Nafr High Court
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.01.24 10:47:21 +0530 2025:CGHC:3803 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 10 of 2025 • Ramji Pandey S/o Late Sitaram Pandey Aged About 78 Years R/o Tikrapara Raipur, Tehsil Raipur, District Raipur, Chhattisgarh. ... Applicant. versus 1 - State Of Chhattisgarh Through District Magistrate Collectorate Raipur, Tahsil And District Raipur, Chhattisgarh. 2 - Commissioner, Nagar Palik Nigam, Raipur, Tahsil Raipur, District Raipur, Chhattisgarh. 3 - Arvind Singh Bhuval S/o Virendra Bhuval Aged About 44 Years R/o Ram Nagar Raipur, District Raipur, Chhattisgarh. ... Respondent(s) For Applicant For State
Legal Reasoning
: Shri Awadh Tripathi, Advocate. : Shri Dilman Rati Minz, Govt. Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 22.01.2025 1. This Revision has been filed assailing the legality and validity of order 2 dated 18.10.2024 passed by the 6th Civil Judge Junior Division, Raipur Chhattisgarh in Civil Suit No.282A/2022 whereby, objection raised by present applicant by filing an application under Order 7 Rule 11 of Civil Procedure Code, 1908 (henceforth “CPC”) that the present suit is barred by principles of res-judicata was disallowed and the application was dismissed. 2. Necessary facts of the case are that one Babulal, son of Baghela, was holding the subject land in his ownership and proceeding under the Urban Land ( Ceiling and Regulation) Act, 1976 (henceforth “the Act of 1976”) was initiated in respect of the subject land by the competent authority in the year 1976-77 and an order was passed under Section 10 (5) of the said Act on 04.09.1980. The Parliament promulgated the Urban Land (Ceiling and Regulation) Repeal Act, 1999 which provided for abatement of proceedings relating to any order made or purported to be made under the Act of 1976, in certain contingencies. The original owner moved an application on 23.12.2002 before the competent authority for return of his land stating that the Government has not taken over the possession of the land in dispute from him nor any compensation has been paid. On this application, the competent authority initiated proceedings and passed an order on 07.04.2006 whereby, order has been passed in favour of original owner. After passing of the said order, the original owner executed sale deed dated 18.04.2006 in favour of Respondent No.3/plaintiff herein for part of the land admeasuring 1252 square meter. Present plaintiff has filed instant suit for declaration of title, permanent injunction as also to remove the illegal construction and for possession against the applicant herein and also arrayed Municipal Corporation, Raipur and State as a party. 3 3. Case of the present applicant is that in the year 1984, State promulgated an enactment which provided for allotment of plots to landless persons known as मध्य ्ቚदेश नगरीय ्ቌे्ቔों के भूमिमहीन व्यमि(cid:22) (प्ሾाधृति(cid:29) अतिधकारों का ्ቚदान मिकया जाना)Act, 1984 (Act No.15 of 1984). In pursuance of the said provision, Municipal Corporation, Raipur allotted land to various persons including applicant who also paid premium to the tune of Rs. 2,90,020/- towards allotment of plot admeasuring 1252 square feet of land, which is subject matter of the present suit. After such allotment, permission to build was also obtained by him on 26.02.1993 and it has been alleged that he has constructed a house also. 4. The present applicant had challenged order dated 07.04.2006, which was passed in favour of the original owner for return of land vested in Government under the Act of 1976, by way of Writ Petition No.3254 of 2006 wherein an order was passed on 23.04.2018. Material paras 16 to 18 of order dated 23.04.2018 read as under:-
Decision
16. In view of the above consideration, interest of justice would demand that proper enquiry should be made in the matter. The impugned order is therefore, set aside and the matter is remitted to the competent authority or in case the ofÏce of competent authority is not in existence, the Collector, Raipur who shall make a detailed factual enquiry into the aspect of possession. The enquiry is required to be made after giving due opportunity of hearing to the petitioner as also to the Municipal Corporation Raipur as also respondent No.5 & 6. The Corporation and Revenue authority shall submit all necessary records in their Possession before the enquiry authority so that the authority is possessed of the complete records to take a decision in the matter. 17. Since an interim order was passed in favour of the petitioner, at its Inception on 05.07.2006 directing parties to maintain status quo, therefore, till the final orders are passed in the proceedings as directed by this Court, the same interim order shall continue and the parties shall 4 maintain status quo as it exists today. 18. The petition is accordingly allowed. No costs. 5. In compliance of the order dated 23.04.2018, Competent Authority under the Act of 1976, Raipur in Case No.143A/90 C(1) year, 1976-77 (between Dayaram and Anr. vs. State of Chhattisgarh and three others) while passing the order dated 21.01.2022 held that the subject land was never vested in the Municipal Corporation and the present applicant has not established his case that any allotment was made in his favour for the subject land by the municipal corporation. A similar finding was arrived at in an enquiry conducted by Sub-Divisional OfÏcer (Revenue), Raipur vide enquiry report dated 31.08.2021. 6. It is case of the plaintiff/Respondent No.3 herein that a complaint has been preferred about allotment of the land against the present applicant before Municipal Corporation, Raipur and Municpal Corporation, Raipur has canceled the allotment on 03.07.2006. Against the said cancellation of allotment, present applicant filed a civil suit before 7th Civil Judge Class 2, Raipur bearing No.160A/2009, instituted on 18.08.2006 and arrayed Municipal Corporation, Raipur only as party. The said civil suit was decreed in favour of present applicant and the order of cancellation dated 03.07.2006 passed by the Municipal Corporation was set aside holding the same to be illegal. 7. In the instant suit, Respondent No.3/plaintiff by making an averment inter alia suppressed the material fact, without arraying the State as party, as the order passed under the Act of 1976 for return of land has been upheld by the competent authority, after repeal of the said Act. Hence, the land remains in favour of the original owner and the original owner, in a valid 5 manner, has sold the subject property in favour of plaintiff. The State never vested the subject land in favour of Municipal Corporation, therefore Municipal Corporation is also not having the authority for any such allotment. Further, no such allotment has been proved during the enquiry and in a fraudulent manner, a decree has been obtained, which is not binding and is null and void and reliefs to this effect have also been sought in the present suit. 8. It is argued by learned counsel for the applicant that applicant preferred an application under Order 7 Rule 11 CPC and raised objection by submitting that in WP No.3254 of 2006 vide order dated 23.04.2018, the order dated 07.04.2006 which was passed by the competent authority in favour of original owner, has already been set aside. Hence, the trial Court has no jurisdiction to entertain similar nature of relief as the principles of res- judicata are very much applicable, however, the learned trial Court has not accepted the said objection and wrongly dismissed the application. 9. Per contra, learned State counsel would submit that in WP No.3254 of 2006 only an interim order has been passed and the matter was remitted back for fact finding enquiry and in the said enquiry, claim of the present applicant was not found tenable and the order passed on 07.04.2006 was found to be valid. Hence, the order dated 23.04.2018 has no bearing or has not created any bar for hearing of the present suit. He submits that Revision is misconceived which is liable to be dismissed. 10. I have heard learned counsel for the parties present at length and perused the documents annexed with the Revision. 11. Under Section 11 of the CPC, to constitute a matter res-judicata, following conditions must concur:- 6 (i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit. Explanation I is to be read with this condition. (ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Explanation VI is to be read with this condition. (iii) The parties as aforesaid must have litigated under the same title in the former suit. (iv) The court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. Explanation II is to be read with this condition, as also Explanation VIII. (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Explanation V is to be read with this condition. Explanation VII extends the section to execution proceedings. Explanation VIII extends the application of the section to an issue heard and decided by a court of limited jurisdiction, by providing that a decision of a court of limited jurisdiction on an issue, heard and finally decided shall, if it is within the competence of such court, operate as res judicata in a subsequent suit, although such court is not competent to try such subsequent suit or the suit in which such question is raised. 12. In view of the aforesaid settled parameters, this Court is of the opinion that applying the principles of res-judicata and after dwelling upon the pleadings made by the parties as also the ground which has been raised in view of the order dated 23.04.2018 passed by the writ court, the issue has not finally been settled. It is explicit from the tenor of the said order that it is only an interim order and the matter was remitted back for the fresh enquiry. Hence, the learned trial Court has rightly observed that the 7 principle of res-judicata does not attract in the instant matter. 13.For the foregoing, this Court does not find any infirmity, illegality or perversity in the impugned order which would warrant interference invoking revisional jurisdiction. 14. Resultantly, this Revision being bereft of any substance is accordingly dismissed in limine. Sd/- (Deepak Kumar Tiwari) Judge Avinash