Madhya Pradesh High Court
Radheshyam And Others vs Ramvati And Others on 16 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:9765
1 SA-367-2001
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 16th OF MARCH, 2026
SECOND APPEAL No. 367 of 2001
RADHESHYAM AND OTHERS
Versus
RAMVATI (DEAD) THR. LRS (i) RAMKHILADI AND OTHERS
Appearance:
Shri P.C. Chandil - Advocate for appellants.
Shri S.K. Jain and Shri Anand Bhardwaj - Advocates for LR of respondent No.1.
Shri C.P. Singh - Government Advocate for respondent No.3/State.
JUDGMENT
1. This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 26.07.2001 passed by Third Additional District Judge, Morena in civil appeal No.57A/1996, by which the judgment and decree dated 1/1/1981, passed by Civil Judge, Class II, Ambah District Morena, in Civil Suit No. 27A/1974 was set aside and the suit filed by the respondents for declaration of title and permanent injunction was decreed.
2. This appeal is by the defendants who have lost their case from Appellate Court.
3. The facts necessary for disposal of present appeal, in short, are that the plaintiff filed a civil suit on 2/2/1971 for declaration of title and permanent injunction. It was his case that he is the owner and in continuous possession of khasra No.1617 area 6 bigha 4 viswa, situated in Village Esah, Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 2 SA-367-2001 Tehsil Ambah, District Morena. The aforesaid said property is the disputed property. It was the case of the plaintiff that earlier Maharaj Singh s/o Gangaprasad, was the zamindar of village Esah, and in Samvat 2000 or prior thereto, the father of the defendants was the marusi krishak . The then zamindar, after following the procedure as laid down in Qnun Mal Gwalior, dispossessed the father of the defendant. Thereafter, Ramlal remained in cultivating possession of the land in dispute up to Samvat 2003, and thereafter, he on his own left the cultivation. It was claimed that on the basis of lease executed by the zamindar on 6/7/1947, the plaintiff became the gair marusi krishak, and the rent was also being collected by zamindar Maharaj Singh. However, in Samvat 2004, the father of the defendants had got his name mutated in the revenue records as gair marusi , but in fact, the plaintiff remained in cultivating possession of the land. It was claimed that the zamindar had given a notice to the plaintiff and instituted Case No. 2320/2004 against the plaintiff for his dispossession, which was dismissed on 31/5/1948, and thus, it is clear that the plaintiff is in cultivating possession of the property in dispute since Samvat 2004. The plaintiff remained as gair maurusi krishak prior to 2/10/1951, and till the abolition of zamindari rights, the zamindar Maharaj singh was taking rent. The plaintiff became the pucca krishak after 2/10/1951 and became the bhumiswami with enforcement of M.P. Land Revenue Code. Accordingly, it is claimed that the plaintiff is the bhumiswami and in possession of the property in dispute. It was claimed that on 2/6/1949, when the plaintiff went to unload fertilizer, then the defendant and his father, Devi Prasad, obstructed the plaintiff from Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 3 SA-367-2001 unloading the fertilizer and illegally encroached upon the land. Accordingly, an application u/s 326 of law in force was filed on 14.06.1949, and after taking bond from the defendant, the possession of the plaintiff was protected, and accordingly, he is in continuous possession of the land. It was claimed that the Tehsildar, Ambah, had passed an order in favour of the plaintiff on 28/5/1952. However, in an appeal filed by the defendant, the Collector, Morena, set aside the order dated 28/5/1952, and remanded the matter back by order dated 14/5/1954. After the remand, once again, the Tehsildar passed an order dated 18/1/1956 in favour of the plaintiff, which was challenged by the defendant before the Collector, Morena, which too was allowed by order dated 3/12/1956, and the matter was again remanded back to the Tehsildar for fresh adjudication. Again, by order dated 20/10/1958, an order was passed by the Tehsildar in favour of the plaintiff, which was challenged by the defendant before the Sub-Divisional Officer, who, by order dated 3/6/1959, again remanded the matter back to the Tehsildar, which too was challenged by plaintiff, and by order dated 16/1/1960 the Commissioner, directed the SDO to pass an order on merits. Accordingly, the SDO, by order dated 16/1/1963, dismissed the appeal filed by the defendant and maintained the order passed by the Tehsildar. Against the order of the SDO, the defendant preferred an appeal before the Commissioner, Gwalior, and by order dated 30/5/1964, the orders passed by the Tehsildar as well as the SDO were maintained. Thereafter, the defendant filed a revision before the Board of Revenue, which was allowed by order dated 30/6/1965, and the matter was remanded back to the Commissioner for deciding the appeal afresh.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:9765 4 SA-367-2001 After the remand, the Commissioner, by order dated 20/10/1965, allowed the appeal filed by the defendant and dismissed the orders passed by the SDO and Tehsildar, as well as the application filed by the plaintiff. Thereafter, the plaintiff challenged the order passed by the Commissioner before the Board of Revenue, and by order dated 22/7/1967, the Board of Revenue accepted the appeal filed by the defendant and again remanded the matter back to the Commissioner. The Commissioner, by order dated 5/4/1969, maintained his earlier order which was passed in favour of the defendant, and thereafter, the Board of Revenue also dismissed the revision filed by the plaintiff by order dated 16/12/1970. Thus, it was claimed that although the plaintiff was fighting in different revenue Courts from 1949 to 1970, but ultimately, the Commissioner and the Board of Revenue, on surmises and conjectures, passed an order against the plaintiff. It was claimed that the plaintiff is the owner of the property in dispute, and accordingly, it was claimed that the order passed by the Board of Revenue on 16/12/1970 is not in accordance with law, and thus, a suit was filed for declaration of title to the effect that the plaintiff is the owner of khasra No. 1617/64, situated in Village Esah, and a permanent injunction was also sought against the defendant thereby restraining them from interfering with the peaceful possession of the plaintiff either by themselves or their agents.
4. The defendants/appellants filed their written statement and denied the plaint averments. It was claimed that no notice was ever served on the defendant allegedly given by the zamindar. The SDO had no authority to decide the appeal. It was claimed that the tenancy of the father of the Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 5 SA-367-2001 defendant was never terminated, and no patta was ever given to the plaintiff by the then zamindar, Maharaj Singh. It was denied that the plaintiff ever became the pucca krishak and thereafter acquired the right of bhumiswami. No incident, as alleged by the plaintiff on 2/6/1949, had ever taken place.
5. The trial Court, after framing the issues and recording the evidence, dismissed the suit filed by the plaintiff by judgment and decree dated 1/1/1981, passed in Civil Suit No.27A/1974.
6. Being aggrieved by judgment and decree passed by the trial Court, the plaintiff preferred an appeal which was registered as Civil Appeal No. 14A/1981, and by judgment dated 5/5/1983, the appeal filed by the plaintiff was dismissed and the judgment passed by the trial Court was affirmed. Thereafter, the legal representatives of the plaintiff filed Second Appeal No.135/1983, which was allowed by order dated 22/6/1993, and the matter was remanded back to the appellate Court for rehearing and disposal afresh. Thereafter, by the impugned judgment and decree dated 26/7/2001, the Third Additional District Judge, Morena, in Civil Appeal No.57A/1996, has set aside the judgment and decree passed by the trial Court and declared that the appellants/plaintiff are the owners of khasra No.1617 area 6 bigha and 4 viswa, and the defendants should hand over possession of the same to the plaintiffs within a period of one month, and till then, the appellants shall also be entitled for mesne profits at the rate of Rs.100/- per year. The present appeal has been filed against the aforesaid judgment.
7. The second appeal was admitted on the following substantial questions of law:
"1. Whether after the amendment of words "Suba and Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 6 SA-367-2001 "Naib Suba" by the words "Collector and Deputy Collector by Vakya Sanshodhan No. 17/51 published in the gazette notifications dated 25/8/1951 and 28/7/1951, in exercise of powers conferred by Section 16 of Madhya Bharat Land Revenue and Tenency Act Samvat 2007, the Sub Divisional Officer was competent to decide the appeal against the order of Tehsildar dated 28/5/1952, arising out of Quanoon Mal, Gwalior?
2. Whether the tenency can be terminated without pleading and proof of the service of notice (Ex. P/18) and without following the provisions of Sections 317 and 320 of the Quanoon Mal, Gwalior?
3. Whether on the basis of possession report (Ex. P/4) dated 29/6/1949 and on the basis of admission made by plaintiffs' witness Matadin (PW/3) can it be said that plaintiff had proved his possession over the suit land since Samvat 2004 and by reasons of the provisions of Section 54 (vii) of Madhya Bharat Land Revenue and Tenancy Act 1950 the plaintiff shall be deemed to be a pucca tenant and hence Bhumiswami on coming into force of Madhya Pradesh Land Revenue Code, 1959 ?
4. Whether the lower appellate Court committed error in holding that the defendant Devi Prasad was Gair Mourusi Krishak and vide Ex. P/18 his tenancy was terminated, after complying the provisions of Section 317 and 320 of the Quanoon Mal and erred in reversing the judgment and decree of the trial Court and decreeing the suit of the plaintiff/respondents No. 1 and 2 ?"
8. Challenging the judgment and decree passed by the first appellate Court, it is submitted by counsel for the appellants that the tenancy of the father of the defendant/appellants was not terminated in accordance with the provisions of Sections 317 and 318 of the Qnun Mal Gwalior; therefore, the plaintiff could not have been inducted as gair marusi krishak , and they did not acquire any title of bhumiswami after coming into force of MPLRC. It is further submitted that it is clear from Ex. D/2 that the possession of the property was delivered to the plaintiff on 6/6/1964, and thus, it is clear that even after the so-called cancellation of tenancy, the father of the defendant Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 7 SA-367-2001 remained in possession of the property in dispute.
9. Per contra, counsel for LRs of respondent No.1 has supported the findings recorded by the first appellate court.
10. Heard learned counsel for the parties.
11. Whether after the amendment of words "Suba and "Naib Suba" by the words "Collector and Deputy Collector by Vakya Sanshodhan No. 17/51 published in the gazette notifications dated 25/8/1951 and 28/7/1951, in exercise of powers conferred by Section 16 of Madhya Bharat Land Revenue and Tenency Act Samvat 2007, the Sub Divisional Officer was competent to decide the appeal against the order of Tehsildar dated 28/5/1952, arising out of Quanoon Mal, Gwalior?
(i) As per Section 35 of the Land Revenue and Tenancy Act, 1950, the first appeal against original revision was maintainable before the suba of the district where the decision order has been passed by any officer subordinate to him other than Nayab Tahsildar or by Tahsildar in exercise of powers of nayab suba conferred under section 60.
(ii) It is submitted by counsel for the appellant that the Collector was the suba.
(iii) It appears that there after by notification dated 18.07.1951, powers of Section 35 of the Land Revenue and Tenancy Act, 1950 were also given to the SDO. The order of the Tahsildar was passed on 28/5/1952 and the order was challenged before the SDO. The date of filing of the appeal is not known but an amendment in Section 35 of the Land Revenue and Tenancy Act, 1950 was incorporated, which came into force with effect from Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 8 SA-367-2001 6/6/1952, and it was provided as under :
"35(1) if such order is passed by any revenue officer, (whether or not such officer is vested with the powers of the Collector), subordinate to the Collector or to the Settlement Officer, as the case may be;"
(iv) Thus, it is clear that with effect from 6/6/1952, the Collector was made the appellate authority exclusively, and therefore, the notification dated 18/7/1951, by which the SDO was given power had lost its effect.
(v) It is submitted by counsel for appellant that appeal is a substantive right. Therefore, even if an amendment was incorporated in Section 35 of the Land Revenue and Tenancy Act, 1950 with effect from 6/6/1952, still it would not have any retrospective operation.
(vi) The aforesaid submission made by counsel for the appellant is not correct.
(vii) It is true that appeal is a substantive right, but the forum and the procedure of the appellate Court are procedural law.
(viii) It is a well-established position of law that procedural law will always have retrospective effect unless and until it is specifically made prospective, and substantive law will always have prospective effect unless and until it was made applicable with retrospective.
(ix) The Supreme Court in the case of Ram Kumar Soni Vs. State of M.P., reported in (2013) 14 SCC 696 has held as under :
"10. In New India Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840] , this Court was dealing with the claim of payment of compensation under the Motor Vehicles Act. The victim of the accident had passed away because of the vehicular accident before the constitution of the Claims Tribunal under the Motor Vehicles Act, 1939, as amended. The legal heirs of the deceased filed a Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765
9 SA-367-2001 claim petition for payment of compensation before the Tribunal after the Tribunal was established. The question that arose was whether the claim petition was maintainable having regard to the fact that the cause of action had arisen prior to the change of the forum for trial of a claim for payment of compensation. This Court held that the change of law operates retrospectively even if the cause of action or right of action had accrued prior to the change of forum. The claimant shall, therefore, have to approach the forum as per the amended law. The claimant, observed this Court, had a "vested right of action" but not a "vested right of forum". It also held that unless by express words the new forum is available only to causes of action arising after the creation of the forum, the general rule is to make it retrospective. The following passages are in this regard apposite: (SCC pp. 844-45, paras 5-6) "5. On the plain language of Sections 110-A and 110-F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. The expressions 'arising out of an accident' occurring in sub-section (1) and 'over the area in which the accident occurred', mentioned in sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. To that extent there was no difficulty in giving the answer in a simple way. But the provision of limitation of 60 days contained in sub-section (3) created an obstacle in the straight application of the well-established principle of law. If the accident had occurred within 60 days prior to the constitution of the tribunal then the bar of limitation provided in sub- section (3) was not an impediment. An application to the tribunal could be said to be the only remedy. If such an application, due to one reason or the other, could not Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 10 SA-367-2001 be made within 60 days then the tribunal had the power to condone the delay under the proviso. But if the accident occurred more than 60 days before the constitution of the tribunal then the bar of limitation provided in sub-section (3) of Section 110-A on its face was attracted. This difficulty of limitation led most of the High Courts to fall back upon the proviso and say that such a case will be a fit one where the tribunal would be able to condone the delay under the proviso to sub-section (3), and led others to say that the tribunal will have no jurisdiction to entertain such an application and the remedy of going to the civil court in such a situation was not barred under Section 110-F of the Act. While taking the latter view the High Court failed to notice that primarily the law engrafted in Sections 110- A and 110-F was a law relating to the change of forum.
6. In our opinion in view of the clear and unambiguous language of Sections 110-A and 110-F it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in sub- section (3) of Section 110-A. It must be vice versa. The change of the procedural law of forum must be given effect to. The underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the claims tribunal on payment of a nominal court fee whereas a large amount of ad valorem court fee was required to be paid in civil court."
11. In Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] , one of the questions which this Court was examining was whether clause (bb) of Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 introduced by an Amendment Act governing Section 167(2) CrPC in relation to TADA matters was in the realm of procedural law and if so, whether the same would be applicable to pending cases. Answering the question in the affirmative this Court speaking through A.S. Anand, J. (as His Lordship then was), held that Amendment Act 43 of 1993 was retrospective in operation and that clauses (b) and (bb) of sub-section (4) of Section 20 of TADA apply to the cases which were pending investigation on the date when the amendment came into force. The Court summed up the legal position with regard to the procedural law being Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 11 SA-367-2001 retrospective in its operation and the right of a litigant to claim that he be tried by a particular Court, in the following words:
(SCC p. 633, para 26) "(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
12. We may also refer to the decision of this Court in Sudhir G. Angur v. M. Sanjeev [(2006) 1 SCC 141] where a three-Judge Bench of this Court approved the decision of the Bombay High Court in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass [(1952) 54 Bom LR 330] and observed: (SCC p. 148, para 11) "11. ... It has been held that a court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations."
(emphasis supplied)
13. In Shiv Bhagwan Moti Ram Saraoji case [(1952) 54 Bom LR Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 12 SA-367-2001 330] the Bombay High Court has held procedural laws to be in force unless the legislatures expressly provide to the contrary. The Court observed: (Bom LR p. 352) "... Now, I think it may be stated as a general principle that no party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary. Therefore, procedural laws in force must be applied at the date when a suit or proceeding comes on for trial or disposal."
(emphasis supplied)
14. The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of the Magistrate, First Class to the Court of Session. Apart from the fact that as on the date the amendment came into force no case had been instituted against the appellant nor had the Magistrate taken cognizance against the appellant, any amendment shifting the forum of the trial had to be on principle retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial for no such right is recognised. The High Court was, in that view of the matter, justified in (sic not) interfering with the order passed by the trial court.
15. The questions formulated by the Full Bench of the High Court were answered in the negative holding that all cases pending in the Court of the Judicial Magistrate, First Class as on 22-2-2008 when the amendment to the First Schedule to CrPC became operative, will remain unaffected by the said amendment and such matters as were, in the meanwhile committed to the Court of Session, will be sent back to the Judicial Magistrate, First Class for trial in accordance with law. In coming to that conclusion the Full Bench placed reliance upon three decisions of this Court in Manujendra Dutt v. Purnedu Prosad Roy Chowdhury [Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, AIR 1967 SC 1419] , CIT v. R. Sharadamma [CIT v. R. Sharadamma, (1996) 8 SCC 388] and R. Kapilnath v. Krishna [(2003) 1 SCC 444] . The ratio of the above decisions, in our opinion, was not directly applicable to the fact situation before the Full Bench. The Full Bench of the High Court was concerned with cases where evidence had been wholly or partly recorded before the Judicial Magistrate, First Class when the same were committed to the Court of Session pursuant to the Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 13 SA-367-2001 amendment to the Code of Criminal Procedure. The decisions upon which the High Court placed reliance did not, however, deal with those kind of fact situations.
16. In Manujendra Dutt case [Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, AIR 1967 SC 1419] the proceedings in the Court in which the suit was instituted had concluded. At any rate, no vested right could be claimed for a particular forum for litigation. The decisions of this Court referred to by us earlier settle the legal position which bears no repetition. It is also noteworthy that the decision in Manujendra Dutt case [Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, AIR 1967 SC 1419] was subsequently overruled by a seven-Judge Bench of this Court in V. Dhanapal Chettiar v. Yesodai Ammal [(1979) 4 SCC 214] though on a different legal point.
17. So also the decision of this Court in R. Sharadamma case [CIT v. R. Sharadamma, (1996) 8 SCC 388] relied upon by the Full Bench was distinguishable on facts. The question there related to a liability incurred under a repealed enactment. The proceedings in the forum in which the case was instituted had concluded and the matter had been referred to the inspecting Assistant Commissioner before the dispute regarding jurisdiction arose.
18. The decision of this Court in R. Kapilnath case [(2003) 1 SCC 444] , relied upon by the Full Bench was also distinguishable since that was a case where the eviction proceedings before the Court of Munsif under the Karnataka Rent Control Act, 1961 had concluded when the Karnataka Rent Control (Amendment) Act, 1994 came into force. By that amendment, the Court of Munsif was deprived of jurisdiction in such cases. This Court held that the change of forum did not affect pending proceedings. This Court further held that the challenge to the competence of the forum was raised for the first time, that too as an additional ground before this Court and that, for other factors, the Court was inclined to uphold the jurisdiction of the Court of Munsif to entertain and adjudicate upon the eviction matter. The fact situation was thus different in this case.
19. Even otherwise the Full Bench failed to notice the law declared by this Court in a series of pronouncements on the subject to which we may briefly refer at this stage. In Nani Gopal Mitra v. State of Bihar [AIR 1970 SC 1636 : 1970 Cri LJ 1396] , this Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure. In that case the trial of the Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 14 SA-367-2001 appellant had been taken up by Special Judge, Santhal Paraganas when Section 5(3) of the Prevention of Corruption Act, 1947 was still operative. The appellant was convicted by the Special Judge before the Amendment Act repealing Section 5(3) was promulgated. This Court held that the conviction pronounced by the Special Judge could not be termed illegal just because there was an amendment to the procedural law on 18-12-1964. The following passage is, in this regard, apposite: (AIR p. 1639, paras 5-6) "5. ... It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle viz. that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (see A Debtor, In re, ex p Debtor [(1936) 1 Ch 237 (CA)] and Attorney General v. Vernazza [1960 AC 965 : (1960) 3 WLR 466 : (1960) 3 All ER 97 (HL)] ). The same principle is embodied in Section 6 of the General Clauses Act which is to the following effect:
***
6. The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up by the Special Judge, Santhal Parganas when Section 5(3) of the Act was still operative. The conviction of the appellant was pronounced on 31-3- 1962 by the Special Judge, Santhal Parganas, long before the amending Act was promulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhal Parganas, has become illegal or in any way defective in law because of the amendment to procedural law made on 18-12-1964. In our opinion, the High Court was right in invoking the presumption under Section 5(3) of the Act even though it was repealed on 18-12-1964 by the amending Act. We accordingly reject the argument of the appellant on this aspect of the Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 15 SA-367-2001 case."
(emphasis supplied)"
(x) Although the right to file an appeal is a substantive right, nut who will be the appellate authority cannot be said to be a substantive right, and it is purely a procedural law. Therefore, in the absence of any provision that such amendment will have prospective effect, it is held that the amendment by Act No.18 of 1952, by which Section 35 of the Land Revenue and Tenancy Act, 1950 was amended with effect from 6/6/1952, will have retrospective effect.
(xi) Although the order was passed by the Tehsildar on 28/5/1952 and the amendment in Section 35 was incorporated with effect from 6/6/1952, therefore, the date of filing of appeal would become important. In the present case, the date of filing of the appeal is not known, but looking to the short duration between the date of the order and the date of amendment, it appears that the appeal must have been filed after the amendment was incorporated in Section 35 of the M.P. Land Revenue and Tenancy Act, 1950. Therefore, it is held that the SDO did not have any power to hear the appeal, and accordingly, first substantial question of law is answered accordingly and it is held that SDO was not competent to decide the appeal against the order of Teshildar dated 28.05.1952 arising out of Qanun Mal.
12. Whether the tenency can be terminated without pleading and proof of the service of notice (Ex. P/18) and without following the provisions of Sections 317 and 320 of the Quanoon Mal, Gwalior?
& Whether the lower appellate Court committed error in holding that the Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 16 SA-367-2001 defendant Devi Prasad was Gair Mourusi Krishak and vide Ex. P/18 his tenancy was terminated, after complying the provisions of Section 317 and 320 of the Quanoon Mal and erred in reversing the judgment and decree of the trial Court and decreeing the suit of the plaintiff/respondents No. 1 and 2 ?"
(i) Since both the substantial questions of law are inter-related to each other, therefore, they will be decided by common findings.
(ii) Section 317 and 320 of Qanun Mal, Gwalior reads as under :
"दफा ३९७ अगर कोई मालगुजार का तकार गैर मौ सी पर वा ते आय दा साल के इजाफा लगान करना चाहे या उसको बेदखल करना चाहे तेा उसे ला जम होगा क यकुम मई से पे तर अपने ऐसे इरादे क इ ला बजय नो टस का तकार को दे क जसक तामील यकुम मई तक हो जाना चा हये. ऐसे नो टस क तामील बजय पो टकाड, जो बसीगे रसीद तलब रज भेजा जावेगा, या माफत तहसील बअदखाल टा प तलबाना क मती ६ आने क जायेगी. अगर का तकार पो टकाड लेने से इ कार करे तो तार ख इ कार को नो टस का तामील हो जाना तस वुर कया जावेगा. माफत तहसील नो टस क तामील बमू जब दफआत ३९५ व ३९६ क जावेगी. तामील नो टस अ दर िमयाद होने पर का तकार १५ मई से या बाद दरो होने उस फसल के, जो व दे ने नो टस खेत म खड़ हो, बेदखल समझा जावेगा.
दफा ३२०. × डाकखाने से जो रसीद मकतूबइलेह क हािसल होगी वह और अगर मकतूबइलेह ने नो टस लेने से इ कार कया हो तो डाकखाने क इस अ क िन बत जोहर इवारत क "मकतूबइलेह ने लेने से इ कार कया" काफ शहादत तामील नो टस क समझी जावेगी."
(iii) From plain reading of Section 317 of Qanun Mal , Gwalior, it is clear that if Malguzar wants to dispossess a lessee, then he has to serve a notice by registered post or through the Tehsil Court and in case if the registered post is refused by the addressee, then such refusal shall be treated as served.
(iv) In order to prove that notice for termination of tenancy was issued Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 17 SA-367-2001 by the zamindar Maharaj Singh, plaintiff has relied upon notice Ex.P/18 as well as the evidence of Maharaj Singh.
(v) Sections 317 and 320 of Qnun Mal Gwalior require service of notice for termination of tenancy, and only after service of such notice, the tenancy can be terminated. Therefore, issuance of notice is not the only criteria, but service of notice has to be proved by the plaintiff. Admittedly, except the verbal evidence of Maharaj Singh (PW-5) that the father of the defendant had refused to accept the notice, there is nothing on record to suggest that the father of the defendant had ever refused to accept notice (Exhibit P-18). Furthermore, this notice was not sent by registered post. It appears that the notice was sent through the Tehsildar. Unless & until there is an endorsement by the process server that the addressee has refused to accept service, it cannot be said that the notice was refused. Even no presumption can be drawn in this regard. Since service of notice is a sine qua non for termination of tenancy, and in the absence of any proof that notice was duly served on the father of the defendant, it is held that the plaintiff has failed to prove that the tenancy of the father of the defendant was legally terminated.
(vi) Accordingly, substantial questions of law Nos. 2 and 4 are answered in favour of the appellants.
1 3 . Whether on the basis of possession report (Ex. P/4) dated 29/6/1949 and on the basis of admission made by plaintiffs' witness Matadin (PW/3) can it be said that plaintiff had proved his possession over the suit land since Samvat 2004 and by reasons of the provisions of Section 54 (vii) of Madhya Bharat Land Revenue and Tenancy Act 1950 the plaintiff shall be Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 18 SA-367-2001 deemed to be a pucca tenant and hence Bhumiswami on coming into force of Madhya Pradesh Land Revenue Code, 1959 ?
(i) So far as substantial question of law No. 3 is concerned, the defendants have relied upon the order dated 15/2/1965 (Exhibit D-3) passed by SDO Ambah to show that possession of the land was delivered to the plaintiff on 05/06/1964 in compliance of the earlier orders passed by Revenue Courts. It appears that after order dated 30.05.1964 was passed by Commissioner, the possession was delivered to plaintiff on 05/06/1964. Thereafter, the order dated 30/05/1964 passed by Commissioner was stayed by Board of Revenue by order dated 23.06.1964, therefore, application was filed by defendant for implementation of stay order. The same was rejected on the ground that possession was already delivered prior to issuance of stay order. Thus, it is clear that the possession of the property in dispute was never taken by the zamindar from the father of the defendant after so called termination of tenancy. Therefore, it cannot be said that the plaintiff was in possession of land in dispute since samvat 2004. Ultimately, the plaintiff lost his case from the Revenue Courts, which necessitated filing of the present suit. Under these circumstances, substantial question of law No.3 is also answered in negative & against plaintiff/respondent & it is held that the plaintiff has failed to prove that he became pucca tenant & ultimately acquired the Bhumiswami Rights.
14. Accordingly, the judgment and decree dated 26.07.2001 passed by Third Additional District Judge, Morena in civil appeal No.57A/1996 is hereby set aside, and the judgment and decree dated 1/1/1981, passed by Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:9765 19 SA-367-2001 Civil Judge, Class II, Ambah District Morena, in Civil Suit No. 27A/1974 is hereby restored.
15. The appeal is allowed. No order as to costs.
(G. S. AHLUWALIA) JUDGE Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 25-03-2026 08:04:55 PM