STATE OF M.P. & ANR.versusDUNGAJI (D) BY LRS. & ANR.

                        [2019] 9 S.C.R. 979                             979


                     STATE OF M.P. & ANR.                               A
                                 v.
                 DUNGAJI (D) BY LRS. & ANR.
                  (Civil Appeal No.11326 of 2011)
                           JULY 16, 2011                                B
            [M.R. SHAH AND A.S. BOPANNA, JJ.]
      Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960:
       s. 46 – Competent Authority while determining surplus land
of the plaintiff, included the land inherited by his wife from her      C
mother – Suit by plaintiff against the State challenging order of
Competent Authority and also against his wife seeking declaration
that the marriage between them was already dissolved by way of
customary divorce and hence land of her wife could not have been
considered for determining his surplus land – Suit dismissed by
                                                                        D
trial court as well as first appellate court – High Court, in second
appeal, decreed the suit – Appeal to Supreme Court – Held: In view
of s. 46 there was a complete bar against maintainability of the suit
before civil court challenging the decision of Competent Authority–
However, the suit qua his wife seeking declaration for divorce was
maintainable – The trial as well as first appellate court in their      E
concurrent finding disbelieved the customary divorce – Therefore,
High Court, in exercise of powers u/s. 100 CPC, was not justified
in interfering with the concurrent finding of facts and thus exceeded
its jurisdiction – Even on merits, the plaintiff failed to prove the
customary divorce – Plaintiff had come out with the case of
                                                                        F
customary divorce only with a view to get out of the provisions of
the Act – Suit is liable to be dismissed – Code of Civil
Procedure, 1908 – s. 100.
      Allowing the appeal, the Court
      HELD: 1. By Order dated 18.05.1976 and after following            G
due procedure required to be followed under the provisions of
Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960, the
Competent Authority declared 57.32 acres of land as surplus land
under the provisions of the Act 1960. As wife of the plaintiff had
inherited 19.89 hectares of land from her mother, therefore, as
                                                                        H
                               979
980            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     such, she became the absolute owner of the aforesaid land. As
      per the provisions of the Act, the land held by the wife was
      required to be included in the holding of the family of the husband.
      Therefore, the Competent Authority included 19.89 hectares of
      land in the holding of the family of the plaintiff and consequently
      by Order dated 18.05.1976 declared 57.32 acres of land as surplus
B
      land. [Para 7] [990-C-D]
            2. The Order passed by the Competent Authority declaring
      the land as surplus land is subject to appeal and further revision
      as provided under the Act 1960 (Section 41 and 42 of the Act
      1960). Section 46 of the Act 1960 provides that no Civil Court
C     has jurisdiction to settle, decide or deal with any question which
      is by or under the Act 1960 required to be settled, decided or
      dealt with by the Competent Authority. Therefore, as per Section
      46 of the Act 1960 there shall be a complete bar against
      maintainability of the suit challenging the decision of the
D     Competent Authority. Despite the above and without preferring
      any appeal/revision as provided under the Act 1960 challenging
      the Order passed by the Competent Authority dated 18.05.1976,
      the plaintiff filed the suit before the Civil Court praying for a
      declaration to declare the Order dated 18.05.1976 of the
      Competent Authority as null and void. It is true that in the suit
E     the plaintiff also prayed for declaration to declare that the divorce
      had taken place between him and his wife on the basis of the
      customary procedure. Therefore, as such, the suit qua the same
      relief can be said to be maintainable. But certainly, the suit
      challenging the Order passed by the Competent Authority dated
F     18.05.1976 was not maintainable at all. Therefore, in the facts
      and circumstances of the case, the High Court has materially
      erred in quashing and setting aside the Order dated 18.05.1976
      passed by the Competent Authority. [Para 7] [990-E-H;
      991-A-C]
G           Sooraj v. SDO (1995) 2 SCC 45 : [1994] 5 Suppl. SCR
            686; Mohanlal NanbhaiChoksi (Dead) by LRs. v. State
            of Gujarat (2010) 12 SCC 726 : [2010] 12 SCR
            499 – relied on.
            Dhulabhai v. State of Madhya Pradesh AIR 1969 SC
H           78 : [1968] SCR 662 – distinguished.
   STATE OF M.P. & ANR. v. DUNGAJI (D) BY LRS. & ANR.                   981


      Union of India v. Shri Kant Sharma (2015) 6 SCC                   A
      773 : [2015] 4 SCR 676; Swapnanjali Sandeep Patil
      v. Sandeep Ananda Patil (2019) SCC Online SC 329;
      Subramani v. M. Chandralekha (2005) 9 SCC 407:
      [2004] 6 Suppl. SCR 285; Yamanaji J. Jadhav v. Nirmala
      (2002) 2 SCC 637; Dwarka Prasad Agarwal v. Ramesh
                                                                        B
      Chander Agarwal (2003) 6 SCC 220 : [2003] 1 Suppl.
      SCR 376 – referred to.
      3. There were concurrent findings of facts recorded by both
the Courts below that the original plaintiff has failed to prove and
establish that the divorce had already taken place between the
plaintiff and his wife by way of customary divorce. Both the Courts     C
below specifically disbelieved the Divorce Deed at Exhibit P5.
The aforesaid findings were recorded by both the Courts below
on appreciation of evidence on record. Therefore, as such, in
exercise of powers under Section 100 of the CPC, the High Court
was not justified in interfering with the aforesaid findings of facts   D
recorded by both the Courts below. Therefore, the High Court
has exceeded in its jurisdiction while passing the impugned
Judgment and Order in the Second Appeal under Section 100 of
the CPC. [Para 8] [991-F-H]
      4. Even on merits both the Courts below were right in             E
holding that the plaintiff failed to prove the customary divorce as
claimed. At no point of time earlier either the plaintiff or his wife
claimed customary divorce on the basis of Divorce Deed at
Exhibit P5. At no point of time earlier it was the case on behalf of
the plaintiff or his wife that there was a divorce in the year 1962
between the plaintiff and his wife. In the year 1971, wife of the       F
plaintiff executed a Sale Deed in which she is stated to be the
wife of the plaintiff. Before the Competent Authority neither the
plaintiff nor his claimed the customary divorce. Even in the
Revenue Records the name of plaintiff’s wife was mutated. In
the circumstances and on appreciation of evidence on record,            G
the Trial Court rightly held that the plaintiff has failed to prove
the divorce between as per the custom. Only with a view to get
out of the provisions of the Ceiling Act 1960, subsequently and
much belatedly, the plaintiff came out with a case of customary
divorce. Exhibit P5 was got up and concocted document with a
                                                                        H
982            SUPREME COURT REPORTS                       [2019] 9 S.C.R.


A     view to get out of the provisions of the Ceiling Act 1960. The
      High Court has clearly erred in interfering with the findings of
      facts recorded by the Courts below which were on appreciation
      of evidence on record. [Paras 9 and 9.1] [992-A-F]
                              Case Law Reference
B     [1994] 5 Suppl. SCR 686         relied on               Para 4.2
      [2010] 12 SCR 499               relied on               Para 4.2
      [1968] SCR 662                  distinguished           Para 4.2
      [2015] 4 SCR 676                referred to             Para 4.2
C
      (2019) SCC Online SC 329        referred to             Para 4.5
      [2004] 6 Suppl. SCR 285         referred to             Para 4.5
      (2002) 2 SCC 637                referred to             Para 4.5
      [2003] 1 Suppl. SCR 376         referred to             Para 5.3
D

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11326
      of 2011
           From the Judgment and Order dated 29.10.2010 of the High Court
E     of Madhya Pradesh, Bench at Indore in Second Appeal No. 580 of 2003
           Ms. Prachi Mishra, Harsh Parashar, Chaitanya, Aman Pandey,
      Sunny Choudhary, Advs. for the Appellants.
            Guru Krishna Kumar, Sr. Adv., Divyakant Lahoti, Anand Soni,
      Piyush Singh, Ardhendumauli Kumar Prasad, Advs. for the Respondents.
F
            The Judgment of the Court was delivered by
             M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the
      impugned Judgment and Order dated 29.10.2010 passed by the High
      Court of Madhya Pradesh, Bench at Indore in Second Appeal No.580
G     of 2003 by which the High Court has allowed the said appeal preferred
      by the respondent-original plaintiff – Dungaji (now represented by his
      legal representatives) and consequently has decreed the suit declaring
      that the marriage between Dungaji (original plaintiff) and his wife
      Kaveribai had been dissolved by way of customary divorce, much prior

H
   STATE OF M.P. & ANR. v. DUNGAJI (D) BY LRS. & ANR.                          983
                     [M.R. SHAH, J.]

to the coming into force the provisions of the Madhya Pradesh Ceiling          A
on Agricultural Holdings Act, 1960 (hereinafter referred to as ‘the Act’)
and that the property inherited by Kaveribai from her mother, after divorce,
cannot be treated to be a family property of Dungaji for the purposes of
determination of surplus area under the Act and the High Court has also
held that the Competent Authority had not followed the mandatory
                                                                               B
provisions of law before passing the order dated 18.05.1976 and
consequently has declared the same order as null and void, the State of
Madhya Pradesh and another have preferred the present appeal.
      2. The facts leading to the present appeal in nutshell are as under:
       That, Kaveribai, wife of Dungaji, in the year 1966 inherited 19.89      C
hectares of land (land in dispute) after the death of her mother. That the
said Kaveribai said to have sold the land in dispute through a Sale Deed
dated 18.11.1971. That the proceedings were initiated before the
Competent Authority under the Act regarding determination of surplus
land. That the Competent Authority by its order dated 18.05.1976 treated
Kaveribai as a member of the family of Dungaji and included 19.89              D
hectares of land inherited by her from her mother as the land held by the
family of Dungaji for the purpose of determination of surplus area.
       2.1 That Dungaji instituted a suit before the learned Civil Court,
Ujjain challenging the order dated 18.05.1976 passed by the Competent
Authority under the Act, 1960.That the learned Trial Court by its Judgment     E
and Decree dated 27.04.1988 dismissed the suit and upheld the order
dated 18.05.1976 passed by the Competent Authority. That being
aggrieved by Judgment and Decree dated 27.04.1988 passed by the
learned Civil Judge, Ujjain, Dungaji preferred First Appeal No. 26-A/
1989 before the First Appellate Court. The said appeal came to be              F
allowed. The learned First Appellate Court remanded the matter back to
the learned Civil Judge for fresh consideration after giving an opportunity
of hearing toDungaji. That thereafter Dungaji instituted a Civil Suit No.48-
A/2002 before the learned Civil Judge, Ujjain against State of Madhya
Pradesh and Kaveribai for declaration that the Order dated 18.05.1976
passed by the Competent Authority under the Act is illegal and null &          G
void and also for a declaration of divorce between the plaintiff and
Kaveribai and also for declaration that the plaintiff (Dungaji) does not
have excess land under the provisions of the Act, 1960.

                                                                               H
984             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A             2.2 That, it was the case on behalf of the original plaintiff-Dungaji
      that he had three wives Kaveribai, Kashibai and Nanibai. That after he
      had married Kashibai and Nanibai, his first wife Kaveribai started
      quarrelling with him and consequently, being fed up with the daily quarrel
      in the family, he had divorced Kaveribai 17 years prior to the filing of the
      suit as per the custom prevalent in the community. According to the
B
      plaintiff after the said divorce he and Kaveribai had been living separately
      and there had been no relationship of husband and wife between them.
      According to the plaintiff, after the aforesaid divorce, Kaveribai started
      living with her mother Amritabai. Amritabaihad died and as such Kaveribai
      had inherited the land owned by her mother-Amrita Bai and the same
C     land had been even mutated in the name of Kaveribai. The plaintiff
      pleaded that he had no concern with the aforesaid land owned by
      Kaveribai and therefore the same cannot be included in the holdings of
      the family of Dungaji. According to the plaintiff, Kaveribai is wrongly
      being treated as member of the family of plaintiff even after the divorce.
      According to the plaintiff, Order dated 18.05.1976 was null and void and
D
      not binding upon the rights of the plaintiff. The plaintiff also pleaded that
      proper procedure had not been followed by the Competent Authority
      while passing the order dated 18.05.1976.
             2.3 Kaveribai as original defendant no.3 filed a written statement
      and admitted that she had been divorced from the plaintiff-Dungaji. She
E     also admitted that she had inherited a land measuring 19.89 hectares
      from her mother-Amritabai. The original defendant nos.1 and 2-the State
      of Madhya Pradesh and another(appellants herein) opposed the suit by
      filing a separate written statement. Defendant nos.1 and 2 denied that
      Dungaji had ever been divorced with Kaveribai and the land inherited by
F     her from her mother was not to be included in the land held by the family
      of Dungaji. The Trial Court framed the requisite issues. The parties led
      their evidence. On appreciation of evidence, the learned Trial Court
      dismissed the suit by Judgment and Decree dated 22.10.2002. The learned
      Trial Court specifically observed and held that the plaintiff has failed to
      prove that there is any customary divorce which has taken place between
G     the plaintiff and Kaveribai. The Judgment and Decree passed by the
      learned Trial Court came to be confirmed by the First Appellate Court.
      The original plaintiff carried the matter to the High Court by way of
      Second Appeal No.580 of 2003. The High Court framed the following
      substantial questions of law :
H
   STATE OF M.P. & ANR. v. DUNGAJI (D) BY LRS. & ANR.                        985
                     [M.R. SHAH, J.]

      “1. Had the findings recorded by both the Courts below that the        A
      customary divorce between late Dungaji and late Smt. Kaveribai
      had not been proved, been perverse and arbitrary, disregarding
      the oral evidence which had support of the documents and
      affidavits of both late Dungaji and late Smt. Kaveribai, though,
      there had been no cross-examination on the point and no rebuttal
                                                                             B
      was led evidence on mere surmises or suspicion that theory of
      such divorce was put to defeat the provision of the Ceiling Act?
      2. Could the property inherited by Smt. Kaveribai from her mother
      form part of family property of late Dungaji and thus be declared
      surplus?
                                                                             C
      3. Could the competent authority dismiss the objections of late
      Dungaji without holding any enquiry which was mandatory under
      the Provisions of the Ceiling Act?”
       2.4 That by the impugned Judgment and Order, the High Court
has allowed the said appeal and has quashed and set aside the Judgment       D
and Decree passed by the First Appellate Court as well as the learned
Trial Court, dismissing the suit and consequently has decreed the suit
and has held that the marriage between Dungaji and Kaveribai has been
dissolved by way of customary divorce, much prior to the coming into
force the provisions of the Act,1960 and also that the property, inherited
by Kaveribai from her mother, after divorce, cannot be treated to be         E
family property of Dungaji for the purposes of determination of surplus
area. By the impugned Judgment and Order, the High Court has also
held that the Competent Authority had not followed the mandatory
provisions of law before passing order dated 18.05.1976 and consequently
has held the order dated 18.05.1976 as null and void.                        F
      2.5 Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court in Second Appeal No.580 of 2003,
original defendant nos.1 and 2-the State of Madhya Pradesh and another,
have preferred the present appeal.
      3. Ms. Prachi Mishra, learned Counsel has appeared on behalf           G
of the appellant-State and Mr. Guru Krishna Kumar, learned Senior
Counsel has appeared on behalf of the respondents.
      4. Ms. Prachi Mishra, learned Counsel appearing on behalf of
the appellant-State has vehemently submitted that in the facts and
                                                                             H
986             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A     circumstances of the case, the High Court has committed a grave error
      in allowing the Second Appeal and interfering with the findings of facts
      recorded by both the Courts below.
            4.1 It is further submitted by Ms. Prachi Mishra, learned Counsel
      appearing on behalf of the appellant-State that while passing the impugned
B     Judgment and Order, the High Court has exceeded in its jurisdiction
      while deciding the Second Appeal under Section 100 of the CPC which
      was against the concurrent findings recorded by both the Courts below.
             4.2 It is further submitted by Ms. Prachi Mishra, learned Counsel
      appearing on behalf of the appellant-State that the High Court has
C     materially erred in not appreciating the fact that suit filed by the original
      plaintiff challenging the Order passed by the Competent Authority dated
      18.05.1976 declaring 57.32 acres of land as surplus under Section 7 of
      the Act, was not maintainable at all. It is submitted that the High Court
      has failed to appreciate the fact that the jurisdiction of the Civil Court
      was expressly barred under Section 46 of the Act, 1960. In support of
D     her above submissions, learned counsel for the State has heavily relied
      upon the decisions of this Court in the case of Sooraj v. SDO (1995) 2
      SCC 45; Mohanlal Nanbhai Choksi (Dead) by Lrs. v. State of Gujarat
      (2010) 12 SCC 726; Dhulabhai v. State of Madhya Pradesh AIR
      1969 SC 78 as well as Union of India v. Shri Kant Sharma (2015) 6
E     SCC 773. Relying upon the above decisions and relying upon Section 46
      of the Act 1960, it is vehemently submitted that the suit filed by the
      original plaintiff challenging the Order passed by the Competent Authority
      dated 18.05.1976 was not maintainable at all. It is submitted, therefore,
      the High Court has materially erred in quashing and setting aside the
      Order passed by the Competent Authority declaring 57.32acres of land
F     as surplus land. It is submitted that therefore the entire proceedings
      before the Civil Court were void abinitio.
             4.3 It is further submitted by Ms. Prachi Mishra, learned Counsel
      appearing on behalf of the appellant-State that even otherwise on merits
      also the High Court has failed to appreciate that there are concurrent
G     factual findings recorded against Dungaji and Kaveribai by both the Courts
      below. It is submitted that both the Courts below, on appreciation of
      evidence on record, specifically observed and held that the plaintiff
      Dungaji has failed to prove the customary divorce between him and

H
   STATE OF M.P. & ANR. v. DUNGAJI (D) BY LRS. & ANR.                            987
                     [M.R. SHAH, J.]

Kaveribai. It is submitted that the High Court has materially erred in not       A
properly appreciating the fact that on appreciation of evidence on record
both the Courts below specifically gave the finding that the plaintiff-
Dungaji failed to prove customary divorce between Dungaji and
Kaveribai.
       4.4 It is submitted that the High Court has failed to appreciate          B
the fact that Kaveribai herself executed a Sale Deed in favour of Padam
Singh in the year 1971 in which she has specifically stated that she is the
wife of Dungaji. It is submitted that, therefore, both the Courts below, as
such, rightly found that the plaintiff has failed to prove any customary
divorce between Dungaji and Kaveribai.
                                                                                 C
        4.5 It is further submitted by Ms. Prachi Mishra, learned Counsel
appearing on behalf of the appellant-State that the High Court has failed
to appreciate the fact that Dungaji has failed to prove and establish the
factum of customary divorce and has also not proved that such a
customary practice exists in his society. It is submitted that no such
evidence was led in this regard. It is submitted that, as per the settled        D
proposition of law, Hindu marriage can be dissolved only in accordance
with the provisions of the Hindu Marriage Act, 1955. It is submitted that
as held by this Court in the case of Swapnanjali Sandeep Patil v.
Sandeep Ananda Patil (2019) SCC Online SC 329; Subramani v. M.
Chandralekha (2005) 9 SCC 407 and Yamanaji J. Jadhav v. Nirmala                  E
(2002) 2 SCC 637, if a customary divorce practice is claimed in a
community then the same needs to be clearly established. It is submitted
that in the present case, the original plaintiff failed to prove and establish
the factum of divorce/customary divorce. It is submitted that in any
case when on appreciation of evidence both the Courts below disbelieved
concurrently a customary divorce as prayed by the plaintiff, the same            F
was not required to be interfered with by the High Court in exercise of
its powers under Section 100 of the CPC. It is submitted that as such
there was no substantial question of law before the High Court. It is
submitted that the High Court has materially erred in allowing the Second
Appeal and quashing and setting aside the concurrent findings recorded           G
by both the Courts below on the customary divorce pleaded by the
plaintiff.
      4.6 Making the above submissions, it is prayed to allow the present
appeal.
                                                                                 H
988             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           5. Present appeal is vehemently opposed by Mr. Guru Krishna
      Kumar, learned Senior Counsel appearing on behalf of the respondent(s)
      herein-original plaintiff.
             5.1 Mr. Guru Krishna Kumar, learned Senior Counsel appearing
      on behalf of the respondent(s) herein-original plaintiff has vehemently
B     submitted that in the facts and circumstances of the case, the High Court
      has not committed any error in passing the decree of declaration declaring
      that the marriage between Dungaji and Kaveribai was dissolved in the
      year 1962. It is submitted that once there was a divorce as per the
      customary divorce between Dungaji and Kaveribai, the land held by
      Kaveribai could not have been included in the holdings of the family of
C     Dungaji. It is submitted that, therefore, the High Court has rightly allowed
      the appeal.
             5.2 It is submitted that while allowing the appeal and decreeing
      the suit, the High Court has considered the relevant evidence on record
      including Deed of Divorce; statement of PW1-Padam Singh; statement
D     of PW2-Ram Chandra; statement of PW3-Mangilal and affidavit of
      Kaveribai. It is submitted that the appellants herein-original defendants
      have not cross-examined any of the aforesaid witnesses who firmly
      deposed on the factum of divorce. It is submitted that therefore statement
      of aforesaid witnesses remained unchallenged before the lower Courts.
E            5.3 It is further submitted by Mr. Guru Krishna Kumar, learned
      Senior Counsel appearing on behalf of the respondent(s) herein-original
      plaintiff that as the land held by Kaveribai which she inherited from her
      mother, was not required to be included in the holdings of the family of
      Dungaji and no proper procedure, as required to be followed under the
F     Act 1960, was followed, the suit filed by the plaintiff for a declaration to
      declare the Order dated 18.05.1976 of the Competent Authority as null
      and void was maintainable. It is submitted that the relief sought in the
      suit would not fall in either of the two categories mentioned in Section 46
      of the Act 1960. It is submitted that the major issue is in respect of the
      divorce between Dungaji and Kaveribai. It is submitted that therefore,
G     the said issue was not covered under Section 46 of the Act 1960. It is
      vehemently submitted by Mr. Guru Krishna Kumar, learned Senior
      Counsel appearing on behalf of the respondent(s) herein-original plaintiff
      that as held by this Court in the case of Dwarka Prasad Agarwal v.
      Ramesh Chander Agarwal (2003) 6 SCC 220 that the bar of jurisdiction
H
   STATE OF M.P. & ANR. v. DUNGAJI (D) BY LRS. & ANR.                          989
                     [M.R. SHAH, J.]

of a Civil Court is not required to be readily inferred and a provision        A
seeking to bar jurisdiction of a Civil Court requires strict interpretation.
It is submitted that as held by this Court in the aforesaid decision the
Court, it is well settled, would normally lean in favour of construction,
which would uphold retention of jurisdiction of the Civil Court.
       5.4 It is submitted by Mr. Guru Krishna Kumar, learned Senior           B
Counsel appearing on behalf of the respondent(s) herein-original plaintiff
that even otherwise as there was a grave procedural lapse on the part of
the Competent Authority, the jurisdiction of the Civil Court cannot be
barred. In support of his above submission learned Senior Counsel
appearing on behalf of the original plaintiff has vehemently relied upon
the decision of this Court in the case of Dhulabhai(supra).                    C

      5.5 Making the above submissions, it is prayed to dismiss the
present appeal.
       6. Heard learned counsel appearing on behalf of the respective
parties at length. At the outset, it is required to be noted that by the       D
impugned Judgment and Order, the High Court in exercise of its powers
under Section 100 of the CPC has allowed the Second Appeal and has
reversed the concurrent findings recorded by both the Courts below and
consequently has decreed the suit and has declared and held that the
marriage between Dungaji and Kaverbai had been dissolved by way of
customary divorce, much prior to the coming into force the provisions of       E
the Act 1960. The High Court has also set aside the Order dated
18.05.1976 passed by the Competent Authority declaring 57.32 acres of
land as surplus land under the provisions of the Act 1960. The learned
Trial Court dismissed the suit by specifically observing on appreciation
of evidence on record that the plaintiff has failed to prove that divorce      F
has already been taken place between the plaintiff-Dungaji and Kaveribai
according to the prevalent custom of the society. The learned Trial Court
also specifically observed and held on appreciation of evidence on record
that the execution of the Divorce Deed at Exhibit P1 is not proved. The
Judgment and Decree passed by the learned Trial Court came to be
confirmed by the First Appellate Court. However, in Second Appeal              G
under Section 100 of the CPC, the High Court has interfered with the
aforesaid findings of facts recorded by the learned Trial Court confirmed
by the First Appellate Court. Therefore the short question which is posed
for the consideration of this Court is, whether in the facts and
                                                                               H
990             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A     circumstances of the case, the High Court was justified in allowing the
      Second Appeal and consequently decreeing the suit and holding that the
      marriage between Dungaji and Kaveribaihad been dissolved by way of
      customary divorce and therefore the Order passed by the Competent
      Authority dated 18.05.1976 is null and void?
B            7. Having heard learned Counsel appearing on behalf of the
      respective parties and considering the evidence on record and the findings
      of facts recorded by the learned Trial Court confirmed by the First
      Appellate Court, it appears that by Order dated 18.05.1976 and after
      following due procedure required to be followed under the provisions of
      Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960, the
C     Competent Authority declared 57.32 acres of land as surplus land under
      the provisions of the Act 1960. AsKaveribai-wife of Dungabai inherited
      19.89 hectares of land from her mother Amritabai, therefore, as such,
      she became the absolute owner of the aforesaid land. As per the provisions
      of the Act, the land held by the wife was required to be included in the
D     holding of the family of the husband. Therefore, the Competent Authority
      included 19.89 hectares of land in the holding of the family of Dungaji
      and consequently by Order dated 18.05.1976 declared 57.32 acres of
      land as surplus land. It is not in dispute that the Order passed by the
      Competent Authority declaring the land as surplus land is subject to appeal
      and further revision as provided under the Act 1960 (Section 41 and 42
E     of the Act 1960). Section 46 of the Act 1960 provides that no Civil
      Court has jurisdiction to settle, decide or deal with any question which is
      by or under the Act 1960 required to be settled, decided or dealt with by
      the Competent Authority. Therefore, as per Section 46 of the Act 1960
      there shall be a complete bar against maintainability of the suit challenging
F     the decision of the Competent Authority. Despite the above and without
      preferring any appeal/revision as provided under the Act 1960 challenging
      the Order passed by the Competent Authority dated 18.05.1976, Dungaji
      filed the suit before the Civil Court praying for a declaration to declare
      the Order dated 18.05.1976 of the Competent Authority as null and void.
      Therefore, as such, considering the bar under Section 46 of the Act
G     1960, the suit filed by Dungaji challenging the Order dated 18.05.1976
      passed by the Competent Authority, was not at all maintainable. It is true
      that in the suit the plaintiff also prayed for declaration to declare that the
      divorce had taken place between Dungaji and Kaveribai on the basis of

H
   STATE OF M.P. & ANR. v. DUNGAJI (D) BY LRS. & ANR.                            991
                     [M.R. SHAH, J.]

the customary procedure. Therefore, as such, the suit qua the same               A
relief can be said to be maintainable. But certainly, the suit challenging
the Order passed by the Competent Authority dated 18.05.1976 was not
maintainable at all. The view which we are taking is supported by the
decisions of this Court in the case of Sooraj(supra); Mohanlal Nanbhai
Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of
                                                                                 B
this Court in the case of Dhulabhai(Supra) relied upon by the learned
Counsel appearing on behalf of the original plaintiffs, shall not be
applicable to the facts of the case on hand and/or the same shall not be
applicable to any reliefs sought in the suit. Therefore, in the facts and
circumstances of the case, the High Court has materially erred in quashing
and setting aside the Order dated 18.05.1976 passed by the Competent             C
Authority.
       8. Now, so far as the impugned Judgment and Order passed by
the High Court declaring and holding that the marriage between Dungaji
and Kaveribai had been dissolved by way of customary divorce, much
prior to the coming into force the provisions of the Act 1960 and therefore      D
after divorce, the property inherited by Kaveribai from her mother cannot
be treated to be holding of the family property of Dungaji for the purposes
of determination of surplus area is concerned, at the outset, it is required
to be noted that as such there were concurrent findings of facts recorded
by both the Courts below specifically disbelieving the dissolution of
marriage between Dungaji and Kaveribai by way of customary divorce               E
as claimed by Dungaji-original plaintiff. There were concurrent findings
of facts recorded by both the Courts below that the original plaintiff has
failed to prove and establish that the divorce had already taken place
between Dungaji and Kaveribai according to the prevalent custom of
the society. Both the Courts below specifically disbelieved the Divorce          F
Deed at Exhibit P5. The aforesaid findings were recorded by both the
Courts below on appreciation of evidence on record. Therefore, as such,
in exercise of powers under Section 100 of the CPC, the High Court
was not justified in interfering with the aforesaid findings of facts recorded
by both the Courts below. Cogent reasons were given by both the Courts
below while arriving at the aforesaid findings and that too after                G
appreciation of evidence on record. Therefore, the High Court has
exceeded in its jurisdiction while passing the impugned Judgment and
Order in the Second Appeal under Section 100 of the CPC.

                                                                                 H
992             SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A            9. Even on merits also both the Courts below were right in holding
      that Dungaji failed to prove the customary divorce as claimed. It is
      required to be noted that at no point of time earlier either Dungaji or
      Kaveribai claimed customary divorce on the basis of Divorce Deed at
      Exhibit P5. At no point of time earlier it was the case on behalf of the
      Dungaji and/or Kaveribai that there was a divorce in the year 1962
B
      betweenDungaji and Kaveribai. In the year 1971, Kaveribai executed a
      Sale Deed in favour of Padam Singh in which Kaveribai is stated to be
      the wife of Dungaji. Before the Competent Authority neither Dungaji
      nor Kaveribai claimed the customary divorce. Even in the Revenue
      Records also the name of Kaveribai being wife of Dungaji was mutated.
C     In the circumstances and on appreciation of evidence on record, the
      Trial Court rightly held that the plaintiff has failed to prove the divorce
      between Dungaji and Kaveribai as per the custom.
             9.1 At this stage, it is required to be noted that before the
      Competent Authority, Kaveribai submitted the objections. Before the
D     Competent Authority, she only stated that she is living separately from
      Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted
      by her. However, before the Competent Authority neither Dungaji nor
      Kaveribai specifically pleaded and/or stated that they have already taken
      divorce as per the customs much prior to coming into force the Act of
      1960. Therefore, as rightly observed by the learned Trial Court and the
E     First Appellate Court only with a view to get out of the provisions of the
      Ceiling Act 1960, subsequently and much belatedly, Dungaji came out
      with a case of customary divorce. As rightly observed by the learned
      Trial Court that Divorce Deed at Exhibit P5 was got up and concocted
      document with a view to get out of the provisions of the Ceiling Act
F     1960. As observed hereinabove, the High Court has clearly erred in
      interfering with the findings of facts recorded by the Courts below which
      were on appreciation of evidence on record.
            10. In view of the above and for the reasons stated above, the
      present appeal succeeds. Impugned Judgment and Order dated
G     29.10.2010 passed by the High Court is hereby quashed and set aside
      and the Judgment and Decree passed by the learned Trial Court
      confirmed by the learned First Appellate Court is hereby restored.
      Consequently, the suit preferred by Dungaji stands dismissed. No costs.


H     Kalpana K. Tripathy                                          Appeal allowed.