Madhya Pradesh High Court
Bhogiram vs Sher Singh on 22 August, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Second Appeal No.466/2011
.........Appellants: Bhogiram and others
Versus
.........Respondents: Sher Singh and others
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Shri Yogesh Chaturvedi, Advocate for appellants.
Shri K.S. Tomar, Senior Advocate with Shri J.S. Kaurav, Advocate
for respondents.
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Date of hearing : 22/08/2019
Date of Judgement : 22/08/2019
Whether approved for reporting : Yes
Law laid down:
Significant paragraphs:
JUDGMENT
(22/08/2019) This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 9-8-2011 passed by 1 st Additional District Judge, Guna in Civil Appeal No. 26A/2010, thereby affirming the judgment and decree dated 31-8-2010 passed by 1 st Civil Judge Class 1, Guna in Civil Suit No. 26A/2008.
2. The necessary facts for the disposal of the present appeal in short are that the plaintiffs/respondents No. 1 to 4 had filed a civil suit for declaration of title and permanent injunction on the ground that the plaintiffs no.1 and 2 are real brothers, whereas plaintiff no. 3 is their 2 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others sister and Rambaran Singh is also their brother (Initially, Rambaran Singh had not filed the suit, but it appears that later on by order dated 13-3-2009, passed by the Trial Court, Rambaran Singh was impleaded as plaintiff). The plaintiff no.2 and 4 were working in Military whereas the husband of plaintiff no.3 was also in Military. It was pleaded that the plaintiff no.1 was looking after the lands of plaintiffs no. 2 to 4 and all the defendants are trying to take forcible possession of the lands.
3. It was pleaded that the plaintiffs are the owner and in possession of agricultural land bearing Survey No. 836/1 area 21.109 hectares situated in village Karod, Tahsil Guna, Distt. Guna. The plaintiffs have sown Soybean crop with the help of original owner. It was pleaded that the plaintiffs have purchased the said land by registered sale deed dated 28-7 -2008 from its original owners Deenbandhu, Vijaybandhu, Alok Bandhu, Savita, Pratibha, MaltiDevi, Vandana, Archana,Parmeshwaridayal, Ramesh, Laxmikant, Sarveshwari, Usha, Mithlesh, Umesh, Dinesh, and Urmila bai and the possession of the land in dispute was also handed over to the plaintiffs. The legal representatives of Govindrai etc., had filed filed a civil suit against Kunjbihari in the Court of 2nd Civil Judge Class 1, Guna for declaration of title and possession which was registered as C.S. No. 82A/1993, and the said suit was dismissed by judgment and decree dated 20-4-1999, by holding that Kunjbihari and others are the owners. An appeal was filed, which too was dismissed by Judgment and Decree dated 10-9-1995. Thereafter, Bhagwan Singh etc had filed an application before the Court 3 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others of Naib Tahsildar for declaring them as a Bhumiswami and for recording their possession which was registered as 13A-74/84-85. The moment, Kunjbihari came to know about the order dated 19-8-1995, they immediately filed an appeal before the Court of S.D.O., Guna which was registered as 44/Appeal/87-88 and the order of Naib Tahsildar was set aside. It was further pleaded that the plaintiffs are in possession of the land in dispute, from the date of the sale deed executed by Deenbandhu and others. The plaint was amended and it was further pleaded that the family dispute between legal representatives of Govindrai, namely Krishnagopal Shrivastava and legal representative of Shri Niwasrai namely Kunj Biharilal and Brijbhushan has been settled and in the Civil Suit, it was held that the property in dispute is a joint property and it has held that the plaintiffs and defendants no. 1 and 2 (in earlier suit) are in joint possession, and it was held that the defendants no. 1 to 17 were neither found in possession nor they were found to be the owners and the said findings has attained finality. Accordingly, the sellers after resolving their dispute have executed the sale deed in favor of the plaintiffs. It was further pleaded that the defendants no. 1 to 17 cannot challenge the title of the appellants. Proceedings have been initiated for mutation of the name of the plaintiffs, and the plaintiff no.1 is cultivating the lands on behalf of all the plaintiffs. On 26-8-2008, the plaintiff no.1 was looking after his field, the defendants no. 1 to 17 came to the field and alleged that since, they had sown the soyabean crop, therefore, they would harvest the same. A threat was also extended that if the 4 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others defendants no.1 to 17 are stopped from harvesting the crop, then they would break the hands and legs of the plaintiffs and thus, the defendants no.1 to 17 are trying to take forcible possession after denying the title of the plaintiffs. It was further pleaded that the plaintiffs are in possession of entire land i.e., 21.109 hectares and the plaintiffs have also sown the crop of gram, which is ready for harvesting. Although the defendants no. 1 to 17 were not in possession, however, a temporary injunction order has been passed in their favour by the Trial Court and therefore, the defendants no.1 to 17 have restrained the plaintiffs to go to their entire land and now the defendants no.1 to 17 have forcibly taken possession. Accordingly, the plaint was amended and apart from the original relief for declaration of title and permanent injunction, additional relief of mesne profits and possession were also prayed.
4. The defendants no. 1 to 17 filed their written statement and denied the pedigree for want of knowledge. It was pleaded that the defendants are in possession of the land in dispute for the last more than 50-60 years prior to 2-10-1959. A patta was given and by virtue of the provisions of Madhya Bharat Land Revenue & Tenancy Act and by virtue of the provisions of M.P.L.R.Code, they have become Bhumiswami and in the said capacity, they are in cultivating possession. The plaintiffs are neither the owner of the land in dispute, nor their names have been mutated in revenue records. The plaintiffs have purchased the land from the persons, who have lost their suit by judgment and decree dated 20-4- 1999 and the appeal was also dismissed by judgment and decree dated 5 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others 10-9-2005. The answering defendants are in cultivating possession and have sown crops. The sale deed dated 28-7-2008 is null and void. It was further pleaded that the plaintiffs are not entitled to get their names mutated and accordingly, the appeal against the order of Tahsildar is pending. It was also pleaded that the present suit is barred by the principles of res-judicata. A counterclaim was filed and it was pleaded that earlier till Samvat 1998, the previous owner namely J.P. Shrivastava had given Survey No. 1160 area 9.7 Bigha, 1161 area 8.3 Bigha, 1162 area 11 Biswa, Survey No. 1162/1 area 16.18 Bigha, Survey No. 1162/2 area 17.4 Bigha, Survey No. 1163/1 area 6.5 bigha, Survey No. 1163/2 area 3 Biswa, Survey No. 1163/3 area 1.8 bigha, Survey No. 1162/3 area 31 total area 101 bigha, on patta vide Ex. D-6 and D-7 to the predecessor(s) in title of the defendants. The possession of the said land was also given. Initially the lease was given from Samvat 1998 to 2007 and again from Samvat 2009 to Samvat 2019, the above mentioned land was given on lease. As the defendants remained in possession for more than 12 years, therefore, in accordance with Kanoon Gwalior Mal, they became Mourusi Agriculturist. Thereafter, in the light of Section 54 of M.B. Land Revenue and Tenancy Act, they became Pakka Tenant and thereafter in the light of Section 158 of M.P.L.R. Code, they became Bhumiswami. Thus, it was prayed that the defendants be declared as owner and in possession of the land in dispute and a permanent injunction may be issued against the plaintiffs.
5. The plaintiffs filed their written statement to the counterclaim filed 6 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others by the defendants and denied the averments.
6. It appears that an application was filed by the defendants for dismissing the suit as barred by principle of res-judicata, however, the said application was rejected by order dated 20-4-1999.
7. The Trial Court after framing the issues, decreed the suit and dismissed the Counter claim filed by the defendants.
8. The defendants, being aggrieved by the judgment and decree passed by the Trial Court, filed a combined appeal i.e., against the dismissal of their Counterclaim as well as against the decree passed against them. The appeal filed by appellants has been dismissed, by judgment and decree dated 09-08-2011. The respondents had also filed a cross objection against the rejection of their claim for mesne profits, which too has been dismissed by the Appellate Court.
9. Challenging the judgments and decrees passed by the Courts below, the appellants/defendants have filed the present appeal. However, no appeal against dismissal of cross-objection has been filed by defendants.
10. This appeal was admitted on the following Substantial Question of Law :
Whether both the Courts below are justified in passing the impugned judgments and decree in favor of plaintiffs ignoring the provisions of Section 54 of Madhya Bharat Land Revenue and Tenancy Act and the provisions of Section 185 of M.P. Land Revenue Code, 1959, only on the ground that possession of defendants has not been recorded in the revenue papers after completion of term of Patta Ex-D/6 and D/7?7 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others
11. It is submitted by the Counsel for the appellants, that the Trial Court as well as the Appellate Court, failed to appreciate the fact that on 20-10-1959, i.e., the date on which M.P.L.R. Code came into force, the defendants/appellants were in possession of the land in question, therefore, by virtue of Section 158, 185 and 190 of M.P.L.R. Code, they had become Bhumiswami, and thus, the plaintiffs would not get any title by virtue of the sale deed dated 28-7-2008. It is further submitted that the Trial Court had non-suited the appellants on the ground that they have failed to file any revenue entry subsequent to the year 1962, to show that they were in possession of the land in dispute. It is submitted that it is well established principle of law that the revenue entries are made only for the fiscal purposes and the title of the parties, cannot be adjudicated on the basis thereof. To buttress his contentions, the Counsel for the appellants have relied upon the judgment passed by a co- ordinate bench of this Court in the case of Budhoo Vs. Smt. Chironja Bai and others reported in 2010(2) MPLJ 178.
12. Per contra, it is submitted by the Counsel for the respondents/plaintiffs, that since, lease was granted by erstwhile owner J.P. Shrivastava for limited purposes of cutting fodder, therefore, it cannot be said that the defendants/appellants had become Bhumiswami, and the Judgment dated 20-4-1999 passed in C.S. No. 82A/1993 Ex. P.1 filed by Govindrai against Kunjbihari and others and the judgment dated 10-9-2005 passed by the Appellate Court in R.C.A. No. 62A/2005, Ex. P.2 would apply as res-judicata, because the appellants were also party 8 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others in the said proceedings and it was held that the property in dispute is the joint property of the plaintiffs and defendants no.1 and 2 and the appellants who were defendants no. 4 to 18 were not in possession of the land in dispute. It is further submitted that since, the Counterclaim filed by the appellants was dismissed by the Trial Court, therefore, a separate appeal should have been filed by the appellants, and since, they have failed to do so, therefore, the dismissal of Counterclaim has attained finality. To buttress his contentions, the Counsel for the respondents has relied upon the judgment passed by the Supreme Court in the case of Rajni Rani and another Vs. Khairatilal and others reported in (2015) 2 SCC 682. It is further submitted that since, concurrent findings of facts have been recorded by the Courts below, therefore, this Court in exercise of power under Section 100 of C.P.C., may not interfere with the findings of facts recorded by the Courts below. To buttress his contentions, the Counsel for the respondents has relied upon the judgment passed by the Supreme Court in the case of Damodar Lal Vs. Sohan Devi and others reported in (2016) 3 SCC 78 and judgment passed by this Court in the case of Roop Singh Vs. Ram Singh reported in 2000(3) MPHT 18.
13. Heard the learned Counsel for the parties.
14. The Trial Court had framed an issue regarding res-judicata and it was held that since, the application filed by the appellants in this regard has already been dismissed by order dated 20-4-1999, which was not challenged, therefore, the said order would operate as res-judicata. 9 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others Although the respondents had filed a cross objection, but they did not dispute the findings recorded by the Trial Court on the question of res- judicata. Although the appellants had raised the question of res-judicata and it appears from the judgment of the appellate court, that the said point was argued on behalf of the appellants also, but the appellate court, did not consider the said submission. Since, the present appeal has not been admitted on the question of res-judicata, therefore, this Court cannot consider the said question. Thus, when before the Appellate Court, the respondents had decided not to challenge the findings of the Trial Court on the question of res-judicata, then, now they are estopped from raising the question of res-judicata for the first time, before this Court in the Second Appeal. Therefore, the contention of the Counsel for the respondents, that the earlier judgments and decrees passed against the appellants would operate as res-judicata is hereby rejected.
15. This Court has gone through the judgment passed by the Appellate Court. It appears that the appeal has been decided in a most casual manner, without considering the effect of Section 54 of M.B. Land Revenue and Tenancy Act as well as of Section 158, 185, 190 of M.P.L.R. Code. The First Appellate Court, being the final court on the question of fact, should consider the question of facts in detail and should pass a detailed judgment, however, the same is lacking. Since, this appeal is pending before this Court from the year 2011, therefore, instead of remanding the matter back to the Appellate Court, this Court think it apposite to decide the matter by itself. 10 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others
16. Section 54(vii) of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007, defines pakka tenant which reads 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 Pattedar", "Mamuli Maurusi", "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.
Explanation- The term "Pukhta Maurusi"
includes Istmurardar tenants, Malikana Haq-holder tenants, Hakkiyat Mutafarrikat, Sharah Muayyana and Sakitul-milkiyat tenants.
17. Section 38 of Madhya Bharat Zamindari Abolition Act, Samvat 2008 reads as under:-
"38. Conferral of pacca tenancy right on tenants 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 comparised in his holding from the date of vesting. (2) Every sub-tenant or tenant of a sub-tenant who deposits with the Tahsildar within the period specified in sub-sections (3) and (4) the following amount to be paid to the proprietor or tenant or sub-
tenant, as the 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 sub-tenant.-
(a) In case of a sub-tenant An amount equal to the of Gair Maurusi tenant. double of the net annual income of that land of the Gair Maurusi tenant.
(b) In case of a sub-tenant An amount equal to six of a Maurusi or times the net annual Sakitulmilkiat tenant income of that land of the Maurusi or Sakitulmilkiat tenant.11 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others
(c) In the case of a sub- An amount equal to six tenant of the Khudkasht times the net annual or Sir of the proprietor. income of that land of the proprietor.
(d) In the case of a tenant of a sub-tenant-
(1) If he is a tenant of An amount equal to six
sub-tenant in the Khud- times the net annual
kasht or Sir of the income of that land of the
proprietor proprietor, out of which
85% shall be given to the
proprietor and 15% to the
sub-tenant.
(2) In case of any other An amount equal to eight tenant of a sub-tenant times the net annual income of that land of the original tenant out of which 85% shall be given to the original tenant and 15% to the sub-tenant.
(e) In case of a sub-tenant By way of compensation or tenant of a sub-tenant so much of the amount as of a sub-tenant of either the Suba may assess after description mentioned in considering the points
(a), (b), (c) and (d), if the mentioned in schedule well situate on his III.
holding is a private one of the proprietor or tenant or sub-tenant, as the case may be, and no land of the proprietor, tenant or sub-tenant other than the land of that holding is watered from that well.
Provided that a sub-tenant or tenant of a sub-tenant shall remain a sub-tenant or tenant of a sub-tenant as before in case of disability mentioned in section 74 of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. He shall have no right to become a pacca tenant by depositing the amount under his sub- section.
(3) If a holding be in the possession of a tenant of a sub-tenant, he may deposit the money within four years of the date of vesting, otherwise his 12 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others right of becoming a pacca tenant shall lapse and the sub-tenant may within six months of the expiry of the said four years deposit in the Tehsil, the amount mentioned in clauses (a), (b), (c) and (d), as the case may be, of the proceeding of sub-section. If he fails to deposit such amount within the said period the proprietor of the original tenant, as the case may be, shall be deemed to be the pacca tenant of that holding.
(4) If the holding be in the possession of a sub-tenant, he may deposit the money within four years of the date of vesting. On the expiry of four years, the original tenant or the proprietor, as the case may be, shall be deemed to be the pacca tenant of that holding.
(5) If a sub-tenant or a tenant of a sub-
tenant fails to deposit the amount within the period specified in sub-sections (3) and (4) then, notwithstanding anything contained in his lease or contract, it shall be deemed that all his rights have ceased to exist and that he is a trespasser on that land, and the proprietor, tenant or sub-tenant, as the case may be, get him rejected under section 90 of the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007.
(6) In the case of every original tenant deemed to be a pacca tenant under this section it shall be presumed that the Government has settled his land with him on the same rent which he was paying to the proprietor for that land, but if such tenant holds rent-free or on concessional rent or pays the rent in kind, the rent on that holding shall be fixed at the village rate assessed in the current settlement.
(7) In case of every sub-tenant or tenant of a sub-tenant, as the case may be, deemed to be a pacca tenant under sub-section (2) and (3), it shall be presumed that the Government has settled his land with him, if he is a sub-tenant of the Khudkashta or Sir land of the proprietor, on the same rent which he has been paying to the proprietor and in any other case, on such rent as the original tenant has been paying to the proprietor and if that person holds rent free or on concessional rent or pays the rent in kind, the rent shall be fixed at the village rate assessed in the current settlement.
Explanation:- (1) The pacca tenancy rights 13 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others under this section shall accrue or be acquired in respect of such land only as may be in the actual possession of the tenant, sub-tenant or tenant of a sub-tenant.
(2) In the case of clauses (a), (b) and (d) (2) of sub-section (2), the net annual income shall be the difference between the rent which the Gair Maurusi, Maurusi or Sakitulmilkiyat tenant, as the case may be, receives from his sub-tenant and the rent which he pays to the proprietor and in the case of Khudkashta or Sir land of the proprietor or mentioned in clauses (c) and (d) (i), the net annual income shall be the difference between the rent which the proprietor receives from his tenant and the rent determined in accordance with the village rate."
18. The M.P.L.R. Code, came into force on 02-10-1959. Section 158 of M.P.L.R. Code defines Bhumiswami, Section 185 deals with Occupancy Tenants and Section 190 of Code deals with conferral of Bhumiswami rights on occupancy tenants. Section 158(1)(b) of Code reads as under :
158. Bhumiswami - (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liablitites conferred or imposed upon a Bhumiswami by or under this Code, namely :-
(b) Every person in respect of land held by him in the Madhya Bharat Region as a Pakka tenant or as a Muafidar, Inamdar or Consessional holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, samvat 2007 (66 of 1950);
Section 185 of Code reads as under :
"185. Occupancy Tenants.-- (1) Every person who at the coming into force of this Code holds --
(i) in the Mahakoshal region--
(a) any land, which before the coming into force of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955), was malikmakbuza and of which such person had been recorded as an 14 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others absolute occupancy tenant; or
(b) any land as an occupancy tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); or
(c) any land as an ordinary tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); or
(ii) in the Madhya Bharat region --
(a) any Inam land as a tenant, or as a sub-
tenant or as an ordinary tenant; or Explanation.--The expression "Inam Land" shall have the same meaning as assigned to it in the Madhya Bharat Muafi and Inam Tenants and SubTenants Protection Act, 1954 (32 of 1954).
(b) any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub-
Lessees Protection Act, 1955 (29 of 1955); or
(c) any Jagir land as defined in the Madhya Bharat Abolition of Jagirs Act, 1951 (28 of 1951), as a sub-tenant or as a tenant of a sub-tenant; or
(d) any land of a proprietor as defined in the Madhya Bharat Zamindari Abolition Act, 1951 (13 of 1951), as a sub-tenant or as a tenant of a sub- tenant;
(iii) in the Vindhya Pradesh Region any land as a sub-tenant of a pachpan paintalis tenant, pattedar tenant, grove holder or holder of a tank as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955); or
(iv) in the Bhopal region --
(a) any land as a sub-tenant as defined in the Bhopal State Subtenants Protection Act, 1952 (VII of 1953); or
(b) any land as a shikmi from an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932); or
(v) in the Sironj region -
(a) any land as a sub-tenant of a khatedar tenant or grove holder as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955); or
(b) any land as a sub-tenant or tenant of Khudkasht as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955);
shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.
(2) Where any land referred to in item (c) or 15 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others
(d) of clause (ii) of subsection (1) is at the time of coming into force of this Code, in actual possession of a tenant of a sub-tenant, then such tenant and not the sub-tenant shall be deemed to be the occupancy tenant of such land.
(3) Nothing in sub-section (1) shall apply to a person who at the coming into force of this Code, holds the land from a bhumiswami who belongs to any one or more of the classes mentioned in sub-section (2) of Section 168.
(4) Nothing in this section shall affect the rights of a sub-tenant of tenant of a sub-tenant belonging to any of the categories specified in items (c) and (d) of clause (ii) of sub-section (1) to acquire the rights of a pakka tenant in accordance with the provisions of the Madhya Bharat Abolition of Jagirs Act, 1951 (28 of 1951), or of the Madhya Bharat Zamindari Abolition Act, 1951 (13 of 1951), as the case may be."
Section 190 of M.P.L.R. Code, reads as under :
"190. Conferral of bhumiswami rights on occupancy tenants. --[(1) Where a bhumiswami whose land is held by an occupancy tenant belonging to any of the categories specified in sub-section (1) of Section 185 except in items (a) and (b) of clause (i) thereof fails to make an application under sub-section (1) of Section 189 within the period laid down therein, the rights of a bhumiswami shall accrue to the occupancy tenant in respect of the land held by him from such bhumiswami with effect from the commencement of the agricultural year next following the expiry of the aforesaid period.] (2) Where an application is made by a bhumiswami in accordance with the provision of sub-section (1) of Section 189, the rights of a bhumiswami shall accrue to the occupancy tenant in respect of the land remaining with him after resumption if any allowed to the bhumiswami with effect from the commencement of the agricultural year next following the date on which the application is finally disposed of.
[(2-A) Where the land of a bhumiswami is held by an occupancy tenant other than an occupancy tenant referred to in sub-section (1), the rights of a bhumiswami shall accrue to the 16 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others occupancy tenant in respect of such land --
(a) in the case of occupancy tenants of the categories specified in items (a) and (b) of clause (i) of sub-section (1) of Section 185, with effect from the commencement of the agricultural year next following the commencement of the Principal Act;
(b) in any other case, with effect from the commencement of the agricultural year next, following the date on which the rights of an occupancy tenant accrue to such tenant.] (3) Where the rights of a bhumiswami accrue to an occupancy tenant under sub-section (1), [sub-section (2) or sub-section (2-A)] such occupancy tenant shall be liable to pay to his bhumiswami compensation equal to fifteen times the land revenue payable in respect of the land in five equal annual instalments, each instalment, being payable on the date on which the rent payable under Section 188 for the corresponding year falls due, and if default is made in payment, it shall be recoverable as an arrear of land revenue:
Provided that if from any cause the land revenue is suspended or remitted in whole or in part in any area in any year, the annual instalment of compensation payable by an occupancy tenant holding land in such area in respect of that year shall be suspended and shall become payable one year after the last of the remaining instalments.
(4) Any occupancy tenant may at his option pay the entire amount of compensation in a lump sum and where an occupancy tenant exercise this option, he shall be entitled to a rebate at the rate of ten per cent.
(5) The amount of compensation, whether paid in lump sum or in annual instalments, shall be deposited in such manner and form as may be prescribed by the occupancy tenant with the [Tahsildar], for payment to the bhumiswami.
(6) Where the rights of a bhumiswami in any land accrue to an occupancy tenant under this section, he shall he liable to pay the land revenue payable by the bhumiswami in respect of such land with effect from the date of accrual of such rights."
19. As per lease deed dated 18-11-1951, Ex. D-8, lease was granted 17 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others till Samvat 2019 i.e., year 1962. The Trial Court in para 26 of its judgment has given a finding that although by lease deed dated 18-11- 1951, lease of disputed land was granted to the defendants which was valid till Samvat 2019 i.e., year 1962, but the defendants have failed to prove their possession after Samvat 2019 i.e., year 1962 as they have not filed any document to show that they were in possession of the land in dispute. Although the appellants/defendants have filed Khasra Panchshala of 1980-81 to 84, Ex. D.21 in which the possession of the appellants/defendants was recorded but the said entry was set aside by the S.D.O. by its order dated 23-12-1987. Thus, it is clear that the Trial Court has held that the appellants/defendants were in possession of land in dispute till 1962, but from thereafter, the appellants/defendants have failed to prove their possession.
20. Now the pivotal question for determination is that when the appellants/defendants were in possession of the land in dispute on the date of commencement of M.P.L.R. Code, i.e, 02-10-1959, then whether the appellants/defendants had acquired the Bhumiswami rights or not?
21. Section 189 of M.P.L.R. Code reads as under :
189: Resumption by bhumiswai in certain cases.-- (1)- A bhumiswami whose land is held by an occupancy tenant [belonging to any of the categories specified in sub-section (1) of Section 185, except in items (a) and (b) of clause (i) thereof] may, if the area of land under his personal cultivation is below twenty-five acres of unirrigated land, within one year of the coming into force of this Code, make an application to the Sub-Divisional Officer for resumption to land held by his occupancy tenant for his personal cultivation.18 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others (2) On receipt of the application, the Sub-
Divisional Officer shall, after hearing the parties and making such further enquiry as may be necessary decide the application:
Provided that the right of resumption shall be limited to the area which together with the area already under the personal cultivation of the bhumiswami shall not exceed twentyfive acres of unirrigated land:
Provided further that no resumption shall be allowed so as to reduce the total area of land in possession of the occupancy tenant below:
(i) twenty-five acres of unirrigated land if the occupancy tenant has been holding such land from a bhumiswami not belonging to any of the classes mentioned in sub-section (2) of Section 168, for more than five years prior to the coming into force of this Code;
(ii) ten acres in any other case.
(3) Where under an order passed under sub-
section (2) the bhumiswami is allowed to resume a part of the land held by the occupancy tenant from such bhumiswami, the Sub-Divisional Officer shall select and demarcate the land allowed to be resumed in accordance with such rules as may be made in that behalf. The resumption shall be allowed only if the bhumiswami agrees to pay the occupancy tenant such compensation as the Sub- Divisional Officer may, after hearing the parties, fix for the improvement effected by the occupancy tenant for the land allowed to be resumed by the bhumiswami. The Sub-Divisional Officer shall also in such a case fix the rent in the prescribed manner in respect of the land left with the occupancy tenant.
(4) Every order allowing resumption shall take effect from the agricultural year next following the date of the order and the tenancy of the occupancy tenant in respect of the land resumed shall stand terminated.
Explanation.--For the purpose of this section --
(1) the land under the personal cultivation of bhumiswami shall include-
(a) any land transferred by him by sale or otherwise on or after the 1st January, 1959; and
(b) any land allowed by him to lie fallow.
(2) One acre of irrigated land shall be 19 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others deemed to be equal to two acres of unirrigated land and vice versa."
22. In the present case, it is not the case of any party that the original owner namely J.P. Shrivastava had ever filed any application for resumption of land held by his occupancy tenant i.e., the appellants/defendants. Thus, as no application under Section 189 of M.P.L.R. Code was filed by original Bhumiswami for resumption of his land within a period of one year from the date of coming into force of the Code, therefore, the rights of Bhumiswami shall accrue to the occupancy tenant in respect of the land held by him from such Bhumiswami with effect from the commencement of the agricultural year next following the expiry of the aforesaid period. Thus, as the original Bhumiswami, namely J.P. Shrivastava, did not file any application for resumption of land within a period of one year from the date of coming into force of the Code, then the Bhumiswami rights stood conferred on the appellants/defendants or their predecessor(s) in title w.e.f. the commencement of the agricultural year next following the expiry of period for making application for resumption of land. Thus, it is clear that since, the one year for making application for resumption of land had expired in the year 1960, therefore, the appellants/defendants or their predecessor(s) in title became Bhumiswami in the year 1961 because not only the appellants/defendants or their predecessor(s) in title were in possession of the land but the period of original lease had also not expired. The co-ordinate bench of this Court in the case of Gowardhan Vs. Ghasiram deceased through L.R.s reported in 20 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others 2002(1) MPLJ 200 has held as under :
"19. As per the clear provisions of Section 185 of the M.P. Land Revenue Code, 1959 every person who at the coming into force of this Code holds any land as a sub-tenant or tenant, only such persons who continuously possess any such land as a tenant or subtenant on the commencement of the code are entitled under Section 185 (i), Sub- clause (ii) (a) to (d) to claim the status of occupency tenant and thereafter by virtue thereof acquired rights of Bhumiswami in accordance with provisions of Section 190 of the Code. Therefore, it was the burden on the appellant/ defendant to prove that on 2-10-1959 he was holding the land or was in possession as a tenant or sub-tenant provided either under the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act, 1954 or Madhya Bharat Ryotwari sub-lessee Protection Act, 1955 or Madhya Bharat Abolition of Jagirs Act, 1951 or Madhya Bharat Zamindari Abolition Act, 1951 and for that under Clause (ii) the words "actual possession of a sub-tenant is important." Obviously the intention of Section 185
(i) (ii) of the Code is to give occupancy rights to those who were holding lands when the Code came into force. In this case the rights of the appellant/defendant are not protected by Section 185 of the Code on the ground that even if it is taken into consideration that a Patta was granted for a period of one year in Samvat 2004 and in Samvat 2005 a suit was filed for taking possession back from the lessee Pattedar and when the appellant was not in possession in the land in dispute right from 30-6-1948 to 1967, he cannot claim any right on the basis of the aforesaid Patta for a period of one year. "
23. In the present case, in fact the findings of fact recorded by Trial Court, with regard to execution of a patta(s) Ex. D-6 and D-7, in favor of appellants/defendants or their predecessor(s) in title, and their possession till 1962, is in favor of the appellants. Therefore, none of the findings of facts recorded by the Courts below are being disturbed. 21 Second Appeal No.466/2011
Bhogiram and others Vs. Sher Singh and others
24. Since, the question that whether the tenant was in possession of the land in dispute on 2-10-1959 or not and whether the original Bhumiswami had filed an application for restitution of land or not are two important aspects for ascertaining the fact that whether the tenant had acquired the rights of Bhumiswami or not? Since, both the questions of facts were answered by the Trial Court in favor of the appellants, therefore, the Trial Court was wrong in holding that the appellants would not acquire Bhumiswami rights by force of law.
25. As the appellants/defendants or their predecessor(s) in title had already acquired the rights of a Bhumiswami in the year 1961, therefore, the Trial Court committed material illegality by dismissing the case of the defendants on the ground that they have failed to prove their possession over the land in dispute. The observation made by the Trial Court in para 28 of its judgment that the appellants would not get any rights merely by force of law is erroneous.
26. So far as the contention of the Counsel for the respondents that the appellants should have filed a separate appeal against the dismissal of their Counterclaim is concerned, this Court has gone through the memo of appeal filed by the appellants before the First Appellate Court. It was a combined memo of appeal and in the prayer clause, the appellants had also sought declaration of their title. Thus, in fact, the dismissal of Counterclaim was also challenged by the appellants. Even otherwise, the defence of the appellants and their Counterclaim was based on similar facts. Thus, this submission made by the Counsel for the 22 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others respondents is rejected.
27. So far as the contention of the Counsel for the respondents, that the lease was granted by J.P. Shrivastava vide Ex. D-6 and D-7 for limited purposes is concerned, it is suffice to say that this Court is only required to consider that whether there was any lease/patta in favor of the appellants/defendants or their predecessor(s) in title or not? No exception has been carved out in the Madhya Bharat Zamindari Abolition Act, or Madhya Bharat Land Revenue and Tenancy Act or M.P. L.R. Code. Thus, once, it is proved that there was a patta Ex. D-6 and D-7 in favor of the appellants/defendants or their predecessor(s) in title, then their claim of acquisition of Bhumiswami rights under Section 158, 190 of M.P.L.R.Code cannot be frustrated. Further more, there is nothing in Patta Ex. D-6 and D-7 to indicate, that the same was granted for limited purposes only. Further more, it is not the case of the respondents that license was granted to the appellants/defendants or their predecessor(s) in title.
28. Therefore, this Court is of the considered opinion, that the Courts below have failed to consider the provisions of law as well as the fact that since by virtue of lease deed, Ex.D/7, the appellants/defendants or their predecessor(s) in title were in possession of the land in dispute in the year 1961, therefore, they had acquired the Bhumiwami rights.
29. Accordingly, it is held that since, the appellants/defendants or their predecessor(s) in title had acquired the rights of a Bhumiswami in the year 1961, therefore, the respondents would not get any right or title by 23 Second Appeal No.466/2011 Bhogiram and others Vs. Sher Singh and others virtue of sale deed dated 28-7-2008 Ex. P/4, as their sellers had no right or title in them. It is hereby declared that the appellants/defendants are the owners and in possession of the land in dispute which is in their possession respectively.
30. Consequently, the judgment and decree dated 9-8-2011 passed by 1st Additional District Judge, Guna in Civil Appeal No. 26A/2010, and the judgment and decree dated 31-8-2010 passed by 1 st Civil Judge Class 1, Guna in Civil Suit No. 26A/2008, are hereby set aside.
31. The Suit filed by the respondents/plaintiff is hereby dismissed and the counterclaim filed by the appellants/defendants is hereby allowed, and it is held that:-
(i) the plaintiffs have failed to establish their title;
(ii) that the defendants/appellants had acquired the rights of Bhumiswami by virtue of lease deed Ex.D/7, in the light of provisions of M.B. Land Revenue and Tenancy Act, M.B. Zamindari Abolition Act as well as in view of Sections 158, 185, 190 of M.P.L.R. Code, and accordingly they are declared to be the owner and in possession of the land in dispute.
The appeal succeeds and is hereby Allowed.
No order as to cost. The decree be drawn accordingly.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2019.09.05 14:27:11 +05'30'