Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1420 (MP)

Umrao v. State of M. P.

2008-12-08

A.K.SHRIVASTAVA

body2008
JUDGMENT 1. This appeal has been filed by the plaintiffs assailing the judgment and decree passed by learned first appellate Court allowing the appeal of defendants-respondents and thereby dismissing the suit of plaintiffs for declaration of Bhumiswami right and injunction. 2. In brief the suit of plaintiffs is that they are the residents of village Sonkhedi, Tahsil Kannod where the law of erstwhile Holkar State was prevailing in the year 1943-44. According to the plaintiffs, the suit land description whereof has been given in para 2 of the plaint was given to their late father Rugnath by erstwhile Holkar State through Divisional Forest Officer, Nemavar Division Kannod on 14.7.1944. According to plaintiffs, their father was paying yearly land revenue. After the formation of State of Madhya Bharat, Forest Department was giving land to the plaintiff's father on yearly basis and plaintiff's father was paying land revenue. In the year 1962 Divisional Forest Office was shifted from Kannod to Dewas and, therefore, in that year land revenue was not realised. However, Rugnath (father of plaintiffs) was cultivating the land in question as Bhumiswami. In the year 1980 Rugnath died and after his death plaintiffs are jointly possessing the agricultural land and cultivating the same. 3. It is the further case of plaintiffs that on the formation of new State of Madhya Pradesh and on coming into force of M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code') on 2.10.1959 plaintiff's father Rugnath became Bhumiswami under section 189 and 190 of the Code. On these premised pleadings it has been prayed that suit be decreed. 4. Written statement was filed by defendants refuting the plaint averments. According to defendants, right from very beginning State was the owner of the suit land and the disputed land is forest land. Plaintiff's father Rugnath did not acquire any right in suit land though yearly it was being given to him for agricultural purpose. 5. Learned trial Court on the basis of averments made in the plaint and denial in the written statement framed necessary issues and after recording evidence of parties, decreed the suit of plaintiffs. 6. The State of Madhya Pradesh assailed the judgment and decree passed by learned trial Court which has been allowed by the impugned judgment and decree and suit of plaintiffs has been dismissed. 7. 6. The State of Madhya Pradesh assailed the judgment and decree passed by learned trial Court which has been allowed by the impugned judgment and decree and suit of plaintiffs has been dismissed. 7. In this manner present second appeal has been filed by plaintiffs assailing the impugned judgment and decree passed by learned first appellate Court. 8. On 7.7.1997 this Court admitted the appeal on the following substantial question of law : "Whether in the facts and circumstances of the case, the learned lower appellate Court was justified in dismissing plaintiff's suit, on the ground that Central Government, being a necessary party, the plaintiffs suit could not have been decreed by the trial Court?" Today also after hearing learned counsel for the parties one more substantial question of law is framed which reads thus: "Whether learned first appellate Court erred in substantial error of law in dismissing the suit of plaintiffs of injunction when there is categorical finding that plaintiffs are in possession of the suit property?" 9. I have heard Shri C.L.Yadav, Senior Advocate assisted by Shri Avinash Yadav, Advocate for the appellants and Smt. Rashmi Pandit, Dy. Government Advocate for the respondents. Regarding Substantial Question of Law No.1: 10. On going through the pleading of defendants which has been pleaded in para 20 of the written statement it is revealed that Central Government is a necessary party because without seeking any permission from the Central Government the suit land cannot be given on Patta to anybody. Indeed Issue No.8 was also framed in this regard. Learned trial Court decided that issue in favour of plaintiffs and against defendants. Learned first appellate Court in para 12 has come to the conclusion that in terms of provisions of Act No. 69 of Forest (Conservation) Act, 1980 without obtaining prior permission of the Central Government, State Government cannot grant any Patta. According to me, the case of plaintiffs is not that the land in question, which according to the defendants is forest land, be given to them on Patta. If that had been so, certainly necessary permission from the Central Government ought to have been obtained. According to me, the case of plaintiffs is not that the land in question, which according to the defendants is forest land, be given to them on Patta. If that had been so, certainly necessary permission from the Central Government ought to have been obtained. The present case of plaintiffs is that during erstwhile Holkar State the disputed land which is forest land was given to Rugnath (predecessor of plaintiffs) on 14.7.1944 and it was continuously given to him year to year later on and, therefore, Rugnath became occupancy tenant on coming into force of the Code. Thus, I am of the view that Central Government is not a necessary party in the present suit because it is not the case of plaintiffs that they are seeking any Patta of the forest land. Hence, learned first appellant Court erred in law in holding that Central Government is a necessary party in this case. The substantial question of law is thus answered accordingly. 11. So far as acquiring occupancy tenancy right by virtue of section 185 of the Code is concerned, no substantial question of law has been framed. Learned first appellate Court has already held that plaintiffs have failed to prove their title and, therefore, it cannot be said that on coming into force of the Code on 2.10.1959 the plaintiffs predecessor Rugnath became occupancy tenant and by operation of law he became Bhumiswami. Regarding Substantial Question of Law No.2: 12. The Courts below have categorically found that earlier Rugnath and after his death plaintiffs are possessing the suit property for a considerable long period. Indeed the possession of plaintiffs is admitted by defendants and, therefore, according to me plaintiffs have made out a case of injunction. It is well settled in law that a person who is in possession for a considerable long period cannot be dispossessed without adopting due procedure as prescribed under the law. In this view of the matter, I am of the view that defendants cannot take possession of the suit property from plaintiffs without adopting due procedure as prescribed under the law. Hence, the suit of plaintiffs, so far as injunction is concerned, is hereby decreed. 13. Resultantly, this appeal succeeds in part. Impugned judgment and decree passed by learned first appellate Court dismissing the suit of plaintiffs so far as seeking decree of injunction is concerned, is hereby set aside. Hence, the suit of plaintiffs, so far as injunction is concerned, is hereby decreed. 13. Resultantly, this appeal succeeds in part. Impugned judgment and decree passed by learned first appellate Court dismissing the suit of plaintiffs so far as seeking decree of injunction is concerned, is hereby set aside. The suit of plaintiffs is accordingly partly decreed and the respondents-defendants are hereby restrained from interfering with the possession of plaintiffs without adopting due procedure as prescribed under the law. The suit of plaintiffs so far as title is concerned, that they are Bhumiswami of the suit property stands dismissed. However, respondents are free to take possession after adopting due procedure as prescribed under the law. Looking to the facts and circumstances, the parties are directed to bear their own costs.