Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11326 OF 2011
State of M.P. & Anr. .. Appellants
Versus
Dungaji (D) by Lrs. & Anr. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order dated 29.10.2010 passed by the High Court
of Madhya Pradesh, Bench at Indore in Second Appeal No.580 of
2003 by which the High Court has allowed the said appeal
preferred by the respondentoriginal plaintiff – Dungaji (now
represented by his legal representatives) and consequently has
decreed the suit declaring that the marriage between Dungaji
(original plaintiff) and his wife Kaveribai had been dissolved by
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2019.07.16
17:33:40 IST
Reason:
way of customary divorce, much prior to the coming into force
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the provisions of the Madhya Pradesh Ceiling on Agricultural
Holdings Act, 1960 (hereinafter referred to as ‘the Act’) and that
the property inherited by Kaveribai from her mother, after
divorce, cannot be treated to be a family property of Dungaji for
the purposes of determination of surplus area under the Act and
the High Court has also held that the Competent Authority had
not followed the mandatory provisions of law before passing the
order dated 18.05.1976 and consequently has declared the same
order as null and void, the State of Madhya Pradesh and another
have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
That, Kaveribai, wife of Dungaji, in the year 1966 inherited
19.89 hectares of land (land in dispute) after the death of her
mother. That the said Kaveribai said to have sold the land in
dispute through a Sale Deed dated 18.11.1971. That the
proceedings were initiated before the Competent Authority under
the Act regarding determination of surplus land. That the
Competent Authority by its order dated 18.05.1976 treated
Kaveribai as a member of the family of Dungaji and included
19.89 hectares of land inherited by her from her mother as the
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land held by the family of Dungaji for the purpose of
determination of surplus area.
2.1 That Dungaji instituted a suit before the learned Civil Court,
Ujjain challenging the order dated 18.05.1976 passed by the
Competent Authority under the Act, 1960. That the learned Trial
Court by its Judgment and Decree dated 27.04.1988 dismissed
the suit and upheld the order dated 18.05.1976 passed by the
Competent Authority. That being aggrieved by Judgment and
Decree dated 27.04.1988 passed by the learned Civil Judge,
Ujjain, Dungaji preferred First Appeal No. 26A/1989 before the
First Appellate Court. The said appeal came to be allowed. The
learned First Appellate Court remanded the matter back to the
learned Civil Judge for fresh consideration after giving an
opportunity of hearing to Dungaji. That thereafter Dungaji
instituted a Civil Suit No.48A/2002 before the learned Civil
Judge, Ujjain against State of Madhya Pradesh and Kaveribai for
declaration that the Order dated 18.05.1976 passed by the
Competent Authority under the Act is illegal and null & void and
also for a declaration of divorce between the plaintiff and
Kaveribai and also for declaration that the plaintiff (Dungaji) does
not have excess land under the provisions of the Act, 1960.
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2.2 That, it was the case on behalf of the original plaintiff
Dungaji that he had three wives Kaveribai, Kashibai and Nanibai.
That after he had married Kashibai and Nanibai, his first wife
Kaveribai started quarrelling with him and consequently, being
fed up with the daily quarrel in the family, he had divorced
Kaveribai 17 years prior to the filing of the suit as per the custom
prevalent in the community. According to the plaintiff after the
said divorce he and Kaveribai had been living separately and
there had been no relationship of husband and wife between
them. According to the plaintiff, after the aforesaid divorce,
Kaveribai started living with her mother Amritabai. Amritabai
had died and as such Kaveribai had inherited the land owned by
her motherAmrita Bai and the same land had been even
mutated in the name of Kaveribai. The plaintiff pleaded that he
had no concern with the aforesaid land owned by Kaveribai and
therefore the same cannot be included in the holdings of the
family of Dungaji. According to the plaintiff, Kaveribai is wrongly
being treated as member of the family of plaintiff even after the
divorce. According to the plaintiff, Order dated 18.05.1976 was
null and void and not binding upon the rights of the plaintiff. The
plaintiff also pleaded that proper procedure had not been
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followed by the Competent Authority while passing the order
dated 18.05.1976.
2.3 Kaveribai as original defendant no.3 filed a written
statement and admitted that she had been divorced from the
plaintiffDungaji. She also admitted that she had inherited a land
measuring 19.89 hectares from her motherAmritabai. The
original defendant nos.1 and 2the State of Madhya Pradesh and
another (appellants herein) opposed the suit by filing a separate
written statement. Defendant nos.1 and 2 denied that Dungaji
had ever been divorced with Kaveribai and the land inherited by
her from her mother was not to be included in the land held by
the family of Dungaji. The Trial Court framed the requisite
issues. The parties led their evidence. On appreciation of
evidence, the learned Trial Court dismissed the suit by Judgment
and Decree dated 22.10.2002. The learned Trial Court specifically
observed and held that the plaintiff has failed to prove that there
is any customary divorce which has taken place between the
plaintiff and Kaveribai. The Judgment and Decree passed by the
learned Trial Court came to be confirmed by the First Appellate
Court. The original plaintiff carried the matter to the High Court
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by way of Second Appeal No.580 of 2003. The High Court framed
the following substantial questions of law :
“1. Had the findings recorded by both the Courts
below that the customary divorce between late
Dungaji and late Smt. Kaveribai had not been
proved, been perverse and arbitrary, disregarding
the oral evidence which had support of the
documents and affidavits of both late Dungaji and
late Smt. Kaveribai, though, there had been no
crossexamination on the point and no rebuttal
was led evidence on mere surmises or suspicion
that theory of such divorce was put to defeat the
provision of the Ceiling Act?
2. Could the property inherited by Smt.
Kaveribai from her mother form part of family
property of late Dungaji and thus be declared
surplus?
3. Could the competent authority dismiss the
objections of late Dungaji without holding any
enquiry which was mandatory under the Provisions
of the Ceiling Act?”
2.4 That by the impugned Judgment and Order, the High Court
has allowed the said appeal and has quashed and set aside the
Judgment and Decree passed by the First Appellate Court as well
as the learned Trial Court, dismissing the suit and consequently
has decreed the suit and has held that the marriage between
Dungaji and Kaveribai has been dissolved by way of customary
divorce, much prior to the coming into force the provisions of the
Act, 1960 and also that the property, inherited by Kaveribai from
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her mother, after divorce, cannot be treated to be family property
of Dungaji for the purposes of determination of surplus area. By
the impugned Judgment and Order, the High Court has also held
that the Competent Authority had not followed the mandatory
provisions of law before passing order dated 18.05.1976 and
consequently has held the order dated 18.05.1976 as null and
void.
2.5 Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court in Second Appeal
No.580 of 2003, original defendant nos.1 and 2the State of
Madhya Pradesh and another, have preferred the present appeal.
3. Ms. Prachi Mishra, learned Counsel has appeared on behalf
of the appellantState and Mr. Guru Krishna Kumar, learned
Senior Counsel has appeared on behalf of the respondents.
4. Ms. Prachi Mishra, learned Counsel appearing on behalf of
the appellantState has vehemently submitted that in the facts
and circumstances of the case, the High Court has committed a
grave error in allowing the Second Appeal and interfering with the
findings of facts recorded by both the Courts below.
4.1 It is further submitted by Ms. Prachi Mishra, learned
Counsel appearing on behalf of the appellantState that while
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passing the impugned Judgment and Order, the High Court has
exceeded in its jurisdiction while deciding the Second Appeal
under Section 100 of the CPC which was against the concurrent
findings recorded by both the Courts below.
4.2 It is further submitted by Ms. Prachi Mishra, learned
Counsel appearing on behalf of the appellantState that the High
Court has materially erred in not appreciating the fact that suit
filed by the original plaintiff challenging the Order passed by the
Competent Authority dated 18.05.1976 declaring 57.32 acres of
land as surplus under Section 7 of the Act, was not maintainable
at all. It is submitted that the High Court has failed to appreciate
the fact that the jurisdiction of the Civil Court was expressly
barred under Section 46 of the Act, 1960. In support of her above
submissions, learned counsel for the State has heavily relied
upon the decisions of this Court in the case of Sooraj v. SDO
(1995) 2 SCC 45; Mohanlal Nanbhai Choksi (Dead) by Lrs. v. State
of Gujarat (2010) 12 SCC 726; Dhulabhai v. State of Madhya
Pradesh AIR 1969 SC 78 as well as Union of India v. Shri Kant
(2015) 6 SCC 773. Relying upon the above decisions and
Sharma
relying upon Section 46 of the Act 1960, it is vehemently
submitted that the suit filed by the original plaintiff challenging
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the Order passed by the Competent Authority dated 18.05.1976
was not maintainable at all. It is submitted, therefore, the High
Court has materially erred in quashing and setting aside the
Order passed by the Competent Authority declaring 57.32 acres
of land as surplus land. It is submitted that therefore the entire
proceedings before the Civil Court were void ab initio .
4.3 It is further submitted by Ms. Prachi Mishra, learned
Counsel appearing on behalf of the appellantState that even
otherwise on merits also the High Court has failed to appreciate
that there are concurrent factual findings recorded against
Dungaji and Kaveribai by both the Courts below. It is submitted
that both the Courts below, on appreciation of evidence on
record, specifically observed and held that the plaintiff Dungaji
has failed to prove the customary divorce between him and
Kaveribai. It is submitted that the High Court has materially
erred in not properly appreciating the fact that on appreciation of
evidence on record both the Courts below specifically gave the
finding that the plaintiffDungaji failed to prove customary
divorce between Dungaji and Kaveribai.
4.4 It is submitted that the High Court has failed to appreciate
the fact that Kaveribai herself executed a Sale Deed in favour of
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Padam Singh in the year 1971 in which she has specifically
stated that she is the wife of Dungaji. It is submitted that,
therefore, both the Courts below, as such, rightly found that the
plaintiff has failed to prove any customary divorce between
Dungaji and Kaveribai.
4.5 It is further submitted by Ms. Prachi Mishra, learned
Counsel appearing on behalf of the appellantState that the High
Court has failed to appreciate the fact that Dungaji has failed to
prove and establish the factum of customary divorce and has also
not proved that such a customary practice exists in his society. It
is submitted that no such evidence was led in this regard. It is
submitted that, as per the settled proposition of law, Hindu
marriage can be dissolved only in accordance with the provisions
of the Hindu Marriage Act, 1955. It is submitted that as held by
this Court in the case of Swapnanjali Sandeep Patil v. Sandeep
Ananda Patil (2019) SCC Online SC 329; Subramani v. M.
Chandralekha (2005) 9 SCC 407 and Yamanaji J. Jadhav v.
Nirmala (2002) 2 SCC 637, if a customary divorce practice is
claimed in a community then the same needs to be clearly
established. It is submitted that in the present case, the original
plaintiff failed to prove and establish the factum of
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divorce/customary divorce. It is submitted that in any case when
on appreciation of evidence both the Courts below disbelieved
concurrently a customary divorce as prayed by the plaintiff, the
same was not required to be interfered with by the High Court in
exercise of its powers under Section 100 of the CPC. It is
submitted that as such there was no substantial question of law
before the High Court. It is submitted that the High Court has
materially erred in allowing the Second Appeal and quashing and
setting aside the concurrent findings recorded by both the Courts
below on the customary divorce pleaded by the plaintiff.
4.6 Making the above submissions, it is prayed to allow the
present appeal.
5. Present appeal is vehemently opposed by Mr. Guru Krishna
Kumar, learned Senior Counsel appearing on behalf of the
respondent(s) hereinoriginal plaintiff.
5.1 Mr. Guru Krishna Kumar, learned Senior Counsel
appearing on behalf of the respondent(s) hereinoriginal plaintiff
has vehemently submitted that in the facts and circumstances of
the case, the High Court has not committed any error in passing
the decree of declaration declaring that the marriage between
Dungaji and Kaveribai was dissolved in the year 1962. It is
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submitted that once there was a divorce as per the customary
divorce between Dungaji and Kaveribai, the land held by
Kaveribai could not have been included in the holdings of the
family of Dungaji. It is submitted that, therefore, the High Court
has rightly allowed the appeal.
5.2 It is submitted that while allowing the appeal and decreeing
the suit, the High Court has considered the relevant evidence on
record including Deed of Divorce; statement of PW1Padam
Singh; statement of PW2Ram Chandra; statement of PW3
Mangilal and affidavit of Kaveribai. It is submitted that the
appellants hereinoriginal defendants have not crossexamined
any of the aforesaid witnesses who firmly deposed on the factum
of divorce. It is submitted that therefore statement of aforesaid
witnesses remained unchallenged before the lower Courts.
5.3 It is further submitted by Mr. Guru Krishna Kumar, learned
Senior Counsel appearing on behalf of the respondent(s) herein
original plaintiff that as the land held by Kaveribai which she
inherited from her mother, was not required to be included in the
holdings of the family of Dungaji and no proper procedure, as
required to be followed under the Act 1960, was followed, the suit
filed by the plaintiff for a declaration to declare the Order dated
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18.05.1976 of the Competent Authority as null and void was
maintainable. It is submitted that the relief sought in the suit
would not fall in either of the two categories mentioned in Section
46 of the Act 1960. It is submitted that the major issue is in
respect of the divorce between Dungaji and Kaveribai. It is
submitted that therefore, the said issue was not covered under
Section 46 of the Act 1960. It is vehemently submitted by Mr.
Guru Krishna Kumar, learned Senior Counsel appearing on
behalf of the respondent(s) hereinoriginal plaintiff that as held
by this Court in the case of Dwarka Prasad Agarwal v. Ramesh
Chander Agarwal (2003) 6 SCC 220 that the bar of jurisdiction of
a Civil Court is not required to be readily inferred and a provision
seeking to bar jurisdiction of a Civil Court requires strict
interpretation. It is submitted that as held by this Court in the
aforesaid decision the Court, it is well settled, would normally
lean in favour of construction, which would uphold retention of
jurisdiction of the Civil Court.
5.4 It is submitted by Mr. Guru Krishna Kumar, learned Senior
Counsel appearing on behalf of the respondent(s) hereinoriginal
plaintiff that even otherwise as there was a grave procedural
lapse on the part of the Competent Authority, the jurisdiction of
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the Civil Court cannot be barred. In support of his above
submission learned Senior Counsel appearing on behalf of the
original plaintiff has vehemently relied upon the decision of this
Court in the case of (supra).
Dhulabhai
5.5 Making the above submissions, it is prayed to dismiss the
present appeal.
6. Heard learned counsel appearing on behalf of the respective
parties at length. At the outset, it is required to be noted that by
the impugned Judgment and Order, the High Court in exercise of
its powers under Section 100 of the CPC has allowed the Second
Appeal and has reversed the concurrent findings recorded by
both the Courts below and consequently has decreed the suit and
has declared and held that the marriage between Dungaji and
Kaverbai had been dissolved by way of customary divorce, much
prior to the coming into force the provisions of the Act 1960. The
High Court has also set aside the Order dated 18.05.1976 passed
by the Competent Authority declaring 57.32 acres of land as
surplus land under the provisions of the Act 1960. The learned
Trial Court dismissed the suit by specifically observing on
appreciation of evidence on record that the plaintiff has failed to
prove that divorce has already been taken place between the
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plaintiffDungaji and Kaveribai according to the prevalent custom
of the society. The learned Trial Court also specifically observed
and held on appreciation of evidence on record that the execution
of the Divorce Deed at Exhibit P1 is not proved. The Judgment
and Decree passed by the learned Trial Court came to be
confirmed by the First Appellate Court. However, in Second
Appeal under Section 100 of the CPC, the High Court has
interfered with the aforesaid findings of facts recorded by the
learned Trial Court confirmed by the First Appellate Court.
Therefore the short question which is posed for the consideration
of this Court is, whether in the facts and circumstances of the
case, the High Court was justified in allowing the Second Appeal
and consequently decreeing the suit and holding that the
marriage between Dungaji and Kaveribai had been dissolved by
way of customary divorce and therefore the Order passed by the
Competent Authority dated 18.05.1976 is null and void?
7. Having heard learned Counsel appearing on behalf of the
respective parties and considering the evidence on record and the
findings of facts recorded by the learned Trial Court confirmed by
the First Appellate Court, it appears that by Order dated
18.05.1976 and after following due procedure required to be
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followed under the provisions of Madhya Pradesh Ceiling on
Agricultural Holdings Act, 1960, the Competent Authority
declared 57.32 acres of land as surplus land under the
provisions of the Act 1960. As Kaveribaiwife of Dungabai
inherited 19.89 hectares of land from her mother Amritabai,
therefore, as such, she became the absolute owner of the
aforesaid land. As per the provisions of the Act, the land held by
the wife was required to be included in the holding of the family
of the husband. Therefore, the Competent Authority included
19.89 hectares of land in the holding of the family of Dungaji and
consequently by Order dated 18.05.1976 declared 57.32 acres of
land as surplus land. It is not in dispute that the Order passed
by the Competent Authority declaring the land as surplus land is
subject to appeal and further revision as provided under the Act
1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act
1960 provides that no Civil Court has jurisdiction to settle,
decide or deal with any question which is by or under the Act
1960 required to be settled, decided or dealt with by the
Competent Authority. Therefore, as per Section 46 of the Act
1960 there shall be a complete bar against maintainability of the
suit challenging the decision of the Competent Authority. Despite
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the above and without preferring any appeal/revision as provided
under the Act 1960 challenging the Order passed by the
Competent Authority dated 18.05.1976, Dungaji filed the suit
before the Civil Court praying for a declaration to declare the
Order dated 18.05.1976 of the Competent Authority as null and
void. Therefore, as such, considering the bar under Section 46 of
the Act 1960, the suit filed by Dungaji challenging the Order
dated 18.05.1976 passed by the Competent Authority, was not at
all maintainable. It is true that in the suit the plaintiff also
prayed for declaration to declare that the divorce had taken place
between Dungaji and Kaveribai on the basis of the customary
procedure. Therefore, as such, the suit qua the same relief can be
said to be maintainable. But certainly, the suit challenging the
Order passed by the Competent Authority dated 18.05.1976 was
not maintainable at all. The view which we are taking is
supported by the decisions of this Court in the case of Sooraj
(supra); Mohanlal Nanbhai Choksi (Supra) and in the case of
(Supra). The decision of this Court in the case of
Dhulabhai
Dhulabhai (Supra) relied upon by the learned Counsel appearing
on behalf of the original plaintiffs, shall not be applicable to the
facts of the case on hand and/or the same shall not be applicable
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to any reliefs sought in the suit. Therefore, in the facts and
circumstances of the case, the High Court has materially erred in
quashing and setting aside the Order dated 18.05.1976 passed
by the Competent Authority.
8. Now, so far as the impugned Judgment and Order passed
by the High Court declaring and holding that the marriage
between Dungaji and Kaveribai had been dissolved by way of
customary divorce, much prior to the coming into force the
provisions of the Act 1960 and therefore after divorce, the
property inherited by Kaveribai from her mother cannot be
treated to be holding of the family property of Dungaji for the
purposes of determination of surplus area is concerned, at the
outset, it is required to be noted that as such there were
concurrent findings of facts recorded by both the Courts below
specifically disbelieving the dissolution of marriage between
Dungaji and Kaveribai by way of customary divorce as claimed by
Dungajioriginal plaintiff. There were concurrent findings of facts
recorded by both the Courts below that the original plaintiff has
failed to prove and establish that the divorce had already taken
place between Dungaji and Kaveribai according to the prevalent
custom of the society. Both the Courts below specifically
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disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings
were recorded by both the Courts below on appreciation of
evidence on record. Therefore, as such, in exercise of powers
under Section 100 of the CPC, the High Court was not justified in
interfering with the aforesaid findings of facts recorded by both
the Courts below. Cogent reasons were given by both the Courts
below while arriving at the aforesaid findings and that too after
appreciation of evidence on record. Therefore, the High Court has
exceeded in its jurisdiction while passing the impugned
Judgment and Order in the Second Appeal under Section 100 of
the CPC.
9. Even on merits also both the Courts below were right in
holding that Dungaji failed to prove the customary divorce as
claimed. It is required to be noted that at no point of time earlier
either Dungaji or Kaveribai claimed customary divorce on the
basis of Divorce Deed at Exhibit P5. At no point of time earlier it
was the case on behalf of the Dungaji and/or Kaveribai that there
was a divorce in the year 1962 between Dungaji and Kaveribai. In
the year 1971, Kaveribai executed a Sale Deed in favour of
Padam Singh in which Kaveribai is stated to be the wife of
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Dungaji. Before the Competent Authority neither Dungaji nor
Kaveribai claimed the customary divorce. Even in the Revenue
Records also the name of Kaveribai being wife of Dungaji was
mutated. In the circumstances and on appreciation of evidence
on record, the Trial Court rightly held that the plaintiff has failed
to prove the divorce between Dungaji and Kaveribai as per the
custom.
9.1 At this stage, it is required to be noted that before the
Competent Authority, Kaveribai submitted the objections. Before
the Competent Authority, she only stated that she is living
separately from Dungaji and Ramesh Chandra, son of Padam
Singh, has been adopted by her. However, before the Competent
Authority neither Dungaji nor Kaveribai specifically pleaded
and/or stated that they have already taken divorce as per the
customs much prior to coming into force the Act of 1960.
Therefore, as rightly observed by the learned Trial Court and the
First Appellate Court only with a view to get out of the provisions
of the Ceiling Act 1960, subsequently and much belatedly,
Dungaji came out with a case of customary divorce. As rightly
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observed by the learned Trial Court that Divorce Deed at Exhibit
P5 was got up and concocted document with a view to get out of
the provisions of the Ceiling Act 1960. As observed hereinabove,
the High Court has clearly erred in interfering with the findings of
facts recorded by the Courts below which were on appreciation of
evidence on record.
10. In view of the above and for the reasons stated above, the
present appeal succeeds. Impugned Judgment and Order dated
29.10.2010 passed by the High Court is hereby quashed and set
aside and the Judgment and Decree passed by the learned Trial
Court confirmed by the learned First Appellate Court is hereby
restored. Consequently, the suit preferred by Dungaji stands
dismissed. No costs.
……………………………….J.
[M.R. SHAH]
NEW DELHI, ……………………………….J.
JULY 16, 2019. [A. S. BOPANNA]