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2011 DIGILAW 955 (MP)

Santosh Sharma v. State of M. P.

2011-08-18

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This is plaintiff second appeal against that judgment and decree passed by learned Trial Court and which has been affirmed by learned First Appellate Court. 2. The plaintiff filed a suit for declaration that the proceeding initiated against him by the State Government (defendant) under section 248 of the M.P. Land Revenue Code (in short “Code”) is illegal and ineffective against him and the patta dated 1.06.1959 which has been given to him in pursuance to the order of Tehsildar dated 29.4.1959, he had become the bhumiswami on coming into the force of the Code. In the alternative, it has been prayed that since the plaintiff is possessing the suit property for last 35 years he has acquired the bhumiswami right by way of adverse possession. A decree of permanent injunction has also been sought by him that the defendants be restrained from interfering into his possession. 3. The defendants filed written statement and refuted the plaint averments, however, the possession of the plaintiff has been admitted. According to defendants, the possession of the plaintiff is that of a trespasser. 4. Learned Trial Court after framing necessary issues recorded the evidence of the parties and thereafter partly decreed the suit of the plaintiff holding that defendants shall not evict the plaintiff from suit land without adopting the due process prescribed under the law. The other reliefs claimed by the plaintiff have not been allowed and the suit in that regard has been dismissed. 5. The plaintiff assailed that part of the judgment and decree of learned trial Court by which his suit was partly dismissed by filing a first appeal, which has been dismissed by the impugned judgment and decree. 6. In this manner this second appeal has been filed by the plaintiff. 7. This Court on 18.9.1995 has admitted the second appeal on the following substantial question of law : “If the Courts below erred in not holding that the appellant was a Pattedar tenant and as such was bhumi-swami of the relevant land under section 158 of M.P.L.R. Code? 8. By inviting my attention to the foundation stone of the case Ex. This Court on 18.9.1995 has admitted the second appeal on the following substantial question of law : “If the Courts below erred in not holding that the appellant was a Pattedar tenant and as such was bhumi-swami of the relevant land under section 158 of M.P.L.R. Code? 8. By inviting my attention to the foundation stone of the case Ex. P/7 which is a Patta dated 1.6.1959 it has been put-forth by learned counsel that in this Patta the name of Zamindar Sarkar Bahadur is mentioned and Khata No. 21 Khasra No. 370 having area 0.05 dismal has been mentioned and in the column of Nauiyat Kasht, Pattedar has been mentioned. Hence, learned counsel submits that since this Patta was given earlier to coming into force of Code, therefore, on 2.10.1959 when the Code came into force the plaintiff became bhumiswami. In this context learned counsel has invited my attention of section 158 (1) (iii) of the Code.Hence, it has been contended by learned counsel that learned two Courts below erred in substantial error of law dismissing the suit. 9. On the other hand learned counsel for respondents argued in support of impugned judgment. 10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law :- 11. The foundation stone of the case is the Patta dated 1.6.1959 (Ex. P/7) which has been granted to one Kashi Prasad who was the father of plaintiff. On going through Patta (Ex. P/7) this Court finds that disputed property was given to Kashi Prasad as Pattedar because in the column of Nauiyat Kasht, Pattedar is mentioned. In this Patta it has been mentioned that by order of Tehsildar in file No. 349 dated 29.4.1959 to open a dairy over land which was given to him. Thus, the plaintiff’s father was the Pattedar when the Code came into force. At this juncture, it would be profitable to quote the relevant provisions of section 158 subsection (1) of the Code, which reads thus : 158. Thus, the plaintiff’s father was the Pattedar when the Code came into force. At this juncture, it would be profitable to quote the relevant provisions of section 158 subsection (1) of the Code, which reads thus : 158. Bhumiswami : - (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely - (a) ... ... ... .... (b) ... ... ... ... (c) ... ... ... ... (d) (i) everyperson in respect of land held by him in the Vindhya Pradesh region as a pachapan paintalis tenant, pattedar tenant, a grove holder or as a holder of tank as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1995); On bare perusal of Clauses (d)(i) of subsection (1) this Court finds that every person holding a land in Vindhya Pradesh region as Pattedar tenant as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 shall become bhumiswami on coming into force of Code on 2.10.1959. The suit land is situated in Satna District which was the part of erstwhile Vindhya Pradesh. Thus, in order to hold whether the plaintiff’s father was a Pattedar or not this Court is required to go through the definition clause of ‘Pattedar tenant’ as defined in Vindhya Pradesh Land Revenue and Tenancy Act, 1953, Section 2 (1) (xvi) (b). According to this provision, a tenant other than pachpan-paintalis tenant to whom the rights of a Pattedar tenant are granted by a lawful authority after the commencement of this Act shall be Pattedar tenant. It would be apt to quote the relevant clause, which reads thus :- (xvi) “pattedar tenant” means ... (a) ... ... ... or (b) a tenant other than a pachpan-paintalis tenant to whom the rights of a pattedar tenant are granted by a lawful authority after the commencement of this Act, or (c) ... ... ... 12. Admittedly, the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 was in force when the impugned Patta (Ex. P/7) dated 1.6.1959 was given. On bare perusal of Patta (Ex. ... ... 12. Admittedly, the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 was in force when the impugned Patta (Ex. P/7) dated 1.6.1959 was given. On bare perusal of Patta (Ex. P/7) this Court finds that under a lawful authority i.e. Tehsildar Raghuraj Nagar, Satna, the Patta was given and this has also been embodied in the document that by order of Tehsildar in file No. 349 dated 29.4.1959 the disputed property has been given on Patta to Kashi Prasad (father of plaintiff). Hence, according to me, the plaintiff became bhumiswami by operation of law on coming into force of the Code on 2.10.1959 and therefore he cannot be said to be a trespasser. 13. The substantial quesion of law is thus answered that learned two Courts below erred in not holding that appellant’s father was a Pattedar tenant and became bhumiswami on coming into the force of the Code and after his death plaintiff has become bhumiswami. This question is decided in favour of the appellant and against the respondents. 14. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned two Courts below is hereby set aside and the suit of the plaintiff-appellant is decreed in toto. 15. Looking to the facts and circumstances, parties are directed to bear their own costs.