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2013 DIGILAW 379 (MP)

Muneshwar Singh v. State of M. P.

2013-03-20

Anil Sharma

body2013
JUDGMENT 1. The appellant has filed this second appeal under section 100 of CPC against judgment and decree dated 22.10.2010 passed by learned Vth Additional District Judge in Civil Appeal No. 25-A/10 confirming the judgment dated 17.8.2010 passed in Civil Suit No. 13-A/09 by learned 6th Civil Judge, Class II, Gwalior, MP. 2. The brief facts of the case are that the plaintiff/appellant has filed a suit for declaration of title cum Bhumiswami and permanent injunction in respect of survey No. 1822, 1823 total area 2 bigha 1 biswa situated in city Gwalior on the ground that the suit land was recorded in the name of Shri Jagmohan Singh who was father of appellant. On the date of abolition of Zamindari, the entry of appellant’s father’s name was continued in the name of father of appellant till Samvat 2013.Thereafter, the entry was changed without giving notice to late Shri Jagmohan Singh and no opportunity of hearing was given to him. The Bhumiswami right were confirmed that father of Jagmohan Singh and thereafter on appellant/plaintiff by virtue of Madhya Bharat Land Revenue Tenancy Act that father of appellant was pacca Maurisi tenant at the time of abolition of Jagiris and after coming into force of MP Land Revenue Code, he has become Bhumiswami. 3. The defendants in their written statement admitted that the disputed land was Raitwari land in Samvat 1997 and denied all the allegations by mentioning that no tenancy right is accrued ot late Shri Jagmohan Singh when he was in Khudkast on 2.10.1951, when the Zamindari was abolished. 4. Learned trial Court by impugned judgment and decree dismissed the suit by holding that it has not been proved that plaintiff has acquired Bhumiswami rights by virtue of possession having possession over the suit land. It is further held that defendants have not tried to dispossess the plaintiff illegal. The appeal filed against the impugned judgment and decree was also dismissed. Therefore, the appellant has filed this appeal. 5. Appellant has filed this appeal on the ground that judgment and decree passed by both the Courts below are absolute contrary to law and suffers from non consideration of legal position as involved in the matter. The findings of both the Courts below are perverse. 6. The following substantial questions of law has been framed by this Court vide order dated 7.5.2011. The findings of both the Courts below are perverse. 6. The following substantial questions of law has been framed by this Court vide order dated 7.5.2011. “(I) Whether both the Courts below erred in disbelieving the documents of Khasra entries Ex.P-1 to Ex/P-5 whereby father of the plaintiff and thereafter plaintiff has acquired “Bhumiswami” rights under the provisions of MP Land Revenue Code, 1959 and overlooking the provisions of section 117 of MP Land Revenue Code 1959?” Detailed discussion 7. Learned counsel for the appellant has drawn attention towards the statement of plaintiff witnesses regarding possession over the suit land since before coming into force of MB Land Revenue and Tenancy Act which was supported by khasra entries of Samvat of the year 1951 in which land has been recorded in the ownership as Raitwari Samvat 2008 and name of Jagmohan Singh has been recorded in column No. 5 cultivator (krishak), who is shown as Maurishi. The khasra entries are Exhibit P-1. In Khasra entries of year 1941, the same entry has been shown as Exhibit P-2, Thereafter, the same entry continued till in khasra entries of 2009 and 2010 Exhibit P-3 and khasra entries of 2010 to 2014 Exhibit P-4. It is further submitted that in khasra entries of Samvat 2019, name of Jagmohan Singh has been shown in column No. 10 by mentioning his illegal possession on suit land (Exhibit P-5) and same entry continued in the khasra entries of Samvat 2010 to 2023 Exhibit P-6, khasra entries of Samvat 2024, Exhibit P-7, khasra entries of 2034 P-8, khasra entries of Samvat 2040 Exhibit P-9. 8. Learned counsel for the appellant has further submitted that learned trial Court by paragraph of impugned judgment relied on the documents Exhibit P-1(C) to Exhibit P-3 (C) on the ground that those certified copies are more than 30 years old but dismissed the suit by holding that plaintiff has failed to show that how Jagmohan Singh acquired the status of Maurisi Krishak which has not been shown in entries of Samvat 2007. It is further held that in the khasra entries from Samvat 2010 onwards it has not been shown by defendant and defendant also failed to prove that how entry of possession of Jagmohan Singh without permission has been made in the subsequent khasra entries. It is further held that in the khasra entries from Samvat 2010 onwards it has not been shown by defendant and defendant also failed to prove that how entry of possession of Jagmohan Singh without permission has been made in the subsequent khasra entries. The learned trial Court has drawn adverse inference against plaintiff and his father on the ground that the father of plaintiff took no action under section 51 of Madhaya Bharat Land Revenue and Tenancy Act for rectification of khasra entries and did not comply the judgment cited by the learned counsel for the plaintiff. 9. Learned counsel for the appellants has submitted that both the Courts below are not justified in holding that plaintiff was required to show that how the status of Maurisi krishak was acquired by father of plaintiff Jagmohan Singh. Learned counsel for the appellant has submitted that the khasra are made by the revenue authorities and shall be treated as correct unless rebutted. There is no rebuttal of defendant/respondent that the khasra entries which is Exhibit P-1 (C) to Exhibit P-3 (C) are forged or fabricated and there is no law shows that Maurisi krishak has to prove that how he came into possession of land before coming into force of Madhya Bharat Land Revenue and Tenancy Act. 10. Learned counsel for the respondent/Government Advocate has submitted that both the Courts below are justified in passing the impugned judgment and plaintiff was required to show of possession as Maurishi krishak. 11. Learned counsel for the appellant has submitted that the defendants have admitted that name of appellant’s father was entered in khasra entries of Samvat 2007 to 2014 and after the admission, no further proof was required, Learned counsel for the appellant has cited judgment of Hon’ble apex Court passed in the matter of Divisional Manager, United India Insurance Co. Ltd. and Anr. v. Samir Chandra Chaudhary, 2005 (5) Supreme 63 , in which it has been held that while considering the provisions of section 31 of Evidence Act an admission is the best evidence that an opposing party can rely upon, and though not conclusive is decisive of matter. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. 12. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. 12. Learned counsel for the appellant has further submitted that his accrual of Bhumiswami right under section 190 of the MP Land Revenue Code is automatic if a person is shown as pacca tenant under the provisions of Madhya Bharat Land Revenue and Tenancy Act, he will be treated as Bhumiswami under the provisions of MP Land Revenue Code under section 185 automatically. In this regard, he has cited judgment of this Court passed in the matter of Jagdish Prasad v. Chandrabhan, 1972 MPLJ SN 73, in which the plaintiff who was “occupancy tenant” of the suit land become Bhumiswami after the coming into force of the Madhya Pradesh Land Revenue Code, 1959 under section 190 of the Code. The accrual of Bhumiswami rights under section 190 of the Madhya Pradesh Land Revenue Code, 1959 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 relevant claimed on the basis that plaintiff has acquired Bhumiswami rights under section 190. 13. Learned counsel for the appellant has also drawn attention towards another judgment of this Court passed in the matter of Gowardhan v. Ghasiram, 2002 RN 68= 2002 (1) MPLJ 200 in which it has been held that person holding land in the Madhya Bharat as tenant or sub-tenant and who on commencement of Code of MP Land Revenue Code on 2.10.1959 continuously remained in possession of land entitled to rights of occupancy tenant under section 185 and thereafter by virtue thereof acquired right of Bhumiswami in accordance with provisions of section 190 of the Code. 14. Learned counsel for the appellant has further submitted that the presumption of ownership and khasra entries in this regard shall be presumed to be correct unless rebutted by document evidence. 14. Learned counsel for the appellant has further submitted that the presumption of ownership and khasra entries in this regard shall be presumed to be correct unless rebutted by document evidence. In this regard he has cited judgment of Hon’ble apex Court passed in the matter of Sir Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Others AIR 1973 SC 1209, in which it has been held that the presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. 15. Learned counsel has also cited judgment of this Court passed in the matter of Chhitoo and others v. Sakharam and others, 1981 JLJ 487 , in which it has been held that the khasra entries of the year 1954 to 1963 record the name of Shrikrishna and after him Chhitoo as persons in possession. If in Khasras of latter years the entry showing Chhitoo (plaintiff-applicant No. 1) to be in possession disappear, the omission by itself is not enough to destroy the presumption of continuity of possession. The presumption of continuity can be drawn both forward and backwards. 16. Learned counsel for the appellant has further drawn attention towards the Judgment of Hon’ble apex Court passed in the matter of Mahant Ram Khilawan Das v. State of MP, 2008 RN 162, in which it has been held that the entries in records of right raise a presumption of possession under section 114 of the MP Land Revenue Code, 1959. The Court may hold entries as erroneous on the basis of evidence only. It is further held while considering the provisions of section 115 of the MP Land Revenue Code, 1959 the correction in revenue record made without notice to opposite party, adverse inference rightly drawn. 17. The Court may hold entries as erroneous on the basis of evidence only. It is further held while considering the provisions of section 115 of the MP Land Revenue Code, 1959 the correction in revenue record made without notice to opposite party, adverse inference rightly drawn. 17. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Mewa Ram and others v. Somita and others, 1993 RN 84, in which it has been held that the entries of revenue settlement papers made during the period of settlement namely in the samvat year 1999 and such entries repeatedly continued year by year not challenged till the date of filing of suit in the year 1976 under sections 340, 343 and 344 of Qanoon Mal, Samvat 1983, a presumption of entries in revenue settlement papers and also in annual village papers were presumed to be correct and settlement entries acquired finality. 18. It is further held while considering the provisions of 54 (vii) of the Madhya Bharat Land Revenue and Tenancy Act, “Pakka tenant” and “lawfully recorded” is procedural, no pleading and proof about any illegality of procedure in recording entry, entry in revenue papers prevailing on 15.8.1950 would determine who were pakka tenants and to what extent person recorded as pakka tenant in revenue papers on the date of coming into force of the Act could be pakka tenant. 19. It is further held while considering the provisions of section 117 of Madhya Pradesh Land Revenue Code, 1959 that entries of annual village papers of settlement papers not challenged within the prescribed period such entries shall be presumed to be correct. 20. Learned counsel for the appellant has cited judgment of this Court passed in the matter of Vaikunthibai v. State of MP and another, 1987 JLJ 409 , in which it has been held that while considering the provisions of section 52 of MB 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. Rent receipt is not necessary. 21. It has further held that occupancy tenancy can be proved only by unrebutted khasra entries. Rent receipt is not necessary. 21. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Mahendranath and another v. Tejabai and others, 1986 RN 211, in which it has been held that under section 190 of the MP Land Revenue Code, 1959 (2A), Bhumiswami rights accrued by operation of law under sub-section plaintiff is neither to file a suit for conferral of Bhumiswami rights. 22. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Kashi Bharti (d) through L.Rs. and others v. State of MP and another, 2009 RN 179 in which it has been held that under section 115 of MP Land Revenue Code, where the name of plaintiff’s name continuing to be recorded in revenue record from long report, it cannot be held without enquiry and affording hearing opportunity to them. 23. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Bapulal v. Narayan Singh and others, 1988 RN 391 in which it has been held while considering the provisions of sections 185 and 189 and 190 of MP Land Revenue Code acquisition of rights of occupancy tenant and Bhumiswami that continuous possession since 1950 on the basis of contract and no action for resumption after enforcement of Code, the right of occupancy tenant accrued and such tenant becomes Bhumiswami. Therefore, the possession since 1950 on the land even on the basis of contract is also entitled for rights of Bhumiswami after coming into force of MP Land Revenue Code. 24. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Aytannoorbai v. State of MP, 1988 RN 150, in which it has been held land held by Shikmi since year 1949-50 occupancy tenancy proved by khasra entries and oral evidence that Bhumiswami rights accrued to such tenant after coming into force of Code under sections 185 and 190. 25. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Aditya Narayan v. Mst. 25. Learned counsel for the appellant has also cited judgment of this Court passed in the matter of Aditya Narayan v. Mst. Keshar, 1994 (II) MPWN 75 , in which it has been held that where a person rightly recorded as pacca tenant, he cannot be denied that status (under section 54 of Madhya Bharat Land Revenue and Tenancy, Act, Samvat 2007) only because of some discripancy in khasra numbers. 26. Learned Government advocate for respondent has cited judgment of this Court passed in the matter of Sarvan Kumar and others v. State of MP and another, 2007 RN 236, in which it has been held by considering provisions of Bhopal State Land Revenue Code 1932 that status of occupant not proved, land recorded as “abadi” in revenue record, shikmi right cannot be claimed thereon. In the mutation entry in land record does not confer any title but simultaneously it has also been held that such record should be supported by other evidence. In the present case, the suit land is not “abadi” land. Suit land is Raitwari land on which plaintiff has acquired right of tenancy under section 54 of MB Land Revenue and Tenancy Act and thereafter right of Bhumiswami under section 190 of the MP Land Revenue Code. 27. Learned counsel for the respondent has also cited judgment of this Court passed in the matter of Manik Lal and Others v. Rajaram and another, 2003 RN 383= 2003(3) MPHT 29 , in which it has been held that if the mutation entries in the revenue record not conferred any title to the property, the mutation entries are only for the purpose of collecting the land revenue from the person in possession but the judgment is not applicable to the present case because the plaintiff has claimed the right of Bhumiswami by virtue of law i.e. by virtue of coming into corce of Madhya Bharat Land Revenue Tenancy Act and, thereafter, MP Land Revenue Code conferring upon him title of pacca tenant and, thereafter, Bhumiswami respectively and for such conferral title only the revenue entries are relevant. 28. 28. Learned counsel for the respondents are also cited judgment of this Court passed in the matter of Chhoti Bai (Smt.) and others v. State of MP, 2009 RN 357 , in which it has been held that the suo motu powers of revision under section MP Land Revenue Code cannot be said to be delayed. It is further held that under section 51 (2) of Land land entered as Government land and converted to private land, no permission of Collector obtained order is without jurisdiction. In the present case, there is no allegation that the khasra entries of Samvat 2007 to 2014 are wrong. Further, there is no evidence raising even doubt that entries are wrong. The judgment cited by the learned counsel for the respondent is not applicable to the present case. 29. Learned counsel for the respondent has also cited judgment of this Court passed in the matter of Anil Gupta and another v. State of MP and others, 2008 RN 143, in which it has been held that where the land allotted for non-agricultural purpose for establishment of factory no right of ‘pacca tenant’ under section 54 (7) of the Madhya Bharat Land Revenue and Tenancy Act can be claimed. In the present case, there is no allegation that disputed land is not an agricultural land. Khasra mentions the crops on the suit land, therefore, the judgment is also not applicable to the present case. 30. Learned counsel for the respondent has further cited a judgment of this Court passed in the matter of Harikishan and another v. Jaswant Singh and others, 1992 JLJ 635 , in which it has been held while considering the provisions of section 119 of MP Land Revenue Code that where there is no evidence to show that acquisition of right was reported to patwari or any other officer and documents also not having endorsement of such officers entry of possession cannot be relied on. In the present case, the judgment is not relates to the khasra entries submitted by the plaintiff because plaintiff’s father was not any obligation or to report or other any revenue authorities for right of pacca tenant of Bhumiswami agreed to him such right is automatic by virtue of coming into force of relevant Act. Therefore, the judgment is not applicable to the present case. 31. Therefore, the judgment is not applicable to the present case. 31. Therefore, considering the presumptions under section 52 and provisions of section 54 (vii) of the Madhya Bharat Land Revenue and Tenancy Act, the father of appellant and thereafter appellant has acquired the status of pacca tenant over the suit land being Maurisi krishak before coming into force of said Act. Further after coming into force of MP Land Revenue Code, the father of plaintiff and plaintiff has become Bhumiswami of the suit land. Khasra entries deleting the name of plaintiff or his father after so many years of coming into force of MP Land Revenue Code without giving any opportunity of hearing to the plaintiff are illegal as the Bhumiswami right is accrued to the plaintiff long before deleting such khasra entries since coming into force of MP Land Revenue Code in the year 1959. Therefore, both the Courts below have erred in disbelieving the documents of khasra entries Exhibit P1 to Exhibit P5 whereby the plaintiff has acquired “Bhumiswami rights” under the provisions of MP Land Revenue Code. Both the Courts below have further not justified in overlooking the provisions of section 117 of the MP Land Revenue Code, 1959 regarding presumption of the khasra entries in which name of plaintiff and his father has been recorded as Bhumiswami after coming into force of MP Land Revenue Code. 32. Therefore, the substantial question is answered in favour of plaintiff/appellant and against the respondents. The appeal is allowed as under:- (a) The judgment and decree passed by both the Courts below are set aside. (b) The respondents/defendants are restrained by perpetual injunction to interfere in the possession of the plaintiff over the suit land. (c) The relevant khasra entries be corrected accordingly showing plaintiff as Bhumiswami. (d) The respondents shall bear theire own costs and pay the cost of appellant/plaintiff. (e) The counsel fee shall be calculated according to the rules if precertified. (f) Decree be framed accordingly.