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Madhya Pradesh High Court · body

2007 DIGILAW 84 (MP)

CHHOTA v. KOYALI

2007-01-19

K.K.LAHOTI

body2007
Judgment ( 1. ) THE plaintiff aggrieved by the judgment and decree passed in Civil Appeal no. 5-A/05 by the District Judge, Shahdol, dated 7-3-2005 affirming the judgment and decree dated 23-12-2005 in Civil Suit No. l-A/80 by the Civil judge, Class I, Shahdol dismissing the suit of appellant, has preferred this appeal. ( 2. ) LEARNED Counsel for the appellant submitted that judgment and decree passed by the Court below are not in accordance with law. The Court below has applied provisions of Sections 49 and 180 of Rewa Land Revenue and tenancy Act, 1935 (hereinafter referred as the Act) which were not applicable. Without any deed of transfer the Court below erred in holding that the father of appellant Triloki Goud transferred his right in favour of Lohra the predecessor of t he respondents. There was no dispute in respect to Survey Nos. 40 and 41 but the Court below has also dismissed the suit of the appellant in this regard. Apart from Survey Nos. 29 and 93 on which the possession of the appellant was found but the Court below erred in not granting the decree in respect of Survey Nos. 29 and 93. It is submitted by the appellant that this appeal involve substantial question of law and may be admitted. ( 3. ) TO consider the contention of the appellant the judgment and decree passed by the Court below and record perused. The appellant filed suit that the father of the appellant: Trilok was Pattedar and owner of the lands of which details are given in the plaint. These lands were self acquired property of triloki who remained in possession during his lifetime and after his death, plaintiff remained in possession of the land upto 1977. In June, 1978 Lohra restrained the plaintiff to plough Survey Nos. 29,40 and 41 and alleged that he is pattedar of the aforesaid land. On this, the plaintiff obtained copies of Khasra entries and on 3-11 -1979 became aware that late Lohra disclosing himself as heir of Triloki had got Patta of the disputed land in his name. During the minority of the plaintiff Lohra by impersonating some person as father of the plaintiff triloki presented him before the Tchsildar and got the Patta of all the lands which is forged one. During the minority of the plaintiff Lohra by impersonating some person as father of the plaintiff triloki presented him before the Tchsildar and got the Patta of all the lands which is forged one. In the alternate it is pleaded that if Triloki had got mutated the lands in favour of Lohra without any consideration then at that time in the family of Triloki, his minor son plaintiff was alive. The lands were not transferred for the benefit of the family. The document under which the lands were given to lohra discloses that it was not for the benefit of family. The aforesaid transaction was contrary to the prevalent law namely Rewa Stale Malguzari avam Kashtkari Kanoon, 1935 and the transfer was contrary to law and illegal. It was prayed that because of the aforesaid transfer the right of triloki or his heirs has not come to an end nor the heirs of Lohra gets any right on the basis of aforesaid transfer. The plaintiff is in possession of the land but because of the entries on revenue papers the land is recorded in the name of Lohra and also possession. The defendants who are heirs of Lohra claiming their possession on the lands so the plaintiff is entitled for possession from the defendants. With the aforesaid pleadings the suit was filed for declaration of the title and possession. ( 4. ) THE defendants contested the suit that late Lohra was in possession of the land since 15 to 16 years, prior to 1953. He also improved the land and paid land revenue. Under Section 49 of the Rewa State Malguzari and Kashtkari kanoon, 1935 the land was transferred by Triloki in favour of Lohra. Triloki filed an application under Sections 49 and 180 of the Act before Tchsildar pushprajgarh for mutation of Lohra on which a Case No. 135/51-52 was registered. On 13 -10-1952 an order was passed for mutation of Lohra on the disputed lands. Since 1952, Lohra remained in possession as owner and after his death the defendants are the owners and in possession of the lands. The suit is barred by limitation and in the alternative it is pleaded that since last 45 years, the defendants are in possession 01 the land and on the basis ot adverse possession they have acquired right in the land. ( 5. The suit is barred by limitation and in the alternative it is pleaded that since last 45 years, the defendants are in possession 01 the land and on the basis ot adverse possession they have acquired right in the land. ( 5. ) THE Trial Court framed the issues, recorded evidence and arrived at a finding that the plaintiff has failed to prove that during his minority, after the death of Triloki, Lohra by impersonating some persons as Triloki got forged patta in his name. The transfer by Triloki in favour of Lohra is neither illegal nor ineffective. The land was not in possession of the plaintiff till 1978, nor the defendants have attempted to interfere in the possession of the plaintiff in June, 1978 or thereafter. The Trial Court found that Lohra and after his death the defendants are in possession since 1936. In 1952 Triloki by filing an application before Tehsildar got mutated the name of Lohra in revenue papers. Recording aforesaid findings the Trial Court found that the plaintiff is not the owner of the suit properties and is also not entitled for possession, and dismissed the suit. ( 6. ) AGGRIEVED by the aforesaid judgment and decree the plaintiff preferred an appeal and reiterated all his contentions before the Appellate court. The Appellate Court reconsidered the entire material and found that under Sections 49 and 180 of the Act, the holder of land was entitled to transfer all his right to any other person. The land was duly transferred by Triloki in favour of Lohra in the year 1952 and an order of Tehsildar Exh. D-5 was passed in this regard. Since 1952, name of Lohra was recorded in the revenue papers. The Appellate Court also found that there was no dispute in respect of Survey nos. 40 and 41 and affirmed the findings of the Trial Court. ( 7. ) TO appreciate the contention of the appellant, provisions of sections 49 and 180 may be seen, which reads as under:- "49. The Appellate Court also found that there was no dispute in respect of Survey nos. 40 and 41 and affirmed the findings of the Trial Court. ( 7. ) TO appreciate the contention of the appellant, provisions of sections 49 and 180 may be seen, which reads as under:- "49. A Pattedar tenant may make a permanent alienation in favour of any agriculturist who is a Rewa State subject or, with the permission of the Chief Revenue Authority, in favour of any agriculturist who is a resident of an adjoining State or British district- (a) of the whole or part of a holding in which or for the benefit of which he has made an improvement at his own expense whether that improvement benefits the whole or part of the holding. (b) the whole or part of such area of his holding as may be in excess of five acres. 180. (1) When a holder of land, other than a Pawaidar or sub- Pawaidar, loses his rights in any land in a village by death, or by surrender or abandonment of the land or trans er of his rights to any other person, or by dispossession or otherwise, the patwari of the village in which the land is situated shall forthwith report the fact to the Tehsildar, intimating the name of the new holder, if any, and the grounds on which the latter claims to succeed to the title of the former holder. (2) The Tehsildar, on receipt of the patwaris report, shall make enquiry; and, if there appears to be no doubt or dispute in the matter, shall direct the necessary changes to be made in the Annual village papers. If there appears to be a dispute in the matter, the tehsildar shall proceed under Section 178. " Section 49 of the Act provides that Pattedar tenant was having right of permanent alienation in favour of any agriculturist of Rewa State. Under section 180 of the Act a procedure in regards of mutation of name has been provided, which provides that holder of land was entitled to report the fact of transfer to the Tehsildar intimating the name of new holder and the Tehsildar on receipt of the patwari report and after holding an enquiry was entitled to direct necessary change to be made in the annual village papers. ( 8. ( 8. ) IN this case, it is apparent that by Exh. D-l, an application was filed by Triloki on 29-9-1952 before the Tehsildar Pushprajgarh District Shahdol under Section 49 read with Section 180 of the Act stating that he had given the disputed lands before 15 to 16 years to Lohra along with possession. Triloki made a prayer that aforesaid lands be recorded in the name of Lohra. Thereafter the Tehsildar recorded the statement of Lohra Exh. D-2 and of Triloki Exh. D-3. The Tehsildar called the report Exh. D-4 from the Patwari who affirmed the aforesaid transfer and by Exh. D-5, the land was directed to be mutated in the name of Lohra in the year 1952. Exh. D-6 is the Rasid Bahi showing that the aforesaid lands after mutation in the name of Lohra were recorded in the revenue papers and the Revenue Authorities issued the aforesaid Bahi in the name of Lohra. After the death of Triloki, appellant filed an application before the Naib Tehsildar, Pushprajgarh Exh. P-6 on 4-5-1979 challenging the afore said mutation in favour of Lohra. By order Exh. P-7, dated 29-1-1979, the application was rejected on the ground that on 13-10-1952, the order was passed for the mutation in the name of Lohra, so the application is beyond the jurisdiction of Naib Tehsildar and was rejected. In the application Annexure p-6, the plaintiff has not stated the facts as pleaded in the plaint, but has shown his ignorance about the mutation. Though no document on behalf of the respondents was filed in respect of transfer of the aforesaid land in favour of lohra but the aforesaid document shows that on the prayer of Triloki the aforesaid land was mutated in the name of Lohra and during the life time of triloki upto 1974, for a period of 22 years he never challenged the aforesaid entries. The aforesaid lands were self acquired lands of Triloki who got mutated the lands in the name of Lohra and never challenged the aforesaid proceedings or entries till 1974. The plaintiff who was 40 years old on the date of filing of the suit, ought to have challenged the aforesaid proceedings within a period of 3 years from the date of attaining majority. The plaintiff who was 40 years old on the date of filing of the suit, ought to have challenged the aforesaid proceedings within a period of 3 years from the date of attaining majority. He filed the suit on 10-3-1990, which was apparently barred by time and after a considerable long period of 28 years the aforesaid proceedings could not have been challenged. ( 9. ) IN the aforesaid circumstances, even in the absence of any deed of transfer in favour of Lohra, the Court below has not committed any error on relying on the proceedings of 1952 which were in favour of Lohra. The Court below also found that there was no dispute in respect of Survey Nos. 40 and 41. Recording aforesaid findings, the Court below has decided the mater in which no error is found. There is no merit in this appeal nor does this appeal involve any substantial question of law for the consideration of this Court. This appeal is accordingly dismissed with no order as to costs. Second Appeal dismissed.