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Madhya Pradesh High Court · body

2019 DIGILAW 237 (MP)

Godhan v. State of M. P.

2019-03-14

G.S.AHLUWALIA

body2019
JUDGMENT 1. This second appeal has been filed against the judgment and decree dated 22.9.2011 passed by First Additional District Judge, Bhind in RCA No. 3/2011 thereby dismissing the appeal filed by the appellants against the judgment and decree dated 15.4.2011 passed by Second Civil Judge, Class-I, Lahar, District Bhind in Civil Suit No. 126-A/2010. 2. This appeal was admitted on the following substantial question of law: "Whether both the Courts below were justified in dismissing the suit and appeal under the provisions of section 38 of Zamindari Abolition Act and after enforcement of M.P. Land Revenue Code, by which, bhumiswami rights have been accrued to the plaintiffs over the disputed land which is shown in their possession as Ex.P-5 to Ex.P-16 (Khasra entries) on the ground that source of title has not been show by the plaintiffs?" 3. It is submitted by the counsel for the appellants that section 54(vii) of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007, defines pakka tenant which reads 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. Explanation- The term "Pukhta Maurusi" includes Istmurardar tenants, Malikana Haqholder tenants, Hakkiyat Mutafarrikat, Sharah Muayyana and Sakitul-milkiyat tenants. Section 38 of Madhya Bharat Zamindari Abolition Act, Samvat 2008 reads as under:- "38. Conferral of pacca tenancy right on tenants and subtenants. (1) Subject to the provisions of this section every tenant of a proprietor shall be deemed to be a pacca tenant of the land comparised in his holding from the date of vesting. (2) Every sub-tenant or tenant of a sub-tenant who deposits with the Tahsildar within the period specified in sub-sections (3) and (4) the following amount to be paid to the proprietor or tenant or sub-tenant, as the 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. 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 sub-tenant:- (a) In case of a sub-tenant of Gair Maurusi tenant. An amount equal to the double of the net annual income of that land of the Gair Maurusi tenant. (b) In case of a sub-tenant of a Maurusi or Sakitulmilkiat tenant. An amount equal to six times the net annual income of that land of the Maurusi or Sakitulmilkiat tenant. (c) In the case of a sub-tenant of the Khudkasht or Sir of the proprietor. An amount equal to six times the net annual income of that land of the proprietor. (d) In the case of a tenant of a sub-tenant:- (1) If he is a tenant of sub-tenant in the Khud-kasht or Sir of the proprietor. An amount equal to six times the net annual income of that land of the proprietor, out of which 85% shall be given to the proprietor and 15% to the sub-tenant. (2) In case of any other tenant of a sub-tenant. An amount equal to eight times the net annual income of that land of the original tenant out of which 85% shall be given to the original tenant and 15% to the sub-tenant. (e) In case of a sub-tenant or tenant of a sub-tenant of a subtenant of either description mentioned in (a), (b), (c) and (d), if the well situate on his holding is a private one of the proprietor or tenant or sub-tenant, as the case may be, and no land of the proprietor, tenant or sub-tenant other than the land of that holding is watered from that well. By way of compensation so much of the amount as the Suba may assess after considering the points mentioned in schedule III. Provided that a sub-tenant or tenant of a subtenant shall remain a sub-tenant or tenant of a sub-tenant as before in case of disability mentioned in section 74 of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. He shall have no right to become a pacca tenant by depositing the amount under his sub-section. Provided that a sub-tenant or tenant of a subtenant shall remain a sub-tenant or tenant of a sub-tenant as before in case of disability mentioned in section 74 of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. He shall have no right to become a pacca tenant by depositing the amount under his sub-section. (3) If a holding be in the possession of a tenant of a sub-tenant, he may deposit the money within four years of the date of vesting, otherwise his right of becoming a pacca tenant shall lapse and the sub-tenant may within six months of the expiry of the said four years deposit in the Tehsil, the amount mentioned in clauses (a), (b), (c) and (d), as the case may be, of the proceeding of sub-section. If he fails to deposit such amount within the said period the proprietor of the original tenant, as the case may be, shall be deemed to be the pacca tenant of that holding. (4) If the holding be in the possession of a subtenant, he may deposit the money within four years the date of vesting. On the expiry of four years, the original tenant or the proprietor, as the case may be, shall be deemed to be the pacca tenant of that holding. (5) If a sub-tenant or a tenant of a sub-tenant fails to deposit the amount within the period specified in sub-sections (3) and (4) then, notwithstanding anything contained in his lease or contract, it shall be deemed that all his rights have ceased to exist and that he is a trespasser on that land, and the proprietor, tenant or subtenant, as the case may be, get him rejected under section 90 of the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. (6) In the case of every original tenant deemed to be a pacca tenant under this section it shall be presumed that the Government has settled his land with him on the same rent which he was paying to the proprietor for that land, but if such tenant holds rent-free or on concessional rent or pays the rent in kind, the rent on that holding shall be fixed at the village rate assessed in the current settlement. (7) In case of every sub-tenant or tenant of a sub-tenant, as the case may be, deemed to be a pacca tenant under sub-section (2) and (3), it shall be presumed that the Government has settled his land with him, if he is a sub-tenant of the Khudkashta or Sir land of the proprietor, on the same rent which he has been paying to the proprietor and in any other case, on such rent as the original tenant has been paying to the proprietor and if that person holds rent free or on concessional rent or pays the rent in kind, the rent shall be fixed at the village rate assessed in the current settlement. Explanation:- (1) The pacca tenancy rights under this section shall accrue or be acquired in respect of such land only as may be in the actual possession of the tenant, sub-tenant or tenant of a sub-tenant. (2) In the case of clauses (a), (b) and (d) (2) of sub-section (2), the net annual income shall be the difference between the rent which the Gair Maurusi, Maurusi or Sakitulmilkiyat tenant, as the case may be, receives from his sub-tenant and the rent which he pays to the proprietor and in the case of Khudkashta or Sir land of the proprietor or mentioned in clauses (c) and (d) (i), the net annual income shall be the difference between the rent which the proprietor receives from his tenant and the rent determined in accordance with the village rate." 4. It is submitted that thereafter section 158 of M.P. Land Revenue Code got come into force and thus the appellants became the Bhumi-swami of the land in dispute. It is further submitted that where the person was the pakka tenant, then by virtue of his continuous possession on the said land, he has became the Bhumiswami and, accordingly, the Courts below had committed a material illegality by dismissing the suit filed by the appellants. 5. To consider the submissions made by the counsel for the appellants it would be necessary to consider the brief facts of the case. The appellants had filed a suit for declaration of title and permanent injunction. 5. To consider the submissions made by the counsel for the appellants it would be necessary to consider the brief facts of the case. The appellants had filed a suit for declaration of title and permanent injunction. It is the case of the plaintiffs that in survey No. 1924 the plaintiffs and Jagdish Verma (the defendants No. 3 to 7 were the legal representatives of Jagdish Verma) had 1/8th share each and the said land is the disputed land. The said land was in possession of the predecessor of the plaintiffs from the period of Zamindari and their predecessor name was recorded in the Khasra Panchshala of Samvat 2007-2008. The survey numbers have been renumbered as 1924/1, 1924/2. In column No. 5, the name of the State Government is recorded and in column No. 12, one Peepal tree is recorded. It was further pleaded that mutation of the name of the State Government is contrary to the factual possession. The plaintiffs are in possession of the land in dispute and in the alternative it was also submitted that after the abolition of Zamindari, the plaintiffs have became the Bhumi-swami and, therefore, they are entitled for declaratory decree. The plaintiffs are not aware that when the names of the predecessors were deleted and now recently they came to know for the first time and, therefore, it was pleaded that the deletion of the names of the predecessors of the plaintiffs are contrary to record. On 14.2.2002, the plaintiffs came to know that the Patwari is in the process of allotting the said land to other persons and when they met with Tahsildar, Mihona, then a threat was extended by him that he would forcibly dispossess the plaintiffs and, accordingly, this suit was filed for declaration of title and permanent injunction. 6. The State Counsel has submitted that both the Courts below have recorded concurrent findings of facts. 7. Heard the learned counsel for the parties. 8. In order to appreciate the contentions made by the counsel for the appellants, it is necessary that either the predecessor of the plaintiffs or the plaintiffs should be a "pakka tenant" as per provisions of section 54 (vii) of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007. 7. Heard the learned counsel for the parties. 8. In order to appreciate the contentions made by the counsel for the appellants, it is necessary that either the predecessor of the plaintiffs or the plaintiffs should be a "pakka tenant" as per provisions of section 54 (vii) of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007. The plaintiffs have not filed the Khasra Panchshala of Samvat 2007 (Year 1950) to show that in the Samvat 2007 either they were or their predecessor ever registered as pakka tenant. When the appellants or their predecessors were not in possession of the land in dispute in Samvat 2007 and they cannot be termed as the "pakka tenant", therefore it cannot be said that the appellants had acquired the status of Bhumi-swami. Merely in the year 1976 and onward the name of the plaintiffs were recorded in the revenue record as persons in possession would not give them any right or title over the property. The plaintiffs had filed a Khasra Panchshala of Samvat 2032 as Ex.P-5, Khasra Panchshala 2027 as Ex.P-6, Khasra Panchshala 2037 as Ex.P7, Khasra Panchshala of Samvat 2041 to 2045 as Ex.P-8, Khasra Panchshala of the year 1984 to 1985 to 1988-1989 as Ex.P-9. However, no Khasra Panchshala of Samvat 2007 i.e. of the year 1950 has been filed. Thus, it is clear that neither the plaintiffs nor their predecessors had ever become "pakka tenant" and, accordingly, it is held that the appellants have never acquired the rights of Bhumi-swami under section 158 of M.P. Land Revenue Code. 9. It is submitted by the counsel for the appellants that their names are recorded in the revenue record, therefore, the case of the appellants may also be directed to be considered in the light of the provisions of section 162 of the M.P. Land Revenue Code. So far as the allotment of the land under section 162 of the M.P. Land Revenue Code is concerned it is dependent upon various aspects which can be considered by the revenue authorities only, therefore, this Court cannot issue any direction to the revenue authorities. 10. Accordingly, the Courts below did not commit any mistake in dismissing the suit filed by the appellants. 10. Accordingly, the Courts below did not commit any mistake in dismissing the suit filed by the appellants. Resultantly, the judgment and decree dated 22.9.2011 passed by First Additional District Judge, Bhind in RCA No. 3/2011 and the judgment and decree dated 15.4.2011 passed by Second Civil Judge, Class-I, Lahar, District Bhind in Civil Suit No. 126-A/2010 are hereby affirmed. The appeal fails and is hereby dismissed.