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2013 DIGILAW 556 (MP)

Ramjanki Mandir Rathore Samaj v. State of M. P.

2013-04-24

Anil Sharma

body2013
JUDGMENT 1. This second appeal has been filed by the appellants under section 100 of Code of Civil Procedure, 1908 arising out of judgment and decree dated 23.9.2009 passed in Civil Appeal No.81-A/2008 by learned District Judge, Vidisha confirming the judgment and decree dated 11.9.2008 passed in Civil Suit No.36-A/2008 by learned Civil Judge Class -II, Vidisha. 2. Brief facts of the case are that the appellants/plaintiff No.1 -Shri Ramjanki Mandir Rathore Samaj is situated at Vidisha and Smt. Gajri Bai W/o Battulal Rathore has gifted 5 bigha of the land out of her 13.190 hectare of survey No.22 of Village Kothichar Khurd Tahsil and district Vidisha. Plaintiff No.1 has surrendered the land to plaintiff No.2 for agriculture purpose, new number of disputed land is survey No.22/4. Plaintiff No.2 is cultivating the said disputed land since 6.4.1970 on behalf of plaintiff No.1. The competent authority of Vidisha initiated the ceiling proceedings against Smt. Gajri Bai in which Smt. Gajri Bai stated that the suit land was given to temple under gift but the competent authority has declared the suit land as surplus land and the said land was entered in the revenue papers as Government land. 3. The disputed land was given on lease by State Government to Nirpat Singh. The lease was cancelled by the State. Nirpat Singh has filed the suit against the plaintiffs for possession before Second Civil Judge Class -II, Vidisha and the said suit was dismissed. Possession of appellant/plaintiff No.2 was entered on the suit land as encroacher and Tahsildar initiated the proceedings under section 248 of M.P. Land Revenue Code, 1959 therefore, the appellants/plaintiffs have filed the civil suit on the ground that plaintiff No.2 is in cultivation of suit land for more than 30 years which is open and uninterrupted and in the knowledge of State, therefore, they become Bhumiswami of suit land. 4. Defendant/State has denied the allegation levelled in the plaint. Learned trial Court has dismissed the suit of plaintiffs and judgment and decree passed by trial Court has been upheld by learned first appellate Court also, therefore, the appellants have filed the present second appeal before this Court. 5. 4. Defendant/State has denied the allegation levelled in the plaint. Learned trial Court has dismissed the suit of plaintiffs and judgment and decree passed by trial Court has been upheld by learned first appellate Court also, therefore, the appellants have filed the present second appeal before this Court. 5. This Second Appeal has been heard and admitted by this Court on 7.1.2013 on the following substantial questions of law: (i) Whether learned both the Courts below are justified in law in dismissing the suit overlooking the admission of original owner Smt. Gajri Bai regarding gift of suit land to plaintiff No.1 and continuous possession of plaintiff No.2 on behalf of plaintiff No.1 before the Ceiling Authority in ceiling proceedings, after such admission no notice has been issued to the appellants by ceiling authority ? (ii) Whether the appellants are required to challenge the order of ceiling authority which has been passed without hearing the appellants while appellants are “person interested” in the light of judgment of this Court in the matter of Saadat Mohammad Khan and others v. State of M.P. and others 2004 RN 81 ? (iii) Whether both the Courts below are justified in law in holding that the appellants were not in continuous possession of 30 years over the suit land before filing of the suit on the ground that no document for continuous possession has been filed for a period of 30 years ? REGARDING SUBSTANTIAL QUESTION OF LAW NO.1 6. In the present case, the admitted positions are that the ceiling case was pending against Smt. Gajri Bai in which the disputed land measuring 5 bigha out of total area of 13.190 hectare of survey No.22 (present survey No.22/4) has been declared as surplus and Government land and the plaintiffs have been given the notice under section 248 of M.P. Land Revenue Code. 7. According to appellants/plaintiffs before the Sub Divisional Officer, Vidisha in Ceiling Case No.15/74-75/Aa.0/9B,3 it has been averred by Gajri Bai in her return that the disputed land measuring 5 bigha has been gifted by her to the plaintiff/temple in spite of the fact that the land has been declared as surplus and Government land from 1.1.1971. 7. According to appellants/plaintiffs before the Sub Divisional Officer, Vidisha in Ceiling Case No.15/74-75/Aa.0/9B,3 it has been averred by Gajri Bai in her return that the disputed land measuring 5 bigha has been gifted by her to the plaintiff/temple in spite of the fact that the land has been declared as surplus and Government land from 1.1.1971. The land has been gifted by Smt. Gajri Bai on 6.4.1970 and the competent authority under Ceiling Act has never given any notice to the plaintiffs in spite of the fact that Bhumiswami as mentioned in her return that land has been given to plaintiff/temple. 8. Learned counsel for the appellants submitted that after receiving the information with regard to the fact that the disputed land is in possession of plaintiff/temple, the plaintiff/temple should have been given the notice of draft statement under section 11(3) of M.P. Ceiling on Agriculture Holdings Act, 1960. According to defendant, the deed of gift was not a registered document but the fact that the deed is not registered document does not exonerate the competent authority from discharging the duty of issuing notice to the person interested i.e. plaintiff temple. 9. This Court in series of judgments beginning from the judgment passed in the matter of Vishwanath Prasad v. State of Madhya Pradesh, 1967 RN 157 has held that the publication of draft statement in the manner prescribed at the place prescribed and on person specified as manager if the draft statement is not published lawfully final statement become illegal. There was no contention before learned Court below that the notice of draft statement was given to the plaintiffs who were mentioned in possession by the Bhumiswami against whom the ceiling case was pending. Both the Courts below have not considered the fact of non service of notice of draft statement on the plaintiffs and no opportunity of hearing was given to the plaintiffs who were admittedly in possession of the suit land and in the knowledge of original Bhumiswami. Learned trial Court has not considered even the effect of non-service of notice. 10. Both the Courts below have not considered the fact of non service of notice of draft statement on the plaintiffs and no opportunity of hearing was given to the plaintiffs who were admittedly in possession of the suit land and in the knowledge of original Bhumiswami. Learned trial Court has not considered even the effect of non-service of notice. 10. Since the notice of draft statement was necessarily required to be served upon the plaintiffs who were possession holder of the disputed land and cultivating the land since 1970 and there is no evidence that there was any interruption in their continuous possession, therefore considering the fact that the order passed in ceiling proceedings without following the due procedure prescribed under section 11(3) of the Ceiling Act is illegal. Learned counsel for the appellants submitted that it is undisputed that the appellants were in possession of the suit land before initiation of ceiling proceedings and even before the appointed day fixed for implementation of Ceiling Act, therefore, not only notice to the appellant was necessary but the State was also required to declare the said land of the holder as surplus on which the holder has already admitted possession of appellants and also admitted that she has parted with her right over the suit land as the land has been given under gift to the appellant temple. Thus, substantial question of law No.1 is answered in favour of plaintiffs.\ REGARDING SUBSTANTIAL QUESTION OF LAW NO.2 11. Learned counsel for the appellants placed reliance on the decision of this Court in the matter of Saadat Mohammad Khan and others v. State of M.P. and others 2004 RN 81, in which it has been held that Bataidar ploughing the land for more than three consecutive years and cultivating the land, the Bataidar acquires the right of Bhumiswami, he is a person interested and is entitled to notice before taking possession from him under section 11(3) of the Ceiling Act. It is further held that under section 11(3) and 11(5) of the Ceiling Act if the person is entitled to notice but no notice has been served, the land held by him is not affected and no proceedings are binding upon him. Such person is not required to file the civil suit under section 11(5) of Ceiling Act. It is further held that under section 11(3) and 11(5) of the Ceiling Act if the person is entitled to notice but no notice has been served, the land held by him is not affected and no proceedings are binding upon him. Such person is not required to file the civil suit under section 11(5) of Ceiling Act. It has been further held that where no notice has been served upon a person entitled to notice under section 11(3) and 11(5) of the Ceiling Act, the land possessed by him is not affected and no proceedings of ceiling are binding upon him and such person is not required to file sivil suit under section 11(5) also, therefore, the order passed in ceiling proceedings declaring the land in possession of the appellants as surplus is not sustainable. The competent authority is free to take steps for declaring the land of other holders as surplus in place of the land which is in possession of the appellant temple. 12. Considering the fact that the order passed by the competent authority in ceiling case is without following the procedure prescribed under section 11(3) of the Ceiling Act, the final statement also become illegal. The appellants were interested, therefore, in the light of judgment of this Court in the matter of Saadat Mohammad Khan (supra), substantial question of No.2 is also answered in favour of plaintiffs. REGARDING SUBSTANTIAL QUESTION OF LAW NO.3 In the light of answers given to substantial questions of law No.1 and 2, no specific answer is required to be given for substantial question of law No.3. 13. Resultantly, in the light of answers given in substantial questions of law No.1 and 2, the appeal is allowed and the judgment and decree passed by learned Courts below are set aside considering the fact that appellant No.1 has been given the suit land by holder of the land -Smt. Gajri Bai which has been declared surplus in the ceiling proceedings without giving notice to appellant No.1. Respondents are restrained from dispossessing the appellants from the disputed land. The competent authority is free to declare and acquire the land possessed by the holders as surplus land. Respondents are restrained from dispossessing the appellants from the disputed land. The competent authority is free to declare and acquire the land possessed by the holders as surplus land. The order passed by the ceiling authority so far as it relates to declaration of disputed land as surplus is set aside as it is not binding upon the appellants since they have not been given notice and they were enjoying the peaceful possession of the suit land prior to initiation of ceiling proceedings. Parties shall bear their own costs. Decree be framed accordingly.