Gopilal through L.Rs. vs Jeetram and Others

K.K. Lahoti, J.

Plaintiff who was successful in the trial Court but lost in appeal has filed this second appeal. This appeal was admitted on 28.11.1987 on following substantial questions of law:

(1) Whether the lower appellate Court is right in holding that the suit is barred by principle of res judicata ?"

(2) Whether, the lower appellate Court is right in holding that the suit is barred by limitation ?"

(3) Whether a decree for refund of consideration could be passed in view of the facts and circumstances of the case ?

The facts, in short to decide this appeal are that appellant filed a suit for declaration of title and possession of land on the ground that father of plaintiff Narbada Prasad Trivedi purchased an agricultural land bearing survey no. 462/5 area 2 acres of village Amarmau, Tahsil Banda, District Sagar for a consideration of Rs. 1,000/- from defendants Nos. 2, 3 and 4, namely Natthoo, Gaya Prasad and Smt. Bitola. After purchase, plaintiff got possession and title of the land. The defendant no. l Mankhushi without any right and title in the month of ''Asadh'' (June-July) year 1974 removed plaintiffs sown crop of rice and sown ''Urad'' and thus trespassed on the land. The defendant no. l inspite of several request and notice has not removed his encroachment, so the suit was filed. The defendant no. l contested the suit on the ground that defendants nos. 2 to 4 were not the owners of the suit land, nor they were having any right or title to sell the land to plaintiff. Any sale in favour of plaintiff or his father is without any right and title. The aforesaid sale will not bind the defendant no. l. Defendants nos. 2 to 4 were not in possession of the land, nor delivered possession to the father of plaintiff. In fact the defendant no. l is in possession of the land since long as owner. In additional pleas it is stated, that the suit land survey no. 462/5 area 2 acres belong to the ownership of defendant no. l. He is in possession of the land since the time of his father viz. nearabout 35 years. This land is included in the Khatoni alongwith other lands and defendant is paying land revenue of this land along with other lands. Previously the suit land was numbered as survey no. 462/2 which is now converted into survey no. 462/5. The defendants nos. 2 to 5 were not the owners of the land, nor they were in possession. They have also not handed over possession of the land to the plaintiffs father. On the land the defendant no. l and his father have planted mango trees which are now fruiting. Infact, Shivprasad the father of defendants nos. 2 and 3 and husband of defendant no. 4, sold the land before 35 years for a consideration of Rs. 50/- to defendant no. l and his father. Since then the defendant no. l is in possession as owner of the land. In the revenue records also Shivprasad got entered the name of defendant no. l. Though this was objected by the heirs of Shivprasad by raising objection before the Tahsildar, which was rejected. The defendant no. l is paying land revenue and irrigation tax. The defendant no. l deposed against the plaintiff in one civil suit. Annoyed with this the suit has been filed against the defendant no. l. The father of plaintiff had received the land revenue from defendant in the capacity of Patel and thereafter the plaintiff has got executed sale deed just to harass the defendant no. l. The father of plaintiff also filed a suit for possession in respect of same land on same cause of action on 02.08.1975 before the Civil Judge Class-II, Banda which was registered as Civil Suit No. 33-A/74. This suit, after enquiry was returned to the father of plaintiff to file before competent Court. The order is binding between the parties and no fresh suit can be filed by the plaintiff in respect of same cause of action and is barred by principle of res judicata.

The trial Court framed seven issues in the case and after hearing, recorded following findings:

(1) The suit is not barred by principle of res judicata.

(2) The suit is maintainable in absence of relief of declaration.

(3) The plaintiff is Bhumiswami of land survey no. 462/5 area 2 acres.

(4) The defendant no. l from the time of his father since last 35 years is not in possession of the land as Bhumiswami.

(5) The defendant no. l has trespassed on the land in the month of ''Asadh'' year 1974.

(6) The defendant no. l is not entitled to receive compensation from the plaintiff.

On aforesaid findings the suit was decreed. Against the judgment and decree passed by trial Court, defendant Mankhushi filed an appeal before the 2nd Additional District Judge, Sagar, During the pendency of appeal Mankhushi died and his legal representatives respondents nos. l to 5 were brought on record. The appellate Court after hearing the parties recorded following findings:

(A) That Shivprasad father of defendants nos. 2 and 3 and husband of defendant no. 4 died before 22 years of filing of suit, near about in the year 1958.

(B) At the time of death, Shivprasad was not recorded as Bhumiswami in the revenue record. His name is not shown even in the revenue record, which has been filed by the parties before the trial Court. The revenue record relates to the year 1954 and onwards. Before the death of Shivprasad this land was included in the Khata of defendant no. l and it was never objected either by Shivprasad or by his heirs, after the death of Shivprasad for a considerable long period.

(C) The plaintiff has not produced any revenue record even prior to 1954-55 showing that Shivprasad was recorded as Bhumiswami over the land.

(D) That, Shivprasad prior to 1954 and thereafter is not recorded as Bhumiswami.

(E) That u/s 117 of M.P. Land Revenue Code, 1959 (hereinafter referred to as ''Code'' for short) there is provision of correction of record, but no such action has been taken by Shivprasad or his heirs.

(F) In the year 1976 for the first time plaintiffs father applied for mutation in Tahsil, but it was rejected on the ground that said land was not recorded in the name of defendants nos. 2 to 4 in revenue records.

(G) That the evidence regarding cultivation of land by Shivprasad during his life time or after his death by Natthoo or his mother is not reliable.

(H) The plaintiff has not examined Himmat Singh.

(I) The plaintiff though stated that he has paid irrigation tax, but has not produced any such receipts. Though he has stated that these receipts are in his possession.

(J) The possession of defendant no. l is continuously recorded in the revenue record since 1963 and it may be presumed that before 1963 he was in possession of the land. This is supported by oral evidence.

(K) The Civil Suit No. 33-A/73 was directed to be returned to the father of plaintiff on 02.08.1975 and no appeal was filed. The said order has attained finality and the present suit is barred by principle of res judicata.

(L) That the theory of plaintiff that he was dispossessed in the year 1973-74 is not correct and in fact defendant no. l is in possession of the land.

(M) That the suit was not filed by the plaintiff or his predecessor within 12 years from the date of dispossession and is barred u/s 64 and 65 of the Evidence Act.

Recording aforesaid findings, the appellate Court reversed the judgment and decree of trial Court and suit of plaintiff was dismissed. Hence this appeal.

Learned counsel for appellants contends that:

(i) Plaintiff purchased the land by registered sale deed and his title is better in comparison to defendant no. l. The defendant no. l has not produced any document of title and merely on the basis of revenue entry he cannot be held to be Bhumiswami of the land.

(ii) There is infirmity in the evidence of defendant about the sale and delivery of possession and such oral evidence cannot be accepted.

(iii) There is no res judicata in the case and appellate Court erred in dismissing the suit of appellant on the principle of res judicata, which in fact does not applies in the present case.

(iv) The previous suit was returned to the plaintiff with a direction to file it before he appropriate Court. Thereafter, present suit has been filed, which may be deemed to be in compliance of order passed in previous suit. Apart from this the previous suit was not decided on merits and was returned to file before appropriate Court. This decision will not have an effect of res judicata and the present suit is not barred.

(v) The present suit was filed within four years from the date of purchase and the appellate Court wrongly applied bar of Article 64 and 65 of the Limitation Act. The suit is within time.

(vi) The effect of khasra entry is only presemptive and on the basis of khasra entry no right and title can be decided in favour of defendant no. l.

(vii) On the basis of revenue record the Court below erred in recording a finding that defendant no. l is Bhumiswami which is erroneous finding and may be quashed.

(viii) In this regard he has placed reliance to three judgments of Apex Court:

(a) Nagar Palika, Jind Vs. Jagat Singh, Advocate,

(b) Durga Das Vs. The Collector and others,

(c) M.T.W. Tenzing Namgyal and Others Vs. Motilal Lakhotia and Others,

(ix) Lastly it is contended that the trial Court decreed the suit of appellant, while the appellate Court has dismissed the suit. If it is found that defendants nos. 2, 3 and 4 have alienated the property without any right and title, then plaintiff is entitled for the refund of consideration which was paid to them at the time of execution of sale deed.

Learned counsel for respondents nos. l to 5 supported the order passed by appellate Court. It is contended that lower appellate Court has rightly decided the case on facts and law. Shivprasad was not Bhumiswami of the land at the time of his death. The land was duly recorded in the name of defendant no. l Narbada Prasad in the revenue records. Even at the time of coming into force of the ''Code'' the land was already excluded from the Khata of Shivprasad, during his life time which fact finds place in the Khasra entries Annexure P-6 filed by the plaintiff. In khasra Ex.P-6 of year 1953-54 to 1956-57 disputed land survey no. 462/5 is not recorded in the name of Shivprasad, which shows that at the relevant time the land was excluded from the Khata of Shivprasad. From the perusal of revenue record Annexure D-3 of year 1963-64 the land was duly recorded in the name of defendant Mankhushi. Other entry Annexure D-4 also shows that in the year 1969-70 the land was recorded in the name of Mankhushi. Similar is the position in the khasra entry of the year 1963-67 Annexure P-5. In the year 1973-74 the disputed land Survey no. 462/5 was in the Khata of defendant Mankhushi, which is apparent from the perusal of Annexure D-6. That land was purchased by Mankhushi from Shivprasad by oral sale in the year 1943 for a consideration of Rs. 50/-. Shivprasad after receiving consideration of Rs. 50/- handed over the possession of the land to defendant Narbada Prasad. No document was executed at the time of sale. The defendant is in continuous possession since 1943 from the date of sale. From the perusal of Khasra entry Annexure P-5 it is apparent that on coming into force of the ''Code'', the land was not recorded in Bhumiswami rights of Shivprasad. No khasra entry has been produced by the pldntiff in respect of survey no. 462/5 at the time of coming into the force of the ''Code''. u/s 158 of the Code, the land which was recorded in the revenue paper on the enforcement of''Code'' was recorded as Bhumiswami land. The land which was not recorded in the name of Shivprasad on 02.10.1950 was not recorded in his account as Bhumiswami. This fact shows that Shivprasad was not the owner or tenure holder at the time of coming into force of the ''Code''. This fact supports the contention of defendant that he was tenure holder at the time of coming into force of the ''Code'' and land was rightly recorded in his name as Bhumiswami. Shivprasad never objected that his name was deleted from the revenue records. Khasra entry of the year 1954-55 Annexure P-6 is relevant in the present case, which shows that since 1954-55 the land survey no. 462/5 was not recorded in the name of Shivprasad. The defendant is in possession of the land since 1943, after purchase and the present suit has been filed in the year 1976, which is barred by limitation. That Shivprasad or his heirs or plaintiff took no steps within a period of 12 years from the date of sale, viz 1943 to take possession of the land. Appellate Court has rightly held that the suit is barred by limitation under Article 64 and 65 of the Limitation Act. The plaintiff filed a suit against defendant Mankhushi and others, before the Civil Judge Class-II, Banda which was contested by the defendant and on 02.08.1975 the suit was returned back to the plaintiff to file before the competent Court, but the said suit was not filed. The previous suit was for possession of land and if the plaintiff has not filed any other suit, the present suit is barred by principle of res judicata.

So far as the khasra entries are concerned these are having presumptive value. u/s 158 of the ''Code'' relevant entry as on 02.10.1959 relating to Shivprasad under whom the plaintiff is claiming right is not on record. Thereafter, possession of defendant Mankhushi is continuously recorded in the revenue record. Until and unless those entries are rebutted their presumptive value has to be given due weight. All the entries supports the contention of defendant, who is duly recorded as Bhumiswami in the revenue records. The aforesaid entries will not loose their presumptive value, which has been recognised u/s 117 of the ''Code''. Contending aforesaid, learned counsel for respondents submits that this appeal has no merit and may be dismissed.

To consider the rival contention of the parties, firstly the question of res judicata may be considered. The appellate Court has recorded finding that the present suit is barred by principle of res judicata. Though it is not in dispute that the previous suit was filed on the same cause of action and the parties of both the suits are same, the Court found that the valuation of suit is Rs. 6000/- and it is not within its pecuniary jurisdiction and returned the plaint to the plaintiff to file before competent Court of pecuniary jurisdiction. This order was passed under Rule 10 of order 7 C.P.C. There was no trial in the suit and the case was not heard and finally decided by the Court. Only the plaint was returned to file to the Court, in which the suit should have been instituted. The order was passed on 02.08.1975 and the plaint was returned. Thereafter, though the same plaint was not presented by the plaintiff but another suit has been filed on the same cause of action. This suit has been filed on 06.12.1976 for declaration and possession The cause of action as stated in the plaint arose in the month of ''Asadh'' year 1974 and as per pleadings it is within time. Even if the plaintiff has not filed the same plaint, which was directed to be returned as per order Annexure D-1, even then the order of previous suit will not have an effect of res judicata in the present suit, nor filing of fresh suit after the order Annexure D-l will cause any estoppel to the plaintiff. Because previous suit was not heard and decided. No evidence was recorded, nor there is any finding on merits of the case. Return of plaint under Order 7 Rule 10 will not amount as res judicata. The finding in respect of bar of res judicasta by the appellate Court is not sustainable under law and is hereby set aside.

Now another question, may be seen, whether the plaintiff was successful in establishing his title on the disputed land. It is not in dispute that the suit land belonged to Shivprasad. The plaintiff is claiming through the heirs of Shivprasad, while defendant is claiming transfer of land by Shivprasad. The defendant''s case is that the land was transferred somewhere in the year 1943, while the plaintiff has purchased the land on 27.07.1973 from defendants nos. 2, 3 and 4. It is settled law that when the plaintiff claims declaration of title on the basis of derivative title he has to prove the title of his predecessor on the day when the property was purchased by the plaintiff. In this case the property was purchased by the plaintiff by registered sale deed dt. 27.07.1973. The plaintiff has to prove that the vendors of the sale deed were having transferable right in the land on the date of transfer. From the perusal of revenue record, it appears that the disputed land survey no. 462/5 of village Amarmau was not recorded in the revenue record, either in the name of Shivprasad or in the name of defendants nos. 2, 3 and 4. Except this land, other lands are recorded in the revenue record. Entry in existence of 02.10.1959 is relevant in this case as on the aforesaid date, the ''Code'' came into force. Section 158 of the ''Code'' confers Bhumiswami rights to certain categories of persons. For ready reference section 158 of the ''Code'' may be quoted, which reads as under:

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 as Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:

(a) every person in respect of land held by him in the Mahakoshal region in Bhumiswami or Bhumidhari rights in accordance with the provisions of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955);

(b) every person in respect of land held by him in the Madhya Bharat region as a Pakka tenant or as a Muafidar, Inamdar or Concessional holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950);

(c) every person in respect of land held by him in the Bhopal region as an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932);

(d) (i) every person in respect of land held by him in the Vindhya Pradesh region as a pachapan paintalis tenant, pattedar tenant, a grove holder or as a holder of tank as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955);

(ii) every person in respect of land (other than land which is a grover or tank or which has been acquired or which is required for Government or public purposes) held by him in the Vindhya Pradesh region as a gair haqdar tenant and in respect of which he is entitled to a patta in accordance with the provisions of sub-section (4) of section 57 of the Rewa State Land Revenue and Tenancy Code, 1935.

(iii) every person in respect of land held by him as a tenant in the Vindhya Pradesh region and in respect of which he is entitled to a patta in accordance with the provisions of sub-sections (2) and (3) of section 151 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955), but has omitted to obtain such patta before the coming into force of this Code,

(e) every person in respect of land held by him in Sironj region as a Khatedar tenant or as a grove holder as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955).

Clause (d) of sub-section (1) of section 158 relates to land held by a person in Vindhya Pradesh region (the disputed land is situated at village Amarmou, which was in Vindhya Pradesh is not in dispute). As per the aforesaid provision it is necessary for the plaintiff to prove that the vendor of plaintiff was either pachapan paintalis tenant, pattedar tenant or a grove holder as defined in Vindhya Pradesh Land Revenue and Tenancy Act, 1953. Or he has to prove that the land held by the predecessor of plaintiff in Vindhya Pradesh region as a gair haqdar tenant and in respect of which he is entitled to a patta in accordance with the provisions of sub-section (4) of section 57 of the Rewa State Land Revenue and Tenancy Code, 1935. Or the land held by him as tenant in Vindhya Pradesh region and in respect of which he is entitled to a patta in accordance with the provisions of sub-sections (2) and (3) of section 151 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953, but has omitted to obtain such patta before the coming into force of this Code. In absence of it, it cannot be said that the predecessors of the plaintiff were Bhumiswami on the date when the ''Code'' was enforced. The plaintiff has not pleaded in the plaint in this regard, nor has filed any revenue records showing the status of predecessors of plaintiff, as envisaged under clause (d) of sub-section (1) of section 158 of the ''Code''. In the absence of this, it cannot be held that the predecessors of plaintiff were Bhumiswami within the meaning of section 158 of the ''Code''. Section 165 of the ''Code'' gives right of transfer to a Bhumiswami, but until and unless plaintiff successfully proves that the predecessors of plaintiff were Bhumiswami, till then it cannot be said that the land was duly transferred by Bhumiswami as defined in section 158 of the ''Code''. Even after 2.10.1959, there is no entry in the revenue record showing that the predecessors of plaintiff were recorded at any time in the revenue record. Section 114 of the ''Code'' provides that in addition to the map and Bhoo Adhikar Pustika, there shall be prepared for each village a khasra or field book and such other land records as may be prescribed. Section 114-A provides that it is obligatory upon every Bhumiswami, whose name is entered in the khasra or field book, to maintain a Bhoo Adhikar Avam Rin Pustika in respect of his all holdings in a village which shall be provided to him on payment of such fee as may be prescribed. Under sub-section (2) of section 114-A Bhoo Adhikar Avam Rin Pustika shall be in two parts, namely part I consisting of rights over holding and encumbrances on the holding and part II consisting of rights over holding recovery of land revenue in respect of the holding and encumbrances on the holding and shall contain such of the entries of khasra or field book pertaining to a holding of a Bhumiswami as may be prescribed; particulars in respect of recovery of land revenue, Government loan and non-Government loan in respect of such holding. This provision specifically provides that it is obligatory on the part of Bhumiswami that he shall obtain Bhoo Adhikar and Rin Pustika. But in the present case no such Bhoo Adhikar and Rin Pustika has been produced on record. The plaintiff has not filed any document showing that Shivprasad or the predecessor of the plaintiff were recorded in the revenue record in any manner. Merely by execution of sale deed by defendants nos. 2,3 and 4 no rights can be transferred to the plaintiff until and unless it is proved that they were having any transferable right in the land. In the circumstances, the plaintiff has failed to prove that he has acquired any right on the basis of sale deed Ex. P-l.

The case of defendant before the trial Court was that defendant is in possession of the land since 1943. This contention finds place from the perusal of revenue record, which has been filed by the plaintiff and defenant in the case. The disputed survey no. 462/5 is recorded in the name of defendant since 1963-64, as is apparent from the perusal of document Ex. P-4 and Ex. D-3. This entry continued thereafter. There is no explanation on the part of plaintiff about the entry of defendant exists in the revenue record. The plaintiff has failed to explain aforesaid, in these circumstances the defendant''s explanation is more probable that in the year 1943 he purchased the land from Shivprasad and his name was duly entered in the revenue record with the consent of Shivprasad. This fact is more probable while considering the circumstances that Shivprasad who died somewhere in 1958 never objected to such entry. Even the defendants nos. 2, 3 and 4 after the death of Shivprasad not objected to the revenue entries. When the land was deleted in the revenue records from the name of Shivprasad and was entered in the name of Mankhushi the natural inference shall be that Shivprasad had not objected to this. If he has not objected to it and permitted the entry to continue in the revenue record, then the case of defendant is more probable that the entry so entered or the revenue record so corrected was with the consent of Shivprasad. Though there is oral evidence that the sale was effected in the year 1943 for Rs. 50/-, but there is no documentary evidence to it and oral evidence of defendants in respect of sale is not so convincing, but the circumstances go in favour of defendants and all the probabilities show that the land was transferred to defendant Mankhushi by Shivprasad, who continued in possession and revenue record was changed accordingly.

In the aforesaid circumstances, the appellate Court has rightly held that the suit land was transferred in favour of Mankhushi by Shivprasad and the suit filed by plaintiff on 06.12.1976 was barred by time.

The last contention of appellants is that they are entitled for refund of sale consideration from defendants nos.2, 3 and 4. From the perusal of plaint no such prayer has been made by the plaintiff in this regard. Sale consideration is Rs. 10007- as per sale deed Ex. P-l. The plaintiff has not prayed any such relief in the plaint, nor has paid the Court fee. Merely the suit which was decreed has been reversed in the appeal, will not be a ground to allow such relief in second appeal to the plaintiff. In these circumstances, the last prayer of appellants cannot be allowed.

So far as the case laws relied upon by the learned counsel for appellants that the revenue entries did not confer any title to a person in whose name the entry is effected, in this regard, law is well settled. But the facts of present case are entirely different. The plaintiff has failed to prove his title in the land and the suit is barred by time.

In the aforesaid circumstances, this appeal has no merit and is dismissed, with no order as to costs.