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2010 DIGILAW 790 (MP)

State of M. P. v. Ratan Das S/o Mohan Das Bairagi

2010-08-05

S.R.WAGHMARE

body2010
JUDGMENT : This is the appeal filed against order of remand dated 29th July, 2002 passed by learned 1st Additional Sessions Judge, Dhar, Distt. Dhar in two Civil Appeals 29A/2000 and 28A/2000 arising out of Civil Suits No. 28A/98 and 26A/98, both are dealt by common order and this order shall govern both the appeals. 2. The State has assailed the order on the ground that the learned Judge of the trial Court while decreeing the suit of the plaintiff had correctly held that the proceedings ought to have been filed under section 57 of M. P. Land Revenue Code 1959 before the Sub-Divisional Magistrate since the plaintiffs were dissatisfied by the taking over of their land by the Collector and jurisdiction of the Civil Court was barred under section 57(2) and section 257 of the M.P.L.R. Code. However, the learned Judge of the Appellate Court had erred in deciding the appeals in favour of the plaintiffs by remanding the suits for re-trial hence the present appeal against remand by the State Government. 3. The brief facts of the case in a nutshell are that land bearing Survey No. 62, 72, 73, 76 and 77 ad-measuring 5.574 hectares in Badanavar Distt. Dhar belonged to plaintiff Dinesh Das and Survey Nos. 51, 52, 54, 56, 62 and 71 belonged to plaintiff Ratan Das and was their ancestral property and recorded jagir in the revenue records since 1907-08 and they were in peaceful possession when suddenly in 1974-75 without granting any opportunity of hearing to them the State Government appointed the Collector, Dhar as administrator of their land and temple and entered the same in the revenue records; being aggrieved both plaintiffs filed Civil Suits for declaration and permanent injunction. 4. The trial Court decreed the suit as already stated above and the Appellate Court set aside the judgment and remanded the matter for fresh trial and hence the State Government has filed the present appeal under Order 43, Rule 1 against the remand. 5. 4. The trial Court decreed the suit as already stated above and the Appellate Court set aside the judgment and remanded the matter for fresh trial and hence the State Government has filed the present appeal under Order 43, Rule 1 against the remand. 5. The sole question that arises for consideration in this appeal is whether the Appellate Court has erred in law in setting aside the order of the trial Court holding that the jurisdiction of the Civil Court was not barred under section 57(2) of the M.P.L.R.C. in the present case and only the S.D.O. did not have power to try the matter i.e. the Civil Court could go into the question of title of the plaintiffs as they were not hit by the bar under section 257 of the MPLRC being the original Bhumi Swamis. 6. Counsel for the appellant State has vehemently supported the judgment of the trial Court and stated that the trial Court had rightly dismissed the suits since section 57(2) of the MPLRC which clearly bars the jurisdiction of the Civil Courts where the dispute pertains to land vested in the State Government and any other person. The parties have to approach the S.D.O. first under sub-section (2) of section 57, sub-section (3) of section 57 provides for appeal to the Civil Court within a year if "any person" is aggrieved by the order of the S.D.O. 7. Counsel contended that the plaintiffs had directly approached the Civil Courts for a declaration of their title before going to the S.D.O. first. Counsel also referred to section 257 of the MPLR Code whereby the jurisdiction of the Civil Courts is expressly barred when the claim is against the State Government for conferral of Bhumiswami rights. Counsel therefore prayed that the impugned order be set aside and the judgment of the trial Court be restored. 8. Counsel also referred to section 257 of the MPLR Code whereby the jurisdiction of the Civil Courts is expressly barred when the claim is against the State Government for conferral of Bhumiswami rights. Counsel therefore prayed that the impugned order be set aside and the judgment of the trial Court be restored. 8. Counsel for the respondent claimants on the other hand fully supported the order of the Appellate Court and stated that the trial Court had erred in ousting its own jurisdiction; counsel vehemently argued that the trial Court had failed to consider that the plaintiffs were in possession of the disputed land since 1907-08 and were excluded under the proviso to sub-section (1) of section 57 of the MPLRC which states thus : "Provided that nothing in this section shall, (save as otherwise provided in this Code) be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property" and the Code came into effect on 2nd October, 1959. 9. Counsel prayed that the impugned order be upheld especially in the light of the fact that the respondents were still in possession of the said land and also urged that the Civil Court be directed to hear the matter on merits after giving opportunity to both sides since the record of the case was pending with this Court for a long time. 10. On considering the above submissions and the record, I find that the appeal is bereft of merit on the singular ground that the controversy has already been set to rest by a Full Bench decision of this Court in the matter of State of M. P. vs. Balveer Singh, 2001(2) MPLJ (FB) 644 = 2001 Revenue Nirnay 3431 as rightly pointed out by the Judge of the lower Court. It succinctly settles the point thus : "Thus a clear line of demarcation can be sketched between the rights of any person affected in consequence of vesting ownership in the lands in the State which could be decided by the S.D.O. under section 57(2) of the Code and the rights of an individual in nature of private rights in any agricultural holding, which could be challenged and decided even against the State Government directly in a Civil Court and which, therefore, lay outside the purview of the rights envisaged under the provisions of section 57(2) and (3) of Code. " And I have no hesitation in upholding the order impugned since the determination of question of Bhumiswami rights lies within the province of the Civil Court excepting the cases falling within the ambit of those which are specified under section 257 of the MPLR Code. And in the present case it has not been disputed before me that the dispute pertains to ancestral land and the plaintiffs are in possession of the said land and in the records as jagir bhumi of their ancestor Motidas since 1907-08 as owners/Bhumiswamis. 11. Thus the appeal is dismissed as sans merit, the order of remand by the appellate Court is upheld. It is directed that the matter be remanded back to the trial Court for a fresh decision on merits. The trial Court is also directed to complete the trial as expeditiously as possible preferably within a period of one year from today. The Registry is directed to send back the record immediately along with the copy of this order for compliance. No fresh notices are necessary, the parties shall remain present before the trial Court on 30th August, 2010. 12. Thus the appeal is allowed in the terms hereinabove indicated. Appeal allowed.