Padma Bai & Others vs State Of Madhya Pradesh & Others

The appellants/plaintiffs have filed the present appeal being aggrieved by the order dated 07.07.2000 by which the Civil Suit has been dismissed as not

maintainable.

The plaintiffs filed the suit against the defendants seeking relief of declaration and permanent injunction. According to the plaintiffs, the lands

described in para 1 & 4 of the plaint were given to their ancestors in the year 1906 by the then Jamindar/proprietor as “Krushakâ€. According to

the plaintiffs, as per the prevailing laws, the status of the ancestors of plaintiffs was of “Gair Dakhildar†and they used to cultivate the land. Out

of entire suit land, certain lands were given for establishment of cotton ginning factory. But the remaining land continued in their possession as the

agricultural land.

After abolition of Zamindari System under the Madhya Pradesh Zamindari Abolition Act, 1951m they have become Pakka tenant and thereafter, the

M.P. Land Revenue Code, 1959 (in short, hereinafter referred as “MPLR Codeâ€) came into force and they become the Bhumiswami by virtue of

Section 185. The Collector has registered a Case No.23-A/39/90-91 and passed the order dated 03.03.1992 for their eviction. The Collector on the

basis of report of the revenue had cancelled the lease under Section 182 of the MPLR Code and directed for the eviction of plaintiffs. The aforesaid

Act of the Government gave cause of action to the plaintiffs to file suit for declaration of title of the land and declaration to the effect that the order

dated 03.03.1992 passed by the Collector is not binding on them. The defendants filed the written statement by raising objection about the

maintainability of the suit. According to the defendants, the Collector had passed the order under Section 182 of the MPLR Code, therefore, by virtue

of Section 257 of the MPLR Code, the jurisdiction of civil Court is barred, hence, the suit is not maintainable. On the basis of pleading the trial Court

framed following preliminary issue:-

“D;k ftyk/;{k }kjk e/;izns'k Hkw^&jktL; lafgrk dh /kkjk 182 ds vUrxZr fn;s x;s fu.kZ; ds fo:} nhokuh okn oftZr gSâ€​

The learned Additional District Judge, vide order dated 07.07.2000 has dismissed the suit as not maintainable by all implications of Section 257 of the

MPLR Code, hence, the present first appeal before this Court.

Learned counsel or the appellants/plaintiffs submitted that plaintiffs filed the suit for declaration of title for which the civil Court is having exclusive

jurisdiction to give such declaration. Learned Additional District Judge has wrongly dismissed the suit as not maintainable. In support of his contention

he has placed reliance over the judgement of the Apex Court passed in the case of Ramkanya Bai & Another Vs. Jagdish & Others, reported in

2011(4) MPLJ 298, The State of Madhya Pradesh & Others Vs. Krishna Rao Shinde & Others, reported in 1991 (1) MPJR (SC) 108, Rohini Prasad

& Others Vs. Kastruchand & Others, reported in AIR 2000 SC 1283 and the order passed by the full bench of this Court in case of Ramgopal

Kanhaiyalal Vs. Chetu Batte, reported in AIR 1976 MP 160.

Shri Amit Singh Sisodia, learned GA for the respondents/State submitted that the learned Additional District Judge has rightly dismissed the suit as the

suit is specifically barred under Section 257 of the MPLR Code. The plaintiffs ought to have filed an appeal under Section 44 of the MPLR Code

against the order of Collector.

The plaintiffs filed the suit for declaration of title on the basis of their long uninterrupted possession over the land. According to the plaintiff, the suit

land was given to their ancestors by the Zamindar on the same part of the land was given for establishment of cotton ginning factory and they

continued into the possession as Krushak and their names were recorded as Gair Dakhil Krushak, therefore, by virtue of Section 2(e) of the Madhya

Pradesh Zamindari Abolition Act, 1951 they had acquired the status of Pakka Tenant under Section 37 & 38 of the Madhya Pradesh Zamindari

Abolition Act, 1951. Thereafter, by virtue of Section 157 & 158 of the MPLR Code they have acquired the title of Bhumiswami, therefore, their suit is

based on the title. The full Bench of this Court in case of Ramgopal Kanhaiyalal (supra) has held as under

“It must be remembered that a Bhumiswami has a title though he is not the ""Swami"" of the ""Bhumi"" which he holds, in the sense of absolute

ownership, because as declared in Section 257 of the Revenue Code, ownership of land vests in the State Government, yet, he is a Bhumiswami. He

is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable,

and, he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by

legislation.

Under the general law, a suit for possession based on title can be instituted in the Civil Court within 12 years from the date of dispossession. The

principle that possession must follow title has received greater weight and sanctity when the distinction between the scope and effect of Article 142

and those of Article 144 of the Limitation Act, 1908, has been watered down and simpler provisions have been substituted in Articles 64 and 65 of the

Limitation Act of 1963. It will be anomalous to read Section 250 as providing for a suit for possession based on title, which is to be instituted within

two years only. It will entail a fantastic result that if a suit is not brought within two years under Section 250 , the Bhumiswami's right will be

extinguished, because, by virtue of Section 26 of the Limitation Act, if a suit for possession is not instituted within the period of limitation prescribed

therefore, not only the remedy is barred but the right is also extinguished. Section 26 is an exception to the general rule that limitation bars the remedy

but does not extinguish the right.

Even under the Delhi Reforms Act (supra), which was for consideration before their Lordships in Hatti v. Sunder Singh (supra), (AIR 1971 SC 2320)

it is mark-worthy that the question of title has to be referred to the Civil Court and, moreover, there is no period of limitation prescribed. Thus, there is

no deviation from the consistent policy of the law that the question of title relating to immovable property must be determined by the Civil Court. We

do not see any deviation from that policy in any of the provisions of the M. P. Land Revenue Code either. On the other hand, Sections 111 and 178

are in concordance with that policy.

We, therefore, hold that a Bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250 of the Code. It is open to him to

take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and

possession. Even if there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to

the disputed land. We further hold that Nathu v. Dilbande Hussain, AIR 1967 Madh Pra 14 = 1964 Jab LJ 707 was correctly decided. The Civil Court

can take cognizance of a suit. This is our answer to the questions referred to us.â€​

This Court in case of Omprakash Vs. Ashok Kumar (supra) has held as under:

“10. True, in Full Bench decision Ramgopal (supra), the civil suit for declaration and possession was filed but in the same decision it has also been

categorically held in para 10 by Full Bench of this Court that determination of the question of title is the province of the 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. Further it has been held that

although a speedy remedy is provided under Section 250 of the Code to a Bhumiswami but he is not bound to avail that remedy and it is open to him to

take recourse to the summary remedy under Section 250 or even without it straightway the plaintiff can bring a suit in the Civil Court for declaration

of his title and possession. Further it has been held in para 17 that even if there has been a decision under Section 250 by a revenue Court, the party

aggrieved may institute a civil suit to establish his title to the disputed land. Nowhere in this decision it has been held that simplicitor suit for possession

is not maintainable if it has been filed on the basis of title and, therefore, according to me, learned counsel for the plaintiff/respondent no.1 was right in

his submission that the M.A. 1061/2003 Full Bench decision of this Court in Ramgopal (supra) does not go against the plaintiff rather it strengthen the

case of plaintiff. I may further add that the Full Bench decision Ramgopal (supra) has been affirmed and approved by the Apex Court twice. Firstly, in

Rohini Prasad and others Vs. Kasturchand and another (2000) 3 SCC 668 and secondly in Hukum Singh (Dead) by LRs and others Vs. State of M.P.

(2005) 10 SCC 124. In these two decisions also it has been held that the jurisdiction of civil Court is not barred under Section 257 in respect to

question of title. In the case of Rohini Prasad (supra), a simplicitor suit for possession on the basis of title was filed which was decreed by High Court

in Second Appeal although the mesne profits were not directed to be paid. The Supreme Court has categorically held that the suit for possession on

the basis of title is not barred under Section 257 of the Code. The decision of Rohini Prasad (supra) was also taken into account in later decision by

the Supreme Court in Hukum Singh (supra) and in para 8 of the said decision again the Supreme Court affirmed the Full Bench decision of this Court

Ramgopal (supra). Hence, I am of the view that learned First Appellate Court rightly held that civil suit is maintainable and the findings recorded by

learned Trial Court while deciding issue no.5 holding that civil suit was not maintainable was rightly set aside. â€​

That Zamindari Abolition Act was notified in the Gazette on 25th June, 1951 & in which the “Pakka Tenantâ€​ is defined in Section 2(e) as under :-

“2(e) “Pacca tenant†means Pacca tenant as defined in clause (vii) of Section 54 of the United State of Gwalior, Indore and Malwa (Madhya

Bharat) Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007†Similarly, Section 54 (vii) of the United State of

Gwalior, Indore and Malwa (Madhya Bharat) Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 defines Pacca

tenant as under :-

“(vii) Pakka tenant-means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a

“Ryot Pattedarâ€​, “Mamuli Maurusiâ€​, “Gair Maurusiâ€​ and “Pukhta Maurusiâ€​ when this Act comes into force or who may in future be

duly recognized as such by a competent authority.â€​

Section 3(1) of the Zamindari Abolition Act provides as under :-

“3. Vesting of proprietary rights in the State.-(1) Save as otherwise provided in this Act and subject to the provisions of Section 8, on and from a

date to be specified by a notification by the Government in this behalf (hereinafter referred to as the date of vesting) all proprietary rights in a village,

muhal, land, chak or block in Madhya Bharat vesting in a proprietor of such village, muhal, land, chak or block as the case may be, or in a person

having interest in such proprietary right through the proprietor shall pass from such proprietor of such other person, to and vest in the State free of all

encumbrances.â€​

Similarly, Section 4(1)(a) of the Zamindari Abolition Act reads as under :-

“4.Consequence by the vesting of an estate in the State.-(1) Save as otherwise provided in this Act when the notification under Section 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.â€​

Section 37 and 38 of the Zamindari Abolition Act reads as under :-

“37. Conferral of pacca tenancy rights on proprietor.- (1) Every proprietor who is divested of his proprietary rights in an estate, chak, block or

Muhal shall, with effect from this date of vesting, be a pacca tenant of the Khud-kasht land in his possession and the land revenue payable by him

shall be determined at the rate fixed by the current settlement for the same kind of land.

(2) If there are more persons than one having interest in land held as Khud-kasht immediately before the date of vesting, any such person may apply

for a partition of his share in the land to the Tahsildar who shall proceed according to the provisions of Section 69 of Madhya Bharat Revenue

Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 and in case of partition shall rateably apportion the assessed rent:

Provided that no such partition shall be made if any question of title is raised until such question has been decided by a competent Court.

Explanation.- For the purposes of the aforesaid proviso, the claim by any proprietor that he holds any land in exclusive ownership or that he had

acquired any Khud-kasht land exclusively for himself shall be deemed to be a question of title.

(3) If a Tahsildar is of opinion that for preventing multiplicity of proceedings, or for any other reason it would be just and convenient to join as parties

all persons who held shares in the estate or Muhal before the date of vesting he may order all such persons to be joined as parties.

Conferral of pacca tenancy right on tenant and Sub-tenants.-(1) Subject to the provisions of this section, every tenant of a proprietor shall be

deemed to be a pacca tenant of the land comprised in his holding from the date of vesting. (2) Every sub-tenant or tenant of a subtenant who deposits

with the Tahsildar within the period specified in sub-section (3) and (4) the following amount to be paid to proprietor or tenant or sub-tenant as his

case may be, shall be deemed to be a pacca tenant of the land comprised in his holding. Till amount is deposited, his former status shall continue. The

right of becoming a pacca tenant by depositing money shall firstly be that of the tenant of the sub-tenant, if any, and if he fails to deposit money shall

be that of the subtenant.

In case of Gordhan Das Vs. Pirkhan & Others, reported in (2002) SCC 686 a civil suit was filed seeking declaration that the plaintiff became a Pakka

Tenant and continued possession by cultivating the suit land and application was filed under Section 38 of the Madhya Pradesh Zamindari Abolition

Act, 1951 seeking declaration as Pakka Tenant. The second appeal was filed before the High Court and thereafter, the SLP was filed because the

suit was maintainable in respect of seeking all declaration of title by virtue of law. Relevant portion of the aforesaid judgement is reproduced below:

“There was neither any evidence nor any averment made by the plaintiff Allarakh that he was in possession of land any time by cultivating it. On

the other hand it was clearly established that Gulkhan was in possession of the land by cultivating it 4 to 5 years prior to the coming into force of the

Zamindari Abolition Act and by virtue of Section 38 of the Zamindari Abolition Act acquired the status of Pacca tenant as he was a tenant under

Naharkhan before coming into force of the Zamindari Abolition Act. The Revenue Authorities also allowed the petition filed by Gulkhan under Section

38 on contest and on appreciation of evidence adduced by the parties.â€​

Therefore, learned trial Court has wrongly dismissed the suit as not maintainable when the plaintiff as specific sought relief of declaration of a title by

virtue of law, hence, the impugned order is set aside and matter is remitted back to the trial Court to decide afresh on its merits. Record of the civil

suit be also sent back to the concerned civil Court.

Present appeal is allowed.

No order as to costs.