TaxTMI 
TaxTMI 
1986 (12) TMI 382
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....ppeal No. 36 of 1977(R) (Paritosh Maity v. Ghasiram Maity). The plaintiff-respondent had instituted a suit for declaration of title and confirmation of possession and for a permanent injunction with respect to a portion of land in Revenue Khata No. 105, Plots Nos. 347 and 361, which had been recorded in the recent survey Plot No. 1153, the area being 0. 25 acre and 0. 17 acre, respectively, in Mouza Chalunia, Police Station Chakulia, District Singhbhum. It was the claim that the entries in the revenue records with regard to the aforesaid plots had been wrongly recorded in the Anand Khata of Bihar Sarkar, though the State of Bihar had no manner of title and interest therein, and, as a matter of fact, these plots belonged to the plaintiff, as he was in peaceful possession thereof. The suit was contested on behalf of the defendants, and, on the pleadings of the parties, as many as 8 issues were framed, including Issue No. 1 with regard to the very maintainability of the suit as framed. It would appear that, during the course of trial, Issue No. 1 was not seriously pressed and no patent defect with regard to the frame of the suit was pointed out by the defendants and the same was decid....
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.... the plaintiff, if aggrieved by the entry in the record of rights, as appears from Ext. E, ought to have filed a suit under Section 87(1)(ee) of the Act. In our opinion, the suit, therefore, was not maintainable." 6. On behalf of the plaintiff-respondent challenge is laid to both the correctness of the stand and the decision relied upon. Particular reliance on his behalf was placed on the earlier Division Bench decision in Gobardhan Sahu v. Lal Mohan Kharwar, (AIR 1936 Pat 611) (supra). 7. Inevitably, the meaningful issue herein turns on the relevant statutory provisions and more pointedly on the changes brought about in the Act by the Chotanagpur Tenancy (Amendment) Act, 1920 (Bihar and Orissa Act 6 of 1920). It is, therefore, not only necessary to refer to the Act, but indeed it is apt to notice the relevant part of the provisions in extenso at the very outset, for facility of reference. "84. Presumptions as to final publication and correctness of record-of-rights : (1) XXX XX (2) The State Government may by notification, declare, with regard to any specified area, that a record-of-rights has been finally published for every village included in th....
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.... of this Act relating to appeal, be final." "258. Bar to suits in certain cases.-- Save as expressly provided in this Act, no suit shall be entertained in any Court to vary, modify or set aside either directly or indirectly, any decision, order or decree of any Deputy Commissioner or Revenue Officer in any suit, application, or proceeding under Section 29, Section 32, Section 42. Section 46 Sub-section (4), Section 49, Section 50, Section 54, Section 61, Section 63, Section 65, Section 73, Section 74-A, Section 75, Section 85, Section 86, Section 8J, Section 89 or Section 91 (proviso), or under Chap. XIII, XIV, XV, XVI or XVIII, except on the ground of fraud or want of jurisdiction, and every such decision, order or decree shall have the force and effect of a decree of a Civil Court in a suit between the parties and subject to the provisions of this Act relating to appeal shall be final." 8. It appears to me that the true, construction of the aforesaid provisions is rooted in the legislative history and can be well construed in that perspective background. The larger purpose and import of the Act has been very elaborately discussed in the recent Full Bench decision in B....
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....87 (and otherwise also with regard to Clauses to (f)) a second appeal to the High court from any decision in the first appeal by a Revenue Officer was provided as if such decision was an appellate decree passed by the Judicial Commissioner under Chap. XVI. This was indeed a significant provision which brought the Revenue Officers and the Courts directly under the aegis and adjudication of the High Court itself in second appeal. Reference is again called for to Section 258 and what meets the eye is the fact that it does not place a blanket bar on the jurisdiction of the Civil Court but, as its title indicates, merely puts a bar to suits in certain cases. The Amending Act broadened the base of Section 258 by extending it to any decision of any Deputy Commissioner or Revenue Officer in any suit, and extended it to applications as well and further provided that all such decisions, orders or decrees shall have the force and effect of a decree of a Civil Court in a suit between the parties and subject to the provisions of this Act relating to appeals. 10. Against the aforesaid legislative background, one may now revert to the wholly well known provisions of Section 9, Civil P.C., the ....
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....ing the exclusion of the jurisdiction of the Civil Court in the present case has to be examined with reference to the provisions of the Act. 12. Inevitably one must first turn to Section 87 which is the most relevant provision of law for the decision of the question involved. Sub-section (1) thereof undoubtedly permits a suit to be instituted before a Revenue Officer within the narrow period of limitation of three months from the date of the certificate of final publication of the record of rights, for deciding any dispute regarding any entry which a Revenue Officer has made or omitted from such records. The provision further clarifies that such a suit would lie whether such dispute be with regard to the wide ranging matters specified in Clauses (a) to (f) and including the newly inserted Clause (ee). What, however, is very significant and first meets the eye is the fact that though S, 87 provides for a suit of the aforesaid nature, it does not even remotely say that a suit for declaration of title and confirmation of possession or recovery of possession cannot be entertained by any Civil Court. It is manifest that there is no express bar whatsoever and indeed not even a hint of....
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....o appeal, be final." It will be somewhat plain from the aforequoted provision that the Legislature in this very statute was well aware of the language to be employed where its intent was to exclude the jurisdiction of other Courts. No such language has been even remotely used in Section 87. Without labouring the point any further it can, perhaps, be unhesitatingly said that Section 87 which is the material provision for consideration does not spell out any express or implied bar of the jurisdiction of the Civil Court. 14. The matter may also be viewed from another refreshing angle. It is common ground that prior to the Amending Act of 1920, Section 87(1) existed with Clauses (a) to (f) thereof. The provision thus permitted a suit before the Revenue Officers disputing the entry or the omission thereof even though such a dispute fell within the wide ranging ambit of the aforesaid clauses. However, no authority was cited before us that under the unamended provision a suit in the Civil Court would have been barred in this wide ranging field even though no suit before the Revenue Officer was preferred within the limitation of three months from the date of the certificate of the fi....
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....d Orissa Co-operative Societies Act, or of Section 139-A of this very Act itself. It is true that it bars the jurisdiction of any other Court including a Civil Court, to entertain a suit but such a prohibition is limited only to a suit either to vary, modify or set aside directly or indirectly any decision, order or decree of any Deputy Commissioner or Revenue Officer in a suit or application or proceeding under the sections mentioned therein including Section 87. Thus, the pre-condition for the applicability of Section 258 is the existence of an earlier order or decree of a Revenue Officer or Deputy Commissioner in a prior proceeding. From a perusal of this section it is manifest that if earlier any decision has been made by a Revenue Court in any suit under Section 87, then only the other Courts or the Civil Court have no jurisdiction to entertain any suit either to vary, modify or set aside the decision, It also makes it clear that the aforesaid decision or order will have the force or effect of a decree of a Civil Court in a suit between the parties, However, if there is no order or decision under the sections specified in Section 258 including therein Section 87, the jurisdict....
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....f rights. However, if such a remedy is availed of by the parties then the statute now provides an appeal and even a second appeal to the High Court itself in the very forum of Sub-section (2), Section 87 which inevitably would achieve finality. Thus, if actual resort has been made to a suit under Section 87 then for an identical lis Section 258 would bar a further resort to the Civil Courts except on the grounds of fraud or want of jurisdiction. Obviously enough, to bring in even this limited bar, the lis would have to be identical. However, as already noticed and it bears repetition that if no resort has been earlier made to a suit under Section 87 by the parties, the very precondition for the application of Section 258 would be absent and it cannot come into play in such a situation. 17. Inevitably, one must now turn to precedent as well Learned counsel for the parties advocating against the existence of any bar to the civil jurisdiction have rightly placed reliance on: AIR 1971 SC 681, (Dayaram v. Dawalat Shah);, (Jyotish Thakur v. Tarakant Jha);: AIR 1963 SC 361, (Raja Durga Singh v. Tholu);, (Guru Charan Singh v. Kamla Singh);: AIR 1966 SC 1718, (Abdul Waheed Khan v. Bhawan....
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.... time within three months from the date of the certificate of the final publication of record of rights for the decision of any dispute regarding any entry when such dispute, inter alia, be as to the question relating to the title in land or to any interest in land as between the parties to the suit. The dispute between the parties, therefore, was a question relating to the title in land. Since a forum has been created under the Act for deciding such disputes, the plaintiffs, if aggrieved by the entry in the record of rights as appears from Ext. E, ought to have filed a suit under Section 87(1)(ee) of the Act. In our opinion, the suit, therefore, was not maintainable." 20. A close perusal of the judgment would indicate that the counsel were somewhat remiss in not bringing to the notice of the Bench all the relevant provisions of the Act. Equally the earlier Division Bench judgment in Gobardhan Sahu v. Lal Mohan Kharwar, (supra) was not cited. Even otherwise the issue does not seem to have been well debated and the various considerations discussed in the earlier part of the judgment were apparently not canvassed. With the deepest deference to the learned Judges, it seems to me, t....