Madhya Pradesh High Court
Chandra Pal vs Lakhan Singh on 25 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:16617
1 S.A. No.263 of 2014
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 25th OF JULY, 2025
SECOND APPEAL No. 263 of 2014
CHANDRA PAL AND OTHERS
Versus
LAKHAN SINGH AND OTHERS
Appearance:
Shri J.P. Mishra - Advocate for the appellants.
Shri Anil Kumar Saxena, Advocate for respondents through Video
Conferencing.
JUDGMENT
This second appeal, under Section 100 of CPC, has been filed against the judgment and decree dated 18.06.2014 passed by First Additional District Judge, Jaura, District Morena in Civil Appeal No. 17-A/13, as well as judgment and decree dated 19.07.2013 passed by Civil Judge Class I, Jaura, District Morena in Civil Suit No. 29-A/12.
2. Appellants are plaintiffs who have lost their case from both the courts below.
3. Facts necessary for disposal of present appeal, in short, are that plaintiffs/appellants filed a suit for declaration of title and permanent injunction as well as for possession claiming inter alia that Survey No. 715 and 716 which were renumbered as Survey No. 705 after settlement, are Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/8/2025 12:17:10 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:16617 2 S.A. No.263 of 2014 adjoining to each other. A plot admeasuring 15 × 35 square feet forming part of old Survey No. 716 belongs to plaintiff No. 1. Similarly, another plot admeasuring 15 × 35 square feet belongs to plaintiff No. 2, whereas a plot admeasuring 15 × 35 square feet forming part of Survey No. 715 belongs to plaintiff No. 3 and a plot admeasuring 15 × 35 square feet belongs to plaintiff No. 4. These properties shall be described as disputed properties.
It was the case of plaintiffs that in fact Survey No. 715 and 716 were Abadi Nistar lands having pits for dumping fertilizer. The disputed property was in possession of predecessors of plaintiffs. The remaining land was in possession of other persons but as the houses have been constructed on all sides of the land in dispute, therefore plaintiffs approached Gram Panchayat Sumawali for allotment of disputed property. Gram Panchayat Sumawali by resolution dated 14.04.1990 allotted the said land to plaintiffs and also granted permission to raise Pucca construction and thus it was pleaded that plaintiffs are in possession of the property in dispute and they are utilising the land by dumping fuel, cow dung etc. It was pleaded that defendants have no right or title. However, in the intervening night of 13.09.2010 and 14.09.2010, defendants have tried to raise construction by digging foundation. On 14.09.2010, when plaintiffs got the information, then they stopped the construction work and accordingly defendants left the place by threatening that they would forcibly raise construction and would dispossess the plaintiffs. It was also prayed that after demolition of the construction work raised by defendants, vacant possession of the suit property be also returned back to plaintiffs. Accordingly, suit was filed for declaration of title, permanent injunction and possession.
4. The defendants did not file their statement and ultimately their right to file written statement was closed.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/8/2025 12:17:10 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:16617 3 S.A. No.263 of 2014
5. The trial Court by judgment and decree dated 19.07.2013 held that Gram Panchayat Sumawali had no jurisdiction to pass any resolution for allotment of land to plaintiffs. By referring to Sections 233 and 237 of the Madhya Pradesh Land Revenue Code, 1959 (for short "the Code"), it was held by the trial Court that since the disputed property was a Nistar land, therefore every villager had right to use that property and it is not confined to any particular person. It was also held that no authority was given to the Gram Panchayat to allot any right to any person in respect of Nistar land. Accordingly, it was held that since Gram Panchayat, Sumawali had no right to allot or grant lease to plaintiffs in respect of the Nistar land which was a Dakhal Rahit Bhumi, therefore plaintiffs have failed to establish their right or title over the land in dispute. Furthermore, it was also held that plaintiffs have failed to prove that they are in possession of the property in dispute.
6. Being aggrieved by the judgment and decree passed by the trial court, appellants preferred an appeal which too has been dismissed by the appellate Court.
7. Challenging the judgment and decree passed by the Courts below, it is submitted by counsel for appellants that since Gram Panchayat had a jurisdiction to allot the land to plaintiffs, therefore, by virtue of allotment done by Gram Panchayat, plaintiffs have acquired right to maintain their possession over the property in dispute and thus the Courts below committed material illegality by dismissing the suit filed by the appellants and proposed the following substantial question of law:-
(A) Whether, in the facts and circumstances of the case, the impugned judgment and decree passed by the learned First Appellate Court is illegal, without jurisdiction and contrary to law? (B) Whether, the learned First Appellate Court has committed illegality and jurisdictional error in understanding the disputed land reserved for welfare as "Manure Pits" which in violative of section Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/8/2025 12:17:10 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:16617 4 S.A. No.263 of 2014 234, 237 of the said Code, 1959 ?
(C) Whether, the learned First Appellate Court has committed illegality and jurisdiction error in over looking the resolutions Ex.
P.1, Ε.Ρ.3, Ex. P.5 and Ex.P.7 passed by the Gram Panchayat which was passed under M.P. Panchayat Act, 1962 and which is necessary at that relevant time ?
(D) Whether, when there is no specific denial of the allegations made in the plaint, the suit ought to have been decreed in view of order 10 Rule 1 and 2 C.P.C. ?
(E) Whether, the learned First Appellate Court has committed illegality and jurisdictional in over looking the fact that the predecessors of appellants/plaintiffs are using the said disputed land for 60 years and also there is entry of Nistar in khasra entries as "Manure Pits" ?
(F) Whether, the learned First Appellate Court has failed to understand the scope of clause (2) of Order 1 Rule 10 C.P.C. wherein Court at any stage may add State Government and Gram Panchayat as party to the proceedings ?
(G) Whether, in the facts and circumstances of the case, the learned first appellate court has erred in law in overlooking the material piece of the oral evidence and documentary evidence on record ?
(H) Whether, findings recorded by the learned first appellate Court in the impugned judgment are based on oral and documentary evidence on record ?
(I) Whether, the findings recorded by the learned both the Courts below are based on conjuncture and surmise ?
(J) Whether, the findings recorded by the learned both the Courts below are perverse ?
8. Heard, learned counsel for the appellants.
9. Section 233 of the Code provides for preparation of record of unoccupied land, whereas Section 234 of the Code prescribes preparation of Nistar Patrak which is within the jurisdiction of Sub Divisional Officer. The matters to be provided for in the Nistar Patrak have been mentioned in Section 235 of the Code which reads as under:-
235. Matters to be provided for in Nistar Patrak.
- The matter which shall be provided for in the Nistar Patrak shall be as follows, namely Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/8/2025 12:17:10 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:16617 5 S.A. No.263 of 2014
(a) terms and conditions on which grazing of cattle in the village will be permitted;
(b)the terms and conditions on which and the extent to which any resident may obtain-
(i)wood, timber, fuel or any other forest produce;
(ii)mooram, kankar, sand, earth, clay, stones or any other minor mineral;
(c)instructions regulating generally the grazing of cattle and the removal of the articles mentioned in paragraph (b);
(d)any other matter required to be recorded in the Nistar Patrak by or under this Code.
Section 236 of the Code deals with provision in the Nistar Patrak for certain matters and Section 237 of the Code deals with authority of Collector to set apart the land for exercise of Nistar purposes.
10. Thus, it is clear that so far as the Nistar land is concerned, it is an unoccupied land and every villager has right of Nistar. Nistar land can be set apart by the Collector only and not by anybody else. Counsel for appellants could not point out any provision of law from the Code to show that Panchayat was given any right to set apart the land for exercise of Nistar rights. Furthermore, Madhya Pradesh Panchayat (Transfer of Immovable Property) Rules, 1994 (for brevity "the Rules of 1994") deals with transfer of immovable property by the Gram Panchayat. Rule 3 provides for passing of resolution by the Gram Panchayat to the effect that any immovable property vested in it or belonging to it is not likely to be required by it in the near future, may be transferred by sale, gift, mortgage or exchange or by lease. Thereafter, as per Rule 4 of the Rules of 1994, the Panchayat shall forward the resolution along with full justification for such transfer, to the State Government or to the officer authorised by it, as the case may be, and only on Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/8/2025 12:17:10 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:16617 6 S.A. No.263 of 2014 receipt of sanction from the State Government or the authorised officer, the property shall be transferred according to the procedure. Rule 5 deals with transfer by public auction. No provision of the Rules of 1994 was ever followed by the Gram Panchayat after passing the resolution (Ex. P/1). Furthermore, the Gram Panchayat can transfer only that immovable property which is vested in it or belongs to it. Neither the provisions of Rules of 1994 were followed nor it is the case of plaintiffs that the land in dispute was that of Gram Panchayat. In fact, it was the case of plaintiffs that it was a Nistar land.
11. Under these circumstances, this Court is of considered opinion that in view of the fact that only Collector has authority to set apart the land for exercise of Nistar rights, therefore, resolution passed by Gram Panchayat (Ex.P/1) was beyond its jurisdiction and, therefore, it was nullity. Therefore, it is held that the courts below did not commit any mistake by dismissing the suit filed by the appellants.
12. As no substantial question of law arises in the present appeal, accordingly, judgment and decree dated 18.06.2014 passed by First Additional District Judge, Jaura, District Morena in Civil Appeal No. 17- A/13, as well as judgment and decree dated 19.07.2013 passed by Civil Judge Class 1, Jaura, District Morena in Civil Suit No. 29-A/12, are hereby affirmed.
13. Appeal fails and is, hereby, dismissed.
(G.S. Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/8/2025 12:17:10 PM