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Judgment
Mr. T.P. Sharma, J.—By this second appeal u/s 100 of the CPC the appellant has challenged legality and propriety of the judgment & decree dated 11.10.1995 passed by the Third Additional Judge to the Court of District Judge, Bilaspur, in Civil Appeal No. 27-A/93, affirming the judgment & decree of dismissal of suit dated 29.7.93 passed by the Additional Civil Judge to the Court of First Civil Judge Class-I, Bilaspur, in Civil Suit No. 128-A/92, whereby suit for declaration and permanent injunction relating to tank filed on behalf of the plaintiff has been dismissed.
The present second appeal has been admitted for consideration on 12.7.96 on the following substantial question of law:-Whether under the facts and in the circumstances of the case the appellant in whose favour the tank was settled shall continue to be the owner of the property or whether under the provisions of section 251 the property would merge in the State ?
As per pleadings of present appellant/plaintiff Khemlal, father Tikaram was ex-proprietor of village Bahatarai where the tank in dispute bearing khasra No. 22 with embankments bearing khasra No. 21 & 23 was situate. After coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (for short `the Act, 1950''), proprietorship came to an end. As per pleadings of the plaintiff, he was holding the tank which was situate on the land other than the village site and was having right of irrigation. Matter was adjudicated by Nistar Officer, Bilaspur in Revenue Case No. 433-1/A/2/1954-55 and the tank was returned by ex-proprietor Tikaram vide order dated 15.9.55 Ex.P-2. Ownership has also been shown in Nistar Patrak of 1956 vide Ex.P-4 and other documents. Vide order dated 5.10.1966 the Sub Divisional Officer, Bilaspur in Revenue Case No. 104-A/71/63-64 in the light of order of the compensation officer dated 14.11.52 u/s 5(f) of the Act, the tank was not vested with the State Government. Nistar Patrak reveals that villagers are having nistar right of fetching water for drinking and for bath. Dispute arose at the instance of Gram Panchayat Bahatarai. Thereafter suit was filed on behalf of the present appellant/plaintiff. After providing opportunity of hearing, the trial Court has dismissed the suit, which has been affirmed by the lower appellate Court on the ground that the tank has been vested in State in accordance with Section 251 of the C.G. Land Revenue Code, 1959 (for short `Code'').
I have heard learned counsel for the parties, perused the judgment and decree impugned, judgment & decree of the trial Court and records of the Courts below.
Learned counsel for the appellant submits that as per order dated 5.10.1966 passed by the Sub Divisional Officer, Bilaspur in Revenue Case No. 104-A/71/63-64 in the light of order of compensation officer dated 14.11.52 passed in terms of Section 5(f) of the Act, the tank has not been vested in the State because it was earlier saved by ex-proprietor u/s 5(f) of the Act. Learned counsel further submits that at the time of coming into force of the CG. Land Revenue, 1959, the tank was not available for vesting u/s 251 of the Code, even it has not been vested in the State u/s 251 of the Code. Specific order has been passed by the Sub Divisional Officer, Bilaspur on 5.10.1966 which has not been challenged by any of the party and has reached into finality.
Learned counsel for the appellant placed reliance in the matter of Sub-Divisional Officer, Mandla and others v. Parma Gond and another reported in 1969 RN 246 in which the Supreme Court has held that tank settled u/s 5(g) of the Act with ex-proprietor by Nistar Officer cannot be vested in the State u/s 251 of the Code.
On the other hand, learned Panel Lawyer for respondent No. 2 opposes the appeal and submits that Section 251 of the Code is unambiguous and clear and is sufficient to establish the fact that all tanks situated on unoccupied land or before the date of coming into force of the Act, shall be vested absolutely in the State Government w.e.f. 6th April, 1959.
As per documentary evidence, specially Ex.P/3, the tank has been settled in favour of ex-proprietor u/s 5(f) of the Act which reads as under:-
Certain proprieties to continue in possession of proprietor or other person.-Subject to the provisions in-
(a) x x x x
(b) x x x x
(c) x x x x
(d) x x x x
(e) x x x x
(f) all tanks, belonging to or held by the outgoing proprietor which are situate on land other than village site or occupied land and in which no person other than such proprietor has any right of irrigation, shall belong to or be held by such proprietor;
(g) x x x x
(h) x x x x
As per Section 251 of the Code, tanks situate on unoccupied land on or before the date of coming into force of the Act, providing for the abolition of the rights of intermediaries in the area concerned and over which members of the village community were, immediately before such date, exercising rights of irrigation or nistar, shall if not already vested in the State Government, vest absolutely in the State Government with effect from the 6th April, 1959, but on the date of coming into force of the Code, aforesaid tank was not available for vesting in the State and it has already been settled in the name of ex-proprietor Tikaram in terms of Section 5(f) of the Act with rights of the villages of fetching water for drinking and for bath.
As held by the Supreme Court in the matter of Parma Gond (supra), tank settled in the name of ex-proprietor in terms of Section 5(f) of the Act was not available for vesting in the State u/s 251 of the Code.
Consequently, substantial question of law formulated for the decision of this appeal is decided as positive and held that it cannot be merged in the State u/s 251 of the Code. On the basis of aforesaid finding on substantial question of law, the appeal deserves to be allowed and is hereby allowed, judgment & decree of the lower appellate Court and judgment & decree of the trial Court are hereby set aside and suit is decreed on following terms:-
(i) The appellant is declared owner of the tank with embankments bearing khasra Nos.21 and 23 and the respondents are restrained from interference except fetching of water from the tank for drinking and bath including ancillary use.
(ii) Parties shall bear their own cost.
(iii) Advocate fees, if certified, as per schedule or to the extent certified, whichever is less.
(iv) Decree be drawn accordingly.