2007(2) ALL MR 599
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

Shri. Rajendra S/O. Sheshrao Shendge Vs. Smt. Shobhatai W/O. Shrirao Ravate & Anr.

Writ Petition No.3312 of 2006

16th January, 2007

Petitioner Counsel: Mr. N. S. BHATTAD
Respondent Counsel: Mr. K. S. NARWADE

Civil P.C. (1908), S.9 - Mamlatdar's Courts Act (1906) , S.5 - Suit for removal of encroachment - Jurisdiction of Civil Court - Exclusion and bar of jurisdiction - Cannot be read or inferred just for the sake of asking - Existence of jurisdiction has to be presumed and not the bar - Mamlatdars' Courts Act presupposes and recognizes existence and continuation of powers and jurisdiction of Civil Court.

Mamlatdars' Courts Act presupposes and recognizes existence and continuation of powers and jurisdiction of Civil Court. The scheme provides for a summary jurisdiction and powers and a bar of suit to make orders of Mamlatdars or Collector etc., to be immune from scrutiny in a Civil Suit. [Para 11]

The Court cannot forget the wide compass of Section 9 of Civil Procedure Code. Exclusion and bar of jurisdiction cannot be read or inferred just for the sake of asking in the manner in which present petitioner wants. Existence of jurisdiction has to be presumed and not the bar. The manner and persuasion with which the petition has been pressed reveals an attempt to oust the plaintiff at the very threshold. This effort reveals to be an exercise of vexatious nature than effort of urging a legally available plea. The ingenuity has been used to delay the proceedings and consequently to enjoy the encroached land. [Para 13,14]

JUDGMENT

JUDGMENT :- Rule.

2. Rule is made returnable forthwith by consent of parties. Service on respondent no.2 is dispensed with.

3. Respondent no.1 herein filed a suit titled as :-

uoebe : ^Ëlbeor |Èexvr beorèÈe Ñälec?ern DËléc²e ksns½Èe Ñälpcrvr¢e ^ÓÈ

(quoted from page 8 of the Paper-book of Writ Petition).

4. The Defendant No.1 - present petitioner did not file Written Statement, however, filed application (Exh.23) with following pleas and prayers :-

"1) The suit is filed by the plaintiff for removal of encroachment over suit field and thereafter for possession in favour of plaintiff. The suit property is an agricultural land described in the plaint.

2) .......The suit is therefore squarely covered under Article 137 of the Limitation Act, which provides three years limitation which commenced when the right to apply accrues in the present suit, right to apply as alleged in para 5 of suit arose on 19-7-1999 while the suit is filed on 25-10-2002 which is apparently beyond the period of three year as provided under Article 137 of the Limitation Act. The suit is barred by law, as such this Hon'ble Court had no jurisdiction to adjudicate upon the same.

3) The plaintiff in the present suit has sought decree for removal of encroachment and possession of suit property which is an agricultural land. It is submitted that the Mamlatdars Court Act, 1986, which is special matter in the suit. The Mamlatdars Court Act gives powers u/s.5 of the said Act, to Mamlatdar Court to adjudicate all disputes as specified thereunder.

The Mamalatdar's Court Act, 1906 being special enactment, the right to adjudicate dispute under common law is barred. The present suit is admittedly filed. The present suit is admittedly filed under common law. The issue involved in the suit is within exclusive jurisdiction of Mamlatdar's Court Act this Hon'ble Court had no jurisdiction to try and adjudicate the suit.

PRAYER :

.......

i) Frame preliminary issue, regarding tenability of suit.

ii) Dismiss the suit, as not maintainable and within jurisdiction of this Hon'ble Court."

(quoted from pages 12, 13 and 14 of the Paper-book of Writ Petition).

5. This application (Exh.23) was opposed. Learned Civil Judge (Junior Division), Mahagaon, framed preliminary issues (after initial decision and remand of the case). These issues are :-

"Preliminary Issues

1. Whether the suit in the present form is maintainable before the Civil Court ?

2. Whether Civil Court have no jurisdiction to try the present suit ?

3. Whether the suit is barred by limitation?"

(quoted from page 17 of the Paper-book of Writ Petition).

6. Learned Civil Judge (Junior Division) heard and decided these issues in favour of plaintiff. Hence, the defendant no.1 has preferred present Writ Petition on same grounds of objections as raised by him before Trial Court.

7. Heard learned Advocate Mr. Bhattad for the petitioner at length.

Issue of Limitation

8. Learned Advocate Mr. Bhattad strongly urged that the suit is for removal of encroachment, which cause of action is covered by Article 137 of the Limitation Act. It would be proper to quote Article 137 of the Limitation Act, and is quoted below for ready reference :-

PART II - OTHER APPLICATIONS

137.

 

Any other application for which no period of limitation is provided elsewhere in this division.”
Three years

When the right to apply accrues.

9. On bare perusal and reading of Article 137 and Article 65, what reveals is as follows :-

(a) This is a residuary Article and shall apply where no other Article provides period for limitation.

(b) Article 65 of the Limitation Act applies to suits based on title.

(c) Article 137 applies to "applications" and not "suits", for which no other article provides for the period of limitation.

10. There is one more factual aspect which has to be adverted. Though in the narration of claim in suit, the description is quoted in Para No.3, above averments and prayers are clearly for delivery of possession. Bare perusal of prayers makes this position clear, and on the basis of language used therein, it is clear that it does not admit two opinions.

Objections as to bar of suit due to Mamlatdars' Courts Act :

11. Court has perused entire Mamlatdars Courts Act, 1906. It is seen that Mamlatdars' Courts Act presupposes and recognizes existence and continuation of powers and jurisdiction of Civil Court. The scheme provides for a summary jurisdiction and powers and a bar of suit to make orders of Mamlatdar or Collector etc., to be immune from scrutiny in a Civil Suit.

12. It is seen that there is no express bar of suit. According to Mr. Bhattad, bar is implied. There is no room left by virtue of totality of provisions and scheme as to how implied bar should be inferred. Argument of learned Advocate Mr. Bhattad that implied bar can be read from the provisio to Clause (b) of Sub-section (2) of Section 5 amounts to reading in a provision of legislation, such words and such scheme which is totally non-existent.

13. The Court cannot forget the wide compass of Section 9 of Civil Procedure Code. Exclusion and bar of jurisdiction cannot be read or inferred just for the sake of asking in the manner in which present petitioner wants. Existence of jurisdiction has to be presumed and not the bar.

14. The manner and persuasion with which the petition has been pressed reveals an attempt to oust the plaintiff at the very threshold. This effort reveals to be an exercise of vexatious nature than effort of urging a legally available plea. The ingenuity has been used to delay the proceedings and consequently to enjoy the encroached land.

15. It is seen that the suit is of October, 2002. The objection to the jurisdiction and limitation was raised in November, 2003 and after one round up to this Court, even in 2007, the suit is still at the stage of filing of Written Statement.

16. This Court, therefore, considers it fit and proper to order exemplary costs for raising and pursuing such vexatious objections to the tune of Rs.3,000-00 (rupees three thousand only). Payment of costs be done within two months and it shall be the condition precedent for accepting petitioner's Written Statement, if filed in future. If not filed, amount of costs shall be recoverable according to law.

17. Rule is, therefore, discharged. Costs shall be as ordered in Para 16 and with consequences as stated therein.

Petition dismissed.