JYOTISH CH. CHAKRAVARTY Vs. DWIP CHARAN NAMASUDRA AND ORS.
HIGH COURT OF GAUHATI
Jyotish Ch. Chakravarty
Dwip Charan Namasudra And Ors.
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T.C. Das, J. -
(1.)DEFENDANT No. 2 is the Appellant who has raised in this appeal a very pertinent point containing a substantial question of law. Mr. B.K. Acharyya, the learned Counsel who represents the Appellant has urged before me that though the Appellant lost in both the Court yet the learned Court below did not consider the vital aspect of the matter which goes to the root of the dispute and the right to sue by the Plaintiffs. The Respondent -Plaintiff Nos. 1 to 5 and the predecessor in interest of the Plaintiff -Respondent Nos. 6 to 8 were settled with a second class fishery in reaped of which a 30 years lease was granted by the Government. The fishery covered an area of 28 B. 4 K. 4 Ch. in pargana Kalain, Mouza Manipur Part 1 in the district of Cachar. The lease was granted in the year 1954. Before the expiry of the lease a portion of land covered by the said fishery was silted and the Deputy Commissioner declared the said land as waste land covering an area of 9B. 4 Ch. as described in Schedule -B of the plaint. Subsequently this land in Scheduled of the plaint was settled with the Appellant by the Deputy Commissioner. The Plaintiffs, therefore, brought an action in the Court of the Sadar Munsiff at Silchar with the following prayers:
(i) a decree may kindly be passed declaring the right title and interest of the Plaintiffs over schedule A of the plaint.
(ii) Possession of the Plaintiffs over schedule A be confirmed.
(iii) The order of making khas the area described in schedule B by the D.C. Cachar and the settlement of this area of schedule B by the A.S.O. of Katigora circle of Cachar District, be declared illegal, without jurisdiction and inoperative.
(iv) The cost of the suit may kindly be decreed in favour of the Plaintiffs against the Defendants.
(v) Any other relief or reliefs, the Plaintiffs may be entitled, be granted to the Plaintiffs
(2.)THE suit was contested by the Defendant -Appellant and by the State of Assam. The State of Assam in their written statement specifically pleaded that the suit was barred under the provision of Section 154 of Assam Land Revenue Regulation and also it was barred by limitation. The present Appellant (Defendant No. 2) also filed a separate written statement denying the allegations made in the plaint. It was pleaded by the Defendants that the Defendant No. 2 held the periodic patta after getting settlement of the land in Schedule -B of the plaint and possessed the land since the land was settled with Defendant No. 2. Two separate written statements were filed by Defendant Nos. 3 and 4 respectively. The Defendant No. 4 in the written statement specifically pleaded the bar of the institution of the suit in view of the provisions under Section 154 of the Assam Land Revenue Regulation. On the basis of the pleadings of the parties the following issues were struck by the learned trial Court:
1) Is there any cause of action for the suit?
2) Is the suit maintainable in its present form?
3) Is the suit barred under the provisions of Section 154 of the Assam Land Revenue Regulation?
4) Is the S/L identifiable?
5) Is the suit barred for non -compliance of the provisions of Section 80 Code of Civil Procedure?
6) Is the suit barred by limitation?
7) To what relief, if any, the Plaintiffs are entitled?
8) Is the patta in the names of Defendant No. 4 is liable to cancelled?
The learned trial Court, however, decided the vital issues in favour of the Plaintiffs and decreed the suit. Two separate appeals were filed before the learned Assistant District Judge No. 1 at Silchar. One appeal was preferred by Defendant No. 1 and the other by Defendant No. 2. Both the appeals were heard analogously and by the common judgment the appellate Court disposed of the appeals. The learned appellate Court did not interfere with the finding of the learned Munsiff and upheld the judgment and decree of the learned trial Court. The Defendant No. 2 has only preferred this Second Appeal against the said judgment of the learned appellate Court below.
Mr. S.K. Senapati, learned Counsel for the Respondents has raised a preliminary objection that this appeal is not maintainable in view of the provision of Section 11 of the Code of Civil Procedure. The sole ground of Mr. Senapati in raising the objection is that the State of Assam having not preferred any appeal against the impugned judgment the appeal filed by the Defendant No. 2 is barred by res judicata as because Defendant No. 2 is also bound by the impugned judgment which has been passed on the appeal preferred by State of Assam. This objection is absolutely meritless. The Defendant No. 2, the present Appellant has a right to prefer an appeal if his right is infringed by the impugned judgment of the Court below. The State of Assam might not have preferred an appeal but the Defendant No. 2 cannot be precluded from preferring the appeal if otherwise he is aggrieved by the impugned judgment. The provision of Section 11 of Code of Civil Procedure is not at all attracted in this regard. Therefore, the preliminary objection is overruled.
(3.)THE main argument of Mr. Acharyya, the learned Counsel for the Appellant centres round the decision of issue No. 4 with regard to the bar of the Civil Court to entertain such nature of a case in view of the provisions under Section 154 of the Assam Land and Revenue Regulation. The relevant portion of the provisions under Section 154 of the Assam Land and Revenue Regulation is quoted herein below as it requires to examine the position relating to the validity of the argument raised by him.
154(1) Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following:
(a) questions as to the validity or effect of any settlement, or as to whether the conditions of any settlement are still in force;
(b) questions as to the amount of revenue, tax, cess, or rate to be assessed; and the mode or principle of assessment;
(c) the formation of the record -of -rights, or the preparation, signing, or alteration of any document contained therein;
* * *
Section 154 of the Regulation contains several clauses and Sub -sections, but those are not necessary to be quoted for the disposal of this appeal. Clause of Section 154(1) of the Regulation provides that the Civil Court shall not exercise jurisdiction if the depute arise questioning as to the validity and effect of any settlement of the land. Clause (c) of Section 154(1) provides that the Civil Court shall not exercise jurisdiction concerning the formation of records of rights itself, preparation, signing or alteration of any documents contained therein.
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