Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 630 (MP)

State of M. P. v. Radhika Prasad

2012-06-28

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment and decree dated 9.8.1997 passed by learned First Additional Judge, Mundwara to the Court of District Judge, Mundwara in Civil Suit No. 21-A/1993 decreeing the suit of the plaintiffs, the State of Madhya Pradesh has preferred this appeal under Section 96 of the CPC. 2. The facts, in brief, for the purposes of disposal of this appeal lie in a narrow compass. Suffice it to say that a suit for declaration of Bhumiswami right in respect to the immovable property the description has been mentioned in the plaint and which is the subject matter of the suit has been filed by the plaintiffs on 24.6.1993 with a further relief that the State of Madhya Pradesh and its functionaries be restrained from interfering in their possession. According to the plaintiffs, they are the owners in Bhumiswami right in respect to the suit property and also the various superstructures built thereupon. First plaintiff, Radhika Katare bought the suit property in Malik Makbooja right vide sale deed dated 24.5.1948 from its previous owner, viz . Church of England Zenana Mission Society ( hereinafter referred to as “the Society”) a Charitable Trust which was in occupation since the time immemorial to carry on its religious activties like running of school and orphanage, etc. Further it has been pleaded by plaintiffs that originally the suit property belonged to one. Miss Elizabeth Branch, Spinster residing at Pachmarhi in Malik Makbooja rights who vide registered transter/sale deed dated 21.3.1906 sold out the suit property in favour of the above said Society in Malik Makbooja right including the superstructure built thereupon and various buildings in the nature of hostel, orphanage, houses, messauges, tenements and well etc. After having purchased the suit property by first plaintiff he in some portion installed an Oil mill, namely, Shankar Oil Mill and also raised various constructions from time to time with due permission of Municipal Corporation, Katni and rented out some of them to various tenants, who are in all 28 in number. In para 7 and 8 of the plaint it has been pleaded that land revenue was fixed and enhanced from time to time by the erstwhile Government. In para 7 and 8 of the plaint it has been pleaded that land revenue was fixed and enhanced from time to time by the erstwhile Government. In para 10 it has been pleaded that after a period of 37 years first plaintiff Radhika Prasad all of a sudden received a notice on 24.6.1991 from Naib Tehsildar Nazul, Katni to the effect that he was in possession of the Nazul land on 30 years’ permanent lease from the Government on annual rent fo Rs. 126.56 paise vide order passed in Revenue Case No.17/VII/5/51-52 which had expired long back and he should take immediate steps else legal action would be taken against him for its eviction etc. According to the plaint averments made in para 11 of the plaint, first plaintiff Padhika Prasad Katre is an ordinary old business man who is not acquainted with the law and above case of 1952 was also not within his memory nor the findings given in that case. Believing the above notice of Naib Tehsildar to be correct he was advised to make an application for renewal of the lease immediately without wasting any time so as to save his immovable property (the disputed property) of huge valuation,but although he moved such an application it was not pressed and the same was dismissed. 3. Further it has been pleaded by the plaintiffs that since the suit land was declared abadi to be used as building sites, according to Section 219 of the Central Provinces Land Revenue Act, 1917 (for short “the Revenue Act of 1917”) every old occupations were validated and the sites were allowed to be retained as owner there of and these sites were made heritable and transferable by the Government. Further it has been pleaded that according to the provisions of the Madhaya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (in short “the Abolition of Proprietary Rights Act”) all the abadi sites were required to be settled with the occupants there of and by the enforcement of the M.P. Land Revenue Code, 1954 (in short “the Revenue Code of 1954”) confirmed those persons to be the Bhumiswami of the holdings. Since the State of Madhya Pradesh and its functionaries (defendant) were creating hindrance in the enjoyment of the suit property, hence, the present suit has been filed. 4. The defendant refuted the plaint averments by filing written-statement. Since the State of Madhya Pradesh and its functionaries (defendant) were creating hindrance in the enjoyment of the suit property, hence, the present suit has been filed. 4. The defendant refuted the plaint averments by filing written-statement. The stand of the State Government is that plaintiff No.1 Radhika Prasad Katare is a Government lessee and the lease was for 30 years which expired in the year 1984 and since the lease has not been renewed the plaintiffs are the trespassers. The State of Madhya Pradesh in treating the plaintiff No. 1 Radhika Prasad Katare as its lessee although it has been specifically pleaded in para 1 (Ga) that there is no Patta (lease deed) in writing. Further the stand of the defendant is that under Section 106 of the Transfer of Property Act,1882 since the conditions of the Patta had been violated for which the plaintiffs are not having any authority and further because the status of the plaintiffs is that of trespasser, therefore, they have no locus standi and the suit be dismissed. In para (f) it has also been pleaded by the defendant that the civil suil for declaration and injunction is not at all maintainable for the simple reason that same is barred under Section 57(2) of the M.P. Land Revenue Code, 1959 (in short “the Code”) On the basis of these pleadings it has been prayed that the suit of plaintiffs be dismissed. 5. Looking to the averments made in the plaint and denial in the written-statement learned Trial Court framed necessary issues and directed the parties to lead the evidence. 6. On behalf of plaintiff, Ashok Kumar (Plaintiff No.4) who is the son of first plaintiff Radhika Prasad was examined as PW-1. Three more witnesses were examined and they are; R.S. Singh (PW-2), B.S. Thakur (PW-3) and Dr. Gulab Das Gupta(PW-4). On behalf of the defendant three witnesses were examined, Sunil Kumar Randhelia, Virendra Kumar and Amrit Lal. The plaintiff filed umpteen documents including the document of title of their vendor, the Society which is a registered document of deed of settlement dated 28.3.1906 (Ex.P/17-C) executed by Miss Elizabeth Branch Spinster in favour of plaintiffs’vendor. The plaintiff also filed the document of his title (sale deed) dated 24.5.1948 (Ex.P/16-C) which is also a registered document. Apart from this, plaintiffs also filed several Khasras and some orders of the Revenue authorities. 7. The plaintiff also filed the document of his title (sale deed) dated 24.5.1948 (Ex.P/16-C) which is also a registered document. Apart from this, plaintiffs also filed several Khasras and some orders of the Revenue authorities. 7. Learned Trial Court on the basis of the evidence placed on record found that firstly the vendor of the plaintiff, the Society was not the trespasser and by operation of law it became Bhumiswami on coming into force of present Land Revenue Code and secondly the plaintiff No.1 cannot be said to be a Government lessee for the simple reason that no Patta (lease-deed) has been executed in his favour by the State Government. Learned Trial Court further held that the objection of the State Government in regard to the maintain ability of the suit without availing the Forum of the Sub-Divisional Officer as envisaged under Section 57(2) of the Code is meritless and the suit can be directly filed in the Civil Court for declaration and injunction. Accordingly, the learned Trial Court decreed the suit of the plaintiffs. 8. In this manner this appeal has been filed by the defendant-State Government. 9. Only two contentions have been raised by learned counsel for the defendant-State Government. Firstly, because there was a Patta in favour of the first plaintiff Radhika Prasad Katare and he was he was a Government lessee for a period of 30 years which expired in the year 1984 and thereafter he became trespasser since the Patta was never renewed and therefore, he has no right to retain the suit property and secondly the instant civil suit filed by the plaintiffs directly in the Civil Court is not maintainable and they ought to have approached the Forum of Sub-Divisional Officer as envisaged under Section 57(2) of the Code and therefore, by allowing this appeal the impugned judgment and decree passed by learned Trial Court be set aside and the suit of the plaintiffs be dismissed. 10. Combating the aforesaid submission it has been submittied by Shri Ravish Agrawal, learned senior counsel for the respondents-plaintiffs that by operation of law the first plaintiff rightly became the Bhumiswami of the suit property because in the registered deed (Ex.P/17-C) executed by Miss Elizabeth Branch, Spinster in favour of the vendor of the first plaintiff, it has been mentioned that the suit property including the building, superstructure etc. are sold and thereafter the vendor of the first plaintiff, the Society vide registered sale deed dated 24.5.1948 (Ex.P/16-C) sold the suit property along with the buildings, etc. to the first plaintiff Radhika Prasad Katare. By inviting my attentin to various documents it has been put forth by him that the suit property has been entered as abadi land in the revenue record and therefore, according to proviso to Section 219 of the Revenue Act, 1917 since the buildings, etc. were already in existence prior to coming into force of this Act, therefore, the bar was enacted by the legislature that the Deputy Commissioner shall not exercise powers conferred under Section 219 of the said Act in regard to encroachment made by the buildings or works constructed before commencement of the Revenue Act of 1917. 11. By inviting my attention to Section 5(a) of the Abolition of the Proprietary Rights Act it has been contended by learned senior counsel that the person who was holding open house sites purchased for consideration; all buildings; places of worship; wells situated, etc. would become proprietor of that land and the State Government would settle those lands in his favour. 12. By inviting my attention to Section 146(b) of the Revenue Code of 1954 it has been submitted by learned senior counsel that every person who was having house site in abadi in the Central Provinces would become Bhumiswami on coming into force of the Revenue Code of 1954 and thus, by operation of law when the present Land Revenue Code, 1959 came into force, under Section 157 and 158 thereof , first plaintiff Radhika Prasad Katare became Bhumiswami of the property in question and therefore, learned Trial Court rightly came to hold that the first plaintiff is the Bhumiswami of the suit property and declared him to be so. Learned counsel further submits that on account of defendant’s own showing no Patta has ever been granted by the erstwhile Government of Madhya Pradesh in the year 1954 in favour of first plaintiff and therefore, question of breach of any condition thereof does not arise. 13. Learned counsel further submits that on account of defendant’s own showing no Patta has ever been granted by the erstwhile Government of Madhya Pradesh in the year 1954 in favour of first plaintiff and therefore, question of breach of any condition thereof does not arise. 13. By replying the argument of learned counsel of the State Government that the suit is not maintainable in view of Section 57(2) of the Code it has been contended by learned senior counsel that this point has already been put to rest by a Full Bench of this Court in Ramgopal v.Chetu, 1976 JLJ 278 wherein this Court has categorically held that straightway the suit for declaration and injunction based upon title can be filed and is not barred. By inviting my attention to two decisions of Supreme Court, Rohini Prasad and others v.kasturchand and another, 2000 RN 141= (2000) 3 SCC 668 and Hukam Singh (dead ) by LRs and others v. State of M.P., (2005) 10 SCC 124 it has been put forth by learned senior counsel that twice the Full Bench decision of Ramgopal (supra) has been affirmed by the Supreme Court in these two decisions. By placing reliance on another Full Bench decision of this Court in State of M.P. v. Balveer Singh, 2001 RN 343 = 2001 (2) MPLJ 644 it has been argued by learned senior counsel that same proposition has been laid down again by the Full Bench holding that the civil suit straightway can be filed in the Civil Court without availing the remedy to file proceedings under Section 57 (2) of the Code. On these premised submissions it has been put forth by learned senior counsel that learned Trial Court did not err in decreeing the suit of plaintiff and this appeal sans substance and same be dismissed. 14. Having heard learned counsel for the parties I am of the view that this appeal deserves to be dismissed. 15. On these premised submissions it has been put forth by learned senior counsel that learned Trial Court did not err in decreeing the suit of plaintiff and this appeal sans substance and same be dismissed. 14. Having heard learned counsel for the parties I am of the view that this appeal deserves to be dismissed. 15. On the basis of the submissions put forth by learned counsel for the appellant-State and the reply which has been given by learned senior counsel for the respondents-plaintiffs, three point emerge for consideration, they are:- (I) Whether the first plaintiff Radhika Prasad Katare is a trespasser on the suit property; (II) Whether the first plaintiff is the Government lessee and he has breached the condition of the Patta; and (III) Whether the civil suit for declaration of Bhumiswami right and injunction which has been directly filed in the Civil Court is maintainable without availing the remedy under Section 57 (2) of the Code or not? Regarding Point No.(I) 16. It has not all been disputed by learned counsel for the State that earlier to coming into force of Revenue Act of 1917, in the suit property buildings, superstructure etc. were in existence. On bare perusal of the registered document of title of the vendor of the plaintiff which was executed by Miss Elizabeth Branch, Spinster on 28th March, 1906 (Ex.P/17-C), although it has been named as Settlement deed, it also describes that the buildings and superstructures are there and the same situation has also been repeated in the registered sale deed (Ex.P/16-C) executed in favour of first plaintiff by the Society on 24.5.1948 and thus, it is luminously clear like a noon day that much prior to coming into force of Revenue Act of 1917, the Abolition of Proprietary Rights Act and the Land Revenue Code of 1954, since the buildings and superstructure were already there on the suit property, neither the vendor of plaintiff, viz the Society was a trespasser nor the first plaintiff who purchased the suit property was a trespasser At this stage, it would be condign to quote Section 71 of the Revenue Act of 1917, with reads, thus: “71. The Settlement Officer shall, in the case of every inhabited village, ascertain and determine the area to be reserved for the residence of the inhabitants or for purposes ancillary thereto, and such area shall be deemed to be the abadi of such village.” On bare perusal of the aforesaid provision it is gathered that the Settlement Officer shall determine the area where the inhabitants of that area residing and that area shall be called and deemed to be the abadi of such village. Since the huge and superstructure etc. were already built much period to coming into force of Revenue Act of 1917, according to me, the suit property shall be deemed to be the abadi land. At this juncture, it would also be relevant to quote Section 219 (1) of the said Revenue Act of 1917 and proviso to it which reads, thus:- “219. (1) Any person, who encroaches upon any land set apart by an entry in the village administration paper of a mahal for communal purposes, or upon any land which is the property of Government, may be summarily ejected by the order of the Deputy Commissioner, and a crop which may be standing on the land, and any building or other work which he may have constructed thereon, if not removed by him within such time as the Deputy Commissioner may fix, shall be liable to the forfeiture. “Such person shall also be liable, at the discretion of the Deputy Commissioner, to a fine which may extend to fifty rupees. The Deputy Commissioner may apply the whole or any part of the fine either to meet the cost of the removal of such encroachments or to compensate persons who may in his opinion, have suffered loss or injury threfrom;” Provided that the Deputy Commissioner shall not exercise powers conferred by this sub-section in regard to encroachments made by buildings or works constructed before the commencement of this Act.” On conjoint reading of the aforesaid two provisions and particularly by putting emphasis to the provision to Section 219(1) of the Revenue Act of 1917 it is clear that the Deputy Commissioner shall not exercise powers conferred by the said sub-section in regard to encroachments made by buildings or works constructed before the commencement of the Act and the said land shall be called as ‘abadi’ land. 17. 17. It would be germane to quote Section 5(a) of the Abolition of Proprietary Rights Act, which reads, thus: “5. Subject to the provisions in sections 47 and 63.- (a) all open enclosures used for agricultural or domestic purposes and in continuous possession of twelve years immediately before 1948-49; all open house-sites purchased for consideration; all buildings; places of worship; wells situated in and trees standing on lands included in such enclosures or house-sites or land appertaining to such buildings or places of worship; within the limits of a village site belonging to or be held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person, as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine.” Sections 47 and 63 are not applicable in the present case because they pertain to customs, etc. Since the first plaintiff Radhika Prasad Katare was possessing the superstructures, building, etc. by virtue of sale deed dated 24.5.1948 (Ex.P/16-C) therefore, in terms of Section 5(a) of the Abolition of Proprietary Rights Act, he would become proprietor thereof and on coming into force of the Land Revenue Code, 1954, under Sectin 146(b) of the same he would become Bhumiswami. It would again be condign to quote Section 146 and Sub-section (b) which reads, thus: “146. Every person, who at the 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) every person in respect of land lawfully held by him as house site in abadi in the Central Provinces or the merged territories;” Since the suit property would be deemed to be the abadi under the Revenue Act of 1917 and the first plaintiff Radhika Prasad Katare became proprietor of those buildings and superstructures, etc. ....................... ................ (b) every person in respect of land lawfully held by him as house site in abadi in the Central Provinces or the merged territories;” Since the suit property would be deemed to be the abadi under the Revenue Act of 1917 and the first plaintiff Radhika Prasad Katare became proprietor of those buildings and superstructures, etc. by Section 5(a) of the Abolition of Proprietary Rights Act and by virtue of aforesaid provision of Section 146(b) of the Land Revenue Code,1954 he became Bhumiswami, thus, by operation of law on coming into force of the present M.P. Land Revenue Code which came into force w.e.f. 2.10.1959, under Section 157 and 158, for all practical purposes he became Bhumiswami and thus, according to me, learned Trial Court rightly arrived at a conclusion that the first plaintiff Radhika Prasad Katare is the Bhumiswami of the suit property. 18. This point was dealt by Division Bench of this Court in Radheshyam Agrawal v.The State of Madhya Pradesh and others, Misc. Petition No. 138 of 1962 decided on 7.8.1962 which has been digested in 1963 RN 282=1963 MPLJ SN 295 and it has been categorically held by Division Bench that holder of abadi site becomes Bhumiswami automatically under Section 146 of the Land Revenue Code of 1954. If the first plaintiff Radhika Prasad Katare became Bhumiswami automatically on coming into force of the said Code, automatically he became Bhumiswami under Section 157 and 158 of the present Code. In Rani Zamitkuwar Devi vs. Narsingh and others, Letters Patent Appeal No.14/1954 decided on 17.7.1957 which has been digested in 1957 MPLJ SN 163 presided by Chief Justice M. Hidayatullah (as His Lordship then was ) and Shri B.K. Choudhuri, J., while dealing with Section 5(a) of the Abolition of Proprietary Rights Act have categorically held that existence of house on the abadi site does not make any difference in view of Section 5(a) of the Act of 1950 and the person who holds the house will be entitled to retain the site and to settle with the terms on which it should be held by him. 19. Thus, on the bases of the aforesaid analysis of the law, I am of the firm view that first plaintiff Radhika Prasad Katare is not a trespasser. 19. Thus, on the bases of the aforesaid analysis of the law, I am of the firm view that first plaintiff Radhika Prasad Katare is not a trespasser. Apart from this, on bare perusal of the one important document Ex.P-10 which is the order of the Additional Commissioner, Jabalpur in case No.211/3/20(1)/92-93 (Radhika Prasad Katare vs. State of M.P.) decided on 21.9.1996 it is gathered that the first plaintiff Radhika Prasad was not found to be a trespasser and the order of the Addidional Collector dated 3.4.1993 (Ex.D26-C) was set aside. 20. I have also gone through the reasons assigned by learned Trial Court holding that how and in what manner the first plaintiff Radhika Prasad Katare became Bhumiswami of the suit property and I find that the findings so arrived are based on correct appreciation of law. Thus, the said finding of learned Trial Court holding that the first plaintiff Radhika Prasad Katare is the Bhumiswami of the property is hereby affirmed. Regarding Point No.(II) 21. I have already enumerated the legal position. Now here in the picture the Government is coming. The stand of the State Government is that in the year 1954 the land was given on lease to the first plaintiff by the then Madhya Pradesh Government on Patta for 30 years. But there is no document on record in this regard. No Patta has been filed by the State Government. On the contrary. it is defendant/appellant’s own case that no written Patta was ever executed in favour of first plaintiff Radhika Prasad Katare and in this regard para (Ga) of the written-statement may be seen. When no Patta was ever executed by the State Government in favour of the first plaintiff, the question of breach of any condition does not arise and thus, this point is also decided against the appellant and it is hereby held that since no Patta was executed by the then State Government in favour of first plaintiff and therefore, the question of breach of any condition thereof does not arise. Regarding Point No.(III) 22. This is in respect of the jurisdiction of the Civil Court. Under Section 57(2) of the Code, if there is a dispute between the State Government and any person in respect of any right under sub-section (1) such dispute shall be decided by the Sub-Divisional Officer. Regarding Point No.(III) 22. This is in respect of the jurisdiction of the Civil Court. Under Section 57(2) of the Code, if there is a dispute between the State Government and any person in respect of any right under sub-section (1) such dispute shall be decided by the Sub-Divisional Officer. This point has alread been put to rest by a Full decision of this Court in Ramgopal (supra) which has been affirmed twice by the Apex Court, firstly in Rohini Prasad (supra) and thereafter in Hukam Singh (supra) and it has been categorically held that civil suit for declaration of Bhumiswami right based upon title can straightway be filed in the Civil Court. There is yet another Full Bench decision of this Court Balveer Singh (supra) and therefore, I am of the view that if the plaintiffs have filed suit directly without availing the remedy under Section 57 (2) of the Code to approach the Forum of Sub-Divisional Officer, the civil suit is maintainable. 23. No other point has been pressed before me. 24. Resultantly, this appeal fails and is hereby dismissed with no order as to costs, counsel fee according to schedule, if pre-certified. ..................