Madhya Pradesh High Court
Babu (Deceased) Through Legal Heirs ... vs Madhu on 3 May, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
- : 1 :-
C.R. Nos. 364/2021,
363/2021 & 365/2021
HIGH COURT OF MADHYA PRADESH : BENCH INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
CIVIL REVISION No. 364 of 2021
BETWEEN:-
BABU (DECEASED) THROUGH LEGAL HEIRS THAWRIYA S/O
1. BABU, AGED ABOUT 82 YEARS, OCCUPATION: AGRICULTURIST
VILLAGE SINGORI, TEHSIL NALCHHA (MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS NAURAM S/O BABU,
AGED ABOUT 62 YEARS, OCCUPATION: AGRICULTURIST
2. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS CHHITAR S/O
BABU, AGED ABOUT 78 YEARS, OCCUPATION: AGRICULTURIST
3. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS BHAGORI D/O
BABU, AGED ABOUT 57 YEARS, OCCUPATION: AGRICULTURIST
4. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS NANIBAI D/O BABU,
AGED ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST
5. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
DILIP S/O SOHAN, AGED ABOUT 47 YEARS, OCCUPATION:
AGRICULTURIST MANDAV, TEHSIL AND DISTRICT DHAR.
6.
PRESENTLY RESIDING AT: VILLAGE SINGORI, TEHSIL
NALCHHA, DISTRICT DHAR (MADHYA PRADESH)
RATAN S/O SOHAN, AGED ABOUT 49 YEARS, OCCUPATION:
AGRICULTURIST MANDAV, TEHSIL AND DISTRICT DHAR.
7.
PRESENTLY RESIDING AT: VILLAGE SINGORI, TEHSIL
NALCHHA, DISTRICT DHAR (MADHYA PRADESH)
DINESH S/O SOHAN, AGED ABOUT 45 YEARS, OCCUPATION:
AGRICULTURIST MANDAV, TEHSIL AND DISTRICT DHAR.
8.
PRESENTLY RESIDING AT: VILLAGE SINGORI, TEHSIL
NALCHHA, DISTRICT DHAR (MADHYA PRADESH)
- : 2 :-
C.R. Nos. 364/2021,
363/2021 & 365/2021
.....PETITIONER
(SHRI MOHAN SHARMA, LEARNED COUNSEL FOR THE
PETITIONERS.)
AND
SHAKUNTALA W/O ASHOK PATIDAR VILLAGE YASHWANT
1.
NAGAR, TEHSIL MHOW (MADHYA PRADESH)
SHOBHA W/O MOHANLAL PATIDAR VILLAGE YASHWANT
2.
NAGAR, TEHSIL MHOW (MADHYA PRADESH)
PREMABAI W/O JAGDISH PATIDAR VILLAGE YASHWANT
3.
NAGAR, TEHSIL MHOW (MADHYA PRADESH)
AMAR (DECEASED) THROUGH LEGAL HEIRS VIRENDRA S/O
4. LATE SHRI AMARSINGH SINGODI MANDAV, TEHSIL AND
DISTRICT DHAR (MADHYA PRADESH)
AMAR (DECEASED) THROUGH LEGAL HEIRS ARJITA S/O LATE
5. SHRI AMARSINGH SINGODI MANDAV, TEHSIL AND DISTRICT
DHAR (MADHYA PRADESH)
MAHESH S/O MANGILAL KULMI VILLAGE YASHWANT NAGAR,
6.
TEHSIL MHOW (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUGH COLLECTOR INDORE
7.
(MADHYA PRADESH)
S.D.O. (REVENUE) DR. AMBEDKAR NAGAR, TEHSIL MHOW
8.
(MADHYA PRADESH)
TEHSILDAR DR. AMBEDKAR NAGAR, TEHSIL MHOW (MADHYA
9.
PRADESH)
NAYAB TEHSILDAR TAPPA, MANPUR, TEHSIL DR. AMBEDKAR
10.
NAGAR, MHOW (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PANKAJ KUMAR SOHANI, LEARNED COUNSEL FOR THE
RESPONDENTS.)
CIVIL REVISION No. 363 of 2021
BETWEEN:-
BABU (DECEASED) THROUGH LEGAL HEIRS THAWRIYA S/O
1. BABU, AGED ABOUT 82 YEARS, OCCUPATION: AGRICULTURIST
MANDAV, TEHSIL AND DISTT.-DHAR (MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS NANURAM S/O
BABU, AGED ABOUT 62 YEARS, OCCUPATION: AGRICULTURIST
2. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
- : 3 :-
C.R. Nos. 364/2021,
363/2021 & 365/2021
BABU (DECEASED) THROUGH LEGAL HEIRS CHHITAR S/O
BABU, AGED ABOUT 78 YEARS, OCCUPATION: AGRICULTURIST
3. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS BHAGORI D/O
BABU, AGED ABOUT 57 YEARS, OCCUPATION: AGRICULTURIST
4. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS NANIBAI D/O BABU,
AGED ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST
5. MANDAV, TEHSIL AND DISTRICT DHAR. PRESENTLY RESIDING
AT: VILLAGE SINGORI, TEHSIL NALCHHA, DISTRICT DHAR
(MADHYA PRADESH)
DILIP S/O SOHAN, AGED ABOUT 47 YEARS, OCCUPATION:
AGRICULTURIST MANDAV, TEHSIL AND DISTRICT DHAR.
6.
PRESENTLY RESIDING AT: VILLAGE SINGORI, TEHSIL
NALCHHA, DISTRICT DHAR (MADHYA PRADESH)
RATAN S/O SOHAN, AGED ABOUT 49 YEARS, OCCUPATION:
AGRICULTURIST MANDAV, TEHSIL AND DISTRICT DHAR.
7.
PRESENTLY RESIDING AT: VILLAGE SINGORI, TEHSIL
NALCHHA, DISTRICT DHAR (MADHYA PRADESH)
DINESH S/O SOHAN, AGED ABOUT 45 YEARS, OCCUPATION:
AGRICULTURIST MANDAV, TEHSIL AND DISTRICT DHAR.
8.
PRESENTLY RESIDING AT: VILLAGE SINGORI, TEHSIL
NALCHHA, DISTRICT DHAR (MADHYA PRADESH)
.....PETITIONER
(SHRI MOHAN SHARMA, LEARNED COUNSEL FOR THE
PETITIONERS.)
AND
MADHU W/O MAHESH KHATI VILLAGE YASHWANT NAGAR,
1.
TEHSIL MHOW (MADHYA PRADESH)
AMAR (DECEASED) THROUGH LEGAL HEIRS VIRENDRA S/O
2. LATE SHRI AMARSINGH SINGODI MANDAV, TEHSIL AND
DISTRICT DHAR (MADHYA PRADESH)
AMAR (DECEASED) THROUGH LEGAL HEIRS ARJITA S/O LATE
3. SHRI AMARSINGH SINGODI MANDAV, TEHSIL AND DISTRICT
DHAR (MADHYA PRADESH)
MAHESH S/O MANGILAL KULMI VILLAGE YASHWANT NAGAR,
4.
TEHSIL MHOW (MADHYA PRADESH)
GIRJABAI W/O DAMAODAR SHARMA VILLAGE YASHWANT
5.
NAGAR, TEHSIL MHOW (MADHYA PRADESH)
- : 4 :-
C.R. Nos. 364/2021,
363/2021 & 365/2021
STATE OF MADHYA PRADESH THROUGH COLLECTOR INDORE
6.
(MADHYA PRADESH)
S.D.O. (REVENUE) DR. AMBEDKAR NAGAR, MHOW (MADHYA
7.
PRADESH)
TEHSILDAR DR. AMBEDKAR NAGAR, TEHSIL MHOW (MADHYA
8.
PRADESH)
NAYAB TEHSILDAR TAPPA, MANPUR, TEHSIL DR. AMBEDKAR
9.
NAGAR, MHOW (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PANKAJ KUMAR SOHANI, ADVOCATE ON BEHALF OF SHRI
SURYAPAL SINGH CHOUHAN, COUNSEL FOR THE RESPONDENTS.)
CIVIL REVISION No. 365 of 2021
BETWEEN:-
BABU (DECEASED) THROUGH LEGAL HEIRS THAWRIYA S/O
1. BABU, AGED ABOUT 82 YEARS, OCCUPATION: AGRICULTURIST
MANDAV, TEHSIL AND DISTT.-DHAR (MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS NANURAM S/O
BABU, AGED ABOUT 62 YEARS, OCCUPATION: AGRICULTURIST
2.
MANDAV. DIST. DHAR PRESENTLY RESIDING AT VILLAGE
SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS CHHITAR S/O
BABU, AGED ABOUT 78 YEARS, OCCUPATION: AGRICULTURIST
3.
MANDAV. DIST. DHAR PRESENTLY RESIDING AT VILLAGE
SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS BHAGORI D/O
BABU, AGED ABOUT 57 YEARS, OCCUPATION: AGRICULTURIST
4.
MANDAV. DIST. DHAR PRESENTLY RESIDING AT VILLAGE
SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA PRADESH)
BABU (DECEASED) THROUGH LEGAL HEIRS NANIBAI D/O BABU,
AGED ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST
5.
MANDAV. DIST. DHAR PRESENTLY RESIDING AT VILLAGE
SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA PRADESH)
DILIP S/O SOHAN, AGED ABOUT 47 YEARS, OCCUPATION:
AGRICULTURIST MANDAV. DIST. DHAR PRESENTLY RESIDING
6.
AT VILLAGE SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA
PRADESH)
RATAN S/O SOHAN, AGED ABOUT 49 YEARS, OCCUPATION:
AGRICULTURIST MANDAV. DIST. DHAR PRESENTLY RESIDING
7.
AT VILLAGE SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA
PRADESH)
8. DINESH S/O SOHAN, AGED ABOUT 45 YEARS, OCCUPATION:
- : 5 :-
C.R. Nos. 364/2021,
363/2021 & 365/2021
AGRICULTURIST MANDAV. DIST. DHAR PRESENTLY RESIDING
AT VILLAGE SINGORI. TEH. NALCHHA DIST. DHAR (MADHYA
PRADESH)
.....PETITIONER
(SHRI MOHAN SHARMA, LEARNED COUNSEL FOR THE
PETITIONERS.)
AND
SMT. GANGABAI W/O POONAMCHAND KHATI VILLAGE
1.
YASHWANT NAGAR, TEHSIL MHOW (MADHYA PRADESH)
AMAR (DECEASED) THROUGH LEGAL HEIRS VIRENDRA S/O
2. LATE SHRI AMARSINGH SINGODI MANDAV, TEHSIL AND
DISTRICT DHAR (MADHYA PRADESH)
AMAR (DECEASED) THROUGH LEGAL HEIRS ARJITA S/O LATE
3. SHRI AMARSINGH SINGODI MANDAV, TEHSIL AND DISTRICT
DHAR (MADHYA PRADESH)
RAMKUNWARBAI W/O MANGILAL KULMI, AGED ABOUT 62
4. YEARS, OCCUPATION: AGRICULTURIST VILLAGE YASHWANT
NAGAR, TEHSIL MHOW (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUGH COLLECTOR INDORE
5.
(MADHYA PRADESH)
S.D.O. (REVENUE) DR. AMBEDKAR NAGAR, MHOW (MADHYA
6.
PRADESH)
TEHSILDAR DR. AMBEDKAR NAGAR, TEHSIL MHOW (MADHYA
7.
PRADESH)
NAYAB TEHSILDAR TAPPA, MANPUR, TEHSIL DR. AMBEDKAR
8.
NAGAR, MHOW (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PANKAJ KUMAR SOHANI, ADVOCATE ON BEHALF OF SHRI
SURYAPAL SINGH CHOUHAN, COUNSEL FOR RESPONDENTS.)
Reserved on : 06.04.2023.
Pronounced on : 03.05.2023.
These revisions having been heard and reserved for order, coming
for pronouncement this day, this Court pronounced the following :
ORDER
As the controversy involved in all these revisions is identical, therefore, they are being decided by this common order. For the sake of convenience, the facts narrated in Civil Revision No. 364/2021 are
- : 6 :-
C.R. Nos. 364/2021, 363/2021 & 365/2021 being taken into consideration.
1- The petitioners/defendants No. 1, 4, 5 and 6 have filed this revision u/s. 115 of the C.P.C. against the order dated 15.9.2021 whereby the Vth Civil Judge, Class-1, Dr. Ambedkar Nagar (Mhow) has dismissed the application filed under Order 7 Rule 11, C.P.C.
The facts of the case, in short, are as under :
2- Respondent Nos. 1, 2 and 3/plaintiffs have filed the suit for the grant of decree permanent injunction as well as a mandatory injunction against the defendants by challenging the validity of the order of mutation dated 11.9.2017 passed by the Sub Divisional Officer . The plaintiffs are also seeking a declaration that Girdhari had acquired "Bhoomi Swami" title by virtue of the status of "Mourishi Krishak" which was transferred in favour of defendant No.7 who in turn sold the suit land to the plaintiffs. Plaintiffs are also seeking decree that defendants No.9 to 11 be restrained from interfering with their possession.
3- As per pleadings in the plaint Defendant No.7 is the son of Girdharilal S/o. Narayanji Patidar who had acquired the title of Bhoomi Swami being a Mourishi Krishak. Thereafter he executed the Will in favour of defendant No.7. According to the plaintiffs, they purchased the suit land bearing Survey No. 310/5 area 5.313 Hect. situated at Village Yashwant Nagar, Tehsil Mhow vide registered sale- deed 26.4.2005 from defendant No.7. Thereafter, the demarcation was done and after the division of the land their names were mutated in the revenue record and since 2005 they are in continuous possession.The plaintiffs received the notices from the Court of Sub Divisional Officer in Case No. 2/A23/92-93. They appeared and filed the reply.
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C.R. Nos. 364/2021, 363/2021 & 365/2021 The Sub Divisional Officer vide order dated 11.9.2017 has declared defendants No.1 t 6 as owners of the land and directed the plaintiffs to hand over the possession, which gave the cause of action to the plaintiffs to file a suit.
4- The name of Girdhari Kulmi was recorded as "Up Krishak" in the revenue record who used to pay the rent to defendants Nos. 1 to 7. He had acquired the title u/s. 190 of the M.P. Land Revenue Code (MPLRC), therefore, the same right was inherited by defendant No.7 and became Bhoomi Swami. The defendants appeared in the suit and filed the written statement. thereafter issues have also been framed for adjudication.
5- The petitioners filed an application under Order 7 Rule 11,C.P.C. seeking rejection of the plaint as it is barred u/s. 257 of the M.P. Land Revenue Code, 1959 ( hereinafter referred to as the MPLRC). According to the petitioners /defendants, the plaintiffs are seeking a declaration that the order passed u/s. 170B of MPLRC be declared void but provisions of Section 257 of the MPLRC bar the jurisdiction of Civil Court, hence the suit is not maintainable and is liable to be dismissed. The plaintiffs opposed the said application and vide order dated 15.9.2021 the learned Civil Judge has dismissed the application, hence the present revision before this Court. 6- Shri Mohan Sharma, learned counsel for the petitioners, submitted that the learned court below has failed to appreciate the provisions of Section 257(L) and Section 257-L(1) of the MPLRC, which impose the bar on Civil Courts to interfere into the matters in which the revenue authorities are having exclusive jurisdiction. The learned court below has also failed to examine the provisions of
- : 8 :-
C.R. Nos. 364/2021, 363/2021 & 365/2021 Section 170A and 170B of MPLRC which give authority to the Sub Divisional Officer to inquire into the bona fide of transaction and the order passed u/s. 170A and 170B cannot be challenged in the Civil Court. The Sub Divisional Officer has passed the order dated 11.9.2017 after giving due opportunity of hearing to the plaintiffs, hence the civil suit is liable to be dismissed. Shri Sharma learned counsel placed reliance over the judgment passed by the Full Bench of this Court in the case of State of M.P. V/s. Balveer Singh : 2001 (2) MPLJ 644, in which, it has been held that the civil suit is maintainable in respect of the dispute with the State other than contemplated u/s. 57(1). He has also placed reliance on the judgment passed by the apex Court in the case of Pooran Singh V/s.
Dhaniram : 2019 SCC OnLine SCC 433 in which the apex Court has considered the scope of Section 257 of the MPLRC. 7- Per contra, Shri Pankaj Sohani, learned counsel appearing for the respondents/plaintiffs refuted that the suit filed to seek the decree declaration of title and permanent injunction is maintainable and same is not barred u/s. 257 of the MPLRC. The learned trial Court has not committed any error of law while dismissing the application filed under Order 7 Rule 11 of C.P.C. In support of his contention, he has placed reliance on the judgment passed by the Full Bench of this Court in the case of Ram Gopal Kanhaiya V/s. Chetu Batte : AIR 1976 MP 160; Omprakash V/s. Ashok Kumar 2013 (1) MPLJ 678; and Gordhandas V/s. Peer Khan & others : (2000) 2 SCC 686. In these judgments, there is a consistent view of the High Court as well as the apex Court that the suit for declaration of title is maintainable and the same is not barred u/s. 257 of the MPLRC. Hence, this
- : 9 :-
C.R. Nos. 364/2021, 363/2021 & 365/2021 revision is liable to be dismissed.
Appreciations & Conclusion 8- The plaintiffs have filed the suit for declaration of title and they are also declaration to the effect that the order dated 11.9.2017 passed by the Sub Divisional Officer is not binding on them. According to them, they purchased the suit land from defendant No.7 who is a grandson of Girdharilal. According to the plaintiffs Girdharilal acquired the Bhoomiswami title by virtue of Section 185(1)(ii)(a) of the read with Section 190 of the MPLRC. It is further pleaded that the acquisition of title by virtue of Sections 185 and 190 of MPLRC does not cover the transaction prohibited under section 170A and 170B of the MPLRC. Learned Sub Divisional Officer vide impugned order dated 11.9.2017 has held that order of mutation dated 10.3.1967 passed by Naib Tehsildar amounts to transfer of the land of the regional tribe and the provisions of Section 170B gets attracted. Girdharilal had already acquired the title in the year 1951 and 1952 and his name was mutated in Column 10. The defendants came up with a plea that they are the tribe and their land could not have been transferred by any means without the permission of the Collector, therefore, the transfer of land by Girdharilal in favour of defendant No.7 and further transfer in favour of the plaintiffs is void and order u/s. 170B has rightly been passed and cannot be interfered with in a civil suit by virtue of Section 257L and 257L(1) of the M.P. Land Revenue Code, 1959, even these findings are liable to be examined in the civil suit.
9- The learned trial Court has framed the issues in the year 2018 which are as under :
- : 10 :-
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10- Thereafter, the plaintiffs have given the evidence and they have been cross-examined also. The suit is pending since 2018 and now in the year 2021 the defendants filed an application under Order 7 Rule 11 of C.P.C. The Full Bench of this Court as well as the Apex Court have already held that the suit for declaration of title is maintainable and the same is not hit by Section 257 of the MPLRC. This Court in the case of State of M.P. V/s. Mohd. Shah (decd.) through L.Rs.
Jebedabi & others (S.A. No. 79/2000 decided on 20.8.2018 in Para 6 to 10 has held as under :
"[6] Finding on Question No.(2) :-
So far as the Question No.(2) is concerned, whether the suit is barred in view of the provisions of Section 257 (2) of the M. P. Land Revenue Code, 1959 ?
The similar issue came up for consideration before Full Bench of this Court in the case of Ramgopal Kanhaiyalal v/s Chetu Batte [AIR 1976 MP 160] and before this court Court in the case of Omprakash v/s Ashok Kumar [2013 (1) MPLJ 678 ].
[7] The plaintiffs filed the suit for declaration of title on the basis of their long uninterrupted possession over the land. According to the plaintiff, the suit land was given to their ancestors by the Zamindar on the same part of the land was given for establishment of cotton ginning factory and they continued into the possession as Krushak and their names were recorded as Gair Dakhil Krushak, therefore, by virtue of Section 2 (e) of the Madhya Pradesh Zamindari Abolition Act, 1951 they had acquired the status of Pakka Tenant under Section 37 & 38 of the Madhya Pradesh Zamindari Abolition Act, 1951. Thereafter, by virtue of Section 157 & 158 of the MPLR Code they have acquired the title of Bhumiswami, therefore, their suit is based on
- : 11 :-
C.R. Nos. 364/2021, 363/2021 & 365/2021 the title. The full Bench of this Court in case of Ramgopal Kanhaiyalal (supra) has held as under :-
"It must be remembered that a Bhumiswami has a title though he is not the "Swami" of the "Bhumi" which he holds, in the sense of absolute ownership, because as declared in Section 257 of the Revenue Code, ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee.
His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and, he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation.
Under the general law, a suit for possession based on title can be instituted in the Civil Court within 12 years from the date of dispossession. The principle that possession must follow title has received greater weight and sanctity when the distinction between the scope and effect of Article 142 and those of Article 144 of the Limitation Act, 1908, has been watered down and simpler provisions have been substituted in Articles 64 and 65 of the Limitation Act of 1963. It will be anomalous to read Section 250 as providing for a suit for possession based on title, which is to be instituted within two years only. It will entail a fantastic result that if a suit is not brought within two years under Section 250, the Bhumiswami's right will be extinguished, because, by virtue of Section 26 of the Limitation Act, if a suit for possession is not instituted within the period of limitation prescribed therefore, not only the remedy is barred but the right is also extinguished. Section 26 is an exception to the general rule that limitation bars the remedy but does not extinguish the right.
Even under the Delhi Reforms Act (supra), which was for consideration before their Lordships in Hatti v. Sunder Singh (supra), (AIR 1971 SC 2320) it is mark-worthy that the question of title has to be referred to the Civil Court and, moreover, there is no period of limitation prescribed. Thus, there is no deviation from the consistent policy of the law that the question of title relating to immovable property must be determined by the Civil Court. We do not see any deviation from that policy in any of the provisions of the M.P. Land Revenue Code either. On the other hand, Sections 111 and 178 are in concordance with that policy.
We, therefore, hold that a Bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250 of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if
- : 12 :-
C.R. Nos. 364/2021, 363/2021 & 365/2021 there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. We further hold that Nathu v. Dilbande Hussain, AIR 1967 Madh Pra 14 = 1964 Jab LJ 707 was correctly decided. The Civil Court can take cognizance of a suit. This is our answer to the questions referred to us."
[8] This Court in case of Omprakash (supra) has held as under :-
"10. True, in Full Bench decision Ramgopal (supra), the civil suit for declaration and possession was filed but in the same decision it has also been categorically held in para 10 by Full Bench of this Court that determination of the question of title is the province of the civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the civil Court cannot be assumed or implied. Further it has been held that although a speedy remedy is provided under Section 250 of the Code to a Bhumiswami but he is not bound to avail that remedy and it is open to him to take recourse to the summary remedy under Section 250 or even without it straightway the plaintiff can bring a suit in the Civil Court for declaration of his title and possession. Further it has been held in para 17 that even if there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. Nowhere in this decision it has been held that simplicitor suit for possession is not maintainable if it has been filed on the basis of title and, therefore, according to me, learned counsel for the plaintiff/respondent no.1 was right in his submission that the M.A. 1061/2003 Full Bench decision of this Court in Ramgopal (supra) does not go against the plaintiff rather it strengthen the case of plaintiff. I may further add that the Full Bench decision Ramgopal (supra) has been affirmed and approved by the Apex Court twice. Firstly, in Rohini Prasad and others Vs. Kasturchand and another (2000) 3 SCC 668 and secondly in Hukum Singh (Dead) by LRs and others Vs. State of M.P. (2005) 10 SCC 124. In these two decisions also it has been held that the jurisdiction of civil Court is not barred under Section 257 in respect to question of title. In the case of Rohini Prasad (supra), a simplicitor suit for possession on the basis of title was filed which was decreed by High Court in Second Appeal although the mesne profits were not directed to be paid. The Supreme Court has categorically held that the suit for possession on the basis of title is not barred under Section 257 of the Code. The decision of Rohini Prasad (supra) was also taken into account in later decision by the Supreme Court in Hukum Singh
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C.R. Nos. 364/2021, 363/2021 & 365/2021 (supra) and in para 8 of the said decision again the Supreme Court affirmed the Full Bench decision of this Court Ramgopal (supra). Hence, I am of the view that learned First Appellate Court rightly held that civil suit is maintainable and the findings recorded by learned Trial Court while deciding issue no.5 holding that civil suit was not maintainable was rightly set aside."
[9] In case of Gordhan Das v/s Pirkhan & Others, reported in (2002) SCC 686, a civil suit was filed seeking declaration that the plaintiff became a Pakka Tenant and continued possession by cultivating the suit land and application was filed under Section 38 of the Madhya Pradesh Zamindari Abolition Act, 1951 seeking declaration as Pakka Tenant. The second appeal was filed before the High Court and thereafter, the SLP was filed because the suit was maintainable in respect of seeking all declaration of title by virtue of law. Relevant portion of the aforesaid judgment is reproduced below :-
"There was neither any evidence nor any averment made by the plaintiff Allarakh that he was in possession of land any time by cultivating it. On the other hand it was clearly established that Gulkhan was in possession of the land by cultivating it 4 to 5 years prior to the coming into force of the Zamindari Abolition Act and by virtue of Section 38 of the Zamindari Abolition Act acquired the status of Pacca tenant as he was a tenant under Naharkhan before coming into force of the Zamindari Abolition Act. The Revenue Authorities also allowed the petition filed by Gulkhan under Section 38 on contest and on appreciation of evidence adduced by the parties."
[10] Therefore, in view of the above, the Trial Court has not erred in entertaining the suit as the same was not barred under the provisions of Section 257 (2) of the M.P. Land Revenue Code, 1959. Therefore, the Substantial Question No.2 is also answered against the appellant."
11- Apart from the above , in the case of Dhula Bhai V/s. State of M.P. : 1961 MPJR 1; Dhomaniya V/s. Hari Singh : 2001 RN 85; Sosamma (Smt.) V/s. Smt. Mathura Bai: 2008 RN 220, it has been held that in spite of the bar created u/s. 257L and 257L(1) of the MPLRC against the order passed by the revenue authorities u/s. 170A and 170B of the MPLRC, even the Civil Court is having jurisdiction to entertain and consider the matter up to the extent as to whether the
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C.R. Nos. 364/2021, 363/2021 & 365/2021 authority has complied with the procedure prescribed or not while holding an inquiry and passing the order. There are various issues which are required to be considered by the Civil Court like as to whether the acquisition of title by virtue of statute or mutation by the revenue authorities amounts to a transfer of the land, which attracts the provisions of Section 170A and 170B of the MPLRC. All these issues can be decided by the Civil Court only coupled with the fact that the plaintiffs are seeking the decree of title as well. Therefore, the learned trial Court has not committed any error of law while dismissing the application filed under Order 7 Rule 11 of the C.P.C. I do not find any ground to interfere with the order impugned. 12- Accordingly, these revisions are dismissed. However, no order as to costs. Let a photocopy of this order be kept in the file of other connected revisions.
[VIVEK RUSIA] JUDGE Alok/-Digitally signed by ALOK GARGAV
Date: 2023.05.03 19:26:13 +05'30'