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Madhya Pradesh High Court · body

2008 DIGILAW 54 (MP)

Chhoti Bai v. State of M. P.

2008-01-10

P.K.JAISWAL

body2008
JUDGMENT 1. This appeal is filed by the plaintiffs against the judgment and decree dated 15.7.1998 passed by Additional District Judge, Gohad, District Behind in Civil Appeal No. 28/97, whereby learned Additional District Judge affirmed the judgment and decree of the trial Court dated 8.3.1997 by which suit of the plaintiffs was dismissed. 2. Brief facts of the case are that the appellants filed a suit for declaration and permanent injunction in respect of an area of Survey No.3 714/2, 3718/2, 3718/3 and old Survey No. 3675 (New No. 3675/3) over an area of 4 Bigha and 9 Biswa of land situated at Gohad, District Bhind on the ground that the said land was in possession of Nathuram and Kashiram, father of appellant No. 1 and Uncle of appellant No.2. In Samvat 2007, the land was in possession of the father of appellant No. 1 and Uncle of appellant No.2. They purchased the land vide registered sale deed dated 21.9.1948 from the then Zamindar Gauri Shankar S/o Jwalaprasad for a sum of Rs. 1,200/- and thereafter, land was recorded as Khudkasht land of Nathuram and Kashiram. 3. The appellants case was that Khasra No. 3714/2, 3718/2 and 3718/3 were the Khudkasht of his father and Khasra No. 3675/3 was his own cultivated land. In the year 1954, the Patwari recorded Khasra No. 3718/1, 3718/2, area 1 Bigha as Khudkasht land and the rest as Grass land and recorded 2 Bigha out of Khasra No. 3714 in Samvat 2008 in the name of Kashiram, Nathuram. They filed an application under section 51 of the Madhya Bharat Land Revenue Tenancy Act (for short 'the Act') for correction of entries. The Additional Tahsildar vide order dated 27.7.1963 corrected the record in the name of Nathuram and Haribabu, adopted son of Kashiram. Subsequently, the Collector took up the matter in suo motu revision and served a notice upon the appellants to show cause why the aforesaid orders passed by the Tahsildar in their favour should not be set aside because the Tahsildar even under the provisions of section 51 of the Act was not empowered to make correction in the record and the Tahsildar had proceeded to pass an order in favour of the appellants without obtaining previous sanction of the Collector (Suba). The proceedings were initiated on the basis of a complaint made by the general public vide Case No. 114/65-66-A/68. The proceedings were initiated on the basis of a complaint made by the general public vide Case No. 114/65-66-A/68. The report initiated proceedings against Nathuram and Haribabu vide Case No. 297/68 and issued notices to them. After hearing them, the Collector set aside the order passed by the Tahsildar vide Ex. P-1. They challenged the said order by filing revision before the Additional Collector. Thereafter, second revision was filed before the Board of Revenue. The learned Board of Revenue confirmed the order on 29.5.1982. The appellants challenged the said proceedings by filing the present suit and prayed that they maybe declared as owners and title holders of the suit land on the basis of order dated 27.7.1963 passed by the Additional Tahsildar vide Ex. P-1. 4. The respondent-State denied the averments made in the plaint and in para 7 of the written statement averred that the Collector, Bhind received a complaint in the year 1965. He constituted a Committee who examined the matter and submitted its report vide Case No. 117/65-66-A/68 on27.7.1965. The Collector after receiving the said report initiated proceedings in exercise of powers conferred under section 50 of the M.P. Land Revenue Code, 1959 (for short 'the Code') and issued notices to Nathuram and Haribabu and drew proceedings against them vide Case No. 297/67-68. The plaintiffs challenged the said proceedings by filing Civil Suit No. 70/72 and 60/72 in connivance with Nathuram and Haribabu. It is also averred that under section 51 of the Act, the Tahsildar was not empowered to make corrections in regard to land which was recorded as Government land and the Tahsildar had proceeded to pass an order in favour of the petitioner without obtaining the previous sanction of the Collector. With the above, the respondent-defendant prayed for dismissal of the suit. 5. The trial Court after appreciating the oral and documentary evidence dismissed the suit of the appellants vide judgment and decree dated 8.3 .1997. 6. In an appeal filed by the appellants, the learned Additional District Judge after appreciating the judgment and decree of the trial Court affirmed the findings recorded by the trial Court and dismissed the appeal of the appellants by impugned judgment and decree dated 15.7.1998. 7. This second appeal was admitted on 10.5.2007 on the following substantial questions of law : 1. 7. This second appeal was admitted on 10.5.2007 on the following substantial questions of law : 1. "Whether the Collector could have exercised the revisional jurisdiction under section 51 of the Madhya Bharat Land Revenue and Tenancy Act after coming into force of Madhya Pradesh Land Revenue Code. 2. Whether the order Ex. P-1 dated 27.7.1963 could have been suo motu revised by the Collector in the year 1979." 8. The sole contention of the learned counsel for the appellants is that Additional Tahsildar passed an order on 27.7.1963 vide Ex. P-l and, thereafter, after period of 16 years, the Collector exercised its suo motu powers and revised the order which is not permissible under law. In support of the said contention, he drew my attention to the decision in the case of State of Gujarat v. Patel Raghav Natha and others, AIR 1969 SC 1297 , Mahant Ballabhdas and others v. State of MP. and others, 1989 RN 332 and Sitaram v. State of M.P. and others, 1999 RN 82. 9. Shri C.S. Dixit, learned Government Advocate, on the other hand, has submitted that a complaint was lodged in the year 1965 and the said complaint was examined by the Collector. After examination, report was submitted on 27.7.1965 and, thereafter, Collector in exercise of the powers conferred under section 50 of the Code initiated proceedings vide Case No. 297/67-68 i.e. within reasonable time and notices were issued to the interested persons i.e. Nathuram and Haribabu and they in connivance with the appellants filed a Civil Suit No. 70/72 and 60/72 challenging the said proceedings. It is further submitted that the learned Collector after giving ample opportunities to the appellants passed an order in the year 1979 and, therefore, contention of the appellants that order was passed after period of 16 years is incorrect and the findings recorded by the Courts below is just and proper and no interference in this second appeal is warranted. 10. I have heard the arguments of the learned counsel for the parties and perused the record of the case. 11. Section 51 of the Act reads as under: 51. 10. I have heard the arguments of the learned counsel for the parties and perused the record of the case. 11. Section 51 of the Act reads as under: 51. Dispute regarding entry in Annual Village Papers -- (1) If any person is aggrieved about any entry in the annual village papers, he shall apply to the Tahsildar for its correction within one year of the preparation of the papers of the date of that entry. (2) The Tahsildar shall, after making an enquiry into the respective claims of the parties, pass necessary orders in the matter; Provided that if the correction affects any entry in the settlement papers, the Tahsildar shall obtain the previous sanction of the Suba. A plain reading of the above provision of law would show that since the lands in question were recorded as Government lands, the permission of the Collector was necessary before the Tahsildar could take any action on the petition. 12. It is not in dispute that an application for correction of entries was decided by the Tahsildar on 27.7.1963 without obtaining the previous sanction of the Collector in violation to the proviso of sub-section 2 of section 51 of the Act. In such circumstances, the order which was passed in the year 1963 by the Tahsildar was without jurisdiction. It is also not in dispute that disputed lands were recorded as Charnoi land belonging to the State Government and entered in the Nistar Patrak. A correction of entry amounted to an amendment of Nistar Patrak which could only have been undertaken under sub-section 2 of section 237 of the Code which had already come into force before the final order was passed in the year 1963. In such circumstances, the order which was passed in 1963 by the Tahsildar was without jurisdiction. Section 50 of the Code confer powers to the Collector to revise any order of a subordinate revenue officer either suo motu (of its own motion) or on an application made by some party. General public lodged a complaint before the Collector which was found to be correct by the Collector and, thereafter in the year 1967-68, proceedings were initiated against Nathuram and Haribabu, the ancestors of the appellants and notices were issued to them. General public lodged a complaint before the Collector which was found to be correct by the Collector and, thereafter in the year 1967-68, proceedings were initiated against Nathuram and Haribabu, the ancestors of the appellants and notices were issued to them. The Collector found that there were serious irregularities and order passed by the Tahsildar is without jurisdiction and no previous sanction was obtained from the Collector. It cannot be said that revisional authority should not interfere with the order or there was delay and latches in exercising the said power. The expression "at any time qualifies exercise of powers on its/his own motion on application made by any party" is settled. The application was made by the complainant in the year 1965. Thus, the Collector within a reasonable time exercised his suo motu powers. The reasonableness or otherwise of a party for purpose of suo motu revision must necessarily depend on the facts and circumstances of each case. The proceedings were initiated in the year 1965 itself and notices were issued in the year 1967-68 and after issuance of notices, two civil suits were filed and, therefore, matter was pending before the Collector for a long time. Mere passage of time should not bar the rectification of the gross illegality. It is not the case of the appellants that suo motu powers was exercised by the Collector in the year 1979. The Collector exercised its powers as prescribed under section 50 of the Code immediately within a reasonable time in the year 1967 itself. 13. The apex Court in the cae of Patel Raghav Natha and others (supra) has held that there is no period of limitation prescribed under section 211 of Bombay Land Revenue Code, 1879, but it seems to us plain that this power must be exercised in reasonable time and the length of reasonable time must be determined on the facts of the case and the nature of the order which is being revised. 14. It has been, in the last, argued for the appellants that though no time limit has been prescribed for exercising suo motu powers of revision, yet they should be exercised within a reasonable time. 14. It has been, in the last, argued for the appellants that though no time limit has been prescribed for exercising suo motu powers of revision, yet they should be exercised within a reasonable time. In this regard, it has to be seen that it was a cardinal principle of law of limitation the prescribed period (if any) of limitation starts running from the date of acquiring the knowledge of the relevant fact giving rise to the cause of action. In the instance case, the Collector started proceedings as soon as the fact of the alleged change of entry in the names of ancestors of the appellants were brought to his notice. "Taking action within a reasonable time was a relative term." In the facts and circumstances of the instance case, action was taken within a reasonable time. 15. In proceedings initiated under section 51 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, the order was passed on 27.7.1963 vide Ex. P-1. The said Act has been repealed and the M.P. Land Revenue Code 1959 had come into force on 2.10.1959. On the date when the order was passed, M.P. Land Revenue Code, 1959, came into force. 16. Section 262 of the Code provides for decision of a pending case in a particular revenue Court. According to section 262 (1) of the Code, all pending case will be governed by the provisions of the repealed enactment, and not by the provisions of the repealing enactment. 17. As per section 261 of the Code, Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 was repealed and the procedure prescribed in the repealed laws not saved. The order dated 27.7.1963 was passed after enforcement of the Code, that is, on 27.7.1963 and, therefore, the procedure provided in section 50 of the MPLR Code shall apply and not the provisions of the Repealed enactment will be applicable. The further proceedings would be governed by the Code. 18. For the above-mentioned reasons, I am of the considered view that the Collector had exercised power of suo motu within a reasonable time and under section 50 of the Code, he had power to exercise the revisional jurisdiction and the order of the Tahsildar was wholly without jurisdiction, therefore, both the substantial questions of law are decided against the appellants. For the above-mentioned reasons, I am of the considered view that the Collector had exercised power of suo motu within a reasonable time and under section 50 of the Code, he had power to exercise the revisional jurisdiction and the order of the Tahsildar was wholly without jurisdiction, therefore, both the substantial questions of law are decided against the appellants. The appeal filed by the appellants has no merit and is accordingly dismissed with cost of Rs.2,000/-. Counsel fee, as per Schedule, if pre-certified. Appeal dismissed.