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Madhya Pradesh High Court · body

1978 DIGILAW 421 (MP)

Shambhoodayal Saxena v. Vijay Singh

1978-04-28

H.G.MISHRA

body1978
Short Note : 1. The plaintiff applicant has instituted a suit for permanent injunction against the defendant-non-applicants in respect of land comprised in survey nos. 191, 192, 193 and 195 situate in Mauja Ghatampur in Tahsil Gwalior on the averments that the aforesaid land was allotted to him under section 62 of the MBLRT Act, 1950 (Act No. 66 of 1950). It is further alleged that in pursuance of that allotment order the Patta dated 28.7.1950 is stated to have been granted to the plaintiff-applicant. Then litigation in the revenue Courts between parties is stated to have remained pending for a number of years. The plaintiff has further alleged that on 11.6.1972 a notice was issued by the Tahsildar, Gwalior for giving delivery of possession of the aforesaid land to the plaintiff-applicant. This notice was served on non-applicant (contesting defendant Vijaisingh Rao) on 11.6.1972. It is also stated that on 12.6.1972 the Nazir of Tahsil in accompaniment of the Patwari of the village concerned went on the spot and effected delivery of possession of the suit land. 2. The learned counsel for both the parties admitted before the High Court that the order of mutation passed by the Tahsildar is subject to appeal which pending still in the Court of S.D.O. 3. It is true that a notice of order of delivery of possession was served on non-applicant No. 1 on 11.6.1972 but from perusal of the report of the Nazir pertaining to the delivery of possession on 12.6.1972, it is clear that there was enclosure around the suit-land in a door of which lock of the non-applicant No. 1 was hanging. I have gone through the report of the Nazir. It is nowhere stated that the lock was broken open and the actual delivery of the suit- land was effected. The procedure of delivery of possession is to be in accordance with that provided in Order 21, Rule 35 CPC. Neither in the Madhya Bharat Land Revenue and Tenancy Act, 1950 nor under any rules made thereunder, procedure for effecting delivery in pursuance of allotment order has been shown to be prescribed. By virtue of section 151 of MBLRT Act, 1950 in matters of procedure regarding which no express provision has been made in that Act, the procedure laid down in the Code of Civil Procedure in force for the time being has to be followed. By virtue of section 151 of MBLRT Act, 1950 in matters of procedure regarding which no express provision has been made in that Act, the procedure laid down in the Code of Civil Procedure in force for the time being has to be followed. The proceedings are said to be in pursuance of order of allotment passed by the Tahsildar sometime prior to 28.7.1953. As such the procedure to be followed in the execution of that order will be as provided in CPC. Taking the provision of section 38 of the M.P. Land Revenue Code, 1959 it will not in any case govern the situation, because section 38 of the MPLR Code applies to delivery of possession in pursuance of such orders which have been passed under that Code. 4. The learned counsel for the plaintiff-applicant relying on section 38 tried to argue that on 12.6.1972 Madhya Bharat Land Revenue and Tenancy Act, 1950 was not in force. Therefore, it is section 38 of the MPLR Code which will have to be followed in the matter of delivery of possession. I am afraid this contention too is not correct in view of the wordings employed by section 38. 5. Analysing the case from any angle the result is that proceedings for delivery of possession in the instant case were governed by the provisions of CPC and unless it is shown that the delivery of possession was in compliance with the provisions of CPC, it cannot be regarded to be valid and effective delivery of possession. 6. There is no report also of breaking open of the door as contemplated by the said provision. The use of the words "Bhumi Bata Kar" by indicating the land cannot be construed to mean actual delivery of possession by breaking open the lock of the door. It means only simply pointing out to the decree-holder the land. Beating of drum is also of no consequence in the matter of affecting actual delivery of possession. Such delivery of possession which is styled to be a symbolic delivery of possession by Courts below is not contemplated by law at all. 7. For purposes of decision of an application for interim in junction, what is material is factum of actual possession on the date of institution of the suit. That is the crucial point. Such delivery of possession which is styled to be a symbolic delivery of possession by Courts below is not contemplated by law at all. 7. For purposes of decision of an application for interim in junction, what is material is factum of actual possession on the date of institution of the suit. That is the crucial point. In the present case, the so-called delivery of possession was not and cannot be construed to be delivery of actual possession. Therefore, it has rightly been held, ex-facie, that plaintiff was not in actual possession of the disputed land on the date of the institution of the suit. 8. Now taking up the second contention for consideration, Khasra entries in favour of the plaintiff-applicant have been made on the basis of the aforesaid delivery of possession in the year 1976 by virtue of Order of Tahsildar dated 24.4.1976 made in File No. 9/75-76-A/74. This order appears to have been passed just after the dismissal of the appeal on 23.4.1976 by the ADJ. Even taking that its face value, no such statutory presumption as contemplated by law can be attached to such entries because the basis on which they are ordered to be made is itself invalid in the eye of law. As has been held by me above, there was no actual delivery of possession to be plaintiff. When the proceedings of the delivery of possession were themselves invalid and ineffective being not in accordance with Order 21, Rule 35 (3) CPC, the entries made in pursuance of those proceedings are ineffective to confer any rights on the plaintiff-applicant. Therefore, the factum of entry of the mutation of the name or entry in the name of the plaintiff being made is of no consequence in the present case. 9. The next contention is about the presumption of regularity of the procedure which was adopted in the matter. There is no question of any such presumption being raised in the present case in view of the fact that the entire documents pertaining to the delivery of possession are on record. They speak out the entire events which took place at the time of the delivery. Therefore, no presumption touching the regularity of the proceedings by virtue of section 114 of the Evidence Act can be available to the plaintiff applicant in this case. They speak out the entire events which took place at the time of the delivery. Therefore, no presumption touching the regularity of the proceedings by virtue of section 114 of the Evidence Act can be available to the plaintiff applicant in this case. So also the presumption of continuity of possession cannot be pressed into service by the applicant in the present case because the presumption postulates actual possession being with person at some earlier point of time. If a person is shown to be in actual possession on a particular date, the presumption of continuity of possession can be come to his help and without anything further being shown he can be deemed to be continuously in possession of the property of which he was shown to be in possession earlier. In the present case, the actual possession was admittedly with Vijaisingh Rao non-applicant No. 1 and at no point of time he has been shown to be actually dispossessed. Therefore, if at all the presumption of continuity is to have a play in the matter, it will ensure to the advantage of NA-1. 10. So far as documents falling in Class (3) pertaining to the mutation proceedings are concerned, in view of the admitted position that mutation order has not attained any finality, no legal value can be attached to them. Filing of an appeal destroys finality of an order as held by their Lordships of the Privy Council in case reported in S.P.A. Annamalay Chetty vs. B.A. Thornhill, AIR 1931 PC 263 . AIR 1975 SC 1767 distinguished, AIR 1931 PC 263 , relied on. Revision dismissed.