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2000 DIGILAW 46 (MP)

Gandhi Ashram v. Hari Prasad Agrawal

2000-01-11

S.C.PANDEY

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The respondents No. 1 to 3 filed a Civil Suit No. 15-A/84 against the appellant and the respondent No.4 for declaration that they are the owners of Plots No. 422/42 and 422/43. situate at village and Tahsil Manendragarh, District Sarguja. Further prayer made by the respondents No. 1 to 3 was that the appellant be declared as their tenant. The respondents No. 1 to 3 sought in their relief clause requiring the Court to pass a decree of permanent injunction to the effect that the respondent No.4 shall not settle the suit-land in favour of the appellant. The respondents No. 1 to 3 claimed that they had constructed a house which was mainly on Plot No. 422/42, area 42 x 21'. This house was constructed in the year 1947 by the ancestors of the respondents No. 1 to 3 and they inherited it. It was also stated that the appellant was their tenant for last twenty years at the rate of Rs. 60/- per month as rent. A part of that house was situate on Plot No. 422/43. On that basis. Sub-Divisional Officer. Koriya has passed an order on 1.6.1979 that the suit plot was Nazul Plot and had directed the appellant to deposit the rent before Tahsildar. This fact had come to the knowledge of the respondent No.1 in the year 1982 and therefore. the respondents No.1 to 3 had filed the suit on 26.8.1983 within the period of limitation. The respondent No.4. in his written statement. did not dispute that the Plot No. 422/42 belonged to the respondents No. 1 to 3. However. it asserted that the Plot No. 422/43 was government land and the respondents No. 1 to 3 had encroached upon that part of the land by constructing a building thereon. Consequently an order was passed declaring the appellant to be the tenant of the respondent No.4 and the Tahsildar was directed to collect the rent on behalf of the State, by the Sub-Divisional Officer. Koriya. The appellant asserted that the entire suit house was constructed on Plot No. 422/43 in the year 1957. The respondents No. 1 to 3 were not the Bhumiswamis of the suit land and. therefore. the Sub Divisional Officer, Baikunthpur had passed an order on 1.6.1979 and had directed the appellant to pay the rent to the State. It was claimed that the Plot No. 422/42 was a different land. The respondents No. 1 to 3 were not the Bhumiswamis of the suit land and. therefore. the Sub Divisional Officer, Baikunthpur had passed an order on 1.6.1979 and had directed the appellant to pay the rent to the State. It was claimed that the Plot No. 422/42 was a different land. It was also stated that no permanent injunction can be granted against the State because the land belonging to the State was its property and it had absolute right to settle the suit land with anybody. It was further claimed that the suit was barred by time because the cause of action arose on 1.6.1979 when the order passed by the Sub-Divisional Officer. Koriya was known to the respondents No. 1 to 3. Besides, the jurisdiction of the Court was also challenged. The trial Court, after full trial. held that the respondents No. 1 to 3 were the owners of the house constructed upon Plot Nos. 422/42 and 422/43. It was held that the suit house was not totally constructed on Plot No. 422/43. It was further held that the appellant was the tenant of the respondents No. 1 to 3 for the last twenty years. It was further held that the appellant could not be held to be the tenant of the State/respondent No.4. Besides, it was held that the suit was not barred by time and the Court had jurisdiction to hear the case. In this case. the State/respondent No.4 did not file any appeal but the appellant filed an appeal against the judgment and decree of the trial Court, before the Lower Appellate Court. During the pendency of that appeal certain amendments were permitted by the Court below in the plaint permitting the respondents No. 1 to 3 to delete certain reliefs. The relief regarding the declaration of the title over the suit land was deleted and it was claimed that it be declared that the appellant is the tenant of the respondents No. 1 to 3 in the suit house. It was further claimed that a decree for rent of Rs. 720/- per annum at the rate of Rs. 60/- per month be also granted. The Lower Appellate Court allowed the amendments during pendency of the appeal and after hearing the learned counsel for the parties. It was further claimed that a decree for rent of Rs. 720/- per annum at the rate of Rs. 60/- per month be also granted. The Lower Appellate Court allowed the amendments during pendency of the appeal and after hearing the learned counsel for the parties. dismissed the appeal holding that the respondents No. 1 to 3 are entitled to a decree for declaration that the appellant is the tenant in the suit house constructed upon Plot Nos. 422/42 and 422/43. A decree for permanent injunction was also granted against the respondent No.4 restraining it from settling the suit house with the appellant. This appeal was admitted by this Court on the following substantial questions of law. by order dated 8.9.1992 :--., I. Whether the lower appellant Court has rightly assumed jurisdiction by allowing the amendment without there being any application or compliance of O.23. R.I C.P.C.? 2. Whether the suit was barred by limitation ? 3. Whether the Court below has misconstrued the provisions of Section 248 of the M.P.L.R. Code, 1959?" The learned counsel for the appellant had argued at the time of admission that the respondents No. 1 to 3 could not have changed their reliefs and the amendment to this effect could not have been granted by the Court below. However, after hearing the learned counsel for the parties, this Court is of the view that the Court below was entitled to permit the amendment in the plaint. The respondents No. 1 to 3 could claim a different relief from what they initially claimed and it did not change the cause of action or the controversy between the parties. The exercise of discretion on the part of the Lower Appellate Court does not raise any substantial question of law, which can be interfered with in second appeal. The question No. 3 is regarding the misconstruction of provisions of Section 248 of Madhya Pradesh Land Revenue Code 1959 (henceforth 'the Code'). On this point. this Court is of the view that the Lower Appellate Court had not misconstrued Section 248 of the Code. On the other hand, it had held that the power to eject a person who had encroached upon a land, would be vested in the Tahsildar and the Sub-Divisional Officer had no right to proceed under Section 248 of the Code. There can be no quarrel with this proposition and. therefore. On the other hand, it had held that the power to eject a person who had encroached upon a land, would be vested in the Tahsildar and the Sub-Divisional Officer had no right to proceed under Section 248 of the Code. There can be no quarrel with this proposition and. therefore. the question of misconstruction of Section 248 of the Code does not arise. Moreover the State Government has not filed any appeal claiming that the Sub-Divisional Officer had a right to evict the respondents No. 1 to 3 from the suit plots as the encroachers. The appellant, who had entered as a tenant in the suit premises cannot claim that the respondents No. 1 to 3 were the trespassers in the suit land. Section 116 of the Evidence Act would not permit the appellant to question the title of his own landlord-ship. In view of this matter. the appellant cannot raise this point on which the question No.3 has been framed by this Court. The only substantial question of law which could be decided in this appeal. is if the suit was barred by limitation. Now this Court must keep in the mind the fact that the State Government has not challenged the conclusion of the Courts below. It is the appellant which is raising the point regarding limitation. In paragraph 7 of the plaint, it was alleged by the respondents No. 1 to 3 that their house was constructed on the Nazul Plot No. 422/43 in the veal' 1957 and they had also required the State to grant them permanent lease of that house. It is clear from these allegations that admittedly the respondents No. 1 to 3 had encroached upon a part of the leased premises in the year 1957 onwards. It is also not in dispute that after construction of a part of the suit house on this part of the plot they remained in possession till 1979 when the order was passed settling the rent of the appellant with the State. Obviously. this fact has also not been disputed by the State Government. Despite this fact no order for ejectment was passed by the Tahsildar under Section 248 of the Code. The order Ex. D-2. dated 1.6.1979. passed by the Sub-Divisional Officer. Koriya (Baikunthpur) does not amount to any order under Section 248 of the Code. No notice of order was passed. this fact has also not been disputed by the State Government. Despite this fact no order for ejectment was passed by the Tahsildar under Section 248 of the Code. The order Ex. D-2. dated 1.6.1979. passed by the Sub-Divisional Officer. Koriya (Baikunthpur) does not amount to any order under Section 248 of the Code. No notice of order was passed. It was passed on the assumption that the State is the landlord of the suit house and this order appears to be purely on personal terms with the appellant. The respondents No. 1 to 3 were not in picture. They were not given even notice and then this order was kept pending till 30.1.1981 as is clear from the order sheets of the record of the Sub-Divisional Officer. Koriya (Baikunthpur). because the next order sheet is dated 30.1.1981 which records that the copy of this order he sent to the Tahsildar for its implementation. It is strange that any plea on limitation can be founded by the appellant or the State on the basis of the order aforesaid dated 1.6.1979 which appears to have been passed privately in favour of the appellant. The respondents No. 1 to 3 could not have been aware about the order. The contention of the learned counsel for the appellant that the appellant was not the tenant of the respondents No. 1 to 3 at the time of filing of the suit is neither here nor there. This Court agrees with the Courts below that the respondents No. 1 to 3 had filed the suit within three years of their knowledge when they came to know of the conclusion and felt that they are likely to be harmed by almost a secret order passed by the Sub-Divisional Officer. Koriya (Baikunthpur). The suit is-definitely within limitation from 30.1.1981. For all the aforesaid reasons. this Court does not find any merit in this appeal. The appeal fails and it is accordingly, dismissed with no order as to costs.