Madhya Pradesh High Court
Smt. Alka Devi vs The State Of Madhya Pradesh on 31 January, 2023
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
FIRST APPEAL No. 571 of 2013
BETWEEN:-
1. SMT. ALKA DEVI D/O
RAMCHANDRA, AGED ABOUT
50 YEARS, R/O NEW M.L.A.
COLONY JAWAHAR CHOWAK
(MADHYA PRADESH)
2. RABIA BEGUM (DIED)
THROUGH LRS
(i) MOHAMMAD AARIF KHAN
S/O LATE HAAJI CHUNNU
KHAN, AGED ABOUT -60 YEARS,
R/O, NEAR SHAHJANABAAD,
POLICE STATION STREET NO.3,
DISTRICT-BHOPAL (MADHYA
PRADESH)
(ii) MOHAMMAD ZAYED KHAN
S/O LATE HAAJI CHUNNU
KHAN, AGED ABOUT -55 YEARS,
R/O NOORMAHAL ROAD,
DISTRICT-BHOPAL (MADHYA
PRADESH)
(iii) MOHAMMAD ABID KHAN
S/O LATE HAAJI CHUNNU
KHAN, AGED ABOUT -50 YEARS,
R/O NOORMAHAL ROAD,
DISTRICT-BHOPAL (MADHYA
PRADESH)
(iv) MOHAMMAD RASHID
KHAN, S/O LATE HAAJI
CHUNNU KHAN, AGED ABOUT -
47 YEARS, R/O STREET NO.1
SHAHJANABAAD, DISTRICT -
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 2/1/2023
11:29:38 AM
BHOPAL (MADHYA PRADESH)
(v) NILOFAR KHAN, W/O
KHALIQ KHAN, AGED ABOUT -
45 YEARS,
(vi) SALEHA BEGUM ALIAS
BABY W/O SAYYED SHAUKAT
ALI, AGED ABOUT-44 YEARS
BOTH R/O SHAHJANABAAD,
DISTRICT-BHOPAL (MADHYA
PRADESH)
3. SUDHEER KUMAR S/O SHRI
BHOLARAM, AGED ABOUT 50
YEARS, R/O. H.NO. 2, BARKHEDI
ROAD, BHOPAL (MADHYA
PRADESH)
4. MOHD. JAHID KHAN S/O SHRI
HAJI CHUNNU KHAN, AGED
ABOUT 48 YEARS, R/O. NEAR
SHAHJEHANABAD, PS BHOPAL
(MADHYA PRADESH)
5. RAJENRA KUMAR (DIED)
THROUGH LRS.
(i) SMT. MEENA KHANDELWAL,
W/O LATE RAJENDRA KUMAR,
AGED ABOUT-56 YEARS
(ii) ANKIT KHANDELWAL , S/O
LATE RAJENDRA KUMAR,
AGED ABOUT-33 YEARS
BOTH RESIDENTS OF DURGA
NAGAR, DISTRICT -INDORE
(MADHYA PRADESH)
(iii) ANKITA, W/O GAURAV
KHANDELWAL, AGED ABOUT -
30 YEARS, R/O CHAWANI
MURAI MOHALLA, DISTRICT -
INDORE (MADHYA PRADESH)
6. AABID KHAN S/O SHRI KARIM
KHAN, AGED ABOUT 45 YEARS,
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 2/1/2023
11:29:38 AM
R/O. UMAR MARRIAGE HALL,
SHAHJEHANABAD, BHOPAL
(MADHYA PRADESH)
7. MUKESH KUMAR S/O SHRI
BABULAL, AGED ABOUT 42
YEARS, R/O. DURGA NAGAR,
INDORE (MADHYA PRADESH)
8. RASHID KHAN S/O SHRI HAJI
CHUNNU KHAN, AGED ABOUT
40 YEARS, R/O. NEAR
SHAHJEHANABAD, PS BHOPAL
(MADHYA PRADESH)
9. NEELESH KUMAR S/O
LAXMINARAYAN, AGED
ABOUT 40 YEARS, R/O. GRAM
NALKHEDA, DISTT. SHAJAPUR
(MADHYA PRADESH)
10. SEEMA KHAN D/O ABDUL AJIJ
KHAN, AGED ABOUT 45 YEARS,
R/O. NEAR SHAHJEHANABAD
POLICE STATION BHOPAL
(MADHYA PRADESH)
11. GAURAV KUMAR S/O SHRI H.P.
GUPTA, AGED ABOUT 28
YEARS, R/O. NEW M.L.A.
COLONY, JAWAHAR CHOWK,
BHOPAL (MADHYA PRADESH)
12. H.P. GUPTA S/O SHRI R.L.
GUPTA, AGED ABOUT 55
YEARS, R/O. NEW M.L.A.
COLONY, JAWAHAR CHOWK,
BHOPAL (MADHYA PRADESH)
13. SMT. SUSHILA DEVI (DELETED
AS PER COURT ORDER DATED
19.07.2016)
14. VAIBHAV KUMAR S/O HARISH
KUMAR, AGED ABOUT 30
YEARS, R/O. NEW M.L.A.
COLONY, JAWAHAR CHOWK,
BHOPAL (MADHYA PRADESH)
15. OM PRAKASH S/O
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 2/1/2023
11:29:38 AM
RAMCHANDRA, AGED ABOUT
57 YEARS, R/O MAHANANDA
NAGAR, UJJAIN (MADHYA
PRADESH)
16. KAMAL KISHORE S/O
RAMCHANDRA, AGED ABOUT
55 YEARS, R/O. NEW MAHAKAL
AJENCY, MUSADDIPURA,
UJJAIN (MADHYA PRADESH)
17. MANOHAR LAL S/O
RAMCHANDRA, AGED ABOUT
54 YEARS, R/O. MAHANANDA
NAGAR, UJJAIN (MADHYA
PRADESH)
18. SMT. KUMKUM DEVI W/O
KAMLESH CHAND, AGED
ABOUT 50 YEARS, R/O. GHEE
MANDI, UJJAIN (MADHYA
PRADESH)
19. SMT. PUSHPLATA W/O SHRI
NARAYAN DAS, AGED ABOUT
57 YEARS, R/O. 39, PATRAKAR
COLONY, COLAR ROAD,
BHOPAL (MADHYA PRADESH)
20. VIJAY KUMAR S/O RATAN LAL
, AGED ABOUT 45 YEARS, R/O.
66, PATRAKAR COLONY,
COLAR ROAD, BHOPAL
(MADHYA PRADESH).
ALL THE ABOVE THROUGH
POWER OF ATTORNEY SHRI
HARISH KHANDELWAL S/O.
SHRI RATAN LALJI, AGED
ABOUT 58 YEARS, R/O. 23 NEW
M.L.A. COLONY, JAWAHAR
CHOWK, BHOPAL (MP).
.....APPELLANTS
(BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE
WITH SHRI SANJAY SARWATE - ADVOCATE)
AND
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 2/1/2023
11:29:38 AM
1. THE STATE OF MADHYA
PRADESH TH. COLLECTOR,
(MADHYA PRADESH)
2. SUB DIVISIONAL OFFICER
RAJDHANI PARIYOJNA
JAWAHAR CHOWK BHOPAL
(MADHYA PRADESH)
3. TEHSILDAR RAJDHANI
PARIYOJNA JAWAHAR CHOWK
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PIYUSH JAIN - GOVERNMENT ADVOCATE )
Reserved on : 12-09-2022
Pronounced on : 31-01-2023
--------------------------------------------------------------------------------------------------
This appeal having been heard and reserved for order, coming on
for pronouncement this day, the court pronounced the following:
JUDGMENT
The present appeal under Section 96 of the Code of Civil Procedure has been preferred challenging the impugned judgment and de cree dated 22/07/2013 passed by Vth Additional District Judge, Bhopal (M.P.) in Civil Suit No. 119 -A/2011 by which the plaintiffs suit for declaration and permanent injunction with regard to Khasra No. 39/1, area 6.80 acres, situated in village Kotara Sult anabad, Bhopal (M.P.) has been dismissed.
2. The appellants hereinafter would be referred to as the 'plaintiffs ' and likewise the respondents would be referred to as the ' defendants '.
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM3. The instant case requires detailed narration of facts and the sa me is unfolded from the plaint as also from the record of the case are mentioned here that one Mohd. Abdul Shakoor was granted Patta in respect of land out of Khasra No. 39, area 90.65 acres, situated in village Kotara Sultanabad, Bhopal (M.P.) on year to year basis since 1943. Finally by an order of Settlement dated 17/09/1948 by the then Chief Secretary of the State of Bhopal, the aforesaid land was settled in favour of Mohd. Abdul Shakoor. Pursuant to such Order of Settlement dated 17/09/1948, an order dated 14/01/1949 was passed for recording the name of Mohd. Abdul Shakoor in the revenue records. Accordingly, the name of Abdul Shakoor was recorded in the Register of Rights. The aforesaid land out of Khasra No. 39 was given by Mohd. Abdul Shakoor in Me har to his wife Shahida Bano and this fact is duly recorded in Column No. 19 of Khasra Panchsala for the year 1950 pursuant to an order of Tahsildar under Misil No. 255 dated 13/08/1949. Thus Shahida Bano had became the exclusive owner in possession of th e land out of Khasra No. 39, area 9.65 acres situated in village Kotara Sultanabad, Bhopal (M.P.). Thereafter, the name of Shahida Bano was recorded in the revenue records. Smt. Shahida Bano had sold the aforesaid land i.e. Khasra No. 39, area 9.65 acres along with other lands by registered sale deed dated 28/05/1953 to Hakeem Hamidullah Khan. After purchase of such land by Hakeem Hamidullah Khan, his name was duly recorded in Khasra Panchsala from 1954 to 1984 -1985. After the death of Hakeem Hamidullah Kh an, his niece Razia Bano had succeeded Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM to his estate including land comprising Khasra No. 39. Smt. Razia Bano had filed her return in respect of her entire agricultural land before the Competent Authority under the Provisions of Madhya Pradesh Ceiling on A gricultural Holdings Act, 1960 (for short "1960 Act" ). This return was filed on 31/01/1974. On 11/11/1983, the Assistant Commissioner passed a final order declaring 2.85 acres of land out of Khasra No. 39 as surplus and thereafter such excess land stood ve sted in the State. Pursuant to vesting of land ad -measuring 2.85 acres, Smt. Razia Bano was left with only 6.80 acres of land out of Khasra No. 39. After vesting of the aforesaid land under the provisions of the 1960 Act, Razia Bano had submitted an applic ation for mutation under Sections 109 and 110 of Madhya Pradesh Land Revenue Code, 1959 (for short "1959 Code") in respect of land ad -measuring 6.80 acres out of Khasra No. 39. Pursuant thereto an order dated 18/02/1985 was passed by the Tahsildar directi ng for recording of the name of Smt. Razia Bano over 6.80 acres of land out of Khasra No. 39, and accordingly, her name was mutated over such land in Namantaran Panji as the same was her private land. After an order of mutation dated 18/02/1985, the afores aid land had become a part of Khasra No. 39/1.
4. Smt. Razia Bano had also submitted return before the Competent Authority under the provisions of Urban Land Ceiling Act, 1976 (for short "1976 Act"). The Competent Authority by order dated 23/01/1985 held that there is no vacant urban land under the provisions of the 1976 Act, and accordingly, the proceedings were dropped. Thus, Razia Bano Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM was the exclusive owner in possession of the land out of Khasra No. 39/1, area 6.80 acres, situated in village Kotara Sultanabad, Bhopal (M.P.) (hereinafter referred to as the "suit property" ). Thereafter, Razia Bano had executed different sale deeds of different parcel of land ad -measuring 3.80 acres, out of Khasra No. 39/1 in favour of the plaintiffs No. 11 to 20 on 06/ 02/1995. Likewise, Razia Bano had further executed sale deed in respect of the land ad -measuring 3.00 acres of Khasra No. 39/1 in favour of Maruti Housing Cooperative Society Ltd. Bhopal ( for short "the Society "). The Society in turn executed various sal e deeds of different parcel of land out of Khasra No. 39/1 in favour of its members i.e. plaintiffs No. 1 to 10. Upon execution of the different sale deeds in favour of the plaintiffs, separate Bhoo Adhikar and Rin Pustikas were issued to them. In Khasra Panchsala for the years 1985 -2010, the names of the plaintiffs were also recorded. In mutation register also, the names of the plaintiffs were recorded over the land which they had purchased by different sale deeds.
5. The Nazul Officer, Capital Project, Bhopal had granted No Objection in favour of the plaintiffs. By order dated 08/03/1996 passed by the Assistant Settlement Officer, the lands were diverted from agricultural purpose to residential purpose under Section 172 (1) of 1959 Code. After diversion of such land, the plaintiffs had paid diversion charges. The Joint Director, Town and Country Planning, Bhopal had sanctioned layout of the suit property vide order dated 24/06/2000 treating the same to be a private land. The Municipal Corporation, Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Bhopal had also granted building permission subject to deposit of various charges. The plaintiffs deposited necessary charges, and thereafter, the Municipal Corporation, Bhopal had issued a Building Permission Certificate. The plaintiffs had also submitted applic ations for demarcation of their respective land, and pursuant thereto, their lands were demarcated treating the same to be a private land. During such demarcation proceedings, Madhya Pradesh Matsya Mahasangh (Sahkari) Maryadit (for short "Matsya Mahasangh ") had submitted objection, but the same was duly rejected. The Matsya Mahasangh had submitted a complaint before Economic Offecnes Wing (EOW), but the same was closed. The EOW, during investigation found that the suit property was throughout a private land and has never been a land of Matsya Mahasangh. The EOW in its report specifically mentioned that continuously since 1950, the suit property has been a private land.
6. The plaintiffs further submitted that on the basis of the complaint made by Matsya Ma hasangh, the Directorate, Town and Country Planning had suspended the sanctioned layout in respect of the plaintiffs No. 1 to 10 against which they had filed Writ Petition No. 737 of 2003 (Seema Khan and others Vs. State of M.P. and others) before this Cou rt. In the said writ petition, an order dated 25/11/2008 was passed directing the State Government to decide the issue by speaking order after giving opportunity to the petitioners therein. In these proceedings also, the State did not dispute the issue of title in favour of the plaintiffs over the suit property. The matter is still Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM pending consideration before the Principal Secretary, Government of Madhya Pradesh, Ministry of Housing and Environment.
7. The plaintiffs had filed separate Civil Suits against Matsya Mahasangh for declaration and permanent injunction. Such suits were decreed in favour of the plaintiffs. It has been submitted that the Matsya Mahasangh is a State Government undertaking and its Mana ging Director is a Senior IAS Officer.
8. On 31/05/2010, a show cause notice was issued by the Nazul Officer, Capital Project under Section 57 (2) of 1959 Code. The plaintiffs submitted detailed reply to the said show cause notice along with the document s in support of their title on 23/07/2010. However, the second show cause notice dated 20/08/2010 was issued and the same was also duly replied by the plaintiffs.
9. The contention of the plaintiffs is that in the last more than 63 years there has been n o dispute about their title and the show cause notice under Section 57 (2) of the 1959 Code is against the decision of the Supreme Court.
10. On the basis of show cause notice dated 31/05/2010, the Nazul Officer, Capital Project passed an order dated 03/ 03/2011 directing that the name of State be recorded over the suit land. Thereafter, the plaintiffs issued a notice dated 04.03.2011 under Section 80 of the Code of Civil Procedure and filed the instant suit on 05.03.2011 claiming the following reliefs :
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM^^A. ;g fd oknh ds i{k esa rFkk izfroknhx.k ds fo:) bl vk'k; fd LoRo dh ?kks"k.kk ikfjr dh tkos fd oknhx.k [kljk uacj 39@1 ¼mupkyhl cVk ,d½ ds HkwfeLokeh gksdj vkf/kiR;/kkjh gSaA B. ;g fd oknhx.k ds i{k esa rFkk izfroknhx.k ds fo:) bl vk'k; dh ?kks" k.kkRed fMdh ikfjr dh tkos fd izfroknhx.k ds funsZ'k ij vuqfoHkkxh; vf/kdkjh }kjk ikfjr fd;k x;k vkns'k fnukad 3@3@2011 ¼rhu ekpZ nks gtkj X;kjg½ fof/k fo:) rFkk izHkko'kwU; gSA C. ;g fd oknhx.k ds i{k esa rFkk izfroknhx.k ds fo:) LFkkbZ fu"ks/kkKk dks fM dks ikfjr dh tkos fd izfroknhx.k muds ,tsaV ;k ukSdj oknhx.k ds 'kkafriw.kZ vkf/kiR; esa fdlh izdkj dk O;o/kku mRiUu u djsa vkSj oknhx.k dks csn[ky djus dh dk;Zokgh u djsaA D. ;g fd oknhx.k dks okn dk laiw.kZ O;; fnyk;k tkos ,oa vU; lgk;rk eku- U;k;ky; tks Hkh oknhx.k ds i{k esa mfpr le>s] oknhx.k dks fnykbZ tkosA** 11 . Before adverting to the case set up by the defendants in their written statement, it would be necessary to give brief history of the previous litigation between the plaintiffs and the Mats ya Mahasangh as borne out from the record of the case which finally culminated before the Supreme Court. 12 . The plaintiffs had filed Civil Suits against Matsya Mahasangh for declaration and permanent injunction in respect of land out of Khasra No.39/1. S uch suits were decreed on 30.09.2002. Matsya Mahasangh filed first Appeal under Section 96 of the Code of Civil Procedure before the High Court, and the same was disposed off by the judgment and order dated Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM 16.12.2004 remanding the matter before the trial Court with a direction to dispose off the same in accordance with law. After th remand, learned 5 Additional District Judge, Bhopal by judgment and decree dated 29.08.2005 and 27.09.2005 again decreed the suits in favour of the plaintiffs. In such proceedin gs i.e. after remand, Matsya Mahasangh remained ex -parte.
However, learned trial Court found that the plaintiffs are the exclusive owners in possession over the suit land which they had purchased by different sale deeds. The trial Court further held that State of Madhya Pradesh was not a necessary party in such proceedings.
13 . Against the aforesaid ex -parte judgment and decree, Matsya Mahasangh filed applications under Order 9 Rule 13 of the Code of Civil Procedure. Such applications were dismissed by th e trial Court on 29/08/2007, which were challenged by filing Misc. Appeals before the High Court. All such miscellaneous appeals were dismissed by order dated 16/05/2008. The Matsya Mahasngh, thereafter, filed Special Leave Petitions before the Supreme Cou rt, and the same were also dismissed by order dated 14/10/2008. However, the Hon'ble Supreme Court while dismissing the Special Leave Petition observed that "it is open to the petitioner to urge its contentions in any other appropriate Court."
14 . After d ismissal of the Special Leave Petition by the Supreme Court, the Matsya Mahasangh filed First Appeals under Section 96 of the Code of Civil Procedure before the High Court along with an application for condonation of delay against Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM judgment and decree dated 29/08/2005. The High Court by order dated 05/12/2008, dismissed the First Appeal by order dated 05/12/2008. The Matsya Mahasangha again challenged the order dated 05/12/2008 by filing Special Leave Petitions before the Supreme Court. Such Special Leave Pe titions were also dismissed by the Supreme Court by order dated 12/01/2010 with observations made therein. Para 11 of such order which is relevant for the purpose is quoted hereunder: -
"The petitions are dismissed as no ground is made out to grant leave. I n view of its depreciable conduct, we levy costs of Rs.2000/ - in each of these cases payable by the petitioner to the respective respondent. We however, make it clear that if Government of Madhya Pradesh has any claim over the land in question this will no t come in the way of the Government establishing its title in appropriate proceedings."
15 . Thus, in a long drawn legal battle between the plaintiffs and Matsya Mahasangh, it was found that the plaintiffs are the exclusive owners in possession of their r espective land out of Khasra No. 39/1 and that the Matsya Mahasangh has absolutely no right, title or interest over the same. 16 . The defendants had filed their Written Statement denying the plaint allegations and inter -alia submitted that the suit land w as recorded as ' Charokhar ' from 1935 to 1948, and therefore, the same could not have been allotted to Abdul Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Shakoor; revenue records cannot be altered without an order of Naazim; the order of Settlement by the Chief Secretary ( Sarf -e- Khas) is illegal and the subsequent entries made in the revenue records on the basis of such order of settlement are illegal and unauthorized. The defendants further submitted that an order dated 03/03/2011 passed the Sub Divisional Officer (defendants No.2) was legal exercise of jurisdiction by him under Section 57 of the 1959 Code and such proceedings were 'appropriate proceedings' in view of the order of Supreme Court dated 12/01/2010 wherein the State Government was given the liberty to establish its title in appropriate pr oceedings.
17 . The learned trial Court framed five issues and the
same are quoted hereunder: -
^^ 1 - D;k oknhx.k Hkwfe [kljk ua0 39@1 ds LokfeRo ,oa vkf/kiR;/kkjh gS \ 2-D;k vuqfoHkkxh; vf/kdkjh }kjk ikfjr vkns'k fnukad 03@03@11 vof/k ,oa 'kwU; gSA 3-D;k o knhx.k izfroknhx.k ds fo:) fookfnr Hkwfe ij muds vkf/kiR; esa n[kyankth djus ls jksdus ds fy;s fu"ks/kkKk dk vuqrks"k ikus ds vf/kdkjh gS \ 4-D;k okn dk mfpr ewY;kadu dj bls i;kZIr U;k;'kqYd ij is'k fd;k x;k gS \ 5-lgk;rk ,oa O;;** 18 . On behalf of the pl aintiffs, Shri Harish Khandelwal was examined as PW -1. The plaintiffs filed Exhibits P/1 to Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM P/247 in support of their case. The defendants examined Shri Varun Awasthi, Additional Tahsildar as DW -1 and filed three documents (Exhibits D/1 to D/3) in support of their case. 19 . The learned trial Court by impugned judgment and decree dated 22/07/2013 dismissed the plaintiffs' suit. The learned trial Court held that the plaintiffs are in possession of the suit property, but they are not the owners thereof. The learned trial Court further held that the order of the Sub Divisional Officer dated 03/03/2011 contained in Exhibit -P/200 is absolutely legal and within the purview of Section 57 (2) of the 1959 Code.
20 . Being aggrieved by the aforesaid judgment and decre e dated 22/07/2013, the plaintiffs have filed the instant First Appeal. The plaintiffs have also filed an application under Order 41 Rule 27 of the Code of Civil Procedure ( I.A. No. 10879/2014). Along with such application, the plaintiffs have filed the Re gister Dakhil Kharij for the years 1938 to 1951, Register Hukook for the years 1938 to 1951. Urdu Rajputra (Page No. 119) dated 16/05/1949 and have submitted that all such documents are public documents and beyond suspicion. The Dakhil Kharij Register has been filed to show that lawful entries in respect of the suit land made in favour of erstwhile owner over the same and Urdu Rajputra dated 16/05/1949 to show that the Chief Secretary, Government of Bhopal was known as Sarf - e-Khas and was authorized to make an Order of Settlement. The defendants did not file any reply to the said application. On being questioned, the defendants did not oppose for taking the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM said documents on records as the same are public documents and can be read in evidence.
21 . The main issues to be decided in the instant appeals
are as follows: -
(I) Whether the plaintiffs are the
owners in possession of the suit land ?
(II) Whether, an order dated
03/03/2011 passed by the Defendant No.2
in exercise of power under Section 57 (2)
of the 1959 Code is legal and justified ?
(III) Whether, an application under
Order 41 rule 27 of the Code of Civil
Procedure filed by the plaintiffs/appellants in the instant appeal is liable to be allowed ?
22. It would be appropriate to take up the Issue No. (III) for discussion first i.e. whether an application under Order 41 rule 27 of CPC filed by the plaintiffs deserves to be allowed.
23. The documents filed along with the application under Order 41 Rule 27 of the Code of Civil Procedure are the certified copies of "Register Dakhil Kharij" and "Register Hukook", which are the public documents and are related to land including Khasra No. 39, which is a suit property situated in Village K otra Sultanabad, Tahsil Huzur, District Bhopal (M.P.). The plaintiffs have submitted that they have made efforts for summoning the original records before the trial Court, and that being so, during the pendency of the suit also, there was due diligence on the part of the plaintiffs to summon the aforesaid Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM record. The plaintiffs have filed another document i.e. a notification dated 16/05/1949 to show that the Chief Secretary, Government of Bhopal is known as Sarf -e-Khas.
24. As stated above, all the aforesa id documents sought to be filed are the public documents, the genuineness of which cannot be doubted and that such documents are directly related to the suit property and the issues involved in the suit, and further in absence of any opposition to the same , the application deserves to be allowed and consequently the documents are liable to be taken on record and would be considered at an appropriate stage for deciding the other issues involved in the case.
25. Issue Nos. I and II are inter connected and th erefore, the same are required to be dealt with simultaneously.
26. In order to answer the aforesaid issues, it would be necessary to refer the pleadings of the parties as also various documents which have been duly exhibited and proved by the plaintiffs in support of their case.
27. The plaintiffs have filed Exhibits P/2 and P/3 to show that the suit property i.e. Khasra No. 39 which initially comprised of 9.65 acres of land was recorded as "Charokhar land" and 30 Mahua trees were standing thereon, and t hat such land was given for collecting Mahua seeds to one Mohd. Abdul Shakoor on Patta on year to year basis. The said Exhibits -P-2 and P -3 are of the years 1943 and 1948. The plaintiffs have further filed a Khasra for the year 1949 as Exhibit P/4. The Col umn No. 19 of such Exhibit P/4 indicates that the then Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Secretary of State i.e. Sarf -e-Khas had passed an order of Settlement No. 493 dated 17/09/1948 in Case No. 121 year 1948 -1949, Head No. 9, C -Ga -Revenue and an order in Tahsil Case No. 460.C -Ga Regist rari dated 14/01/1949 by which settlement in respect of land out of Khasra No. 39, area 9.65 acres was made in the name of one Mohd. Abdul Shakoor. Thus, Exhibit P/4 refers to an order of Settlement dated 17/09/1948 passed by the then Secretary i.e. Sarf -e-Khas of the Government of Bhopal by which the aforesaid land was settled in the name of Mohd. Abdul Shakoor. This is the basis document on the basis of which, the plaintiffs have submitted that Mohd. Abdul Shakoor had become the owner in possession of the suit property. Exhibit P/4 further indicates that there were other lands also which were settled in favour of Mohd. Abdul Shakoor by the same order of Settlement i.e. dated 17/09/1948 in favour of Mohd. Abdul Shakoor.
28. The Mutation Register (Exhibit P/6) indicates that the name of Mohd. Abdul Shakoor is recorded against Khasra No. 39.
29. The plaintiffs have submitted that Mohd. Abdul Shakoor had given the aforesaid land out of Khasra No. 39, area 9.65 acres to his wife Smt. Shahida Bano in Mehar. Ac cordingly, the name of Smt. Shahida Bano was recorded over the aforesaid land in Khasra for the year 1950, which has been filed as Exhibit P/5. In Column No. 19 of such Khasra, Reference of Order Tahsil Shahbad Case (Misli) No. 255, Head No. 1, Year 1949 -1950 AD, C -Ga, Registrari 13/08/1949 is Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM mentioned, pursuant to which the name of Smt. Shahida Bano came to be recorded over the said land. Mutation Register (Exhibit P/7), Register of Right (Exhibit P/8), Khasra for the year 1953 (Exhibit P/10 (A) have been filed to show that Shahida Bano was recorded as owner in possession over the aforesaid land.
30. Smt. Shahida Bano being the owner in possession of the land out of Khasra Nos. 39, area 9.65 acres, sold the same by registered sale deed dated 28/05/1953 (E xhibit P/9) to Hakim Hamidullah Khan. It is relevant to mention here that by such sale deed dated 1953 various other lands were also sold to Hakim Hamidullah Khan. The total area of which was 79.84 acres. After purchase of such land by Hakim Hamidullah Kh an his name was recorded in Khasra for the years 1954 to 1958 and from 1959 to 1984 -85 (Exhibits P/11 to P/32).
31. After the death of Hakim Hamidullah Khan, his niece Razia Bano and inherited his property. She had filed a return under the Ceiling of Agri cultural Holdings Act, 1960 (for short "1960 Act ") on 31/01/1974 (Exhibit P/33). In such ceiling proceedings, a final order dated 11/11/1983 (Exhibit P/35) was passed by Assistant Commissioner, Bhopal Division, Bhopal (M.P.) by which land ad -measuring 2.85 acres was declared surplus out of Khasra No. 39. As stated above, the total area of Khasra No. 39 was 9.65 acres. 2.85 acres of land was declared as surplus, and thereafter, remaining land with Razia Bano was 6.80 acres. Thus, Razia Bano had become owner in possession of the land ad -measuring 6.80 acres. It would be relevant to Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM mention here that since the Assistant Commissioner, Bhopal Division, Bhopal (M.P.) had treated the land out of Khasra No. 39 to be a personal property of Razia Bano, therefore, lan d ad - measuring 2.85 acres was declared as surplus. The State Authorities did not contend that Smt. Razia Bano was not the owner in possession of the said property and that the State alone was the owner of the same. Thus, since, 1948 till 1983, there has be en no dispute that the land out of Khasra No. 39 is a private property and not the State property.
32. After the aforesaid ceiling proceedings, Smt. Razia Bano filed an application under Sections 109 and 110 of the 1959 Code for recording her name over th e remaining land i.e. 6.80 acres out of Khasra No. 39 on 21/06/1984 (Exhibit P/37). The Tahsildar, Tahsil Huzur, Bhopal passed an order dated 18/02/1985 (Annexure P/36) directing that the name of Smt. Razia Bano be recorded over the said land. A Namantara n (Mutation Panji) was prepared, which has been filed as Exhibit P/35, in which the name of Razia Bano was recorded over the suit property.
33. The proceedings under the provisions of Urban Land Ceiling Act, 1976 (for short "1976 Act" ) were also initiate d against Smt. Razia Bano. The Competent Authority under the 1976 Act passed an order dated 23/01/1995 (Exhibit P/40) that there is no vacant urban land and the proceedings were accordingly dropped.
34 . Smt. Razia Bano had sold 3 acres of land out of Khas ra No. 39 to Maruti Grah Nirman Sahkari Samiti Maryadit, Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Bhopal (for short "the Society" ) by two registered sale deeds dated 30/01/1995 and 01/02/1995. Thereafter, the Society sold the said 3 acres of land to the plaintiffs Nos. 1 to 10 by different sale d eed in the year 1995. Copies of such sale deeds have been filed as Exhibits P/52 to P/61.
35. Smt. Razia Bano had sold the remaining 3.80 acres of land out of Khasra No. 39 by various sale deeds in the year 1995 to the plaintiffs No. 11 to 20. Copies of such sale deeds were filed as Exhibits P/41 to P/50. Thus, the entire suit land has been sold to the plaintiffs Nos. 1 to 20 by different sale deeds contained in Exhibits P/41 to P/50 and Exhibits P/52 to P/61. Therefore, the contention of the plaintiffs i s that they have become the owners in possession of respective land which they had purchased by different sale deeds.
36. Bhooadhikar and Rin Pustika were issued to the plaintiffs No. 1 to 20 contained in Exhibits P/62 to P/82. The names of the plaintiffs are recorded in Mutation Register contained in Exhibits P/83 to P/84 showing them as the owners in possession over the respective land.
37. The names of the plaintiffs are recorded in the Khasra Panchsala for the year 1995 -1996. Copies of Khasra have bee n filed as Exhibits as P/85 to P/104. The names of the plaintiffs are further recorded in Khasra upto the year 2010 as evident from Exhibits P/171 to P/189. Nazul NOCs have been issued in favour of the plaintiffs vide Exhibits P/105 to P/123.
38. Diversio n Orders dated 08/03/1996 were passed by the Assistant Settlement Officer under Section 172(1) of the 1959 Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Code in favour of the plaintiffs which were filed as Exhibits P/124 to P/142. The plaintiffs deposited diversion charges vide Exhibits P/143 to P/151 .
39. The Joint Director, Town and Country Planning, Bhopal had granted permission for development of group housing by sanction letter dated 24/06/2020. Sanction letter and Sanctioned layout have been filed as Exhibits P/152 and P/153 respectively. The M unicipal Corporation, Bhopal has also granted building permission vide letter dated 24/01/2001 (Exhibit P/155). The Municipal Corporation, Bhopal had demanded various charges and the same was deposited by the plaintiffs on 03/02/2001. The receipt showing p ayment of such chargers has been filed as Exhibit P/156.
40. Earlier Smt. Razia Bano had submitted an application for demarcation before the Tahsildar on 15/12/1994 (Exhibit P/158). After purchase of the suit land by various sale deeds referred to above, the plaintiffs filed an application for demarcation. By order dated 26/06/2008 direction was issued by the Tahsildar for undertaking demarcation of the suit land. Order sheets of demarcation proceedings have been filed as Exhibit P/159.
41. It would be re levant to mention here that Matsya Mahasangh had also filed an application for demarcation and the same was rejected by the Tahsildar, vide order dated 13/02/2009 (Exhibit P/160). The Matsya Mahasangh claimed ownership over the suit land on the ground that the same was acquired in the year 1962. Thus, Matsya Mahasangh had raised title dispute in Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM respect of the suit land on the basis of acquisition of the same in the year 1962. On the contrary, the plaintiffs claimed title over the suit land on the basis of various registered sale deeds as referred to above.
42. A complaint was made to the Economic Offences Wing that the land in question belongs to Matsya Mahasangh. The Economic Offences Wing submitted its report to State Government on 24/10/2001 (Exhibit P/ 163) that the suit land is not a Government land. Relevant port of the report is quoted hereunder: -
^^ mijksDr izfrosfnr ds uRFkh ds vk/kkj ij ;g fu"d"kZ fudyrk gS fd dksVjk lqYrkukckn Hkksiky dh [kljk ua - 39@1 dh Hkwfe jdck 6 -80 ,dM+ e-iz- 'kklu ds Hkw Lo kfeRo dks ugh dhA bl Hkwfe dk vkf/kiR; yksd ;kaf=dh foHkkx e -iz- ds eRL; foHkkx rFkk eRL; foHkkx ds eRL; egkla?k dks varfjr ugh fd;k vkSj u gh eRL; foHkkx us bl Hkwfe ij dksbZ fuekZ.k deZ fd;k FkkA oLrqr% ;g Hkwfe o"kZ 1950 ls vkt fnukad rd v'kkldh; Hkw Lo kfeRo dh jgh gSA bu fu"d"kZ ds vk/kkj ij C;wjks us bl izkjafHkd tkap dks uLrhc) fd;s tkus dk fu.kZ; fy;k gSA**
43. A question was raised before the Madhya Pradesh Vidhan Sabha as regards the suit land wherein the Government had submitted its reply vide document dated 17.02.2005 (Exhibit -P/165) that the suit land is a private land. Relevant portion of document is quoted hereunder: -
^^jktL; ea=h ¼Jh fnyhi HkVSjs½% ¼d½ xzke dksVjk lqYrkukckn dks o"kZ 1960 ls [kljk ua - 39 gdhe gehnqYyk [kka firk bTtr mYyk [k ka ds uke ls o"kZ 1983&84 rd yafcr jgh - izdj.k dzekad 47@v&6@83&84 esa rglhynkj dks vkns'k fnukad 14&2&85 ds }kjk Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM [kljk esa - 39@1 {ks=Qy jdck 6 -80 jft;k ckuksa csok eksglu vyh fuoklh Hkksiky ds uke ukekarj.k Lohd`r fd;k x;k gS - ,oa izdj.k 1278&79 vkns'k fnukad 11&11&83 ds }kjk [kljk ua - 39@2 jdck 2- 85 ,dM+ e/;izns'k 'kklu ¼lhfyax½ ntZ fd;k x;k - ¼[k½ th gk -
vkokl ,oa i;kZoj.k foHkkx ds vkns'k dzekad ,Q 3&51@98@32] fnukad 22 Qjojh] 2000 }kjk ¼x½ orZeku esa mDr [kljk ua - 3911 ds dbZ cVku gksus ds ckn futh Hkwf e Lokeh ds uke ntZ gS] rFkk [kljk dzekad 39@2 jdck 2-85 ,dM+ e/;izns'k lhfyax ntZ gSA**
44. On 29.05.2007 (Exhibit -P/166), the Nazul Officer had also submitted his report to the Collector, Bhopal that the suit land is a private land.
45. Since Matsya Mahansangh had started laying its hand over the suit land on the basis of the acquisition of land in the year 1962, therefore, the plaintiffs had individually filed Civil Suits in the year 2001 in the Court of 9 th Additional District Judge, Bh opal. It would be relevant to mention here that the plaintiffs had filed an application under Order 1 Rule 10 of the Code of Civil Procedure in such suit for impleadment of the State of Madhya Pradesh as a party. The State of Madhya Pradesh was noticed on such application, and thereafter, the same was dismissed vide order dated 13.09.2001 (Exhibit -P/168). Thus, the State had become aware that the plaintiffs are claiming title over the suit land, yet the same was not denied or disputed by the State. However, an application for impleadment was dismissed by order dated 13.09.2001 as stated above as the Court did not find that the State is either a necessary or proper party to the suit.
46. The aforesaid Civil suit was eventually decreed by judgment and decree dated 30.09.2002 (Exhibit -P/190). The Matsya Mahasangh had Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM filed an appeal under Section 96 of the Code of Civil Procedure before the High Court. The High Court by judgment and order dated 16.12.2004 (Exhibit-P/191) remanded the case to the trial Court.
47. After the remand of the Civil Suit by the High Court, the Matsya Mahasangh remained ex -parte before the trial Court. The trial Court again decreed the suit by judgment and decree dated 29.08.2005 (Exhibit -P-
192). This judgment and decree was passed ex -parte.
48. The Matsya Mahasangh had filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex -parte judgment and decree dated 29.08.2005. This application was dismissed by the trial Court vide order dated 29.08.2007 ( Exhibit-P-193). Against dismissal of such application, the Matsya Mahasangh had filed Miscellaneous Appeal before the High Court and the same was also dismissed by order dated 16.05.2008 (Exhibit-P-194). The Matsya Mahasangh thereafter filed Special Leave Petition before the Supreme Court, but the same was also dismissed by order dated 14.10.2008 (Exhibits -P-196 and P -197). However, the Hon'ble Supreme Court while dismissing the Special Leave Petition observed that "it is open to the petitioner to urge its contentions in any other appropriate Court."
49. After dismissal of the aforesaid Special Leave Petition by order dated 14.10.2008, the Matsya Mahasangh filed Regular First Appeal under Section 96 of the Code of Civil Procedure challenging the judgment a nd decree dated 29.08.2005. This First Appeal was dismissed by the High Court by order dated 05.12.2008 (Exhibit -P-198) being barred by time. The Matsya Mahasangh had filed Special Leave Petition before the Supreme Court, and the same was also dismissed by order dated 12.01.2010 (Exhibit -
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AMP-199). However, while dismissing such Special Leave Petition, the Supreme Court observed: -
"The petitions are dismissed as no ground is made out to grant leave. In view of its depreciable conduct, we levy costs of Rs. 200 0/- in each of these cases payable by the petitioner to the respective respondent. We however, make it clear that if Government of Madhya Pradesh has any claim over the land in question this will not come in the way of the Government establishing its title in appropriate proceedings."
50. From the aforesaid enunciation of facts, it would be clear that in a long drawn legal battle, it was held that the plaintiffs are the owners in possession of the suit land and that such land was never acquired, and therefore, the Mastya Mahasangh had no right, title or interest over the same. It is further submitted that during such legal battle between the plaintiffs and Matsya Mahasangh as regards title dispute in respect of the suit land, the State of Madhya Pradesh, at no point of time claimed its title over the same, though it had repeated opportunities to do so.
51. From the preceding discussion, it would be evident that first registered sale deed was executed by Smt. Shahida Bano in respect of the suit land on 28.05.1953 (Exhibit-P-9) to Hakim Hamidullah Khan. After the death of Hakim Hamidullah Khan, his niece Smt. Razia Bano inherited the suit property. Smt. Razia Bano had filed her Return under the provisions of the 1960 Act, and 2.85 acres of land out of Khas ra No. 39 was declared surplus. On the remaining land i.e. 6.80 acres, the name of Smt. Razia Bano was recorded under Sections 109/110 of the 1959 Code by order dated 18.02.1985 (Exhibit -P-36) passed by the Tahsildar, Tahsil Huzur, District Bhopal. Accordi ngly, the name of Smt. Razio Bano was entered in Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Namantaran Panji (Mutation Panji) (Exhibit -P-35). Smt. Razia Bano had sold 3 acres of land to the Society. The Society sold the said 3 acres of land to the plaintiffs No. 1 to 10 by different registered sale deeds in the year 1995 (Exhibits -P-52 to P -61). Smt. Razia Bano had sold remaining 3.80 acres of land by various registered sale deeds in the year 1995 (Exhibits -P- 41 to P-50) to the plaintiffs no. 11 to 20. Thus, the entire suit land was sold by Smt. Razia Bano in the year 1995.
52. After purchase of the suit land by various sale deeds, the Bhooadhikar and Rin Pustikas were issued in favour of the plaintiffs contained in Exhibits -P-62 to P -82. Their names are recorded in Mutation Register showing them as the owners in possession of the same vide Exhibits-P-83 and P-84. The names of the plaintiffs have also been recorded in Khasra Panchsala upto the year 2010 vide Exhibits -P-85 to P-104 and P - 171 to P-189. Nazul NOCs issued in their favour are contained in Exhibits- P-105 to P-123. Diversion orders were also passed under Section 172 (1) of the 1959 Code in favour of the plaintiffs (Exhibits -P-124 to P -151). The Joint Director, Town and Country Planning, Bhopal had granted development permission for group h ousing vide Exhibits -P-152 and P -153. The Municipal Corporation, Bhopal had granted building permission vide letter dated 24 -6-2001 (Exhibit -P-155). The requisite charges were also deposited by the plaintiffs for obtaining building permission vide Exhibit -P-
156. The demarcation proceedings were also undertaken initially at the instance of Smt. Razia Bano, and thereafter, the plaintiffs by the Tahsildar, Tahsil Huzur, District Bhopal. Thus, till 2010 the State Authorities never disputed the title of the plai ntiffs over the suit land. Various permissions / sanctions / NOCs were granted at different points of time by different State Authorities in favour of the plaintiffs. All such permissions / sanctions / Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM NOCs were granted treating the suit land to be a priva te land. There has been no dispute, at any point of time, between the plaintiffs or their predecessors-in-title and the State as regards the title over the suit land. As submitted earlier, by an order of Settlement dated 17.09.1948, the suit land was settl ed in favour of Mohd. Abdul Shakoor. Since then his successors and the transferees are enjoining the suit land as a private land. In the last more than 62 years i.e. since 1948 till 2010, the State did not dispute that the suit land is not a private land b ut a Nazul land. In addition, the report dated 24.10.2001 (Exhibit -P-163) of the Economic Offences Wing of the State Government as also the reply of the Revenue Minister vide document dated 17.02.2005 (Exhibit -P-165) in the Madhya Pradesh Vidhan Sabha that the suit land is a private land leaves no manner of the doubt that the State itself had considered the suit land to be a private land, throughout, and now the State cannot turn round and be permitted to say that the suit land is not a private land.
53. The observations made by the Supreme court in an order dated 12.01.2010 (Exhibit -P-199) that if the Government of Madhya Pradesh has any claim over the land in question, the said order would not come in the way of Government establishing its title in appro priate proceedings cannot be construed to mean and understand that the State had any right, title or interest over the suit land. But, the Nazul Officer on the basis of the aforesaid observations made by the Supreme Court, for the first time, issued show c ause notice dated 31.05.2010 (Exhibit -P-202) under Section 57 of the 1959 Code, inter alia stating therein that between years 1943 to 1950, the Government land was recorded as "Charokhar" in the revenue record; in the remark column of Khasra for the year 1 950, it is mentioned that Mohd. Abdul Shakoor had given Khasra No.39 to his wife Smt. Shahida Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Bano in Mehar; perusal of the Khasra for the year 1948 indicates that in the remark column, Khasra Nos. 38 and 39 were given to Mohd. Abdul Shakoor for one year on contract basis, and therefore, the same could not have been a subject matter of Mehar to his wife Shahida Bano. The plaintiffs were required to show cause as to how the aforesaid government land and for what purpose has been transferred in their favour. The plaintiffs were also required to submit their documents of title.
54. The plaintiffs submitted an application under Section 32 of the 1959 Code read with Section 151 of the Code of Civil Procedure (Exhibit - P-203) on 21.06.2010 for supply of necessar y documents to file reply to the aforesaid Show Cause Notice. No documents were supplied pursuant to such application, yet the plaintiffs filed reply dated 28.06.2010 (Exhibit -P-
204) to the aforesaid Show Cause Notice. On 23.07.2010 the plaintiffs submitted Written Arguments contained in Exhibit -P-205. Another Show Cause Notice dated 20.08.2010 was issued by the Sub Divisional Officer under Section 57 (2) of the 1959 Code for taking action against the plaintiffs. A copy of such Show cause notice has been fi led as Exhibit -P-
206. The plaintiffs again submitted reply to the second show cause notice on 20.08.2010 vide Exhibit-P-215.
55. The Sub Divisional Officer (Respondent no.2) passed an order dated 03.03.2011 directing the name of the Government to be reco rded over the suit land under Section 57 (2) of the 1959 Code. A copy of such order dated 03.03.2011 has been brought on record as Exhibit -P-212. The reasoning given by the defendant no. 2 in his order directing to record Government name over the suit land is that the same was recorded as "Charokhar" for the years 1935 to 1948 and that the revenue records cannot be altered without an order of Nazim. It is further held in such order, that Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM the settlement of land by order dated 17.09.1948 by the Chief Secretar y (Sarf-e-Khas) is illegal, as he had no authority to do so under the provisions of the Bhopal Land Revenue Code, 1932 ( for short "1932 Code "). He further held in such order that the entries in the then revenue records are illegal and unauthorized. Accordi ngly, the name of the Government was directed to be recorded over the suit land. The order dated 03.03.2011 led to be filing of the Civil Suit by the plaintiffs.
nd
56. 1959 Code had come into effect from 2 October, 1959. In order to proceed further and also to ascertain the true scope and ambit of Section 57 of the 1959 Code, it would be relevant to quote Section 57 as under :-
57. State ownership in all lands. -- (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub -soil of any land are the property of the State Government:
[Provided that nothing in this section shall, save as otherwise provided in t his Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.] (2) Where a dispute arises between the State Government and any person in respect of any right under sub -section (1) such disput e shall be decided by the (Sub-divisional Officer).
(3) Any person aggrieved by any order passed under sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order.
(3-a) (a) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) no Civil Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Court shall, in a civil suit instituted under sub -section (3) on or after 24th October, 1983, by order of temporary injunction disturb the person to whom possession is restored under Section 250 if such person furnishes a reliable surety to recompensate the aggrieved party against any loss in case the Civil Court grants a decree in favour of the aggriev ed party:
Provided that no surety shall be required to be furnished by a member of a tribe declared to be an aboriginal tribe under sub-section (6) of Section 165;
(b) Where a Civil Court by an order of temporary injunction disturbed the person referred to in clause
(a) on or after 24th October, 1983 but before the publication of Revenue Department's Notification No. 1-70-VII-N-2-83, dated 4th January, 1984 such order shall abate on such publication an d the Tahsildar shall restore possession to a person who is disturbed by such order.
(4) Where a civil suit has been instituted under sub -
section (3) against any order such order shall not be subject to appeal or revision."
57. The proviso to Section 57 (1) specifically provides that nothing in this section shall, save as otherwise provided in the Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.
58. Hakim Hamidullah Khan was rec orded in Khasra Khatouni for the years 1954 to 1958 (Exhibits -P-11 to P -15) and again thereafter for the years 1959 to 1984 -85 (Exhibits -P-16 to P -32). Khasra Khatouni are the Record of Right under Section 108 of the 1959 Code. Thus, Hakim Hamidullah Khan was recorded as the owner in possession of the suit land in the year 1959 i.e. on the date of the coming into force 1959 Code, and Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM also thereafter for a long period. Since in view of the proviso to Section 57 (1), Hakim Hamidullah Khan was recorded as the owner in possession of the suit land on the date of coming into effect 1959 Code i.e. 02.10.1959, therefore, his rights would not be affected in view of deeming fiction provided in the said proviso.
59. Proviso to Section 57(1) of the 1959 Code very clearly provides that nothing in this Section shall, save as otherwise, provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property, and in the light of thi s proviso, the admitted position is that since 17/09/1948 and onwards different persons are shown as the owners in 'Bhumiswami' rights over the suit land. This proviso is complete answer to declare the order dated 03/03/2011 passed by the respondent No.2 a s absolutely illegal. In view of the proviso referred to above, the Sub Divisional Officer could not have declared the Government as owner of the suit land under Section 57(2) of the 1959 Code. The very foundation of the State title, as declared by the SDO , was non est. Proviso to Section 57(1) of the Code does not, in any manner, be construed as the State Government having interest over the suit land. Upon true construction of the aforesaid legal provision, it would completely oust the State Government fro m claiming any right over the suit land. Section 57 (1) of the Code is the foundation of the State title, as per order of the SDO, and if this foundation goes, the case of the Government falls to the ground as house of play cards. The orders of the SDO and that the Additional District Judge impugned in First Appeal, are beyond the scope and limitations of law. The entire factual matrix, as described above, goes to show that the suit land was settled in favour of Abdul Shakoor on 17/09/1948 and the same continued to be recorded in favour of various transferees including the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM plaintiffs, from time to time in view of successive transfers. Their rights are fully protected by the proviso to sub -section (1) of Section 57 of the 1959 Code and this protection cannot be taken away by the irrelevant consideration and interpretation.
60. The finding of the learned trial Court in Paras 30 and 31 of the judgment that proviso to Section 57 (1) of the 1959 Code would not be attracted is thus absolutely illegal. The erstwh ile owner Hakim Hamidullah Khan was recorded as the owner in possession over the suit land in the Record of Rights on the date of coming into force of 1959 Code, therefore, his rights would not be affected in view of proviso to Section 57 of the Code. If Hakim Hamidullah Khan was the erstwhile owner of the suit land, all subsequent transfers would also be absolutely legal and valid and would create a valid title in favour of the subsequent transferees.
61. Thus, the findings of the learned trial Court re corded in paragraphs 33 & 35 that there cannot be presumption of title in favour of the plaintiffs on the basis of possession is absolutely illegal. The plaintiff and their predecessor -in-title are in settled possession over the suit land for more than 70 years without any interruption from any quarter whatsoever, at any point of time and, therefore, such long and settled possession would give rise to title in favour of the plaintiffs in view of Section 110 of the Evidence Act, as also in view of enunciatio n of law laid down in the judgments, referred to hereinafter.
62. The learned trial Court in Paragraph 25 of the judgment has recorded a finding that the Sarf -e-khas (Chief Secretary) did not have the power to make an Order of Settlement in respect of su it land in favour of Abdul Shakoor. It would be relevant to quote the definition of an Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM "Occupant" provided under Section 2 (15) as also Sections 3, 51, 52 and 53 of 1932 Code as follows"-
"2(15) "Occupant" means a person who holds land direct from Governme nt or would do so for the right of collecting land revenue having been assigned or relinquished;
3. The Chief controlling authority in all matters connected with land revenue is the Government of Bhopal:
51. Subject to rules made under this Act, the right to occupy and Disposal of unoccupied land shall be disposed of by the Nazim, who land, may require the payment of a single premium for such right or may auction
52. (1) The person who acquires the right to occupy land under the Inst preceding section is ca lled an occupant of such land, and shall hold it in accordance with the provi (2) All persons who, prior to the commencement of this Act, have been entered in settlement records as responsible for the payment of land revenue to the Government, or who, but for a special arrangement, would have been so responsible, shall be deemed to be occupants within the meaning of this section.
53. The provisions of sections 51 and 52 shall not apply to -
(a) a village site as determined in section 106;
(b) land situated in the bed of a river;
(c) land leased by the Government for purposes other than agriculture;
(d) land granted or leased by the Government for any special purpose on special terms or for the promotion of special or advanced forms of agriculture."
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM63. Clause 15 of Section 2 provides the definition of an 'Occupant' to mean a person who holds land directly from the Government. Section 51 provides that Right to occupy unoccupied land shall be disposed of by the Nazim. The word 'Nazim' or the Ruler refers t o a Government of Bhopal. In the present case, the Sarf -e-Khas (Chief Secretary) of the Government of Bhopal had made an Order of Settlement dated 17.09.1948 in favour of Abdul Shakoor. Thereafter, Abdul Shakoor had given the said land in 'Mehar' to his wi fe Shahida Bano and her name was accordingly entered in the Mutation Register (Exhibits -P-5, 6, 7, 8 and 10). Such revenue entries after such a long time cannot be said to be illegal. Particularly, when successive transfers have been made thereafter. As al ready stated above Smt. Shahida Bano sold the suit land by registered sale deed dated 28.05.1953 (Exhibit -P-9) to Hakim Hamidullah Khan. Hakim Hamidullah Khan continued to be recorded as owner in possession of the suit land continuously since 1984 -85. After his death¸ his niece Razia Bano inherited the suit land, who sold the same by different registered sale deeds, the details of which are already mentioned above. It is further relevant to mention that revenue entries made in the revenue records in accorda nce with the provisions of 1932 Act can be corrected only in accordance with the procedure mentioned therein and the detailed discussion in that behalf would be made with reference to specific provisions of 1932 Act at a later stage.
64. The learned tria l Court in paragraphs 26 of its judgment has held that the plaintiffs have not produced any order of allotment dated 17.09.1948 and, therefore, in absence of same, it cannot be held that the suit land was ever allotted to Abdul Shakoor. The learned trial C ourt has further held that in the absence of production of actual order of allotment dated Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM 17.09.1948, entry of said order in Exhibit -P-4 cannot be relied upon. The learned trial Court in Para 32 of judgment has further recorded the finding that an entry made in the Register of Rights (Hukook) is suspicious.
65. It would be relevant to mention here that order of allotment dated 17.9.1948 is referred to in the following documents: -
(i) Exhibit-P-4 - Khasra for the year 1949 - In Column No.19 reference of O rder of Settlement dated 7.9.1948 in favour of Abdul Shakoor is mentioned.
(ii) Exhibit-P-6 - Mutation register of 1949 - Name of Abdul Shakoor is recorded on the basis of Order No.4593 dated 17.9.1948. Column No.6 of such Mutation register contains the signature of competent officer.
(iii) Exhibit-P-8 - Register of rights - Name of Abdul Shakoor is recorded after correcting the record. In Column No.5 reference of Sr. No.21 of Mutation Register is mentioned. Column No.6 contains the signature of competent o fficer.
(iv) Exhibit-P-5 - Khasra for the year 1950 - Name of Shaheeda Bano is recorded over the suit land. In Column No.19 of such Khasra, reference of Tahsil missil No.255 Order dated 13.8.1949 is mentioned. In lieu of Mehar amount, Smt. Shaheeda Bano was given the suit land by Abdul Shakoor.
(v) Exhibit-P-7 - Mutation Register of 1950 - Name of Shaheeda Bano is recorded over the suit land on the basis of order of Tahsil Missil No.255 dated 13.8.1948. Column No.6 of such document contains the signature of competent officer.
(vi) Exhibit-P-8 - Register of rights -Recorded corrected name of Smt. Shaheeda Bano. Column No.5 contains reference Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM of Sr. No.23 of Mutation Register. Column No.6 contains the signature of competent officer dated 16.3.1950.
66. From the aforesaid, it would be evident that various revenue records contain reference of original order of allotment dated 17.9.1948 and such entries were never disputed at any point of time. It is to be further stated about the various steps taken by the pl aintiffs for obtaining the order dated 17.9.1948 of Sarf-e-khas.
(a) Ex. P/207 dt. Application under Order 11 Rule 14 CPC filed 13/09/2010 before SDO; To supply documents, Register of the revenue case.
(b) Ex. P/201 dt. Order by the SDO- Application rejected.
05/10/2010
(c) Ex. P/209 dt. Application under Section 151 CPC before the 15/10/2010 SDO for directing the State Government to produce the original records before the SDO
(d) Ex. P/212 dt. Application by the appellants before SDO for 20/08/2010 directing the State Government to supply the documents / records referred to show cause notice
(e) Ex. P/214 dt. Notice by appellants to respondents: to produce 03/01/2011 original documents within 3 days
(f) Ex. P/218 dt. Application under Section 32 of M.P.L.R.C. 08/02/2011 1959 by Appellants: - To provide documents referred to in the show cause notice
(g) Ex. P/223 dt. RTI Application by appellants.
10/02/2012
67. Apart from the aforesaid applications submitted from time to time before the respondent No.2 during the hearing on show the cause Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM notice, the plaintiffs have also submitted the following applications before the trial Court:-
(i) On 16.12.2011: Application under Order 13 Rule 10 CPC : To produce original records of SDO.
(ii) On 06.3.2012: Order by the Trial Court -
Application rejected on the ground that the original records not required to be summoned and that the appellant may file certified copies of the same.
68. The non -production of order dated 17.9.1948 would be inconsequential as the erstwhile owners were recorded in the revenue records which were the Record of Rights and that all such entries were duly signed by the competent officers. At no point of time steps were taken for correction of revenue entries in accordance with the procedure prescribed under the 1932 Act. The name of predecessor -in-title of the plaintiffs was recorded in the revenue records as owners of the suit land in the year 1958 - 59 and, t herefore, their rights had crystallized upon coming into force of 1959 Code w.e.f. 02.10.1959. The plaintiffs had made various efforts for obtaining the order of Sarf -e-Khas by filing repeated applications before the respondent No.2 (SDO) and also before t he trial Court, but the same went in vain. Section 110 of the Evidence Act gives rise to presumption of plaintiffs' title over the suit land as they are in settled possession of the same for last about 70 years.
69. The plaintiffs rely on the decision rep orted in (2003) 3 SCC 472 (Chief Conservator of Forests, Govt. of A.P. Vs. Collector and others.) Paragraphs 19 and 20 of the decision are relevant for the purpose, which is quoted hereunder:-
"19. Section 110 of the Evidence Act reads thus: -Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM
"110. Burden of proof as to ownership. -When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
20. It embodies the pr inciple that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful an d when the contesting party has no title."
70. The plaintiffs further rely on the decision of Supreme Court reported in 1991 Supp (1) SCC 146 [ State of Gujrat Vs. Allauddin Babumiya Shaikh] , wherein it has been held that possession of plaintiffs was fou nd to be long, peaceful and lawful, therefore, the same lends presumption of title. Paragraph 2 of the said judgment is quoted hereunder: -
"2. We find from the order of the Division Bench that the land in question has been in the occupation of those in ch arge of the Wakf since before 1878. The first document on which reliance was placed is of 24th May, 1878, Exhibit
40. It shows an arrangement with Fakir Kalushah who was inducted on the Wakf property for the management of the Mosque as well as the land app urtenant thereto. Ext. 41 is a mortgage deed executed by the sons of said Fakir Kalushah on 4-6-1888 which was later redeemed by Ext. 79 dated 11 -4-1907. The documents Exhts. 42 and 43 are rent notes executed on 19 -4-1927 and 20 -3-
1930. The accounts of the Wakf also show that Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM rent was realised under the Rent notes Exts. 42, 43 and 46 and credited to the wakf. On the basis of this evidence, the Division Bench came to the conclusion that the date of the plaintiffs' entry in the land is shrouded in mystery mea ning thereby that the actual date of entry is not known but could be any time before 1878. The Division Bench, therefore, held that the possession of the plaintiffs was long peaceful and lawful and that it lends presumption of title. It is, therefore, obvi ous from these facts that the plaintiffs were in possession of the land for more than sixty years prior to the institution of the proceedings under Section 37(2) of the Code in 1951. We, therefore, do not see any infirmity in the impugned order of the High Court."
71. Rights of ownership which were existing on the date of coming into force 1959 Code would remain unaffected and substantive provision contained in Section 57(1) thereof would not nullify such right. Indisputably the instant case relates to th e rights existing prior to introduction of 1959 Code, hence Section 57(1) would have no effect on such right. This has been so held by Madhya Pradesh High Court in State of M.P. Vs. Hukumchand Mills Ltd.; Reported in (2018) 4 MPLJ 467. In the facts and cir cumstances of the case, since the rights of the plaintiffs are protected under Section 57 (1) of the 1959 Code, Sub -Section (2) of Section 57 would otherwise not be applicable.
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM72. In the year 1959 i.e. on the date when 1959 Code had come into force, th e State Government had the knowledge that the predecessor -in -title of the plaintiffs were the recorded owners of the suit land, but the State did not object to their title till 2010, when for the first time, the State had come forward claiming its title. I n view of Article 112 of the Limitation Act, the claim of the State of Madhya Pradesh over the suit land otherwise has become time barred in the year 1989. The resultant effect would be that an order dated 03/03/2011 passed by the respondent No.2 declaring the State to be owner of the suit land is devoid of any merit, and therefore, the said order deserves to be set aside.
73. At this stage, it would be relevant to quote Sections 89, 90, 91, 93 and 95 of the Bhopal State Land Revenue Code, 1932 (for short "1932 Act "). Sections 89, 90, 91, 93 and 95 of the Bhopal State Land Revenue Code, 1932 are quoted as under: -
"89. The Record of Rights in each village shall comprise: What a Record of Rights comprise -
(1) a field map of the village;
(2) a register, to be called the "register of rights", showing all persons who are holders of land and the nature and extent of their interests and the conditions and liabilities, if any, attaching thereto;
(3) a statement of common rights and village customs. The stateme nt ball be called the "village administration paper" or wajib -ul -arz;Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM
(4) any other document which the Government may by rule direct to be included in the record.
90. The Government shall prescribe what rights shall be deemed to Rights donating constitute the holding of land for the purposes of the preceding section.
91. The village administration paper shall include a mention of:
(a) the area determined under Section 106 as the village site;
(b) all the other hand, including roads, r eserved by custom or by the order of Government or by the order by the Nazim under Section 43 for any common purpose;
(c) all nistar rights;
(d) all rights of way and other public easement existing in the village;
(e) the names of village officers and servants and the land and dues received by them in remuneration of their services;
(f) such other matters as the Government may, by general or special order, direct to be included.
93. (I) If any dispute arises about any ent ry to be made in any document of the record of rights, the Tahsildar or other officer preparing the record shall inquire into it of rights. Summarily and shall pass such order as he thinks fit:
Provided that in an alienated village the jagirdar may sho w cause against any entry in the record of rights.
(3) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil court, and the civil court may direct that the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM entry relating to the land shall be altered in accordance with its decision.
(3) Any such order, if passed with reference to a record other than register of rights shall be subject to appeal but shall not be called in question in civil court, except in so far as any private right is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under Section 88.
95. Any entry in the register o f rights shall be presumed to be correct until the contrary is proved, and all other entries in the rights to be presumed record of rights, subject to any change which may be to be correct. Ordered in appeal, revision or review only or by a civil court under sub -section (3) of Section 3, shall be conclusive evidence of the facts to which they relate."
74. The perusal of Section 89 quoted above provides that a record of right in each village shall compromise a register, to be called the Register of Righ ts showing all persons, who are holders of land and the nature and extent of their interest and the condition and liabilities, if any, attaching thereto. Section 93(1) provides that if any dispute arises about any entry to be made, in any documents of reco rd shall inquire into it summarily and shall pass an order as he may deem fit. Section 95 provides that any entry in the register of rights shall be presumed to be correct until the contrary is proved, subject to any change, which may be ordered in appeal, revision or review only or by a Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Civil Court under Sub Section 3 of Section 93, shall be conclusive evidence of the facts to which they relate.
75. Along with an application under Order 41 Rule 27 of CPC, the plaintiffs have filed Register Dakhil Kharij a s also Register of Records (Hukook) which is the record of the Rights for the years 1938 to 1951 to demonstrate that initially Abdul Shakoor and thereafter, Smt. Shahida Bano were recorded as owners in possession over the suit land. Shahida Bano is the per son, who had sold the suit property to Hakin Hamidullah Khan by registered sale deed dated 28/05/1953. The aforesaid documents i.e. Register Dakhil Kharij as also Register of Hukook are record of Rights prepared under the provisions of 1932 Act. Apart from the aforesaid documents, voluminous documents have been filed regarding the revenue entries made in the Record of Rights, already referred to above, to show the ownership of the predecessor -in -title of the plaintiffs over the suit land. All such entries m ade in the Record of Rights under the 1932 Act were not corrected in accordance with Section 93, and therefore, such entries would be presumed to be correct and conclusive evidence of the facts to which they relate thereof under Section 95 thereof.
76. Th e plaintiffs have relied upon the decision of the Supreme Court in AIR 1966 SC 1718 (Abdul Waheed Khan Vs. Bhawani and others), wherein it has been held that an entry made in the register of rights and is not corrected in the manner prescribed in Section 9 3, under Section 95, it shall be presumed to be correct until contrary is proved. The effect of such entry, Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM therefore, is only to make it a presumptive piece of evidence in collateral proceedings i.e. to say in a suit based on title, when such an entry in relied upon by the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Thus an entry made under Section 89 gives rise to a conclusive presumption as regards title under Section 95 of the 1932 Act, and that being so, predecessors -in -title of the plaintiffs would be deemed to be the exclusive owners in possession of the suit land.
77. The learned trial Court in paragraph 45 of the impugned judgment has recorded a finding that Section 27 of the Limitation Act would not be of any help to the plaintiffs. The learned trial Court has recorded findings that the plaintiffs have neither pleaded nor proved their title by way of adverse possession. The contention of the plaintiffs is that they are in settled and continuous p ossession since long on the basis of title documents i.e. registered sale deeds in their favour. Since the plaintiffs are claiming possession on the basis of title documents, therefore, there was no occasion or question of pleading and providing their titl e over the suit land by way of adverse possession. The plaintiffs have thus rightly not pleaded title by way of adverse possession over the suit land.
78. The respondent No.2 is exercise of suo motu powers had directed that name of State to be recorded ov er the suit land. The Supreme Court has categorically held in series of judgments that suo motu power is required to be exercised by the revenue authorities within a reasonable time. In this regard reliance has Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM been placed upon decision in the case of Join t Collector Ranga Reddy District and another Vs. D. Narsing Rao and others, (2015) 3 SCC 695. Paragraphs 16 and 17 of this decision are quoted hereunder: -
"16. No time -limit is prescribed in the above section for the exercise of suo motu power but the que stion is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed an order reversing 477 acres of land in Survey No. 36 and 37 of Gopanpally Village for hosue sites to the government employees. In other words, the Government had every occasion to verity the revenue entries pertaining to the said lands while passing the Government Order dated 24/09/1991 but no exception was taken to the entries found. Further, the respondents herein fi led Writ Petition No. 21719 of 1997 challenging the Government order dated 24 -09 -1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from Respondents 1 and 2 herein filed a civil suit in OS No. 12 of 2001 on the file of the Additional District Judge, Ranga Reddy, District praying for a declaration that they were lawful owners and possessors of certain plots of land in Survey No. 36, and after contest, the suit was decreed and said decree is allowed to become final. By impugned notice dated 13 -12 -2004 the suo motu revision power under Section 1660 B referred to above is sought to be exercises after five decades and if it is allowed to do so it would lead to anoma lous position leading to uncertainly and Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM complications seriously affecting the rights of the parties over immovable properties.
17. In the light of what is stated above we are of the view that the Division Bench of the High Court was right in affirming th e view of learned Single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law."
79. The plaintiffs have further relied upon the judgment of the apex court reported in (2010) 8 SCC 467 (Sulochana Chandrakant Galande V. Pune Municipal Transport and others ). Paras 24 to 29 are quoted hereunder: -
" 24. The suit land was acquired in 1979. Revi sion was preferred in 1998, after expiry of about two decades. Section 34 reads as under : -
"34. Revision by State Government -The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under th e provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit .........."
25. Undoubtedly, Section 34 does not prescribe any limitation during which the Revisional power can be exercised by the State Government either on application or suo moto. The question does arise as to whether absence of limitation in Section 34 confers unfettered power to vary or revoke the order Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM of the prescribed authority without any outside limitation in point of duration i.e. does it confer an everlasting or interminable power in point of time . If the contention raised by Mr. Ganguly that such provisions of Section 34 do not prescribe any limitation, and it confers an interminable power upon the State Government in point of time to exercise the Revisional power, is accepted, there will be no fi nality of the proceedings taken under the 1976 Act.
26. In State of Gujarat Vs. Patel Raghav Natha & Ors. AIR 1969 SC 1297, this Court considered a similar provision in Bombay Land Revenue Code, 1879, which also did not provide any limitation for exercisin g the Revisional power by the Commissioner under Sections 65 and 211 of the Code. The Court held that in spite of the fact that the provisions do not prescribe for any limitation for exercising such Revisional powers, "this power must be exercised in reaso nable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order, which is being revised".
The Court further explained that if the power is not exercised within the reasonable time, it may disturb th e possession of the person after an inordinate delay and the occupant who had spent his life savings in developing the land, may lose the benefit thereof. Therefore, the authority must not entertain revisions at a belated stage.
27. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy & Ors., (2003) 7 SCC 667, this Court considered the provisions of the Andhra Pradesh (Tilangana Area) Tenancy and Agricultural Lands Act, 1950, wherein the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM provisions contained in Section 50 -B(4) empowered the s tatutory authority to exercise suo moto revisional power at any time. The Court held as under : -
"9.......Use of the words "at any time" in sub - Section (4) of Section 50 -B of the Act only indicates that no specific period of limitation is prescribed within w hich the suo moto power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo moto power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reaso nable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of t he provisions of other Acts (such as Land Ceiling Act)......... Use of the words "at any time" in sub - section (4) of Section 50 -B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has t o simply proceed on the basis of the dictionary meaning of the words "at any time", the suo moto power under sub - Section (4) of Section 50 -B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertai nty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity.
Exercise of suo mot o power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM particular date. But, that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be und erstood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation."
The said judgment was approved and followed by this Court in State of Andhra Pradesh & Anr. Vs. T.Yadagiri Reddy & Ors., (2008) 16 SCC 299.
28. The legislature in its wisdom did not fix a time limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the Act, 1976. It does not mean that the legislature intended to leave the order s passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State / allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute.
29. In view of the above, we reach the inescapable conclusion that the Revisional powers cannot be used arbitrarily at belated stage for the reason that the order passed in Revision under Section 34 of the Act, 1976, is a judicial order. What should be reasonable time, would depend upon the facts and circumstances of each case."
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM80. In view of aforesaid settled proposition of law, the exercise of sue motu power by the respondent No.2 under section 57 (2) of the Code is otherwise barred by limitation. If at all, he had right to exercise sue motu power, that ought to have been exercised within reasonable time and not after 60 years, since the plaintiffs and t heir predecessors have been claiming suit land by virtue of title in their favour.
81. In view of preceding discussion, the appeal is allowed and the Issues No. I and II are answered in favour of the plaintiffs and the impugned judgment and decree dated 22.7.2013 passed by the Fifth Additional District Judge, Bhopal in Civil Suit No.119 -A/2011 is liable to be and is hereby set aside. The order dated 03.03.2011 passed by the respondent No.2 (SDO) also deserves to be and is hereby set aside. Accordingly, the plaintiffs' suit is decreed, Ex consequenti, the plaintiffs are declared as the owners in possession over the suit land i.e. Khasra No.39/1, area 06.80 acres, situated in Kotra Sultanabad, Bhopal on account of various registered sale deeds in their favou r. Decree be drawn accordingly.
82. A copy of this judgment along with record be sent back to the trial court for its immediate compliance.
(ARUN KUMAR SHARMA) JUDGE JP Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/1/2023 11:29:38 AM