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2014 DIGILAW 1660 (MP)

Ram Kushal Singh v. Daldal Bali

2014-12-12

SANJAY YADAV

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JUDGMENT : Sanjay Yadav, J. 1. Heard on admission. 2. This is plaintiffs' second appeal directed against the judgment and decree dated 9.9.2003 by Third Additional District Judge, Satna in Civil Appeal No. 116-A/2003; affirming the judgment and decree dated 2.3.1992 passed by Civil Suit No. 24-A/1991 by the Additional Civil Judge Class I, Satna. 3. Waterbody bearing Khasra No. 130 admeasuring 8.64 acres situated at Village Chormari, Raghurajnagar, District Satna vide order dated 21.9.1968 was recorded as Wazib-Ul- Arz [Wazib-ul-arz is the record of customs in a village in regard to (i) easements [including the right to irrigation and right to way] and (ii) right to fishing in privately owned/held lands and waterbodies]. As the entries thereon could be modified as per the provisions contained under Section 242(3) of the M.P. Land Revenue Code, 1959 [for short 'the Code'], which stipulates - "(3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub-section (2), institute a suit in a civil court to have such entry cancelled or modified" or as envisaged under sub-section (5) of Section 242 of the Code providing that - (5) The Sub-Divisional Officer may, on the application of any person interested or on his own motion, modify an entry or insert any new entry in the Wajib-ul-arz on any of the following grounds : a) That all persons interested in such entry wish to have it modified; or b) That by a decree in a civil suit it has been declared to be erroneous; or c) That being founded on a decree or order of a civil court or on the order of a Revenue Officer it is not in accordance with such decree or order; or (d) That being so founded, such decree or order has subsequently been varied on appeal, revision or review; or (e) That the civil court has by a decree determined any custom existing in the village." 4. The plaintiffs preferred an application before Sub- Divisional Officer, Raghurajnagar, Satna vide Revenue Case No. 191/A-64/68-69, wherein vide order dated 20.4.1970 (Ex.P-11), Sub-Divisional Officer directed for deleting the entry of suit land from Wazib-ul-arz on a finding that the same was not customarily used as 'Nistar'. The plaintiffs preferred an application before Sub- Divisional Officer, Raghurajnagar, Satna vide Revenue Case No. 191/A-64/68-69, wherein vide order dated 20.4.1970 (Ex.P-11), Sub-Divisional Officer directed for deleting the entry of suit land from Wazib-ul-arz on a finding that the same was not customarily used as 'Nistar'. In appeal, the Appellate Court, however, reversed the order by its order-dated 22.12.1970 (Exhibit P-6) on the findings that the condition stipulated under Section 242(5), having not being fulfilled i.e.- a) That all persons interested in such entry wish to have it modified; or b) That by a decree in a civil suit it has been declared to be erroneous; or c) That being founded on a decree or order of a civil court or on the order of a Revenue Officer it is not in accordance with such decree or order; or (d) That being so founded, such decree or order has subsequently been varied on appeal, revision or review; or (e) That the civil court has by a decree determined any custom existing in the village." the Appellate Authority held - 5. The order passed by the Appellate Authority was affirmed in second appeal by the Additional Commissioner vide order dated 31.1.1975 and by the Revenue Board by its order dated 30.10.1976. 6. Having thus suffered, the plaintiffs brought suit for declaration of title and permanent injunction seeking following reliefs - 7. The Civil Suit was filed on 23.1.1980. 8. The Trial Court, on the basis of rival contentions and the evidence led, framed and decided the issues in following terms 9. The Trial Court found - 10. The Trial Court also found that the suit was barred by limitation as the entry dated 21.9.1968 was being questioned on 23.1.1980. Meeting out the contention by the plaintiffs that since the record made in pursuance to sub-section (1) of Section 242 of the Code was not published, as required under Section 242(2), the suit was within time. The Trial Court negatived the same holding that - 11. The Appellate Court also in paragraph 12 and 13 of the impugned judgment, has affirmed the findings holding that - 12. Sub-section (2) of Section 242 of the Code postulates that "the record made in pursuance of sub-section (1), shall be published by the Sub-Divisional Officer in such manner as may be prescribed". 13. The Appellate Court also in paragraph 12 and 13 of the impugned judgment, has affirmed the findings holding that - 12. Sub-section (2) of Section 242 of the Code postulates that "the record made in pursuance of sub-section (1), shall be published by the Sub-Divisional Officer in such manner as may be prescribed". 13. The Rules relating to Wazib-ul-arz are notified vide Notification No. 219-6477-VII-N (Rules) dated 6.1.1960. Rules 3 and 4 whereof stipulates - "3. The following procedure shall be followed in ascertaining and recording the customs specified in rule - (i) The Sub-Divisional Officer shall, after examine in the Wajib-ul-arz, if any, of the village prepared at the last settlement, prepare draft of Wajib-ul-arz incorporating the existing customs under the heads specified in Rule 2. (ii) The Sub-Divisional Officer shall publish the draft Wajib-ul-arz in the village along with a proclamation in Form A, calling upon the villagers to submit claims and objections to him by a specified date, which shall not be more than 15 days after the date of proclamation, stating whether they object to any custom recorded in the draft or desire any customs to be recorded in it. (iii) After the expiry of the date fixed for the receipt of claims or objections, the Sub-Divisional Officer shall on a date to be announced by beat of drum, make such enquiry in the village as he may deem fit. (iv) The Sub Divisional Officer shall then, make a record of the customs so ascertained and such record shall be shown as the Wajib-ularz of the village. 4. After the Wajib-ul-arz is prepared, it shall be read out in the village or at suitable centres, and a copy thereof shall be posted in the office of the Gram Panchayat or Gram Sabha or such other suitable place in the village as may be determined by the Sub Divisional Officer." 14. Evident it is from the record that Sub-Divisional Officer, vide order dated 21.9.1968, recorded the Wazib-ul-arz and the plaintiffs being aggrieved thereof brought the proceedings before Sub-Divisional Officer vide Revenue Case No. 192/A- 64/68-69; meaning thereby that they were made aware of the entry which could have been possible only when the proceedings are drawn as per Rule 3 & 4 of 1960 Rules. 15. 15. In the background of these facts, the conclusions arrived at by both the Courts are neither perverse nor faulty or contrary to law, as would warrant any interference. 16. As no substantial question of law arises for consideration, appeal fails and is dismissed in limine. No costs.