Nisha vs State Of Chhattisgarh

Heard on admission and formulation of substantial question of law in this second appeal preferred by the plaintiffs.

By the impugned judgment, the first appellate Court has dismissed the appeal preferred by the plaintiffs affirming the judgment and decree of the trial Court dismissed the suit.

Mr. Nitesh Jain, learned counsel appearing for the appellants herein / plaintiffs, would submit that both the Courts below have erred in holding that the appellants herein / plaintiffs are not Bhumiswami of the land by recording a finding which is perverse to the record, it must have been held by the trial Court that the plaintiffs' forefathers were recorded as Bhumiswami of the land in Ex.P-1 and by this time, the appellants have become Bhumiswami of the suit land and therefore decree for declaration of title could have been granted by the trial Court. He would further submit that the appeal involves substantial question of law in view of the law laid down by the Supreme Court in the matters of SK. Bhikan, S/o SK. Noor Mohd. v. Mehamoodabee, W/o SK. Afzal and others (2017) 5 SCC 127 and Rajendra Lalitkumar Agrawal v. Ratna Ashok Muranjan and another (2019) 3 SCC 378.

The plaintiffs brought a suit that Government land being Khasra No.1954/1, area 5 acres, was the ancestral property of the plaintiffs duly recorded in the name of forefather of the plaintiffs Rajaram vide Ex.P-1 and without giving opportunity of hearing, the nature of land has been recorded in the revenue record as grass land and in the year 2015, electric tower has been constructed on the suit land by the respondent herein / defendant without obtaining the permission of the appellants herein / plaintiffs and therefore the plaintiffs are entitled for declaration of title. The defendant filed written statement and pleaded that the suit land was recorded as grass land in the year 1929-30 and it is used as gauchaar, pagdandi and gaadi rawan and gauchaar land cannot be converted into other purpose and title cannot be declared.

The trial Court after appreciating oral and documentary evidence available on record and after perusal of Exs.P-1 to P-4 filed by the plaintiffs, dismissed the suit and in appeal preferred by the plaintiffs, the first appellate Court has affirmed the judgment & decree of the trial Court against which this second appeal has been preferred.

The plaintiffs' case is based on Ex.P-1 - misal bandobast of 1929-30 in which, in remarks column, the suit land has been mentioned as gauchaar, pagdandi and charamahi, Dehraja to Mehda gaadi rawan. In column 4 of Ex.P-1, it is mentioned that the suit land bearing Khasra No.1954/1 is mentioned as grassland in 1929-30, though the name of one Rajaram etc., has been recorded,  however, the plaintiffs have failed to establish relationship with Rajaram. However, column 5 of Ex.P-1 does not deal with ownership / possession.  As per Ex.P-2, the suit land is recorded as Government land. Similarly, in Ex.P-3, the  owner's name is recorded as Government and on 32 x 32 sq. kadi the plaintiffs are said to be in possession. As such, both the Courts below have concurrently held that the suit land is Government land and the plaintiffs have no title over the suit land which is a finding of fact based on the evidence available on record.

The Supreme Court in the matter of Rameshbhai Virabhai Chaudhari v. The State of Gujarat and others Civil Appeal No.5135/2021, decided on 6-9-2021

, held that gouchar land can be used only for purposes for which it is permitted to be used. If there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on. It was observed as under: -

"It is trite to say that gouchar land can be used only for purposes for which it is permitted to be used. If there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on. Rehabilitation of persons is really not required in the present case as only three persons are entitled to an alternative site as per rules. There is of course some dispute whether the encroachers have made permanent structures or kuchha construction for keeping cattle but be that as it may, the user cannot be contrary to what is being permitted for gouchar land, which is a grazing land."

Thereafter, the Supreme Court in Rameshbhai Virabhai Chaudhari (supra) issued a direction to the State Government to bring the land in conformity with its use by the State Government taking appropriate action within a maximum period of three months.

As such, in the present also, the land in question i.e. the suit land is gouchar land as indicated in Ex.P-1 and as stated by the defendant witness No.1 Shashi Kumar Chaudhari.

Not only this, the Supreme Court in a recent decision in the matter of Jitendra Singh v. The State of Madhya Pradesh and others Special Leave Petition (C) No.13146/2021, decided on 6-9-2021 has held that mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. It has been observed as under: -

"5. ... Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made."

In the considered opinion of this Court, the finding of the two Courts below holding that the suit land is gouchar land and the plaintiffs have no right, title and interest over it, is based on the evidence available on record, it is neither perverse nor contrary to the record. In that view of the matter, the decisions cited by learned counsel for the appellants herein / plaintiffs in SK. Bhikan, S/o SK. Noor Mohd. (supra) and Rajendra Lalitkumar Agrawal (supra), are inapplicable and distinguishable to the facts of the present case.

In view of the aforesaid finding, I do not find any perversity or illegality in the finding of the two Courts below much less substantial question of law. The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side, leaving the parties to bear their own cost(s).