Aghan Singh Vs. State of Chhattisgarh - (High Court of Chhattisgarh) (23 Jul 2019)

Validity of order cannot be determined by the parties and for setting aside such order, even if void, party has to approach appropriate forum

MANU/CG/0509/2019

Civil

The Plaintiff filed a suit for declaration of title and permanent injunction stating that, patta was granted in his favour by the Naib-Tahsildar, Kanker on 13th August, 1996, which was illegally revoked by the Sub-Divisional Officer suo moto by order dated 28th July, 98 in exercise of powers under Section 51 of the Madhya Pradesh Land Revenue Code, 1959. On appeal being preferred by the Plaintiff against the order of the SDO, the Collector, dismissed the same finding no merit.

Defendant No. 1 filed its written statement stating that, the Plaintiff has illegally encroached upon the suit land and patta granted to him has rightly been revoked by the Sub-Divisional Officer and order of the SDO has been affirmed by the Collector, Kanker.

The substantial question of law involved in present Plaintiff's second appeal is whether the findings of both the Courts below that, the Patta in favour of the Plaintiff of the suit land was not illegally cancelled, is justified in view of the fact that the same was passed without following the procedure prescribed under Section 51 of the Land Revenue Code and without affording an opportunity of hearing to the Plaintiff.

The Appellant/Plaintiff, would submit that, the order revoking patta granted to the Plaintiff by the Sub-Divisional Officer was clearly in breach of principle of natural justice and both the Courts below are absolutely unjustified in dismissing the suit of the Plaintiff.

It is well settled law that, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in a higher forum.

The Supreme Court following the principle of law laid down in M.K. Kunhikannan Nambiar's case, in the matter of Krishnadevi Malchand Kamathia and others v. Bombay Environmental Action Group and others again held that, whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.

Similarly, in the matter of Shyam Sundar Sarma v. Pannalal Jaiswal and others, a three-Judge Bench of the Supreme Court has clearly held that, an appeal which is dismissed for default or as barred by limitation is nevertheless an appeal in the eye of the law for all purposes and a decision in the appeal and the same cannot be treated on par with non-filing of an appeal or withdrawal of appeal.

In the facts of the present case, it is quite vivid that, the Plaintiff being party to the order of the Collector ought to have sought declaration/cancellation of that order, but he did not seek declaration/cancellation of that order. The Plaintiff's suit as framed and filed was simply for declaration of title and permanent injunction and without seeking declaration/cancellation of order of the Collector, it was not maintainable. Both the Courts below are absolutely justified in dismissing the suit. The concurrent finding recorded by two Courts below is the finding of fact based on evidence available on record. The substantial question of law is answered in favour of the Defendant and against the Plaintiff. Accordingly, the second appeal is dismissed.

Relevant : State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others MANU/SC/0240/1996; Krishnadevi Malchand Kamathia and Ors. vs. Bombay Environmental Action Group and Ors. MANU/SC/0085/2011

Tags : PATTA CANCELLATION LEGALITY