Madhya Pradesh High Court
Abde Ali vs The State Of M.P. on 6 August, 2018
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
First Appeal No. 174 of 1999
Abde Ali & others. .. Appellants.
Plaintiffs
Vs.
State of M.P.& others .. Respondents.
Defendants
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Shri Vivek Dalal, Advocate for the appellants.
Shri H.Y. Mehta, Govt. Advocate for the respondents.
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JUDGEMENT
(Delivered on 6th August, 2018) The appellants/plaintiffs have filed the present appeal being aggrieved by judgement and decree dated 26.3.1999 passed by Sixth Additional District Judge, Ujjain, by which, Civil Suit no.39-A/1991 has been dismissed.
2. The plaintiffs filed the civil suit seeking the relief of declaration of ownership of lands having area 8 'Bighas' and 1 'Biswa' called as "Category 1 lands" and lands having area 10 'Bighas' and 16 'Biswa' called as "Category 3 lands" (both category of the lands are here in after referred as 'Suit lands') situated in the Municipal area of Ujjain and also challenged the decision of the respondents/defendants by which they were treated as encroacher as void and illegal.
3. As per pleadings in the plaint, there was Industrial Mill Company Ltd Ujjain over lands bearing Survey No.3766 area 4 Bighas and 5 Biswas and lands bearing Survey No.3654/1 area 3 2 Bighas 15 Biswa at Ujjain. The said company took a loan from Gwalior Trust. In order to recover the loan amount, the said Industrial Mill Company Ltd Ujjain along with the lands Category 1 was put into auction on 8.2.1930 and in the auction proceedings; Seth Onkarmal purchased the same and he was placed into his possession on 16.7.1930. He started the Mill in the name of The Seth Onkalmal Flour Mill. Later on, Seth Onkarmal Ji entered into partnership firm with Seth Fida Hussain Sandalwale and also changed the name of the company Mill/Factory as "Sandalwale Flour and Oil Mill". Thereafter, Fida Hussain left the partnership firm and Abdul Hussain became the exclusive sole proprietor of firm accident and also named the factory as "Sunrising and Oil Mill". He remained as the owner thereof till 24.7.1961. In the year 1961, there was a fire accident in the factory, because of which, the production was stopped. Abdul Hussain died on 28.12.1968 and thereafter, the plaintiffs being the legal representatives became the owner of suit property. The Category 3 lands was given to the ancestors of the plaintiff for the use of factory and agricultural purposes and they used the same for agricultural purposes since them.
4. The lands comprising in Survey Nos. 3754/1, 3754/8, 3754/3, 3754/10 and 3754/12 area 8 Bighas 14 and 14 Biswa (hereinafter, referred to as "Category 2 lands") is also situated in municipal area of Ujjain and same was purchased by the ancestors of the plaintiff from Chhotelal Prabhulal as agricultural lands. The Collector vide order dated 2.12.1970 had recorded the finding that the plaintiffs are owners of the said lands and later on the same was mutated in their name. The plaintiffs had sold the 3 same on 14.10.1985 to Lokmanya Tilak Sanskratik Nyas, Neelganga, Ujjain , hence there is no dispute about the ownership of the said lands in the suit. Hence, the plaintiff claimed the relief of declaration of title for Category 1 lands and Category 3 i.e suit lands only . The various survey numbers of suit lands are mention in memo of the plaint
5. The cause of action for this exordium arose on 1.9.1961 when Tehsildar, Ujjain disputed the ownership of the plaintiff over the 'Suit lands' by treating them as an encroacher and issued notice u/s. 248 of M.P. Lands Revenue Code (MPLRC). Later on, the said notice was cancelled and in Case No.2/61/59 another notice dated 23.6.1961 was issued u/s. 181 and 172 of MPLRC read with Section 39 of The Madhya Bharat Zamindari Abolition Act, 1951(13 of 1951) (hereinafter, for short, Zamindari Abolition Act) . The enquiry was initiated before the Tehsildar and meanwhile, Late Abdul Hussain submitted two applications dated 4.8.1963 and 26.12.1963 respectively before the Collector for allotment of Category 1 to 3 lands on fresh Special lease. The Collector, Ujjain vide order dated 2.12.1070 recorded the findings that the Category 2 lands was purchased by Abdul Hussain hence he is entitled for mutation in his name . In respect of 'suit lands', the Collector held that after abolition of 'Zamindari' system, after Zamindari Abolition Act w.e.f 2.10.1951 the suit lands of both Category 1 & 3 had already been vested in the Government of M.P.
6. Being aggrieved by the aforesaid order, the plaintiffs preferred an appeal before the Commissioner, Ujjain and the same was dismissed. Being aggrieved, the plaintiff preferred revision 4 before the Board of Revenue. The Board of Revenue by order dated 13.12.1973 set aside the order of Collector as well as of the Commissioner and remanded the case to the Collector, Ujjain with a direction to decide the title of the plaintiff over the suit lands and may also consider to pass an order for allotment of these lands afresh. After the aforesaid remand, the Collector, Ujjain vide order dated 19.1.1977 held that the plaintiffs are not having any title over the suit lands and their possession is illegal and the Nazul Officer was directed to proceed by treating the lands as a Nazul lands.
7. Being aggrieved by the aforesaid order, the plaintiffs preferred an appeal before the Commissioner who dismissed the same. Upon dismissal of appeal, the plaintiff preferred revision before the Board of Revenue which was also dismissed by order dated 30.9.1978. Being aggrieved by the aforesaid orders, the plaintiffs preferred writ petition before this Court. Vide order dated 22.11.1984, this Court dismissed the writ petition with a liberty to file a civil suit. Thereafter, the plaintiffs filed this civil suit on 22.4.1984.
8. After notice, the defendants filed their written statement refuting each and every averment made in the plaint by further submitting that Abdul Hussain and thereafter the present plaintiffs are in possession as an encroacher over the suit lands. Abdul Hussain himself submitted the application on 26.12.1963 for allotment of the suit lands on fresh lease. Category 1 lands was given on lease by the Zamindar to the ancestors of the plaintiff for establishment of factory with the condition that the said lands shall be held by Ujjain Industrial Mill for the purposes 5 of factory till its existence i.e. 'Karkhana Ta Kayami'. As the factory had stopped the production since 1963, therefore, the plaintiffs are not entitled to continue in possession over the lands in question and accordingly, the revenue authorities have rightly proceeded for taking of possession as all the lands of category 1 had been vested in the Government. On 24.10.1977, the Government has taken the possession of the lands from the plaintiffs.
9. So far as Category 3 lands are concerned, in Samwat 2002 i.e. in the year 1951-52, it was given to Seth Omkar mal and used for Industrial Mill Company Ltd Ujjain and not for agricultural purposes by the plaintiffs and their ancestors, therefore, the said Cat. 3 lands cannot be treated as agricultural lands and accordingly The plea of adverse possession are not available to the plaintiffs, hence they are not entitled to claim ownership and the possession of the said lands had already been taken on 24.10.1977. All the legal heirs of Abdul Hussain are not on record; therefore, the suit suffers from non-joinder of parties. The suit is time-barred and has also not been properly valued, hence liable to be dismissed. By taking all afore said objection the defendants contested the suit .
10. On the basis of pleadings, the learned fact finding Court framed 15 issues for adjudication. In support of pleadings, plaintiffs examined Abde Ali S/o. Abdul Hussain as P.W.1, who was having Power of Attorney holder of other plaintiffs; Munshi Mumtaz was examined as P.W.2; and Yashwant was examined as P.W.3. In support of written statement, the defendant examined Mohanlal, Patwari posted during 1976 to 1989 as D.W.1 and 6 Ratanlal, Revenue Inspector as D.W.2.
11. The plaintiffs got exhibited General Power of Attorney as Ex.P/1 , Deed of Partnership dated 06.01.1934 between Seth Onkarmal Ji, Fida Hussain and Richhpal as Ex. P/2 , Deed dated 21.03.1939 by which Seth Onkarmal Ji left the firm and Munnalam became partner as Ex. P/3; a deed of partnership firm by which Fida Hussai and others formed the firm; as Ex. P/4; Disolution of the Firm as Ex.P/5 ; Khasra Panch Sala as Ex. P/6 to P/12, in which, name Flour Mill, Ujjain was recorded as 'Kashtkar' ; deed of dissolution of partnership firm between Fezulla Bhai and Abdul Hussain dated 24.7.1961 as Ex. P/13; legal notice u/s. 80 of C.P.C. to the Government dated 13.12.1984 as Ex. P/16; and order of Commissioner, Ujjain dated 20.11.1977 as Ex. P/29.
12. The defendants got exhibited 'Panchnama' of possession dated 24.10.1977 as Ex. D/1 to D/3; Khasra Panch Sala from 1974 to 1978 as Ex. D/4; Khasra Mouja as Ex. D/5 to D/8; order of Commissioner dated 19.1.1977 as Ex. D/7; order of Board of Revenue dated 30.9.1978 as Ex.D/10.
13. The learned trial Court decided the Issue Nos. 1 to 10 together as all were related to each other and recorded the findings that lands comprising Category 1 lands were not received by the ancestors of plaintiffs on lease and same were given for factory/mill purposes with condition of its existence (Karkhana Ta Kayimi) and since the factory had stopped working due to fire accident held in the year 1963, hence the plaintiffs are not entitled to continue in possession thereof. It has further been held that the 7 plaintiffs have failed to prove that Category 3 lands were being used as an agricultural lands and not part of the factory. That the ancestors plaintiffs did not file any application u/s. 39 of the Zamindar Abolition Act to become 'Pakka Tenant', therefore, all the suit lands had already been vested in the Government after abolition of 'Zamindari' system under the Zamindar Abolition Act 1951. The learned trial Court has also not found possession of the plaintiff over the suit lands in question as the same had been taken from them on 24.10.1977. Vide judgment and decree dated 26.3.1999, the learned trial Court has dismissed the suit, hence the present appeal before this Court.
14. The plaintiffs/appellants have now assailed the impugned judgment and decree on the following grounds:
(i) That the ancestors of the plaintiffs were given the suit lands by the 'Jamindar' of erstwhile Gwalior State under the right of "Ger Dakhildar" and before abolition of 'Zamindari' system, these lands are in continuous possession of the plaintiffs;
(ii) That, as per "Kanoon Mal Gwalior Samwat 1983", Ger Dakhildar automatically acquires the right of Dakhildar or Mourushi Kashtakar after lapse of 24 years. After 2.10.1951 under the Zamindar Abolition Act , they had become Dakhildar or Mourushi Kashtakar or 'Pakka Tenant' u/s. 38(1) of the Zamindar Abolition Act ;
(iii) Category 3 lands were given to the ancestors of the plaintiffs sometime in 1939 as Dakhildar and the same was being used for agricultural purposes only. Since the plaintiffs remained in possession for more than 12 years, 8 therefore, they have acquired the title of Bhoomi Swami ;
(iv) The learned trial Court has erred in relying on the word "Karkhana Ta Kayami" in absence of any document and by placing reliance over the entry in Khasra record that too first time in the year 1951-52. But said aid Khasra also mentions the right of the plaintiffs as "Ger Dakhildar".
(v) The learned trial Court erred in holding that the defendants have failed to produce any documentary evidence to establish that the ancestors of the plaintiffs were granted the suit lands on lease for any purpose other than agriculture. On the contrary, the said lands were given by 'Zamindar' to the ancestors of the plaintiffs under the name of "Ger Dakhildar. The learned trial Court has also wrongly recorded the finding in respect of possession taken by the defendant on 24.10.1977, whereas the plaintiffs are still in possession.
15. Shri Vivek Dalal, learned counsel appearing for the appellants/plaintiffs, contended that the father of the plaintiff became partner of the firm and thereafter, in the year 1963 he became exclusive owner of the firm and the lands comprising Category 1 to 3 when Abdul Hussain left the firm. By virtue of Section 38 of the Act of 1959, the plaintiffs became 'Pakka' tenant or Mourushi Kashtakar and thereafter, by virtue of Section 185 of the MPLRC 1951, they have acquired the title of the lands in question as "Bhoomi Swami". Even if the ancestors of the plaintiffs did not apply for grant of lease under the Zamindar 9 Abolition Act , but they remained in possession of the suit lands in question till MPLRC 1959 came into force and became lessee of the Government . The learned trial Court has wrongly held that the suit lands had vested in the Government and the plaintiffs became encroacher on the same. When the defendants had found title of the plaintiffs over Category 2 lands, then they are also entitled for declaration of title of the suit lands because the source of all the three lands was same as all the lands were given to the ancestors by the then 'Zamindar'. The defendant has failed to produce any document in respect of grant of suit lands by way of lease. In support of his contention, he has placed reliance over the judgment of The Supreme Court of India passed in the case of Badrilal V/s. Muniaipal Corporation : 1973 JLJ 1018, in which, it has been held that the tenant continuing into possession after determination of the term will not become trespasser.
16. Mr. Dalal further placed reliance over the judgment of The Supreme Court of India passed in the case of Gordhan Das V/s. Pirkhan : (2002) 1 SCC 686, in which, it is held that where sub tenant had been in continuous possession of the lands prior to coming into force of the Zamindar Abolition Act , becomes a 'Pakka' tenant u/s. 38 of the Zamindar Abolition Act .
17. Mr. Dalal has also placed reliance over the judgment of Apex Court in the case of Narayan Prasad Agrawal V/s. State of M.P. : (2007) 11 SCC 736 on the point that the existence of lease-deed must be proved. The entries made in the revenue record cannot defeat lawful title acquired by the auction purchaser and also the non-payment of rent does not create or extinguish the 10 title. He has placed heavy reliance over the judgment of Apex Court in the case of Gwalior Sugar Co. Ltd. V/s. Anil Gupta :
(2012) 12 SCC 19, in which it has been held that in absence of any pleading that the procedure for grant of fresh lease contemplated u/s. 39 had not been followed by making requisite application u/s. 101 of M.P. Tenancy Act, 1950, no adverse consequence can be visited upon. He has also placed reliance on State of M.P. & others V/s. Radhika Prasad : 2015 (4) MPLJ
58.
18. Per contra, Mr. H.Y. Mehta, learned Govt. Advocate appearing for the respondents, refuted the arguments of Mr Dalal by submitting that the plaintiffs have utterly failed to bring any document relating to the terms and conditions of the lease granted to the original owner of the mill/factory. No documents in relation to auction sale have been filed in the suit by the plaintiffs. Being the plaintiffs, the burden lies on them to prove their source of ownership over the suit lands because which can be established only by way of documentary evidence. In support of his contention, he has placed reliance over the judgment of Apex Court passed in the case of Sebastiao Luis Fernandes (Dead) Through L.Rs. & Ors. V/s. K.V.P. Shastri (Dead) Through L.Rs. & Ors._(2013) 15 SCC 161; and Vishnu Sharan V/s. Ajuddhibai :
2004 (3) MPLJ 376.
19. Mr. Mehta Ld. Govt. Advocate further submitted that the suit lands were given to the ancestors of the plaintiff for establishment of factory/ mill only and they were liable to continue in the possession till existence of the factory and the said condition is clearly found place from the entries made in the 11 revenue records. Admittedly, the factory is not in operation since the year 1963. The old register maintained in regular course and the entries made therein are reliable as held by the Apex Court in the case of Chief Executive Officer V/s. Surendra : 1993 (3) SCC 533.
20. He further emphasized that the plaintiffs are claiming title by way of adverse possession which is also contrary to the law laid down by the Supreme Court of India in the case of Gurudwara Sahib V/s. Gram Panchayat : (2014) 1 SCC 669. The plaintiffs also cannot claim the benefit of Section 158(2) of the MPLRC as held by the Apex Court in the case of State of M.P. V/s. Maharani Ushadevi : AIR 2015 SC 2699. The plaintiffs have to prove their case and they cannot take advantage of weakness of the defendants. In support of his contention, he has placed reliance over the judgment of The Supreme Court of India passed in the case of Punjab Urban Planning & Development Authority V/s. Shiv Saraswati Iron & Steel Re- Rolling Mills : 1998 (4) SCC 539.
21. Mr. Mehta further added in his arguments that there is no pleadings in the plaint about plaintiffs becoming occupancy tenants and in fact, there is no pleading or proof of becoming tenant or sub-tenant of the suit lands as defined in Section 185 of the MPLRC1959, therefore, by way of operation of law, the plaintiffs cannot become Bhoomi Swami of the suit lands. The father of the plaintiffs himself applied for allotment of suit lands on lease and the revenue authorities by order dated 24.10.1977 had rejected the application, therefore, now, the plaintiffs are estopped from claiming title by virtue of provisions of the 12 Zamindar Abolition Act and Section 185 of the MPLRC. All the Khasra entries like Ex. P/6, P/7 and P/12; D/6 and D/7 shows that the suit lands was given only for the purposes of mill/factory and after closure of the same in the year 1963, the father of the plaintiffs applied for allotment of the lands on fresh lease, that shows that the earlier right to continue possession over the lands had vanished. The revenue authorities by reasoned orders had rejected the application. Therefore, no interference in the impugned judgment and decree is called for and the appeal is liable to be dismissed.
22. I have heard the learned counsel appearing for the parties at length and perused the record and rulings cited by them .
23. The plaintiffs filed the suit claiming declaration of title in respect of the suit lands . There is long chequered history ,as it started before independence , the suit lands in question was in possession of Ujjain Industrial Mill Ltd. which was in debt of Gwalior State Trust . That in order to recover the said loan amount the High Court passed the order for auction of the said Mill. According to the plaintiffs, the Mill was sold in auction along with the suit lands and purchased by Seth Onkarmal Ji . Thereafter, Onkarmal established Flour Mill in the year 1930. Later on, in the year 1943 Seth Onkarmal entered into partnership with Seth Fida Hussain and they started the said Mill in the name of Sandalwala Floor & Oil Mills. Later on, it named as The Rising Sun & Oil Mills w.e.f. 7.10.1945. Thereafter, w.e.f. 1961, Abdul Hussain became the exclusive owner of the said Mill and after his death; the plaintiffs became owners of the said Mill.
13The Firm had undergone variegated changes. The Mill was established over the lands measuring 8 'Bighas 1 'Biswa and remaining lands i.e. 13 Bighas and 10 Biswas was received from the then 'Zamindar' Munnalal, later on out of which 8 Bighas 14 Biswas (Category 2 lands) was purchased by Abdul Hussain on 11.11.1966 from Chhotelal Prabhulal. The defendants have already admitted the title of the plaintiffs over the said lands of Cat.2, therefore, in this litigation, there is no deliberation about the said lands. So far as remaining lands i.e. Category 3 lands measuring 10 Bighas 16 Biswa, according to the plaintiff, the said lands was used for agricultural purposes which were a part of the mill/factory also.
24. The Tehsildar, Ujjain on 9.1.1961 issued the notice to the Rising Sun Flour Mill, Ujjain, but later on, the same has been cancelled and again a notice dated 23.6.1961 was issued u/s. 172 and 181 of the MPLRC read with Section 39 of the Zamindar Abolition Act on the ground that the suit lands had already been vested with the Government and directed the plaintiffs to vacate and hand over the possession to Government. The notice was issued in respect of all Category 1, 2 and 3 lands. In response to the said notice, father of the plaintiffs submitted an application on 26.12.1963 for allotment of the lands measuring 27 Bighas and 11 Biswa by way of special lease. Later on, vide application dated 4.8.1969, he divided these total lands into three categories by submitting that Category 2 lands is in their possession by way of ownership and sought allotment of lands measuring 10 Bighas 16 Biswa by way of special lease. The Collector vide order dated 2.12.1970 has held that the plaintiffs become owner of Category 2 14 lands, but for Category 1 and 3 lands he held that same had already been vested with the Government by virtue of the provisions of Abolition of Zamindari Act and Section 101(1) of the Madhya Bharat Revenue Administration and Ryotwari Lands Revenue and Tenancy Act, Samvat 2007 as they did not obtain the lease within six months. The aforesaid order of Collector was challenged by the plaintiffs before the Commissioner, who vide order dated 12.10.1972 dismissed the appeal. In the revision preferred against the said order, the Board of Revenue vide order dated 13.12.1973 remanded the case to the Collector to consider the application dated 26.12.1963 afresh in respect of lands bearing Survey No.3754/3, 3754/8, 3754/9, 3754/10 and 3754/10 and decided as to why these lands be not treated as of the ownership of the plaintiffs. The Board of Revenue also directed to consider in respect of lands bearing Survey No. 3754/1 and 3766 as to whether the plaintiffs have acquired the title by virtue of old lease. In respect of other lands, it was directed to consider the application for grant of special lease u/s. 101.
25. After the aforesaid order of Board of Revenue, the Collector vide order dated 19.1.1977 has again held that the suit lands had already been vested with the Government and the plaintiffs have failed to prove their ownership and upheld the earlier order in respect of Category 2 lands. Against the order of Collector, the plaintiffs preferred the appeal before the Commissioner, who dismissed the same. The revision preferred against the order of Commissioner, also stood dismissed, hence the present suit was filed.
26. The issue for consideration before this Court is, 15 whether the plaintiffs have acquired the title over the lands in question? From the very beginning, the case of the plaintiffs before the Civil Court is that they have become owner (Bhoomi Swami) of the suit lands by virtue of their long possession and by way of fiction crated by the law related to land revenues. It is settled law that the plaintiffs who approaches the Court, burden lies on them to prove their case to get the relief claimed in the suit. According to the plaintiffs, their father Abdul Hussain became the owner of the suit property by virtue of his sole ownership in the firm. Since one of the partner Fida Hussain left the firm on 24.7.196, therefore, Abdul Hussain became the absolute owner of the said property.
27. Undisputedly, the lease granted to Ujjain Industrial Mills Ltd. is not on record. Seth Onkarmal Ji purchased the said Mill in auction proceedings, but no documents are on record in respect of auction of the suit property . The only documents with the plaintiffs are a partnership-deeds and deed of dissolution for the Firm . That (Ex. P/2) partnership-deed 1.1.1934 was executed between Seth Onkarmal, Seth Fida Hussain and Seth Richhpal. This partnership deed is only in respect of formation of the firm for the Mill called Onkar Flour Mill, Ujjain. There is no description of the lands or other movable property or immovable properties owned by the said firm in the deed. There is only recital about the Mill was purchased by Seth Onkarmal Ji on 18.2.1930 in auction proceedings. Seth Onkarmal Ji got mutated his name of the company in the Government records , thereafter he formed the firm. On 1.1.1943, Seth Onkarmal took his share and walked out of the firm and Fida Hussain changed the name of 16 the said firm and he inducted 5 other partners in the firm and started running the Mill in the name of Sandalwala Flour & Oil Mill up to September, 1945. Said Fida Hussain walked out from the firm w.e.f. 4.10.1945 by taking his share and finally, the father of the plaintiffs' viz. Abdul Hussain entered into the said firm and continued the firm and the Mill till 1963 when the fire accident took place in the Mill. Therefore, in the entire suit, except three partnership deeds and few 'Khasra' entries, no other document has been filed to prove the ownership. Whether the plaintiffs had acquired the title, by virtue of deeming provisions of the Zamindari Abolition Act and Section 158 of the MPLRC, otherwise, the plaintiffs do not have any document pertaining to their ownership of the property in question.
28. Late Abdul Hussain submitted two applications for allotment of entire lands by way of special lease. Though, neither the plaintiffs nor the defendants got exhibited the said application, but in the order of Collector dated 19.1.1977 (Ex. D/8) and in the order of Board of Revenue dated 30.9.1978, there is a reference of this application. According to Abdul Hussain as written by himself in the said application, that by virtue of the Zamindari Abolition Act, the lands in question had vested with the Government and he has become lessee of the Government and entitled for the fresh lease under the same terms and conditions which was granted to Ujjain Industrial Mills Ltd. The plaintiffs are not having copy of the lease by which it was granted to Ujjain Industrial Mills Ltd. Since the suit lands were on lease for industrial purposes, therefore, the provisions of Section 39 of the Act of 1951 would apply not the provisions of Sec 38. Section 39 17 of the Act of 1951 is reproduced below:-
"39. Grant of fresh lease for lands given for purposes other than agriculture - A person who has taken lands on lease from the proprietor for any purpose other than agriculture shall apply within six months from the date of vesting, to obtain from the Government a new lease under section 101(1) of Madhya Bharat Revenue Administration and Ryotwari Lands Revenue and Tenancy Act, Samvat 2007, and the Government may grant a lease subject to such terms and conditions for securing the rent and utility of lands as may be deemed proper. From the date of vesting up to the grant of new lease the personal shall be deemed to be a lessee of the Government for that lands on the same conditions on which the lease was granted to him by the proprietor. If the Government does not think it proper in the public interest to grant the lease, the amount of compensation shall be paid at market value."
According to the provision sec.39, a person who has taken the lands on lease from proprietor for purposes other than agriculture was required to apply within six months from the date of vesting, for obtaining lands on new lease u/s. 101(1) of Madhya Bharat Revenue Administration and Ryotrwari Lands Revenue and Tenancy Act, Samvat 2007. After submitting such an application, the Government may grant a lease subject to such terms and conditions for securing the rent for utility. It has also been clarified in this Section that from the date of vesting up to the grant of new lease, person shall be deemed to be the lessee of the Government on the same terms and conditions and if the Government does not think it proper in public interest, compensation shall be paid at market value. Therefore, the condition to apply for continuation of lease, within six months is 18 mandatory in nature as the word 'shall' is used therein. Admittedly, the ancestors of the plaintiffs did not apply within six months from 5.6.1951. Father of the plaintiffs became partner in the firm on 7.10.1945 and thereafter became absolute owner of the firm on 24.7.1961. First time, he applied for allotment of the suit lands by way of fresh lease vide application dated 26.12.1963. Admittedly, the title over the lands in question was with the Government and he was lessee. To claim the allotment as a matter of right by virtue of old lease, he was required to apply to the Government within six months. Since he failed to apply within stipulated period of 6 months, therefore, after expiry of said period, his right had been ceased to claim the lease under the same terms and conditions as was given to Ujjain Industrial Mills Ltd. After expiry of said period of six months, it was the prerogative of the Government to grant fresh lease to him under the new terms and conditions irrespective of his status as old lessee. In two round of litigation before the revenue authorities, the application filed by Abdul Hussain had been rejected on the ground that he is not entitled to get the fresh lease of the suit land. Since his right u/s. 39 has ceased after expiry of six months, therefore, he cannot claim further benefit as given under the provisions of MPLRC.
29. By virtue of Section 158 of the MPLRC, every person who at the time of coming into force of this Code, shall be called a Bhumiswami if the lands held by him in Madhya Bharat region as 'Pakka Tenant' or as a 'Muafidar', Inamdar' or Concessional holder as defined in Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007. Madhya Bharat Lands Revenue and Tenancy 19 Act, Samvat 2007 defines 'Pakka' tenant", 'Maufidar' and 'Inamdar', as under :
"54 (vii) Pakka tenant means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a "Ryot Pattedar", "Mamuli Maurusi", "Gair Maurusi" and "Pukhta Maurusi" when this Act comes into force ....."
Section 54(xix) defines 'lands' as under :-
"54(xix). Lands - means lands which is let or held for growing of crops, or as grove lands or for pasturage. ..........."
Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007 was made applicable in respect of lands held by any person for growing of crops, etc., hence, the provisions of the said Act would not apply to the suit lands held by predecessors of the plaintiff for the purpose of Mill. Therefore, the father of the plaintiffs was not 'Pakka tenant' or 'Maufidar' or 'Inamdar' as defined in Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007, hence plaintiffs cannot become Bhumiswami u/s. 158 of the MPLRC.
30. So far as applicability of Section 185 of the MPLRC is concerned, every person who at the time of coming into force of this Code holds the lands of a proprietor as defined in Madhya Bharat Zamindari Abolition Act, 1951 as a sub-tenant or as a tenant of a sub-tenant, would be called as "Occupancy Tenant".. Therefore, u/s. 185 of the MPLRC, only a sub-tenant or the tenant of sub-tenant of a property is entitled to get the status of "occupancy tenant".
31. Section 38 of Zamindari Abolition Act, 1951 confers 20 power of 'Pakka' tenancy, right of the tenant and sub-tenant. As held above, these rights are available only to 'Krishak' if the lands is held for agricultural purposes as tenant or sub-tenant. Therefore, the lands held u/s. 39 of the Zamindari Abolition Act, 1951 for other than the agricultural purposes is excluded from Section 185 of the MPLRC. The person who had taken the lands on lease from the proprietor is neither a tenant nor a sub-tenant, therefore, the plaintiffs have no right to claim the status of "occupancy tenant" u/s. 185 of the MPLRC.
32. As held above, since the plaintiffs or their predecessors did not apply within stipulated period of six months for grant of lease, therefore, their rights had ceased under the Zamindari Abolition Act, 1951. Their application for allotment of lands on special lease dated 26.12.1963 was rightly rejected. Hence, under the provisions of law, they are not entitled for declaration of title over the Category 1 lands.
33. So far as Category 3 lands are concerned plaintiffs are not entitled to get declaration of Owner due to the reasons mention above . Even otherwise, according to the plaintiffs, it was allotted for agricultural purposes, but the same was part of the Mill. The plaintiffs filed certain 'Khasra' record, in which, in Column 6, name of Flour Mill is recorded. Nowhere it is mentioned that the agricultural activities were going on over the said suit lands. No material has been produced by the plaintiffs to establish that the lands were ever used for agricultural purposes. The entire lands were granted on lease by the then proprietor for establishment of industry. In the revenue entry, it is specifically mentioned that it were given till the existence of Mill/factory 21 ("Karkhana Ta Kayami"). Admittedly, the Mill/factory is not functional since 1963.The purpose of allotment has also gone along with the rights of the plaintiffs to continue in possession over the lands for the purposes of Mill/factory.
34. Shri Vivek Dalal, learned counsel appearing for the appellant, placed heavy reliance over the judgment of The Supreme Court of India in the case of Gwalior Sugar Co. Ltd. V/s. Anil Gupta : (2012) 12 SCC 19. In the said case, a PIL was filed before this Court challenging the transfer of lands contrary to the lease granted to the Gwalior Sugar Co. Ltd. The title of the company was not under dispute by the state Government . The owner /directors of the company have never claimed ownership in their name and the case was defended in the name of the company. The issue of Zamindari Abolition Act, 1951 was raised for the first time before the Supreme Court of India, but in the present case, Section 39 of the Act of 1951 was relied upon by the defendants, before the Collector, Commissioner, Board of Revenue and the Civil Court and after appreciating the evidence on record, all the authorities and the Court accepted the same.
35. In the case of Gwalior Sugar Co. Ltd. (supra), the name of the company was recorded as "Ger Maurushi" in the revenue record, therefore, it was held that the company has acquired the status of 'Pakka' tenant and became "Bhumiswami" under the MPLRC. In Para 15 of the aforesaid judgment, the Apex court made it clear that the provisions of Zamindari Abolition Act, 1951 have been pressed into service for the first time in the present appeal, there is no pleading, no arguments made before the High Court on behalf of the State in respect of 22 procedure for grant of lease as contemplated u/s. 39. But in the present case in hand, a specific application was moved in the year 1963 for allotment of lands by Abdul Hussain and that was considered by the defendants and rejected. There is absolutely, no admission on the part of defendants in respect of conferral of "Bhumiswami" right in favour of the plaintiffs. Therefore, the facts of Gwalior Sugar Mill (supra) are distinguishable from the facts of the present case. Here, the plaintiffs have gone through the entire procedure under the MPLRC and thereafter filed the suit and failed to establish "Bhumiswami" right over the lands in question.
36. Even otherwise, the suit lands were granted on lease in the name of Onkar Flour Mill, thereafter, Seth Onkar formed partnership firm to run the said Mill and finally, Abdul Hussain became proprietor of the said firm. The lease was given in the name of the firm and not in the name of any individual. Seth Onkarmal purchased the Mill by way of auction proceedings, but after the proceedings of auction purchase, any deed was executed with the Gwalior State Trust is not on record. Whether the lands were purchased or only a factory was purchased, no documents are on record. Hence, the allotment of lands in the name of Mill has gone the moment the firm had dissolved or Mill stopped its operation. Therefore, in the year 1963, Abdul Hussain applied for allotment of lands on lease in his own name and not in the name of the firm and now the plaintiffs are claiming titles by virtue of legal heirs of Abdul Hussain. The Government had rejected their application for allotment of lands on lease. Therefore, the revenue authorities rightly issued the notice to the plaintiffs for taking 23 possession.
37. The learned trial Court has also recorded the finding in respect of possession taken on 10.4.1977 and the same is also not liable to be interfered in this appeal. The proceedings of possession were taken by the revenue authorities in presence of independent witnesses. The legal heirs of Abdul Hussain are residing in Kolkata or Mumbai, except Abde Ali, in whose favour the Power of Attorney was granted. Despite notice to him, he remained absent at the time of taking possession. The remaining lands (i.e.Cat.2) were in possession of Lokmanya Tilak Sanskratik Nyas. The possession was taken and the Panchnama proceedings were signed by the Principal and Secretary of the said Institution. Therefore, there is no reason to disbelieve the 'Panchanama'. No material has been placed before the Court in respect possession over the suit lands by the plaintiffs. Therefore, the findings of the trial Court are not liable to be reversed.
38. In view of the foregoing discussion, in the considered opinion of this Court, the findings recorded by the learned trial Court are not liable to be interfered with in this appeal. Accordingly, this appeal fails and is hereby dismissed. The judgment and decree passed by the learned trial Court is hereby affirmed.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/- Digitally signed by Alok Gargav Date: 2018.08.07 11:03:33 +05'30'