BHAIRAB MAHTO Vs. DALO RAM MAHTO

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed a suit for declaration that he was entitled to a conveyance of the property in view of Sec.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and for a further declaration that the sale deed executed by defendants 1 and 2 in the suit in favour of defendants 3 to 5 was invalid. According to the plaintiff, he was a co -sharer of the plot adjacent to the property assigned by defendant No. 1 and in terms of Sec.16(3) of the Act, he had a right of pre -emption to get the suit property conveyed to him and in that context, his right in that behalf had to be declared and the sale deed executed in favour of others had to be nullified. The suit was resisted by the defendants by contending that the suit was not maintainable since it was barred by Sec. 43 of the Act.

(2.) IN terms of Order XIV Rule 2 of the Code of Civil Procedure, the Trial Court considered the question of maintainability of the suit as a preliminary issue since the facts in that regard were not in dispute. It held that the suit was barred by Sec. 43 of the Act and hence it was not maintainable. The suit was, thus, dismissed. The plaintiff filed an appeal. The lower appellate Court agreed with the conclusion of the Trial Court that the suit was not maintainable and dismissed the appeal. This Second Appeal challenges the decision of the lower appellate Court.

(3.) THE plaintiff has claimed a right only in terms of Sec.16(3) of the Bihar Land Reforms Act. That section confers a fight on a co -sharer or a raiyat of adjoining land to make an application before the Collector in the prescribed manner for the transfer of and to him on the terms and conditions contained in the sale deed executed by a person in favour of another, in violation of his right under Sec.16(3) of the Act. The section while conferring the right which can be called a right of preemption on a co -sharer or a raiyat of an adjacent land, also creates the forum through which that right has to be worked out. That forum is the Collector in terms of Sec.16(3) of the Act and the relief has to be obtained through that machinery provided by this Act, by making an appropriate application and on complying with the conditions laid down by the Section. When a statute confers a right on a person and also provides a machinery for the enforcement of that right, a person claiming to enforce that statutory right has to invoke that machinery alone for getting relief and he is not entitled to approach the Civil Court having general jurisdiction to claim that relief. This is not a case of mere conferment of a right by the statute. This is also a case of that statute proving the machinery for working out that right. This comes within the third class of cases envisaged by Willes, J. in Wolverhamption New Water Works Company V/s. Hawkesford, 1859 6 CB (NS) 336. At page 356, the learned Judge stated thus :