B.K.SHARMA, J. - (1.) THIS Civil Reference is pursuant to the order dated 17.10.2001 passed by the learned Munsiff, Shillong in Title Suit No. 6 (H)/1988. The circumstances in which the reference has been made are as follows.
(2.) ONE Sri Swarmal Jhunjhunwalla filed a suit being T.S. No. 6 (H)/1988 in the Court of the learned Munsiff, Shillong for recovery of possession and permanent injunction. The suit was valued at Rs. 340/-. The relief sought for in the suit are as follows: "It is therefore prayed that Your Honour would be graciously pleased to pass and decree in favour of the plaintiff for: (1) declaring the plaintiff to be the owner of the plot of land upon which the defendant has illegally encroached upon trespassing therein at the eastern boundary of the plaintiff to the extent of 8 sq.ft. minimum along the 3 boundary; and (2) permanent injunction restraining the defendant, his agents, servants employees or any person or persons from interfering with the eastern boundary of the plaintiff's land in any manner and also direct mandatorily to vacate the land upon which the defendant has illegally encroached upon and over the land of the plaintiff; and (3) declaring that the defendant has no right what-so-ever or title or any interest upon the land as described in the Schedule 'B' of this plaint. (4) full costs of the suit; and (5) recovering the portion of the land as described in Schedule 'B' of this plaint by ousting the defendant from that portion of land belonging to the plaintiff measuring about 8 sq.ft. minimum; and (6) any other relief or reliefs to which the plaintiff is found legally and equitably entitled according to law." Pertaining to the injunction matter, the defendant Umesh Chand Gothia preferred an appeal being Misc. Civil Appeal No. 6 (H)/1988, in which the learned District Judge, Shillong passed the order dated 3.4.1993 transferring the entire matter to the learned Deputy Commissioner, Revenue for trial and disposal. The reason for such transfer of the proceeding to the revenue Authority was on the ground of the question involved being pertaining to the revenue plots of the parties and the agreement conveyed by the parties. When the matter was pending in the Court of Deputy Commissioner, Revenue, there was occasion for the plaintiff to approach this Court by filing a petition under Article 227 of the Constitution of the India which was registered and numbered as Civil Rule No. 132 (SH)/1997. The writ petition was filed, when the records of the title suit became untraceable. During the course of hearing of the writ petition, an argument was made on behalf of the plaintiff/petitioner that the Deputy Commissioner, Revenue had no jurisdiction to try the suit and that the jurisdiction was with the Civil Court. Such plea of the petitioner, although was noted but the issue involved in the writ petition being not pertaining to the same, no decision was given on the question of jurisdiction and the petitioner was granted liberty to challenge the order of the learned District Judge dated 3.4.1993.
(3.) ALTHOUGH no such challenge was made to the aforesaid order passed by the learned District Judge, the question of jurisdiction was raised before the Additional Deputy Commissioner, Revenue, before whom the suit was pending. The learned ADC by his order dated 18.11.1999 having held that the jurisdiction lies with the Civil Court, the case records were transferred to the learned Munsiff, Shillong. After the case records were received by the learned Munsiff, it was the turn of the defendant to raise objection regarding jurisdiction of the Civil Court contending interalia that having regard to the aforesaid order dated 3.4.1993 passed by the learned District Judge the matter is required to be tried by the Revenue Court. It was in such circumstances the learned Munsiff has made the aforesaid reference by his order dated 17.10.2001, relevant portion of which is quoted below: "I therefore deemed fit and proper to refer this matter relating to jurisdiction of the Court to try the suit. Accordingly as per the provision under Section 113 CPC, the jurisdiction matter is referred to the Hon'ble Gauhati High Court, Shillong Bench for its opinion, clarification and direction to this Court relating to the jurisdiction of the Court on the following questions. 1. Whether the "Trial Court" mentioned in the order dated 22.9.1997 passed by the Hon'ble Gauhati High Court, Shillong Bench, Shillong in Civil Rule No. 13 (SH) mean the Court of Munsiff or the Court of the Deputy Commissioner (Revenue) East Khasi Hills, Shillong? 2. Whether the Court of Deputy Commissioner (Revenue) East Khasi Hills District Shillong or the Court of the Munsiff has got the jurisdiction to try the instant suit namely the T.S. No. 6(H) of 1988 which is the Title suit for recover of a small portion of land (1 ft. x 8 ft.) of the plaintiff alleged to have been encroached by the defendant which pertains to Revenue Plot?" ;