Madhya Pradesh High Court
Vijay Kumar vs State Of M.P. on 2 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:14381
1 S.A. No. 149 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 2nd OF JULY, 2025
SECOND APPEAL No. 149 of 2012
VIJAY KUMAR AND OTHERS
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Santosh Agrawal - Advocate for the appellants.
Shri S.S.Kushwaha, Government Advocate for respondent No.1/State.
JUDGMENT
This second appeal, under section 100 of CPC, has been filed against the judgement and decree dated 23.12.2011 passed by Additional District Judge, Gohad, District Bhind in Civil Appeal No. 63 of 2007, as well as, judgement and decree dated 15.11.2007 passed by Civil Judge Class I, Gohad, District Bhind in a Civil Suit No. 56A of 2007, by which the suit filed by the appellant for declaration of title and permanent injunction has been dismissed.
2. The original plaintiff had expired during the pendency of suit and therefore the present appeal is being prosecuted by his legal representatives.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:14381 2 S.A. No. 149 of 2012
3. It is the case of plaintiffs that original plaintiff was granted oral lease in respect of disputed land i.e. Survey Nos. 303, 304, 305, 306, 307, 308, 309, 310, 312, 315, total area 13 bigha and 9 biswa situated in Village Birkhadi as Up Krishak on annual rent/lagaan of Rs.25/- and Survey No. 317 area 4 Bigha 12 Biswa situated in village Birkhadi was given on oral lease by ex-zamindar on rent/lagaan of Rs.4/- as Gair Maurussi Krishak. After the abolition of zamindari rights plaintiff became Pucca Krishak. Accordingly name of plaintiff was recorded as Pucca Krishak. Later on the Revenue Authorities, without any order of the competent Authority, stopped writing the name of appellant as Pucca Krishak in the revenue records. No notice was given to plaintiff before stopping mentioning the name of plaintiff as Pucca Krishak in the revenue records. Plaintiff was also not aware of the change made in the revenue records. However he is in possession and is title-holder of the land in dispute and he was under the bonafide belief that his name must be continuing in the revenue records. On 16.8.1993 when plaintiff wanted to obtain the certified copy of revenue records then it was refused by the Patwari. An order was also obtained by him from Tahsildar but still the copy was not supplied by Patwari but he was informed verbally that the State Government is recorded as owner and therefore plaintiff was directed to remove his encroachment. Accordingly plaintiff filed an application for correction of revenue records but the application was rejected on the ground that the land in dispute was recorded as Charnoi land and he has no authority to change the record. Against the order of Naib Tahsildar, appellant preferred an appeal which is pending in the court of SDO. In the said appeal, Baijnath, who is father of defendant Nos. 2 to 5 and defendant No.6 Saligram filed an application for getting themselves impleaded on the basis of some false and fabricated document. It was further pleaded that defendant No. 6 is not a Brahmin by caste but he is a Goldsmith. Father of defendant Nos. 2 to 5 and Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 3 S.A. No. 149 of 2012 defendant No.6 by getting themselves impleaded in the appeal, which was pending in the court of SDO, claimed that they are owners and in possession of disputed land. Now defendant Nos. 2-6 are trying to illegally dispossess the plaintiff and accordingly suit was filed for declaration of title as well as for declaring that he is entitled to get his name mutated in the revenue records and it was also prayed that the existing entries in the revenue records be cancelled and permanent injunction order be issued against defendants.
4. Defendant/state filed its written statement denying the plaintiff's averments. It was claimed that the earlier entry which was in the name of plaintiff was illegally made and it was accordingly cancelled after conducting due enquiry. The possession of plaintiff was also denied.
Defendant Nos. 2-6 also filed their written statement. It was denied that plaintiff was ever in possession as Gair Maurusi Krishak. There was no provision for converting Up Krishak to Pucca Krishak after the abolition of zamindari rights. It was claimed that plaintiff had got his name mutated in a forged and fabricated manner. It is claimed that defendant No. 2 to 6 are in possession of the land in dispute for last more than 40 years and accordingly they have acquired Bhumiswami rights. For the said purpose they also filed counter-claim.
5. From order sheet of the trial court dated 18.1.1996, it is clear that written statement and counter-claim were filed by defendant Nos. 2-6 and by the same order the case was fixed for recording of evidence and framing of issues. The order sheet dated 18.1.1996 reads as under:-
18@1@96 i{kdkj iwoZor Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 4 S.A. No. 149 of 2012 izfroknh dz0 2&6 dh vksj ls tokcnkok is'k gqvk A izfrfyfi oknh vf/k- dks nh xbZ A izdj.k ys[kh lk{; ,oa okn iz'u jpuk gsrq fnukad 14-2-96 dks is'k gks A lgh@& lhts,e
6. Since defendant Nos. 2-6 had filed counter-claim, therefore, in fact the trial court should have fixed the case for filing of written statement by the plaintiff but that was not done. However no objection was ever raised either by plaintiff or by defendant Nos 2-6. On 12.4.1996, issues were framed and the case was fixed for recording of plaintiff evidence. Since defendant Nos. 2-6 did not press for framing of issue in respect of counter-claim filed by them and they went ahead with the trial without any objection, therefore, it is clear that they had waived their counter-claim.Thereafter an objection was raised by defendant/state that since the suit was filed against the State Government, therefore, the suit is not maintainable and the plaintiff should have approached the SDO under section 57(2) of the Madhya Pradesh Land Revenue Code. The said objection was allowed by order dated 21.7.1997 and the suit was dismissed on the ground of non-maintainability. It appears that against the order passed by the trial court on 21.7.1997, plaintiff preferred Civil Appeal No. 60 of 1997 and by order dated 20.2.1998 the case was remanded back. It appears that on 29.1.2002 plaintiff had filed the said application under order 22 rule 4 CPC mentioning inter alia that defendant No. 4 Umashankar has expired on 14.9.2001 and since he was not aware of his death therefore his legal representatives could not be brought on record at the earliest. The said application was taken up for consideration on 9.9.2003 and by order passed on the said date the application filed under order 22 rule 4 was rejected on the ground that no application for setting aside abatement or condonation of delay Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 5 S.A. No. 149 of 2012 has been filed. Thereafter the case was fixed for arguments on the question as to whether the suit would stand abated or not. By order dated 23.6.2004, the suit was dismissed as abated. It appears that the order of abatement was set aside by Additional District Judge, Gohad in Civil Appeal No. 34A of 2004 and by order dated 6.12.2006 the matter was remanded back to the trial court. After remand the legal representatives of defendant No. 4 were taken on record.
7. The trial Court after recording evidence dismissed the suit by judgement and decree dated 15.11.2007. Being aggrieved by the judgement and decree passed by the trial court appellants preferred an appeal which too has been dismissed by Additional District Judge, Gohad, District Bhind by judgement and decree dated 23.12.2011.
8. Challenging the judgement and decree passed by the Courts below, it is submitted by counsel for appellants that the Courts below have given a wrong finding of fact that since father of plaintiff was Patwari therefore he had got his name mutated in the revenue records in a clandestine manner. It is submitted that in fact the father of plaintiff was never appointed as Patwari. It is further submitted that an application under order 41 rule 27 was filed by the appellant before the appellate court along with the order of appointment of his father as checker in the office of Deputy Compensation Officer, Pargana Gohad, District Bhind. Thus it is submitted that the findings recorded by the trial court that father of plaintiff was working as Patwari and he had illegally got his name mutated in the revenue records is per se illegal. It is further submitted that the appellate Court should have allowed the application filed under order 41 rule 27 CPC. Accordingly the appellant has proposed the following substantial questions of law:-
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:14381 6 S.A. No. 149 of 2012 "I. That, the whether without setting aside or quashed the order passed in case no. 309/51X53 dated 29.4.1954 which is reflected from the Kahsra Panchsaha Samvat 2010 to 2014, the revenue entry in the name of plaintiff can be changed without giving any opportunity of hearings to plaintiff? Π. Whether, before removing the name of plaintiff from revenue papers the plaintiff was required be heard and if he was not heard any entry made is illegal in the eye of law? III. Whether, Zamindar has right to give land which was recorded as Kadeem on patta and if the land is cultivated by plaintiff since Zamindari time, he became Bhumiswami of same land by operation of law?
IV. Whether, the finding trial court as well as appellate court is perverse?
V. Whether, plaintiff is still in possession, can his suit be said to be barred by limitation as his name was removed from revenue papers without giving any opportunity of hearing? VI. Whether, appellate court has failed to discharge it's duty as per guideline of Hon'ble Apex court reported in 2009 Vol 2 SCC page 619?"
9. Heard, learned counsel for the appellant.
10. The first question for consideration is as to whether the finding recorded by the trial court that father of plaintiff was working as Patwari and therefore he had got the name of plaintiff mutated in the revenue records in a clandestine manner is correct or not?
11. The plaintiff had filed an application under order 41 rule 27 CPC before the appellate court which reads as under:-
vkosnu irz vuqlkj vkns'k 41 fu;e 27 tk0nh0 &&&&&&& A Jheku th lsok esa fuosnu gS fd vih0 dk e`rd firk iVokjh ugha Fkk fdUrq fo}ku v/khuLFk U;k;ky; us fcuk fdlh lk{; ds dYiuk o iz;kl ds Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 7 S.A. No. 149 of 2012 vk/kkj ij fu.kZ; o fMdzh tsjvihy esa e`rd gjh'kadj dks iVokjh ekudj iwoZ esa bUnzkt nqjLr u djkus gsrq vk{ksfir fd;k gS A pwfd v/khuLFk U;k;ky; esa e`rd gjh'kadj iVokjh Fkk ;k ugh fofu'p; ryc fcUnq ugh Fkk bl dkj.k bl laca/k esa dksbZ lk{; izLrqr ugh dh gS fdUrq fu.kZ; o fMdzh esa ;g vlR; o voS/kkfud fVIi.kh djus ls vih0 dks lgh U;k;nku feyus ds fy;s dEiuls'ku vkfQl eas psdj ds in ij gjh'kadj ds dk;Z djus ds izek.k is'k fd;s tk jgs gSa A ;g nLrkost izdj.k ds lgh o U;k;iw.kZ fujkdj.k ds fy;s vko';d gS vkSj U;k;ky; Jheku dks U;k;nku eas lqfo/kk gksxh A vr% izkFkZuk gS fd vkosnu ds lkFk layXu nLrkost vfHkys[k ij fy;s tkus dh d`ik dh tkos ;g lHkh nLrkost yksd nLrkost gSa A izkFkhZ fnkukad %& 5&1&011 fot;dqekj Jksrh & vih0 lgh@& In this application, it is specifically claimed by plaintiff that father of plaintiff was working as checker in the office of Compensation Officer and the finding of trial court that his father was working as Patwari is incorrect, false and illegal observation. Even during the course of arguments, counsel for appellants had insisted on the contents of this application and contended that father of plaintiff was never appointed as Patwari.
12. Vijay Kumar (PW1) in paragraph 7 of his cross-examination has stated as under :-
"7& oknxzLr Hkwfe iVVs ij ,oa tckuh vuqca/k ij tksrus ds ckn esjs firk gjh'kadj vkSj rRdkyhu tehnkj vPNsyky ds chp esa gqbZ FkhA ;g tkudkjh eq>s esjs firkth gjh'kadj us nh Fkh A ;g ckr lgh gS fd esjs firk igys iVokjh Fks A ckn esa nLrkost ys[kd rglhy esa gq;s----- ;g dguk xyr gS fd esjs firk us jktLo fjdkMZ esa vius uke dk QthZ bUnzkt djk fy;k gS A"
13. Thus, it is clear that plaintiff Vijay Kumar (PW1) himself had admitted that his father was working as Patwari. However by crossing all limits of decency, he had alleged in his application filed under order 41 rule 27 CPC that the remark/observation made by the trial Court in its judgement with regard to Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 8 S.A. No. 149 of 2012 the fact that father of plaintiff was working as Patwari is false and illegal. Accordingly, counsel for appellant was confronted with the admission made by plaintiff in paragraph 7 of his cross-examination and the contents of application filed under order 41 rule 27 CPC. Counsel for appellants could not point out the basis for making wild allegation against the trial Court to the effect that false and illegal observation has been made by it.
14. Next question for consideration is as to whether the entry made in the revenue record showing the name of father of plaintiff as Pucca Krishak in the year 1959 is correct or not.
15. The entire case of original plaintiff is based on the ground that the original plaintiff was given oral lease by zamindar. Except Khasra Panchshala of 1959 and onwards, plaintiff has no other document to show that he was ever given any land on verbal lease by the Zamindar. In Khasra (Ex. P/10), it is mentioned that by order dated 29.4.1954 the title of original plaintiff was accepted whereas it is not the case of plaintiff that he was declared as Bhumiswami in the year 1954. Furthermore, copy of order passed by Revenue Court on 29.4.1954 has not been placed on record. In Khasra (Ex.P/10) it is mentioned that the land is charnoi land but in Khasra (Ex.P/11), which is of Samvat 2014 i.e. year 1957 the name of original plaintiff is mentioned as the person who is in possession of the said land. In Khasra Panchshala (Ex.P/12) of Samvat 2019 i.e. year 1962 the name of plaintiff has been mentioned as owner of Survey Nos. 303, 304 and 307 but how and by which order he was declared as Bhumiswami and his name was mutated in the revenue records as owner has neither been produced nor is mentioned in the Khasra Panchshala. In respect of Khasra No. 317 in Khasra Panchshala of Samvat 2019 i.e. year 1962 (Ex. P/13), the land is mentioned as Charnoi land and again it is mentioned that plaintiff is Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 9 S.A. No. 149 of 2012 in possession of the same. Again in Khasra Panchshala of Samvat 2011 i.e. year 1954 (Ex. P/15), the name of original plaintiff is mentioned as owner of Khasra Nos 303-310, 312 and 315 but how the name of original plaintiff was recorded as owner is also not clear. Under these circumstances where the corresponding orders by which the entries were made in the revenue records have not been produced, then the observation made by trial Court that since original plaintiff was working as Patwari therefore he got his name mutated in the revenue records in a forged and fabricated manner, assumes importance. Even the attempt made by plaintiff to overcome the said finding is based on false defence because the contention made by legal representative of original plaintiff in his application filed under order 41 rule 27 is false even to the knowledge of legal representative of original plaintiff because Vijay Kumar (PW1) has admitted that his father was working as Patwari.
16. Since the plaintiff has failed to prove that his father was given any oral lease and he was ever in possession of the property in dispute during the lifetime of Zamindar, coupled with the fact that name of Zamindar who had allegedly given the land on oral lease has also not been disclosed by the plaintiff either in the plaint or in the evidence, coupled with the fact that there is nothing on record to show that land was in the ownership and possession of erstwhile Zamindar, this Court is of considered opinion that the original plaintiff has failed to prove that any land was given to him on oral lease by the Zamindar and has also failed to prove that the revenue entries were made in accordance with law and in compliance of any order passed by the competent authority. Thus, the Courts below did not commit any mistake by dismissing the suit.
17. As no substantial question of law arises in the present appeal, therefore, the appeal fails and is, hereby, dismissed. As a consequence thereof judgement Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:14381 10 S.A. No. 149 of 2012 and decree dated 23.12.2011 passed by Additional District Judge, Gohad, District Bhind in Civil Appeal No. 63 of 2007, as well as, judgement and decree dated 15.11.2007 passed by Civil Judge Class I, Gohad, District Bhind in a Civil Suit No. 56A of 2007 are hereby affirmed.
(G. S. AHLUWALIA) JUDGE (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 7/17/2025 12:10:59 PM