Shubarati vs The State of M.P. and Others

S.K. Dubey, J.

The Plaintiff/Appellant has preferred this second appeal against the judgment and decree passed on 15th March 1974 by Additional District Judge, Shivpuri, in Civil Appeal No. 41-A/1972, preferred against the judgment and decree dated 11-8-1972, passed by Civil Judge, Class II, Karera, whereby the suit of the Plaintiff for declaration wad dismissed.

The material facts leading to this appeal are. The suit land bearing Survey No. 205/247, Area 13 bigha 1 biswa situated in Village Urwaha, Pargana Karera, District Shivpuri, was a Zamindari land of Zamindar Riyaz Ahmad; the suit land was given on lease to the Plaintiff''s father Ramjani by the then Zamindar Riyaz Ahmad in Samvat 1980 Ramjani planted fruit bearing trees of mango, ''Khinni'' and Jamun'' (rose-apple) and continued to cultivate the land as a tenant. In Samvat 1992 (13-3-1936) a Patta (Ext. P-1) was executed by the Zamindar in favour of Ramjani, Plaintiff''s father, for the period till the next settlement on the condition that yearly the Thekedar will give 3000 mangoes and half of the product of Khinnis; the mango fruits come lesser in any year, the figure shall be reduced proportionately and the land revenue was fixed at Rs 100/- silver coins yearly. The Plaintiff''s father remained in continuous possession of the suit land after the enforcement of the M. B. Zamindari Abolition Act, Samvat 2008 (Act 13 of 1951) (for short, ''MBZA Act'') on the date of vesting, i. e. 2-10-1951, the Zamindar was not in possession of the suil-land as Khud-Kasht but the Appellant''s father was possessing the land as a tenant, after vesting the land was settled in Samvat 2008 in favour of the Plaintiff''s father in accordance with the provisions of Section 5 (a) of the MBZA Act, and Ramjani continued to deposit land revenue in Tahsil as determined in accordance with S. 5 (f) of the MBZA Act. At the trial the Plaintiff produced Kisani Pavti Book (Exts P-7 to P-10) for Samvat 2011 to Samvat 2024; because of malafide action of the concerned Patwari Plaintiff''s father''s named was not recorded in the Khasra of Samvat 2007 and onwards, in the year 1959 the Plaintiff came to know that the suit land of his possession is being auctioned by the Collector, he objected to the auction and initiated proceedings u/s 5 (f) of MBZA Act, ultimately by an order dated 30-10-1967 passed in Revision No 68-III/87. the Appellant lost his case, wherein the Board of Revenue held that the ex-Zamindar did not give the suit-land to the Appellant''s father on lease, but it was a licence for collecting fruits and flowers from the grove of the ex-Zamindar; though the Khasra entry in Samvat 2014 shows the Plaintiff''s father in possession of the Bag (Bagicha), as there is no entry recorded in Samvat 2007, the land could not have been settled u/s 5 (f), nor the Plaintiff''s father applied within six months from the date of vesting, for a new lease from the Government u/s 101 (1) of the M. B. Land Revenue and Tenancy Act, Samvat 2007 (for short, the ''Tenancy Act'') for non-agricultural purposes. After the order of the Board of Revenue, the Appellant intituted the suit on 1-5-1969 for declaration that in view of the definitions of ''Kashtkar'' in Section 2 (27) and ''Lagan'' in Section 2 (33) of the Quanoon Mal, Gwalior, Samvat 1983 (for short, ''Quanoon Mal'') and the Plaintiff''s continuous possession as Kashtkar in which Thekedar is also included, the Plaintiff acquired rights of Haq Maurusi u/s 247 of the Quanoon Mal, and after the enforcement of the MBZA Act, Pakka tenancy rights were conferred on the tenant/Plaintiff u/s 38, by operation of law, the Plaintiff applied u/s 39 of MBZA Act for grant of a fresh lease u/s 101 (1) of the Tenancy Act, but that was in a mistaken apprehension, because the land never vested in the State, and after the date of vesting u/s 6 of MBZA Act, the Collector did not take charge of the suit land, according to Section 54 (vii) of the Tenancy Act, the Plaintiff became a Pakka tenant, as according to the definition of Pakka tenant, a "Pukhta Maurusi" includes "Haq Sakitul Mil-kiyat" tenant as defined u/s 2 (28) of the Quanoon Mal, which the Plaintiff was. On the siad averments, the Plaintiff sought the declaration.

The State in its defence contended that the ex-Zamindar did not grant any lease to the Plaintiff''s father, but it was a licence of the grove for plucking and collecting of fruits and flowers, it was averred that the land was not ''Khud-Kasht'' of the ex-Zamindar on the date of vesting, the land vested in State. A plea of limitation that the suit for declaration, having not been filed within 3 years from the date of accrual of the cause of action, i. e. from the date of auction in the year 1959, was barred by time, was also raised. The Defendant No. 2, the son of the ex-Zamindar, also denied the claim of the Plaintiff and contended that as there is no cause against Defendant No. 2 nor any relief has been claimed against him, a prayer for dismissal of the suit was made with compensatory costs.

At the trial, the Plaintiff, besides the documents referred to above, also filed a certified copy of the judgment (ext. P-11), passed by Tahsildar, Karera, in a case between the ex-Zamindar and the father of the Plaintiff, in that the suit of the ex-Zamindar against Ramjani was dismissed for violation of the conditions of the lease. Certain applications were also filed by the Plaintiff to show deposit of land revenue by him in the Tahsii Court. A certified copy of statement of ex-Zamindar recorded in case No. 8/1962 Appeal-Mal, under S 5 (f) of MBZA Act was also filed, wherein the ex-Zamindar admitted the lease and possession of the Plaintiff''s father as a tenant. The State filed certified copies of Khasra entires from Samvat 2006 to Samvat 2009 (Exts. D-1 to D-4) and two Panchsala. Khasras from Samvat 2010 to 2014 and 2015 to 2019 (Exts. D-5 and D-6), wherein the name of the Plaintiff was not recorded in any capacity.

The Trial Court, though bold the suit within time, dismissed the same for declaration holding that the Plaintiff was not a lessee. In appeal too, the suit was dismissed, wherein without any cross-objections of the State under Order 41 R. 22, CPC, the finding of the trial Court that the suit is within limitation was also reversed. Against this dismissal, the Plaintiff has preferred this second appeal.

Shri R. D. Jain, learned Counsel for the Appellant and Shri M. M. Qureshi, learned Deputy Government Advocate, for the State, were heard at length.

Before dealing with the appeal, one fact is indisputably proved from the record that even if it is assumed that the Patta of Samvat 1980 was not proved, the Plaintiff or his father was continuously in possession of the suit land from Samvat 1992, therefore, non-recording of the name of the Plaintiff or his father in the revenue records of Samvat 2007 and onwards will not affect the right of the Plaintiff, if he has otherwise acquired tenancy rights under law.

Therefore, the material question, as rightly contended by Shri R. D. Jain, learned Counsel for the Appellant, is whether in view of the provisions of Section (27, the Plaintiff was a ''Kashtkar" or not and u/s 2 (28) of the Quanoon Mal the Plaintiff was a "Haq Sakitul-Milkiyat" tenant or not. It is settled that for determining a document as a lease or licence, it is the substance of the document that matters and the form, which can be determined by the conduct of the parties which may be established in the case.

Exhibit-P-1 is the Patta (lease). In column No. 2, which relates to the number and description of the field for which the Patta is given, it is written that a "Theka" (contract) for collecting and plucking of fruits and flowers is given, in col. No. 3 the amount of long revenue agreed upon is mentioned as Rs 100/- silver coins yearly, column No 4 relates to the nature of the lease, wherein it is written as "Thekedar" from Samvat 1992 to settlement, and so on. From the evidence on record which includes various orders of revenue proceedings it is abundantly proved that ex-Zamindar after giving the suit land on Patta to Ramjani, never remained in possession in any manner, nor he planted trees or cultivated the land. It was the Plaintiff''s father who planted the tree and cultivated the land continuously. It is also not in dispute that, according to the State, after the enforcement of the MBZA Act, the land vested in it, but admittedly, no charge of the suit land or of the garden was taken by the Collector u/s 6 on vesting u/s 3 of MBZA Act. It is also not disputed that the Plaintiff paid land revenue regularly. Land revenue is always paid by a tenant or a lessee and not by a licence. From the above facts it is clear that an interest in the property was created in favour of the Plaintiff, and it was not that the ex-Zamindar who peradited the Plaintiff to use and occupy the suit land and himself retained legal possession. From the documents on record it is abundantly proved that the Plaintiff got exclusive possession of the suit-land. Therefore, even if in Ext. P-1 "Thekedar" is written, that would not in any manner change the nature and the rights of the Plaintiff.

Even if the Plaintiff is considered to be a "Thekedar", "Thekedar" is also covered in the definition of Kashtkar given in S. 2 (27) of the Quanoon Mal, Section 2 (33) defined "Lagan" (land revenue), which was payable by a person in relation to agricultural land, gardens, groves, tanks, etc. Section 2 (28) defines "Haq Sakitul", i. e., a heritable right to a cultivator who had his Khudkasht over the land for 12 years and pays concessional land revenue, who could not be evicted by a Malguzar. Section 247 of the Quanoon Mal deals with accrual of "Haq Maurusi", which yeans a person who cultivated the land and remained in possession for a continuous period of 12 years and paid land revenue without any default; the Plaintiff was a Thekedar, of "Khudkasht land of the Zamindar, which was heritable, and was paying land revenue continuously for more than 12 years; hence, he become "Kashtkar Mau-rusi", as rights of "Haq Sakitul Milkiyat" were conferred upon the Appellant u/s 2 (28) On enforcement of the Tenancy Act on 6-6-1952 the Plaintiff who was "Kashtkar" u/s 2 (27) of the Quanoon Mal, became a Pakka tenant u/s 54 (vii) of the tenancy Act. "Pakka tenant" under Clause (vii) of S. 54 includes a "Pukhta Maurusi". In the Explanation to Section 54. (vii) it is made clear that the term "Pukhta Maurusi" includes "Sakitul Milkiyat" tenants also, which the Appellant was. On the face of overwhelming evidence, the State was bound to produce the record to show that the Plaintiff was not recorded as "Pukhta Maurusi" or "Sakitul Milkiyat" tenant, nor the State proved that the Plaintiff did not acquire any right of a Kashtkar or Sakitul Milkiyat.

It is true that after coming into force of MBZA Act the Appellant applied for settlement of the suit land u/s 5(f) and deposited land revenue from time to time. Filing of the application u/s 5(f) which was ultimately dismissed, and deposit of land revenue in Tahsil would not be an estoppel against the Plaintiff, as it is settled that there is no estoppel against a statute. If any authority is needed, see Thakur Amar Singhji Vs. State of Rajasthan, On the other hand this act of the Plaintiff proves the fact that he was in possession before the date of vesting and continued to be in possession of the suit land. Therefore, I am of the opinion that the Courts below were not right in interpreting the document (Ext. P-1) as a licence. The Courts below also overlooked the provisions of Quanoon Mal and the admission of ex-Zamindar in his statement made on oath in revenue proceedings, and because of that, erred in not giving a declaration in favour of the Plaintiff, that by operation of law after the enforcement of the Tenancy Act, MBZA Act and the Code the Plaintiff who was a tenant, became a Bhumiswami.

The lower appellate Court also dismissed the suit of the Plaintiff holding it to be barred by time, as it was not filed within 3 years from the date of auction made in the year 1959. The trial Court rightly held the suit as within limitation, as the cause of action accrued to the Plaintiff after the order of the Board of Revenue, where he ultimately failed in seeking the relief that the suit-land, of which he is tenant and thereafter a Bhumiswami under the Code, cannot be put to auction The Plaintiff throughout remained in possession and still continues in possession If the suit would have been filed after-the expiry of the period of three years from the date of dispossession of the Plaintiff after auction, certainly the suit would have become barred by time. Article 58 of the Limitation Act prescribes a period of 3 years for obtaining any declaration when the right to sue first accrues and, certainly, there cannot be two opinion that the right to sue accrued to the Plaintiff when he flost of the Revenue Board and when the Plaintiff was to be dispossessed from the suit land. It is Article 58 which governs the present case, as the suit was for declaration.

In the result, the appeal is allowed; the judgments and decrees of the two Courts below are set aside and the suit of the Plaintiff for declaration ii decreed. No order as to costs.

A decree be drawn up accordingly.