Gujarat HC: The civil court has jurisdiction to set aside mutation entry done in revenue record on the basis of unregistered oral sale

Section 17 of the Indian Registration Act provides that if some tangible immovable property worth less than Rs. 100.00 (Rupees One Hundred only) is sold and delivery of possession is also effected, then, such sale, on delivery of possession, would be complete. The law provides that if any tangible immovable property worth Rs. 100.00 (Rupees One Hundred only) or more is sought to be transferred or alienated, then, such transfer is required on proper stamp and is required to be registered also. Consequence of non-registration is shown under Section 49 of the Indian Registration Act. Section 49 clearly provides that in a case where document, which under the law, was required to be registered, if is not registered, then, the same would not be admitted in evidence, except for collateral purpose. If a document is not admissible in evidence and cannot be relied upon, nor does convey title in the law, then, on the basis of such document, an entry could not be made in the revenue record. In the revenue record, entry can be made only if some legal document conveys title in favour of the purchaser or, person aspiring for entry in his favour has obtained right under some revenue laws. In the present case, on the basis of an unregistered sale, which admittedly was oral one, an entry in favour of the defendant could not be made. {Para 7}

8. Civil Court ordinarily would not interfere in the matters where Courts of limited jurisdiction or exclusive jurisdiction have exercised their authority. A Civil Court would interfere in a matter, if it is held by the Court that provisions of law have been violated to their hilt, the authority/officer had no jurisdiction to do something or principles of natural justice have been violated. The moment the Court comes to the conclusion that act or action of an authority is bad and runs contrary to law, then, the Civil Court shall immediately assume the jurisdiction and correct the wrong committed by the authorities. The Courts below, in the considered opinion of this Court were unjustified in holding that the Civil Court had no jurisdiction in the matter. The concept of jurisdiction is not based upon the plain reading of provisions of law, because, it is trite to say that a Civil Court is always jealous of a provision which ousts its jurisdiction. A Civil Court has to be too cautious and careful in understanding and appreciating the provisions which say that the Civil Court has no jurisdiction. All the conditions to denude the Civil Court of its powers must be complied with. Moment a Civil Court holds that any other Court of exclusive jurisdiction has violated the provisions of law or has not observed the law or has violated the principles of natural justice, then it is bound to exercise its jurisdiction.

9. In the opinion of this Court, entry made in favour of the respondents could not be made by any person whatsoever authority he had. The entry was patently without jurisdiction, it deserves to and is accordingly set aside.

 IN THE HIGH COURT OF GUJARAT

Second Appeal No. 28 of 1990

Decided On: 16.03.2007

Radhiben and Ors. Vs. Surtan Vesta Damor and Ors.

Hon'ble Judges/Coram:

R.S. Garg, J.

Citation: 2007 AIR (Gujarat) 147, MANU/GJ/7080/2007.

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Supreme Court: Ouster Of Civil Court's Jurisdiction Won't Have Retrospective Effect To Annul A Decree Validly Passed By Civil Court

 It is settled law that ouster of jurisdiction of civil court can be expressed or implied, but it cannot have retrospective effect annulling a decree validly passed by the civil court. Therefore, we do not find any error of law on the part of the High Court in confirming the concurrent judgment and decrees of the Trial Court and the first Appellate Court. Hence, this appeal is dismissed, without any order as to costs.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3936 OF 2013;

ANANTA CHANDRAKANT BHONSULE (D)BY LRS & ANR.

Vs TRIVIKRAM ATMARAM KORJUENKAR (D) BY LRS. & ANR.

Coram: V. RAMASUBRAMANIAN; J., PANKAJ MITHAL; J.

Dated: FEBRUARY 09, 2023

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How to ascertain jurisdiction of wakf tribunal to entertain a proceeding?

  No doubt, while deciding the jurisdiction of the forum

to try and entertain the proceedings, the same requires to be

decided on the basis of facts pleaded in the plaint, application or

memo. Admittedly, there is no reference in the plaint that the

property is a wakf property. However, in para 10 of the plaint there is specific reference that as during the city survey, the property was recorded in the name of Wakf Board, taking disadvantage of this fact, respondent No.1 tried to induct respondent No.3 as tenant in the said property. In reply to this contention, in para 5 of the written statement filed on behalf of respondent No.1, a categorical statement is made that the plaintiff has no concern with the suit property and on the contrary the suit land belongs to Wakf Board and it reveals from the property extract that CTS No. 8796 belongs to defendant No.1 and defendant No.3 is the tenant.

Thus, the averments in plaint para 10 are supported by the

contents of para 5 of the written statement field by defendant No.1. If it is so, the issue comes under the ambit of wordings of section 85 i.e. any dispute or question or other matters relating to any wakf, and hence there is bar of jurisdiction of the Civil Court to take cognizance of the dispute. {Para 7}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.19 OF 2010

Hajra Bee w/o Sk.Ismail Vs  Maharashtra State Board of Wakfs

[CORAM : A.V.POTDAR, J.]

DATE: 31st March 2010

Citation: 2010(4) LJSOFT(URC) 1

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Whether Wakf tribunal has jurisdiction to entertain a suit for grant of perpetual injunction U/S 38 of Specific relief Act?

  The very scheme under the Wakf Act, 1995, in terms of Sections

83 and 85 in particular needs to be considered. The legislature desire to confer the jurisdiction of all the disputes relating to Wakf property are to be decided or adjudicated upon by the legally established Tribunal created in terms of Section 83 of the Act. Taking survey of the statute, even a suit simplicitor for injunction in terms of  Section 38 of Specific Relief Act will lie within Domain of the Wakf Tribunal. The proviso is for the aggrieved plaintiff, branding himself as Mutawali, it will, squarely fall within role of Wakf established under the Wakf Act,

1995. Hence, recourse taken by present respondent by a suit before learned Civil Judge (J.D.) at Paranda was not warranted.

 {Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO. 71/2009

 Dastagir s/o Ahmed Jagirdar, Vs Ashar Sharif Dargah,Paranda

CORAM : K.U. CHANDIWAL, J

Date : 17th February, 2010.

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Whether the wakf tribunal can entertain suit for declaration in respect of wakf property?

 Aforesaid provisions show that the powers of Civil Court are vested with the Wakf Tribunal. The provisions also show that the suit of the present nature, the suit filed for declaration of rights by Shikmidars and for enforcement of their rights can be entertained by Wakf Tribunal and the decision of Wakf Tribunal needs to be treated as the decision of civil Court. {Para 26}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

CRA No. 10 of 2013

Decided On: 20.07.2015

Syed Muzafaruddin and Ors. Vs.  Syed Zeenat Bee and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: 2015(6) MHLJ 378,MANU/MH/1744/2015

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Supreme Court Judgment reiterating Constitution bench judgment on jurisdiction of civil court

 It has not been disputed that there is no express bar

under the Act on the jurisdiction of the civil court to entertain a

suit for damages. As set out above, all we need to determine is

whether the jurisdiction of the civil court is barred by necessary

implication. The principles laid down in Dhulabhai (supra) are

pertinent in this regard. While dealing with the question of

ouster of the jurisdiction of the civil court by specially

constituted tribunals, this Court concluded that such ouster was

not to be readily inferred unless the conditions set out by the

Court were satisfied. For the purposes of determining the

question before us, we need only refer to the following

conditions laid down by this Court in Dhulabhai (supra):

“… (1) Where the statute gives a finality to the

orders of the special Tribunals the civil courts’

jurisdiction must be held to be excluded if there is

adequate remedy to do what the civil courts would

normally do in a suit. Such provision, however, does

not exclude those cases where the provisions of the

particular Act have not been complied with or the

statutory Tribunal has not acted in conformity with

the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction

of the court, an examination of the scheme of the

particular Act to find the adequacy or the sufficiency

of the remedies provided may be relevant but is not

decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the

examination of the remedies and the scheme of the

particular Act to find out the intendment becomes

necessary and the result of the inquiry may be

decisive. In the latter case it is necessary to see if the

statute creates a special right or a liability and

provides for the determination of the right or liability

and further lays down that all questions about the

said right and liability shall be determined by the

Tribunals so constituted, and whether remedies

normally associated with actions in civil courts are

prescribed by the said statute or not.

x x x

(7) An exclusion of the jurisdiction of the civil court is

not readily to be inferred unless the conditions above

set down apply.”

(emphasis added)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8069 OF 2019

M. Hariharasudhan Vs  R. Karmegam 

MOHAN M. SHANTANAGOUDAR, J.

Dated:October 17, 2019.

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Leading Supreme Court judgment on exclusion of jurisdiction of civil court

The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-

(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 260 to 263 of 1967

Decided On: 05.04.1968

Dhulabhai  Vs. The State of Madhya Pradesh and Ors.

Hon'ble Judges/Coram:

M. Hidayatullah, C.J., A.N. Grover, C.A. Vaidialingam, K.S. Hegde and R.S. Bachawat, JJ.

Citation: AIR 1969 SC 78.

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Execution of partition decree by collector-when civil court has jurisdiction to control action taken by collector?

 Having heard the learned Counsel for the petitioner, I find that the learned District Judge could not have dismissed the appeal on the ground that the Civil Court becomes functus officio after it sends the decree for partition and cannot in any circumstances consider whether the Collector has effected partition in accordance with the decretal mandate. The reliance by the learned District Judge on the decision in the case of Lachhiram Jasram (supra) is misplaced. In the case before the Nagpur High Court the Applicant had applied under section 54 and Order XX, Rule 18 of the Code of Civil Procedure to the Court for issuing direction to the Collector to the effect that the partition should be effected in a certain manner, in particular, so as to allot as far as possible entire holdings to the share of the plaintiff. This application has been dismissed. On this fact the High Court took the view that the discretion as to the manner in which the partition is to be held lies wholly with the Collector and the Civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with that. The Court observed that in fact the suit terminates so far as the Civil Court is concerned on the passing of the preliminary decree affecting any estate assessed to the payment of revenue to the Crown. These observations were made obviously where anticipatory directions to the Collector were sought to require him to effect partition in a particular manner. This case is not an authority for the proposition that if the Collector has effected partition contrary to the decretal mandate his action is immune from the challenge before a Civil Court. On this question a Division Bench of this Court in Ningappa Balappa and Ors. v. Abashkhan Gouskhan, : AIR1956Bom345 , observed as follows :--

'5. It is true that it has been held in several cases that the Court is not entirely deprived of controlling the action taken by the Collector. But this control is very limited. It is to be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition or refused to execute the decree. See the cases cited at p. 228 of Sir Dinshaw Mulla 's Code of Civil Procedure, 12th Edition.

BOMBAY HIGH COURT

Reported in : AIR2003Bom314; 2003(1)ALLMR1158; 2003(3)BomCR15; 2003(2)MhLj216

Judge : S.A. Bobde, J.

Decided On : Jan-17-2003

Acts : Code of Civil Procedure (CPC) , 1908 - Sections 54

Case Number : Writ Petition No. 3438 of 1987

 Mahadu alias Mahadeo Baji Bhosale Vs Appaji Gunbarao @ Ganpatrao Bhosale since deceased by his heirs Gangabai Appaji Bhosale and Ors.

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Jurisdiction of civil court in case of Maharashtra Employees of Private School

The controversy in each such suit, therefore, has to be gone into on the above touchstone. We have seen from the pleadings in Civil Suit No. 165 of 1996 that the plaintiff seeks declaration that the Inquiry Committee constituted is void and defendant be restrained from holding any inquiry. Now, if this relief is seen, it would be clear that this relief does not relate to either dismissal, removal, termination, reduction in rank or supersession in promotion. This suit is, therefore, certainly out of cognizance of the Tribunal. The Civil Court, therefore, could certainly take cognizance of such a suit. Whether such a declaration and injunction could be granted or not would be a different question and we need not go into that.1

2007(3)ALLMR45, 2007(2)BomCR760, 2007(109)BOMLR717

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 235 of 2003

Decided On: 01.03.2007

Appellants: Sanjay Gandhi Shikshan Prasarak Mandal, A Society registered under Societies Registration Act, through its Secretary Shri Namdeo Nagorao Hajare

Vs.

Respondent: Nivrutti S/o Tukaram Borkar

Hon'ble Judges/Coram:
C.L. Pangarkar, J.

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How to ascertain jurisdiction of civil court in cases relating to special tribunals?

With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens,a trend can be noticed that most of such legislations confer decision making powers on various authorities and they seek to limit or exclude Court's power to review those decisions. The result is that the power of the Court under section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights conferred. The ouster of the jurisdiction of the Court is upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein Was adequate.
1.2.The situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute are concerned. In such cases,the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the person aggrieved may agitate his grievance. (535-G) 1.3.In spite of the bar placed on the power of the Court, orders passed under such statutes can be examined on "jurisdictional question". A suit will be-maintainable

Supreme Court of India

Shiv Kumar Chadha Etc.Etc vs Municipal Corporation Of Delhi ... on 4 May, 1993

Equivalent citations: 1993 SCR (3) 522, 1993 SCC (3) 161

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