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2001 DIGILAW 664 (MP)

Thakur Ramsingh, L. R. Pratapsingh v. Narayanand

2001-09-06

A.K.GOHIL

body2001
Judgment ( 1. ) THIS second appeal was admitted for final hearing on the following substantial questions of law :-- "whether in the facts and circumstances of the case both the Lower Courts on the basis of the pleadings and evidence have correctly decided the case in favour of the plaintiff ?" ( 2. ) THE brief facts of the case arc that respondents/plaintiffs Narayan s/o Mukundrao and Ramchandra s/o Baldeo both filed a suit against the deceased appellant/defendant Ramsingh seeking declaration that the plaintiffs are the owners of land bearing Survey Nos. 220 and 221 situated at Village Tarana, including the Well and trees thereon and the defendants having no right or interest in the same and defendants be restrained not to interfere in the possession of the plaintiffs. The suit was contested by the appellant/defendant on the ground that the Civil Court has no jurisdiction under Section 190 of the M. P. Land Revenue Code, 1959, only the Revenue Courts are entitled to adjudicate the dispute between the parties. Survey No. 221 is an uncultivated land having Mango trees on which plaintiffs cannot claim any declaration and injunction. The Trial Court decreed the suit of the respondents/ plaintiffs and declared that respondents/plaintiffs are Bhumiswami over Survey Nos. 220 and 221 and also declared that the plaintiff is also having right to take water for irrigation purposes from the Well and also granted an injunction in favour of the respondents/plaintiffs. But declared that the plaintiffs is not having any right over the fruits bearing trees standing on the aforesaid land. The Trial Court also recorded a finding that the land in dispute was given on lease to the plaintiffs and their predecessors and under Section 168 (2) the defendant was neither old nor inform and under Section 168 (2) was not entitled to lease out the same. It was further held that on 2-10-1959 under Section 185, the plaintiffs become occupancy tenant and entitled to be recorded as Bhumiswami under Section 190 with effect from 1-7-1960. The First Appellate Court confirming the judgment and decree of the Trial Court dismissed the appeal and also dismissed the cross-objections which were filed by the respondents/plaintiffs. ( 3. ) I have heard Shri G. L. Verma, learned counsel for appellants; Shri P. K. Gupta, learned counsel for respondents; and perused the record. ( 4. The First Appellate Court confirming the judgment and decree of the Trial Court dismissed the appeal and also dismissed the cross-objections which were filed by the respondents/plaintiffs. ( 3. ) I have heard Shri G. L. Verma, learned counsel for appellants; Shri P. K. Gupta, learned counsel for respondents; and perused the record. ( 4. ) THE findings recorded by both the Courts below are based on appreciation of evidence on record and during the course of the arguments learned counsel for the appellants/defendants could not point out any perversity or illegality in the findings. Survey No. 220 is an agricultural land; and is in possession of the respondents/plaintiffs from the time of their ancestrals. ( 5. ) UNDER Section 100 of the Code, the findings of fact can be interfered with only (a) when material or relevant evidence is not considered or if considered would have led to a contrary conclusion; (b) where a finding has been recorded by the First Appellate Court by placing reliance on inadmissible evidence or if omitted, a contrary conclusion was possible. ( 6. ) TO appreciate the controversy in this case between the parties in the light of the aforesaid principle enumerated under Section 100 of the Code of Civil Procedure, it is necessary to look into the findings of fact recorded by both the Courts below and to see whether there is any scope to interfere in them. Both the Courts below have held that when the land was given on lease the appellant/defendant was not disabled and he had no right to give the land on lease in contravention and beyond the Proviso of Section 168 of M. P. L. R. Code and, thus the respondents/plaintiffs have acquired Bhumiswami rights and for that the matter stands concluded by the findings of fact recorded by the two Courts below. It was further held by the Courts below that in such cases the Civil Court is having jurisdiction to decide such a suit for declaration and injunction and I also do not see any illegality therein. It was further held by the Courts below that in such cases the Civil Court is having jurisdiction to decide such a suit for declaration and injunction and I also do not see any illegality therein. It has been clearly held by the Full Bench of this Court in the case of Ramgopal v. Chetu, reported in 1976 JLJ 279, as under :- "determination of the question of title is the province of Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of Civil Court cannot be assumed or implied. A Bhumiswami is not bound to avail of speedy remedy provided in Section 250 of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if there has been a decision under Section 250 by a Revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. It must be remembered that a Bhumiswami has a title though he is not the "swami" of the "bhumi" which he holds, in the sense of absolute ownership, because as declared in Section 57 of the Code, ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and, he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation. " ( 7. ) THEREFORE, in view of the aforesaid Full Bench decision in the case of Ramgopal (supra) and also under the facts and circumstances of the case as well as on the basis of pleadings and evidence, both the Courts have not committed any illegality in recording a finding and has correctly decided the case in favour of the respondents/plaintiffs. Therefore, the question of law framed is answered accordingly. ( 8. ) IN the end the submission of learned counsel for respondents is that because this Court has already dismissed the application of the appellants under Order XXII Rule 4 of the Code for bringing the L. Rs. Therefore, the question of law framed is answered accordingly. ( 8. ) IN the end the submission of learned counsel for respondents is that because this Court has already dismissed the application of the appellants under Order XXII Rule 4 of the Code for bringing the L. Rs. of deceased respondent No. 1 Narayan on record as has been filed after expiry of ten years without any sufficient explanation even after the knowledge, the appeal stands abated. Since at the time of the final arguments of this appeal, the counsel for respondents was not present, therefore, this appeal is being heard and decided on merits without considering the question of abatement. ( 9. ) IN view of the aforesaid discussion, this appeal fails and is hereby dismissed with no order as to cost. A decree be drawn up accordingly. Record be returned.