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2013 DIGILAW 342 (MP)

Alka Gupta v. State of M. P.

2013-03-13

ANIL KUMAR SHARMA

body2013
JUDGMENT Anil Kumar Sharma, J. The appellant has filed this First Appeal under Section 96 of C.P.C. against judgment and decree dated 28.01.2011 passed by learned Additional District Judge (FTC) Gwalior in Civil Suit No.62-A/10 whereby suit filed by the appellant and respondents no.3 and 4 for declaration of title and permanent injunction has been dismissed. 2. The brief facts of the case are that appellant/plaintiff and respondents no.3 and 4/plaintiffs have filed suit for declaration of title and permanent injunction against defendants/respondents no.1 and 2 in respect of the plots situated at land survey No.937 at village Mahalgaon which is marked as 'v' 'c' 'l' in the map filed with the plaint. The plaintiff also purchased plots from its Bhumiswami Jaswant Singh S/o Badna Singh by registered sale deed dated 03.06.1989 and his name was mutated in the revenue record on 30.12.1989. The plot of the plaintiff/appellant has been marked as 'v' in the plaint map. The plaintiff has constructed the boundary wall on it and no objection certificate was issued by competent authority under Section 26 of Urban Land Ceiling Act in Case No.592/92-93 B. The respondents/defendants no.1 and 2 without adopting the procedure under the Land Acquisition Act and without paying the compensation to the plaintiffs are trying to demolish the boundary wall and construct the road over the suit land. The defendants have never been issued the notice under Section 9 of the Land Acquisition Act. The defendants have no right to dispossess the plaintiff without adoption the due process of law under the Land Acquisition Act. The defendants have demolished the boundary wall even after receiving the notice given by the plaintiff on 11.02.1998, thereafter causing loss of Rs.25,000/- to the plaintiff. Therefore, plaintiff filed a suit for declaration that defendants are not entitled to take forcible possession and they have no right to construct the road over the disputed plots without adopting the procedure under the Land Acquisition Act and further for retaining the defendants permanently from dispossessing the plaintiff from suit land and to restrain from construction of a road. 3. During the pendency of the suit, plaintiffs have also made averments in the plaint by way of amendment in the plaint stating that defendants have forcibly occupied the land without paying the compensation and have constructed the road on the disputed plots. 3. During the pendency of the suit, plaintiffs have also made averments in the plaint by way of amendment in the plaint stating that defendants have forcibly occupied the land without paying the compensation and have constructed the road on the disputed plots. The market value of the plaintiffs' land is Rs.300/- per sq.ft and the plaintiffs are entitled to the compensation at this rate. 4. The defendants/respondents no.1 and 2 in their written statement denied the allegations made in the plaint and inter alia contended that that in Samvat 2007, the land survey No.937 was recorded as Govt. land. The vendor Jaswant Singh S/o Badna Singh had no right and title to sell out the disputed land and the alleged sale deeds are void and ineffective. The disputed land is entered in the plaintiffs' names in the revenue record in collusion with the revenue employees. The Collector, Gwalior, has issued the acquisition notice on the basis of notification dated 13.10.1992 and acquired the land survey No.937. Notices were issued on 24.02.2012 for acquisition of land for the purpose of construction of over bridge. The defendants have not received notice dated 11.02.1998 and suit is not maintainable in the absence of notice under Section 80 of C.P.C. 5. Learned trial Court by impugned judgment dismissed the suit by holding that the title and possession of the plaintiff has not been proved on the suit land and it is further held that defendants are trying to construct the road and further defendants are not trying to acquire the land under the Land Acquisition Act. Aggrieved by the judgment, the plaintiff has filed this appeal on the ground that the learned trial Court has committed error in evaluating the evidentiary value of Khasra Samvat 2007 wherein predecessor-in-title have been entered as Bhumiswami. However, acting upon same, State Government had admitted his title, and thus, issued notice of acquisition to predecessor-in-title of plaintiffs. In such apparent situation, learned trial Court could not legally by pass the evidentiary value of khasra Samvat 2007. 6. Appeal has also been filed on the ground that the learned trial Court after recording evidence of the plaintiffs earlier dismissed the suit vide judgment and decree dated 16.01.2004. Thereafter, plaintiff No.1 preferred First Appeal No.135/2004 and also filed application under Order 41 Rule 27 of C.P.C. for taking additional evidence of Khasra Samvat 2008 and other documents on record. Appeal has also been filed on the ground that the learned trial Court after recording evidence of the plaintiffs earlier dismissed the suit vide judgment and decree dated 16.01.2004. Thereafter, plaintiff No.1 preferred First Appeal No.135/2004 and also filed application under Order 41 Rule 27 of C.P.C. for taking additional evidence of Khasra Samvat 2008 and other documents on record. The said application was partly allowed and appeal has been disposed of with the following directions that, “4. During the pendency of this appeal, plaintiff has filed I.A. No.2903/08 under Order 41 Rule 27 C.P.C. alongwith the said application plaintiff has field khasra entries of Samvat 2008 of land bearing survey No.937 which shows that the land is recorded in the name of Badna Singh, S/o Juravar Singh. The next document is khasra entries of Samvat 2009 wherein in Column No.5 name of Badna Singh, S/o Juravar is shown to be krishak. Another document filed by the appellant is certified copy of khasra entries of the year 1988-89 to 1992-93 in the name of Jaswant Singh and his brothers, who are mentioned as Bhoomi Swami. Similar is the position in khasra entries of the year 1994-95 to 1997-98 wherein the name of present plaintiff was mutated and shown as Bhoomi Swami. These documents were not produced by the plaintiff before the trial Court and filed alongwith the application under Order 41 Rule 27 C.P.C. 5. After perusal of the application we find that the documents filed by the plaintiff are necessary for just and proper decision of the case. The documents filed by the plaintiff are certified copy of the revenue record, hence, they are also not been disputed at this stage. Hence, we allow this application and take these documents on record. 6. So far as the acquisition proceedings are concerned, there is no dispute that the notification under Section 4 of the Land Acquisition Act issued on 1.9.88 and under Section 6 of the land Acquisition Act issued on 30.4.1989 and it was the land covered by the said notification vest in the State Government. The plaintiff alongwith I.A.No.17262/08 which is another application under Order 41 Rule 27 C.P.C. has filed certified letters addressed by the Executive Engineer, Public works Department and the Collector, Gwalior requesting the Govt. to denotify the said land from acquisition. The plaintiff alongwith I.A.No.17262/08 which is another application under Order 41 Rule 27 C.P.C. has filed certified letters addressed by the Executive Engineer, Public works Department and the Collector, Gwalior requesting the Govt. to denotify the said land from acquisition. So far as these letters are concerned, they are mere recommendations by Executive Engineer and the Collector and is not sufficient to hold that the land is released by the State Govt. After releasing the land from acquisition proceedings, the Govt. is required to issue notification under Section 48 of the Land Acquisition Act and so long as this notification is not issued, the land which is acquired by the State Govt. under Section 4 and 6 of the Land Acquisition Act remains the land of the Government and the owner of the land does not have any right of title in the said property. In such circumstances, these documents are not relevant for just and proper decision of the case. Hence, I.A.No.17268/08 deserves to be dismissed and is hereby dismissed. 7. Since this Court has allowed I.A.No.2903/08, which is an application under Order 41 Rule 27 C.P.C. for permitting the plaintiff to file certified copy of the documents on record, we deem it fit to give opportunity to the State Government to lead evidence in rebuttal of this evidence. 8. Considering the over all situation, we disposed of this F.A. with a direction that the land which is covered by the notification under Section 4 and 6 of the Land Acquisition Act shall remain with the State Government and the State Government shall be free to utilize the said land as per its requirement. In such circumstances, the plaintiff's suit for declaration of title and injunction in respect of the land covered by the notification under Section 4 and 6 of the Land Acquisition Act stands dismissed. So far as the question of remaining land is concerned, the Court below shall decide the suit of the plaintiff after giving opportunity to both the parties to lead evidence on the question of title over the said land. The parties are directed to appear before the trial Court on 20.10.2009. The trial Court shall permit both the parties to lead evidence on the question of title over the property which is covered by notification under Section 4 and 6 of the Land Acquisition Act.” 7. The parties are directed to appear before the trial Court on 20.10.2009. The trial Court shall permit both the parties to lead evidence on the question of title over the property which is covered by notification under Section 4 and 6 of the Land Acquisition Act.” 7. The main question for consideration in this appeal is that whether learned trial Court is justified in dismissing the suit filed by the plaintiff/appellant by impugned judgment and decree. 8. Learned counsel for the appellant has drawn attention towards the judgment passed by this Court in First Appeal No.135/04, copy of which has been annexed in the record of the learned trial Court. In additional evidence of appellant Smt. Alka Gupta, affidavit of examination-in-chief was held on 05.10.2010 in which she has stated that no notice of acquisition has been given to her and no action has been taken to acquire her land. The notices issued by the Government is with regard to land except her land. She has also submitted that khasra entries of settlement of Samvat 1997 are Exhibit P-14 and khasra entries of Samvat 2007 are Exhibit P-15, khasra entries of the year 1994-1995 are Exhibit P-16. According to which, the disputed land is not a Government land. It has been further stated that the land regarding which acquisition notice has been issued has not been acquired because on the proposed land no work was completed for the stipulated time, further after construction of tennis Court on the disputed land, the work of construction of road has been left incomplete and in this regard, letter written for non-acquisition of land to the Collector is Exhibit P-17. The letter written for returning of land acquisition is Exhibit P-18. 9. Learned counsel for the appellant has drawn attention towards khasra entries Exhibit P-15 which are entries of Samvat 2007 in which land survey No.937 has been shown in the ownership of Ryotwari and name of agriculturist has been shown in column no.5 as one Badna S/o Juravar. Learned counsel for the appellant has submitted that the plaintiffs have purchased their lands from Jaswant Singh who is S/o Badna Singh who has been shown as krishak in khasra entries of Samvat 2007. Learned counsel for the appellant has further drawn attention towards possession receipt Exhibit D-1 produced by R.S. Jadon, DW-1, who has been working as Patwari of village Mahalgaon since June, 2010. Learned counsel for the appellant has further drawn attention towards possession receipt Exhibit D-1 produced by R.S. Jadon, DW-1, who has been working as Patwari of village Mahalgaon since June, 2010. This witness has submitted that the land survey no.937 of Mahalgaon is the Government land and is in possession of Government. He has produced certified copy certified by Superintendent of Land Records which is Exhibit D-1. Learned counsel for the respondents no.2 and 3 has submitted that in the Ceiling Proceedings, possession of the disputed land has been taken by Government by Exhibit D-1 in compliance of order dated 22.2.1994 but the learned counsel for the appellant has drawn attention towards the enclosed list of surplus land in which on entry No.3, the name of Jaswant Singh S/o Badna has been shown as owner of survey no.937. 10. Learned counsel for the appellant has submitted that the Exhibit D-1 is the document of Government and this document confirms the entry made in Samvat 2007 mentioning the name of father of Jaswant Singh as krishak of disputed land survey No.937. Further, there is no cross examination regarding reacquisition of disputed land by letters, certified copy of which has been annexed as Exhibits P-17 and P-18, which are enclosed between the judgment part of the trial Court, according to which, Collector, Gwalior, has been enquired by Executive Engineer, PWD, Division No.2, Gwalior that the proposal of land for acquiring the land before survey No.440/1,2,3, 441, 933, 935, 936, 937 have been sent to the Government but for construction, the land was to be acquisitioned and on Govt. land tennis Court has also been constructed. Therefore, for the proposed road there is no justification in acquiring the land and on the back side of the letter, certified copy of letter written by Collector, Gwalior, Secretary, Revenue Department, Bhopal, shows that permission has been sought for return of acquisition of above land under Section 48 (1) of Land Acquisition Act, 1894. 11. Learned counsel for the respondents no.1 and 2 submitted that the source of title of person having land shows as krishak in Samvat 2007 has not been proved and according to Exhibit P-14 in Samvat 1997 survery No.937 has been shown in the ownership of Military department, although name of Nexe S/o Jurarvar Gurjar has been shown as krishak in column No.8. 12. 12. Learned counsel for the appellant has submitted that in the absence of any objection regarding khasra entries of Samvat 2007, there is no need of showing the source of title by the appellant because the khasra entries of relevant year Samvat 2007 shall be presumed to be correct unless they rebutted and there is no rebuttal that khasra entries of Samvat 2007. Certified copy of which has been filed as Exhibit P-15 are false. 13. Learned counsel for the appellant has cited judgment of this Court passed in the matter of Kasturibai & others Vs. State of M.P. 1983 RN 445, in which it has been held that under Section 38 (2) Zamindari Abolition Act, 1951 (M.B.) entry as a sub-tenant on the date coming into force of the Act, sub-tenant becomes a Pacca Krishak rights of occupancy tenant accrue to such Pukka Krishak and he becomes a Bhumiswami under Section 185 of M.P.Land Revenue Code, 1959. 14. Learned counsel for the appellant has cited another judgment of this Court passed in Noor Mohammad Vs. Dev Bux and others, 2006 R.N.287 in which it has been held that where the name of predecessor in title recorded in khasra purchasers from such Bhumiswami perfected their title and right and title of the said respondents were proved by revenue record and document of title on the basis of presumption under Section 117 of M.P. Land Revenue Code, 1959. 15. Learned counsel for the appellant has also drawn attention towards judgment of Munnilal Vs. Hardas, 1987 M.P.L.J. S.N.26, Vithaldas and others Vs. Smt. Bhanwaribai and others, 2003 R.N.210, in which it has been held that conferral of Bhumiswami rights is statutory and automatic, no formal order of any Revenue Officer is necessary. Learned counsel for the appellant has further drawn attention towards another judgment of Shivprasad and another Vs. Ram Narain, 1972 R.N. 586, in which it has been held that accrual of Bhumiswami rights under Section 190 of M.P.Land Revenue Code is automatic. 16. Learned Govt. Advocate for respondents no.1 has submitted that the disputed land has been shown as Ryotwari therefore, provisions of Zamindari Abolition Act are not applicable to the said land. 17. Learned counsel for the appellant has submitted that even the lessee whose tenancy has been terminated has been given benefit of Section 185 of M.P. Land Revenue Code. 16. Learned Govt. Advocate for respondents no.1 has submitted that the disputed land has been shown as Ryotwari therefore, provisions of Zamindari Abolition Act are not applicable to the said land. 17. Learned counsel for the appellant has submitted that even the lessee whose tenancy has been terminated has been given benefit of Section 185 of M.P. Land Revenue Code. In this regard, learned counsel for the appellant has cited judgment of Division Bench of this Court passed in the matter of Sunderlal Vs. Hema, 1965 JLJ 878 in which it has been held that it is clear from the scheme of Section 185 M.P. Land Revenue Code, 1959, that the sub-lessees on whom occupancy rights were conferred were described with the same nomenclature which was employed in each of the various regions comprising the new State of madhya Pradesh under the State Reorganization Act, 1956. The term 'Ryotwari sub-lessee' referred to in sub-clause (h) of clause (ii) of sub-section (1) of section 185 of the Code, is used in a broader sense so as to include a lessee whose tenancy has been terminated. 18. It has further been held in paragraph 8 of the judgment that in order that a sub-lessee may claim the conferral of occupancy tenancy under Section 185 of M.P. Land Revenue Code, 1959 two conditions must be satisfied:- (1) That he was a Ryotwari sub-lessee as defined in the Protection Act of 1955. (2) The sub-lease continued to be in force on the date of the commencement of the Code. 19. Learned counsel for the appellant has submitted that khasra entries shall be presumed to be correct for confirmatory of title of pacca krishak on the basis of entries made in Samvat 2007. In this regard he has cited a judgment of Vaikunthibai Vs. State of M.P. & another, 1987 JLJ 409 , in which it has been held that while considering the provisions of Section 52 of Land Revenue and Tenancy Act, 1950 that sub-tenancy may be proved by khasra entries, unless rebutted rent receipt is not necessary. It has further held that occupancy tenancy can be proved only by unrebutted khasra entries. The khasra enttries unless rebutted cannot be discarded as a proof of sub-tenancy. 20. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Hiriya alias Laxman and another Vs. It has further held that occupancy tenancy can be proved only by unrebutted khasra entries. The khasra enttries unless rebutted cannot be discarded as a proof of sub-tenancy. 20. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Hiriya alias Laxman and another Vs. Hira alias Hiralal and another, 1988 RN 299, in which it has been held that possession of sub-tenant till enforcement of M.B. Land Revenue Tenancy Act, rights of occupancy tenant accrue and he becomes Bhumiswami. 21. Learned counsel for the appellant has also cited judgment of this Court in the matter of Shubarati Vs. State of M.P. and another, 1990 R. 337, in which it has been held that according to explanation (vii) of Section 54 of M.B. Land Revenue and Tenancy Act, 1950, “Kashtkar Maurusi” and “Haq Sakitul Milkiyat” who are tenants under the provisions of Quanoon Mal, Gwalior, become Pukhta Maurusi and such tenants becomes Bhumiswami by virtue of M.P. Land Revenue Code, 1959. 22. Learned counsel for the appellant submitted that Ryotwari Village under Section 54 of M.B. Land Revenue and Tenancy Act, 1950, means a village other than a village which has been settled on zamindari system or which the Government may, from time to time by notification in the Government Gazette, declare to be a Ryotwari village. He has further drawn attention towards definition of tenant in Section 54 (xviii) which means a person who holds land for agricultural purposes, from the Government or from an assignee of the property rights and who is, or but for a contract would be liable to pay rent for his holding. He has further submitted that khasra entries of Samvat 2007 shows entry of crops of Jwar and Mung and revenue in column 6,10 and 13 respectively. Therefore, by virtue of provisions of 54 of M.B. Land Revenue and Tenancy Act, 1950 and 185, 189 and 190 of M.P. Land Revenue Code, 1959, the plaintiffs has become Bhumiswami of disputed land and the documents of respondents 1 and 2, Exhibit D-1 shows the land Survey No.937 in the name of Jaswant Singh S/o Badna. Therefore, who is predecessor of plaintiff in title, the plaintiff has become owner of disputed land marked as 'v' in the map annexed with the plaint. 23. Therefore, who is predecessor of plaintiff in title, the plaintiff has become owner of disputed land marked as 'v' in the map annexed with the plaint. 23. Learned counsel for the appellant has also drawn attention towards the judgment of this Court passed in the matter of Jagdish Prasad Vs. Chandrabhan, 1972 M.P.L.J. S.N.73, in which it has been held that the accrual of Bhumiswami rights under section 190 is automatic on factual existence of the conditions mentioned in the section. It is further held that Section 257 (o) is almost redundant. It has not the effect of taking away jurisdiction of a civil Court to entertain a suit for declaration and other consequential reliefs claimed on the basis that the plaintiff has acquired Bhumiswami rights under Section 190. 24. Considering the above legal proposition as held by this Court from time to time with regard to accrual of Bhumiswami to be shown in possession of agricultural land as krishak in Samvat 2007 and consequential conferral of Bhumiswami rights on them on coming into force of M.P. Land Revenue Code under Sections 189 and 190. The plaintiff is the owner of Bhumiswami of disputed land which has been in the name of Jaswant Singh in the Revenue record as Bhumiswami after coming into force of M.P. Land Revenue Code and name of Jaswant Singh has been entered in the khasra of year 1988-89 Exhibit P-3, appellant has purchased the land by registered sale deed dated 02.06.1989. Therefore, the learned trial Court is not justified in dismissing the suit without considering the unrebutted documents regarding khasra entries which were not even questioned by this Court while passing judgment for remanding the case for rehearing dated 7.9.2009 passed in F.A.135/2004. 25. Therefore, appeal is allowed and setting aside the impugned judgment and decree the suit of plaintiff is decreed as under:- (a) Plaintiff is declared owner and possession holder of the land marked as 'v' in the map annexed with the plaint and defendants no.1 and 2 have no right to take possession of said land. (b) The defendants are further restrained from dispossessing the plaintiff/appellant Smt. Alka Gupta on the disputed land survey No.937 marked as 'v' in the map annexed with the plaint. The defendants/respondents no.1 and 2 shall pay the cost of this appeal to the appellant/plaintiff and bear their own cost. (b) The defendants are further restrained from dispossessing the plaintiff/appellant Smt. Alka Gupta on the disputed land survey No.937 marked as 'v' in the map annexed with the plaint. The defendants/respondents no.1 and 2 shall pay the cost of this appeal to the appellant/plaintiff and bear their own cost. (c) The counsel fee shall be calculated according to the rules if precertified. (d) Decree be framed accordingly.