Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 869 (MP)

State of M. P. v. Nazmuddin Bohara

2017-07-28

P.K.JAISWAL, VED PRAKASH SHARMA

body2017
ORDER Jaiswal, J. -- 1. This review application has been filed by the State through Collector, Mandsaur against the order dated 18.7.2014, passed in Second Appeal No.285/2013 by this Court upholding the order of dismissal of suit as barred by limitation. 2. The facts of the case are that the land bearing Survey Nos. 912, 913, 914, 915, 916, 917 and 911/1492 (Old Survey No.520/3) admeasuring 11 bighas and 3 biswas situated at Village Suwasara, Tahsil Sitamau, District Mandsaur was given to Mulla Hussain s/o Abdul Bohra, grand-father of late Abid Hussain, Jainuddin and Bainuddin for establishing a ginning factory vide a lease deed dated 25.2.1917 by the then Zamindar—Kishore Singh. After death of Kishore Singh his wife Smt. Ravtani Bhatyani has granted the said lease to the respondents’ grand-father. After the death of Smt. Ravtani Bhatyani her son Gulab Singh became the Zamindar. The said Patta was granted on the condition that the lessee will establish a ginning factory and the patta will remain in force till the ginning factory will remain in existence. The land was treated as “Takayami Karkhana”. The lessee committed breach of condition of the agreement and, therefore, a show cause notice dated 24.2.1995 was issued by the Collector, Mandsaur, in exercise of power under section 182 of M.P. Land Revenue Code, 1959 (for short ‘the Code’), that after stopping the running of ginning factory in the land in question, the purpose for which the Patta rights had been given in favour of Mullah Hussain, automatically ceased and land reverted back to the State. It was also mentioned that the user of the land in question was for agricultural purposes, but the said purpose had also been deviated from. The Collector, Mandsaur after holding an enquiry passed an order dated 20th March, 1995 holding that the purpose had been put to an end and, therefore, the lease would stand automatically terminated. This order was challenged before the Commissioner, Ujjain Division, Ujjain who vide its order dated 19.2.1998 maintained the order of the Collector. The aforesaid said orders of the Commissioner and Collector were challenged before the Board of Revenue, Gwalior who vide its order dated 1.11.2000 allowed the revision and set aside the orders of the Collector, Mandsaur and Commissioner, Ujjain. Against the order of Board of Revenue Writ Petition No.1580/2001, was filed by the State Government, which was dismissed on 29.7.2009. The aforesaid said orders of the Commissioner and Collector were challenged before the Board of Revenue, Gwalior who vide its order dated 1.11.2000 allowed the revision and set aside the orders of the Collector, Mandsaur and Commissioner, Ujjain. Against the order of Board of Revenue Writ Petition No.1580/2001, was filed by the State Government, which was dismissed on 29.7.2009. Order dated 29.7.2009, passed in Writ Petition No.1580/2001 reads as under :- "The State of Madhya Pradesh has filed the present petition challenging an order dated November 1, 2000 passed by the Board of Revenue, whereby the orders dated March 20, 1995, Annexure P-2, passed by the Collector, as well as, the order dated February 19, 1998, Annexure P-3, passed by the Commissioner, have been set aside. The facts. A show cause notice dated February 24, 1995 was issued by the Collector, Mandsaur, in exercise of power under section 182 of M.P. Land Revenue Code (hereinafter referred to as the Code) to present respondents No.1 to 3, with regard to the land comprised in Survey Numbers 912, 913, 914, 915, 916, 917 and 911/1492, measuring 11 Beeghas and 3 biswas, situated in village Suvasara, Tahsil Sitamau. It was maintained in the said show cuase notice that the land in question had been given to Mullah Hussain, grand-father of respondents No.1 to 3, for establishing a ginning factory, vide a lease deed dated February 25, 1917, by the then Zamindar. At that point of time, Kishore Singh, was the Zamindar of the land in question and after his death, his wife Smt. Ravtani Bhatyani granted fresh lease hold rights on December 25, 1917 to the aforesaid Mullah Hussain. After death of Ravtani Bhatyani, her son Gulab Singh son of Kishore Singh inherited the Zamindari rights. It was stated in the said show cause notice that Patta in question was granted in favour of Mullah Hussain on the condition of lease establishing a ginning factory, and the patta was to remain in force till the said factory remained operative. It was further maintained that the land in question was acquired by the State of Gwalior, through a gazette notification dated January 11, 1936, and thereafter, the land was handed over to the Customs and Commerce Department of the Gwalior State. It was further maintained that the land in question was acquired by the State of Gwalior, through a gazette notification dated January 11, 1936, and thereafter, the land was handed over to the Customs and Commerce Department of the Gwalior State. The show cause notice indicated that after grant of Patta, the grand-father of respondents No.1 to 3, had stopped the running of ginning factory in the land in question,and therefore, the purpose for which the Patta rights had been granted in favour of Mullah Hussain, automatically ceased and land reverted back to the State of Gwalior. It was also maintained that user of the land in question was for agricultural purposes, but the said purpose had also been deviated from. It appears that in pursuance to the said show cause notice, respondents No.1 to 3, did not appear and, therefore, the proceedings were taken ex parte by the Collector, Mandsaur, againt them. However, some enquiry appears to have been conducted by the Collector. In the aforesaid enquiry proceedings, it was observed by the Collector that the purpose for which the land in question had been leased out to Mullah Hussain, was for running a ginning factory, and since the said purose had been put to an end, therefore, the lease would stand automatically terminated. The order dated March 20, 1995, passed by the Collector, Mandsaur, has been appended as Annexure P-2 with the petition. Respondents No.1 to 3 felt aggrieved against the order Annexure P-2, and raised a challenged to the same, by filing an appeal before the Commissioner. The appeal filed by respondents No.1 to 3 was dismissed by the Commissioner, vide 4 order dated February 19, 1998, appended as Annexure P-3, with the petition. Still remaining dissatisfied with the order Annexures P-2 and P-3, respondents No.1 to 3, filed a revision petition before the Board of Revenue, challenging the aforesaid orders passed by the authorities Blow. Vide an order dated November 1, 2000, appended as Annexure P-4, the Board of Revenue has accepted the revision petition filed by the present respondents No.1 to 3, and has set aside the orders, Annexures P-2 and P-3, passed by the Authorities below. It is with a challenge to the order Annexure P-4, that the State Government has filed the present petition before this Court . It is with a challenge to the order Annexure P-4, that the State Government has filed the present petition before this Court . It may be noticed that while accepting the revision petition filed by respondents No.1 to 3, the Board of Revenue, in its impugned order, has given various reasons to set aside the orders Annexures P-1 and P-3, passed by the lower Authorities. It has been observed that no due service had been effected upon the non-applicants (present Collector, and therefore, the entire proceedings before the Collector, and therefore, the entire proceedings before the Collector were vitiated on this ground alone. On merits of the controversy, it has been observed that while filing the application under section 182 of the Code, the Departmental Authorities had completely failed to produce any relevant record, such as the Pattanama, Kabuliyat or any other documents, to enable the competent authority to find out as to whether there was any violation of any of the terms and conditions. On that basis, it has been held by the Board that the applicantdepartment had completely failed to bring any material on record to justify the eviction of the said non-applicants (present respondents No.1 to 3.). Still further, the Board has opined, on the basis of of the record produced by the applicant – department itself, that as per the revenue record of Samvat 1995, Gulab Singh was recorded as owner in the column of ownership, and in the column of cultivation, name of Gulam Abbas, father of the present respondents No.1 to 3, was recorded as Maurusi. Similar entries continued in the revenue record all through thereafter. Consequently, it has been inferred by the Board that under section 158(1) (b) of the Code, the occupants had been declared as Bhumiswamis, and would be deemed to have acquired the ownership rights therein. Consequently, it has been held that they could no more have been treated as pattedars under the State. I have heard Shri A.S. Kutumbale, learned Additional Advocate General for the petitioner State, and Shri S.C. Bagadiya, learned senior counsel for contesting respondents No.1 to 3 and with their assistance, have also gone through the record of the case. Consequently, it has been held that they could no more have been treated as pattedars under the State. I have heard Shri A.S. Kutumbale, learned Additional Advocate General for the petitioner State, and Shri S.C. Bagadiya, learned senior counsel for contesting respondents No.1 to 3 and with their assistance, have also gone through the record of the case. Shri A.S. Kutumbale, learned senior counsel, has argued that since even after service upon the non-applicants in the proceedings before the Collector (i.e., the present respondents No.1 to 3) they had remained absent, therefore, all pleas raised by the Department in the application under section 182 of the Code, should have been accepted, and had been rightly accepted by the Collector. According to the learned senior counsel, there was no justification for the Board to have reversed the findings of fact given by the Collector. Additionally, it has been argued, that in absence of any plea raised by the non-applicants present respondents No.1 to 3), no findings with regard to Bhumiswami rights on the land in question could be delivered by the Board and, therefore, on that ground alone the order passed by the Board suffers from an infirmity. I have duly considered the aforesaid contentions raised by learned senior counsel, but find myself unable to accept the same. At the outset, it may be noticed that it is for a plaintiff/petitioner, who approaches the Court, seeking a relief, to satisfy the Court with regard to the justification of his claim. The absence of the opposite party, (such as the present respondents), could not be taken to be a ground to automatically decree the claim made by such a plaintiff, on that ground alone. Even if the defendant remains absent/ex parte in a civil suit, the plaintiff is still required to prove his case, to the satisfaction of the Court, and it is only thereafter, that the Court can decree the claim of the plaintiff. In para 6 of the impugned order, the Board has specifically noticed that no material had been placed on record by the applicant/department with regard to the allegations levelled by it, that terms and conditions of Pattanama had been violated, therefore, the said allegation merely pleaded in the application could not have been accepted for want of any evidence. I do not find any error in the aforesaid observations made by the Board of Revenue. I do not find any error in the aforesaid observations made by the Board of Revenue. It has correctly allowed the settled principles of law. Even otherwise, I find that on account of the long occupation and possession of the land in question as Maurusis, reflected from the revenue record, by operation of law under section 158(1) (b) of the Code, the occupants had acquired the Bhumiswami rights in the property in question, and had ceased to remain as government lessees. Consequently, if their status had improved to that extent, then obviously, no eviction order could have been passed against them, treating them as lessees alone. No other point has been urged. Consequently, I do not find any merit in the present petition. The same is hereby dismissed. 3. Against the aforesaid order, Special Leave Petition bearing No.CC-11360/2010 was filed before the apex Court. The apex Court vide order dated 6.8.2010, dismissed the petition (S) for Special Leave to Appeal (Civil) No.23448 of 2010 on the ground of delay. However, liberty is granted to the review petitioner/State to pursue its own remedy as is available under the law. 4. Thereafter, on 1.11.2011 a civil suit was filed seeking declaration on the ground that the order passed by Board of Revenue on 1.11.2000 be declared as null and void and permanent injunction restraining the defendants not to change the nature of land by alienation or otherwise. On service of summon in a suit, the defendants tendered their appearance and on 8.5.2012 moved an application under Order VII rule 11 of CPC inter alia raising the grounds that the suit filed by the plaintiff is barred by limitation. It is said that against the cancellation of lease and for eviction proceeding civil suit cannot be maintained under section 257 (m) of the Code. 5. The learned trial Court vide order dated 15.5.2012 allowed the application under Order VII rule 11 of CPC and dismissed the suit mainly on three grounds; firstly on the ground of res judicata; secondly suit is not maintainable under section 257 (m) of the Code and thirdly the suit is barred by limitation. 5. The learned trial Court vide order dated 15.5.2012 allowed the application under Order VII rule 11 of CPC and dismissed the suit mainly on three grounds; firstly on the ground of res judicata; secondly suit is not maintainable under section 257 (m) of the Code and thirdly the suit is barred by limitation. As per Article 100 of the Limitation Act, 1963, the plaintiff ought to have filed the suit within a period of one year from the date of order dated 6.8.2010 passed by the apex Court, but the suit was filed on 1.11.2011 and, therefore, the suit was dismissed on the aforesaid grounds. 6. In appeal, the lower appellate Court dismissed the appeal, upholding the finding on the point of limitation, and the suit is not maintainable as per section 257 (m) of the Code. On the point of res judicata, it is said that said issue cannot be decided at the threshold without taking evidence on record. 7. The State preferred a Second Appeal No.285 of 2013. It was argued before this Court that the suit is not barred by limitation and provisions of section 257 (m) of the Code do not attract in this appeal. It was also pointed out that whether Article 100 would apply or Article 113 would be applicable is a substantial question of law arises for determination in this appeal and prayed for admitting the appeal for final hearing. 8. This Court after appreciating the arguments of learned Counsel for the parties has held that as per Article 100 of the Limitation Act to alter or setaside any decision or order of a civil Court in any proceeding other than a suit or any act or order of an Officer of Government in his official capacity ought to be filed within one year from the date of final decision or order by the Court or the date of the act or order of the Officer, as the case may be. One year period of limitation expired on 5.8.2011 and, therefore, upheld the finding recorded on the issue of limitation by holding that as the no substantial question of law is involved for determination in this appeal and dismissed the second appeal. One year period of limitation expired on 5.8.2011 and, therefore, upheld the finding recorded on the issue of limitation by holding that as the no substantial question of law is involved for determination in this appeal and dismissed the second appeal. Relevant part of the order reads as under :- “After hearing learned counsel for both the parties and on perusal of the pleadings of suit, it is apparent that the plaintiff has filed a suit seeking declaration to set aside the order passed by Board of Revenue on 1.11.2000 and injunction to restrain the defendant to not to change the nature of land. In the said suit application under Order VII rule 11 of CPC was filed inter alia contending that the suit is barred by limitation and civil Court is having no jurisdiction to entertain the suit under section 257 (m) of the Code. It is to be observed that with respect to adjudication on the application under Order VII rule 11 of CPC, the averments of plaint and objection ought to be considered. However, considering the aforesaid first objection raised by defendant to dismiss the suit as barred by limitation which is upheld by two Courts requires consideration. On perusal of the record, it is seen that suit seeking declaration to set aside the order of Board of Revenue dated 1.11.2000 has been filed further making prayer of injunction. The Board of revenue passed the order on 1.11.2000 against which a Writ Petition bearing No.1580/2000 was filed decided on 29.7.2009 upholding the same. On filing the Special Leave Petition bearing No.CC-11360/2010 before Hon’ble the Supreme Court it was dismissed on 6.8.2010 as barred by limitation but liberty was granted to appellant to pursue its remedy as is available under the law. Admittedly present suit has been filed after lapse of more than one year from the date of dismissal of SLP. As per Article 100 of Limitation Act to alter or set aside any decision or order of a civil Court in any proceeding other than a suit or any act or order of an Officer of Government in his official capacity ought to be filed within one year from the date of final decision or order by the Court or the date of the act or order of the Officer, as the case may be. It is to be noted here that from the date of dismissal of SLP which attained finality, to challenge it in a suit the limitation of one year expires on 5.8.2011. The present suit has been filed on 1.11.2011 after about three months from the date of expiry of period of limitation as prescribed under the law. In such circumstances, two Courts have rightly allowed the application under Order VII rule 11 of CPC filed by the defendant dismissing the suit as barred by limitation which do not warrant any interference in this appeal. So far as maintainability of the suit before civil Court having no jurisdiction in view of section 257(m) of the Code is concerned, it is suffice to observe here that exclusive power has been conferred on the Revenue Authorities in certain matters. Clause (m) deals the ejectment of Government lessee under section 182 of the Code. Section 182 specify the right and liability of Government lessee on found violation and contradiction on the terms and conditions of the lease. However, looking to the relief as prayed in the suit, the said objection raised by defendant do not appears to be justifiable, in absence of cogent material, therefore, I am having no hesitation to hold that the finding recorded on the said issue by two Courts is not in accordance with law but in any case because one of the objection to dismiss the suit as barred by limitation is hereby maintained, however, there is no substance to admit this appeal. In view of the aforesaid discussion, in my considered opinion, no substantial question of law is involved for determination in this appeal, hence it is dismissed at admission stage.” 9. Shri Pushyamitra Bhargava, learned Deputy Advocate General has drawn our attention to the provisions of Articles 100 and 113 of the Limitation Act and submitted that in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. He has also placed reliance on the decision of the apex Court in the case of Ajudh Raj and others v. Moti, reported in AIR 1991 SC 1600 , and submitted that the suit was filed by the plaintiff/State for declaration and permanent injunction and came to the civil Court to challenge his title, the question whether the Article 100 will be attracted or suit of the State is governed by the residuary Article 113 is a substantial question of law and submitted that there is a error apparent on the face of the record in dismissing the second appeal and prays that the impugned order be set aside and after framing the substantial question of law the appeal be admitted for final hearing. 10. Per contra, Shri S. C. Bagadiya, learned senior counsel has submitted that interpretation of limitation is not a substantial question of law. As per paras 16, 19 and relevant clause of the plaint, the review petitioner challenged the order passed by Board of Revenue and the matter went up to the Hon’ble Supreme Court. The Hon’ble Supreme Court vide order dated 6.8.2010 dismissed the special leave to appeal as barred by time with liberty to the review petitioner and, therefore, Article 100 will govern the field. This Court rightly upheld the finding recorded by the Courts below and dismissed the second appeal. He further submitted that there is no error apparent on the face of the record and prays for dismissal of the review petition. He has also drawn our attention to the decision of Nagpur High Court in the case of Jagarao Annaji Deshpande v. Balwant Tukaram Kalvikar, reported in AIR 1938 Nag. He further submitted that there is no error apparent on the face of the record and prays for dismissal of the review petition. He has also drawn our attention to the decision of Nagpur High Court in the case of Jagarao Annaji Deshpande v. Balwant Tukaram Kalvikar, reported in AIR 1938 Nag. 221 and decision of Hon’ble Supreme Court in the case of Kunhayammed and others v. State of Kerala and another, reported in (2000)6 SCC 359 and prays for dismissal of review petition. 11. In the present case, the lease was granted for establishing a ginning factory and in breach of conditions of lease, a show cause notice was given to the lease holder under section 182 (2) (ii) of the Code for ejectment of the lessee and order of eviction passed by the Collector, Mandsaur and Commissioner, Ujjain has been set aside by the Board of Revenue. The State challenged the aforesaid action on the ground that the lessee has used the leased area for the purposes other than for which it was granted and order of eviction was passed by the Collector and Commissioner has been set aside by the Board of Revenue and the same has been upheld in the writ petition on account of long occupation and possession of land in question by holding that the occupants have acquired the Bhumiswami land in the property in question and had ceased to remain as Government lessee. This order was challenged before the Hon’ble Supreme Court and Hon’ble Supreme Court dismissed the SLP only on the ground of limitation and granted liberty to the State to assail the order in an appropriate proceedings in accordance with law. 12. In the present case, admittedly the suit for declaration was filed against the order dated 1.11.2000 passed by the Board of Revenue with a prayer for grant of permanent injunction restraining the defendants from alienating/transferring the property. From the relief clause it is crystal clear that the relief claimed in the suit is to alter or set aside the order of the Board of Revenue. As per Article 100 such suit ought to be filed within one year from the date of final order of the Government authority. Admittedly, the suit was not filed within a period of one year. The review petitioner/State has not sought any declaration to declare the land in question as their own. As per Article 100 such suit ought to be filed within one year from the date of final order of the Government authority. Admittedly, the suit was not filed within a period of one year. The review petitioner/State has not sought any declaration to declare the land in question as their own. In the second appeal also no ground regarding Article 100 or Article 112 of the Limitation Act has been raised. The order passed by the Board of Revenue has attained finality. The Courts below has rightly dismissed the suit as barred by limitation. The relief claimed in the suit clearly falls under ambit 100 of the Limitation Act. In second appeal this Court after appreciating the arguments of learned senior counsel for the appellant upheld the findings recorded by the Courts below and dismissed the appeal. 13. In Thungabhadra Industries Ltd. v. Govt. of A.P., reported in AIR 1964 SC 1372 , the apex Court while dealing with the scope of review had opined:- "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record').The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 14. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 14. In Parsion Devi v. Sumitri Devi, reported in (1997)8 SCC 715 , the apex Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury, reported in (1995)1 SCC 170 , and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, reported in (1979) 4 SCC 389 , held thus:- "Under Order 47 rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 rule 1 CPC. In exercise of the jurisdiction under Order 47 rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 15. In the light of the foregoing discussion, we do not find any merit in the submissions urged by the learned Deputy Advocate General for the review petitioner/State and accordingly, we uphold the findings recorded by this Court in the second appeal. Even if, we take a view that the impugned judgment is erroneous, will not enable us to review the judgment. A Court hearing an application for review has no jurisdiction to order a review because it is of the opinion that a different conclusion of law should have been arrived at. 16. For the aforementioned reasons, we are of the view that there is no mistake or error apparent on the face of the record, the review petition has no merit and is, accordingly, dismissed. No costs.