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Madhya Pradesh High Court · body

2007 DIGILAW 1175 (MP)

KAMLA BAI v. STATE OF M. P.

2007-11-02

ARUN MISHRA

body2007
Judgment ( 1. ) THE appeal has been preferred by the plaintiff aggrieved by the judgment and decree passed by two Courts-below. The District Judge, bhopal, in Civil Appeal No. 117-A/02 as per judgment and decree dated 29-1-2003 has affirmed the judgment and decree dated 31-10-2002 in Civil Suit No. 4-A/2002. ( 2. ) THE plaintiff-appellant filed a civil suit for declaration that the proceedings held by the State of M. P. and the competent authority under the urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the act of 1976) with respect to land admeasuring 6 acres bearing Survey No. 399/2 situated at village Barkhed Pathani, owned by the plaintiff was null and void and prayed by issuance of permanent injunction for protecting the possession. The plaintiff averred that land was purchased by her on 5-5-1975 from one Lakshman s/o Bhagchand Sahu through a registered sale-deed (Ex. P. 4) and her name was entered in the revenue records as Bhumiswami. She had been since then cultivating the land and paying revenue. In the year 1977 she came to know that entries in the revenue papers were recorded in the name of State of M. P. and her name had been deleted in consequence of the order passed in the proceedings initiated under the Act of 1976. Plaintiff had no notice of the proceedings. Plaintiff filed an application with the State of M. P. challenging the proceedings under the Act of 1976. The application was kept pending. No decision was taken. Plaintiff never filed any return under the Act of 1976. No notice was given, as such the proceedings taken behind her back were not binding. ( 3. ) THE defendants in their written statement contended that husband of the plaintiff Shri Bhagwan Patil had filed a return under section 6 of the Act of 1976 before the competent authority with respect to the disputed land. As per the return filed by the husband on behalf of the family the competent authority had declared 5. 72 acres land as surplus and obtained the possession. The land had been vested in the State of M. P. The land was the family property of Bhagwan patil, it was declared surplus. The plaintiff was not in possession of the land. She was not having any subsisting right, title or interest, as such prayed for dismissal of the suit. 72 acres land as surplus and obtained the possession. The land had been vested in the State of M. P. The land was the family property of Bhagwan patil, it was declared surplus. The plaintiff was not in possession of the land. She was not having any subsisting right, title or interest, as such prayed for dismissal of the suit. The trial Court has held that plaintiff constituted joint Hindu family along with Bhagwan Patil. Her husband Bhagwan Patil filed the return in the capacity of his being "karta" (manager) of the family and in the ceiling case 5. 72 acres of land was declared as surplus. The possession of the land had been obtained by the State in the year 1982. The suit filed in the year 2000 was barred by limitation, aggrieved thereby the plaintiff filed appeal before the District court, Bhopal. Same has also been dismissed as per impugned judgment and decree. Consequently the successive appeal has been preferred in this Court. ( 4. ) SHRI N. S. Kale, learned Senior Counsel appearing with Shri Raghvendra kumar, has submitted that the Courts-below erred in holding that the suit filed by the plaintiff is barred by limitation, as the proceedings were void, the plaintiff remained in possession, suit could not have been dismissed as barred by limitation. No notice was given to the plaintiff. It was her individual land. She did not file any return under the Act of 1976, with respect to individual land it was necessary to file the return by the individual. Plaintiffs husband could not have filed the return on her behalf. ( 5. ) AFTER hearing the learned counsel for the parties and going through the record, I find that there is no merit in the appeal. Both the Courts-below have found that the property was belonging to the family of plaintiff and her husband. As per section 4 (b) of the Act of 1976 husband and wife are to be treated as the joint holder for determination of the surplus area, that is the also intention of section 6 of the Act of 1976, thus, it was open to the husband of plaintiff to file the return on behalf of the family as defined in the Act of 1976. Such a return has to be taken as return on behalf of the family. Such a return has to be taken as return on behalf of the family. Bhagwan Patil had indicated in the return also that it was a joint family property. It was not necessary to file separate return by the plaintiff. The possession had been taken after serving the notice on 4-5-1982. It was not necessary to issue notice to the plaintiff. Suit was barred by limitation. As possession had been taken by the State, plaintiff was not entitled for relief owing to the provision of the Urban Land (Ceiling and Regulation)Repeal Act, 1999 adopted by the State w. e. f. 17-2-2000. ( 6. ) COMING to the submission raised by Shri N. S. Kale, learned Senior counsel that the plaintiff has to be treated as individual holder, thus, it was not open to her husband to file the return. No notice was issued to the plaintiff under the Act of 1976 as such the proceedings were void against her. I find no room to entertain the aforesaid submission. The family has been defined in section 2 (f) of the Act of 1976. Under section 2 (f) of the Act of 1976 family in relation to a person means the individual, the wife or husband, as the case may be of such individual and their unmarried minor children. The definition is quoted below : "2 (f) "family", in relation to a person, means the individual, the wife or husband, as the case may be, of such individual and their unmarried minor children. " The aforesaid definition has the purpose behind it to provide the limit of the land to be held by the family consisting of the individual, the wife and the husband as the case may be of such individual and their unmarried children, thus, husband, wife and their unmarried minor children are included in the definition of the family. " The aforesaid definition has the purpose behind it to provide the limit of the land to be held by the family consisting of the individual, the wife and the husband as the case may be of such individual and their unmarried children, thus, husband, wife and their unmarried minor children are included in the definition of the family. Section 4 prescribed the ceiling limit, in case of every person, thus, the definition of family has to be given full effect in order to find out the extent of the land which could be held by the wife, her husband and their unmarried minor children, even the property held by the wife in her individual right, has to be included in the family as defined under the Act of 1976, even if it was not joint Hindu family though it has been found to be joint family property and was in fact joint family property of husband and wife. Plaintiff was residing with her husband. The return in ceiling case was also filed on behalf of the family treating the property as family property. Obviously the family has filed the return through bhagwan Patil, husband of the plaintiff, thus, it could not be said that plaintiff did not file the return, the plaintiffs husband had filed the return on her behalf also being manager of the family. As per section 6 it was incumbent upon the every person holding vacant land in the excess of ceiling limit to file statement within such period as may be prescribed. Plaintiff herself did not file the return within the prescribed time as obviously she had treated the return filed by her husband on her behalf also and in fact it was on behalf of the family. In case plaintiff thought she was individual holder, it was incumbent upon to her to file the return within the prescribed period but that was not filed for the reason that return was already filed by her husband, thus, the conclusion reached by the courts-below that it was not necessary to issue separate notice to the plaintiff is found to be correct. ( 7. ) COMING to the submission that possession was not taken in the year 1982. There is concurrent finding recorded that notice was issued to the plaintiffs husband Shri Bhagwan Patil. Possession receipt (Ex. D. 2) has been placed on record. ( 7. ) COMING to the submission that possession was not taken in the year 1982. There is concurrent finding recorded that notice was issued to the plaintiffs husband Shri Bhagwan Patil. Possession receipt (Ex. D. 2) has been placed on record. In the possession receipt it has been mentioned that possession was taken from Bhagwan Patil in favour of the State of M. P. Notice was given but in spite of notice possession was not given, as such possession was taken by the State and Panchnama was drawn, demarcation was also made and in the revenue papers entry of State of M. P. , Nazul Department was made. A notice under section 11 of the Act of 1976 was also issued to the husband of the plaintiff bhagwan Patil to collect the compensation as it was determined. Ex. D. 1 goes to indicate that State has also taken the possession on 4-5-1982. Same is the date mentioned in the possession receipt (Ex. D. 2), it was acted upon also in the khasra entries. ( 8. ) THE Apex Court in Tamil Nadu Housing Board vs. A. Viswam (Dead) by lrs. , AIR 1996 SC 3377 has held that recording of memorandum or panchnama in presence of witnesses signed by them would constitute taking of possession of land. The Apex Court has held thus :- "9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land. " ( 9. ) IN Larsen and Toubro Ltd. vs. State of Gujarat and others, (1998)4 SCC 387 mode of taking of possession of land was also considered. It was held that recording of memorandum or panchnama in presence of witnesses signed by them was enough. The possession of the Company was recorded in revenue papers. " ( 9. ) IN Larsen and Toubro Ltd. vs. State of Gujarat and others, (1998)4 SCC 387 mode of taking of possession of land was also considered. It was held that recording of memorandum or panchnama in presence of witnesses signed by them was enough. The possession of the Company was recorded in revenue papers. It was held that possession was handed over to the Company, panchnama was supported by revenue entries, it was not open to the High Court to convert itself into a Revenue Court and to hold that in spite of panchnama and revenue record, actual physical possession of the acquired land had not been handed over to the acquiring body, that is the Company. The Apex Court has held thus :- "13. It was not disputed that in the revenue records it was L and T Ltd. who was shown in possession of the land. Affidavits of the panchas filed in the High Court which contained statements contrary to what was recorded in Panchnama and against the revenue entries are quite meaningless and in our opinion the High Court unnecessarily put undue reliance on the same. The High Court could not convert itself into a revenue Court and hold that in spite of the panchnama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. The High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand khatri Educational and Industrial Trust vs. State of Punjab, (1996)4 scc 212 and Balwant Narayan Bhagde vs. M. D. Bhagwat, (1976)1 SCC 700 to come to the conclusion that actual physical possession of the land was not taken over by the State. " ( 10. ) IN Balmokand Khatri Educational and Industrial Trust, Amritsar vs. State of Punjab and others, (1996)4 SCC 212 it was held that the normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. The Apex Court has held thus :- "4. It is seen that entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. The Apex Court has held thus :- "4. It is seen that entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. " ( 11. ) IN Gokul Prasad vs. State of M. P. and another, 2003 (2) MPLJ 271 this court has held that when the land has vested in the State and possession was taken, repeal of the principal Act did not affect the land so vested in the State as no proceeding was pending. ( 12. ) HERE there is concurrent finding of fact recorded by the Courts-below that possession has been taken by the State, land has been vested in the State of m. P. There is absolutely nothing to disbelieve the possession receipt (Ex. D. 2) in the light of the aforesaid decisions and the evidence adduced in the instant case. ( 13. ) BOTH the Courts-below have rightly held that suit was hopelessly barred by limitation. Plaintiff was very well aware of the proceedings. Still she did not file the suit to challenge the order within the period of limitation. Possession was taken in the year 1982. Suit has been filed on 20th June, 2000. It was hopelessly barred by limitation. Since possession was already taken by the State of M. P. No benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 could be obtained by the plaintiff. Suit was clearly an attempt to flog the dead horse which was not permissible under the Repeal Act, 1999, the proceeding that has been concluded, possession had been obtained after issuance of due notification could not be reopened. ( 14. ) CONSEQUENTLY, I find no substantial question of law involved in the appeal. Appeal being of merit (sic), is hereby dismissed. Appeal dismissed.