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2013 DIGILAW 12 (MP)

Sabal Singh v. State of M. P.

2013-01-02

ANIL SHARMA

body2013
JUDGMENT 1. This second appeal has been filed by the appellants/plaintiffs under section 100 of the Code of Civil Procedure, challenging the judgment and decree dated 8.8.1996 passed in First Civil Appeal No. 73A/92 by Additional District Judge, Basoda, District Vidisha (M.P.), confirming the judgment and decree dated 30.11.1992 passed in Civil Suit No. 162A/91 Additional Civil Judge Class-2, Basoda, District Vidisha (M.P.). 2. Succinctly the facts of the case are that the appellant/plaintiffs filed a suit for declaration of Bhumiswami rights and permanent injunction against the respondent/defendant with regard to agricultural land bearing survey Nos.77, 83, 191, 195 and 799 (new survey nos. 37, 103 and 460), total area 83 Bigha 4 Viswa situated in village Enchada, Tahsil Nateran, District Vidisha (M.P.). The plaintiffs have been cultivating the disputed land since the time of their father who obtained that land as zamindari lease. The respondent/defendant had raised an objection that the plaintiffs are encroacher upon the disputed land and threatened to dispossess them on 1.5.1980 and 12.10.1980, while the appellants/plaintiffs have become Bhumiswami of the land in dispute after coming into force the M.P. Land Revenue Code because they became Pacca Krishak after abolition of Jamindari. 3. The respondent/defendant in his written statement admitted new survey numbers of disputed land and further admitted that father of original plaintiffs namely Nirbhay Singh and Pratap Singh were also Jamindar of Village Enchada before Maalgujari Abolition Act coming into force in 1951. The disputed land was not Khud-kashat land of the then zamindar in Samvat 2008 and it was recorded as Beed land in khasras in Samvat 2007-2008. Therefore, after coming into force the Maalgujari Abolition Act, 1951, the disputed lands were vested in the Government under section 4 of the Act. The disputed land was not recorded in the name of plaintiffs as Pacca Krishak and/or Bhumiswami. The plaintiffs are encroacher on the suit land, therefore, prayed that suit be dismissed. 4. The trial Court dismissed the suit. Thereafter, the learned lower appellate Court has also dismissed the appeal filed by the appellants/plaintiffs. Therefore, the plaintiffs/appellants have filed this present second appeal. 5. Original plaintiff Madan Singh died during pendency of this appeal on 4.2.2005 and his legal representatives are already brought on record. 6. 4. The trial Court dismissed the suit. Thereafter, the learned lower appellate Court has also dismissed the appeal filed by the appellants/plaintiffs. Therefore, the plaintiffs/appellants have filed this present second appeal. 5. Original plaintiff Madan Singh died during pendency of this appeal on 4.2.2005 and his legal representatives are already brought on record. 6. This second appeal has been admitted vide order dated 2.4.1998 on the following substantial questions of law:- (I) Whether the finding of the two Courts below are against the provisions of section 4(1) of the M.B. Regulation and Jagirdari Abolition Act, 1951 ? (II) Whether the disputed land is exempted under sections 4, 5 (b) and 5 (c) of the M.B. Abolition of Jagirdari Act, 1951 ? (II) Whether, the plaintiffs acquired Bhumiswami rights being in adverse possession for more than 50 years ? 7. Substantial questions No.1 and 2 relate to provisions of section 4 (1) of the M.B. Regulation and Jagirdari Abolition Act 1951 and sections 4, 5 (b) and 5 (c) of the M.B. Abolition of Jagirdari Act, 1951, therefore, they are considered together. The provisions of relevant sections are re-produced herein below:- (4) Consequences of the resumption of Jagir lands; (1) As from the date of resumption notwithstanding any thing contained in any contract, grant or document or in any other law, rule, regulation or order for the time being in force, but save as otherwise provided in this Act. (5). Private wells, trees, buildings, house- sites and enclousrs- Notwithstanding anything contained I the last preceding section - (a) ................ ................ (5). Private wells, trees, buildings, house- sites and enclousrs- Notwithstanding anything contained I the last preceding section - (a) ................ ................ (b) (i) all open enclosures used for agricultural or domestic purposes and in continuous possession (which includes possession of any predecessor in interest) for twelve years immediately before the date of resumption; (ii) all open house-sites purchased for valuable consideration; (iii) all private buildings, places of worship and wells situated in, and trees standing on lands included in such enclusres or house-sites, as are specified in clauses (i) and (ii) above, or land appertaining to such buildings or places of worship; within the limits of a village-site, and (iv) all groves wherever situate, belonging to or held by the jagirdar or any other person, shall continue to belong to or be held by which Jagirdar or other person, as the case may be, and the land thereof within the areas appertinent thereto shall be settled on him by the Government according to the provisions of the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat, 2007. (c) all tanks, trees, private wells and buildings in or on occupied land belonging to or held by the Jagirdar or any other person shall continue to belong to, or be held by such Jagirdar or other person. 8. Learned counsel for the appellant has cited a judgment of Hon’ble the apex Court in the matter of Meharban Singh and others vs. Naresh Singh and others,1970 RN 472=1970 JLJ 791= (1969) 3 SCC 542 , in which it has been held by the apex Court after considering the fact that both the appellants and the respondents who are private parties have pressed their rival and controversial claims regarding possession over the suit land. For deciding the actual possession of the suit land at relevant period is to the trial Court. 9. For deciding the actual possession of the suit land at relevant period is to the trial Court. 9. Learned counsel for the appellant has also cited a judgment of Hon’ble the apex Court in the matter of Meharban Singh and others vs. Naresh Singh and others, 1970 RN 472=1970 JLJ 791= AIR 1971 SC 77 ; in a suit for redemption and possession of mortgaged land by proprietor, enforcement of Act during pendency of suit, effect of section 4 (1) (f) on the rights of plaintiffs, it is held that the plaintiffs were entitled to show that land in question was Khud-kasht and they could remain in possession thereof. They were entitled to remain in possession thereof notwithstanding that their rights, title and interests in the land had vested in the State from the date of the notification. The High Court was in error in dismissing the plaintiffs claim for possession on the ground that the plaintiffs could only claim compensation from the Government on the basis of their proprietary rights after redeeming the mortgage.” 10. Learned counsel for the respondent - State on the other hand has cited Division Bench judgment of this Court in the matter of State of M.P. and another vs. Gyasiram and others, 1993 RN 113, in which it has been held that “civil suit claiming any right or ownership over the Government land is not maintainable. The jurisdiction of civil Court is barred by sub-section (2) of section 57 of the Land Revenue Code, 1959. Original jurisdiction is vested with Sub-Divisinal Officer. Civil Suit is maintainable under sub-section (3) after decision under sub-section (2) by Sub-Divisional Officer.” 11. Learned counsel for the respondent - State has submitted that since the khasra entry shows that disputed land was entered as beed in khasra, therefore, said land cannot be treated as Khud-kasht land and since the entry is showing the land as government land, therefore, suit before the trial Court for declaration of title was not maintainable. 12. Learned counsel for the respondent - State has submitted that since the khasra entry shows that disputed land was entered as beed in khasra, therefore, said land cannot be treated as Khud-kasht land and since the entry is showing the land as government land, therefore, suit before the trial Court for declaration of title was not maintainable. 12. Learned counsel for the respondent - State in support of his arguments has also cited judgments of this Court in the matter of State of M.P. v. Kundan Singh, 1995 RN 57; State of M.P. v. Kashiram and ors, 1995 RN 159 and Ram Singh v. State of M.P. and others, 1995 RN 193, in which it has been held that khasra entry showing that the land is banjar or beed, such land cannot be treated as Khudkasht under section 4 (2) of the Jamindari Abolition Act. 13. Learned counsel for the respondent - State has also cited a Division Bench judgment of this Court in the matter of Rajya Parivahan Karmachari Mahasangh and another vs. State of M.P. and others, 1983 JLJ 398 = 1983 MPLJ 68 , in which considering the interpretation of Statutes held that headings prefixed to sections help to resolve any doubt in the interpretation of the words in the sections.” 14. Learned counsel for the appellant has submitted that under section 54 of Madhya Bharat Land Revenue and Tenancy Act, Samwat, 2007, a person holding land as Maurusi Krashak or sub-tenant in the Samwat 2007 shall have the right of Pakka Krashak/tenant and under sections 185 of MPLRC, 1959, Pakka Krashak has been given right of Bhumiswami. Learned counsel for the appellant has cited the judgment of this Court in the matter of Laxman Rao vs. State of M.P. and another, 1997 RN 381 in which even it has been held that under section 54 (vii), a person holding land as a Pacca tenant acquire Bhumiswami rights under MPLRC even if the land was “padti kadim” or there was any bungalow on the land. It is further held that where name of PWD along with plaintiff appearing in khasra, PWD may be owner but could not be Bhumiswami which rights are possessed by plaintiff. It is further held that where name of PWD along with plaintiff appearing in khasra, PWD may be owner but could not be Bhumiswami which rights are possessed by plaintiff. It is further held that person recorded as Pukhta Maurushi in Samwat 2007 and also in possession acquire Pakka tenancy right under the Madhya Bharat Land Revenue and Tenancy Act, Samwat, 2007 and Bhumiswami rights under M.P. Land Revenue Code, 1959 and actual cultivation not necessary. 15. Learned counsel for the appellant has also cited judgment of this Court in the matter of Gokul and others vs. Bale and others, 1999 RN 30 in which it has been held that sub-tenant since Samwat 2007 to 2009 acquire right of Pakka tenant even if shown in khasra as trespasser during Samwat years 2015 to 2021. Such sub-tenant acquire right of pakka tenant and further acquire right of occupancy tenant and Bhumiswami right under sections 158 and 185 of MPLRC and entries of trespasser since Samwat year 2015 to 2021 may be ignored. It it further held that change in Khasra entries cannot be made under section 117 of MPLRC without hearing the party concerned. 16. The disputed land is within legal area of erstwhile Gwalior Estate and for the area of Gwalior Estate, there is specific judgment of this Court in the matter of Bheron Singh v. Government of M.P. 1983 Revenue Nirnay 243 in which it has been held that “considering the meaning of word” ‘Khud-kasht’ and ‘Beed’, meaning of land recorded as Khud-kasht before the date of vesting in column ‘Alava Jot’ entry of Beed, merely on the basis of entry as Beed such land cannot be treated as Beed land, it will be treated as Khud-kasht. 17. It has been further held that under section 55 of the Madhya Bharat Land Revenue and Tenancy Act, agricultural land means, land used for growth of grass or food for cattle. Land recorded as Beed in column of ‘Shamil Jot’ such land to be treated as for agricultural purposes. 18. Therefore, judgments cited by learned counsel for the respondent/State are not applicable to the present case looking to the judgment of Bheron Singh (supra) which has been passed with regard to land belonging to erstwhile Gwalior Estate on the basis of provisions of the then existing tenancy law at the relevant time of Zamindari Abolition Act. 19. 18. Therefore, judgments cited by learned counsel for the respondent/State are not applicable to the present case looking to the judgment of Bheron Singh (supra) which has been passed with regard to land belonging to erstwhile Gwalior Estate on the basis of provisions of the then existing tenancy law at the relevant time of Zamindari Abolition Act. 19. Therefore, appeal filed by the appellant is allowed and the impugned judgment and decree passed by the learned Courts below are set-aside. The appellant is declared Bhumiswami of the land bearing survey Nos. 77, 83, 191, 195, and 799 (new survey Nos. 37, 103 and 460), total area 83 Bigha 4 Viswa situated in village Enchada, Tahsil Nateran, District Vidisha (M.P.) and the respondent/State is restrained from interfering in peaceful possession of the appellant and in use of land.