URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. & OTHERS

jurisdiction of a civil court is not completely ousted even though the statute may have created the liability and provided for a specific remedy to the person aggrieved.

42. In the light of aforesaid legal principle, the argument on behalf of the plaintiff-respondent is that, as notice contemplated under sub-section (2) of Section 52 of the 1959 Act was not given to the owner of the land prior to the acquisition notification, the notification would be void and, therefore, the Civil Court would have jurisdiction to grant appropriate relief by treating the same as void notwithstanding that there is no specific challenge to it.

43. In my view, the aforesaid submission is not acceptable for the following reasons: (a) there is no challenge to the jurisdictional power of the acquiring body to issue notification under Section 52(1) of the 1959 Act, therefore the notification is under the 1959 Act and not beyond the scope of the 1959 Act; (b) it is not the case of the plaintiff that pursuant to the sale-deeds qua the land in dispute, prior to the date of acquisition notification, plaintiff’s name was entered in the record of rights, yet no notice under Section 52(2) was served on him prior to the acquisition; (c) it is also not the case of the plaintiff that landowners/ Khatedars already recorded in the record of rights qua the land in dispute, were not served with notice as contemplated by sub-section (2) of Section 52 of the 1959 Act; and (d) there is a presumption that official acts have been regularly performed (see: Section 114 Illustration (e) of the Indian Evidence Act, 1872), therefore, once a notification under sub-section (1) of Section 52 was issued, by virtue of sub-section (4) of Section 52, in my view, a legal fiction with regard to the vesting of land in the State free from all encumbrances from the date of publication of the notification in the Official Gazette would come into play and it cannot be treated as void.

44Copy pinpoint44. Elaborating upon the above reasons, it may be noted that assuming the plaintiff and defendant nos. 2 to 4 had purchased a portion of the disputed

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 565 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

land, but if they do not get their names mutated in the record of rights, how would the State come to know of their ownership. Therefore, if the land is acquired after serving notice on the recorded owners, as is the case of the appellant, the State’s action in issuing notification under Section 52 (1), in my view, cannot be treated as void. More so, because the State had the power to acquire the land.

45Copy pinpoint45. It may also be noted that from the submissions made before us, it appears that proceedings for acquisition were initiated under Section 52(2) of the 1959 Act in the year 1972 and, thereafter, in the year 1974, notification under sub-section (1) of Section 52 was published. The plaintiff and defendant nos.2 to 4 neither claim that they were recorded in the record of rights prior to that, nor do they claim that none of the recorded owners was served with notice. Importantly, the plaintiff does not dispute publication of notification under sub-section (1) of Section 52 of the 1959 Act. In fact, plaintiff’s claim is that he along with defendant nos. 2 to 4 were owners of the land, pursuant to sale-deeds of the year 1970, yet they were not served notice, under sub-section (2) of Section 52, prior to the notification under sub-section (1) of Section 52 and, therefore, the notification, under sub- section (1) of Section 52, is illegal and void.

46Copy pinpoint46. In Ahuja Industries (supra), a somewhat similar claim under another land acquisition law was rejected. In that case, the appellant who filed the appeal before this Court had purchased a piece of land on 10.02.1993. However, the said land was not mutated in his name in the record of rights which continued to show the name of the person who had sold the land to the vendor of the appellant. Subsequently, the said land and surrounding lands were acquired vide notification dated 30.10.1997. The appellant questioned the acquisition, by claiming, inter alia, that no notice under Section 28(2) and 28(6) of the Karnataka Industrial Areas Development Act, 1966 was served on him and that such violation of principle of natural justice vitiated the acquisition proceedings. It was also argued that Sections 127, 128 and 129 of the Karnataka Land Revenue Act, 1964 cast an obligation on the Registering Officer to make a report to the revenue authority to enter his name in the record of rights and its failure to do so resulting in non-service of the notice on the appellant, depriving him of the opportunity to file his objections, should not act to his detriment or disadvantage.

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47Copy pinpoint47. Dealing with the above submissions, in Ahuja Industries (supra), upon finding that notices were issued to/served on the owners/occupants, or their representatives, as shown in the record of rights, and the appellant had not got his name mutated in the record of rights, this Court, after taking notice of earlier decisions, held: “12. This Court in Winky Dilawari v. Amritsar Improvement Trust [(1996) 11 SCC 644] has taken the view that failure to serve personal notices on the persons whose names have not been mutated in the official record-of-rights in pursuance of any sale in their favour does not vitiate the proceedings for acquisition. Similar view was taken in W.B. Housing Board v. Brijendra Prasad Gupta [(1997) 6 SCC 207] wherein this Court observed: (SCC p. 214, para 8): “It is no part of the duty of the Collector to make a roving inquiry into ownership of the persons. We are of the opinion that the requirements of the law were met when notices were served upon the recorded owners as per the record- of-rights. Again we do not think in a case like the present one, it is for the Collector to make enquiries from the registration office to find out if the land had since been sold by the recorded owners. In Winky Dilawari v. Amritsar Improvement Trust [(1996) 11 SCC 644], this Court observed that the public authorities were not expected to go on making enquiries in the Sub-Registrar’s office as to who would be the owner of the property. The Collector in the present case was thus justified in relying on the official record being the record-of-rights as to who were the owners of the land sought to be requisitioned and prudence did not require any further enquiry to be made. We are therefore of the view that notices were properly served under Section 3(2) of the Act on the owners of the land.”

13. It could be seen from the above order that service of notice on a person shown as owner or occupier in the record-of-rights is sufficient even though the said person had already sold the land prior to the said notification unless it is substantiated otherwise that the authorities concerned had knowledge of the rights or interest of any person other than those found recorded as owner/occupier in the revenue records. It is further held that the Collector is not obliged to make a roving enquiry about the ownership of the land. If the name of the purchaser

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 567 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

is not yet entered in the record-of-rights then non-service on such a person does not vitiate the acquisition proceedings. Admittedly, the appellant had not got his name entered in the revenue records as owner or occupant of the said land and therefore he could not complain about non-service of notice on him nor about the failure to grant a hearing to him. Contention that as per provision of the Land Revenue Act there was no obligation on his part to either inform the Revenue Authorities about the sale in his favour or to request them to transfer the katha in his name cannot stand as it has not been brought on record with reference to any pleadings with supporting documents that in fact the appellant had made payment for making the necessary entries in the record-of-rights and the register in his name at the time of registration of the sale deed in his favour. This apart, failure to make entries on the part of the Revenue Authorities by itself would not cast any obligation on the authorities under the Act to make a roving enquiry and try to locate an owner who may have subsequently purchased the land from the previous owner. Failure on the part of the Revenue Authority to make entry in the register of mutation in favour of the subsequent owner would not render the acquisition proceedings bad in law on account of non-issuance of notice inviting objections to the acquisition proceedings or service thereof.” (Emphasis supplied)

48Copy pinpoint48. Having noticed the decision in Ahuja Industries (supra), in my view, the legal position that emerges is, that if the name of the owner is not entered in the record of rights pertaining to the land proposed to be acquired, there is no legal obligation on the state authorities to make a roving enquiry to find out as to who its actual owner is for effecting service of notice upon him prior to issuance of the acquisition notification. In such circumstances, there would be sufficient compliance of the statutory obligation of serving notice on the owner if the notice is served on the owners entered in the record of rights, unless it is specifically proved that the real owners, other than owners entered in the record of rights, were known to the revenue authorities.

49Copy pinpoint49. In the instant case, the plaintiff’s case is not that his name was mutated in the record of rights, rather his case is that the district

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administration was aware of his title to the land because they had issued NOC for conversion of that agricultural land to non-agricultural land. To test the correctness of the aforesaid claim, I have perused the amended plaint. The relevant averments to that effect are in paragraph 1 (b) of the amended plaint. A careful reading of the same would indicate that the plea of the plaintiff was that he sought conversion of one bigha, out of three bighas of the disputed land, for non-agricultural use and, in connection therewith, a favorable report was given by the Patwari resulting in issuance of an NOC by the District Magistrate for non-agricultural use of one bigha land. However, there is no averment in the plaint that sale- deeds of the entire disputed land were produced by the plaintiff before the officers of the State /administration at the time of seeking NOC. In these circumstances, in my view, a constructive notice of the sale-deeds cannot be imputed on the State. I, therefore, reject the argument that by issuing NOC for non-agricultural use of one bigha of the disputed land, the State acquired knowledge regarding plaintiff’s title in respect of the entire land comprising 3 bighas.

50Copy pinpoint50. Even assuming that by issuing NOC the State got knowledge about plaintiff’s title, it could at best be in respect of that one bigha land which was converted for non-agricultural use. But that would not be material for deciding this appeal because the appellant has already given up its claim qua that portion of land in the amended written statement. In fact, the trial court has already passed a decree in favour of the plaintiff in respect of that portion which has attained finality. Thus, that one bigha of land is not the subject matter of the current appeal.

51Copy pinpoint51. In light of the discussion above, in my view, once there is no dispute that a notification regarding acquisition of the land was issued and duly published under sub-section (1) of section 52 of the 1959 Act, a presumption would arise under illustration (e) of Section 114 of the Indian Evidence Act, 1872 that the notification was in conformity with the provisions of the 1959 Act. This presumption, in my view, has not been dislodged by the plaintiff, as there is no specific plea in respect of: (a) lack of power/authority of the person issuing the notification; and (b) the procedure prescribed being not followed in its entirety. No doubt, there is a plea that notice as contemplated under sub-section (2) of Section 52 of

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 569 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

the 1959 Act was not served upon the plaintiff prior to the notification but there is no plea that no notice at all was issued to and served on any of the persons recorded as owners in the record of rights. Therefore, once it is established that the plaintiff was not recorded as the owner in the record of rights on the date of issuance of the notification for acquisition of the land, taking into account the law laid down in Ahuja Industries (supra), I’m of the view that mere non-service of notice, under Section 52 (2) of the 1959 Act, upon non-recorded owner, such as the plaintiff, would not render the acquisition notification under Section 52(1) void. Thus, the Civil Court could not have treated the notification under Section 52 (1) of the 1959 Act as void. Issue no.(i) is decided accordingly. Issue No.(ii) – Whether in respect of the land covered by acquisition notification, the suit of the plaintiff for injunction simpliciter, without seeking a declaration and, that too, without impleading the State as defendant, maintainable?

52Copy pinpoint52. As I have held that the acquisition notification could not have been disregarded as void, the question that would now arise for consideration is whether the suit of the plaintiff for injunction simpliciter, without seeking a declaratory relief, would be maintainable in a Civil Court.

53Copy pinpoint53. At this stage, at the cost of repetition, it may be observed that initially the suit was instituted for injunction to restrain the Trust (i.e., the defendant no.1- appellant) from taking possession of the land without following due process of law. When, in the written statement, the appellant took a specific plea that the land had already been acquired and compensation was paid, the plaint was amended stating therein that during pendency of the suit possession was taken and, therefore, a direction be issued upon the Trust to restore possession. Despite knowledge of appellant’s case that land has been acquired, no declaratory relief, either to declare the notification invalid or to declare plaintiff as the owner, was sought, despite the legal position that under sub-section (4) of Section 52 of the 1959 from the date of publication of notification under sub-section (1) of Section 52 of the 1959 Act the land would vest in the State free from all encumbrances.

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54Copy pinpoint54. In Anathula Sudhakar v. P. Buchi Reddy24, this Court had the occasion to lay down general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/ or possession with injunction as a consequential relief. The relevant portion of that judgment is extracted below: “13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff’s title raises a cloud on the title of the plaintiff to the property.

24 (2008) 4 SCC 594

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A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.” (Emphasis supplied)

55Copy pinpoint55. In the instant case, the stand of defendant no.1 (i.e., the appellant herein) was categorical that the land in dispute had already been acquired. Therefore, in light of the provisions of Section 52(4) of the 1959 Act, a cloud existed over the title of the plaintiff. Further, during pendency of the suit, plaintiff admitted that possession was also taken. In these circumstances, in the light of the law laid down by this Court in Anathula Sudhakar (supra), without seeking a declaratory relief qua the validity of the acquisition notification, mere suit for injunction, in my view, was not maintainable.

56Copy pinpoint56. In addition to what has been discussed above, there are multiple decisions to the effect that the validity of an acquisition notification, acquiring land under compulsory land acquisition laws for public purpose, cannot ordinarily be questioned in a Civil Court, though its validity may be questioned before a superior court by invoking its powers under the

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Constitution of India. In State of Bihar v. Dhirendra Kumar and others25, a notification under Section 4(1) of the 1894 Act was published on 13.02.1957 acquiring the disputed land along with other lands for public purpose. The declaration under Section 6 was published on 27.03.1957 and possession of the land was taken on 22.03.1957. Several encroachments were made on that land. When steps were taken to have the encroachers evicted, a suit came to be instituted. In that suit, an application seeking temporary injunction under Order 39 Rule 1 of C.P.C. was filed. The trial court found that there existed a triable issue and thereby granted injunction restraining the defendants from dispossessing the plaintiff till the disposal of the suit. Against the order of the trial court, the matter went to the High Court. The High Court modified the temporary injunction and directed status quo. Thereafter, the matter travelled to this Court. The question that arose for consideration by this Court was whether a civil suit would be maintainable and whether ad-interim injunction could be issued where proceedings under the 1894 Act were taken pursuant to a notice issued under Section 9 of the 1894 Act. Dealing with the said question, it was held: “3. … The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The state is enjoined to comply with statutory requirements contained in s.4 and s.6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration under s.6, the public purpose gets crystalised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11A now prescribes limitation to make the award within 2 years from the last of date of publication envisaged under s.6 of the Act. In an appropriate case, where the Govt. needs possession of the land urgently, it would exercise the power under s.17(4) of the Act and dispense with the enquiry under

25 (1995) 4 SCC 229

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 573 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

s.5-A. Thereon, the State is entitled to issue notice to the parties under s.9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under s.12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under s.9 of CPC stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under s.4 and declaration under s.6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So, the order of injunction was without jurisdiction.” (Emphasis supplied)

57Copy pinpoint57. In Laxmi Chand v. Gram Panchayat, Kararia26, validity of the acquisition and of the award was challenged by instituting a civil suit for a declaration that the land could not be acquired. In that suit, a preliminary issue was framed regarding maintainability of the suit. The trial court held that the suit was not maintainable. The judgment of the trial court was affirmed. The matter came before this Court. The contention raised on behalf of the petitioner before this Court was that once the acquisition proceedings were dropped by the Land Acquisition Officer, he had no jurisdiction or power to reopen the same and to make the award under Section 11 of the 1894 Act. It was argued that the award is squarely illegal for want of jurisdiction. After noticing the facts, this Court held: “2. … It is seen that Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special

26 (1996) 7 SCC 218

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procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under Section 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.

3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts, viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court.” (Emphasis supplied)

58Copy pinpoint58. Following the above two decisions (i.e., State of Bihar v Dhirendra Kumar and Laxmi Chand v. Gram Panchayat), in Commissioner, Bangalore Development Authority and another v. Brijesh Reddy and another (supra), it was held: “18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 575 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power.”

59Copy pinpoint59. Reverting to the present case, the acquisition is for a public purpose, namely, development of land for residential colony and, by virtue of sub-section (4) of Section 52 of the 1959 Act, the land stood vested in the State free from all encumbrances with effect from the date of publication of the notification. Once that is the position, in the light of discussion above, and applying the law laid down by this Court in State of Bihar v. Dhirendra Kumar (supra); Laxmi Chand v. Gram Panchayat (supra); and Commissioner, Bangalore Development Authority and another v. Brijesh Reddy and another (supra), I am of the considered view that in respect of land covered by the acquisition notification, the suit as framed was not maintainable.

60Copy pinpoint60. Otherwise also, there was another patent defect in the plaint as the State was not impleaded as defendant in the suit. The State was a necessary party because all the steps taken for acquisition of land under sub-section (1) of Section 52 of the 1959 Act were taken by it. And, by virtue of sub-section (4) of Section 52 of the 1959 Act, the land vested in the State. Therefore, when a collateral attack to the validity of the acquisition was launched by the plaintiff, by alleging that necessary steps for a lawful acquisition were not taken, it was the State which could have effectively disclosed whether all the necessary steps required for a valid acquisition of the land were taken or not. In this view of the matter, in my opinion, the suit was also bad for non-joinder of necessary party.

61Copy pinpoint61. In my view, the suit in question is a classic example of clever drafting where to avoid crucial issues, such as the bar of limitation and response from the State, firstly, no declaration in respect of the acquisition notification was sought and, secondly, the State, which issued the acquisition notification and in whom the title of the land vested by a deeming fiction,

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was not impleaded as a party. Such clever drafting to avoid critical issues have been deprecated time and again by this Court as it amounts to an unfair practice.

62Copy pinpoint62. In T. Arivandandam v. T.V. Satpal and another27 cautioning the Courts to be mindful of the craft of creating an illusion of a cause of action for instituting the suit, it was observed: “5…………..The learned Munsif must remember that if on a meaningful -not formal- reading of plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created an illusion of a cause of action, nip it in the bud at the first hearing ……….” (Emphasis supplied)

63Copy pinpoint63. The necessity to implead the State in a suit where an issue is raised qua vesting of surplus land in the State, under the ceiling laws, for failure to take possession before enforcement of the Repeal Act of 1999, has been highlighted by this Court in Shri Saurav Jain & Another Vs. M/s A.B.P. Design & Another (Civil Appeal No.4448 of 2021, arising out of SLP (C) No.29868 of 2018, decided on 05.08.2021) 28 by observing: “36…….The High Court held that no material was forthcoming on whether actual and physical possession was taken by the Competent Authority from the land owner and it held that in the absence thereof, the first respondent, as the purchaser from Zahid Hussain, would continue to have a valid title. The High Court has entered these findings despite the fact that by a process of engineered drafting, the first respondent sought no reliefs in regard to the proceedings under the ULCRA (to obviate bar to the maintainability of the suit) and did not implead either the State or the Competent authority who would have been in a position to answer the challenge.” (Emphasis supplied)

27 (1977) 4 SCC 467 28 LL 2021 SC 354

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64Copy pinpoint64. No doubt, in the instant case, the land was transferred by the State to the Trust after acquisition, and the Trust was a party in the suit. But it was the State which had acquired the land for the benefit of the Trust and by virtue of Section 52 (4) of the 1959 Act the land vested in the State pursuant to the notification issued by it under Section 52(1). Therefore, in my view, when the relief of injunction was dependent on validity of the acquisition notification, the State was a necessary party as it alone could have appropriately produced all the records about the steps taken for acquisition of the land. Institution of the suit without challenging the acquisition notification and without impleading the State is a clever ploy to avoid crucial questions. Such an exercise is akin to approaching the Court with unclean hands. This alone, in my view, as also observed by the trial court, disentitles the plaintiff to obtain discretionary relief of injunction. Thus, in my considered view, in respect of the land covered by the acquisition notification, the Suit as framed was not maintainable, not only for not seeking a declaratory relief but also for not impleading the State as a party. The issue no. (ii) is decided accordingly. Issue no.(iii)-- Whether the civil suit of the plaintiff was barred by section 207 (2) of the Rajasthan Tenancy Act?

65Copy pinpoint65. To appropriately address the issue as to whether the suit in the Civil Court was barred by Section 207 (2) of the 1955 Act, it would be useful to examine the scheme of the 1955 Act as also whether the reliefs claimed in the suit were within the scope of the reliefs which could be sought for under the 1955 Act.

66Copy pinpoint66. The preamble of the 1955 Act provides that it is an Act to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith.

67Copy pinpoint67. Section 5(24) of the 1955 Act defines “land” as “land” shall mean land which is let or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage including land occupied by houses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing Singhara or other similar produce but excluding abadi land; it shall include benefits to

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arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.

68Copy pinpoint68. In the instant case, there exists no dispute between the parties that for conversion of one bigha, out of 3 bighas of the land in dispute, from agricultural to non-agricultural use, application was given, and conversion was made after charging conversion fee, etc. This fact clearly demonstrates that the land in dispute was agricultural land and was recorded as such in the Jamabandi (i.e., record of rights). In so far as that one bigha of land, which was converted to non-agricultural use, is concerned, no dispute survives as the appellant gave up its claim to it and the trial court passed a decree in respect thereof, which has attained finality. The dispute which survives is confined to that 2 bighas of the disputed land, which remained agricultural land.

69Copy pinpoint69. Section 207 of the 1955 Act provides: “207. Suits and applications cognizable by revenue court only— (1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Explanation — If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted.”

70Copy pinpoint70. Section 256 of the 1955 Act reads: “S.256. Bar to jurisdiction of civil courts. – (1) Save as otherwise provided specifically by or under this Act, no suit or proceeding shall lie in any civil court with respect to any matter arising under this Act or the rules made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein.

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(2) Save as aforesaid no order by the State Government or by any revenue court or officer in exercise of the powers conferred by this Act or the rules made thereunder shall be liable to be questioned in any civil court.”

71Copy pinpoint71. In Pyarelal v. Shubhendra Pilania29 this Court, by relying on earlier decision of this Court in Bank of Baroda v. Moti Bai30, held that Section 207 read with Section 256 of the 1955 Act bars the jurisdiction of the civil courts in respect of suits and applications of the nature specified in the Third Schedule of the 1955 Act.

72Copy pinpoint72. The Third Schedule of the 1955 Act, gives a list of suits, applications and appeals which could be maintained under the Act. Entry 8A provides that a suit for injunction could be filed before the Court of Assistant Collector within a period of three years from the date the cause of action arises. Entry 23-C provides that a suit for perpetual injunction can be filed before the Court of Assistant Collector within a period of three years from the date the cause of action arises. Entry 5 provides that a suit for declaration of the plaintiff’s right as a tenant, or as a tenant of Khudkasht, or as a sub-tenant, or for a share in a joint tenancy are also to be filed in the Court of Assistant Collector. Similarly, suit for declaration of tenancy rights or for recovery of possession or for ejectment of trespassers can be filed under Sections 89, 187 and 183 respectively, vide entries 6, 23 and 23-A respectively in the Third Schedule.

73Copy pinpoint73. Once it is established that two bighas out of three bighas of the land in dispute was agricultural land and as such fell within the purview of the 1955 Act, in my view, though the revenue court may not have had the jurisdiction to annul the notification acquiring the land, which, in any case, was not sought for by the plaintiff, the suit for injunction was maintainable before the Revenue Court by virtue of Entries 8A and 23-C read with Entries 5, 6, 23 and 23A of the Third Schedule of the 1955 Act. Thus, the Suit before the Civil Court was barred by Section 207 read with Section 256 of the 1955 Act. Issue no.(iii) is decided accordingly.

29 (2019) 3 SCC 692 30 (1985) 1 SCC 475

p. 580 Copy page pinpoint

Conclusion

74Copy pinpoint74. As I have found the suit not maintainable insofar as it related to the land covered by the acquisition notification and also barred by Section 207 read with Section 256 of the Rajasthan Tenancy Act, 1955, the defendant’s appeal is entitled to be allowed and is hereby allowed. The judgment and decree of the High Court as well as of the First Appellate Court are set aside and the decree passed by the Trial Court is restored.

ORDER In view of the difference of opinions and the distinguishing judgments (Justice Hrishikesh Roy dismissing the appeal and Justice Manoj Misra allowing the appeal), the Registry is directed to place the matter before Hon’ble the Chief Justice of India for referring the matter to a larger Bench.

Headnotes prepared by: Matter to be placed before Hon’ble CJI Nidhi Jain for referring the matter to larger Bench.