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2006 DIGILAW 1122 (MP)

SARVAN KUMAR v. STATE OF M. P.

2006-09-19

S.L.JAIN

body2006
JUDGMENT S.L. Jain, J. This appeal u/s 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 3-4-1992, passed in Civil Appeal No. 6-A/88 on the file of First District Judge, Sehore affirming the judgment and decree dated 25-4-1988 passed by 1st Civil Judge, Class II, Sehore dismissing the Appellants' suit for declaration and permanent injunction. In the course of the judgment, the parties will be referred to by the ranks assigned to them in the trial Court. Plaintiffs/Appellants herein filed a suit for declaration and permanent injunction in respect of the suit land Khasra No. 456/1 area 3.23 acres which is a part of Khasra No. 456 situated at Cantonment Sehore ad-measuring 7.23 acres stating that the land bearing Khasra No. 456 including the suit land stood recorded in the revenue records as the land and house belonging to Maharaja Narsinghgarh from the year 1934-35 and the land Khasra No. 456/1 area 3.23 acres continued to be recorded in the Appellant's name and possession. The names of the Appellants were mutated in pursuance of the order dated 19-2-1977, passed by Naib Tehsildar, Sehore in Revenue case No. 12-A/76/77 under Sections 109 and 110 of M.P. Land Revenue Code, 1959 (for short the 'Code'). Plaintiff Sarvan Kumar had been paying the land revenue of the suit land who also got the suit land diverted and divided into small plots. Some of the plots have been sold by Sarvan Kumar on the basis of mutation but the abovesaid order of Naib Tehsildar dated 19-2-1977 was set aside by the Collector Sehore in suo motu revision. Consequently, the NOC granted to the Appellants by the Nazul officer was cancelled and the construction activities by the Plaintiffs on the suit land were stayed by the Collector. Plaintiffs averred that the suit land was recorded as agricultural land in the name of Maharaja Narsinghgarh in the revenue records. Phoolchand, the father of Plaintiff Sarvan Kumar and Plaintiff Ayodhya Bai were the Shikmis and were paying the lease rent of Rs. 100/- per year to Maharaja Narsinghgarh. The suit land continued to be in possession of the Plaintiffs as Shikmis. Phoolchand, the father of Plaintiff Sarvan Kumar and Plaintiff Ayodhya Bai were the Shikmis and were paying the lease rent of Rs. 100/- per year to Maharaja Narsinghgarh. The suit land continued to be in possession of the Plaintiffs as Shikmis. Even after the independence of India although the office of Maharaja Narsinghgarh functioning in the Kothi came to an end with the closing of the office of the political agent, the suit land continues to be in possession of Plaintiffs. It is also the case of the Plaintiffs that after the coming into force of the Code the Appellants became the absolute owner (Bhumiswami) in view of the fact that no action was taken against the Appellants by Maharaja Narsinghgarh u/s 186 of the Code within stipulated period. As the Plaintiffs became the Bhumiswami of the suit land by operation of taw, Naib Tehsildar passed an order directing mutation of the names of the Appellants in the revenue records. Thereafter, the land revenue was fixed by the Collector and the Sub Divisional Officer granted sanction for the diversion of the land. The Plaintiffs got some shops constructed over the suit land and the possession of them was delivered to the respective purchasers. In this context, the Collector could not have declared the suit land as government land after setting aside the order of mutation. The Defendant resisted the suit by filing the written statement stating that the suit land was in fact a government abadi land. Maharaja Narsinghgarh was never in possession of the suit land as owner. As the suit land was not an agricultural land, the Plaintiffs cannot be accepted as Shikmi of Maharaja Narsinghrah. As the land in dispute was never the agricultural land and the Plaintiff and Phoolchand were never the Shikmis of suit land, the Collector rightly set aside the mutation order in suo motu revision. The trial Court framed as many as 7 issues and recorded a finding that the Plaintiffs have failed to prove that the erstwhile Maharaja of Narsinghgarh was the Bhoomiswamy and in possession of the suit land in the year 1932 and also earlier. The Plaintiffs have also failed to prove that the suit land was given by the erstwhile Maharaja of Narsinghgarh to Phoolchand, the father of the Plaintiff as Shikmi. The Plaintiffs have also failed to prove that the suit land was given by the erstwhile Maharaja of Narsinghgarh to Phoolchand, the father of the Plaintiff as Shikmi. The trial Court also recorded a finding that the order dated 19-2-1977 passed by Naib Tehsildar was illegal and dismissed the Plaintiffs' suit. Against the judgment and decree passed by the first Civil Judge, Class II, Sehore, Plaintiffs filed an appeal before Additional District Judge, Sehore who dismissed the appeal and maintained the judgment and decree passed by the trial Court. Being aggrieved the Plaintiffs-Appellants filed this second appeal. The appeal is admitted on the following substantial questions of law: (1) "Whether the finding that Maharaja of Narsinghgarh was not in occupation in relation to the suit property and therefore, had no right and title is legal and valid in view of the facts and circumstances of the case?" (2) "Whether the order Ex. P-7 dated 12-12-1977 passed by the Tehsildar directing to mutate the name of Sarwan Kumar has been rightly set aside by exercising suo motu power in revision by the Collector vide its order dated 10-6-1986 Ex. P-15?" (3) "Whether learned first Appellate Court erred in substantial error of law in dismissing the application of Plaintiffs-Appellants under Order 41, Rule 27 of Civil Procedure Code? I have heard Shri Alok Aradhe, counsel for the Appellants and Miss Nidhi Verma, P.L., for the State. Learned Counsel for the Appellants vehemently submitted that the suit land belonged to Maharaja Narsinghgarh. The father of Plaintiff No. 1 and husband of Plaintiff No. 2 namely Phoolchand was the occupant of suit land. Phoolchand was holding land from Maharaja Narsinghgarh and was paying Rs. 100/- per annum as rent for the land. He also submits that as the Plaintiffs and their predecessor were paying a sum of Rs. 100/- an year to Maharaja, therefore, in view of Section 68 of Bhopal State Land Revenue Code, 1932 (for brevity, 'the Act') it shall be presumed that they were in possession as Shikmi. Since the Plaintiffs and their predecessor are/was Shikmi they became occupancy tenant in view of Section 185 of the Code and as the Maharaja Narsinghgarh did not take any steps u/s 186 of the Code, the Plaintiffs became Bhoomiswamy. The counsel also submits that in document Ex. P-4(c) Sarvan Kumar has been shown as Shikmi. The Learned Counsel relying on Maulana Shamsuddin Vs. The counsel also submits that in document Ex. P-4(c) Sarvan Kumar has been shown as Shikmi. The Learned Counsel relying on Maulana Shamsuddin Vs. Khushilal and Others, also submitted that the occupant as defined in Section 2(15) of the Act includes Jagirdar and Muafidar. Payment of land revenue or rent for holding land under the Government was not a sine-qua-non for making the holder of the land an occupant. The contention is not acceptable. The Plaintiffs have failed to lead any evidence to prove that as to how the land was obtained by Maharaja Narsinghgarh. It could not be proved that on what terms the land was given to Maharaja Narsinghgarh by the erstwhile Nawab of Bhopal. There is no evidence that Maharaja Narsinghgarh was paying land revenue to the Nawab of Bhopal. There is no evidence that what was the status of Maharaja Narsinghgarh, whether he was 'Moofidar' or Jagirdar. There is no evidence that the suit land was assessed to land revenue in the erstwhile State of Bhopal. A perusal of the Khasra entries filed by both the parties reveal that the land in dispute was recorded as abadi land and Charokhar. Learned Counsel for the Appellant could not show any provision of law under which abadi land can be treated to be agricultural land, it was for the Plaintiffs to prove as to when abadi land was diverted into agricultural land. A person could be Shikmi only on agricultural land and not on the abadi land. Accepting that the father of the Plaintiff was cultivating the waste land meant for abadi, the same cannot be treated to be agricultural land and the Plaintiffs cannot be treated to be Shikmi. So far as the entry in the revenue records is concerned, the addition of word Shikmi in Ex. P-4(c) appeared to be interpolated. Even if the Plaintiffs were wrongly record as Shikmi in the revenue papers, they cannot take benefits available to the Shikmis without proving any contract of giving the land as Shikmi or in the absence of any other cogent evidence. Entry in the revenue records alone cannot create any right in favour of the Plaintiffs. Accepting that the entries recorded is not interpolated and the same is genuine, it cannot create any interest in the Plaintiffs. Owing to agricultural property and getting the same entered in revenue record are two different and distinct things. Entry in the revenue records alone cannot create any right in favour of the Plaintiffs. Accepting that the entries recorded is not interpolated and the same is genuine, it cannot create any interest in the Plaintiffs. Owing to agricultural property and getting the same entered in revenue record are two different and distinct things. Mutation entry does not confer right of title to the property. Though the law in this regard is very well settled, I wish to rely on two decisions of the Apex Court in Smt. Sawarni Vs. Smt. Inder Kaur and Others, and Suman Verma Vs. Union of India (UOI) and Others, . In Dalip Singh and Others Vs. Sikh Gurdwara Prabhandak Committee and Others, it has been held that entries in revenue records cannot prove title to the property unless supported by other evidence. The entries made out of ignorance or with a view to give benefit to a person will not affect the rights of the State Government. When the land in dispute was abadi land and was never agricultural land and it appears to have been allotted for the construction of Kothi, the Courts below rightly recorded a finding that the Appellants or their predecessors were not the Shikmis. Learned Counsel for the Appellants also submitted that the proceedings u/s 248 of the Code were dropped against the Plaintiffs which suggests that Plaintiffs were recognized to be the Bhumiswami of the suit land. The contention holds no water. Only fact that proceedings u/s 248 of the Code were dropped against Plaintiffs will not bestow the rights of Shikmi on the Plaintiffs. When the land was abadi land even if the Collector vide order dated 18-4-1978 passed in case No. 35-A/3/77-78 fixed the land revenue, the land will not cease to be abadi land. An illegal order of a revenue authority cannot change the nature of land. The counsel for the Appellants vehemently submitted that the permission for diversion of the land was given to Sarvan Kumar by the Respondents and on the basis of diversion order the Plaintiffs divided the land in small plots and sold the same to different bona fide purchasers. Now the State Government is estopped from claiming that the land belongs to the State. The contention is not acceptable. Merely because diversion was illegally permitted, the Plaintiffs cannot become the Shikmi of the suit land. Now the State Government is estopped from claiming that the land belongs to the State. The contention is not acceptable. Merely because diversion was illegally permitted, the Plaintiffs cannot become the Shikmi of the suit land. Learned Counsel for the Appellants also submitted that the Collector could not have reversed the order of Naib Tehsildar in suo motu revision. The counsel submitted that after the expiry of a period of one year from the date of order suo motu power of revision could not have been exercised. In support of the contention the counsel relied on Mohd. Kavi vs. Fatmabai Ibrahim, 1998(1) MPWN S.N.26. This contention also is not acceptable. Under the provisions of the Code the powers of suo motu revision have been given to the Collector. No limit has been prescribed for the exercise of such power. Such limit should depend upon facts of each case. Fixing of such limit will frustrate the very purpose of giving the powers of suo motu revision and encourage the arbitrary and whimsical orders or orders with corrupt motive. Even if it is accepted that the Collector had no authority to take up the matter in suo motu revision and the order of Naib Tehsildar by which the names of the Plaintiffs were mutated remains in force such an order cannot create title in favour of the Plaintiffs which they really did not possess. The Plaintiffs have failed to prove that the land in dispute was agricultural land. They have also failed to prove that Maharaja of Narsinghgarh was paying any land revenue to the Bhopal State. On the contrary, the Khasras filed by both the parties reveal that the land in dispute was Charokhar and abadi land, therefore, the findings of the Courts below that the Plaintiffs have failed to prove that they were the Shikmis on the suit land from the occupant as defined in the Bhopal State Land Revenue Code, 1932 cannot be disturbed in the Second Appeal. The Appellants were neither the sub-tenant as defined in the Bhopal State Sub-tenants Act, 1952 nor the Plaintiffs were holding the suit land as Shikmi from the occupant as defined in the Regional Act. They cannot be called occupancy tenant in terms of Clause 4 of Sub-section (1) of Section 185 of the Code. The Appellants were neither the sub-tenant as defined in the Bhopal State Sub-tenants Act, 1952 nor the Plaintiffs were holding the suit land as Shikmi from the occupant as defined in the Regional Act. They cannot be called occupancy tenant in terms of Clause 4 of Sub-section (1) of Section 185 of the Code. The question of Shikmi is a matter of contract and it ought to have been established either by documentary or oral evidence. It is clear that till the M.P. Land Revenue Code, 1959 came into force even if Plaintiff continued to be in possession of the suit land, he did not so continue in the capacity of Shikmi. Revenue records prior to the year 1967 have not been filed by the Plaintiffs to prove the status of Maharaja Narsinghgarh on the suit land. In the absence of evidence Maharaja cannot be said to be the holder of the land and the Plaintiffs cannot be said to be Shikmi of Maharaja Narsinghgarh. The Appellants did not acquire the status of occupancy tenant on the date of coming into force of the Code. The Appellants have also filed an application under Order 41, Rule 27 of the CPC for taking on record the copy of the judgment of the Supreme Court dated 21-1-1988, passed in C.A. No. 1155/75 and copy of Certificate of Administration granted by District Judge, Hoshangabad. Both the documents are public documents and were available at the time of recording of evidence. The Appellants have failed to establish that notwithstanding the exercise of due diligence, such evidence was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. Neither in the appeal before the Supreme Court nor in the proceedings before the District Judge, Hoshangabad the State was a party. The nature of document is not such that they are required to be produced to enable this Court to pronounce judgment. The power under Order 41, Rule 27 of the CPC are to be used sparingly. It will not be appropriate for this Court while considering the second appeal to admit additional evidence for the purpose of entering into question of fact. Therefore, the application does not deserve to be followed and the same is, therefore, dismissed. The power under Order 41, Rule 27 of the CPC are to be used sparingly. It will not be appropriate for this Court while considering the second appeal to admit additional evidence for the purpose of entering into question of fact. Therefore, the application does not deserve to be followed and the same is, therefore, dismissed. The findings of the two Courts below that the Plaintiffs did not acquire the status of occupancy tenant cannot be found faulted with. I do not find any merit in this appeal and the same is dismissed. Final Result : Dismissed