OLPHERTS PVT. LTD. Vs. SARLA DEVI MAHILA MANDAL

JUDGEMENT

(1.) This civil revision has been preferred by the petitioner/defendant 1 challenging the order dtd. 19/7/2023 passed by 3rd Civil Judge Junior Division, Katni in RCSA No.218/2021 whereby defendant 1's application under Order 7 Rule 11 CPC has been dismissed.

(2.) Learned counsel for the petitioner submits that the plaintiffs/ respondents 1-2 being encroachers on the land, an order of dispossession was passed on 23/2/2021 by Tahsildar Katni under Sec. 248 of the MP Land Revenue Code, 1959 (in short 'the Code'), against which an appeal was preferred by the plaintiffs before SDO, which was also dismissed on 23/9/2021, but during pendency of this appeal itself, the plaintiffs instituted instant suit on 27/7/2021 even without waiting for decision of revenue first appeal. He submits that the order passed by SDO was also challenged by plaintiffs before Additional Commissioner by filing revenue second appeal, which was dismissed on 28/10/2021 as not maintainable and W.P. No. 24685/2021 filed against which, was not entertained due to filing of civil suit and was disposed off on 15/11/2021 by the High Court and taking benefit of this order passed by High Court observing therein to pursue remedy of civil suit, the plaintiffs want to continue with the suit, whereas on the date of filing of civil suit, it was not maintainable without exhausting all the statutory remedies available under the Code. By placing reliance on decision of Supreme Court in the case of DHULABHAI ETC. VERSUS STATE OF M.P. AND ANOTHER AIR 1969 SC 78 (para 32) he submits that where a special statute provides alternative remedy, then jurisdiction of civil Court is excluded. Although he also placed reliance on a decision of a co-ordinate Bench of this Court in the case of Mansik Chikitsalaya, Gwalior (Director) 2007(1) MPLJ 206 = 2007 RN 95, but learned senior counsel himself concedes and submits that of course the plaintiffs can file civil suit seeking declaration of title before civil Court but they can do so only after exhausting all the statutory remedies available under the Code. He submits that if plaintiffs do not challenge the order of Sec. 248 of the Code dtd. 23/2/2021 by availing all the statutory remedies, the order becomes final and in any case in midway they cannot file the civil suit. He further submits that plaintiffs have no cause of action because they have filed the suit for declaration of title on the basis of adverse possession and have not been able to place sufficient material before the civil Court, for acquisition of title on the basis of adverse possession and just with a view to protect their possession, they have filed the suit for declaration of title and permanent injunction, in which their application under Order 39 Rule 1 & 2 CPC, has already been dismissed. With the aforesaid submissions learned senior counsel prays for allowing the civil revision. Relevant part of order dtd. 15/11/2021 passed in WP No. 24685 of 2021 is quoted as under :

(3.) Learned counsel appearing for the respondents 1-2/plaintiffs supports the impugned order and prays for dismissal of the civil revision.