Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 36 (CHH)

NARMADA PRASAD v. STATE OF M. P.

2014-01-29

SANJAY K.AGRAWAL

body2014
ORAL JUDGMENT 1. The substantial question of law involved and to be answered in this appeal is as follows: "Whether in view of non-compliance of sub-clause (i) & (ii) of the 2nd proviso to sub-section (1) of Section 251 of the Chhattisgarh Land Revenue Code, 1959, both the Courts below erred in holding that the suit was barred by limitation?". [For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.] 2. The imperative facts required to be noticed for adjudication of this appeal are as under: (2.1) The plaintiffs filed a civil suit for bare declaration that the scheduled Junitalab bearing Khasra No.522 area 1.627 hectares at Village Bhami, Tahsil and District Bilaspur and attached Paithu bearing Khasra No.956 area 1.744 hectares were owned by their predecessors and they are title and possession holders of the suit land which was granted on Patta by the Nistar and Compensation Officer by order dated 24-11-1955 and they are using the Junitalab and attached Paithu for last 20-25 years for fishing purpose. It was further pleaded that in the year 1978, they came to know for the first time that the suit land has been vested in the State Government by an order of the Sub-Divisional Officer, Bilaspur under Section 251 of the Land Revenue Code, 1959 (henceforth 'the LR Code, 1959') and thereafter name of the State Government has been mutated in place of the names of the plaintiffs in the revenue records by the Naib- Tahsildar on 11-8-1975. It was further pleaded that the order of Naib Tahsildar dated 11-8-1975 is void for want of proclamation and also pleaded that the cause of action arose on 11-8-1975 and in the year 1978 and the suit for bare declaration of title was filed on 5-12-1979 seeking the declaration that the plaintiffs are title holders of the scheduled Junitalab and attached Paithu and the said land has not been vested in the State Government. (2.2) Defendant No.1/State filed its written statement opposing the plaint allegations stating inter alia that the Sub-Divisional Officer, Bilaspur, in exercise of his powers under Section 251 of the LR Code, 1959 has vested the scheduled suit Junitalab and attached Paithu in the State Government by order dated 209-1965 and mutated the same in the name of State Government in revenue records on 11-8-1975. It has been specifically pleaded that before vesting the Junitalab and attached Paithu in the State Government, notices were issued by the said Court to the plaintiffs, but the plaintiffs did not make any objection to the vesting of the Junitalab and attached Paitltu and thereafter the vesting of the Junitalab and attached Paithu was informed to the plaintiffs' father Govind Prasad separately on 19-10-1968 for the Junitalab and the attached Paithu, but no appeal or revision was filed challenging the order of the vesting and, therefore, the same has attained finality. The suit filed on 512-1979 is barred by limitation. It was also pleaded that after abolition of property rights, the scheduled suit Junitalab and attached Paithll have been vested in the State Government and the responsibility thereof has been given to Gram Panchayat, Bharni/defendant No.2 for maintenance and fishing purposes. (2.3) Defendant No.2/Gram Panchayat, Bharni filed its written statement separately and opposed the plaint allegations. 3. The trial Court by its judgment and decree dated 24-2-1999 dismissed the suit finding inter alia that the order of the Sub-Divisional Officer dated 20-9-1965 vesting the scheduled suit Junitalab and attached Paithu in the State is not invalid and the mutation by order dated 11-8-1975 is also not invalid. The trial Court also found that the suit was barred by limitation. 4. Feeling aggrieved by the judgment and decree passed by the trial Court, the plaintiffs preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth 'the Code, 1908 ). The first appellate Court, by the impugned judgment and decree dated 26-11-1999, though has held that necessary inquiry has not been done by the Collector, Bilaspur and the affected parties have not been heard and the trial Court has erred in holding that the order of the Sub-Divisional Officer vesting the scheduled suit Junitalab and attached Paithu in the State is valid, affirmed the finding of the trial Court that the suit was barred by limitation. 5. This is an appeal by the plaintiffs under Section 100 of the Code, 1908 challenging the judgment and decree dated 26-11-1999 passed by 7th Additional District Judge, Bilaspur in Civil Appeal No. 16-A/99 affirming the judgment and decree dated 24-2-1999 passed by 4th Civil Judge Class-I, Bilaspur in Civil Suit No.105-A/95 dismissing the suit. 6. Dr. 5. This is an appeal by the plaintiffs under Section 100 of the Code, 1908 challenging the judgment and decree dated 26-11-1999 passed by 7th Additional District Judge, Bilaspur in Civil Appeal No. 16-A/99 affirming the judgment and decree dated 24-2-1999 passed by 4th Civil Judge Class-I, Bilaspur in Civil Suit No.105-A/95 dismissing the suit. 6. Dr. N.K.Shukla, learned Senior Advocate appearing for the appellants/plaintiffs would submit that both the Courts below have fallen into serious legal error in holding that the suit was barred by limitation as clauses (i) and (ii) of second proviso to sub-section (1) of Section 251 of the LR Code, 1959 have not been complied with in their letter and spirit before vesting the scheduled suit Junitalab and attached Paithu in the State and, therefore, the judgment and decree passed by the trial Court and the judgment and decree passed by the first appellate Court affirming the judgment and decree of the trial Court deserve to be set aside and in consequence thereof, the plaintiffs' suit deserves to be decreed with costs. 7. Shri Vinay Harit, learned Deputy Advocate General appearing for the State/respondent/defendant No.1 would submit that the finding recorded by the two Courts below holding the suit to be barred by limitation is pure and simple finding of fact based on the evidence available on record. He would further submit that clauses (i) and (ii) of second proviso to sub-section (1) of Section 251 of the LR Code, 1959 were duly complied with by the Sub-Divisional Officer and, therefore, the suit has rightly been held to be barred by limitation by both the Courts below. 8. Shri Anand Kumar Gupta, learned counsel appearing for respondent/ defendant No.2/Gram Panchayat, Bharni would support the impugned judgment and decree passed by the two Courts below dismissing the suit. 9. I have heard and considered the rival submissions made by the parties and have also perused the record with utmost circumspection. Answer to Substantial Question of law: 10. Clauses (i) and (ii) of second proviso to sub section (1) of Section 251 of the LR Code, 1959 provides as under: "251. 9. I have heard and considered the rival submissions made by the parties and have also perused the record with utmost circumspection. Answer to Substantial Question of law: 10. Clauses (i) and (ii) of second proviso to sub section (1) of Section 251 of the LR Code, 1959 provides as under: "251. Vesting of tanks in State Government.- (1) All tanks situated on unoccupied land on or before the date of coming into force of the Act, providing for the abolition of the rights of intern1ediaries in the area concerned and over which members of the village community were, immediately before such date, exercising rights of irrigation or nistar, shall, if not already vested in the State Government, vest absolutely in the State Government with effect from the 6th April, 1959: Provided that nothing in this section shall be deemed to affect any right of a lessee in the tank under a lease subsisting on the date of vesting of the tank which shall be exercisable to the extent and subject to the terms and conditions specified in the lease: Provided further that no tank shall vest in the State Government, unless – (i) after making such enquiry as he deems fit, the Collector is satisfied that the tank fulfills the conditions laid down in this subsection; and (ii) notice has been served on the parties interested and opportunity given to them for being heard." 11. Admittedly and undisputedly, Govind Prasad, the father of the plaintiffs' was an Ex-Malgujar of Mouja Bharni, Tahsil and District Bilaspur and according to the plaintiffs, the Ex-Malgujar's tank was constructed by Govind Prasad and during his lifetime, he was said to be in possession and was title holder of the said tank (scheduled suit Junitalab and attached Paithu). The competent authority passed the order of vesting the tank in the State Government under Section 251 of the LR Code, 1959 on 20-9-1965. The competent authority passed the order of vesting the tank in the State Government under Section 251 of the LR Code, 1959 on 20-9-1965. A bare perusal of the documents EX.D-1 and D-2 would show that for vesting of the scheduled suit tank (scheduled suit Junitalab and attached Paithu) situated at Village Bharni, Revenue Cases No.714A/71 Near 64-65 and 715A/71/Year 64-65 were registered by the Sub-Divisional Officer, Bilaspur and notices were issued to the concerned parties vide Ex.D-3, which is a copy of proclamation issued by the Tahsildar, Bilaspur inviting objections on or before 26-4-1965 and thereafter the order dated 20-9-1965 vesting the scheduled suit Junitalab and attached Paithu in the State Government was passed by the Sub-Divisional Officer, Bilaspur under Section 251 of the LR Code, 1959 and thereafter by mutation order dated 11-8-1975 the scheduled suit Junitalab and attached Paithu were vested in the State Government. The vesting of the scheduled suit Junitalab and attached Paithu was communicated to the erstwhile owner of the scheduled suit Junitalab and attached Paithu, i.e., to Govind Prasad, the father of the plaintiffs vide EX.D-1 and D-2, which were duly received by Govind Prasad on 19-10-1968. The aforesaid two documents were produced by the defendants and duly proved by their witnesses. 12. The fact remains that the public notice Ex.D-3 inviting objections has duly been received and there is no evidence on record to hold that the public notice inviting objections before vesting the scheduled suit Junitalab and attached Paithu was not issued vide EX.D-3. Thereafter, the order dated 20-9-1965 vesting the scheduled suit Junitalab and attached Paithu under Section 251 of the LR Code, 1959 was passed and it was duly communicated to the plaintiffs' predecessor (father) Govind Prasad which has been received by him vide Ex.D1 and D-2 after putting his signature and also by mentioning the date as 1910-1968. The documents EX.D-l and D-2 issued by the Sub-Divisional Officer, Bilaspur vesting the scheduled suit Junitalab and attached Paithu are public documents. The said documents were maintained by the Sub-Divisional Officer in performance of his official duty as the scheduled suit Junitalab and attached Paithu were vested in the State Government and after the vesting, it was duly communicated to the plaintiffs' father Govind Prasad. The said documents were maintained by the Sub-Divisional Officer in performance of his official duty as the scheduled suit Junitalab and attached Paithu were vested in the State Government and after the vesting, it was duly communicated to the plaintiffs' father Govind Prasad. Even after receiving the said communication on 19-10-1968, the mutation of the scheduled suit Junitalab and attached Paithu was made in favour of the State Government on 11-8-1975 and the suit was filed on 5-12-1979 for bare declaration that the order of vesting of the scheduled suit Junitalab and attached Paithu is apparently barred by law of limitation. 13. Article 58 of the Limitation Act, 1963 runs thus: “Description of suit Period of limitation Time from which period begins to run 58 To obtain any other declaration Three Years When the right to sue first accrues” 14. Admittedly, in the instant case, as per the defendants' case, the order of vesting was passed after issuing notice in accordance with the provisions of Section 251 of the LR Code, 1959 and the public notice Ex.D-3 and ultimately the order of vesting dated 20-9-1965 was communicated to the plaintiffs' father Govind Prasad on 19-10-1968. Even if it is assumed that Govind Prasad was not noticed in the vesting proceedings, without prejudice to the finding recorded hereinabove, the fact of communication of the order dated 20-9-1965, vesting the scheduled suit Junitalab and attached Paithu, to the plaintiffs' father Govind Prasad is apparent from the memorandums Ex.D-1 and D-2 issued by the Sub-Divisional Officer, Bilaspur communicating the plaintiffs' predecessor (father) regarding the vesting. Thus, the cause of action, by any stretch of imagination, arose on 19-10-1968, and; in accordance with Article 58 of the Limitation Act, 1963, the suit, which was filed for declaration on 5-12-1979, was beyond the period of limitation of three years from the date of the accrual of the cause of action. Thus, the concurrent finding recorded by the two Courts below, i.e., the suit was barred by limitation is a finding of fact based on the record. 15. Moreover, recently, in Vishwanath Agrawal. S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288 , the Supreme Court held that the High Court should not disturb a concurrent finding of fact unless the finding recorded is perverse being based on no evidence. Paragraphs 36 and 37 of the report state thus: "36. In Major Singh Vs. 15. Moreover, recently, in Vishwanath Agrawal. S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288 , the Supreme Court held that the High Court should not disturb a concurrent finding of fact unless the finding recorded is perverse being based on no evidence. Paragraphs 36 and 37 of the report state thus: "36. In Major Singh Vs. Rattan Singh (1997) 3 SCC 546 : AIR 1997 SC 1906 , it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while heating an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. Manikrao (1999) 3 SCC 573 , it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem Vs. Karnataka Electricity Board (2007) 14 SCC 138 : AIR 2008 SC 956 .” 16. In view of the foregoing, I hereby affirm the concurrent finding recorded by the two Courts below and the substantial question of law is answered accordingly. 17. Consequently, the instant appeal deserves to be and is hereby I dismissed. No order as to costs. 18. A decree be drawn-up accordingly.