Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO…………………OF 2023
(Arising out of Special Leave Petition (Civil) No.6061 of 2019)
Khora (Dead)
Through Legal Heirs & Ors. … Appellant(s)
Versus
Mohar Sai & Ors. …Respondent(s)
J U D G M E N T
V. Ramasubramanian, J.
1. Challenging the judgment and decree passed by the High
Court of Chhattisgarh in a second appeal, confirming the
concurrent judgment and decrees of the Trial Court and the First
Appellate Court, the defendants have come up with the above
appeal.
2. We have heard the learned counsel for the parties.
3. Respondent No.1 herein filed a suit in Civil Suit No.11-A/95,
on the file of the Third Civil Judge Class-2, Ambikapur, Sarguja,
Signature Not Verified
Digitally signed by
POOJA SHARMA
Date: 2023.02.20
17:34:23 IST
Reason:
M.P., for declaration of title and permanent injunction in respect
of a land purchased by him under a deed of sale dated 02.04.1981.
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Respondent No.1 purchased the said land from one Phool Chand
Cherwa. The seller Phool Chand belonged to the Scheduled Tribe.
Though respondent No.1 was also a Scheduled Tribe, the
appellants contended that the purchase was on behalf of his
master who was not a Tribal and that the purchase was actually a
benami transaction for the benefit of a non-tribal. The Trial Court
rejected the stand taken by the appellants and decreed the suit
and the decree came to be confirmed both by the First Appellate
Court and the High Court. Therefore, defendant Nos. 1 and 2 have
come up with the above appeal.
4. The main ground of attack to the impugned judgment is
(i) that the question of validity of the sale has already been decided
in the proceedings before the Revenue Authorities and hence
operated as res judicata ; and (ii) that there was a clear bar of
jurisdiction of the civil court, under Section 257 of the
Chhattisgarh Land Revenue Code, 1959 (for short “ the Code ”).
5. The first ground of attack is premised on an order passed by
the Departmental Officer, Ambikapur on 03.02.1983, in terms of
Section 170 of the Code declaring the sale deed dated 02.04.1981
executed by Phool Chand in favour of respondent No.1 (plaintiff) to
be fraudulent and benami and in violation of Section 165 of the
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said Code. It appears that the order of the Departmental Officer
dated 03.02.1983 was confirmed by the Appellate Authority by an
order dated 28.03.1984. The same was confirmed by the Board of
Revenue/Tribunal on 14.03.1990, in a revision petition filed by
respondent No.1. The challenge made to all these three orders, by
respondent No.1 by way of a writ petition, also failed with the
dismissal of the writ petition for want of prosecution.
6. In the light of the aforesaid facts it is contended that the
proceedings under the Land Revenue Code have attained finality
in the year 1991 and that the proceedings before the Civil Court
initiated in 1995 were barred by res judicata.
7. But we do not think so. Admittedly respondent No.1 who filed
the suit on the strength of the sale deed executed in his favour was
also a tribal person. In such circumstances, the question as to
whether respondent No.1 was only the ostensible owner and not
the beneficial owner could not have been gone into by the Revenue
Authorities. It is true that under Section 165(6c), the Collector is
entitled to go into the question whether the transaction is spurious
or benami . But the power conferred by Section 165(6c) is to be
exercised while passing an order under sub-section (6a), granting
or refusing to grant permission or under sub-section (6b), ratifying
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or refusing to ratify the transaction. Such a power is not expressly
extended to avoidance of transfers under Section 170.
8 . Moreover, sub-sections (6a) to 6(f) appear to have been
inserted by a Notification dated 15.04.1981, which was
subsequent to date of execution of the sale deed in question. When
the transferee himself was a tribal person and he himself had come
to Court seeking a declaration that his purchase was genuine and
valid, the Court is certainly entitled to hold an enquiry. In fact,
the Trial Court framed an issue on the question of possession and
found that respondent No.1 had constructed a house on the
property and that his sons are living there. They were also
domesticating cattle in the said property. An attempt was made by
the appellants herein to show that the transaction was hit by
Benami Transaction (Prohibition) Act, 1988. That was also rejected
by the Trial Court. Since all these questions could not have been
gone into by the Revenue Authorities, the findings recorded by
them could not have operated as res-judicata .
9. As rightly pointed out by the High Court, the bar of
jurisdiction under Section 257 of the Code relates to any matter
which the Authorities are empowered to determine/decide or
dispose of. The question whether the purchase by a tribal was a
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sham and nominal transaction for the benefit of a non-tribal, may
not fall exclusively within the jurisdiction of the Authorities.
Therefore, the High Court was right in rejecting the said
contention.
10. In fact, the case set up by the appellants was that Phool
Chand was an employee of defendant No.3 and was addicted to
liquor and that defendant No.3 got the sale executed without
paying proper consideration, when Phool Chand was in an
inebriated condition. But the Trial Court found on evidence that
Phool Chand was working as a Clerk in the Nagar Palika.
11. In view of the above, we find no grounds to interfere with the
concurrent judgment and decrees of all the three Courts below.
Hence the Civil Appeal is dismissed. There will be no order as to
costs. Pending application(s), if any, shall also stand disposed of.
………………...................J.
(V. RAMASUBRAMANIAN)
……..............................J.
(PANKAJ MITHAL)
New Delhi;
February 20, 2023
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