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Madhya Pradesh High Court · body

2017 DIGILAW 1018 (MP)

Nisruddin v. State of M. P.

2017-09-21

VIVEK RUSIA

body2017
JUDGMENT 1. The appellants (legal heirs of the plaintiff) have filed the present second appeal being aggrieved by the judgment and decree dated 2.12.1997 passed in Civil Appeal No. 26-A/1989 by 2nd Additional District Judge, Neemuch, whereby, judgment and decree dated 19.12.1983 passed in Civil Suit No. 34-A/1978 in favour of the plaintiff has been reversed. 2. The facts of the case in short for effective disposal of this second appeal are as under :- That the plaintiff (late Badruddin) being resident of Gram Chitakheda, District Neemuch filed the suit for declaration and permanent injucntion against defendants No. 1 to 3. Accoding to the plaintiff, one Dasharath Kadam was Jagirdar of four villagers including the village of Chitakheda. The Superintendent, Court of Wards was given power of Tahsildar, who had distributed the Government land to 25 agriculturist in Samvat 2005. The Superintendent gave the land on lease bearing Survey Nos.61 and 62 (New Survey Nos.94, 95, 96, 97 & 98) area 1.00 bighas (here in after referred as suit land) to the plaintiff as Mamuli Mourusi vide dated 7.2.1949 (Ex.P-1). The possession was also given to the plaintiff by Shri Gotelal Patwari. That after settlement of land the survey number of the lands have now been changed to Survey Nos.94, 95, 96, 97 and 98. In Samvat 2006, the plaintiff has paid Lagan of Rs.25/- to the Government vide receipt dated 11.4.1950. He further pleaded that in Samvat 2007, in place of Shri Gotelal, one Shri Rangalal was appointed as Patwari and he has illegally granted lease of Suvey No. 62/1 (New No. 94) of 20 bigha to his wife Smt. Dakhabai i.e. defendant No. 3 and tried to take possession from the plaintiff. When the plaintiff had objected, then in order to take revenge, he has removed the name of the plaintiff from the recovery list of Lagan and stopped taking Lagan from him. The plaintiff made complaint to the higher revenue authority. In the year 1954, the said Patwari has transferred the suit lands of the plaintiffs to forest department. The plaintiffs submitted objection before the settlement officer of forest department. Vide order dated 31.10.1967, lands of the plaintiff were released by the Forest Department and thereafter, he continued into possession during his life time and now his sons are in possession. 3. The plaintiffs submitted objection before the settlement officer of forest department. Vide order dated 31.10.1967, lands of the plaintiff were released by the Forest Department and thereafter, he continued into possession during his life time and now his sons are in possession. 3. In the year 1962, Nayab Tahsildar, Neemuch came to Gram Chitakheda and initiated proceedings under section 248(1) of the M.P. Land Revenue Code, 1959 against the plaintiffs and registered the case of the encroachment from the year 1965 to 1975. The plaintiff submitted reply and, thereafter, vide order dated 12.9.1976, fine of Rs.1,500/- was imposed on him with the direction to, remove the encroachment. Thereafter, the plaintiff preferred appeal before SDO, in which, stay order was not granted and thereafter, the preferred an appeal to Commissioner, Ujjain. The plaintiff served legal notice dated 31.10.1977 under section 80 CPC to the Collector, Mandsaur and thereafter, filed the suit on 27.1.1978 seeking declaration that he be declared owner of the suit land. 4. The defendant No. 1 filed return denying averments in the plaint by submitting that the status of the plaintiffs is of a encroacher over Government and earlier he has filed Civil Suit No. 233-A/1977, therefore, present suit is barred by principle of res judicata. Taht the execution of the lease (Ex.P-1) by Superintendent in favour of the plaintiff was denied specifically. 5. After notice, the defendant No. 2 filed the written statement denying averments made in the plaint by submitting that the land bearing Survey No. 94, Nawankhedi is of the ownership of defendant No. 3 and now she has sold to him vide sale deed dated 7.2.1978. 6. The defendant No. 3 has also filed the written statement by submitting that she is the owner of the land bearing Survey No. 62/1 (new No. 94) area 20 bigha by virtue of the lease deed dated 5.7.1949 and she is regularly paying the lease rent to the Government and vide sale deed dated 7.2.1978, she has sold the said land to defendant No. 2. She has denied the possession of the plaintiff over land of the Survey No. 94. 7. On the basis of the pleadings, learned Civil Judge has framed as many as 20 issues for adjudication. The plaintiffs have got exhibited as many as 16 documents as Ex.P-1 to P-16. The lease issued in favour of the plaintiffs is exhibited as Ex.P-1. She has denied the possession of the plaintiff over land of the Survey No. 94. 7. On the basis of the pleadings, learned Civil Judge has framed as many as 20 issues for adjudication. The plaintiffs have got exhibited as many as 16 documents as Ex.P-1 to P-16. The lease issued in favour of the plaintiffs is exhibited as Ex.P-1. The statement of Nanalal Patwari recorded before Nayab Tahsildar is marked as Ex.P-2. The Pass-book (Rin Pustika) issued in the name of plaintiff is marked as Ex.P-10 and the statement of Shri Gotelal recorded before Nayab Tahsildar is marked as Ex.P-16. The plaintiff has got examined himself as PW1 and Shri Nandram as PW2. 8. The defendant has also got exhibited as many as 21 documents i.e. Ex.D-1 to Ex.D-21 and examined Shri Sidheshwar, Nayab Tahsildar, Shri Jeeran as DW1 and Shri Ramratan as DW1. 9. Learned Civil Judge has decided issues No. 1, 9, 11 and 13 together in respect of issuance of lease deed Ex.P-1 in Samvat 2005 to the plaintiff. The learned trial Court has found that the lease was validly issued in favour of the plaintiff. By the same procedure, the lease was also issued in the name of defendant No. 3. The plaintif was also found in possession by virtue of Ex.P-1 as Mamuli Mourisi Kastkar over the land bearing Survey Nos.95, 96, 97 and 98 except survey No. 94 (old No. 62/1). The other issues were also answered in favour of the plaintiff. The vide judgment and decree dated 19.12.1983 the suit has been decreed in favour of the plaintiff with the declaration that he is owner of the land bearing Survey No. 95, 96, 97 and 98 area 80 bigha by virtue of Ex.P-1 and the defendant No. 1 has been restrained to interfere into his peaceful possession. The suit has been dismissed in respect of Survey No. 94. 10. Being aggrieved by the aforesaid judgment and decree, the defendant No. 1 preferred first appeal before the District Court. During pendency of the appeal, Badruddin the original plaintiff has expired and in his place, his three sons were brought on record as legal hears to are appellant in this appeal. 11. 10. Being aggrieved by the aforesaid judgment and decree, the defendant No. 1 preferred first appeal before the District Court. During pendency of the appeal, Badruddin the original plaintiff has expired and in his place, his three sons were brought on record as legal hears to are appellant in this appeal. 11. The Learned Additional District Judge has re-appreciated the evidence on record and found that the lease vide Exb.P-1 was issued in favour of Badrilal, but he has failed to prove deposition the lease rent to the Government for three years and in absence of payment of lease rent, he has violated the terms and condition of the lease and by virtue of section 109 of Ryotwari Qanoon, his lease is treated to be cancelled. The Ld.ADJ has also held that plaintiff has failed to developed the suit land hence violated condition No. 2 of the lease. In the revenue record, the land bearing Survey Nos.61/1 to 62/9 was recorded in the name of Sardar Laxmanrao, the then Zamindar and name of plaintiff Badruddin has not been recorded in the revenue record by virtue of Ex.P-1. Vide judgment and decree dated 2.12.1997, learned first appellate Court judgment and decree dated 2.12.1997, learned first appellate Court has set aside the judgment and decree granted in favour of the plaintiff. 12. Being aggrieved by the aforesaid, judgment and decree dated 2.12.1997 this second appeal was filed on 2.1.1998. Vide order dated 16.3.1998, interim order of status quo was granted in favour of the plaintiff. Thereafter, vide order dated 3.8.1999, the appeal was dismissed in one line order as “no substantial question of law involved”. 13. Being aggrieved by the order dated 3.9.1999, the appellants preferred SLP, which was converted into Civil Appeal No. 4124/2001. Vide order dated 14.2.2017, the appeal was allowed by setting aside the order dated 3.8.1999 and remanded the second appeal with direction to decide on merit in accordance with law and meanwhile status quo, as it exists today, has been directed to be continued. Vide order dated 14.2.2017, the appeal was allowed by setting aside the order dated 3.8.1999 and remanded the second appeal with direction to decide on merit in accordance with law and meanwhile status quo, as it exists today, has been directed to be continued. Thereafter, vide order dated 6.7.2017, present second appeal has been admitted on the following substantial question of law: “A. Whether the appellants can be treated as pakka tenant Bhumiswami by operation of law and statutory provisions of the Qanoon Ryotwari of Gwalior State Samvat 1974, Madhya Bharat Land Revenue and Tenancy Act, 1950, Madhya Bharat Zamindari Abolition Act, 1951 and Madhya Pradesh Land Revenue Code, 1959 ? “B. Whether the appellants can be called encroachers liable to be evicted from disputed land even though at no stage Patta for these lands granted in favour of petitioners have been cancelled and petitioners continued with uninterrupted possession since 1049.” C. “Whether in the facts and circumstances of the case learned lower appellate Court erred in reversing the entire findings of facts of the trial Court which was validly reached by appreciating the evidence by re-evolving arbitrarily ?” I have heard the arguments of Shri Polekar Ld. counsel for the appellants and Shri Vivek Patwa Ld. Government Advocate for the respondent No. 1. 14. The plaintiff was given the land on lease as Mourusi Krishak by the Superintendent, Court of Wards on 2.9.1949, as Exb.P-1. The said deed i.e. Ex.P-1 is 30 years old document, therefore, having protection under section 90 of the Indian Evidence Act subject to rebuttal by the defendant No. 1. 15. The defendant No. 1 have pleaded before the trial Court that the said lease is forged, but they have failed to give any evidence to establish that the lease is forged. Simultaneously, the defendants No. 1 to 3 are justifying the lease of land bearing Survey No. 63/1 in favour of defendant No. 3 as Mamuli Mourusi Krishak. The same authority who issued Exb.P-1 had also issued the lease to Smt. Dakhabai on 5.7.1949 i.e. Exb.D-11. There is no different between Ex.P-1 and Ex.D-18 as both are signed and issued on same period by the same Superintendent, Court of Wards of Gwalior Government. The same authority who issued Exb.P-1 had also issued the lease to Smt. Dakhabai on 5.7.1949 i.e. Exb.D-11. There is no different between Ex.P-1 and Ex.D-18 as both are signed and issued on same period by the same Superintendent, Court of Wards of Gwalior Government. The plaintiff has also filed the statement of Shri Hukamchand as recorded before the Tahsildar as Ex.P-9, in which, he has also certiried that the lease was issued in favour of plaintiff. The plaintiff has also filed the statement of Shri Nandlal who was working in the Chitakheda Jagir and admitted that the Superintendent has granted lease to Bhadruddin vide Ex.P-2. The plaintiff was also in possession of the pass-book, which was marked as Ex.P-10. The plaintiff has also filed the statement of Shri Gotelal who was working as Patwari in Samvat 2005, who has also proved the issuance of lease in favour of the plaintiff. His statement recorded before Nayab Tahsildar is marked as Ex.P-16. The certified copies of these statements recorded before revenue authority are admissible in evidence. The name of Smt. Dakhabai was also recorded in the revenue record as lease holder Survey No. 62/1, therefore, the trial Court has rightly came to the conclusion that the lease issued in favour of the plaintiff is valid lease. The first appellate Court in its judgment has also found that the lease was issued in favour of the plaintiff and there is no document on record to establish that it has ever been cancelled by defendant No. 1. 16. On the basis of valid lease in favour of the plaintiff, his continuous possession over the land and accordingly the suit was decreed. 17. The learned appellate Court has gone into the issue of violation of terms and conditions of the lease Exb.P-1. The appellate Court has recorded the findings that the lease deed is valid, untill the lease rent is paid. The learned appellate Court has placed reliance over sections 4 and 109 of the Ryotwari Qanoon, Gwalior State and held that the lease rent was not paid continuously for the period of five years, therefore, the lease is treated to be cancelled. The appellate Court has also held that the plaintiff did not develop the lands, hence, he has violated second condition of the lease. The appellate Court has also held that the plaintiff did not develop the lands, hence, he has violated second condition of the lease. The only issue framed by the trial Court was, whether the plaintiff has paid Lagan of Rs.25/- under Samvat 2006 and that issue has been recorded in his favour. It was not the case of the defendant State Government before the trial Court that due to non-deposit of lease rent under section 109 of the Ryotwari Qanoon and due to non-development of the land Patta is treated to be cancelled. Only the defence raised by defendant No. 1 was that the Superintendent Court of Wards was not competent to issue the lease to the plaintiff, therefore, he is encroacher over the suit land. The plaintiff has stated that he has deposited Lagan and to establish this, he has got exhibited the rent receipt as Ex.P-10, which is 30 years ‘old document and it was proved by the statement of the then Patel Hukamchand vide Ex.P-9. There was no issue before the trial Court that due to non-payment of lease rent after samvat 2005 and non-development of the agricultural land, the lease is treated to be cancelled and it was not the case of even the defendant, therefore, first appellate Court has wrongly decided the issue of non-payment of lease rent after samvat 2005 onwards without there being any pleading and evidence to the effect, therefore, the finding recorded by Id. appellate Court is perverse hence the question of law No. 2 is answered in favour of the appellants. 18. That the trial Court as well as the appellate Court has prima facie found that the lease was issued in favour of the plaintiff. That the Ryotwari Qanoon Gwalior State, which was in force till it was repelled by the Revenue Administration and Ryotwari land Revenue and Tenance Act [Act No. 66 of 1950] published in the Gazette on 15.7.1950. There after its name was replaced by Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 by the Act of 18 of 1952. By virtue of section 3 and Scheduled-I of Ryotwari Qanoon has been repealed. By the Madhya Bharat Abolition of Jagirs Act, Samvat 2008 (Act No. 28 of 1951), the State Government has resumed all the Jagirs land in the State. By virtue of section 3 and Scheduled-I of Ryotwari Qanoon has been repealed. By the Madhya Bharat Abolition of Jagirs Act, Samvat 2008 (Act No. 28 of 1951), the State Government has resumed all the Jagirs land in the State. That section 2(ix) defines, “Occupied land” means land held immediately before the commencement of this Act on any of the following tenures, namely :- (a) Ex-proprietary; (b) Pukhta Maurusi; (c) Mamuli Maurusi; (d) Gair Maurusi; By virtue of section 20, every tenant of a Jagirdar or Zamindar including the “Shikmi” shall, as from the date of resumption be deemed to be a Pucca tenant of the land cultivated personally by him. Section 20 is reproduced bellow:- “20. Conferral of pacca tenancy right on tenants and shikmis - (1) subject to other provisions of this Act, every tenant of a Jagirdar, order Zamindar including the “Shikmi” shall, as from the date of resumption be deemed to be a pacca tenant of the land cultivated personally be him. Explanation : For the purposes of this section and section 22, “Shikmis” shall mean any person holding the Khud-Kasht land of the Jagirdar or the Zamindar, as the case may be. [(2) Rent at the village rate assessed in the current settlement shall be changed from every tenant or Shikmi deemed to be a Pacca tenant under this section : Provided that the rent charged from such of them including the Sakitulmilkiyat tenant who had been fully assessed in the current settlement shall continue to be the same as assessed in the said settlement till their re-assessment in the next settlement.]” By virtue of section 21, sub-tenant or a tenant of a sub-tenant has also acquired the right of pacca tenant. The Tahsildar was given power to issue certificate of pacca tenant. The said certificate was required to be obtained by sub-tenant or tenant of sub-tenant. But in the present case, plaintiff Badruddin was a tenant of Zagirdar, therefore, he would be covered under section 20 by which the right of pacca tenant has been conferred on him and he was not required to obtain certificate from the Tahsildar. 19. The said certificate was required to be obtained by sub-tenant or tenant of sub-tenant. But in the present case, plaintiff Badruddin was a tenant of Zagirdar, therefore, he would be covered under section 20 by which the right of pacca tenant has been conferred on him and he was not required to obtain certificate from the Tahsildar. 19. No coming to the sub-section (vii) of section 54 of M. B. Land Revenue and Tenancy Act, which also defines pakka tenant and according to which, tenant who has been lawfully recorded in respect of his holding as Mamuli Mourusi or Pukhta Mourusi when this act came into force w.e.f. 15.8.1950. Section 54(vii) is reproduced below :- “54(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.” The section 64 provides fixation of rent payable by pakka tenant during period of settlement. The section 81 provides resumption of pakka tenant’s holding where he does not agree to pay the revenue or rent or he contravenes either himself or through a sub-tenant with the provision of this Chapter. But, in the present case there was no order issued by respondent No. 1 resuming tenancy of plaintiff Badruddin. That section 115 provides that the revenue payable on account of any land, shall be a first charge on that land and the same shall be recovered under section 127 by or under the order of Tahsildar. No such action has been taken under section 127 against the plaintiff for recovery of lease rent from the plaintiff. 20. The Government of Madhya Pradesh came with an Act called M.P. Land Revenue Code, 1959 to consolidate and amend the law relating to land revenue, the powers of Revenue Officers, rights and liabilities of holders of land from the State Government agricultural tenures and other matters w.e.f. 2.10.1959. By virtue of section 261 of Code, 1959, the enactments specified in Schedule-II have been repealed including the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007. By virtue of section 261 of Code, 1959, the enactments specified in Schedule-II have been repealed including the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007. By virtue of section 158, every person in respect of land held by him in Madhya Bharat region as a pakka tenant under the Madhya Bharat Land Revenue and Tanancy Act, Samvat 2007 has been conferred the right of Bhumiswami. Section 158(b) is reproduced below :- Section 158. Bhumiswami :- (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subjected to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely - (a) ........ (b) every person in respect of land held by him in the Madhya Bharat region as a pakka tenant or as a Maufidar, Inamdar or Concessional holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat, 2007 (66 of 1950). (c) ........ (d) ........ 21. The plaintiff was granted the lease on 7.2.1949 under the Ryotwari Qanoon and the said Qanoon was repealed by The Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 w.e.f. 15.7.1950 hence, section 109 of Roytwari Qanoon of Gwalior State, Samvat 2007 was not in force after 15.7.1950, therefore, the appellate Court has wrongly held that the plaintiff’s lease has been treated to be cancelled because, he has not paid the rent for three years under section 109. The plaintiff has continued as pacca tenant under the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 followed by MPLR Code, 1959. As held above, no steps were taken for cancellation of his lease and the possession was not taken by Tahsildar. The lease Ex.P-1 which has not been cancelled, therefore, by virtue of section 158 of the M.P. Land Revenue Code, 1959 he has been conferred Bhumiswami rights, therefore, substantial question of law No. 1 is also answered in favour of the plaintiff and the appellate Court has erred in not holding plaintiff Badruddin as Bhumiswami of suit land as lease Exb.P-1 has been treated to be cancelled. The appellant’s father Badruddin was Mourusi Krishak and became Bhumiswami on coming into force the M.P. Land Revenue code, 1959 and after his death, present appellants have become Bhumiswami. The appellant’s father Badruddin was Mourusi Krishak and became Bhumiswami on coming into force the M.P. Land Revenue code, 1959 and after his death, present appellants have become Bhumiswami. In view of the above, other substantial questions of law No. 3 is also answered in favour of appellants. Undisputedly the plaintiff and now the present appellants i.e. legal heirs are in continuous possession since 1949. Accordingly, present appeal is allowed and the impugned judgment and decree dated 2.12.1997 passed in Civil Appeal No. 26-A/1989 by 2nd Additional District Judge, Neemuch, is hereby set aside and judgment and decree dated 19.12.1983 passed in Civil Suit No. 34-A/1978 in favour of the plaintiff is restored.