Gambhir Singh and Others vs Kalyan and Others

R.P. Gupta, J.

This second appeal arises from judgment dated 10.7.1996 of Additional District Judge, Gonad in Civil Appeal No. 30/92 whereby decree of the trial Court i.e. Civil Judge Class-IE Gonad, dismissing the suit No. 2A/71 of the Plaintiffs, was confirmed.

The suit of the Plaintiffs was that they were Bhumiswamis in the entire suit land situated at Khasra No. 114 in village Baroli district Bhind and that entries in the record of rights about the names of Defendants being the Bhumsawmi as also the order of Naib Tahsildar dated 11.8.1970 directing that the Defendants be entered as Bhumiswami of the entire land was illegal and without jurisdiction. So the Plaintiffs suit was for declaration of Bhumiswami right of the entire land which was 15 bighas. They also sought permanent injunction against the Defendants against interferring in the possession of the Plaintiffs.

The Defendants contested the suit and urged that they were in possession as sub-tenants in the suit land since before coming into force of Madhya Bharat Zamindari Abolition Act, Samvat 2008 (for short the ''Act'') and they became Bhumiswami of this land lateron, but, consequently their rights, being protected, ripened into that of Bhumiswami rights under MP. Land Revenue Code 1959 (for short the ''Code''). It was urged that they were rightly recorded as Bhumiswami in the possession of the entire land under the order of Naib Tahisldar in question.

The trial Court had proceeded with the trial on the following issues:

Whether the Plaintiffs cleared the suit land from Banjar before the advert of Zamindari Abolition Act, and cultivated it ?

Whether the Plaintiffs were in possession of the suit land since before abolition of Zamindari rights therein ?

Whether the Plaintiffs acquired the Bhumiswami rights in the suit land ?

Whether the order of the Naib Tahsildar dt. 11.8.1970 was illegal and ineffective ?

Whether the pendency of the suit No. 106-A/70 filed by the opposite party against the Plaintiff had no effect as res-sub-judice ?

Whether the suit could not proceed because of seeking any relief of possession ?

Relief.

The trial Court, in its judgment, noticed that in the Khasra entries of Samvat 2007 the Plaintiffs father Khayali was recorded as proprietor while Defendants were recorded in possession as Gair Maurusis, that was Ex.D/8. However, in the Khasra of the year Samvat 2008 which is equavalent to the year 1951 (Ex.D.7), the ownership column was transferred to the State of Madhya Bharat while in the possession column No. 5 the land was recorded as KHUDKAST of Gambhir, Harcharan, Mohanlal sons of Khyali to the extent of half as PACCA KRISHAK for the last one year and the other half was recorded in possession of the Defendants Mullu, Bondu, Kallu and Gulzari. The entry of Gair Maurusis was scored off in the column and the entry of PACCA KRISHAK was made. On this basis, subsequent entries of the subsequent year continued to the extent of half and half in favour of these parties and they were ultimately recorded as Bhumiswami of land to extent of half share each in the year Samvat 2021 to 2024.

It appears that the Defendants Mullu filed an application before the Naib Tahsildar that their names had been erroneously omitted from the record to the extent of half and it should be restored. The Naib Tahsildar, it appears from the order Ex.D/2, without notice to the opposite party and on the basis of the evidence of these Defendants; Mullu etc. accepted their contention and held that the omission of the names of these Defendants was without any reason and ineffective and directed restoration of their names. This order is dated 11.8.1970. No entry of Revenue Record, after that order, has been produced on record. We do not know what was the revenue entry and how the order of Naib Tahsildar carrried into effect. However, it appears that in the year 1970 the present Defendants also filed a civil suit for declaration of their rights as Bhumiswami of the entire land. It is pending.

The trial Court found on the issue No. 1 that the father of the Plaintiffs had cultivated this land and in fact he was originally in possession of this land. However, it was held that the Plaintiffs were not in possession of the suit land at the time of coming into force of Zamindari Abolition Act. So it was found that the Plaintiffs did not acquire Bhumiswami right in this land. However, the order of the Naib Tahsildar was found ineffective and no effect was found to be arising from the pendency of the suit of the opposite party. Result is, however, that the suit was dismissed. The suit of the Defendant continued.

The first Appellate Court confirmed all these findings of the trial Court and therefore confirmed the dismissal of the suit.

The trial Court, in holding that the entries of KHUDKAST in Samvat 2008 in favour of the Plaintiffs were erroneous, reasoned that according to the Plaintiff No. 1 (PW-1) his father Khyali had died about 10 years before he made the statement, that means after the year 1961-62. So the Court reasoned that the entry of KHUDKAST must be considered as false as KHUDKAST should be only in favour of Khayali and since sons names had been introduced, in his life time, the entries must be ignored and the land could not be considered as Khudkast of Khayali or of these Plaintiffs. With these reasonings the Court appears to have inferred that since this part of the entry was erroneous or liable to be ignored, the land must be taken to have been entirely in possession of Defendants which was erroneously recorded only to extent of half share in their possession. In this second appeal this Court had framed the following questions of law at the time of admission:

(i) Whether the Appellants/Plaintiffs in spite of being recorded as pucca krishik in the Khasra entry of Samvat 2008 can be non-suited merely because in the entry of Samvat 2007, the Defendant is also recorded as Upkrishik and Krishik as Gair Maurusi ?

(ii) Whether, merely that for some years prior to abolition of Zamindari, the 1/2 of the land was got cultivated, and the other half was cultivated by the Zamindar himself, the whole land will become the land of Upkrishik or the only piece of land which was recorded, that is 1/2 of the land, will go to the Upkrishik Defendant and rest 1/2 will become the Bhumiswami right land of the Plaintiffs/Appellants ?

There is no dispute on the proposition that if the Plaintiffs were PUCCA tenant of half land, they acquired the Bhumiswami right to that extent and if the Defendants were Gair Maurusis of half land they have acquired the Bhumiswami right of 1/2 land as per the various provisions applicable.

The main question is whether the reasoning of the two Courts below that the entry of KHUDKAST was false, because the father was alive and the names of the sons were recorded, is justified to infer as to who cultivated the land. The relevant date for finding out status under Madhya Bharat Zamindari Abolition Act, Samvat 2008, is 2nd October, 1951. The year 1951 is partly proved by Samvat 2007 and partly by Samvat 2008. The date 2.10.51 falls in Samvat 2008.

"KHUDKAST'', as defined in Section 2 (c) of the Act, means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land. A land cultivated with the help of family members including sons has to be accepted as cultivated by owner himself. It is never the intention of law that the owner should exclude his sons from ploughing, tiling or harvesting or carrying out various operations of cultivation of land with him. Cultivation by sons is also cultivation by owner himself, that is the spirit of this law.

The Courts-below appear to have taken the entry of KHUDKAST in favour of the three Plaintiffs as erroneous on the ground that the entry should have been restricted to the words "KHUDKAST" and sons name should not have been introduced. That is not the mistake of the owner Khyali or his sons. If Khyali was alive at that time and his sons were helping him, we have to read the entry of KHUDKAST as ''KHUDKAST with the help of the sons'' and if the entry is to be considered incorrect and to be ignored, then the entire entry including the names of sub-tenants must also be ignored, but, that too would be improper. So the proper interpretation is that the owner, if he was alive, he was cultivating himself with the help of his sons to the extent of half. These entries have continued thereafter for decades and nobody raised any objection about them till the present Defendants raised an objection before the Naib Tahsildar that their names have been totally omitted even in respect of half of the land. It is difficult to interpret the order of Naib Tahsildar as saying that in the entire land the names of Defendants only i.e. Mullu etc. should be recorded and if such interpretation was taken of that order, that too was wrong. In any case, the order was without notice to the present Plaintiffs and must be ignored and has been rightly ignored, but, the effect of ignoring the order has not been implemented by the two courts-below.

Reverting to the entry of Samvat 2007 the Defendants were recorded as Gair Maurusis in the entire survey number in Samvat2007, that is vide Ex.D/8 in the Khasra of that year. Khyali was recorded as the owner. But in Samvat 2008 (Ex.D7), in which year 2.10.51 fell, land is recorded KHUDKAST for 1/2 and Defendants as Gair Maurusis of other half. The trial Court found under issue No. 1 that Plaintiff''s father had cleared the Banjar in this land and made it cultivable. Still on the basis of entries of Samvat 2007 it was held that the land was cultivated by Defendants. These are contradictory findings.

Section 4 of the Zamindari Abolition Act is in the following terms-

(1) Save as otherwise provided in this Act when the notification u/s 3 in respect of any area has been published in the Gazette, then notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, the consequences as hereinafter set forth shall, from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensue, namely -

(a) all rights, title and interest of the proprietor in such area, including land (cultivable, barren or Bir), forest, trees, fisheries, wells (other than private wells), tanks, ponds, water channels, ferries, pathways, village sites, hats and bazars and mela-grounds and in all sub-soil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State free from all encumbrances;

(b) all grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall, whether liable to resumption or not, determine;

(c) all rents and cesses in respect of any holding in the property so vesting for any period after the date of vesting which, but for such vesting would have been payable to the properietor, shall vest in the State and be payable to the Government and any payment made in contravention of this clause shall not be a valid discharge of the person liable to pay the same; Explanation -The word "Holding" shall for the purpose of this clause be deemed to include also land given, on behalf of the proprietor, to any person on rent for any purpose other than cultivation;

(d) all arrears of revenue, cesses or other dues in respect of any property so vesting and due by the proprietor for any period prior to the date of vesting shall continue to be recoverable from such proprietor and may, without prejudice to any other mode of recovery, be realised by deducting the amount from the compensation money payable to such proprietor under Chapter V;

(e) the interest of the proprietor so acquired shall not be liable to attachment or sate in execution of any decree or other process of any court, civil or revenue, and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of Section 73 of the Transfer of Property Act, 1882, cease to be in force;

(f) every mortgage with possession existing on the property so vesting or part thereof on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such property or part thereof be deemed without prejudice to the rights of the State u/s 3, to have been substituted by a simple mortgage.

(2) Notwithstanding anything contained in Sub-section (i) the proprietor shall continue to remain in possession of his Khudkasht land, so recorded in the annual village papers before the date of vesting.

Similarly, u/s 41 of the Act the rights of various types of the cultivators including Gair Maurusi were converted to those of a tenant of the State. While ''proprietor'' in respect of holding of his Khudkasht or sir were also to become tenant of State. This provision is in the following terms:

When the proprietory rights in any village, Muhal, land, chak or block are vested in the State u/s 3 of this Act, every Sakitulmilkiyat, Pacca Maurusi, Mamuli Maurusi, Gair Maurusi tenant of such village, Muhal, Land, chak or block who was in possession of any holding shall, from the date of vesting, be deemed to be a tenant of the Government and the proprietor shall also likewise, in respect of the holding of his Khudkasht or sir, be deemed to be the tenant of the Government from the date of vesting and all provisions of Part II of Madhya Bharat Revenue and Tenancy Act, Samvat 2007, shall, subject to other provisions of this Act, apply to such village, Muhal, land, chak or block and similar provisions of Qanoon Mal, Gwalior State Samvat 1983; and of other laws shall cease to apply:

Provided that all cases pending before any revenue Court at the time of commencement of this Act shall be decided according to the provisions of Acts and laws heretofore in force.

So the relevant date was 2.10.1951 when it was to be considered as to who was in possession, whether property was Khudkhast or whether others were in possession as sub-tenant and of how much land, if so. Courts-below have not accepted the revenue record entries in favour of Plaintiffs. They have preferred the testimony of defence witnesses without any cogent reason. That was erroneous. There is no legal reason to ignore the entries of Samvat 2008. If Khyali Ram broke the Banjar, why he could not have continued to cultivate half the land, with the help of his sons. There is no answer to it. The 1st appellate Court took presumption of correctness to entries of Samvat 2007 u/s 117 M.P. Land Revenue Code, but, that presumption was not raised about entries of Samvat 2008 which continued for decades thereafter. The reasons given for ignoring this entry has already been discussed to be erroneous and legally unsound, on the facts of the case. Section 117 of the Code is in following terms:

Presumption as to entries in land records -All entries made under this Chapter in the land records shall be presumed to be correct until the contrary is proved.

Entries in Khasra Panchshala are covered by terms laid down in this provision. While interpreting the entries in the revenue record the Court should not proceed with notion that the entry must be wrong if there is a change in a particular year from the previous year. The Courts cannot jump to the conclusion that merely because there is a change in entry from the previous year the new entry is suspicious. Entries in the revenue record are made by revenue officers in discharge of their official duties and unless material has come on record that the entries were changed for any extraneous reason or there can be no possibility for the change, of provision of utility or ownership, then only the new entries may be viewed with suspicious eye otherwise not. Particularly when the new entries had continued for the decades thereafter the presumption of correctness to those entries gets greater stamp of truth.

No doubt the entries in revenue record which carry presumption u/s 117 of the Code as noted above, can be rebutted by any party, but, for that, specific acceptable evidence has to be brought on record by the party which wants to rebut. The burden of rebuttle is on that party. The Supreme Court has observed in case of Shri Bhimsehwara Swami Varu Temple Vs. Pedapudi Krishna Murthi and Others, , that presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person, does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. The Supreme Court, in view of the entries in that case, observed in para 5 that the long course of entries which were consistently in favour of the Archakas cannot be ignored in preference to the entries in favour of the temple for a solitary year.

A single Bench of this Court also observed in the case cited at 1987 RN 167 titled Harbllas v. Jandel Singh and Ors. that the presumption of khasra entries arising from Section 117 MPLR 1959 is rebuttable, but, when there is no rebuttle evidence, the entries are to be presumed to be correct. The oral evidence in this case, from the side of the Defendants, can be said to be worthless and vague to be having any weight to rebut the entry in the revenue record. The observations of the Supreme Court in the aforesaid case accutally apply. The single entry of Samvat 2007 cannot falsify the subsequent entry which continued from Samvat 2008 for decades. No doubt in Samvat 2007, the note shows as if the possession of the Defendants for five years on the land. But, thereafter the entries was changed and on the relevant date i.e. 2.10.1951 the Plaintiffs were in possession of half and Defendants as Gair Maurusis of the other half. This possession continued for decades and has to be accepted. The appellate Court has assumed as if the entries of Samvat 2007 (Ex.D.7) falsify the entries of Samvat 2008, such a presumption is unwarranted either by reasoning or under law or presumption available u/s 117 of the Code. This Court, therefore, holds that at the relevant date i.e. 2.10.1951 the erst-while owners were in KHUDKASHT of half of the land i.e. Plaintiffs or their predecessors were in possession of half of the land as PACCA tenant, their rights of possession having been protected u/s 4 (2) of the Madhya Bharat Zamindari Abolition Act, while the Defendants were Gair Maurusis of other half of the land. The Defendants have not shown that there is any PATTA of the entire land on behalf of the proprietor Khyali in their favour.

The result of this discussion is that on the date of vesting, that is 2.10.1951, the proprietor was in self cultivation of half share of the land and the Defendants were Gair Maurusis of other half share.

Result of Section 4(1) and (2) of the Act is that the cultivating rights of the proprietor in half of the land was protected and he became Bhumiswami of that land and the Defendants were Gair Maurusis of other half. u/s 41 of the Act both the parties became tenant of State in half share each and their rights repened into those of Bhumiswamis under the provisions of MPLR Code, 1959.

In the result, the appeal partly succeeds. The Appellants Plaintiffs are declared as Bhumiswamis of half of the suit land since the enforcement of the Code. The Defendants are Bhumiswamis of other half share. The Defendants are not entitled to interfere in the possession of the Plaintiffs to the extent of half of share, but, can continue their possession to the extent of half share. The judgments of both the Courts-below are set aside and the decree accordingly passed. The parties are left to bear their own costs.