Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 89 (MP)

Madhu Janiyani v. State of M. P.

2014-01-16

U.C.MAHESHWARI

body2014
ORDER 1. This Appeal is directed by the appellant-plaintiff being aggrieved by the judgment and decree dated 18.5.2012 passed by the Additional District Judge to the Court of Ist Additional District Judge, Bhopal in Regular Civil Appeal No.76-A/11 affirming the judgment and decree dated 4.2.2011 passed by XII Civil Judge Class-I Bhopal in Civil Original Suit No.149-A/09 dismissing her suit filed against the respondent-authority for declaration and perpetual injunction with respect of the land bearing survey No.234/2 area 0.27 acer situated at village Laukhedi, Tahsil Huzur, District Bhopal. 2. The facts giving rise to this appeal in short are that the appellant herein filed a suit against the respondent contending that the land in dispute bearing Khasra No.234/2 area 0.27 acre situated at village Laukhedi, Tahsil Huzur, District Bhopal was the land of Late Hajari Lal s/o Hira Lal r/o Laukhedi along with some other land described in the plaint. The same was recorded in his name on the appointed date notified under the Urban Land (Ceiling and Regulation) Act, 1976 (in short ‘the Act). As per further pleadings, aforesaid Hajari Lal had filed a return under section 6 of the Act before the competent authority constituted under the Act, on which, a Case No.195/1988-89 was registered and on consideration, vide order dated 11.1.1990 (Annexure P-1), the entire land of Late Hajarilal, by holding that the same is not urban land, was released from the purview of the aforesaid Act. In view of such order of releasing the land from the purview of the Act, the appellant had purchased the land in dispute area 0.27 acre from the aforesaid Bhumiswami Late Hajari Lal through registered sale deed dated 29.3.1990 and on the strength of the same she got mutated her name as Bhumiswami in the revenue records. Subsequent to mutation, she had applied before the SDO Huzur for diversion of such land, on which, a Case No.93-A-2/90-91 was registered and on consideration, vide order dated 1.2.1991, the purpose of land was diverted and accordingly since the date of the registered sale deed, the appellant is coming in possession of the land in dispute as Bhumiswami. Subsequent to mutation, she had applied before the SDO Huzur for diversion of such land, on which, a Case No.93-A-2/90-91 was registered and on consideration, vide order dated 1.2.1991, the purpose of land was diverted and accordingly since the date of the registered sale deed, the appellant is coming in possession of the land in dispute as Bhumiswami. It is further stated that Late Hajari Lal, besides the appellant also sold his such other land in different part to 13-14 different persons through registered sale-deed and on the strength of such sale-deeds they are also coming in peaceful possession of their respective parts of such lands. It is further stated that on 17.5.2009, the appellant and aforesaid other purchasers of the land from Late Hajari Lal, decided to sell the same jointly and approached the revenue authorities for obtaining the copies of the revenue record in this regard, on which, they came to know that such land, after declaring to be the surplus land under the Act, has been recorded in the name of the respondent-state as Bhumiswami. It is further stated that the Repealing Act of 1999, whereby aforesaid Act of 1976 was repealed, has come into force with effect from 17.2.2000 and according to the provision of aforesaid Repealing Act of 1999, after publication of the notification under section 10(3) of the Act if the possession of surplus land has already been taken-over by the authority before coming into force the Repealing Act then such land shall be deemed to be “Government land” and if such notification is not issued or in case after issuing the notification the possession of the land was not taken before coming into force the Repealing Act,1999 then such land shall be deemed to be the “released land” from the aforesaid Ceiling Act and no steps to take the possession of the same could be taken by the authority. It is also stated that vide order dated 11.1.1990 the disputed land was released from the purview of the Ceiling Act by the authority and even after declaring the same to be the surplus land under section 10(3) of the Act, such land was neither notified nor the possession of the same was taken-over till coming into force the aforesaid Repealing Act. Inspite that the name of the State was recorded in the revenue record as ceiling land. Inspite that the name of the State was recorded in the revenue record as ceiling land. With these pleadings, the suit is filed declaring the appellant to be the Bhumiswami of such land with a consequential prayer for issuing ad interim injunction restraining the respondents from interfering in her possession of the disputed land. 3. In the written statement of the respondent, it is stated that subsequent to coming into force the aforesaid Urban Ceiling Act, in the light of the notified appointed day under such Act, the then Bhumiswami Late Hajari Lal had filed his return under section 6(1) of the Act in the year 1979 before the competent authority constituted under such Act. Such return was filed by Late Hajari Lal on behalf of his family. Considering such return, in accordance with the provisions of the aforesaid Ceiling Act, along with the other land, including the disputed land, was declared to be surplus and, pursuant to it, under section 10(1) of the Act, a notification dated 8.4.1985 was issued and the notice to this effect under section 10(3) of the Act was also served on Late Hajari Lal and the Tahsildar Nazul, Bhopal was directed to take possession of such land, including the disputed land, on 26.2.1992 under section 10(5) of the Act. In such premises, from the date of notification of surplus land including the disputed land had become the “State land” and has also come in possession of the State. It is further stated that subsequent to the appointed day, if the recorded Bhumiswami had transferred such land in favor of the other persons like the appellant then such transfer, by virtue of section 5 of the Act being ab initio void, did not confer any right or title to the appellant in the disputed land and, in such premises, it is stated that by virtue of aforesaid sale-deed dated 29.3.1990 or of some other date subsequent to the appointed day, had not given any right or title to the appellant and, in such premises, the sale-deed is not binding in any manner against the respondents. It is further stated that if Late Hajari Lal after filing the return again under section 6(1) of the Act before the competent authority, after passing the aforesaid order by the competent authority in that regard in earlier proceeding and has got the order dated 11.1.1990 in Case No.195/1988-89 releasing the land from the purview of the Ceiling Act then such order being obtained by practicing the fraud and concealing the earlier order of the competent authority had not conferred any right or title in favour of Hajarilai with respect of the disputed land along with the other land and such subsequent order is not binding against the respondents because long before vide dated 8.4.1985 such land was already declared to be the surplus land by the competent authority in the earlier case and, pursuant to such earlier order, the possession was also taken in accordance with the procedure in the year 1992 as stated above and, in such premises, when Late Hajari Lal from whom the appellant had purchased the land, did not have any right as Bhumiswami to sell the land then the appellant also did not acquire any right or title in such land. After vesting the land and taking over the possession by the State, it was the only authority to allot the land to any one in accordance with the procedure prescribed under the Act. Besides this, the prayer to dismiss the suit being barred by limitation is also made in the written statement. 4. In view of the aforesaid pleadings of the parties, the issues were framed and their evidence was recorded. On appreciation of the same, the trial Court dismissed the suit by holding that the appellant-plaintiff has neither acquired the title nor in possession of the disputed land. On challenging such judgment and decree by the appellant before the appellate Court, on consideration, by affirming such judgment and decree of the trial Court, the same was dismissed, on which, appellant has come to this Court with this appeal. 5. On challenging such judgment and decree by the appellant before the appellate Court, on consideration, by affirming such judgment and decree of the trial Court, the same was dismissed, on which, appellant has come to this Court with this appeal. 5. Shri Naman Nagrath, learned Senior Advocate assisted by Shri Himanshu Mishra, learned counsel for the appellant, after taking me through the record of both the Courts below along with the impugned judgments, argued that the appellant purchased the aforesaid part of the land in dispute as bona fide purchaser relying on the order dated 11.1.1990 passed by the competent authority in Case No.195/1988-89 under the Ceiling Act releasing the status of the suit land in favor of the owner and being free from the ceiling proceedings, had attained finality and subsequent to it, purchased the same through registered sale-deed. Appellant had also got mutated the same in her name and on that basis the SDO, Bhopal considering the application of the appellant had diverted such land long before and, in such premises, the appellant’s suit ought to have been decreed by the Courts below but the same has been dismissed under wrong premises. In continuation he said that in any case, for the sake of arguments, if it is deemed that initially on the first occasion, after filing the return by the owner Hajarilal in the year 1979 under section 6 of the Act if the land including the disputed land was declared to be surplus under section 10(1) of the Act and the same was notified vide dated 8.4.85 and also the notice of section 10(3) for taking over the possession with a direction to the Tahsildar Nazul under section 10(5) of the Act was given even then till coming into force the aforesaid Repealing Act of 1999 repealing the Ceiling Act of 1976, the actual possession of the land was not taken-over by the authority from the appellant and undisputedly after execution of the sale-deed dated 29.3.1990 by Hajari Lal in favor of the appellant, the appellant was in possession of the land and in the year 1992 without giving any notice to the appellant, the possession of such land could not have been taken by the authorities of the respondents. He also challenged the panchnama prepared by the revenue authorities in presence of the witnesses for taking the possession of such land saying that such panchnamas being not in accordance with the law and procedure has no legal sanctity. So far the objection of the respondent-State that the impugned suit was filed barred by limitation is concerned, he argued that on 17.5.2009 when the appellant accompanied with other persons who purchased other part of the land from Hajarilal, decided to sell such land jointly and for that purpose approached the revenue authorities for obtaining the copy of the revenue record then they came to know with respect of the aforesaid mutation and other proceedings on which immediately they filed the suit and they being in long possession of the property, their suit could not have been dismissed by the courts below as barred by time. He also said that in the light of the revenue record in which the revenue authorities on the strength of her sale-deed had mutated the land in her name and also diverted the same and such entry was remained for years together in such record and, in such premises also the suit of the appellant ought to have been decreed by the trial Court. He also said that the subordinate Court had decreed the suit of some purchaser of the land situated in the similar circumstances, while the suit of the appellant has been dismissed. With these submissions he prayed for admission of this appeal on the substantial questions of law proposed in the appeal memo. 6. Having heard the counsel, keeping in view the arguments, I have carefully gone through the records of the Courts below along with the impugned judgments. I have also perused the substantial questions of law proposed by the appellant in the appeal memo. On such perusal, in the following circumstances, I have not found any scope as per requirement of section 100 of the CPC for admission of this appeal. (A) There is concurrent finding of both the Courts below based on the proceedings carried out by the competent authority that subsequent to coming into force the Act of 1976, in the light of the appointed day the then recorded Bhumiswami of the land Hajari Lal filed the return under section 6(1) of the Act in the year 1979 before the competent authority. Subsequent to it, on consideration, such authority after dismissing the objection of such Bhumiswami had declared the land described in the plaint as surplus under the provision of such Act and in this regard by virtue of section 10(1) of the Act, a notification dated 8.4.1985 was also issued and the notice of surplus land was served on the aforesaid Hajarilal and it is apparent fact on record that such order of the competent authority was never challenged before the appellate authority or before any other superior Court either by the Hajarilal or under his right by some other person including the appellant and, in such premises, such order declaring the land including the disputed land to be surplus and the notification issued in this regard had attained finality and pursuant to such order by virtue of section 10(3) a notice for taking over the possession was issued under section 10(5) of the Act by the competent authority and the Tahsildar Nazul, Bhopal was directed to take over the possession of such land on dated 26.2.1992. Pursuant to such orders and the directions, the concerning Nazul Tahsildar, Bhopal, with the assistance of other revenue authorities by preparing the panchnama in presence of the witnesses, had taken the possession of the surplus land including the disputed land. So, in such premises, the same was mutated in the name of the respondent in the revenue record and as per further provision of the Ceiling Act, after taking the possession of such surplus land the State became the Bhumiswami and, in such premises, the State was having every right to allot and dispose of such land in accordance with the procedure prescribed in that regard. So, in the lack of any appeal or other proceedings against the order passed in the initial proceedings of the competent authority declaring the land in dispute to be surplus land and taking over the possession of the same in such proceedings, I have not found any circumstances giving rise to any substantial question of law for admission of this appeal. (B) It is apparent fact on record that after deciding the aforesaid earlier ceiling case either by practicing a fraud or otherwise, Late Hajarilal had filed some subsequent return of the same land in the office of the competent authority in the year 1988-89. (B) It is apparent fact on record that after deciding the aforesaid earlier ceiling case either by practicing a fraud or otherwise, Late Hajarilal had filed some subsequent return of the same land in the office of the competent authority in the year 1988-89. The same was neither permissible nor entertainable, inspite that after registering the same as Case No.195/1988-89 was considered without taking into consideration the aforesaid earlier ceiling proceedings and the order, whereby declaring the alleged land to be surplus the case was finally decided on merits and the land including he disputed land was released from the purview of the Act of 1976. So, firstly in view of the principle of resjudicata defined under section 11 of the CPC, such subsequent matter between the same party with respect of same issue was neither entertainable nor could be decided again on merits by such authority contrary to the earlier order. So, in such premises I have not found any circumstance giving rise to frame any substantial question of law. (C) It is also apparent and undisputed fact on record that the impugned sale-deed dated 29.3.1990 was executed by Late Hajari Lal in favor of the appellant after the appointed day and by virtue of section 5 of the Act of 1976, subsequent to appointed day if any land has been transferred by the then recorded Bhumiswami and if such land in ceiling proceedings is found to be surplus land then the person like the appellant, who purchased the land from the recorded Bhumiswami subsequent to appointed day has no right or authority to defend the case on the strength of such sale-deed which itself was executed contrary to the mandatory provision of section 5 of the aforesaid Act. As such, according to such section the transaction subsequent to appointed day, without intervention or permission of the competent authority constituted under the Act of 1976 has been deprecated. In fact, the same is ab initio void. So, in such premises, suit of the appellant being filed on the strength of the sale-deed executed subsequent to the appointed day was neither entertainable nor could be decreed by any of the Courts below. In such premises also I have not found any circumstance which could be interfered under section 100 of the CPC by framing substantial question of law in this appeal. In such premises also I have not found any circumstance which could be interfered under section 100 of the CPC by framing substantial question of law in this appeal. (D) It is also apparent on record that the Bhumiswami Hajari Lal whose name was recorded in the revenue record on the appointed day has neither challenged the aforesaid earlier order of the ceiling case declaring the land surplus nor filed any civil suit and such Hajari Lal or his legal representatives have also not been impleaded in the present suit by the appellant. So, in the lack of necessary parties in the impugned suit, is not entertainable and, on examining the matter from this angle also, I have not found any circumstance to admit this appeal by framing the substantial question of law. (E) Apart the aforesaid, there is a concurrent findings of both the Courts below based on the record of earlier ceiling case that the possession of the surplus land had taken over by the Tahsildar Nazul with the assistance of the other revenue officials in the year 1992 by preparing the panchnama in presence of the witnesses in compliance of the notification and order of the competent authority. Thus in view of settled proposition that the concurrent findings on the question of the possession being finding of fact could not be interfered under section 100 of the CPC. So, in such premises also, there is no scope in this appeal for admission. (F) It is also apparent fact that if a person like the appellant wanted to challenged the order of any authority including the competent authority under section 9 of the CPC or any other provision permissible under the law then such suit for declaration ought to have been filed within the period prescribed under Article 58 of the schedule of the Limitation Act in which limitation of three years has been prescribed and it is apparent fact that the possession of the land including the disputed land was taken over by the State in the year 1992 and the initial order in this regard was passed in the earlier ceiling case in the year 1985 and the suit has been filed in the year 2009 which is hopelessly barred by time. So, on such question also, I have not found any fault in the findings of the appellate Court. So, on such question also, I have not found any fault in the findings of the appellate Court. So, on the question of limitation, also there is no scope in the matter to frame any substantial question of law. (G) It is settled proposition of law that the Khasra entries are prepared by the revenue authorities for the fiscal purposes to recover the land revenue and such entries does not give any right or title in the property to any person. For the sake of the arguments if it is deemed that on the basis of the aforesaid ab inito void sale deed if any mutation was carried out by the revenue authorities contrary to the law and such land was also diverted on the basis of such ab initio void mutation then such mutation is also not helping to the appellant in his suit and on such question also there is no scope to frame any substantial question of law. 7. In view of the aforesaid elaborate discussion, I have not found any material substance or circumstance giving rise to any question of law rather substantial question of law as per requirement of section 100 of the CPC. Consequently, this appeal being devoid of any merit deserves to be and is hereby dismissed at the stage of admission.