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Madhya Pradesh High Court · body

2011 DIGILAW 665 (MP)

Farooq v. Prahalad

2011-06-23

N.K.MODY

body2011
JUDGMENT 1. Being aggrieved by the judgment dated 31-10-2003 passed by VIIth Additional District Judge, Indore in Civil Appeal No. 37/2003 whereby judgment dated 10.4.2003 passed by Civil Judge Class-II, Sanwer in Civil Appeal No. 44-A/2000 whereby suit filed by the appellant was decreed holding, that appellant is a Bhumiswami of the suit land and respondents were restrained to interfere into the possession of the appellant was set aside, present appeal has been filed. 2. This appeal was admitted by this court vide order dated 17.8.2004 on the following substantial questions of law: (i) "Hans the First Appellate Court erred in declaring the transfer of suit land by the respondent to the appellant void misconstruing the provisions of section 165 (7-B) and section 158 (3) of the M.P. Land Revenue Code, 1959?" (ii) "Could the First Appellate Court have allowed the counter claim of the respondent which was not considered by the trial Court despite there being no cross claim or cross appeal under Order 41 Rule 22 of the Code of Civil Procedure?" (iii) "Could the First Appellate Court have awarded a decree for permanent injunction against the respondent having held that the appellant had no valid title to the suit land?" 3. Short facts of the case are, that appellant filed a suit for declaration and permanent injunction on 12.12.2001 alleging that appellant is Bhumiswami of the land bearing survey No. 22 measuring 1.700 hectare situated at village Maharajganj Khada, Tehsil Sanwer Distt, Indore. It was alleged that appellant has purchased the suit property from respondent No.1 vide sale deed dated 18.4.1995. Since then appellant is in occupation of suit land. It was alleged that on 12.7.2000 respondent No.1 moved an application to Collector, Indore to take possession of the suit land. In the suit, it was prayed that it be declared that appellant is Bhumiswami of the suit land and respondent No.1 be restrained from interfering into the possession of the appellant. 4. The suit was contested by the respondent No.1 by filing the written statement wherein it was denied that appellant is owner of the suit property. It was alleged that respondent No.1 is the owner of the suit property. It was alleged that respondent No.1 is a member of Scheduled Caste and is also landless agriculturist. 4. The suit was contested by the respondent No.1 by filing the written statement wherein it was denied that appellant is owner of the suit property. It was alleged that respondent No.1 is the owner of the suit property. It was alleged that respondent No.1 is a member of Scheduled Caste and is also landless agriculturist. It was alleged that being a landless agriculturist the suit land was leased out by the respondent No.2 to the respondent No.1 under the scheme. Since then respondent No.1 is in occupation of the suit land. It was alleged that respondent No. 1 is an illiterate person. It is submitted that taking advantage of illiteracy of respondent No.1, if the appellant has obtained signature of respondent No.1 on some documents, then the same are not binding on respondent No.1. It was alleged that since respondent No.1 is Balai by caste which is the Scheduled Caste and land was given to the respondent No. 1 being a landless person, therefore, the same cannot be transferred by respondent No.1 to appellant, it was alleged that since the area of land is 5 acre, therefore, neither the respondent No.1 can sell the land to the appellant nor the appellant can purchase the land without obtaining permission of the Collector. Alongwith written statement counterclaim was also filed by the respondent No. 1 wherein it was prayed that the sale deed dated 18.4.1995 he declared as null and void. It was alleged that respondent No. 1 is continuously in occupation of suit land. It was prayed that suit filed by the appellant be dismissed and counter claim filed by the respondent No.1 be decreed. 5. After framing of issues and recording of evidence vide judgment dated 10.4.2003 learned trial Court decreed the suit in favour of appellant against which an appeal was filed by the respondent No.1 which was allowed whereby judgment and decree passed by learned trial Court was set aside holding that the sale deed dated 18.4.1995 is null and void, however, the possession of appellant was protected holding that respondent No. 1 shall not interfere into the possession of appellant till the respondent No. 1 obtains the possession through process of law against, which present appeal has been filed. 6. 6. Shri Y.K. Jain, learned counsel for the appellant argued at length and submits that impugned judgment passed by learned Appellate Court is illegal, incorrect and deserves to be set aside. It is submitted that since no lease was filed by the respondent No. 1, therefore, learned Appellate Court committed error in holding that the respondent No. 1 is the Govt. lessee, It is submitted that in the documents EX.-P/3 the name of respondent No.1 was recorded as Bhumiswami and since there was no reference as Govt. lessee, therefore, the learned Appellate Court was having no occasion to hold that respondent No.1 is a Govt. lessee. Learned counsel submits that learned Appellate Court has not taken into consideration the fact that if the sale deed is executed contrary to law, then there is no provision of any penalty. It is submitted that these aspects of the case have not been taken into consideration by the learned Appellate Court. It is submitted that appeal be allowed and the judgment and decree passed by learned Appellate Court be set aside and the judgment and decree passed by learned trial Court be restored. 7. Learned counsel for the respondent No.1 submits that no illegality has been committed by the learned Appellate Court in passing the impugned judgment in favour of respondent No.1. It is submitted that since judgment passed by learned trial Court was contrary to law, therefore, same was corrected by learned Appellate Court. It is submitted that appeal be dismissed and the judgment passed by learned trial Court be maintained. 8. From perusal of the record, it appears that to prove the case appellant has filed the documents Ex-P/l to Ex. P/9, EX.P/l is the Bhu-Adhikar and Rinpustika, Ex. P12 is the sale deed dated 18.4.1995 which is for a consideration of Rs.92,000/-, Ex. P/3 is the Revenue recorded where the name of respondent No. 1 has been record as Bhumiswami from 1992 to 1995, In the year 1995-1996 name of the appellant was recorded as Bhumiswami as is evident from Ex. P/4 vide order dated 20.5.1996. Ex-P/5 shows that the name of respondent No. 1 is recorded as Bhumiswami and it is mentioned in the year 1996-1997 that the name of appellant has to be mutated in place of respondent No.1, in compliance of order dated 10.5.1996. However, in fact the name of the appellant was not mutated. P/4 vide order dated 20.5.1996. Ex-P/5 shows that the name of respondent No. 1 is recorded as Bhumiswami and it is mentioned in the year 1996-1997 that the name of appellant has to be mutated in place of respondent No.1, in compliance of order dated 10.5.1996. However, in fact the name of the appellant was not mutated. EX.-P/6 is the revenue record of the year 2001-2002 wherein name of the appellant has recorded as Bhumiswami which continued in subsequent years. Apart from this, appellant has examined himself as PW. 1, Ramdayal as PW. 2, Akbar, Patel as PW 3, Mahendra Gupta as PW. 4, Respondent No. 1 has produced the documents D/1 to 9. Ex-D/1 is the Bhu-Adikar and Rinpustika. Ex-D/2 is the lease dated 30.5.1985 whereby the possession of land was give to respondent No.1, Ex-D/3 to EX.-D/7 are the revenue record. Ex. -D/8 is the copy of the order dated 4.4.1984 wherein it was decided to give the land to respondent No.1 on lease. Apart from this respondent No.1 has examined himself as DW-1, Nirbhay Singh as DW-2, Sitaram, as DW-3, Dhulsingh as DW-4 and Kamalkishore as DW-5 165(7-b) of MPLRC reads with as under: "167 (7-b) Notwithstanding anything contained in sub-section (l) [a person who holds land from the State Government or a person who holds land in Bhumiswami rights under sub-section, (3) of section 158] or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes Bhumiswami of such land, shall not transfer such land without the permission of a revenue officer, not below the rank of a Collector, given for reasons to be recorded in writing." 9. Undisputedly, no permission was obtained by the appellant to purchase the land which was leased out to respondent No.1 by respondent No.2. In the matter of Mulayam Singh v. Bhudhuwa Chamar 2002 RN 250 Division Bench of this Court has held that the land held from State Government in Bhumiswami rights, cannot be transferred without permission of Collector. It was further held that transfer without permission is void and liable to be set aside. In the matter of Mulayam Singh v. Bhudhuwa Chamar 2002 RN 250 Division Bench of this Court has held that the land held from State Government in Bhumiswami rights, cannot be transferred without permission of Collector. It was further held that transfer without permission is void and liable to be set aside. Apart from this reason which was taken into consideration by the learned Appellate Court there are some more reasons on the basis of which appeal filed by the appellant cannot be allowed, which are as under: a) The alleged sale deed is for Rs.92,000/- No amount was paid before the sub registrar who executed the sale deed. On the contrary in the sale deed, it is alleged that amount has already been paid. There is no acknowledgment in the handwriting of respondent No.1. b) Ex- P/2 is the sale deed which bears the signature of attesting witness Sharif Patel, Hader Bag but none of them was examined by the appellant for the best reasons known to the appellant. c) The order passed by revenue authority on the basis of which name of the appellant was mutated is not placed on record so as to demonstrate whether the name of the appellant was recorded by passing the order in presence of respondent No.1. 10. This Court is of the view that First Appellate Court has rightly held that transfer of the suit land by the respondent No. 1 in favour of appellant is void. This Court is also of the view that no illegality has been committed by the learned Appellate Court in holding that sale deed is void. However at the same time learned Appellate Court has protected the interest of the appellant by restraining the respondent No.1 from interference into the possession of appellant without following the process of law. In view of this appeal filed by the appellant has no merits and the same stands dismissed. No order as to costs.