Bhagwan vs Shri Vishnu Mandir, Dewas and another

R.C. Lahoti, J.

The foundational facts fortunately are not in controversy At Vishnugalli of Dewas, there is a temple adorned by Idol of Lord Vishnu. Land Survey Nos. 877, 880 and 886 to 8 0 total area 6.30 acres are attached with the temple and held by the idol as bhumiswami. The Pujari Ramdas used to manage the property and was next friend of the idol. The land used to be let out to late Nandram, the father of the Defendant Appellant, year by year, for cultivation. The rent payable by Nandram used to be paid in two instalments. Ramdas Pujari acting for the idol initiated proceedings u/s 168 of M. P. Land Revenue Code before the revenue Courts alleging that 18-5-1960 was the last occasion when late Nandram was let out the land for one year and did not vacate the land on expiry of the lease. The proceedings before the revenue Court finally terminated with the order of the Board of Revenue dated 24-9-64 upholding the order of the Collector dated 31-5-1963, rejecting the application filed by Pujari Ramdas, holding that late Nandram was a lessee inducted by Ramdas Pujari but any ground for ejectment of lessee u/s 168 of the Code was not available, the lease having not been determined nor any of the conditions of the lease having been contravened. Copies of the orders of the Board of Revenue and the Collector have been filed before the lower appellate Court under order 41 Rule 27 C. P.C. The present Defendant Bhagwan is the son of late Nandram and is in possession of the suit land.

2, This suit has been filed on 10-11-1970 by the idol through Pujari Ramdas alleging that Nandram having expired in February 1970 the Defendant/Appellant has entered into unauthorised possession of the land with whom the Plaintiff does not have any arrangement of any kind. The Plaintiff prayed that it be adjudged that the possession of the Defendant was unauthorised and that the possession be restored to the Plaintiff by evicting the Defendant and further that a decree for mesne profits at the rate of Rs. 5,000/- per annum from the date of the suit be awarded. The Defendant in his written statement set up the plea that on the death of Nandram the Defendant and his mother come to be in possession of the land in the capacity of the legal representatives of late Nandram; such possession was with the consent of the Plaintiff who recieved rent also from the Defendant. It was denied that Late Ramdas had executed a Kabuliat on 18-5-1960 and that he was in possession only under one year''s lease with effect from 18 5-1960. The jurisdiction of the Civil Court to try and hear the case was objected to by submitting that the matter lay within exclusive jurisdiction of the special Additional Officer.

The Two Courts below have held that the civil Court did have jurisdiction to try the case. The possession of the Defendant/Appellant was found to be unauthorised. Decree for ejectment along with mesne profits at the rate of Rs. 1000/- per annum from the date of the suit was granted. The lower appellate Court while affirming the decree of the trial Court proceeded on the reasoning that the last lease dated 18-5-1960 in favour of Nandram had expired and the Defendant/Appellant did not inherit any leasehold rights from late Nandram. The appellate Court held that subsequent to the death of Nandram payment of rent through money order by the Defendant/Appellant to Pujari Ramdas was proved but mere payment of rent in the absence of a contract of lease between the Defendant/Appellant and Pujari Ramdas did not have the effect of creating tenancy. It also held that the idol, the Bhumiswami of land, being a person under physical disability, the Defendant''s father did not acquire status of an occupancy tenant.

The learned Counsel for the Defendant/Appellant has made two submissions. Firstly, it is contended that in view of the provisions contained in Section 168 read with Clause (h) of Section 257 of M. P. Land Revenue Code, 1959, the civil Court had no jurisdiction to try the case and hence the decree passed by the Courts below is without jurisdiction. In the alternative it is submitted that assuming the Civil Court could try the case, the Defendant Appellant should have been held to be holding the land as lessee of the land and his rights would be deemed to have devolved upon the Defendant/Appellant, lease-hold rights being heritable; and more so because the Defendant/ Appellant paid the rent to Pujari Ramdas which was accepted by him and even in the absence of creation of a fresh lease in favour of the Defendant/ Appellant, it cannot be deemed that the Pujari could claim back possession of the land from the Defendant/Appellant under the rights inherited by him from his late father.

The relevant part of Section 168 and Clause (h) of Section 257 of M. P. Land Revenue Code, 1959 are reproduced hereunder:

S. 168 (2)-A Bhumiswami who is-

(v) a person subject to physical or mental disability due to old age or otherwise; or may lease the whole or part of his holding:

X X X X

(4) Where a lease is granted in pursuance of Sub-section (2), the lessee shall hold the land on such terms and conditions as may be agreed upon between him and the Bhumiswami and may be ejected by an order of a Sub-Divisional Officer on the application of the Bhumiswami on the ground of contravention of any material term or condition of the lease or on the lease ceasing to be in force.

S. 257-Exclusive jurisdiction of revenue authorities-Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters;

(k) ejectment of a lessee of a Bhumiswami under Sub-section (4) of Section 168;

It is well settled that an idol would be a person subject to disability within the meaning of Clause (v) of Sub-section (2) of Section 168. (See Ramhet v. Shri Laxminarain Mandir AIR 1976 . If a patticular term is not fixed, an agricultural lease shall be deemed to be a lease from year to year. So also, it is well settled that a lease is a heritable right and does not expire merely by the death of the lessee. In Damadilal and Others Vs. Parashram and Others, , it was held:

Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an incident of the tenancy.

In Sitabai v. Ramchandra AIR 1870 SC 343 , while examining the provisions of M. B. Land Revenue and Tenancy Act, 1950, their Lordships observed:

Under the scheme of the Act the rights of ordinary tenant are heritable. It is true that there are special propisions with regard to heritability as regards pakka tenant. But in the absence of any special statutory provision, the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned. Section 86 applies to all classes of tenants and contemplate heritability and transferability of the rights of a tenant or a subtenant.

Thus, on the facts found, the tenancy between the idol and late Nandram would be deemed to be one running from year to year. It would not come to an end merely by the death of Nandram, His rights would be herited by his legal representatives. The Plaintiff/Respondent was totally under a misconception as to law by proceeding over an assumption that with the death of Nandram, the possession of the defentant/Appellant became that of a trespasser or became unauthorised. The right of the Defendant/Appellant to hold the land under the lease did not come to an end because the Plaintiff/Respondent utterly failed in showing that there was any contravention of any material term or condition of the lease or the lease ceased to be in force within the meaning of Sub-section (4) of Section 168.

The sole question, therefore, remains to be examined is whether the suit as brought could have been entertained by the Civil Court in the background of the proceedings u/s 168(sic) 4) of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the Code), having terminated in favour of the Defendant/Appellant finally from the highest Court in the hierarchy of revenue Courts.

The relief prayed for by the Plaintiff/Respondent in his plaint deserves to be noticed. Vide para 12 (relief clause) of the plaint, he prays (translated into English) (i) it be determined that the Defendant does not have any title in the suit land; (ii) that possession of the suit land be restored to the Plaintiff from the Defendant; (iii) that mesne profits at the rate of Rs. 5000/-per annum be awarded to the Plaintiff.

The Plaintiff has nowhere sought for the declaration of his title to the suit land. There was no occasion for the Plaintiff to have sought for the declaration because throughout the proceedings before the revenue Courts and at any time before the filing of the present suit, the Defendant never disputed the title of the Plaintiff to the suit land. Several averments made in the plaint especially vide para 3 thereof, go to show that the Defendant/Appellant was treated by the Plaintiff/Respondent to been(sic) unauthorised occupation of the suit land on the ground that there was no agreement of lease between him and the Plaintiff. In short, it is a simple suit for ejectment of a lessee by a Bhumiswami which would squarely attract the applicablity of Clause (k) of Section 257 of the Code.

The learned Counsel for the Plaintiff/Respondent placed reliance on a Full Bench decision of this Court in Ram Gopal v. Chatu AIR 1976 MP 216 and a Single Bench decision in Gyarsiram v. Sonibi AIR 1976 SC 2229 . Ramgopal (supra) was a case(sic) u/s 250 read with Section 257 (x) of the Code. There cannot be any doubt about the law laid down by the Full Bench that determination of the question of title is the province Civil Court and unless there is any express provision to the contrary exclusion of the Jurisdiction of the Civil Court cannot be assumed or implied. Gyarsiram (supra) was a case wherein the Defendant had refused to deliver possession to the Plaintiff in spite of service of a notice and had claimed the suit land as his own. The Defendant took a plea of having acquired title by adverse possession and got himself recorded in the revenue records as Bhumiswami. He pleaded that the entry in the revenue records was with the consent of the parties. Rashiabeg v. Bisivabai 1980 IMPWN 294 has also been relied on but there also was a dispute as to title capable of being determined by the Civil Court and moreover, the Plaintiff had come with an alternative case to the Court which was not covered by Section 168 (4) of the Code. Needless to say, that both Gyarsibal and Rashidbeg supra) do not have any applicability to the facts of the present case.

The present case is squarely covered by a Single Bench decision of this Court in Narayanrao v. Shivram and Anr. 1972 MPLJ 388 . It was held by referring to the provisions of Section 168 (4) and 257 (k) of the Code:

This is the only express-provision in the Code under which the tenant of a Bhumiswami disabled u/s 168 (2) can be ojected at all, the presumption being that without recourse to this step even such a tenant cannot be evicted. It may be, he does not acquire occupany rights; but he would still be a non-occupancy tenant liable to eviction only in this manner. This is clear enough and not questioned by the Plaintiff either.

Now this matter regarding the ejectment of a tenant of this class is one for which a revenue officer-the Sub-Divisional Officer-has been empowered by this Code to dispose of. Therefore, the jurisdiction has to be treated as exclusive unless either in Section 168 itself or elsewhere in the Code there is a general or a particular provision making this also cognizable by the Civil Courts. The whole scheme of the Code is that once powers are given to a revenue authority it would be deemed to exclude those of the Civil Courts unless there is something in the Code itself retaining the Civil Court''s powers. There being none I would hold that the power to eject any tenant under a disabled Bhumiswami such as the Plaintiff claims to be is in the Sub-Divisional officer and not in the Civil Court. Even on the assumption that the Plaintiff is really entitled to the benefit of Section 168 (2) (v) it is for him to go to the Sub-Divisional Officer.

A question as to jurisdiction of Civil Court in face of the bar enacted by Section 34 of M. B. Abolition of Jagirs Act, 1951 came to be examined by this Court in Ramnarain Jhakur v. Purshottam 1981 JLJ 504 . This Court held:

As such, adjudication on matters to decide which the jurisdiction has been conferred on the Tahsildar and on Collector, hearing an appeal in the matter, has to be treated as immune from challenge on merits in Civil Courts. For the same reason the decision on the question of status of the parties the jurisdiction of the Tahsildar and/or Collector, adjudication of those questions is within the exclusion of jurisdiction of Civil Courts worked out by Section 34 of the Jagir Abolition Act.

Inspite of the bar enacted by Section 34 of the Jagir Abolition Act. a challenge to impugned orders can be made on grounds that they are nullity. The concept of nullity includes a challenge on the ground that the impugned order was delivered by a Court not competent to deliver it or was obtained by fraud or collusion, This is what has been provided expressely by Section 44 of the Indian Evidence Act.

The scheme of the Code does not permit a Bhumiswami approaching a civil Court for evicting his tenant where the case is covered by Section 168 (4) of the Code. Simply because his attempt at evicting the lessee has been unsuccessful before the revenue Courts, no question of title arises. The Courts below, therefore, seriously erred in assuming jurisdiction over a suit which they did not have Even otherwise, then Plaintiff/Respondent could not have been granted any relief during the continuance of the lesse. A full Bench held in Punjaram Jagoba v. Ramu Chinloo(sic) AIR 1940 Nag 49:

The landlord cannot sue for possession during the continuance of a tenancy even if there is a trespasser on the land. His rights in that respect do not accrue until the tenancy is determined.

The lease between the parties being one governed by Section 168 of the Code, and the Defendant/Appellant having inherited the tenancy rights from his father, he was not liable to be evicted unless one of the conditions prescribed by Section 168 (4) were shown to exist and that too before Revenue Court under its exclusive jurisdiction.

For all the foregoing reasons, the appeal is allowed. Judgments and decrees of the Courts below are set aside. The suit filed by the Plaintiff/Respondent is directed to be dismissed. In view of a purely legal controversy arising the parties are left to bear their own costs through out.