriya, R/o Village Bade Marenga, Tahsil Jagdalpur, Distt. Bastar, Chhattisgarh.

---Appellant/Defendant No. 4

Versus

1.

(a). Hariprasad Vishwakarma S/o Late Bhagwat Prasad Vishwakarma, Aged about 45 years, R/o Village Marenga, Jagdalpur, Distt. Bastar, Chhattisgarh.

(b). Ram Sevak Vishwakarma, S/o Late Bhagwat Prasad Vishwakarma, Aged about 40 years, R/o Village Marenga, Jagdalpur, Distt. Bastar, Chhattisgarh.

Legal representatives of former plaintiff late Bhagwat Prasad.

--- LRs. of Plaintiff 2.

Sub Divisional Officer (Rev), Jagdalpur, Distt. Office, Jagdalpur, Chhattisgarh.

3.

State of Chhattisgarh, through Collector, Bastar, Jagdalpur, Chhattisgarh.

4.

Tahsildar, Jagdalpur, Distt.

Bastar, Chhattisgarh.

--- Respondents

For Appellant :- Mr. Rajesh Kumar Sharma and Mr. Vinod Tekam, Advocates For Respondents No. 1(a) and 1(b) :- Mr. Ratan Pusty, Advocate For Respondents No. 2 to 4/State :- Mr. Ravi Bhagat, Dy. G.A.

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment 1.

This second appeal preferred by the appellant/defendant No. 4 was admitted for hearing on 05/01/2021 by formulating the following two substantial questions of law :- "1. Whether the trial Court was justified in declaring the order dated 16/01/1992 passed by the Sub-divisional Officer, Jagdalpur as null and void ?

2. Whether the first appellate Court was justified in affirming the judgment and decree of the trial Court by recording a finding which is perverse and contrary to the record as the order dated 16/01/1992 was neither challenged by the plaintiff nor produced before the trial Court ?"

[The parties will hereinafter be referred to as per their status given and ranking shown before the trial Court.] 2.

The Naib Tahsildar, Jagdalpur / competent authority (Revenue) granted the bhoomiswami right/patta over the suit land in favour of the plaintiff on 15/03/1976 which was cancelled by

the Sub-divisional Officer, Jagdalpur by order dated 16/01/1992. Questioning the said order, plaintiff preferred a revision before the Commissioner, who by his order dated 08/08/1994 (Ex. P/4) affirmed the order of the Subdivisional Officer and thereby, dismissed the revision finding no merit, against which a civil suit was filed by the plaintiff before the trial Court on 22/03/2001 pleading that the suit land was granted to him by the Naib Tahsildar, Jagdalpur in bhoomiswami right and therefore, the order of the Sub-divisional Officer dated 16/01/1992 as well as the order dated 08/08/1994 passed by the Commissioner are null and void, which was opposed by defendant No. 4 in the written statement filed by him.

3. Learned trial Court, upon appreciation of oral and documentary evidence on record, decreed the suit of the plaintiff vide its judgment and decree dated 22/03/2005 holding that the order passed by the Sub-divisional Officer dated 16/01/1992 cancelling the patta in favour of the plaintiff and the revisional order passed by the Commissioner dated 08/08/1994 (Ex. P/4) are null and void.

4. On appeal being preferred by the appellant/defendant No. 4, learned first appellate Court vide its judgment and decree dated 20/11/2009 affirmed the judgment and decree passed by the trial Court and thereby dismissed the appeal against which this second appeal has been preferred by the appellant/defendant No. 4 in which two substantial questions of law have been framed and set out in the opening paragraph of the judgment.

5. Mr. Rajesh Kumar Sharma and Mr. Vinod Tekam, learned counsel for the appellant/defendant No. 4, would submit that both the Courts below are absolutely unjustified in decreeing the suit of the plaintiff and declaring the order dated 16/01/1992 passed by the Sub-divisional Officer as well as the order dated 08/08/1994 passed by the Commissioner as null and void by recording a finding which is perverse and contrary to the record as the order dated 16/01/1992 was neither produced nor challenged before the two Courts below by recording a finding which is perverse and contrary to the record, as such, the

judgment and decree passed by both the Courts below deserves to be set aside.

6. Mr. Ratan Pusty, learned counsel for the LRs. of plaintiff/respondents No. 1(a) and 1(b), would submit that though the order dated 16/01/1992 passed by the Sub-divisional Officer, Jagdalpur was neither produced but challenged before the two Courts below and against the said order of the Sub-divisional Officer, revision was preferred by the plaintiff which was dismissed by order dated 08/08/1994 passed by the Commissioner and the said order dated 08/08/1994 passed by the Commissioner has been produced and challenged before the trial Court and it has even been marked as Exhibit P/4 by the trial Court. He would also submit that the order dated 16/01/1992 passed by the Sub-divisional Officer was absolutely void, therefore, it has rightly been declared null and void by the two Courts below.

7. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

8. For the sake of convenience, substantial question of law No. 2 is taken up first for consideration.

Answer to substantial question of Law No. 2 :-

9. By order dated 16/01/1992, the patta granted over the suit land in favour of the plaintiff was cancelled by the Sub-divisional Officer, Jagdalpur. The said order was assailed by the plaintiff in revision before the Commissioner, Bastar, who by his order dated 08/08/1994 (Ex. P/4) dismissed the revision. The revisional order passed by the Commissioner has been challenged before the two Courts below and has been marked as Exhibit P/4. Even two issues were framed by the trial Court with regard to the order dated 16/01/1992 passed by the Subdivisional Officer as well as the order dated 08/08/1994 passed by the Commissioner and both of these orders were declared null and void. As such, the argument made by learned counsel for the appellant/defendant No. 4 that the order dated 16/01/1992 passed by the Sub-divisional Officer, Jagdalpur was not produced before the two Courts below therefore it could not have been declared as null and void is absolutely

wrong as it cannot be held that in absence of production of the order dated 16/01/1992 passed by the Sub-divisional Officer before the two Courts below has caused any prejudice to defendant No. 4 especially when the order dated 08/08/1994 (Ex. P/4) passed by the Commissioner affirming the order dated 16/01/1992 passed by the Sub-divisional Officer was produced and challenged before the two Courts below and it has been declared null and void. Thus, the substantial question of law No. 2 has been answered in favour of the plaintiff and against defendant No. 4.

Answer to substantial question of law No. 1 :-

10. The patta granted to the plaintiff in his bhoomiswami right by the Naib Tahsildar, Jagdalpur was revoked by the Sub-divisional Officer, Jagdalpur by order dated 16/01/1992 by exercising suo moto revisional jurisdiction which was challenged by the plaintiff before the Board of Revenue but the Board of Revenue affirmed the order of the Sub-divisional Officer by order dated 08/08/1994 (Ex. P/4). Though the order dated 16/01/1992 passed by the Subdivisional Officer was not produced before the

trial Court, but it is admitted position on record that plaintiff's patta was revoked by the Sub-divisional Officer by exercising suo moto revisional jurisdiction and the order dated 16/01/1992 has been filed before this court in an application under Order 41 Rule 27 of CPC. The said order dated 16/01/1992 passed by the Sub-divisional Officer is a public document as well as an admitted document and that order is not in dispute as it has been affirmed by the Commissioner vide order dated 08/08/1994 (Ex. P/4) which has been challenged by the plaintiff.

11. A careful perusal of the aforesaid order would show that on 26/01/1991, the Sub-divisional Officer, Jagdalpur took suo moto cognizance of the matter and registered suo moto revision No. 175/90-91 against the plaintiff and thereafter, on 16/01/1992, revoked the order passed by the Naib Tahsildar granting patta in favour of the plaintiff. For the sake of pleadings, it would be appropriate to notice the order dated 26/09/1991 and 16/01/1992 which state as under :- 26/9/91 शቦኍ भभागवत ्ቚसभाद पपितभा बृजलभाल सभा. बड़ቨमभारगभा कको गभाम - बड़ቨमभारगभा - तहसቦኍल जगदलपिपुर क़ቨ ख० नबर 216/25 मर

स़ቨ रकबभा 1.

62 एकड भूपम कबृपषि ह़ቨतपु/मकभान बभाडቦኍ ्ቚयकोजन ह़ቨतपु तहसቦኍलदभार/नभायब तहसቦኍलदभार क़ቨ रभाजस्व ्ቚकरण ्ቅमभाሯक 84/अ68/75-76 आद़ቨश पदनभाሯक - 15/3/76 दभारभा आबनपटित ककी गई ह जजसमर अपनयपमततभा पिभाय़ቨ जभाऩቨ क़ቨ कभारण स्वम़ቨव पिपुनरቦኍ्ቌण मर जलयभा जभातभा ह । 2/ ्ቚकरण पिनजቦኍब्ሾ पकयभा जभाव़ቨ । 3/ अनभाव़ቨदक कको कभारण दशभाቦኋऩቨ सभूचनभा जभारቦኍ हको । सहቦኍ/- अनपुपवभभागቦኍय अजधिकभारቦኍ (रभा) जगदलपिपुर XXX XXX XXX 16/1/92 ्ቚकरण स्वम़ቨव पनगरभानቦኍ मर जलयभा जभाकर पिनजቦኍब्ሾ पकयभा गयभा । अनभाव़ቨदक कको कभारण बतभाओ नकोपटिस जभारቦኍ ककी गई । अनभाव़ቨदक दभारभा जवभाब ्ቚस्तपुत । उसक़ቨ दभारभा अपिऩቨ जवभाब मर बतभायभा गयभा ह पक ्ቚभा्቎ भूपम पिर अनभाव़ቨदक मकभान बनभाकर पनवभास करतभा आ रहभा ह । अनभाव़ቨदक दभारभा अन्य पकसቦኍ व्यपሹኌ कको पव्ቅय नहीሻ पकयभा गयभा ह । अधिቦኍनस्थ न्यभायभालय क़ቨ ्ቚकभाश कभा अवलकोकन पकयभा गयभा । अधिቦኍनस्थ न्यभायभालय दभारभा ख० न० 216/1 ड जको पक छकोटि़ቨ कभा जनगल क़ቨ रूपि मर दजቦኋ ह कभा व्यवस्थभापिन पकयभा गयभा ह । हल्कभा पिटिवभारቦኍ दभारभा ्ቚपतव़ቨपदत पकयभा गयभा ह पक अनभाव़ቨदक भभागवत पपितभा बृजलभाल पवश्वकमभाቦኋ, जगदलपिपुर कभा पनवभासቦኍ ह तथभा गभाम बड़ቨमभारगभा मर उनक़ቨ नभाम पिर भूपम अपभल़ቨख मर दजቦኋ नहीሻ थभा । छकोटि़ቨ झभाड क़ቨ जनगल ककी भूपम कभा व्यवस्थभापिन क़ቨ आद़ቨश शभासन स़ቨ नहीሻ थ़ቨ । पिटिवभारቦኍ ्ቚपतव़ቨदन स़ቨ स्पि्ቖ ह पक अनभाव़ቨदक जगदलपिपुर कभा पनवभासቦኍ ह । अधिቦኍनस्थ न्यभायभालय दभारभा छकोटि़ቨ झभाड़ቨ क़ቨ जनगल ककी भूपम कभा व्यवस्थभापिन पकयभा गयभा ह, जको पक उसक़ቨ अजधिकभाररतभा क़ቨ बभाहर ह । छकोटि़ቨ झभाड ककी जनगल ककी भूपम क़ቨ व्यवस्थभापिन क़ቨ आद़ቨश चभूनपक शभासन स़ቨ नहीሻ थ़ቨ अतएव रभाजस्व पनरቦኍ्ቌक पनणቦኋय सपमपत दभारभा अधिቦኍनस्थ न्यभायभालय ्ቚ०्ቅ० 84/अ-68/7576 मर ख०न० 216/15 रकबभा 1.

12. It appears from the aforesaid order that the Sub-divisional Officer (Revenue), Jagdalpur has exercised suo moto revisional jurisdiction and revoked the order passed by the Naib Tahsildar granting patta in favour of the plaintiff, however, Section 50(i) of the Chhattisgarh Land Revenue Code, 1959 provides as under :- "50. Revision. - the Board or the Commissioner of the [Settlement Commissioner or the Collector or the Settlement Officer] may at any time on its/his motion or on the application made by any party for the purpose of satisfaying itself/himself as to legality or propriety of any order passed by or as to the regularity of the proceedings of any Revenue Officer subordinate to it/him call for, and examine the record of any case pending before, or disposed of by such officer, any may pass such order in reference thereto as it/he thinks fit:

Provided that - [(i) no application for revision shall be entertained- (a) against an order appealable under this Code;

(b) against an order of the Settlement Commissioner under Section 210;

(c) against an order passed in revision by the Commissioner or the Settlement Commissioner in respect of cases under Section 170-B, nor shall any such order be revised by the Board on its own motion];"

13. A careful reading of the aforesaid provision would show that the power of revision under the provisions of the Chhattisgarh Land Revenue Code has been conferred only upon the Board of

Revenue or the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer. No such power of revision has been conferred upon the Sub-divisional Officer (Revenue) and in view of that, both the trial Court as well as the first appellate Court have held that suo moto revisional jurisdiction could not have been exercised by the Sub-divisional Officer and accordingly proceeded to declare the order dated 16/01/1992 passed by the Subdivisional Officer as well as the order dated 08/08/1994 (Ex. P/4) passed by the Commissioner affirming the order of the Sub-divisional Officer as void.

As such, in view of Section 50(i) of the Chhattisgarh Land Revenue Code, the Sub-divisional Officer (revenue), Jagdalpur did not have the jurisdiction to exercise the power of suo moto revision and in that view of the matter, both the Courts below have rightly declared the order passed by the Sub-divisional Officer as void. I do not find any merit in the argument of learned counsel for the appellant/defendant No. 4 in this regard. Accordingly, substantial question of law No. 1 is also answered in favour of the plaintiff and against defendant No. 4.

14. As a fallout and consequence of the aforesaid legal discussion, the second appeal, being devoid of merits, deserves to be and is hereby dismissed.

15. Decree be drawn-up accordingly.

Decree be drawn-up accordingly.

Sd/- (Sanjay K. Agrawal) Judge Harneet