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Judgment
THE State of Madhya Pradesh/defendant has filed the present second appeal being aggrieved by judgment and decree dated 03.09.1998 passed in
Civil Suit No.5-A/1998 by 2nd Civil Judge, Class-II, Neemuch affirmed by Second Additional District Judge, Neemuch vide judgment and decree
dated 03.12.1999 passed in Civil Regular Appeal No.38-A/1998.
[2] Facts of the case, in short, for disposal of this appeal are as under :-
(a) The Respondents [hereinafter referred to as “the plaintiffsâ€] filed the suit for declaration of title of land Survey No.1494 area 1 Bigha 6
Biswa; Survey Nos.1516 and 1517 total area 5 Biswa; Survey No.1518 area 11 Biswa and Survey No.1518/2 area 1 Bigha 1 Biswa situated at
Neemuch. The old khasra numbers of the aforesaid land have been described in details in para 1 to 5 of the plaint. According to the plaintiffs land
Survey No.1494 and others were recorded in the name of their father late Shri Gulji Shah as “Pacca Krushakâ€. The aforesaid land was given to
him by the then Zamindar. After the death of Gulji Shah, the plaintiffs became the owner and are still in possession. The Zamindari has been abolished
w.e.f. 02.10.1951 by the Madhya Bharat Zamindari Abolition Act, 1951 and without information and notice to the plaintiffs, the defendant had
changed the entries in the Khasra and recorded the land in the name of “Dargah Wake Gram Ba-Ahatmam Mujawar Gulji Shah Pacca
Krushakâ€. The plaintiff served a notice to the defendant on 23.12.1987 and thereafter filed the suit for declaration on 03.09.1990 before the civil
court .
(b) The defendant filed the written-statement denying the averments made in the plaint. The defendant has also raised the objection about the
maintainability of the suit by virtue of bar created in Section 257 of the M. P. Land
(c) During pendency of the plaint, the plaintiffs amended their plaint and withdrawn the relief in respect of land Survey Nos.1171, 1172 and 1173.
(d) On the basis of the pleadings, the Trial Court framed 6 issues for adjudication. It is important to mention here that no such issue was framed in
respect of the plea of limitation as to whether the suit is time barred or not ?
(e) In support of the pleadings, the plaintiffs examined Mohd. Shah as PW-1, Narayan as PW-2, Shameer Khan as PW-3 and got exhibited 11
documents as Exs. P/1 to P/11.
(f) The defendant examined Hariram, Tehsildar as DW-1 and got exhibited 2 documents as Exs. D/1 and D/2.
(g) Vide judgment and decree dated 03.09.1998 the learned Civil Judge decreed the suit in favour of the plaintiffs by granting a decree of
Bhumiswami in respect of land Survey No.1152 area 1 Bigha 6 Biswa and further directed to change the entries in the revenue records .
(h) Being aggrieved by the aforesaid judgment and decree, the defendant/State preferred an appeal. Vide judgment and decree dated 03.12.1999 the
learned Additional District Judge has dismissed the appeal. Hence, the present second appeal before this Court.
[3] By order dated 03.04.2000 this appeal was admitted for final hearing on the following substantial questions of law :-
“(1) Whether the Court below was right in not properly adverting to the inordinate delay in filing the suit ?
(2) Whether the trial Court was in error in not noting that the suit was barred in view of the provisions of S.257 (2) of the M.P.Land Revenue Code,
1959 ?
(3) Whether the judgment and decree is inconsistent with evidence on record and thereby perverse and illegal ?â€
[4] I have heard Shri Rahul Sethi, learned Government Advocate for the appellant/State, Shri J.B. Mehta, learned counsel for the Respondents and
perused the records.
[5] Finding on Question No.(1) :-
The aforesaid issue has been framed whether the Court below was right in not properly adverting to the inordinate delay in filing the suit ? The
defendants in para 13 of pleaded that the suit is liable to be dismissed as time barred. The Trial Court did not frame any issue in respect of the
limitation. Even otherwise according to the plaintiffs they served a notice to the defendant on 23.12.1987 and when no reply was received, they filed
the suit on 03.09.1990. Since no issue framed in respect of the limitation, therefore, there was no occasion for the Trial Court to consider the same.
Even in the first appeal, the defendant did not raise any issue of limitation. It is settled law that the issue of limitation is a blended question of facts and
the law. Since it is not a pure question of law, therefore, the appellant cannot be permitted to raise the same first time before this Court. Since there
was no issue, therefore, examination whether the courts below properly adverted the issue of limitation does not arise. Therefore, the Substantial
Question No.1 is answered against the appellant.
[6] Finding on Question No.(2) :-
So far as the Question No.(2) is concerned, whether the suit is barred in view of the provisions of Section 257 (2) of the M. P. Land Revenue Code,
1959 ? The similar issue came up for consideration before Full Bench of this Court in the case of Ramgopal Kanhaiyalal v/s Chetu Batte [AIR 1976
MP 160] and before this court Court in the case of Omprakash v/s Ashok Kumar [2013 (1) MPLJ 678 ].
[7] 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€
[8] This Court in case of Omprakash (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€
[9] In case of Gordhan Das v/s 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 judgment 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€
[10] Therefore, in view of the above, the Trial Court has not erred in entertaining the suit as the same was not barred under the provisions of Section
257 (2) of the M. P. Land Revenue Code, 1959. Therefore, the Substantial Question No.2 is also answered against the appellant.
[11] Finding on Question No.(3) :-
So far as Question No.(3) is concerned, the plaintiffs came up with the plea that their father was given the land by the then Zamindar as a
“Krushakâ€. In support of their contention, they filed the revenue entries (Exs. P/2 to P/7) in which the name of their father was recorded as
“Pacca Krushakâ€.
[12] That Zamindari Abolition Act was notified in the Gazette on 25th June, 1951 & in which the “Pakka Tenant†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 2007â€
[13] 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 Maurusi†and “Pukhta Maurusi†when this Act comes into force or who may in future be
duly recognized as such by a competent authority.â€
[14] 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€
[15] 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€
[16] 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.â€
[16] In view of the above, the decree granted by the Trial Court is not perverse. The evidence have rightly been appreciated under the provisions of
Madhya Pradesh Zamindari Abolition Act, 1951 read with M. P. Land Revenue Code, 1959. Therefore, the Question No.(3) is also answered against
the appellant.
[17] Accordingly this appeal is dismissed . No order as to cost.