Madhya Pradesh High Court
Smt.Boddi vs Bhagwan Raghunath Ji Mandir on 18 October, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:52182
1 SA-1074-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 18th OF OCTOBER, 2024
SECOND APPEAL No. 1074 of 1998
SMT.BODDI
Versus
BHAGWAN RAGHUNATH JI MANDIR
Appearance:
Shri Ravish Chandra Agrawal - Senior Advocate with Shri Jasprit Gulati -
Advocate for the appellant.
Shri Umesh Shrivastava - Advocate for the respondent.
JUDGMENT
The present appeal has been admitted on 22.2.1999 on the following substantial questions of law :-
i. Whether the Appellants's mother Rukmibai acquired the rights of Bhumiswami by operation of law after the commencement of the M.P. Land Revenue Code 1959 and therefore, it cannot be said that the appellant was liable to be evicted as a trespasser ?
OR ii. Whether the appellant's mother was a lessee within the meaning of section 168 of M.P. Land Revenue Code and had acquired the rights conferred by sub-section (1) of that section in the capacity of lessee in view of the fact that shebwas a lessee of a private religious institution ?
2. Learned counsel for the appellant at the outset submits that in Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 2 SA-1074-1998 addition to the two substantial questions of law quoted above that have been framed vide order dated 22.02.1999 by this Court, as per I.A. No.15481/2022 filed in terms of Section 100(5) C.P.C. additional substantial questions of law are required to be framed to adjudicate the controversy involved in the present matter.
3. The parties are ready to argue the case finally on the proposed additional substantial questions of law and consequently, I.A. No.15481/2022 is allowed and the following additional substantial questions of law are framed and parties are heard on the said two additional substantial questions of law numbered as Question No. (iii) and (iv) as well as on the two substantial questions of law already framed by this Court on 22.02.1999 :-
"(iii) Whether the suit filed by plaintiff is barred under Section 168(4) read with Section 257 (k) of the Madhya Pradesh Land Revenue Code, 1959 ?
(iv). Whether the Courts below have failed to consider that as per Section 257 (k) of the Code, 1959, revenue authorities have been granted exclusive jurisdiction with respect to the matter pertaining to ejectment of a lessor of Bhumiswami under Section 168(4) of the Code, 1959 and there is an express bar to the jurisdiction of the Civil Court with respect thereto?"
4. The present appeal has been filed by the appellant - defendant being aggrieved by the concurrent judgments and decree passed by the trial Court as well as by the First Appellate Court, whereby the suit of the plaintiff has been decreed and the appellant - defendant has been directed to be deliver possession of the suit land along with mesne profit @ Rs.1000/- per annum.
5. Learned Senior Counsel appearing for the appellant has argued that Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 3 SA-1074-1998 the suit was filed by Deity against now deceased Bodi, who was daughter of Smt. Rukmani. Now, the appeal is being contested by the legal representatives of deceased Bodi. As per plaint averments, it has been alleged against the appellant - defendant that the land was given over to deceased Rukmani for carrying out agricultural work for Rs.30/- per annum and thereafter, the said amount was increased from Rs.30/- to Rs.200/- per annum. The said Rukmani is stated to be lessee in para 5 of the plaint. It is further contended in the plaint that upon death of Rukmani, the defendant who is daughter of Rukmani is in unauthorized possession and has refused to deliver of possession of the suit land owned by the temple and therefore, the suit is being filed for recovery of possession. It was further averred in the plaint that the lease in favour of Rukmani got extinguished upon death of Smt. Rukmani and the defendant being daughter of Rukmani has no right to remain in possession. Mense profit of the previous years quantified @ Rs.1000/- per annum were claimed and future mense profit @ Rs.6000/- per annum was claimed.
6 . Learned Senior Counsel further submits that from the plaint averments, it is evident that the defendant Boddi is the daughter of lessee and she is not a rank trespasser. By placing reliance on the document Exhibit D- 1, it is contended that the said document can be taken into consideration by this Court for the limited purpose that the defendant Boddi herself was lessee in her own right and and she was not a trespasser. Learned Senior Counsel also submits that prior to death of Rukmani a document was executed with the present defendant also wherein she was given land for cultivation on Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 4 SA-1074-1998 payment of rent. The said document Exhibit D-1 was a un-stamped and unregistered document and the said aspect was agitated in Civil Revision before the District Court registered as Civil Revision No.23/1987 decided by Second Additional District Judge, Rewa on 20.12.1988 and it was held that the said document can be looked into for collateral purposes in case the defendant pays the deficit stamp duty along with 10 times penalty, i.e. total of Rs.122/-. It is also contended that as recorded by the trial Court in its order sheet dated 20.03.1989, the deficit duty was deposited and therefore, the said document can be seen for collateral purpose, even though, it may not be seen for real purpose. By placing reliance on judgment of this Court in Bhawar Singh Vs. Shivram and another reported in 1981 RN 184 , it is argued that the said document can be relied to prove the nature of possession of party to be that of lessee, though it may not be admissible to establish the terms of lease.
7. Learned Senior Counsel further submits that the plaintiff having admitted the mother of defendant, i.e. Rukmani to be lessee, the mother of defendant had already got rights of Bhumi Swami in accordance with Section 185(1)(iii) of M.P.L.R.C., which confers the status of occupancy tenant on the sub-tenants of certain categories of land holders in erstwhile Vindhya Pradesh region. Rewa was undisputedly a part of erstwhile Vidhya Pradesh region prior to formation of State of M.P. on 01.11.1956. Learned counsel further agued that as per Section 190(1) of MPLRC, the rights of Bhumi Swami has accrued to all occupancy tenants and therefore, the mother of defendant herself had acquired Bhumi Swami rights by virtue of Section Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 5 SA-1074-1998 185(1)(iii) read with Section 190(1) of MPLRC.
8. Learned Senior Counsel further argued that even as per Section 185(1)(iii) of MPLRC, even if Rukmani is treated to be a lessee in terms of Section 168 (2) of MPLRC, then even though Rukmani may not be an occupancy tenant and consequently may not acquire the right of Bhumi Swami as per Section 190(1) of MPLRC, but then since the Bhumi Swami in the present case, i.e. the plaintiff was a perpetual minor being a Deity or even if its status as a trust is seen, then it would be a public charitable or religious institution both of which are covered under Section 168(2)(iv) and (viii) of MPLRC. Hence, the only course open for the plaintiff was to take recourse to Section 168(4) of MPLRC, which was to approach the Sub Divisional Officer for recovery of possession. Thus, the civil suit was not maintainable for recovery of possession.
9. Learned Senior Counsel further argued that as per Section 257 MPLRC exclusive jurisdiction of revenue authorities has been laid down and as per Section 257(k) of MPLRC the matter of ejectment of lessor of Bhumi Swami, under Section 168 (4) MPLRC is within the exclusive domain of revenue authorities. Thus, the suit was not maintainable.
10. It is argued by learned Senior Counsel for the appellant that either the mother of the defendant, i.e. Rukmani acquired Bhumi Swami rights by virtue of Section 185(1)(iii) read with Section 190(1) of MPLRC and if such rights have to be denied to deceased Rukmani by force of Section 185 (1)
(iii) MPLRC, then the deceased Rukmani being admittedly the lessee of the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 6 SA-1074-1998 temple and as per document Exhibit D-1 the possession of the defendant - appellant being also that of lessee, the proceedings lay before the competent Revenue Authority i.e. the SDO only for ejectment. Learned Senior Counsel further argues that even if the present appellant is not treated to be lessee by ignoring the document Exhibit D-1 altogether and upon death of deceased Rukmani, the lease having been to be determined as Vindhya Pradesh Land Revenue and Tenancy Act 1953 does not confer any heritable rights on lessee, even than Section 168(4) would apply, because it will apply even in cases where the lease ceases to be in force.
1 1 . Thus, it is the contention of the appellant that the deceased Rukmani had acquired Bhumi Swami rights and her status cannot be that of lessee and further that the possession of the defendant being daughter of Rukmani and also in view of document Exhibit D-1 was that of lessee and in that event also the suit was not maintainable in terms of Section 168(4) MPLRC, because the matter of recovery of possession lay within the exclusive domain of revenue authorities.
12. Per contra, it is argued by learned counsel appearing for the plaintiff - respondent that Section 185(1)(iii) of MPLRC and Section 190(1) of MPLRC would not apply in the present case, because the lease in question falls within Section 168(2)(iv) and (viii) of MPLRC and therefore, no status of occupancy tenant devolved on deceased Rukmani, who was mother of defendant. It was further argued that since the suit was composite suit for possession as well as for mesne profits, hence, the said matter could not be said to be in exclusive domain of revenue authorities in terms of Section 257 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 7 SA-1074-1998
(k) read with Section 160(4) MPLRC and the composite suit for mesne profits and possession was maintainable. By placing reliance on the judgment of this Court in the case of Digamber Vaidehidas Chella Ram Dayaldas and another vs. Aman Singh reported in 1991 R N 99, it is argued that by placing reliance on Section 168 and 190 MPLRC Bhumi Swami rights cannot be acquired on temple lands.
13. Learned Senior Counsel submits that the defendant is in unauthorized possession of the suit land and the judgment and decree have been rightly passed by both the Courts.
14. It is further argued by learned counsel for the respondent - plaintiff that an earlier suit was filed by the defendant and her mother, which was decided vide Exhibit P-3, but the said suit was filed not against the Deity, but against the Pujari by his personal name and the said decree of permanent injunction in favour of the defendant has been held to be not applicable against the Deity and both the Courts below have not erred in passing the impugned judgments and decree.
15. Heard learned counsel for the parties.
16. The substantial question No.i relates to the question whether the appellant's mother Rukmani Bai acquired the rights of Bhumiswami by operation of law after commencement of MPLRC in the year 1959 and therefore, the suit was not maintainable for eviction of the appellant being daughter of Rukmani Bai as a mere trespasser.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:52182 8 SA-1074-1998
17. Learned counsel for the appellant has argued at length in view of Section 185(1)(iii) and 190 of MPLRC, which confers the status of occupancy tenant on sub tenants of certain categories of land holders in erstwhile Vindhya Pradesh region. The matter arises from District Rewa, which was undisputedly a part of Vindhya Pradesh region prior to enforcement of M.P. Land Revenue Code in the year 1959. The Temple/Deity is stated to be the tenure holder and the defendant-appellant as the sub-tenant. However, the written statement in the present case, clearly mentions in para 19 thereof that the mother of the defendant was a lessee and upon her death, the status of the defendant as lessee does not change, because the defendant has got lease hold rights by force of inheritance. The defendant did not project any title of her own in the land and specifically took a defence that she is the daughter of lessee and the lease being heritable, she has to be construed as a lessee upon death of her mother.
18. Not only this, but previously the present defendant as well as her deceased mother, who is stated to be original lessee had filed Civil Suit No.10-A of 1973, which has been decided by judgment dated 18.07.1973 (Exhibit D-33). A copy of plaint in the said earlier suit is also on record as Exhibit P-2, which has been filed in the year 1973. The said suit was filed not against the temple, but against the Pujari by their personal names and looking to the judgment Exhibit D-33, it has been recorded by the trial Court therein in para-4 as under :-
"4. Boddi (PW-2) is daughter of the plaintiff No.1 she has deposed that she is managing the suit lands on behalf of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 9 SA-1074-1998 her mother. She has further stated that her mother is lessee of the suit lands and she is in actual possession of these lands........"
The present defendant who was plaintiff No.2 in that suit has admitted the title of the temple on the suit land and had put up a case of the suit land being leased out to deceased Rukmani, who was the mother of present defendant and was one of the plaintiff's in the said earlier suit decided on 18.07.1973. The defendant never having projected her own title over the suit lands either in the present suit filed by the temple or in the earlier suit filed by the defendant along with her mother against the Pujari, the issue of title cannot be raised at the stage of second appeal by the defendant and the substantial question as to title does not arise for consideration, because plea of title was never set up by the defendant before the trial Court. This plea cannot be considered at the stage of second appeal and therefore, the substantial question No.ii does not arise for consideration in the present appeal.
19. Substantial question no. ii relates to the appellant's mother having acquired rights of lessee under Section 168 of MPLRC. The said question relates to the projection of Bhumiswami rights for ownership rights by the defendant in view of the position that as per Section 158 MPLRC certain lessees have been conferred the rights of Bhumiswami. However, once the defendant has never projected any title in her favour in the written statement and in the written statement she has only projected her mother to be a lessee, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 10 SA-1074-1998 therefore, the present question does not arise for consideration in the present case, because no title was ever set up by the defendant in the written statement.
20. So far as the substantial question No.iii is concerned relating to the suit of the plaintiff being barred under Section 168 (4) of MPLRC is concerned, it is stated by the learned counsel for the appellant - defendant that as per Section 168(4) of MPLRC when the lease is granted in pursuance of sub section (2) the lessee shall hold the land on such terms and conditions as may be agreed upon him and the Bhumiswami and may be ejected by an order of Sub Divisional Officer. It is contended that the plaintiff in the present case being a temple falls within the purview of Section 168 (2) (iv) and (viii) of MPLRC. Section 168 of MPLRC is as under:-
"168. Leases.-- (1) [Except in cases provided for in sub- section (2), no bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years :] [Provided that nothing in this sub-section shall apply to the lease of any land --
i. made by bhumiswami who is a member of a registered cooperative farming society to such society;
ii. held by a bhumiswami for non-agricultural purposes.] Explanation. -- For the purposes of this section --
(a) "lease" means a transfer of a right to enjoy any land, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 11 SA-1074-1998 made for a certain time, expressed or implied in consideration of a price paid or promised or of money or any other thing of value to be given periodically to the transferor by the transferee who accepts the transfer on such terms,
(b) any arrangement whereby a person cultivates any land of a bhumiswami with bullocks belonging to or procured by such person (lessee) and on condition of his giving a specified-share of the produce of the land to the bhumiswami shall be deemed to be a lease.
(c) the grant of a right merely to cut grass or to graze cattle or to grow `singhara' or to propagate or collect lac, pluck or collect tendu leaves shall not be deemed to be a lease of the land.
(2) A bhumiswami who is --
(i) a widow; or
(ii) an unmarried woman; or
(iii) a married woman who has been deserted by her husband; or
(iv) a minor; or
(v) a person subject to physical or mental disability due to old age or otherwise; or
(vi) a person detained or imprisoned under any process of law; or
(vii) a person in the service of Armed Forces of the Union; or
(viii) a public, charitable or religious institution; or Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 12 SA-1074-1998
(ix) a local authority or a Co-operative Society;
may lease the whole or any part of his holding:
Provided that where a holding is held jointly by More than one person the provisions of this sub-section shall not be applicable unless all such persons belong to any one or more of the classes aforesaid:
Provided further that any lease made in pursuance of this sub- section shall cease to be in force after one year of the determination of the disability by death or otherwise.
[(3) x x x] (4) Where a lease is granted is pursuance of [sub-section (2)] the lessee shall hold the land on such terms and conditions as may be agreed upon between him and the bhumiswami and may be ejected by an order of a Sub-Divisional Officer on the application of the bhumiswami on the ground of contravention of any material term or condition of the lease or on the lease ceasing to be in force.
(5) Where on the coming into force of this Code any land is held on lease from a bhumiswami who belongs to any one or more of the classes mentioned in sub-section (2), such lease shall, on the coming into force of this Code, be deemed to be a lease granted in pursuance of sub-section (2)."
21. The said provision is sought to be read in conjunction with Section 257(k) of MPLRC, which confers exclusive jurisdiction to revenue authorities in respect of certain matters as enumerated in the aforesaid provision and as per Section 257(k) MPLRC ejectment of lesser of Bhumi Swami under Section 168(4) MPLRC is a matter within the exclusive jurisdiction of revenue authorities. Thus, it was vehemently argued that the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 13 SA-1074-1998 present suit was not maintainable.
22. The lessee in the present case is stated to be the mother of the defendant. The leases under the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 are dealt with in Chapter 13. As per Section 193 thereof interest of sub tenant is not heritable and it is clearly mentioned in Section 193 thereof that interest of sub tenant shall not be heritable and shall revert to the tenant upon the death of the sub tenant. Section 193 is as under:-
"193. Interest of sub-tenant not heritable - (1) The interest of a sub-tenant shall not be heritable and the land held under the sub-lease shall, subject to the provisions of sub-section (2), revert to the tenant
-
(a) where the land of the sub-lease is vacant on the date of the death of the sub-tenant, from the date of his death, or
(b) where crops are growing on such land on the date of the death of the sub-tenant, from the date of the crops have been removed by the heirs or legal representatives of the deceased sub-tenant.
(2) Notwithstanding anything contained in sub-section (1) the heirs of a deceased sub-tenant may in the order mentioned below retain possession over the land sub-let for the remaining period of the sub-lease on the existing conditions of the sub-lease:-
(1) Widow, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 14 SA-1074-1998 (2) son, (3) son's widow, (4) grandson, and (5) grandson's widow."
23. Furthermore, in the written statement, the defendant has raised the plea that she has become a lessee. However, in view of Section 193 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953, the sub leases granted by tenure holders are not heritable and they extinguish upon death of the sub tenant.
24 As per Section 168(4) the eviction of a lessee, even after extinguishing of the lease is a matter exclusively within the domain of revenue authorities. However, in the present case the lessee was mother of the defendant and not the appellant herself. The appellant has heavily relied on document Exhibit D-1 to state that the appellant has become a lessee in her own right by the said document Exhibit D-1.
25. Upon perusal of the said document Exhibit D-1, it is seen that the said document is a letter of conferring cultivation rights for three years on the present defendant written by the Pujari of plaintiff namely Mukund Bihari Goswami on 29.04.1972. Firstly, the said letter is issued by the Pujari and would not bind the temple, which is the tenure holder of the land.
26. Secondly, the defendant along with her mother had filed a suit in the year 1973, which was after execution of the alleged document Exhibit D-
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:52182 15 SA-1074-1998 1 and in para 8 of the plaint (Exhibit P-2) of the said earlier suit, it was pleaded that the plaintiff therein (was present defendant was plaintiff No.2 therein) does not admit Mukund Bihari Goswami to be the Pujari of the temple and therefore, the present defendant has denied the status of Mukund Bihari Goswami to be Pujari of the temple in the earlier suit. Now, in the present suit, it is being projected that she has got lease hold rights by the force of this letter Exhibit D-1, which was in existence even when the earlier suit was filed in the year 1973. However, nothing was mentioned about this letter Exhibit D-1 in the earlier suit.
27. The son of Mukund Bihari Goswami, who is stated to have signed the letter Exhibit D-1 was examined as PW-1 in the present suit. In para 5 of his cross-examination, he has denied the signatures of Mukund Bihari Goswami on the said document Exhibit D-1. Mukund Bihari Goswami could not be examined during his lifetime as he expired during pendency of the suit, though the suit was filed during his lifetime in the year 1983.
28. Therefore, the document Exhibit D-1 whereupon requisite stamp duty has been paid in pursuance to the order of the District Court in Civil Revision cannot be relied upon to confer status of lessee to the present defendant even for collateral purpose to hold that her possession on the suit land is in the position of the lessee and not as a trespasser. The said document was not relied in earlier suit though it must have been in existence looking to date mentioned therein and could not be proved in trial. Therefore, the suit not having been filed against lessee, but against the daughter of lessee, Section 168(4) would not come into operation at all and therefore, the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52182 16 SA-1074-1998 suit filed by the plaintiff cannot be said to be barred in terms of Section 168(4) read with 257(k) of MPLRC. Resultantly, substantial question No.iii is answered against the appellant - defendant.
29. Substantial question No.iv is also in the same terms as substantial question No.iii and in view of the findings as to substantial question No.iii the said question, i.e. substantial question No.iv also stands decided against the defendant - appellant.
30. Consequently, the concurrent judgment and decree passed by the trial Court and the First Appellate Court are confirmed and the present second appeal stands dismissed.
31. Let decree be drawn accordingly.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 5:48:06 PM