Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 470 (MP)

Gendalal v. Jasoda Bai

2010-04-23

A.M.NAIK

body2010
Judgment ( 1. ) This appeal has been heard on the following two substantial questions of law: "1. Whether the lower appellate Court has acted illegally in granting decree in favour of plaintiff despite admission in the plaint about having given the land for cultivation for a period of more than 9-10 years? 2.Whether the impugned judgment is not sustainable in law having been rendered overlooking the provisions of Section 168 and 169 of M.P. Land Revenue Code, 1959? ( 2. ) Short facts relevant for the purpose of this appeal are that the plaintiff, in paragraph 3 of the plaint, averred that her husband was posted in village Binaganj, District Guna in government service when about 9-10 years back, the plaintiff granted the land to the defendants for cultivation on Adhbatai. Plaintiff resided with her husband in village Binaganj. She used to visit the defendants once in a year to receive her share of Adhbatai. Since then the defendants being Adhbataidars have been continuing in cultivating possession of the suit land. Plaintiffs husband was transferred to village Jamner which was near to the suit land. Therefore, the plaintiff asked the defendants to hand over the possession of the suit land. On their denial, she instituted a suit for declaration of title and restoration of possession. ( 3. ) Defendants vide their written statement denied the title of the plaintiff. They also denied the theory of grant of suit land on Adhbatai. Suit was also opposed on the ground of limitation. ( 4. ) Learned Trial Judge vide his judgment and decree dated 30.6.04 dismissed the suit of the plaintiff holding that the plaintiff failed to prove her title. Aggrieved by it, Civil Appeal No. 70A/04 was submitted which having been allowed vide impugned judgment and decree dated 14.3.05, this appeal is submitted by the defendants. ( 5. ) It is contended on behalf of the appellants that the plaintiff has herself clearly averred that the suit land was given by her to defendants on Adhbatai about 9-10 years before the institution of the suit. Since then, the defendants have been cultivating the suit land as Adhbataidars which has been clearly admitted in para 3 of the plaint. ) It is contended on behalf of the appellants that the plaintiff has herself clearly averred that the suit land was given by her to defendants on Adhbatai about 9-10 years before the institution of the suit. Since then, the defendants have been cultivating the suit land as Adhbataidars which has been clearly admitted in para 3 of the plaint. Section 168 of the Madhya Pradesh Land Revenue Code prohibits a Bhumiswami from leasing out any land comprised in his holding for more than one year during any consecutive period of the three years. Sub-section 2 of Section of Section 168 of the Code carves out following exceptions: (2) A Bhumiswami who is - (i) A widow; or (ii) an unmarried woman; or (iii) a married woman who has been deserted by her husband; or (iv) a minor; or (v) a person subject to physical or mental disability due to old age or otherwise; or (vi) a person detained or imprisoned under any process of law; or (vii) a person in the service of Armed Forces of the Union; or (viii) a public, charitable or religious institution; or (ix) a local authority or a Co-operative Society; may lease the whole or any part of his holding : Provided that where a holding is held jointly by more than one person the provisions of this sub-section shall not be applicable unless all such persons belong to any one or more of the classes aforesaid: Provided further mat any lease made in pursuance of this sub-section shall cease to be in force after one year of the determination of the disability by death or otherwise. On perusal, it is observed that the plaintiff/respondent does not fall within any of the exceptional categories described in sub-section (2). ( 6. ) It is argued on behalf of the plaintiff that the suit land was not given for more than one year in consecutive period of three years. This submission is not acceptable in view of the specific avements made in paragraph 3 that the plaintiff had given the suit land about 9-10 years before the institution of the suit and since then the defendants have been cultivating the suit land as Adhbataidars. This submission is not acceptable in view of the specific avements made in paragraph 3 that the plaintiff had given the suit land about 9-10 years before the institution of the suit and since then the defendants have been cultivating the suit land as Adhbataidars. Grant of land by way of lease is defined in clause (a) of explanation contained in section 168 of the said Code as under :- "(a) "Lease" means a transfer of a right to enjoy and land, made for a certain time, expressed or implied in consideration of a price paid or promised or of money or any other thing of value to be given periodically to the transferer by the transferee, who accepts the transfer on such terms, (b)XXXX XXXX XXXX (c)XXXX XXXX XXXX It includes the arrangement whereby the lessee gives specified share of the produce of the land to the Bhumiswami. Clause (b) of explanation is relevant for this purpose which is reproduced below: "(a) XXXX XXXX XXX (b) any arrangement whereby a person cultivates any land of a Bhumiswami with bullocks belonging to or procured by such person (lessee) and on condition of his giving a specified-share of the produce of the land to the Bhumiswami shall be deemed to be a lessee, (c)XXXX XXX XXX This being so, the grant of lease as averred in paragraph 3 of the plaint is in contravention of section 168 of the Code and consequently, the defendants/appellants acquired the status of occupancy tenany by virtue of section 169 of the Code. They are not rank trespasseres and cannot be directed to deliver possession to the plaintiff, more so the defendants having acquired the status of Bhumiswami with the passage of time, the declaration also cannot be made in favour of the plaintiff. Learned Lower Appellate Judge has rendered the impugned judgment without considering the plaint averments in the light of sections 168 and 169 of the Code and has, thus, committed illegality. In the result, both the substantial questions of law are answered in favour of the defendants/appellants. Impugned judgment and decree are set aside and the suit of the respondent is hereby dismissed, however, with no order as to costs.