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2013 DIGILAW 1046 (MP)

Nagraj Sharma v. State of M. P.

2013-09-03

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J.:- 1. This appeal is by the plaintiff, which was admitted by a Bench of this Court on following substantial questions of law: 1. “Whether on the facts and circumstances of the case, the plaintiff-appellant is a Gairhaqdar tenant and is entitled to be declared a Bhumiswami of the suit land ? 2. Whether on the facts and circumstances of the case, the plaintiff-appellant entered into possession of the suit land before 1-4-1955 and in view of the proviso to section 248 of the M.P. Land Revenue Code, is entitled for a decree of permanent injunction, restraining the defendants from interfering with his peaceful possession ?” 2. Facts giving rise to filing of the appeal, briefly stated, are that the plaintiff filed a suit on the ground that he came to Amarkantak sometime in the year 1947 and after obtaining permission from Officer of erstwhile Rewa State started agricultural operations on the land admeasuring 41 acres. It was further pleaded that the plaintiff made an investment of Rs. 50,000/- and improved the land. The plaintiff became gairhaqdar tenant under section 57 of the Rewa Land Revenue and Tenancy Code, 1935 (in short referred to as “the Code, 1935”) and on commencement of the Madhya Pradesh Land Revenue Code, 1959 (in short referred to as “The Code, 1959”) under section 158 of the Code 1959, the plaintiff became the Bhumiswami of the suit land. It was further pleaded that the plaintiff was in possession of the suit land for more than 35 years. In alternative the plea of acquisition of the land by adverse possession was taken. However, the defendants initiated the proceeding under section 248 of the Code, 1959. Accordingly, the plaintiff filed a suit seeking the relief for declaration of title and permanent injunction. 3. The defendants filed the written statement, in which inter alia it was pleaded that the plaintiff came to Amarkantak sometime in the year 1961 and is not in possession of the suit land. It was further pleaded that no permission was obtained by the plaintiff from any of the Officer of the Rewa State. The plaintiff has fraudulently mutated his name in the revenue records of the year 1956-57 and 1967-68 in respect of suit land. It was denied that the plaintiff was in possession of the suit land for past 35 years. It was further pleaded that no permission was obtained by the plaintiff from any of the Officer of the Rewa State. The plaintiff has fraudulently mutated his name in the revenue records of the year 1956-57 and 1967-68 in respect of suit land. It was denied that the plaintiff was in possession of the suit land for past 35 years. It was pointed out that the plaintiff was in possession of the land admeasuring 11.055 hectares as an encroacher and in proceeding under section 248 of the Code 1959, the plaintiff was dispossessed from the, land in his occupation. It was further pleaded that the reliefs claimed in the suit by the plaintiff have neither been properly valued nor proper Court fees has been affixed. 4. The trial Court vide judgment and decree dated 22-7-1991 inter alia held that the plaintiff has failed to prove that he is in possession of the suit land with consent of the Tahsildar as required under section 57(4) of the Code 1935, therefore, he is not a gairhaqdar tenant. On the basis of the entries made in original Khasra (Ex.P/3) it was held that the land bearing Khasra Nos. 296 to 299 and 357 are recorded as forest land in the revenue records and the Government has been shown to be the owner of the land in question. It was further held that in the year 1958-59, the plaintiff's name appears to have been interpolated by different ink in the revenue records. Since the plaintiff has failed to prove that he was gairhaqdar tenant in respect of the land in question therefore, in view of section 158 of the Code, 1959 he has 'not acquired the Bhumiswami rights in respect of suit land. It was further held that the plaintiff is in possession of the suit land since 1960 and the suit has been filed in the year 1985 therefore, the plaintiff has not acquired title on the land in question. It was further held that the plaintiff has already been dispossessed on 9-1-1987 in the proceeding under section 248 of the Code 1959. Accordingly, the suit was dismissed. The aforesaid decree was affirmed in appeal by the Lower Appellate Court. 5. Learned counsel for the appellant submitted that the appellant is a gairhaqdar tenant therefore, he has acquired a Bhumiswami rights on the land in question under section 158 of the Code, 1959. Accordingly, the suit was dismissed. The aforesaid decree was affirmed in appeal by the Lower Appellate Court. 5. Learned counsel for the appellant submitted that the appellant is a gairhaqdar tenant therefore, he has acquired a Bhumiswami rights on the land in question under section 158 of the Code, 1959. However, the aforesaid aspect of the matter has not been considered by the Courts below. It was further submitted that since the plaintiff was in possession of the suit land before 1-4-1955 and therefore, in view of proviso to section 248(1) of the Code 1959, he could not have been dispossessed in a proceeding under section 248 of the Code, 1959. 6. I have considered the submissions made by learned counsel for the appellant and have perused the record. The jurisdiction of this Court to interfere with the findings of fact is well defined by catena of decisions of Supreme Court. This Court in exercise of powers under section 100 of the Code of Civil Procedure can interfere with the finding of fact only if the same is shown to be perverse or based on no evidence. See Narayanan Rajendran and another v. Lekshmy Sarojni and others, (2009) 5 SCC 264 , Hafazat Hussain v. Abdul Majeed and others, (2011) 7 SCC 189, Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 , D.R. Rathna Murthy v. Ramappa, 2011(2) MPLJ (S.C) 507 = (2011) 1 SCC 158 and Vishwanath Agrawal v. Sarla Vishwanath Agrawal, 2012(4) MPLJ (S.C.) 265 = (2012) 7 SCC 288 . 7. Both the Courts below on the basis of meticulous appreciation of evidence on record have recorded the findings that the plaintiff is in possession of said land since 1960 and the lands bearing Khasra Nos. 296 to 299 and 357 have been recorded as forest land in the revenue records. It has also been held that the name of the plaintiff in the revenue records appears to have been incorporated surreptitiously as the entries were made in different ink. The aforesaid findings of fact are based on meticulous appreciation of evidence on record, which by no stretch of imagination can either be said to be perverse or based on no evidence. The aforesaid findings of fact are based on meticulous appreciation of evidence on record, which by no stretch of imagination can either be said to be perverse or based on no evidence. Section 4(2) of the Code 1935, defines the expression tenant as follows: “Tenant” means any person who occupies or holds land whether with or without the consent of the Darbar or pawaidar or sub-pawaidar. It includes a grove-holder and a tank-holder, but does not include a sub-pawaidar, a holder of a chakri grant or a mortgagee of pawai or sub-pawai rights.” Section 57 of the Code 1935 reads as under: “57. Gairhaqdar tenant: (1) All tenants, other than pachpan paintalis tenants and pattedar tenants, are gairhaqdar tenants. (2) The interest of a gairhaqdar tenant is, for the term of his contract, if any, heritable and will devolve in accordance with the provisions of section 48. (3) The interest of a gairhaqdar tenant is not transferable in any shape or form. (4) A gairhaqdar tenant who has occupied land other than grove-land, tank, or land acquired or held for a public purpose or a work of public utility, with the consent, express or implied, of the Tahsildar or the pawaidar or sub-pawaidar, as the case may be, shall be entitled to be recorded as a pattedar tenant and to obtain a patta if he agrees to pay rent determined in accordance with the provisions of section 83. Section 158(1) of the Code 1959 reads that every person who at the time of coming into force of this Code, belongs to any of the classes specified therein 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. Section 158(1) of the Code 1959 reads that every person who at the time of coming into force of this Code, belongs to any of the classes specified therein 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. Section 158(1)(d)(i) and (ii) reads as under: “(i) every person 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 1955); (ii) every person in respect of land (other than land which is a grover or tank or which has been acquired or which is required for Government or public purposes) held by him in the Vindhya Pradesh region as a gair haqdar tenant and in respect of which he is entitled to a patta in accordance with the provisions of sub-section (4) of section 57 of the Rewa State Land Revenue and Tenancy Code, 1935.” 8. On the basis of the material available on record, the Courts below have recorded the finding that the land in question was recorded as forest land. The plaintiff has failed to prove that he was in occupation of the suit land with the consent, either implied or expressed, of the Tahsildar. The plaintiff has also not filed any document to show that he has paid the land revenue in respect of the land in question. On the basis of material available on record, it cannot be held that the plaintiff is a gairhaqdar tenant under section 57 of the Code 1935, therefore, no Bhumiswami rights under section 158(1)(d)(ii) of the Code 1959 have been conferred on him. For the aforesaid reasons, the first substantial question of law is answered in negative and against the appellant. 9. Both the Courts below on the basis of meticulous appreciation of evidence on record have held that the plaintiff is in possession of the suit land since 1960, and therefore, he has not perfected his title by adverse possession as the suit seeking the relief for declaration of title was filed in the year 1985. 9. Both the Courts below on the basis of meticulous appreciation of evidence on record have held that the plaintiff is in possession of the suit land since 1960, and therefore, he has not perfected his title by adverse possession as the suit seeking the relief for declaration of title was filed in the year 1985. Proviso to section 248 (1) of the Code 1959 reads as under: “Provided that the Tahsildar shall not exercise the powers conferred by this sub-section in regard to encroachment made by building or works constructed - (i) in the Mahakoshal region - (a) in areas other than the merged States before the first day of September, 1917; (b) in the merged States, before the third day of April, 1950; (ii) in the Madhya Bharat region, before the fifteenth day of August, 1950; (iii) in the Vindhya Pradesh region, before the first day of April, 1955; (iv) in the Bhopal region, before the eighth day of November, 1933; and (v) in the Sironj region, before the first day of July, 1958.” 10. The plaintiff has not been found in possession of the suit land before 1-4-1955, which is situate in the Vindhya Pradesh region, therefore, the bar contained in proviso to section 248 of the Code 1959 is not attracted. Accordingly, the second substantial question of law is also answered in negative and against the appellant. 11. In the result, the appeal fails and is hereby dismissed with costs. Appeal dismissed.