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2016 DIGILAW 140 (MP)

Baba Gyandas v. Tahsildar, Sheopur

2016-02-22

ROHIT ARYA

body2016
JUDGMENT : 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 19.6.2013 passed by the Board of Revenue in Revision Case No.R-1528-I/2013 (Annexure P-1) whereby affirmed the order dated 22.2.2013 in Case No.1/12-13/A-12 (Annexure P-2) passed by the Tahsildar, Sheopur District Shoepur rejecting the objections to the demarcation proceedings on the premise that the petitioner is not recorded as Bhumiswami in the land records in respect of the land in question. 2. Facts relevant for disposal of this writ petition are to the effect that the petitioner has filed a civil suit seeking injunction in respect of agricultural land falling in Survey No.269/1Ka(3) admeasuring 1.208 hectare situated in village Salapura, Tahsil Sheopur, District Sheopur against private persons only. The trial Court dismissed the said Suit No.152A/2005(sic) (Gyan Das Baba Gurudin Chaturbhuj v. Chandrakanta and others) vide judgment and decree dated 13.1.2006. However, on appeal, the first appellate Court vide judgment and decree dated 13.7.2006 in Civil Appeal No.12-A/2006 has directed that since the plaintiff/appellant found to be in possession, he shall not be dispossessed except by due process of law. The aforesaid decree was passed against the private persons only. The State was not made a party. Upon perusal of the judgment and decree passed by the first appellate Court, it appears that there was no contest between the parties. 3. Respondent No.2 recorded as Bhumiswami in the revenue record in respect of Survey No.269/1Ka(2) admeasuring 2.090 hectare; adjacent to the aforesaid land to which petitioner claims to be in possession, filed an application for demarcation. Objection was raised by the petitioner in demarcation proceedings on the premise that the land in excess to the ownership of respondent No.2 is being demarcated as part of his land to which he is not recorded as Bhumiswami. The Tahsildar rejected the objection on the premise that for the purpose of inquiry in the proceedings for demarcation under section 129 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as 'the Code') only such persons are required to be noticed and heard who are recorded as Bhumiswami in the revenue record. As the petitioner is not recorded as Bhumiswami though claimed to be in possession, he was not found to be party interested in the demarcation proceedings. Accordingly, the objection was rejected. As the petitioner is not recorded as Bhumiswami though claimed to be in possession, he was not found to be party interested in the demarcation proceedings. Accordingly, the objection was rejected. The order passed by the Tahsildar has been affirmed by the Board of Revenue. 4. Learned counsel for the petitioner criticizing the aforesaid orders contends that once the petitioner has been found to be in possession in the suit proceeding (Civil Appeal No.12-A/2006 wherein it is ordered that the petitioner be not dispossessed except by due process of law), he is an interested party and, therefore, the Tahsildar and the Board of Revenue have fallen in error having narrowly construed the meaning of 'party interested' as used in section 129 of the Code. Learned counsel further contends that the entry in the revenue record is not of much relevance for the purpose of demarcation proceedings. Therefore, even if the name of petitioner is not recorded as Bhumiswami of the land over which he claims to be in possession, the same shall not come in his way for raising an objection in the demarcation proceedings. It is further contended that the word 'party interested' as used in section 129 of the Code is inclusive in nature and has to be given liberal interpretation so that individual in possession is not subjected to any prejudicial action at the instance of other persons merely for the reason that his name is not recorded as Bhumiswami in the revenue record. 5. Per contra, State's counsel and the counsel for the respondent No.2 contend that the judgment and decree passed by the first appellate Court in Civil Appeal No.12-A/2006 (supra) is of no consequence and relevance in view of the fact that the State was not made a party to the proceedings in the suit for injunction. Undisputedly, the land in question is recorded as Government land in the revenue record and, therefore, the aforesaid judgment and decree is not binding to the State Government. It is further contended that in view of provision as contained under Order 1 rule 3B CPC (M. P. Amendment Act No.29 of 1984 with effect from 14.8.1984) which reads as under : “3-B. Conditions for entertainment of suits. It is further contended that in view of provision as contained under Order 1 rule 3B CPC (M. P. Amendment Act No.29 of 1984 with effect from 14.8.1984) which reads as under : “3-B. Conditions for entertainment of suits. - (1) No suit or proceeding for : - (a) declaration of title or any right over any agricultural land, with or without any other relief; or (b) specific performance of any contract for transfer of any agricultural land, with or without any other relief, shall be entertained by any Court, unless the plaintiff or applicant, as the case may be, knowing or having reason to believe that a return under section 9 of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No.20 of 1960) in relation to land aforesaid has been or is required to be filed by him or by any other person before competent authority appointed under that Act, has impleaded the State of Madhya Pradesh as one of the defendants or non-applicants, as the case may be, to such suit or proceeding. (2) No Court shall proceed with pending suit or proceeding referred to in sub-rule (1) unless, as soon as may be, the State Government is so impleaded as a defendant or non-applicant. Explanation.— The expression "suit or proceeding" used in this sub-rule shall include appeal, reference or revision, but shall not include any proceeding for or connected with execution of any decree or final order passed in such suit or proceeding". The suit could not have been allowed to be proceeded unless the State Government was made party. In land records, the land is recorded as ownership of the State, therefore, the decree passed in such suit suffers from vice of quorum non judice and the decree so passed is not binding. 6. It is also contended by counsel for respondent No.2 that the respondent No.2 was not a party and, therefore, the same has no binding effect on respondent No.2, also. 7. Learned counsel further contended that as a matter of fact, the suit was dismissed by the trial Court and before the first appellate Court, there was no contest on the question of claim for possession of petitioner over the suit land. 7. Learned counsel further contended that as a matter of fact, the suit was dismissed by the trial Court and before the first appellate Court, there was no contest on the question of claim for possession of petitioner over the suit land. Therefore, the first appellate Court has passed the judgment and decree on the assertion only of the plaintiff/petitioner claiming to be in possession over the suit land with the observation that he may not be dispossessed except by due process of law. 8. Learned counsel further contended that as regards section 129 of the Code, a plain meaning has to be attributed to the word “party interested” as the Tahsildar cannot initiate the process for demarcation unless an individual seeking demarcation has a legal right to do so with reference to the revenue record. Likewise, persons not recorded as Bhumiswami cannot be allowed to raise objection in demarcation proceedings initiated under section 129 of the Code, at the instance of the recorded Bhumiswami. Hence, petitioner admittedly not being recorded as Bhumiswami has no locus standi. As such, the Tahsildar has not committed any illegality while rejecting the objection raised by the petitioner to the demarcation proceedings and upheld the same by Board of Revenue. 9. Heard learned counsel for the parties. 10. In the opinion of this Court, the contentions advanced by learned counsel for the respondents' have substantial force in view of the fact that a suit seeking injunction in respect of agricultural land, the Courts could not have proceeded unless the State Government was made party thereto, moreso, when admittedly, the suit land was recorded as ownership of the State Government in the revenue record. Hence, the first appellate Court has exceeded its jurisdiction having passed the decree against dispossession in the aforesaid suit (supra) in ignorance of the provision as contained under Order 1 rule 3B CPC. Hence, in the opinion of this Court, such decree has no binding effect or consequence as against the State Government and is a nullity. Consequently, such decree cannot be executable against the State Government or its functionaries. Further, the provision contained under section 129 of the Code, is very clear as regards jurisdiction of the Tahsildar for initiation of demarcation proceedings. 11. In the case in hand, the respondent No.2, a recorded Bhumiswami has sought for demarcation of the land in question. Consequently, such decree cannot be executable against the State Government or its functionaries. Further, the provision contained under section 129 of the Code, is very clear as regards jurisdiction of the Tahsildar for initiation of demarcation proceedings. 11. In the case in hand, the respondent No.2, a recorded Bhumiswami has sought for demarcation of the land in question. In the process of demarcation proceedings, the Tahsildar is required to hear the party interested. Tahsildar and the Board of Revenue have rightly held that interested persons are such persons who have legal right to the land, as per revenue record. Petitioner, admittedly; has failed to establish his legal right or entitlement to hold the land in question muchless, Bhumiswami though claims to be in possession. In absence of any legal right to the land or as Bhumiswami, in the opinion of this Court, the petitioner cannot be held to be 'party interested' for the purpose of raising objection to the demarcation proceedings. Of course, the State Government itself, i.e., the Tahsildar/revenue authority may verify the record and initiate the demarcation proceedings and may also hear such person who is Bhumiswami. The Tahsildar/revenue authorities cannot initiate the process for demarcation contrary to the land record. If a person seeking demarcation only on the strength of possession is held to be covered within the meaning of word 'party interested' used in section 129 of the Code, as suggested by learned counsel for the petitioner, the same shall lead to absurdity as the Tahsildar has to ignore the revenue record and only on mere claim of possession thereof shall be bound to carry out the demarcation at the instance of such person under section 129 of the Code. This is not the legislature intentment. Therefore, such an interpretation in fact and in effect shall tantamount to doing violence with the provision of section 129 of the Code. Consequently, it is held that the Tahsildar and the Board of Revenue have not at all committed any illegality or jurisdictional error while rejecting the objection raised by the petitioner to the demarcation proceedings on the premise that the petitioner do not have any legal right or as Bhumiswami to the land in question as per revenue record, therefore, the petitioner is not entitled to maintain his objection. Accordingly, the writ petition sans merit and is hereby dismissed.