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Madhya Pradesh High Court · body

2016 DIGILAW 1005 (MP)

Gajraj Singh v. State of M. P.

2016-11-08

VIVEK AGARWAL

body2016
JUDGMENT 1. This second appeal has been filed under section 100 CPC arising out of the judgment and decree dated 27.9.2010 passed by the learned District Judge, Vidisha, in Civil Appeal No.25-A/2010, whereby the judgment and decree dated 29.3.2010 passed by the IV Civil Judge, Class II, Vidisha, in Civil Suit No.75-A/2009 has been affirmed. 2. According to the appellant, his fore-fathers had obtained ownership rights in relation to the land contained in survey No.47 measuring 2.257 hectares situated in village Mehdon,Tahsil Gyaraspur District Vidisha and as such his grand father Tarwar Singh was declared to be Bhumiswami by an order dated 21.2.1969 by the Sub-Divisional Officer, Vidisha, therefore, notification declaring the said land as reserved forest land could not have effect of affecting the title which has already vested in the plaintiff/appellant. According to the learned counsel for the appellant, since his grand-father was a Pakka Krishak at the time of enactment of Zamindari Abolition Act, 1951 as defined in section 2(e) of the said Act, therefore, Bhumiswami rights conferred on the appellant have been arbitrarily disturbed in the light of the notification dated July 25th 1986 declaring the said land as reserved forest. It is also submitted that the notification does not mention name of his village correctly, and therefore, such notification is not binding on the appellant. It is further submitted that in terms of the provisions contained in section 36 of the Indian Forest Act, 1927, service of notice was required to be effected personally on the plaintiff and in absence of such service, findings recorded by the Courts below are perverse. Learned counsel for the appellant has also submitted that the first appellate Court has not adverted to the merits of the case and has rejected the first appeal on the ground of non-maintainability of the civil suit in terms of the provisions contained in section 20 of the Indian Forest Act, 1927. 3. In support of the contention that appellant had become Bhumiswami, appellant has placed reliance on the judgment rendered by this Court in the case of Devi Singh and others v. State of M.P. and others, as reported in 2007 RN 107, wherein it is held that in terms of section 2 (c) of the Zamindari Abolition Act, 1951 Khudkasht” land of Zamindar recorded as “Beed” is to be treated as Khudkasht and not Beed. Similarly, reliance has been placed on the judgment in the case of Gordhan Das v. Phirkan and others, as reported in 2002 RN 1 (SC), wherein the Supreme Court has held that defendant's possession since before commencement of the Zamindari Abolition Act if proved, then such defendant acquires the status of Pakka tenant. Appellant has also placed reliance on the judgment of the Supreme Court in the case of Gorabai (Smt.) and others v. Ummed Singh (Dead) by LRs and others, as reported in 2004 RN 201 (SC), wherein land recorded as Khudkast in 1942 when it was given to tenant for 8 years, period of lease expired before the date of vesting, land in possession of the tenant as trespasser on the date of vesting, ex proprietor taking action for restoration of possession, he is entitled to have the possession as ex-proprietor and becomes tenant of government. By placing reliance on these judgments, learned counsel for the appellant has tried to bring home the issue that since his grand father was a Pakka Krishak, therefore, he by virtue of possession, had become Bhumiswami and no interference could have been made in the Bhumiswami rights which had already materialized in favour of the plaintiff by operation of notification dated 25th July, 1986. 4. Learned trial Court has clearly noted that Zamindari Abolition Act was notified in the Gazette on 25th June, 1951 and as per that Act Pakka Krishan has been defined in section 2(e) as under :- “2(e) “Pacca tenant” means Pacca tenant as defined in clause (vii) of section 54 of the United State of Gwalior, Indore and Malwa (Madhya Bharat) Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007” Similarly, section 54 (vii) of the United State of Gwalior, Indore and Malwa (Madhya Bharat) Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 defines Pacca tenant as under :- “(vii) Pakka tenant-means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a “Ryot Pattedar”, “Mamuli Maurusi”, “Gair Maurusi” and “Pukhta Maurusi” when this Act comes into force or who may in future be duly recognized as such by a competent authority.” 5. Zamindari Abolition Act defines Khudkasht in section 2(c) which reads as under :- “2(c) “Khd-kasht” means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land” Section 3(1) of the Zamindari Abolition Act provides as under :- “3. Vesting of proprietary rights in the State.-(1) Save as otherwise provided in this Act and subject to the provisions of section 8, on and from a date to be specified by a notification by the Government in this behalf (hereinafter referred to as the date of vesting) all proprietary rights in a village, muhal, land, chak or block in Madhya Bharat vesting in a proprietor of such village, muhal, land, chak or block as the case may be, or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor of such other person, to and vest in the State free of all encumbrances.” Similarly, section 4(1)(a) of the Zamindari Abolition Act reads as under :- “4. Consequence by the vesting of an estate in the State.-(1) Save as otherwise provided in this Act when the notification under section 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, the consequences as hereinafter set forth shall from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensue, namely:- (a) all rights, title and interest of the proprietor in such area, including land (cultivable, barren or Bir), forest, trees, fisheries, wells (other than private wells), tanks, ponds, water channels, ferries, pathways village-sites, hats, and bazars and mela- grounds and in all sub-soil, including rights, if any, in mines and minerals, whether being worked or not shall cease and be vested in the State free from all encumbrances.” Sections 37 and 38 of the Zamindari Abolition Act reads as under :- “37. Conferral of pacca tenancy rights on proprietor.- (1) Every proprietor who is divested of his proprietary rights in an estate, chak, block or Muhal shall, with effect from this date of vesting, be a pacca tenant of the Khud-kasht land in his possession and the land revenue payable by him shall be determined at the rate fixed by the current settlement for the same kind of land. (2) If there are more persons than one having interest in land held as Khud-kasht immediately before the date of vesting, any such person may apply for a partition of his share in the land to the Tahsildar who shall proceed according to the provisions of section 69 of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 and in case of partition shall rateably apportion the assessed rent : Provided that no such partition shall be made if any question of title is raised until such question has been decided by a competent Court. Explanation.- For the purposes of the aforesaid proviso, the claim by any proprietor that he holds any land in exclusive ownership or that he had acquired any Khud-kasht land exclusively for himself shall be deemed to be a question of title. (3) If a Tahsildar is of opinion that for preventing multiplicity of proceedings, or for any other reason it would be just and convenient to join as parties all persons who held shares in the estate or Muhal before the date of vesting he may order all such persons to be joined as parties. 38. Conferral of pacca tenancy right on tenant and Sub-tenants. (1) Subject to the provisions of this section, every tenant of a proprietor shall be deemed to be a pacca tenant of the land comprised in his holding from the date of vesting. (2) Every sub-tenant or tenant of a subtenant who deposits with the Tahsildar within the period specified in sub-section (3) and (4) the following amount to be paid to proprietor or tenant or sub-tenant as his case may be, shall be deemed to be a pacca tenant of the land comprised in his holding. Till amount is deposited, his former status shall continue. The right of becoming a pacca tenant by depositing money shall firstly be that of the tenant of the sub-tenant, if any, and if he fails to deposit money shall be that of the subtenant.” Therefore, it is apparent that plaintiff had filed Ex.P-1, copy of the Khasra for the year 2006-07, in which his name is recorded as Kabjedar. The right of becoming a pacca tenant by depositing money shall firstly be that of the tenant of the sub-tenant, if any, and if he fails to deposit money shall be that of the subtenant.” Therefore, it is apparent that plaintiff had filed Ex.P-1, copy of the Khasra for the year 2006-07, in which his name is recorded as Kabjedar. Similarly, Ex.P-2 is the order of SDO dated 21st February, 1969 holding that on abolition of Zamindari Tarwar Singh become Pakka Krishak, but there is no document on record to show that plaintiff or his grand-father was in possession of the suit land as Khudkast or Pakka Krishak at the time of enforcement of Zamindari Abolition Act giving them rights of Bhumiswami. It is also apparent from the records that suit land has been shown as Beed land, and therefore, such land got vested in the State automatically. The judgment in the case of Devi Singh (supra), is distinguishable inasmuch as suit land does not reflect that the land in question was Khudkasht land of Zamindar which was recorded as Beed. In absence of any such documentary evidence to show that the land in question was Khudkast land of Zamindari, same cannot be presumed to be Khudkast land, and therefore, onus was on the plaintiff to prove that land in question was not a Beed land, but a Khudkast land which was recorded as Beed land. Since that burden has not been discharged, ratio of that case is not in favour of the plaintiff. Similarly, ratio in the case of Gorabai (supra), is also not applicable to the facts of the present case inasmuch as in terms of the provisions contained in section 4(2) proprietor of a land has been held to continue to remain in possession of the Khudkasht land if it was so recorded in the annual village papers in any of the years before the date of vesting. In the present case, it is not the case of the plaintiff that his Khudkasht land was given on lease, and therefore, after expiry of the lease, land stood vested in him as a proprietor. In absence of such case being made, the ratio of the judgment of Gorabai (supra), is also not applicable to the facts and circumstances of the case. 6. In absence of such case being made, the ratio of the judgment of Gorabai (supra), is also not applicable to the facts and circumstances of the case. 6. In the case of Gordhan Das (supra), the issue which has been decided is that in terms of the provisions contained in section 38(1) if a party is able to show his possession before the commencement of the Zamindari Abolition Act, then such party acquires status of Pakka tenant. In the present case, appellant has failed to discharge his burden to show his possession prior to 25th June, 1951 when Zamindari Abolition Act, 1951 came into being. Thus, ratio of this judgment is also not applicable to the facts and circumstances of the present case. 7. At this stage, it will be proper to consider other arguments advanced by the learned counsel for the appellant, namely provision of section 36 of the Indian Forest Act, 1927 requires service of notice personally on the possessor of the land. It is important to refer to the provisions contained in section 36 of the Indian Forest Act, 1927. section 36 deals with power to assume management of forests. It reads as under :- 36. Power to assume management of forests.-(1) In case of neglect of, or wilful disobedience to, any regulation or prohibition under section 35, or if the purposes of any work to be constructed under that section so require, the State Government may, after notice in writing to the owner of such forest or land and after considering his objections, if any, place the same under the control of a Forest-officer, and may declare that all or any of the provisions of this Act relating to reserved forests shall apply to such forest or land. 8. In the opinion of this Court, so also as is apparent from the notification Ex.D-2, said notification was issued under the provisions of section 4 of the Forest Act. Section 4 of the Forest Act deals with notification by the State Government which reads as under :- “4. 8. In the opinion of this Court, so also as is apparent from the notification Ex.D-2, said notification was issued under the provisions of section 4 of the Forest Act. Section 4 of the Forest Act deals with notification by the State Government which reads as under :- “4. Notification by State Government.-(1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the official Gazette :- (a) declaring that it has been decided to constitute such land a reserved forest; (b) specifying, as nearly as possible, the situation and limits of such land; and (c) appointing an officer (hereinafter called “the Forest Settlement Officer”) to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest produce, and to deal with the same as provided in this Chapter. Explanation.-For the purpose of clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well known or readily intelligible boundaries.” Section 6 provides for proclamation by Forest Settlement Officer and section 7 provides for inquiry by Forest Settlement -officer. Section 9 provides for extinction of rights in respect of which no claim has been preferred under section 6 and of the existence of which no knowledge has been acquired by inquiry under section 7, shall be extinguished, unless before the notification under section 20 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under section 6. Thus, it is apparent that there is no provision for personal notice and section 6 only requires that Forest Settlement Officer shall publish in the local vernacular in every town and village in the neighbourhood of the land comprised therein a proclamation specifying, as nearly as possible, the situation and limits of the proposed forest, explaining the consequences which, as hereinafter provided, will ensue on the reservation of such forest; and fixing a period of not less than three months from the date of such proclamation, and requiring every person claiming any right mentioned in section 4 or section 5 within such period either to present to the Forest Settlement Officer a written notice specifying or to appear before him and state, the nature of such right and the amount and particulars of the compensation (if any) claimed in respect thereof. 9. In view of the aforesaid, clearly the provisions of section 36 of the Indian Forest Act are not applicable and reliance placed by the appellant on section 36 is also misconceived. 10. At this stage, learned counsel for the appellant has placed reliance on the judgment of Supreme Court in the case of Godrej and Boyce Manufacturing Company Ltd. and another v. State of Maharashtra and others, as reported in (2014) SCC 430, and has drawn attention of this Court to paragraphs 55 and 57 of the said judgment. This judgment pertains to the provisions pertaining to management and taking over of Forest Act which is clearly not applicable to the facts and circumstances of the present case. 11. Appellant has also placed reliance on the judgment of the Supreme Court in the case of Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa, as reported in (2009)4 SCC 299 . It is the contention of the appellant that if there was breach of fundamental procedure as prescribed under section 36 of the Indian Forest Act, then question in regard to the jurisdiction of the civil Court must therefore be addressed having regard to the fact as to which rights or obligations are sought to be involved for the purpose of invoking or neglecting the jurisdiction of a civil Court. Placing reliance on this judgment, learned counsel has tried to impress upon this Court that learned first appellate Court has wrongly referred to the provisions of section 20 of the Indian Forest Act, 1927. Placing reliance on this judgment, learned counsel has tried to impress upon this Court that learned first appellate Court has wrongly referred to the provisions of section 20 of the Indian Forest Act, 1927. But the fact of the matter is that first appellate Court has adverted to both the merits of the claim of the appellant, so also has adverted to the provisions of section 20 of the Indian Forest Act. In the case of State of U.P. v. Deputy Director of Consolidation and others, as reported in 1996 AIR SCW 2972, it has been held that once notification under section 20 of the Indian Forest Act declaring a land as reserved forest is published, then rights in the said land claimed by a person come to an end and are no longer available. In view of the aforesaid judgment, learned first appellate Court has held that any right in the suit land in favour of the appellant stood extinguished. In view of the ratio of the aforesaid judgment, learned first appellate Court has adverted to the provisions of section 9 CPC and has held that since Indian Forest Act, 1927 is a complete code in itself and contains elaborate procedure for declaring and notifying reserved forest and that notification is binding as decree of civil Court, the jurisdiction of the civil Court was impliedly barred. 12. Thus, there are two concurrent findings which remained unrebutted namely plaintiff could not prove his ownership on the suit land by adducing any evidence to show that he had acquired Bhumiswami rights on abolition of Zamindari and coming into force of the Zamindari Abolition Act, 1951, and secondly appellant has failed to prove that he had taken steps as are envisaged under the provisions of Indian Forest Act, 1927 consequent to issuance of notification under section 4. Therefore, the appellant has failed to prove his Bhumiswami rights over the land and has also not been able to establish that in the event of his failure to take steps as provided under the Forest Act how help of section 9 CPC be taken when there is express bar. 13. Article 300 A of the Constitution of India provides that persons are not be deprived of property save by authorities of law. It reads no person shall be deprived of his property save by authority of law. 13. Article 300 A of the Constitution of India provides that persons are not be deprived of property save by authorities of law. It reads no person shall be deprived of his property save by authority of law. To attract provisions of this Article, onus was on the appellant to show that land in question was his property and he had acquired Bhumiswami rights. As has been discussed by the learned trial Court and first appellate Court the plaintiff could not prove the land to be his own property, therefore, provisions of Article 300 A of the Constitution cannot be resorted to. 14. In view of the aforesaid discussion, no substantial question of law emerges for decision in the present second appeal. Consequently, this appeal fails and is dismissed.