Chattisgarh High Court
Gram Panchayat Chandrakhuri vs Smt. Jhamman Chandrakar And Others 18 ... on 18 May, 2018
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 102 of 1993
State Of Madhya Pradesh Through The Collector Durg (now Chhattisgarh)
---- Appellant
Versus
1. (a) Smt. Jhamman Chandrakar W/o Late Shri Nand Kumar, aged about 45
years, President of Village and post Chandrakhuri Tehsil and District-Durg,
Chhattisgarh
(b) Manoj Kumar Chandrakar S/o Late Shri Nand Kumar, aged abtou 22
years, Resident of Village and Post Chandrakhuri, PS Pulgaon, Tehsil and
District-Durg , Chhattisgarh
(c) Mamata Chandrakar, W/o Shri Ashok Chandrakar, aged abtou 26 years,
Resident of Old Raipur Naka, Behind Kali Bari School, Mahasamund, Tehsil and
District Mahasamund Chhattisgarh
(d) Anita Chandrakar, W/o Shri Khemu Ram Chandrakar, aged abtou 24 years
Resident of Ratapayali, Post Rudgaon PS Dongargaon, Rajnandgaon
Chhattisgarh
2. Narendra Kumar S/o Beniram, Aged About 38 Years R/o Village Chandrakhuri,
Tahsil And District Durg M.P., District : Durg, Chhattisgarh
3. Rajendra Kumar S/o Beniram, Aged About 29 Years R/o Village Chandrakhuri,
Tahsil And District Durg M.P., District : Durg, Chhattisgarh
4. Ram Bai W/o Ram Narain, Aged About 48 Years Village Jangleshwar P.O.
Kanharpuri Tahsil And District Rajnandgaon M.P., District : Rajnandgaon,
Chhattisgarh
5. Ramsila Bai W/o Ramnath, Aged About 46 Years R/o Village Aghaud P.O.
Aghaud Tahsil And District Durg M.P., District : Durg, Chhattisgarh
6. Kamla Bai W/o Vishnu, Aged About 44 Years R/o Village Kachandur P.O.
Kachandur Tahsil And District Durg M.P., District : Durg, Chhattisgarh
7. Pushpa Bai W/o Shiv Kumar, Aged About 33 Years R/o Village Tiloda, P.O.
Tamira, Tahsil And District Durg M.P., District : Durg, Chhattisgarh
8. Dhaniram Aged About 54 Years
9. Birij Bai W/o Balaram, Aged About 62 Years R/o Jangeleshwar, Tahsil And
District Rajnandgaon M.P., District : Rajnandgaon, Chhattisgarh
10. Fekan Bai W/o Nammoo Lal, Aged About 57 Years R/o Achhoti Tahsil Dhamtari
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District Raipur, District : Raipur, Chhattisgarh
11. Digambar Singh Aged About 36 Years S/o Jagdish Kurmi, R/o Chandkhuri,
Chhattisgarh
12. Balram Aged About 34 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
13. Nemi Aged About 31 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
14. Sanand Aged About 27 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
15. Kamal Narayan Aged About 23 Years S/o Jagdish Kurmi, R/o Chandkhuri,
Chhattisgarh
16. Smt. Bodhani Bai Wd/o Jagdish, Aged About 63 Years Cultivator, R/o
Chandkhuri, Chhattisgarh
17. Smt. Hira Bai Wd/o Jagdish, Aged About 54 Years Cultivator, R/o Chandkhuri,
Chhattisgarh
18. Smt. Dulari Bai W/o Shyam Sundar Kurmi, Aged About 38 Years Cultivator,
Villaged Vinayakpur Tahsil And District Durg M.P., District : Durg, Chhattisgarh
19. Kumari Bai W/o Mahesh, Aged About 29 Years Cultivator, Vinayakpur Tahsil
And District Durg, District : Durg, Chhattisgarh
20. Lakhan Lal Aged About 57 Years S/o Gayadin Cultivator R/o Chandrakhuri,
Chhattisgarh
21. Bharat Aged About 38 Years S/o Gayadin Cultivator R/o Chandrakhuri,
Chhattisgarh
22. Smt. Deowati Bai, aged about 74 years, Wd/o Gayadin Cultivator, Chandrakhuri
23. Laxmi Bai Wd/o Gajadhar, Aged About 51 Years Cultivator, R/o Bhothali Tahsil
Dhamtari District Raipur, District : Raipur, Chhattisgarh
24. (A) Smt. Rikmani Bai, aged about 52 years, Wd/o Late Ramnarayan
(B) Smt. Gouri Bai, aged about 35 yars, wife of Chandrika Prasad, D/o
Ramnarayan, R/o Kuthrel, PS Pulgaon, Tahsil, and District- Durg
(C) Narsingh, aged about 33 years, S/o Late Ramnarayan
(D) (a) Anurag, S/o Late Dhannu R/o Village and Post Chandrakhuri, Teh & Dist.
Durg, C.G.
(b) Ajit S/o Late Dhannu R/o Village and Post Chandrakhuri Teh & Distt Durg
C.G.
(c) Anupam S/o Late Dhannu R/o Raipur Sadarni Darbar Tatiband Road
Sankaracharya Ashram Rapur, CG
25. Radhecharan Aged About 52 Years S/o Jagatram, Cultivators, R/o Chandkhuri
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Tahsil And District Durg, District : Durg, Chhattisgarh
26. Chhannoo Lal Aged About 42 Years S/o Jagatram, Cultivators, R/o Chandkhuri
Tahsil And District Durg, District : Durg, Chhattisgarh
27. Manoo Lal Aged About 39 Years S/o Jagatram, Cultivators, R/o Chandkhuri
Tahsil And District Durg, District : Durg, Chhattisgarh
28. Jamwati Bai Wd/o Jagatram, Aged About 64 Years Cultivator R/o Chandkhuri,
Chhattisgarh
29. Bhaga Bai, aged about 79 years Wd/of Bisambhar Cultivator resident of
Chandrakhuri Teh & Dist. Rajnandgaon
30. Mahadeo S/o Domar, Aged About 34 Years Cultivator R/o Bharegaon Tahsil
And District Rajnandgaon, District : Rajnandgaon, Chhattisgarh
31. Derhin W/o Kaliram Aged About 31 Years Cultivator, R/o Achod Tahsil And
District Durg, District : Durg, Chhattisgarh
32. Amola Bai W/o Shankar Kurmi, Aged About 51 Years Cultivator R/o
Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
33. Jalam Singh (dead)
(a) Kalindribai, W/o Jalam Singh, R/o Chandrakhuri, Tehsil & District-Durg.
(b) Rukmanibai, W/o Kantilal Chandrakar R/o Khaarwada, Teh. & Distt.Durg.
(c) Devilal, aged about 49 years.
(d) Baldau, aged about 47 years.
(e) Vikram, aged about 40 years.
(f) Laxmichara, aged about 43 years.
(g) Biharsingh, aged about 41 years.
(h) Haldhar, aged about 39 years
All (c) to (h) sons of Late Jalam Singh, R/o chandrakhuri Teh & Dist. Durg
(i) Victoriabai, W/o Chandrika Chandrakar, aged about 47 years, R/o Kachandu,
Teh. Gunderdehi, District-Durg
35. Smt. Jamuna Bai (dead)
(a) Charan Singh, aged about 56 years.
(b) Girwar Singh, aged about 53 years.
(c) Girdhar Lal, aged about 47 years.
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(d) Smt. Shanti Bai, aged about 51 years
(e) Smt. Susheela Bai, aged about 49 years.
All Sons/daughters of Shiv Lal Chandrakar R/o Village Kachundur, Teh. & Dist.
Durg MP
36. Smt. Ganga Bai W/o Tejram Chandrakar Aged About 76 Years Near Of Bhilai
Deori Tahsil And District Durg, District : Durg, Chhattisgarh
37. Smt. Triveni Bai W/o Hiradhan Aged About 73 Years Kachandur Tahsil And
District Durg, District : Durg, Chhattisgarh
38. Smt. Parvati Bai Wd/o Jhaduram Aged About 54 Years Ama Lori Tahsil And
District Durg, District : Durg, Chhattisgarh
39. Chetan Lal S/o Gaind Dhimar Aged About 31 Years R/o Chandkhuri,
Chhattisgarh
40. Ankalhin Wd/o Gaind Aged About 49 Years R/o Chandrakhuri, Tahsil And
District Durg M.P., District : Durg, Chhattisgarh
41. Tikhan Bai S/o Gaind Aged About 12 Years Minor Through G.A.L. Mother
Teekhan Bai R/o Chandkhuri Tahsil And District Durg, District : Durg,
Chhattisgarh
42. Kartikram S/o Kalooram Dhimar Aged About 52 Years R/o Chandkhuri,
Chhattisgarh
43. Kashiram S/o Kalooram Dhimar Aged About 40 Years R/o Chandkhuri,
Chhattisgarh
44. Phool Bai Wd/o Kalooram Dhimar Aged About 67 Years R/o Chandrakhuri
Tahsil And District Durg, District : Durg, Chhattisgarh
45. Phirantin Bai Wd/o Baldiram Dhimar, Aged About 69 Years R/o Chandrakhuri
Tahsil And District Durg, District : Durg, Chhattisgarh
46. Kamta S/o Baldiram Dhimar Aged About 44 Years R/o Chandrakhuri Tahsil And
District Durg, District : Durg, Chhattisgarh
47. Balram S/o Baldiram Dhimar Aged About 37 Years R/o Chandrakhuri Tahsil And
District Durg, District : Durg, Chhattisgarh
48. Birbal S/o Baldiram Dhimar Aged About 35 Years R/o Chandrakhuri Tahsil And
District Durg, District : Durg, Chhattisgarh
49. Bharat S/o Baldiram Dhimar Aged About 31 Years R/o Chandrakhuri Tahsil And
District Durg, District : Durg, Chhattisgarh
50. Kamlin W/o Pirit Aged About 39 Years S/o Baldiram Dhimar, R/o Chandrakhuri
Tahsil And District Durg, District : Durg, Chhattisgarh
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51. Ramhin W/o Chaitu Aged About 29 Years S/o Baldiram, R/o Chandrakhuri
Tahsil And District Durg, District : Durg, Chhattisgarh
52. Mutana W/o Hirau S/o Baldiram, R/o Dhivpara Durg M.P., District : Durg,
Chhattisgarh
53. Gram Panchayat Chandrakhuri Tah. & Distt. Durg through its Administrator
---- Respondents
For Appellant/State : Shri Prasoon Bhaduri, Govt. Advocate and Shri Majid Ali, Dy. Govt. Advocate For Respondents : Dr. N.K. Shukla, Senior Advocate with Shri Vikram Sharma and Shri Rajat Agrawal Advocates FA No. 184 of 1992 Gram Panchayat Chandrakhuri, Tehsil and District-Durg through its Administrator
---- Appellant Versus
1. (a) Smt. Jhamman Chandrakar W/o Late Shri Nand Kumar, aged about 45 years, President of Village and post Chandrakhuri Tehsil and District-Durg, Chhattisgarh
(b) Manoj Kumar Chandrakar S/o Late Shri Nand Kumar, aged abtou 22 years, Resident of Village and Post Chandrakhuri, PS Pulgaon, Tehsil and District-Durg , Chhattisgarh
(c) Mamata Chandrakar, W/o Shri Ashok Chandrakar, aged abtou 26 years, Resident of Old Raipur Naka, Behind Kali Bari School, Mahasamund, Tehsil and District Mahasamund Chhattisgarh
(d) Anita Chandrakar, W/o Shri Khemu Ram Chandrakar, aged abtou 24 years Resident of Ratapayali, Post Rudgaon PS Dongargaon, Rajnandgaon Chhattisgarh
2. Narendra Kumar S/o Beniram, Aged About 38 Years R/o Village Chandrakhuri, Tahsil And District Durg M.P., District : Durg, Chhattisgarh
3. Rajendra Kumar S/o Beniram, Aged About 29 Years R/o Village Chandrakhuri, Tahsil And District Durg M.P., District : Durg, Chhattisgarh
4. Ram Bai W/o Ram Narain, Aged About 48 Years Village Jangleshwar P.O. -6- Kanharpuri Tahsil And District Rajnandgaon M.P., District : Rajnandgaon, Chhattisgarh
5. Ramsila Bai W/o Ramnath, Aged About 46 Years R/o Village Aghaud P.O. Aghaud Tahsil And District Durg M.P., District : Durg, Chhattisgarh
6. Kamla Bai W/o Vishnu, Aged About 44 Years R/o Village Kachandur P.O. Kachandur Tahsil And District Durg M.P., District : Durg, Chhattisgarh
7. Pushpa Bai W/o Shiv Kumar, Aged About 33 Years R/o Village Tiloda, P.O. Tamira, Tahsil And District Durg M.P., District : Durg, Chhattisgarh
8. Dhaniram Aged About 54 Years
9. Birij Bai W/o Balaram, Aged About 62 Years R/o Jangeleshwar, Tahsil And District Rajnandgaon M.P., District : Rajnandgaon, Chhattisgarh
10. Fekan Bai W/o Nammoo Lal, Aged About 57 Years R/o Achhoti Tahsil Dhamtari District Raipur, District : Raipur, Chhattisgarh
11. Digambar Singh Aged About 36 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
12. Balram Aged About 34 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
13. Nemi Aged About 31 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
14. Sanand Aged About 27 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
15. Kamal Narayan Aged About 23 Years S/o Jagdish Kurmi, R/o Chandkhuri, Chhattisgarh
16. Smt. Bodhani Bai Wd/o Jagdish, Aged About 63 Years Cultivator, R/o Chandkhuri, Chhattisgarh
17. Smt. Hira Bai Wd/o Jagdish, Aged About 54 Years Cultivator, R/o Chandkhuri, Chhattisgarh
18. Smt. Dulari Bai W/o Shyam Sundar Kurmi, Aged About 38 Years Cultivator, Villaged Vinayakpur Tahsil And District Durg M.P., District : Durg, Chhattisgarh
19. Kumari Bai W/o Mahesh, Aged About 29 Years Cultivator, Vinayakpur Tahsil And District Durg, District : Durg, Chhattisgarh
20. Lakhan Lal Aged About 57 Years S/o Gayadin Cultivator R/o Chandrakhuri, Chhattisgarh
21. Bharat Aged About 38 Years S/o Gayadin Cultivator R/o Chandrakhuri, Chhattisgarh
22. Rangabai D Wd/o Kanhaiya Kurmi, Aged About 59 Years Cultivator, R/o Konari Tahsil And District Durg M.P., District : Durg, Chhattisgarh
23. Laxmi Bai Wd/o Gajadhar, Aged About 51 Years Cultivator, R/o Bhothali Tahsil -7- Dhamtari District Raipur, District : Raipur, Chhattisgarh
24. (A) Smt. Rikmani Bai, aged about 52 years, Wd/o Late Ramnarayan (B) Smt. Gouri Bai, aged about 35 yars, wife of Chandrika Prasad, D/o Ramnarayan, R/o Kuthrel, PS Pulgaon, Tahsil, and District- Durg (C) Narsingh, aged about 33 years, S/o Late Ramnarayan (D) Dhannoolal aged about 31 years, S/o Late Ramnarayan (E) Smt. Shanta Bai, aged about 29 years, W/o Pooranlal, D/o Late Ramnarayan, District - Durg
25. Radhecharan Aged About 52 Years S/o Jagatram, Cultivators, R/o Chandkhuri Tahsil And District Durg, District : Durg, Chhattisgarh
26. Chhannoo Lal Aged About 42 Years S/o Jagatram, Cultivators, R/o Chandkhuri Tahsil And District Durg, District : Durg, Chhattisgarh
27. Manoo Lal Aged About 39 Years S/o Jagatram, Cultivators, R/o Chandkhuri Tahsil And District Durg, District : Durg, Chhattisgarh
28. Jamwati Bai Wd/o Jagatram, Aged About 64 Years Cultivator R/o Chandkhuri, Chhattisgarh
29. Mahadeo S/o Domar, Aged About 34 Years Cultivator R/o Bharegaon Tahsil And District Rajnandgaon, District : Rajnandgaon, Chhattisgarh
30. Derhin W/o Kaliram Aged About 31 Years Cultivator, R/o Achod Tahsil And District Durg, District : Durg, Chhattisgarh
31. Amola Bai W/o Shankar Kurmi, Aged About 51 Years Cultivator R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
32. Jalam Singh (dead)
(a) Kalindribai, W/o Jalam Singh, R/o Chandrakhuri, Tehsil & District-Durg.
(b) Rukmanibai, W/o Kantilal Chandrakar R/o Khaarwada, Teh. & Distt.Durg.
(c) Devilal, aged about 49 years.
(d) Baldau, aged about 47 years.
(e) Vikram, aged about 40 years.
(f) Laxmichara, aged about 43 years.
(g) Biharsingh, aged about 41 years.
(h) Haldhar, aged about 39 years All (c) to (h) sons of Late Jalam Singh, R/o chandrakhuri Teh & Dist. Durg -8-
(i) Victoriabai, W/o Chandrika Chandrakar, aged about 47 years, R/o Kachandu, Teh. Gunderdehi, District-Durg
35. Smt. Jamuna Bai (dead)
(a) Charan Singh, aged about 56 years.
(b) Girwar Singh, aged about 53 years.
(c) Girdhar Lal, aged about 47 years.
(d) Smt. Shanti Bai, aged about 51 years
(e) Smt. Susheela Bai, aged about 49 years.
All Sons/daughters of Shiv Lal Chandrakar R/o Village Kachundur, Teh. & Dist. Durg MP
36. Smt. Ganga Bai W/o Tejram Chandrakar Aged About 76 Years Near Of Bhilai Deori Tahsil And District Durg, District : Durg, Chhattisgarh
37. Smt. Triveni Bai W/o Hiradhan Aged About 73 Years Kachandur Tahsil And District Durg, District : Durg, Chhattisgarh
38. Smt. Parvati Bai Wd/o Jhaduram Aged About 54 Years Ama Lori Tahsil And District Durg, District : Durg, Chhattisgarh
39. The State of MP through the Collector Durg
40. Chetan Lal S/o Gaind Dhimar Aged About 31 Years R/o Chandkhuri, Chhattisgarh
41. Ankalhin Wd/o Gaind Aged About 49 Years R/o Chandrakhuri, Tahsil And District Durg M.P., District : Durg, Chhattisgarh
42. Tikhan Bai S/o Gaind Aged About 12 Years Minor Through G.A.L. Mother Teekhan Bai R/o Chandkhuri Tahsil And District Durg, District : Durg, Chhattisgarh
43. Kartikram S/o Kalooram Dhimar Aged About 52 Years R/o Chandkhuri, Chhattisgarh
44. Kashiram S/o Kalooram Dhimar Aged About 40 Years R/o Chandkhuri, Chhattisgarh
45. Phool Bai Wd/o Kalooram Dhimar Aged About 67 Years R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
46. Phirantin Bai Wd/o Baldiram Dhimar, Aged About 69 Years R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
47. Kamta S/o Baldiram Dhimar Aged About 44 Years R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh -9-
48. Balram S/o Baldiram Dhimar Aged About 37 Years R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
49. Birbal S/o Baldiram Dhimar Aged About 35 Years R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
50. Bharat S/o Baldiram Dhimar Aged About 31 Years R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
51. Kamlin W/o Pirit Aged About 39 Years S/o Baldiram Dhimar, R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
52. Ramhin W/o Chaitu Aged About 29 Years S/o Baldiram, R/o Chandrakhuri Tahsil And District Durg, District : Durg, Chhattisgarh
53. Mutana W/o Hirau S/o Baldiram, R/o Dhivpara Durg M.P., District : Durg, Chhattisgarh
54. Chandrakhuri Primary Fisherman Society Ltd. Chandrakhuri Teh & Dist. Durg through its Chairman
---- Respondents For Appellant : Shri Amrito Das, Advocate For Respondents : Dr. N.K. Shukla, Senior Advocate with Shri Vikram Sharma and Shri Rajat Agrawal, Advocates S.B. : Hon'ble Shri Justice Manindra Mohan Shrivastava C A V JUDGMENT 18/05/2018
1. The aforesaid two appeals are being decided by this common order as both the appeals arise out of judgment and decree dated 8 th May 1992 passed by learned First Additional Judge to the Court of District Judge, Durg, in Civil Suit No.33A/83, whereby the plaintiffs'/respondents' suit has been decreed and it has been declared that the plaintiffs/respondents are owners and title holders of tank situated in khasra Nos.1013, 1023 & 1017 (old khasra no.81) admeasuring 5.36 acres and tank situated in khasra No s.1048, 1049 (old khasra no.142) admeasuring 17 acres situated in Village-Chandrakhuri in P.H. No.73, Tehsil and district -Durg and further held entitled to recover vacant possession of the two tanks and their embankments. The trial Court -10- has also granted a decree for payment of compensation of Rs.8,000/-. The learned trial Court has also granted a decree in favour of plaintiffs/respondents and against the appellants/State & Panchayat for payment of compensation in respect of the period after filing of the suit to the tune of Rs.1,48,000/-. Learned trial Court has also granted decree to the effect that the appellants/defendants shall pay Rs.20,000/- per year to the plaintiffs/respondents till handing over of possession along with cost of the suit.
2. The plaintiffs/respondents who are successors in interest of Toran Lal, Bhav Singh and Hemnath filed a suit for declaration, possession and permanent injunction in respect of the tanks in dispute on the pleadings that their forefathers Toran Lal, Bhav Singh & Hemnath were the owners of the two tanks situated in khasra no.81 and khasra No.142 of Village-Chandrakhuri which was constructed by their forefathers a hundred years before and since then they have remained in continuous possession of the same. As pleaded in the plaint, the two tanks were settled in favour of late Toran Lal S/o Hannu, Bhav Singh S/o Umendi and Hemnath S/o Nandu in the settlement of 1929-30. Further pleading was that the aforesaid two tanks and their embankments were recorded in malik makbuja rights of plaintiffs' three ancestors namely Nandu, Hannu and Bhavsingh in the settlement records of 1910-11 under old khasra and those ancestors were in possession of tanks and embankments. Further pleading in the plaint was that Toran Lal, Bhav Singh and Hemnath used to grow and yield rice and other water crops like betels and also rear fish. After death of Toran Lal, Bhav Singh and Hemnath, their successors/plaintiffs remained in cultivating possession of the tanks and embankments along with trees and orchids. In the year 1908, the then Malgujar (Ex-proprietor) Reva Sai, S/o Devdhar had accepted the title of Hannu and Nandu in ' malik makbuja rights' and entered into an agreement for irrigation of his own lands from these tanks vide registered agreement dated 12.10.1908. Later on, Reva Sai filed a suit for correction of missal bandobast records of 1929-30 and for recording his own name along with Toran, Bhavsingh and Hemnath, which was denied by Hemnath and others and a compromise decree was finally passed on -11- 14.3.1932 declaring title of Hemnath, Bhav Singh and Toran in respect of tanks admeasuring 5.36 acres situated in kh. No.81 area 5.36 acres and kh. No.142 area 17 acres. Though under certain conditions, Reva Sai was granted a facility of irrigating his own agricultural land and in this manner settlement entries of 1929-30 were maintained in favour of Hemnath, Bhav Singh and Toran in respect of the aforesaid two tanks, later on, Reva Sai sold his land to others and as the agricultural activity on those lands of Reva Sai was stopped, no irrigation facility was being provided from the two tanks and the water of the two tanks was being used for irrigating the lands of Hemnath, Bhav Singh and Toran Lal. The plaintiffs further pleaded that their ancestors were not proprietors (malgujar) but were Kastkar (cultivators). Upon promulgation of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter referred to as the "Act of 1950"), the Compensation Officer vide order dated 20th February 1952 though recorded the two tanks in possession of the plaintiffs and their ancestors, but remarked that the two tanks vested in the State. According to plaintiffs, the ancestors of the plaintiffs being kastkar (cultivators) and not Malgujar (proprietor), the two tanks could not be declared as having vested in the State under the provision of the Act of 1950. A suit was filed by Beniram and Ors. for declaration of their title, registered as Civil Suit No. 5A/1956. An application for recording the tanks in the name of Beniram, &Ors. was submitted before the Sub Divisional Officer, who after enquiry, passed an order that the two tanks belong to Beniram, Khomu Gayadeen and others as per report dated 18.7.1957 of Nayab Tehsildar, Durg. The plaintiffs were declared as bhumi-dhari vide order of the Collector dated 20.5.1957 on the basis of report dated 18.7.1957 of the Sub Divisional Officer fixing land revenue also consequent upon which name of Beniram and Toran Lal and others were recorded in the revenue records in their bhumi-dhari rights. As the State accepted bhumi-dhari title of the plaintiffs, Civil Suit No. 5A/1956 was withdrawn. In course of time, Banshi Lal and others (successors of ex-malgujar Reva Sai) interfered with the possession of the plaintiffs in respect of the Tank No.142 in 1957 which led to filing of another Civil Suit No.9B/1958 in the -12- Court of Civil Judge Class-I Durg against Govind, Banshi and Ors, in which, title of the plaintiff was recorded and a decree awarding compensation was passed in favour of plaintiff on 21.2.1961.
3. Later on, again dispute arose in 1960-61 when Gend and Kaluram started rearing fishes in the tanks, encroached the same, which led to filing of Civil Suit No.7A/1963 before the District Judge seeking decree of possession and compensation on 1.5.1963. In the written statement, the defence was that tanks were granted by way of lease by Gram Panchayat Chandrakhuri in favour of Primary Fishermen Society and Gend and Kaluram got possession on behalf of the Society. The Fishermen Society and Gram Panchayat Chandrakhuri were impleaded as defendants. A decree was granted in favour of plaintiff on 6.4.1964 and the plaintiffs were put in possession. The said decree was assailed in appeal before the High Court and the High Court vide its decree dated 6.8.1969 passed in Appeal No.33 of 1964, reversed the decree and dismissed the suit whereafter the plaintiff approached the Supreme Court by filing a Civil Appeal No.535 (N) 1970 . Vide order dated 30.7.1981, the Supreme Court granted liberty to the plaintiffs to file fresh suit. Thereafter, a notice was given to the State, but when the plaintiffs' claim was not accepted, the plaintiffs have again approached the Court for grant of decree of declaration that the plaintiffs are owners of the tank in dispute and entitled to recover possession and further a decree for permanent injunction and compensation.
4. In the written statement, the State denied that the tanks or embankments in dispute were settled in favour of Nandu, Hannu and Bhavsingh in their title. The alleged settlement of disputed tanks in favour of plaintiff and their predecessors' entitlement in settlement of 1929-30 was also denied. The State further pleaded in the written statement that compromise decree passed in the suit filed by Reva Sai, on the basis of compromise between Reva Sai and plaintiffs' predecessor in title, is not binding on the State. Further pleading was that as Toran Lal and ors. were not Malgujar (Proprietor) they were not entitled to any ownership rights and therefore tanks vested in the State. It was further pleaded that as the tanks had -13- already vested in the State, there was no question of land being assessed as land revenue and the orders, if any, passed by the Revenue Officer were unauthorized. In the alternative, it was also pleaded that even if it is held that the two tanks in dispute did not vest in the State under Act of 1950, it be held that in any case, two tanks vested in the State under Section 251 of the M.P. Land Revenue Code 1959 (hereinafter referred to as "the Code of 1959") as the tanks were being used for nistari as well as for irrigation purpose by the villagers.
5. Gram Panchayat Chandrukhuri, Fishermen Society and persons claiming through them, impleaded as defendant No. 3 to 8, also denied the claim of the plaintiffs on similar pleadings as made by the State. It was denied that the Collector, Durg accepted bhumi-dhari rights of the plaintiff in its order passed on 20.5.1957. The two tanks having been duly vested in the State, management of those tanks was transferred to Gram Panchayat Chandrakhuri which auctioned the rights of rearing fish by way of lease through public auction in favour of Fishermen Society.
6. On the basis of pleading of the parties, learned trial Court framed as many as 9 issues. Learned trial Court decided all the issues in favour of plaintiffs and against the defendants and held that the plaintiffs are the title holders of the property of the two tanks, therefore, the order passed by the Compensation Officer on 20th February 1952 vesting tanks in the State is illegal and inoperative and that the tanks in dispute did not vest in the State.
7. Learned counsel for the State, arguing appeal of the State, contended that the suit is based only on possessory title and the pleadings and reliefs sought by the plaintiffs/respondents do not claim any relief of declaration that vesting order passed by the Compensation Officer on 20.2.1952 was illegal or inoperative in law. Therefore, no plea could be set up nor any decree could be granted against the State and in favour of the plaintiffs in so far as vesting under the provision of the Act of 1950 is concerned. According to learned counsel for the State, the plaintiffs claimed title only through Proprietor which amounted to claim of proprietary right through -14- the Proprietor. Therefore, by operation of law, the two tanks in dispute vested in the State. Further submission is that the claim of possession in malik makbuja rights does not amount to title independent of the proprietor through which it was claimed. Therefore, the tanks in dispute vested in the State by operation of law. Learned counsel for the State further contended that the plaintiffs failed to prove by any cogent documentary or oral evidence that possession of their forefathers/predecessor in title or that of the plaintiffs was in the capacity as bhumi-swami or bhumi-dhari. Therefore, in any case, upon coming into force of the Land Revenue Code 1959, the tanks vested in the State under Section 57 and 251 of the Code of 1959. He further argues that the compromise decree passed by the Civil Court on 14.3.1932 in a suit filed by Rewa Sai, the ex-proprietor, does not bind the State as it did not involve any adjudication of title and the State was not a party to that suit. Further submission is that Civil Suit No.5 A/1956 for declaration that the tanks in khasra No.81 and khasra No.142 belonged to the plaintiffs was, later on, withdrawn on 26.9.1956, therefore, the subsequent suit on the same cause of action was barred. It is also contended that as no civil suit was filed challenging the vesting order dated 20.2.1952 passed by the Compensation Officer, within 2 months, the present civil suit was not maintainable and this issue regarding maintainability of the suit in view of bar under Section 14 (2) of the Act of 1950 could be raised even at the appellate stage even if no specific issue in this regard was framed before the trial Court. In support of his submissions, learned counsel for the State relied upon Dularsingh and Ors. Vs. Sitaram Anantsingh Aghariya (AIR 1937 Nagpur 184), Seth Rishabhkumar Vs. State of Madhya Pradesh & Ors. (1970 MPLJ 202), Raghubar Singh Padumlal Vs. The State of Madhya Pradesh & Ors.[1971 MPLJ 594 (FB)], Maria Margarida Sequeira Fernandes & Ors. Vs. Erasmo Jack De Sequeira (dead) through LRs. (2012) 5 SCC 370, Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 and State Bank of India & Anr. Vs. M/s. Emmsons International Ltd. & Anr. (AIR 2011 SC 2906).
8. Learned counsel for the Panchayat argued on almost similar lines by -15- submitting that as the Civil Suit No. 5A/1956 was later on withdrawn, the plaintiffs were not entitled to any relief in a subsequent suit as in the earlier suit the plaintiffs abandoned the claim. Referring to three reliefs sought in the aforesaid suit of 1956, it is submitted that the order passed by the ADC on 6.8.1956 did not grant all the reliefs claimed in the suit but only one of the three reliefs. Therefore, withdrawal of the suit in respect of three reliefs amounted to abandonment of other two reliefs so as to bar subsequent suit in view of the provision contained in Order 23 Rule 4 CPC.
Referring to pleadings in Civil Suit No 5A/1956, application (Ex.P-59) and the pleadings in para-12 & 16 of the plaint, it is submitted that the plaintiffs having admitted that the two tanks had vested in the State, under the order of Compensation Officer passed on 20.2.1952, in the absence of any relief of declaration that the vesting order was illegal and inoperative, plaintiffs were not entitled to any relief.
It is further contended that agreement (Ex.P-1), judgment and decree dated 14.3.1932 in Civil Suit No.367/32 (Ex.P-3) or entries in the settlement vide Ex.P-70 are not the documents of confirmation or acquisition of valid title. Referring to report of the Revenue Officer (Ex.P-61) pleading in Civil Suit No.5 A/1956, evidence of Jalam Singh (PW1), Jhaduram (PW2) & Mehtar Ram (PW3), it is submitted that these are admissions that the two tanks were used for nistari purpose and that the plaintiff admitted to be tenant of ex-proprietor Reva Sai. Therefore, upon coming into force of the Act of 1950, by operation of law created under Section 3 thereof, the two tanks vested in the State. He further submits that the trial Court exceeded its jurisdiction in declaring the vesting order illegal in the absence of any relief sought in the suit filed by the plaintiffs. It is further argued that as the issue of abandonment of claim is a pure question of law, it could be raised at the appellate stage even though no such specific issue in this regard was framed by the trial Court. Learned counsel for the Panchayat also raised similar contention with regard to maintainability of the suit on the ground that the plaintiffs did not challenge the order of Compensation Officer passed on 20.2.1952, by filing any Civil Suit within two months and therefore, the order became final and subsequent suit was barred under -16- Section 14 (2) of the Act of 1950. In support of his submissions, learned counsel for the Panchayat relied upon Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior & Ors. (1987) 1 SCC 5, Devarapu Narasimharao Vs. Yerrabothula Peda Venkaiah and Ors. (1998) 2 ALT 513 (DB), Kitun Bibi and Ors. Vs. Bibi Rojni and Ors. (2004 AIR Jhar 2044) and Jonnala Sura Reddy and Anr.Vs. Tityyagura Srinivasa Reddy and Ors. (AIR 2004 AP 222).
9. Per contra, learned Senior Advocate appearing for the respondent- plaintiffs argues that the plaintiffs have proved by specific pleadings as well as documentary and oral evidence that the two tanks under dispute were under exclusive title and cultivating possession of the forefathers and predecessor in title of the plaintiffs for more than hundred years and the ex-proprietor Reva Sai admitted this claim of the plaintiffs, proved from agreement (Ex.P1) compromise decree passed by trial Court in Civil Suit No.367 of 1932 filed by Reva Sai and the settlement records of 1910-11, 1929-30 and thereafter. He further argued that the decree passed on 21.2.1961 in favour of the plaintiffs in Civil Suit No.9-B of 1958 declared that predecessor in title of the plaintiffs were title holder of the two tanks. Therefore, it is contended, that the predecessor in title of the plaintiffs and thereafter, the plaintiffs as their successor held the two tanks in their absolute ownership and title and not as tenant of ex-proprietor Reva Sai. He further contended that as the tanks in dispute were situated in Central Provinces of Barar and not in the merged territory and the predecessor in title of the plaintiffs and thereafter the plaintiffs were in cultivating possession, therefore, it could not be said that they were holding the property in proprietary right claimed through the ex-proprietor and as such property did not vest by operation of law under Section 3 of the Act of 1950. Learned Senior Counsel for the plaintiffs further argued that order of the Compensation Officer passed on 20.2.1952 (Ex.P-58) is void as no vesting took place under the law and it was therefore not required to be specifically challenged and seeking a declaration of title on the pleadings that there was no vesting in accordance with law, entitles the plaintiff to proper decree which was rightly granted by learned trial Court. Next -17- submission of learned counsel for the respondents-plaintiff is that though the plaintiffs had filed a suit claiming declaration of title in Civil Suit No.5A/56 against the State because the Compensation Officer had passed an illegal order of vesting of two tanks in the State, during the pendency of the said suit, in pending revenue proceedings, the ADC passed an order in favour of the plaintiffs for correction of revenue entries deleting nistari nature of tanks on 6.8.1956, thus declaring plaintiffs possession in their title as bhumi-dhari. As the State admitted the plaintiffs' title, it was no longer necessary for the plaintiffs to continue with the suit and the same was ultimately withdrawn. This cannot be said to be abandonment of claim. Later on, when the Panchayat, without authority of law, granted lease of fishing rights in favour of Fishermen Society, which amounted to interfering with the possession of the plaintiffs, the plaintiffs again filed a suit bearing Civil Suit No. 7A/1963 for declaration which was decreed on 6.4.1964. In appeal, the decree was set aside vide appellate order dated 6.8.1969, against which the plaintiffs filed SLP before the Supreme Court and the Supreme Court granted the plaintiff liberty to file a fresh suit in exercise of which suit in the present case was filed by the plaintiffs. Therefore, suit was maintainable. Learned counsel for the respondents/plaintiffs further argued that from the oral and documentary evidence led by the plaintiffs, it is proved that the predecessor in title of the plaintiffs and thereafter the plaintiffs were in cultivating possession of the two tanks and its embankments and as this position could not be disputed by any of the parties to the suit, the two tanks could not have vested under Section 3 of the Act of 1950 and continue to belonged to the plaintiffs. Summing up his submissions, learned counsel for the respondents-plaintiff concluded by submitting that the two tanks having been held by the predecessor in title of the plaintiffs and thereafter by the plaintiffs in their own title and cultivating possession and not in their proprietary rights claiming through ex-proprietor, no vesting could take place as under the scheme of the Act of 1950, as only the proprietary rights of proprietor or proprietary rights of persons claiming through proprietor were to vest in the State. In support of his submissions, learned counsel for the respondents-plaintiffs relied upon -18- Krishnarao Skankerrao Chitnavis Vs. Narayan Venkatrao (AIR 1949 Nagpur 120), Bhopalsing Takhatsingh Vs. Rao Hamirsingh Rao Pratapsingh (AIR 1952 Nagpur 257), Samrathmal Dhanraj and Anr. Vs. Mst. Sunderbai W/o Nathoosing (AIR 1952 Nag 325), Smt. Rewati w/o Bhukan Vs. Smt. Gouribai, w/o Bhuneshwar & Ors. (AIR 1959 MP 301), The State of Maharashtra and Ors. Vs. Atma Ram Sadashiv Dongarwar and Ors. (AIR 1978 SC 1635), Balkishan Nathani & Ors. Vs. The State of Madhya Pradesh and Ors. (AIR 1956 Nag. 219), State of Madhya Pradesh and Ors. Vs. Balkishan Nathani & Ors AIR 1967 SC
394.
10.In this appeal, following points arise for consideration of this Court:
A. Whether the suit filed by the plaintiffs was not maintainable in the absence of challenge to the order dated 20.2.1952 (Ex.P-58) passed by the Compensation Officer by way of civil suit within two months of that order and had attained finality under Section 14 (2) of the Act of 1950 ?
B. Whether the suit was not maintainable in view of withdrawal of Civil Suit No.5A/1956 resulting in abandonment of claim under Order 23 Rule 4 CPC ?
C. Whether the suit was liable to be dismissed in the absence of relief of declaration that order dated 20.2.1952 (Ex.P-58) passed by the Compensation Officer was void and inoperative in law ?
D. Whether the plaintiffs succeeded in proving that the plaintiffs were in cultivating possession of the two tanks in their own right and title and not through ex-proprietor and therefore the two tanks situated in khasra no. 81 and 142 did not vest in the State under Section 3 of the Act of 1950 ?
E. Whether the two disputed tanks vested in the State under Sections 57 and 251 of the Land Revenue Code, 1959?
-19-11.Consideration on the above points :
(A) This case has a checkered history which has been narrated with reference to the pleadings of the parties and various documents, orders of the Court, revenue proceedings etc. The dispute in the present case revolves around the plaintiffs' rights over the two disputed tanks, nature of their possession upon promulgation of the Act of 1950 and legal consequences flowing therefrom. The statutory scheme of the Act of 1950 which has been examined in plethora of decisions of Hon'ble Supreme Court and High Court of judicature at Nagpur, High Court of Madhya Pradesh, which I shall refer to hereinafter, was to provide for acquisition of the right of proprietors in Estates, Mahals, alienated village and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith, as is stated in its preamble. Section 3 of the Act of 1950 provided for vesting of property rights in the State which is reproduced hereinbelow:
"3. Vesting of proprietary rights in the State. - (1) Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietary of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purpose of the State free of all encumbrances.
(2) After the issue of a notification under Sub-section (1), no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh clearing for cultivation or for any other purpose shall be made in such land -20- except in accordance with such rules as may be made by the State Government in this behalf.
(3) Different dates may be specified under Sub-section (1) for different areas.
(4) The State Government may vary the date specified under Sub-section (1) at any time before such date."
12. The aforesaid provision provided for vesting of all proprietary rights in the estate, mahal, alienated village or alienated land in the area specified in the notification which, before coming into the force of the aforesaid Act, were vesting in a proprietary of such estates, mahals, alienated village and alienated land or in a person having interest in such proprietary rights through proprietor by providing that all such proprietary rights shall pass from such proprietor or such other persons to and vest in the State for the purpose of the State free of all encumbrances. The legislative intention was to remove all intermediary between the State and the tiller of the soil. It being an ex-proprietary legislation, gave rise to large number of disputes all over the State. The statutory scheme and the provision of the Act came up for consideration in various decisions. As early as in the case of Chhotabhai Jethabai Patel and Co. Vs. The State of Madhya Pradesh & Ors. (AIR 1953 SC 108), which was a petition under Article 32 of the Constitution of India, wherein the petitioners had entered into various contracts and agreements with the proprietors of the estates before the dates on which estates vested in the State under the Act of 1950 under which they were entitled to pluck, collect and carry away tendu leaves and to cultivate, culture and acquire lac as also to cut and carry away teak and timber. It was asserted that State of Madhya Pradesh had been interfering with their rights acquired from up-going proprietors. The Hon'ble Supreme Court held on the construction of contracts that the contracts were in essence and effect licences to the petitioner therein who were neither proprietors nor person having any interest in the proprietary rights through proprietors nor were their interest and encumbrances within the meaning of an expression in Section 3 (1) of the Act. In that view of the matter, the -21- Court granted writ in favour of the petitioners.
Another batch of petitions under Article 32 were filed in the Supreme Court by those who claimed on the basis of grant under agreement, given to those petitioners by the proprietors in the State of Madhya Pradesh. Aggrieved by the action of the Govt., disclaiming those agreements and auctioning the rights afresh, matter was taken to the Supreme Court in aforesaid petitions alleging that it was invasive of their fundamental rights. The statutory scheme of the enactment was examined by a Constitution Bench of the Supreme Court (reported in Mahadeo & Ors. Vs. State of Bombay & Ors. (AIR 1959 SCC 735), as below:
"19. It remains now to consider whether the rights enjoyed by the petitioners can be said to fall within s. 3(1) of the Act. That section divests the proprietors of their proprietary rights, as also any other person having an interest in the proprietary right through the proprietor and vests those rights in the State. That section has to be read with the section which follows, and which sets out the consequences of vesting of such rights in the State. The rights which vest can be stated briefly to be (a) all proprietary rights in the proprietor, and (b) all proprietary rights in any person having interest in such proprietary rights through the proprietor. These rights vest in the State free of all encumbrances.
20. Section 4 of the Act provides inter alia that after the notification has been issued, then, ' notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act'-the following consequences (among others) shall ensue:
" (a) all rights, title and interest vesting in the -22- proprietor or any person having interest in such proprietary right through the proprietor in such area including Land (cultivable or barren), grassland, scrubjungle, forest, trees, fisheries, wells, tanks, ponds, water-channels, ferries, pathways, village sites, hats, bazars and melas;
and in all subsoil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State for purposes of the State free of all encumbrances; and the mortgage debt or charge on any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act;
(b)all grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall, whether liable to resumption or not, determine: ".
21. If these petitioners can be said to be possessing " an interest in the proprietary right ", then their rights, title and interest in the land determine under the Act, and vest in the State. The petitioners, therefore, contend that their rights under the agreements cannot be described as "proprietary right" or even a share of it. They rely on the definition of "proprietor" in the Act, and refer under the authority of s. 2(b) of the Act to the Central Provinces Land Revenue Act, 1917.
22. The definition in the Act is not exhaustive. It only tells us who, besides the proprietor, is included in the term 'proprietor'. Further, the definitions in the Act are subordinate to the requirements of the context and the -23- subject-matter of any particular enactment. From the Act, we know that the proprietor's interest in forest, trees, shrub, grass and the like passes to the State. The question thus resolves into two short ones-did the former proprietors own proprietary interest in these trees, and did they part with that proprietary interest and convey it to the petitioners ? "
In the conclusion, it was held that forest and trees belonged to the proprietors and they were items of proprietary rights which was transferred to the petitioners and thus being a proprietary right, it vest in the State under Sections 3 & 4 of the Act. Importantly, the decision in Chhotabhai Jethabai Patel case (supra) which treated these rights as bare licences was held per incuriam and was not followed.
In yet another Constitution Bench judgment in the case of State of Madhya Pradesh Vs. Dahyabhai Khushalbhai Patel & Ors. (1963 MPLJ 65: AIR 1962 SC 1916), question arising for determination was whether the grant made by outgoing proprietors in favour of respondents therein convey any right to them which could be enforced against the State of Madhya Pradesh after coming into effect of the Act of 1950. Relying upon the decision in the case of Mahadeo (supra), appeals were allowed in favour of the State. The statutory scheme of the Act was again noticed as below :
"9.......... Under Section 3 of the Act, from the date of the notification by the State, all proprietary rights in an estate vesting in a proprietor of such an estate or in a person having interest in such proprietary rights through the proprietor, shall vest in the State for the purposes of the State, free from all encumbrances. The consequences of such a vesting are laid down in s. 4, which runs into several clauses and sub- sections. section 4(1)(a) is the relevant provision of the Act which determines this controversy entirely against the respondents. It provides that "when the -24- notification under s.3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, ensue, namely, (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrubjungle, forest, trees ... shall cease and be vested in the State for the purposes of the State free of all encumbrances..."(We have omitted the words which are not necessary for the purposes of the present appeals). It is clear on a bare reading of the provisions of cl. (a) of s. 4 (1) that whatever rights the proprietor, or a person claiming interest through him, had in the trees, scrubjungle, forest, etc., ceased on the vesting of the estate in the State. "
10......... The scheme of, the Act is that it provides for the acquisition by the State of all interests in the estate of the proprietor himself or of an intermediary, except the tiller of the soil. This it does by vesting all proprietary rights in the State, of whatever grade, by issuing the notification under s. 3, vesting it in the State, for the purposes of the State free from all encumbrances. Section 4 lays down in great detail the rights which become extinguished on the vesting of the estate as aforesaid. What is saved to the proprietor or any other person claiming through him is set out in s. 5. (a) to (h), on such terms and conditions as may be determined by the State. Hence any person claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an Al estate has got to bring his interest within -25- s. 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under s, 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in s. 8 and the succeeding sections. The respondents have not been able to show that their interest come under any of the clauses aforesaid of Section 5.
11. A great deal of argument was advanced on behalf of the respondents showing the distinction between a bare licence and a licence coupled with grant or profit a prendre. But, in our opinion, it is not necessary to discuss those fine distinctions because whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents, those grants had no legal effect as against the State, except in so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of Section 5."
13. In the case of Mulamchand Vs. State of Madhya Pradesh (AIR 1968 SC 1218), the legal position as adumbrated in the cases of Mahadeo and Dahyabhai (supra) was relied upon to hold that grant of right to pluck, collect and removing forest produce from malgujari jungle was in the nature of proprietary rights and thus vested in the State upon issuance of notification under Section 3 of the Act of 1950, as under :
"4. It was contended, in the first place, on behalf of the appellant that the contracts did not confer settlement of any interest in immovable property -26- and as such the appellant could not be equated with a person having interest in the proprietary right falling within the purview of the Abolition Act. It is not possible for us to accept this argument. The question has already been the subject matter of consideration by this Court in State of Madhya Pradesh v. Yakinuddin 1963-3 SCR 13= AIR 1962 SC 1916. In that case also, the respondents. by grants from and agreements with the proprietors, acquired the right to propagate lac, collect tendu leaves and gather fruits and flowers of Mahua leaves in certain estates. It was held by this Court that whatever rights the respondents had acquired from the proprietors ceased to have effect by the operation of s, 4(1) (a) of the Abolition Act . It was further held that the rights claimed by the respondents were in the nature of to proprietary rights falling within s. 4 (1) (a) of the Abolition Act and upon the issue of a notification under 'S. 3 of the Abolition Act the rights of the respondents had passed and became vested in the State of Madhya Pradesh. It was further pointed out that the rights created by the transactions between the respondents and the grantors did not come under s. 5 of the Abolition Act. In the course of this judgment the previous judgment of this Court in 1953 SCR 476 = (AIR 1953 SC 108) was expressly overruled. In our opinion the present case falls directly within the ratio of the decision of this Court in 1963-3 SCR 13 = (AIR 1962 SC 1916). It follows that the argument of the appellant on this aspect of the case must be rejected."
14. The plaintiffs in the present case have sought for declaration that they are -27- the owners in title of two tanks in dispute and for a relief of recovery of possession of the two tanks. Their pleadings, as mentioned earlier, is mainly based on a title inherited through their forefathers/predecessors in title namely Toran, Bhav Singh and Hemnath on the pleading, inter alia, that the two tanks were held in malik makbuja rights and so recognized ever since settlement of 1910-11 which were, later on, recorded in the same capacity in their possession in subsequent settlement in the year 1929-30 i.e. in their capacity as malik makbuja. According to the plaintiffs the then Proprietor (malgujar) Reva Sai had admitted title of Bhav Singh and Toran under agreement of 1908 (Ex.P-1) under which he was allowed to take water for irrigation of his agricultural fields. According to the plaintiffs, later on, when upon settlement in 1929-30, the names of Toran & Ors. were recorded in malik makbuja rights over the disputed tanks, the ex-proprietor (malgujar) Reva Sai filed a suit that he is also entitled to be recorded jointly along with Toran and Ors in malik makbuja rights in respect of two tanks which ended in a compromise decree passed by the trial Court on 14.3.1932 recording that Reva Sai admitted the malgujari rights and title of Toran and ors. According to the plaintiffs, as these tanks were held by Toran Lal and Ors. as kastkar (cultivators) and not proprietors (malgujar), upon coming into force of the Act of 1950, the two tanks could not be declared as having vested in the State and an order was passed on 20.2.1952 by the compensation officer allowing possession of Toran and ors though stating the tanks having vested in the State. Later on, when these two tanks were recorded as nistari tanks, the predecessor in title of the plaintiffs approached the revenue authority for correction and deletion of nistari entries, upon which, an order was passed by the Collector on 20.5.1957 in revenue proceedings directing correction of nistar patrak. The suit earlier filed by Beniram (successor of Toran & Ors) against the State for declaration that two tanks belonged to the plaintiff was later on withdrawn in view of order passed by the Collector. An order was passed on 18.5.1957 by the Deputy Commissioner in favour of Beniram and ors. granting bhumidhari rights followed by an order dated 20.5.1957 approving assessment of land revenue in respect of two tanks. In course of time, -28- Banshi lal and Ors. again attempted to disturb the plaintiffs' possession which led to filing of another suit Civil Suit No.9B/1958 which was decreed in favour of the plaintiffs, again affirming their rights to possession of tanks. In course of time, when the State authority purported to transfer the tank to Panchayat and the Panchayat granted lease of tanks in favour of Fishermen Society, the plaintiffs filed a fresh suit No.7A/1963 which was decreed in their favour on 6.4.1964. An appeal preferred against such decree and judgment was, however, allowed by the High Court vide order passed in appeal on 6.8.1969 (Ex.P-31) against which the plaintiffs filed a SLP in the Supreme Court and vide order dated 30.7.1981, the Supreme Court granted permission to the plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action or on different cause of action. Therefore, the it was in this background that present suit was filed by the plaintiffs.
15. While Section 3 of the Act of 1950 provides for vesting of property rights in the State, Section 4 provides for consequences of vesting. Section 5 deals with certain properties which continue in possession of proprietor or other person. As per Section 7, the Collector shall take possession of property vested the State. The Scheme of assessment of compensation is provided under Chapter-III. Section 8 casts duty upon the State to pay compensation and interest. Section 11 contemplated anointment of Compensation Officer, which is reproduced as below:
"11. Appointment of Compensation Officer- The State Government shall for the purpose of assessment of compensation to be paid in accordance with Section 8, appoint for any specified area one or more Revenge Officers, and such officers shall be designated as Compensation Officers."
Section 12 provided that the Proprietor who is divested of proprietary rights by virtue of notification issued under Section 3 shall be required to file statement of claim in the prescribed form. Section 13 provides for -29- determination of the compensation, relevant part of which is as below:
"13. Determination of Compensation- (1) On receipt of the statement of claim, or if no such claim is received within the prescribed period, the Compensation Officer shall, after making such enquiry as he thinks fit and giving an opportunity to the claimant to be heard, decide the amount of compensation due to the claimant and record in a statement in the prescribed form, the details of the land which shall vest in the State Government after its acquisition in lieu of the payment of such compensation and such other details as may be prescribed.
(2) The Compensation Officer shall assess the amount of compensation payable for the whole estate, mahal or alienated village as one unit and shall then determine the amount due to each claimant in accordance with sub-sections (1) , (4) and (5) x x x x x x x x x
16. Thus, from the aforesaid provision with regard to scheme of payment of compensation, appointment of Compensation Officer and determination of compensation, it is revealed that the Compensation Officer was primarily concerned with the determination of compensation upon submission of statement of claim by the Proprietor who was divested of the property rights.
17. Section 14 of the Act of 1950, however, provided for a summary determination of question of title by the compensation officer. The provision being relevant is quoted below:
"14. Question of title - (1) If, during the course of an enquiry by the Compensation Officer, any -30- question is raised regarding the proprietary right if any property divested under Section 3 and such question has not already been determined by a Court of competent jurisdiction, the Compensation Officer shall proceed to inquire summarily into the merits of such question and pass such orders as he thinks fit.
(2) The order of the Compensation Officer under sub-section (1) shall not be subject to any appeal or revision, but any party may, within two months from the date of such order, institute a suit in the Civil Court to have the order set aside, and the decision of such Court shall be binding on the Compensation Officer, but subject to the result of such suit, if any, the order of the Compensation Officer shall be final and conclusive."
18. The aforesaid provision envisaged that when any question arises regarding proprietary rights in any property divested under Section 3 of the Act and such question has not already been determined by a Court of competent jurisdiction, the compensation officer shall make a summary enquiry into merits and pass such order as he thinks fit.
19. Sub-section (2) of Section 14 of the Act of 1950 attaches finality to the order of the nature passed under Section (1) of Section 14 subject to rights of the parties to file a suit within two months from the date of such order, to have the order set aside. Therefore, the finality is attached to the order of the compensation officer upon summary inquiry into the merits of the question regrading the proprietary right in any property divested under Section 3 of the Act. It is not every order passed by the Compensation Officer which is clothed with finality clause. Finality can be attached to an order of Compensation Officer only when it is in the nature of an order contemplated under Section 14 of the Act. If the order is merely in the nature of determination of compensation or an order of any other nature -31- not being an order in the nature of determination of question regarding proprietary right in a summary enquiry, as contemplated under Section 14, no finality could be attached to the said order.
20. It has to be noticed that the Act of 1950 is a piece of ex-proprietary legislation, therefore, provision of the Act must receive strict construction and the doubt, if any, is to be resolved in favour of the subject as held by Division Bench of High Court of Madhya Pradesh in the case of Raghubirprasad Gour and Ors. Vs. State of M.P. and Anr. (1958 MPLJ
43).
21. If the order passed by the Compensation Officer on 20.2.1952 (Ex.P-58) is examined in the light of aforesaid interpretation of Section 14 of the Act of 1950, it cannot be said to be an order of the nature envisaged under Section 14 (1) of the Act. A perusal of the order would show that in the presence of a representative of ex-malgujar, an order under Section 5 (f) of the Act of 1950 was passed by which certain tanks were left in favour of the ex-proprietor. In so far as two tanks in dispute in present case are concerned, it was recorded as :
"Tanks No.142/17.00 and 81/5.36 are held by tenants, Toranlal etc. They are recorded under water. They would vest in State but the entry in the remarks column about the possession of Toranl Lal etc. would continue.
Prepare copies of form II & III"
22. It would be relevant to mention here that in an application under Section 225 (5) of the MP Land Revenue Code 1954 filed by Beneiram before Tehsildar, it was stated that the applicant had applied to the Compensation Officer, Durg to record those tanks in the name of the applicants (Toran Beniram and Ors., which was disposed off by the Compensation Officer with remark which has been quoted above.
It would show that though Beniram had moved an application before the Compensation Officer, the same did not receive any attention. Beniram and others were claiming that though they had succeeded to two tanks -32- from their forefather in the background that the then Malgujar (Ex- proprietor) Reva Sai admitted malik makbuja rights of those predecessors in title of Beniram and other under an agreement as also under a civil suit decided in 1932. That means that Beniram were claiming title in the tanks in malik makbuja rights and not claiming any interest in proprietary rights in respect of the two tanks through the proprietor. Obviously, this was in the nature of a question regarding proprietary rights in the two tanks which was required to be inquired into, though summarily, by the Compensation Officer in accordance with the statutory scheme of Section 14 of the Act of 1950. But the Compensation Officer neither made any enquiry nor gave any order on such question and mechanically recorded in its order dated 20.2.1952 that the two tanks are vested in the State by treating Toran & Ors. as a tenant of ex- malgujar Reva Sai who in earlier suit filed by him, referred to above, had admitted title of Toran and Ors. and on which basis compromise decree was also passed in the year 1932. In sum and substance, order dated 22.2.1952 was made in the nature of an order passed under Section 13 of the Act of 1950 rather than enquiry and determination of question regarding proprietary right. Therefore, the said order cannot be said to be an order under Section 14 (1) so as to cloth it with finality as envisaged under Section (2) thereof. Had it been a determination of the question regarding proprietary rights on the application so filed before it, by the Compensation Officer, though in a summary manner, it would have obliged the plaintiff/their forefathers to challenge that order within the period of 2 months before the Civil Court in the State failing which the order would have attained finality. Therefore, I am not inclined to accept the submission of learned counsel for the appellants that finality is attached to order dated 20.2.1952 of the Compensation Officer so as to bar a suit in view of finality attached to it under sub-section (2) of Section 14 of the Act.
"B" -The plaintiff filed a Civil Suit N.5A of 1956 in the background which has already been detailed herein-above and the cause of action for filing said suit was that after the Compensation Officer passed an order on 20.2.1952 -33- by which the possession of the plaintiffs was directed to be recorded and later on the two tanks came to be recorded in nistar patrak meaning thereby that in the revenue records, the two tanks were recorded as nistari tanks, that means, use of tanks by the villagers for various nistari purpose like taking water for various purposes, cleaning cattle and other common use of villagers. In para 5 of the plaint in the said Civil Suit No.5-A/1956 (Ex.P-63), the course of action was sated thus:
"5. That the plaintiffs have come to know on 21.11.1955 that the Nistar Officer, Durg has recorded the tanks in suit as vested in the State without any right of possession of the plaintiffs. This was declared in the Nistar Patrika announced in the Nistar Patrika announced in the village on 16.11.1955.
6. That since the tanks in dispute belonged to the plaintiff, who are tenants they could not vest in the Govt. Tank belong to the plaintiff and are in their possession.
7. That on 22.11.1955, the plaintiffs gave notice to the Collector under Section 80 of the C.P Code for correction of the entry but nothing has been done so far.
8. That the cause of action for the suit arose on 16.11.1955 within the jurisdiction of the Court."
23. Plaintiff prayed for a declaration that the two tanks did not vest in the State and further that entry with regard to those tanks in nistari patrak of village stating that they vest in the State are incorrect and liable to be corrected. Admittedly, the cause of action was the entry made on 16.11.1955 showing the two tanks in nistar patrak and thereby raising dispute with regard to exclusive use of tanks by the plaintiffs.
24. It is the admitted position that the suit was filed on 24.2.1956. It is also an admitted position on record that against those entries made in nistar patrak in respect of two tanks, the plaintiff had already moved an -34- application under Section 225 (5) of the MP Land Revenue Code 1954 before the Tehsildar Durg, copy of which is exhibited as Ex.P-59. This application was moved after filing of the suit, on 6.3.1956, under which proceedings continued in revenue case No.3-I/1 1955/56 and eventually led to passing of an order on 6.8.1956 by the ADC. Upon perusal of the report of Nayab Tehsildar and the decree passed by the Civil Court earlier in 1932, recording satisfaction that Beniram and Ors have been in possession of tanks in question, it was ordered that nistar patrak be corrected as proposed by the Nayab Tehsildar, under Section 219 (3) of the MP Land Revenue Code, 1954. This order is also placed on record as Ex.P-62 proved by Jalam Singh (PW1). Thus, the cause of action which led to filing of the suit no longer remained in existence because what was done on 16.11.1955 by recording two tanks in nistari records was again corrected by directing correction of nistari records. The earlier position thus revived. As the two tanks were no longer recorded as nistari tanks, the plaintiff finally moved an application in Ex.P-65 on 26.9.1956 that in view of subsequent order dated 6.8.1956, they seek to withdraw the suit. The trial Court finally passed an order dated 26.9.1956 (Ex.P-66) allowing the application for withdrawal of the suit. Suit was dismissed as withdrawn.
25. The submission of learned counsel for the appellant Panchayat is that as the plaintiff had claimed for more than one relief, which included a declaration that the land did not vest in the State, mere correction in nistar patrak would only redress the grievance with regard to correction of revenue records, but other reliefs were not granted, therefore, to that extent, the plaintiff abandoned their claim and thus precluded from filing a fresh suit in respect of same cause of action. To answer the submission, it would be profitable to look into the relevant provision relating to abandonment of claim as contained in Order XXIII Rule 1 (4) CPC, which is reproduced as below:
"Order XXIII Withdrawal and Adjustment of Suits
1. Withdrawal of suit or abandonment of part of claim.--35-
(1) - - -
(2) - - -
(3) - - -
(4) Where the plaintiff,--
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. "
26. The aforesaid provision is required to be interpreted in the light of provision contained in Section 12 CPC of the Code, which reads as under :
"12 Bar to further suit:- Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies."
A conjoint reading of the two provisions as contained in Order XXIII Rule 1(4) and Section 12 CPC must receive an interpretation that where a plaintiff withdraws a suit in respect of the claim on a cause of action, he would be precluded from instituting a further suit in respect of such cause of action.
27. The three decisions relied upon by learned counsel for the appellant-
Panchayat in the case of Devarapu Narasimharao, Kitun Bibi and Jonnala Sura Reddy (supra), do not support the submissions, on its proper construction. The principles laid down by the Supreme Court in the case of Sarguja Transport Service (supra), relied upon in the case of Devarapu Narasimharao (supra) is thus:
"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and -36- 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII . The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or sub- stantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them -37- claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudi- cation of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court. "
(emphasis supplied by this Court)
28. The aforesaid three decisions only propound those very principles of precluding the plaintiffs from filing suit in respect of the same cause of action. If later on, a fresh or similar cause of action or a different cause of action arises, provision contained in Section 12 and Order XXIII CPC would not preclude filing of fresh suit in respect of the claim which was earlier raised but suit was withdrawn because cause of action no longer remained alive. Had been a case where the earlier order of recording land as nistari on 16.11.1955 would have continued and for any other reason like pursuing remedy before the Revenue Court, plaintiff would have withdrawn the suit without liberty to file a fresh suit in respect of the same cause of action i.e. recording of entry on 16.11.1955, the plaintiff would have definitely been precluded from filing fresh suit raising similar claim and in respect of the same cause of action. Therefore, the objection to the maintainability of the suit on the alleged ground of abandonment of claim is also turned down.
-38-C, D & E
29. the aforesaid three points, are taken together for consideration for the sake of convenience and for the reason that points D & E are interwoven and the decision on the same would govern the decision on point No.-C.
30. The plaintiffs' suit is based on title in respect of tanks (khasra No.81 area 5.36 acres & khasra No.142 area 17 acres). In para-2 of the plaint, it has been pleaded that these two tanks were constructed by the plaintiffs' forefather in Village- Chandrakhuri about hundred years before and since then they are in possession. Further pleadings in para -2, 3 & 4 is that in the settlement of 1910-11, the tanks bore khasra No.785 and 729 recorded in the names of Nandu, Hannu & Bhav Singh. Further pleading is that the embankments of the tanks were recorded in settlement of 1910-11 as khasra No.778 area 1.56 acres and khasra no.730 area 2.9 acres, khasra No.736 area 1.53 acres recorded in the name of Nandu ,Hannu and Bhavsingh in malik makbuja rights. The other pleading is that in the settlement record of 1929-30, the tanks bore khasra no.101 area 1.56 acres, khasra No.80 area 0.35 acres . According to plaintiff, khasra No.80 was earlier recorded as khasra No.793 in settlement of 1910-11. It was also pleaded that embankments of tanks were recorded in khasra no. 106 in settlement of 1929-30 and were recorded in the name of Toran, Bhavsingh and Hemnath which were held by them in malik makbuja rights. After 1910- 11, Hannu died and he was succeeded by the son Toran Lal. Nandu also died and his son Hemnath succeeded him and thus in 1929-30 settlement, name of Toran, Hemlal and Bhav Singh were recorded. Jalam Sing (PW1), one of the plaintiffs has deposed that two tanks, one admeasuinrg 5.36 and the other admeasuring 17 acres, remained in possession of their ancestors and predecessor in title since last 100 years and Talab (tank) was constructed by ancestors. The two tanks and their embankments have been recorded in their name in malik makbuja rights. This witness states that their ancestors were Umedi, Hannu. Umedi had two sons Bhav Singh and Hannu and Nandu was succeeded by Hemnath. Hannu was succeeded by Toran and Bhav Singh succeeded by his son Khomhu, Bisambar. Beniram is son of Toran. This witness is son of Khomhu. It has also been deposed that -39- in the settlement records of 1910-11, both the tanks were recorded in the name of Nandu, Hannu and Bhav Singh and in the embankments there were different types of trees. By the time settlement was done in 1929-30, Nandu and Hannu died and they were succeeded by Toran S/o Hannu, Bhav Singh, S/o Umedi and Hemnath S/o Nandu. Their names were recorded in respect of tanks and embankments in malik makbuja rights. In para-25 of his deposition this witness refers to khasra entries of 1910-11 as Ex.P-69, copy of settlement of 1929-30 as Ex.P-70 proving the possession of Toran Lal and plaintiffs. Records of rights of 1910-11 is exhibited as Ex.P-80, 1920-30 as Ex.P81 and Ex. P-82. Exhibit P-85 and Ex.P-86 are copies of entries made through settlement of 1929-30. In the cross examination, this witness stated that two tanks do not belong to Malgujar and the tanks belong to predecessor in title of the plaintiff. But he is not in a position to say that as to who was the title holder prior to 1950 and since when the plaintiffs are holding the tanks. He also does not know how plaintiff acquired title. Jhaduram (P.W.2) has stated that two tanks were constructed by the ancestors of Nandu, Bhav Singh and Toran and the two tanks along with their embankments were recorded in the ownership rights. Mehtar (PW.3) also deposes that two tanks belong to plaintiffs and were constructed by their forefather, Toran, Hem Nath and Bhav Singh about hundred years before.
An argument has been made that as in the pleadings as also in the evidence, the plaintiffs have admitted that the tanks in dispute vested in the State, therefore, for this reason also, the plaintiffs were not entitled to decree of declaration of their title. It has also been argued that in the plaint of the suit filed in the year 1956 (the first suit), the plaintiffs have admitted that they are tenants and also in the pleadings of the present case and the evidence, they have admitted themselves to be tenant, they are not entitled to decree for declaration of title.
It has to be noted that if the entire pleadings contained in the plaint of the suit filed in the year 1956 as also pleadings in the plaint of the present case are read as a whole, it is clear that the plaintiffs claimed to be in possession -40- in their own ownership rights. Use of words like "the plaintiffs were tenants" is only in the context that they were being treated as tenants and cannot be said to be an admission of they being tenant as this would be completely contrary to the main case as pleaded in detail in the plaint tracing title right from predecessors in interest. Similarly, the averments that land vested in the State also cannot be read in isolation. Context of such pleadings cannot be ignored. The plaintiffs' case has been that no vesting took place under the law. Since the tanks in dispute were being treated as having been vested, in that context, it was pleaded that tanks vested in the State though, at the same time, disputing that it did not vest under the law.
31. Admittedly, the evidence placed on record and referred to herein-above recorded the name of Nandu, Hannu, Umedi, Bhavsingh Toran and Hemnath. The settlement record of 1910-11 and of 1929-30 they all record the name of Toran, Bhav Singh and Hemnath and predecessor in title Nandu, Hannu and Umedi over the two tanks in dispute bearing different khasra numbers in 1910-11 but finally recorded as tank no.81 and tank No.142 with area of 5.36 acres and 17 acres respectively.
32. Ex.P-69 is khasra entries of 1910-11. This is record of possession. The earlier khasra number of the two tanks were 729 and 785. Khasra No.729 admeasuring 17 acres of land is shown to be under water and in joint possession of Nandu, Hannu and Bhav Singh in the name of naya talab (new tank). However, under column 5, as owner, name of Reva Sai, Malgujar was entered. Similarly, land admeasuring 5.36 acres bearing khasra No.785 is shown to be under water and joint possession of Hannu, Bhav Singh and Nandu in the name of "Talab Pankhati". Again in column No.5, as owner, name of Reva Sai was mentioned. Ex.P-70 are the relevant entires relating to settlement of the year 1929-30 in which in respect of khasra No. 81 admeasuring 5.36 acres, is shown to be in possession of Toran, Bhavsing and Hemnath and recorded as nistari land. In column- 5 name of Reva Sai has been recorded. Similarly in respect of khasra No.142 comprised of land admeasuring 17 acres while the possession of Bhav -41- Singh Hemnath and Toran is shown it is also shown as nistari land under water and the name of Reva Sai is recorded as owner malik makbuja. Ex.P- 80 is another certified copy of 'missal bandobast' which appears to be corrected missal bandobast of 1910-11 with only change that earlier in respect of these two tanks though they were recorded in joint possession of Nandu, Hannu and Bhav Singh and also shown nistari , now in this entry, their joint possession was shown, striking out the nature as nistari. Another missal bandobast record (Ex.P-81) repeats earlier entry showing Reva Sai as malik makbuja, Toran & Ors. as holder of possession and again showing these lands as nistari land. Defendants have also produced the relevant missal bandobast entires of 1929-30 in which land compromised in khasra no.81 and 142 has been shown to be under water and in joint possession of Toran, Bhav Singh and Hemnath and also shown as nistari land. All other column including column relating to malik makbuja are blank. ExD-6 is a copy of entry of missal bandobast reflecting same possession as stated earlier but it does not show missal bandobast for any particular year. Kashi (DW1) has proved Ex.D-1, Ex.D-2, Ex.D-3, Ex.D-4, Ex.D-5 & Ex.D-6. Ex.D-3 and Ex.D-6 are missal bandobast of 1929-30.
33. The other document of nistari khasra etc which have been filed by both the parties, at this stage, are not being referred to. They all are subsequent to the date on which the Act of 1950 came into existence. The aforesaid documentary evidence have been referred to because they are entires of various record of rights and settlement and possession which existed as on the date of coming into force of the Act of 1950. All the plaintiff witnesses namely Jalam (PW1), Jhadu Ram (PW 2 ) and Mehtar (PW3) have stated that the tanks in dispute had remained in long possession of plaintiffs and their predecessor in title since long and in these tanks, they used to take various water crops like singhara, pashar rice, etc and also rear fish. According to them, the plaintiffs and their predecessor in title were in possession of two tanks and they were cultivating fishes, water crops and two tanks were held by them in their ownership rights and further that the predecessor were neither proprietor nor cultivating under the authority of proprietors. They have also stated in their evidence that earlier Reva Sai, the ex-proprietor -42- was allowed to take water for irrigation for his own lands, but later on, Reva sold all five agricultural lands on which the purchaser have, later on, constructed their own houses, farms etc, and thereafter those land were not supplied with any water for irrigation purpose from the tanks in dispute. According to these witnesses of the plaintiffs, under agreement of 1908 (Ex.P-1) and by virtue of judgment and decree of the trial Court on 14.3.1932 (Ex.P-3), the predecessor in title of the plaintiff were recognized by Malgujar Reva Sai as the owner, though, the parties had agreed that Rewa sai, the ex-proprietor would be entitled to irrigate his five fields from the water of these two tanks, but all these witnesses in their respective cross-examinations have admitted that the two tanks were used for nistari and bathing purpose by the villagers except four months in summer. The suggestion, however, that villagers were allowed to irrigate their agricultural field also from the water of these two tanks has been denied.
34. The three defendants witnesses namely Kashi, Bharatlal and Bhuvneshwar have deposed in their evidence that the two tanks belonged to ex- proprietor Reva Sai and two tanks were being used by the villagers not only for nistari purpose by the villagers but also for irrigating agricultural land of the villagers but it has been admitted in the cross-examination of Kashi (DW1) that Toran, Bhav Singh and Hemnath were cultivators and not proprietors and that Reva Sai, Malgujar, was the proprietor of village Chandrakhuri.
35. From the pleadings in the plaint, written statement oral and documentary evidence led by the plaintiffs and defendants, it is proved that the predecessor in title of the plaintiffs including Nandu, Hannu and Bhavsingh and thereafter Toran, Hemnath and Bhavsingh remained in cultivating possession of the two tanks and they used to take water crops like singhara, pashra rice etc and also rear fish. The oral and documentary evidence proved possession of predecessor in title of the plaintiff since 1910-11. Though in the pleadings and in the evidence, the plaintiffs have come out with the case that they were in possession of two tanks in their own rights i.e. malik makbuja, in all revenue records prior to 1950, -43- particularly the settlement records of 1910-11 as well as 1929-30 they were only recorded as holder of possession whereas the name of ex-malgujar Reva Sai was recorded as Malgujar of two tanks. It is also proved that the two tanks were recorded as nistari land and according to evidence of both the parties, the land were being used by the villagers for nistari purpose i.e. for bathing, cleaning of cattle. There is no clinching evidence either in the revenue records or in the oral evidence that water of the two tanks was being used for agricultural purposes by the villagers. The only evidence is of use of the water of these two tanks for irrigating five agricultural fields of ex-proprietor Rewa Sai. It has also come in the evidence that later on Reva Sai sold out the five agricultural land and those lands no longer remained agricultural land and hence, later on, there was no occasion for supply or drawl of water of two tanks for irrigating those five agricultural fields of ex- malgujar Rewa Sai.
36.The plaintiff have placed on record an ancient document being an agreement of 1908 (Ex.P1) which is an agreement between Reva Sai and predecessor in title of plaintiffs, in which ,Reva Sai, the proprietor, admits malik makbuja rights of the forefather of the plaintiffs. This is the agreement under which parties had agreed that Reva Sai will be allowed to draw water from the two tanks to irrigate his own lands.
37.The plaintiffs led evidence and relied upon judgment and decree dated 14.3.1932 passed by the Sub Judge Class-I Durg in Civil Suit No.367/1931 (ExP-3) in suit filed by Reva against Hemnath , Bhav Singh and Toran. A copy of compromise petition (Ex.P-2) on the basis of which judgment and decree passed on 14.3.1932 reveals that Reva admitted the title and ownership of Bhav Singhl, Toran & Hemnath over the tank No.81 and 142. The judgment and decree passed on compromise was to the effect that Rewa Sai can irrigate his field with the water of tank No.81 and that he has no right to irrigate any of the land with the water of tank No.142 and only the dependents will be irrigating their land with water of tank No.142. The said judgment and decree and agreement (Ex.P-1) read together, unmistakably, proves that as between Reva Sai, the Proprietor and Toran, -44- Bhav and Hemnath, Rewa Sai had admitted the title and ownership of Toran, Bhav Singh and Hannu over the tank No.81 and 142 though there was an agreement entered into between the parties that from one of the tank, Rewa Sai would be entitled to irrigate his own agricultural land.
38. The agreement of 1908 is an original document of ancient time, admissibility of which has not been disputed by the defendants. Thus, on one side, there are old revenue entries coupled with oral evidence to prove that earlier, name of Reva Sai was recorded as Malgujar but the possession was always that of Toran, Bhav Singh Hemnath, which entry carried presumptive value and on the other hand an admission of Reva Sai (ex- proprietor) that Nandu and Hannu (predecessor of Toran and Hemnath) and Bhav Singh were holding tanks in khasra No. 729 & 785 (new No.81 and 142) in malik makbuja. Further the decree of Civil Court (though a compromise decree) declared that Toran, Hemnath and Bahvsing are the owners of tanks of khasra No. 81 and 142 and Reva Sai is only entitled to take water to irrigate his own fields, in the suit filed by Rewa Sai. The judgment and decree being later in point of time then the earlier revenue records, would thus, decide the legal character and nature of possession of Toran, Bhav and Hemnath, that they were in possession of two tanks in their own right and not claiming possessory or proprietary rights through Reva Sai. The judgment and decree of the Civil Court would certainly have overriding effect so as to confer the legal character of ownership. Thus, for all legal purposes, the tanks in dispute were held by Toran, Bhav Singh and Hemnath in their own right and not through the proprietor.
39.From the date of judgment in the trial Court till the date on which provision of the Act of 1950 became applicable in the area compromised in district Durg i.e. 31.3.1951, there is no material and clinching evidence that the ownership of Toranlal, Bhav Singh and Hemnath eversince as declared in the decree was lost either by an act of parties or by any order passed in any legal proceedings.
40.The statutory scheme under Section 3 of the Act of 1950, as discussed herein-above with reference to various decisions, was that the proprietary -45- interest of the proprietor or any person claiming interest in the proprietary rights through Proprietor in respect of Mahals, estates, land etc. shall vest in the State. The legislation intended to remove intermediary between the State and tillers of the soil. Statutory consequences of scheme of vesting tanks with the Proprietor or person having interest in proprietorship through the Proprietor were divested with the proprietary rights. Therefore, under the law, vesting would be a statutory consequence only when it is proved that the proprietor was having a proprietary interest and the plaintiffs' forefathers were having interest only as his tenant i.e. claiming proprietary rights through Proprietor.
41.However, in the absence of there being any evidence on record it has to be held that there was no vesting of the two tanks by operation of law under statutory scheme of Section 3 of the Act of 1950. The State is one of the defendants and all the records were in its possession. But the State has failed to produce any clinching evidence in that regard to prove that two tanks were held by Reva Sai in his proprietary rights or that plaintiffs' forefather held those tanks and having interest in property rights through Reva Sai.
42. From the date of judgment of the Civil Court in the year 1932, the predecessor in title of the plaintiffs, were entitled to be treated as malik makbuja i.e. occupation in their own right as provided in Section 67 of the C.P. Land Revenue Act, 1917, which read as under.
"67. The Settlement Officer may declare to be a malik-makbuja any person who has acquired proprietary right over a definite area of a mahal, and who is not entitled to a share in the proprietary profits of the remainder of such mahal."
However, there is no revenue records placed before the Court to show that later on, the records of rights maintained under C.P. Land Revenue Act, 1917 or the records of settlement prepared under Central Provinces -46- Settlement Act, ( VI of 1929), corrected the revenue entries including statutory entry, to record the name of Toran Lal, Bhav Singh and Hemnath as not only holders of possession but also malik makbuja but even without such correction having been made, which otherwise are required to be made in view of decree passed by the Civil Court in 1932, the predecessor in title of plaintiffs were entitled to legal character and status as malik makbuja. In fact, it was an obligation cast on the revenue authorities to suitably rectify the revenue records consistent with the judicial declaration of ownership of Toran Lal, Bhav Singh and Hemnath.
On the date of coming into force the Act of 1950, C.P. Land Revenue Act 1917, was in force. Under the Scheme of settlement in Chapter -VI thereof (Section 56 to 98) the settlement officer was required to make necessary entry of malik makbuja proprietor, sir land etc. From the scheme of the act particularly Sections 66, 67, & 68 it is clear that proprietors were different from malik makbuja.
43. Section 66 of the CP Land Revenue Act, 1917 reads as below:
"66. The Settlement Officer shall ascertain and record the persons who are in possession as proprietors of the land comprised in each estate or mahal. (2) No record made under sub-section (1) shall debar any person from establishing his right to such land in a civil Court."
44. Section 67 of the Act of 1917 has already been quoted herein-above. A conjoint reading of two provisions would show that the Settlement Officer was required to ascertain and record the persons who are in possession as proprietors and persons as malik makbuja, the two being distinct and separate, as would be clear from Explanation -I of Section 68 as below :
68. x x x Explanation-I- In this section, "proprietor" includes a transferee of proprietary rights and a thekadar with protected status, but not a malik makbuza"-47-
45. Even prior to earlier settlement in Central Provinces and Barar, there were persons holding land as cultivators or occupants in their own right. In this regard, it will be useful to refer to historical background of occupant holding land in their own rights since prior to old Central Provinces Land Revenue Act, 1881 and settlement made therein, extensively discussed in case of Krishnarao Skankerrao Chitnavis (supra) :
"9.........We are not prepared to accept Mr. Bobde's contention that there is no distinction between occupancy land and abadi sites in the scheme of village settlement and that both should be treated on the same principle as both are comprised within the geographical limits of the village. We do not think that they stand on the same footing. In this connexion it is pertinent to refer to para 185 at P. 38 of Sir Richard Temple's Report on the Administration of the Central Provinces up to August1862. Para 185 reads thus :
"The boundaries of every Estate will be marked off; and within them, the ground and all its products. The cultivated, culturable and the waste, will be the absolute property of the declared owner, saleable, transferable, and heritable, subject only to the payment of land tax, and without any other reservation."
The omission of abadi sites in this paragraph is significant. This omission in the context of the preceding Para No. 184, indicates that abadi sites were not to be treated on the same footing as the other land mentioned in para No. 185, and were not to be regarded ipso facto as the absolute property of the declared owner."
-48-10. That the holders of tenancy land in a village were not treated on the same footing as occupants of abadi sites and the enquiry into the rights of the former (tenants) was not carried out on the same basis as the enquiry into the rights of the latter is quite apparent from the provisions of the old Central Provinces Land Revenue Act of 1881 as compared with the corresponding provisions of the subsequent Act of 1917.
11. Under S. 72 of the old Act of 1881, a statutory duty was cast upon the Settlement Officer to ascertain the status and rent of tenants and the provisions of the section were mandatory. Under S. 82, there was a statutory presumption about the correctness of the record-of-rights until the contrary was shown and under S. 83, the aggrieved person was given the option to institute a civil suit to have the adverse entry cancelled or amended. But under S. 80 of the new Act of 1917, if the civil suit is not instituted within one year, the entry becomes conclusive. So far as the question of tenancy land is concerned there is practically little difference between the old and the new provisions. The case as regards village sites is, however, entirely different. Under S. 77 (b) of the old Act of 1881 it was left to the discretion of the Settlement Officer to determine disputes regarding village sites; whereas the provisions of S. 78 (a) of the new Act of 1917 are mandatory and the Settlement Officer shall ascertain and record the custom in each estate, village or mahal in regard to village sites. It appears from a comparison of these two provisions that at the time of the first settlement of 1863, either there was no full and proper enquiry about the rights -49- of the occupants of village sites or that there was no dispute raised by the incoming malguzars-proprietors in relation thereto.
12. We are not prepared to accept the argument of the learned advocate who appeared on behalf of the appellant that the investigation of proprietary rights at the time of the settlement was full and complete both as regards tenancy land as well as abadi sites and that the terms of the wajib-ul-arz relating even to the abadi sites are fully exhaustive. The reason is obvious. In the case of tenancy land the provisions of the old Act of 1881 are mandatory, whereas the provisions regarding village sites are discretionary. In our view there was no full and proper enquiry about the rights of occupants of abadi sites, either because the Settlement Officer did not then think it necessary or because the rights of the then occupants were not disputed by the malguzars. In this connexion the following extract from the Introduction to the Central Provinces Land Revenue Act of 1917, pp. XI and XII may be found highly useful: "Section 203, which regulates the rights in house sites in villages, may be divided into two parts. Sub-ss. (1) to (4)deal with ordinary agricultural villages . .
.... Sub-ss. (3), (6) and (7), deal with villages in which there is an old and well-established non-agricultural community and it is only intended that the provisions of this section should be applied to cases where such a community has ancient rights. When proprietary rights were granted to mdlguzars shortly after 1860, it was not sufficiently recognised that in many village abadis, there existed old, well-built and valuable houses belonging to non-agriculturists, some of -50- whose,families were of longer standing in the village than the men in whose favour proprietary rights had been granted. Such houses had been held free of all restrictions for many years and it was never contemplated that the grant of proprietary rights should deprive these people of the rights that had grown up by custom. In the wajib-ul-arz drawn up after the first Settlement this question was not dealt with but at the later round of settlements a clause was inserted in the wajib-ul-arz of nearly every district laying down clearly the rights existing between the proprietor and the agricultural inhabitants of the village ............ Sub-ss. (5) to (7) of S. 203 are inserted with the object of providing a remedy for this state of things."
In our opinion the terms of wajib-ul-arz are not fully exhaustive and any absence of entry relating to the rights of the old occupants at the time of the first settlement does not negative their proprietary rights; nor does it indicate that they were regarded as licensees.
13. ...... We think that this provision about exemption from payment of ground rent by the agriculturists-
occupants was inserted in the wajibul- arz only with a view to avoid any dispute between tenants and mdlguzars in such matters as the malguzar was to become the sole proprietor of the village including the abadi. It may be that the proprietary rights of the occupants who had been there on the abadi sites, for a number of years were not disputed by the mdlguzars, but it was apprehended that dispute might arise with regard to the payment of ground rent and other matters, and hence this provision was made to -51- safeguard their rights from any possible attack by the malguzar in future.
16. The history of the malguzars and their tenure has been given by Mr. (Later Sir) B. Fuller in para. 28, P. 33 of his "Review of progress of the Central Provinces during the past 30 years and the present and past condition of the people," as follows :
"Next after the zamindars are the village proprietors or "malguzars", a term which means literally "payers of revenue" and indicates very precisely their chief function in former years. Under the Native Governments which preceded British Rule the revenue of each village was collected and paid in by a lessee of the tax who was at the outset generally the most influential person, or headman, of the village. As the revenue demand was raised the local men gradually gave way to large contractors who could outbid them at auction time or were supplanted by Court favourites who were granted village leases in place of less convenient cash rewards ........... Although it may be presumed that coeteris paribus the village headman (or "Patel" as he was called) would be preferred to others for the revenue farm of his village, yet there is abundant evidence to show that no right on his part was recognised by the Maratha Government. Sir Richard Jenkins, writing in 1827, states 'that the office is held at the pleasure of Government, being neither hereditary nor saleable and on the ejection or resignation of the incumbent, no compensation is allowed. It is true that Patels are frequently succeeded by their sons, or other members of their families; not, however, by virtue of any hereditary right, but by sufferance, or a new -52- appointment by Government; and whoever the incumbent may be, he is charged with the full exercise of all the duties, and entitled to all the privileges of the office unencumbered with any interference or claims on the part of his predecessor or family." It will be clear from the passage cited above that the malguzar in those days was but an agent of the State and the malguzari was treated more or less as an office.
17. Mr. Fuller has further stated at pp. 34 and 35 in the same para. 28 :
"A further concession of importance was made at the preceding Settlement of 1863-67. The Malguzars were granted full proprietary rights in their villages and were converted into landlords from being revenue farmers or managers, with, however, carefully safeguarded powers over their tenantry."
(The underlining (here italicised) is ours). The underlined portion in the passage quoted above clearly shows that the malguzars, even though they were formerly styled lessees, had no proprietary rights whatsoever but were only revenue farmers or managers, and that they were converted into landlords only with reference to their tenantry by virtue of the first settlement.
19. Mr. Dyer in his Settlement Report of Nagpur District 1912-17 says at P. 69 :
"In most villages the malguzars admit that they have allowed people to settle and to transfer their houses free, irrespective of whether they are agriculturists or not. In such cases the custom is recorded as found. In the few cases where the malguzars, claim the right to take money, the entry is different. If people have held -53- free from perhaps pre-Moghul days and have sold their houses as pleased them, the grant of proprietary rights at the first settlement must be held to have been given subject to this condition. Custom gave Government no right of disposal of these houses, such as it had over the collection of the land revenue or over waste land and Government could not give away what it had not ............."
20. The question of the scope and extent of the applicability of S. 203 arose before a Full Bench of the late Court of the Judicial Commissioner in Cowasji v. Abdul Shakur, S. A. NO. 252 of 1922, and it was very elaborately considered by Kinkhede A. J. C, with reference to the settlement records. After reviewing the whole history of settlement, the learned Judge then concluded that the occupants of the sites in pre- British days were regarded as owners and that the conferral of proprietary rights on malguzars did not derogate from the rights of the ownership enjoyed by the residents. The main question before the Full Bench was whether S. 203, Central Provinces Land Revenue Act, was ultra vires the Central Provinces Legislature and it was in that connexion that Kinkhede A. J. C, examined the nature and extent of the proprietary rights conferred upon the malguzars vis-a- vis the rights of the residents in the abadi at the time of the settlement."
46. The aforesaid detailed discussion in the historical background of the land revenue Act, settlement made therein as also arrangement, land ownership proprietorship, fully explains the distinction between village occupant holding certain land in their own right recognized as malk makbuja under the Act of 1917 and the proprietor (malgujar) as recognized under CP Land -54- Revenue Act 1917.
47. Thus, on the date of coming into force the Act of 1950, Reva Sai may be holding certain land etc. in his own proprietary right, the predecessor in title of the plaintiffs namely Toran, Bhav Singh and Hemnath, as admitted and conceded by Reva Sai, were holding two tanks and their embankments as occupant in their own right and not through the proprietor Reva Sai. Mere fact that the villagers were using water of the two tanks for nistari purpose and that Rewa Sai was also getting his five agricultural fields irrigated from the water of the tanks in question, are not relevant, even if those facts are assumed to be existing, for the purpose of vesting under Section 3 of the Act of 1950. There could not be any vesting under the law unless it is established that the predecessor in title of the plaintiff, who admittedly were not proprietors, were persons having interest in the proprietary rights through the proprietor. On the face of judicial verdict of the Civil Court in 1932 it cannot be held so.
48. Therefore, irresistible conclusion would be that there was no vesting under the law as provided under Section 3 of Act of 1950.
49. The order passed by the Compensation Officer on 20.2.1952 directing names of Toran Lal, Bhav Singh and Hemnath to be recorded by stating that they are tenant of Reva Sai was against judicial verdict of 1932 and therefore incapable of having any effect under the law. In para-21 of his cross-examination, Jalam Singh (PW1) has clearly stated that neither any was made nor any notice was given nor any hearing was afforded to them by the compensation officer. There was no occasion for the compensation officer to treat the land as having vested because there was a judgment and decree in a suit between Reva Sai and Toran and Ors. wherein Reva Sai had acknowledged and admitted ownership of Toran and ors. in respect of two tanks in dispute. As a matter of law, the Compensation Officer had no option but to leave two tanks treating them as belonging to Toran & Ors. in their ownership i.e. malik makbuja as recognized under Central C.P. Land Revenue Act, 1917. In fact after directing the plaintiffs Toran and others to be recorded as per order dated 20.2.1952, the land were recorded in nistar -55- patrak thereby treating them as nistari land, successor of Toran, Bhav Singh and Hemnath filed an application under Section 225 (5) of the new M.P. Land Revenue Code (repealed C.P. Land Act, 1917) clearly stating therein that they were holding two tanks since long and in the decree passed by the Civil Court, the tanks were declared as belonging to Toran and ors and since then they remained in their possession and after their death, in possession of their successor/applicants. In that application, it has also been averred that though application was moved before the Compensation Officer, the Compensation Officer recorded that the land vest in the State. Thus, the Compensation Officer never decided the application much less held any enquiry of summary nature as contemplated under Section 14 of the Act of 1950 which has been discussed herein-above in earlier paragraph of this judgment. As a matter of law, no such enquiry was permissible as there was already a decree adjudicating dispute between Reva Sai, the proprietor, and Toran and Ors.
50. In the scheme of the Act of 1950, vesting was to take by operation of law.
The scheme did not contemplate passing of any order of vesting by any revenue officer or the compensation officer. Section 13 required the Compensation Officer to make relevant entry upon obtaining statement and not to decide issue of vesting as such. Section 14 of the Act of 1950 provided for summary enquiry if there was no judgment and decree of the Civil Court deciding the issue of title. Thus the order dated 20.2.1952 of the Compensation Officer, in so far as containing observation of vesting is concerned, had no sanctity of law and was incapable of having any effect under the law much less of vesting under the law.
51. The Central Provinces Land Revenue Act, 1917 was in force as on the date of coming into force of the Act of 1950. After three years, the earlier Act of 1917 was substituted by MP Land Revenue Code, 1954. Under Section 146 of the Act of 1954, every person who was holding a land as malik bakbuja was entitled to bhumiswami status. Chapter-XII of the Act 1954 provided for Tenure- Holders. Section 145 provided for two classes of tenures holders, one bhumiswami and other bhumidhari. Section 146 of the Act -56- amongst others, provided that every person who held the land as malik makbuja was entitled to become bhumiswami. Similarly every person who, amongst other, held the land as occupancy tenant became a bhumidhari. The three relevant provisions are reproduced for ready reference hereinbelow.
" 145. Classes of tenure- There shall be the following classes of tenure holders of lands held from the State that is to say:-
(i) Bhumiswami
(ii) Bhumidhari
146. Bhumiswami- Every person, who at the coming into force of this Code belongs to any of the following classes, shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely :-
(a) every person in respect of land held by him as a malikmakbuza or a plot proprietor in the Central Provinces or the merged territories ;
(b) every person in respect of land lawfully held by him as house site in abadi in the Central Provinces or the merged territories;
(c) every person in respect of land held by him as a raiyat malik in the Central Provinces;
(d) every person in respect of land held by him as an absolute occupancy tenant in the Central Provinces;
147.- Bhumidhari- Every person who at the coming into force of this Code belongs to any of the following classes shall be called a Bhumidhari and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhari by or under this Code, namely :-
(a) every person in respect of land held by him as an -57- occupancy tenant in the Central Provinces;
(b) every person in respect of land held by him as a raiyat or raiyat sarkar in the Central Provinces;(c) every person in respect of land held by him as a raiyat or tenant in the merged territories."
52. As has been discussed herein-above, Toran & Ors., at the time of coming into force of the Act of 1950 were holding two tanks in malik makbuja and not as proprietor. Therefore, they became Bhumi-swami upon coming into force the Act of 1954. This was also by operation of law. However, the order passed by the Additional Deputy Collector on 6.8.1956 (Ex.P-62) which has already been referred to herein-above by which, the Revenue Officer has directed removal of the two tanks from nistari patrak and thus two tanks no longer recorded as nistari land. The order passed by the Compensation Officer, therefore lost its efficacy on 20.2.1952 in law. Later on, on 18.5.1957, the Deputy Commissioner on the proposal made to it approved assessment worked out in respect of the two tanks. The said order dated 18.5.1957 of the Deputy Commissioner (EX.P-67) also records that Beniram (successor plaintiff) was granted bhumi dhari rights, though, in view of the above discussion, he was entitled to be treated as Bhumi-swami. This may be because though the possession of the plaintiff was accepted, they were treated as tenant and not malik makbuja. Be that as it may, finally Beniram and Ors were recorded as bhumi -dhari in respect of two tanks after 1957.
53. There was nothing in the Act of 1954 to suggest that where villagers used for some nistari purpose, tanks held by a person in malik makbuja, the ownership and title would be lost on account of vesting of that tanks under any of the provision of the Act of 1954. In the aforesaid background, it has to be held that as two tanks did not vest under Section 3 of the Act of 1950, Toran and ors were entitled to malik makbuja and thus entitled to be status of bhumiswami entitled to be treated as malik bakbuja. Use of water of tanks for nistari purpose by villagers upon dispute raised by Beniram, was changed, nistar patrak corrected and directed to be corrected and bhumi- dhari rights conferred under the Act of 1954.
-58-54. Once there was an order of the Additional Deputy Commissioner on 6.8.1956 followed by a further order on 18.5.1957 granting bhumidhari rights, which were proceedings drawn under the Land Revenue Code of 1954, dully approved by the Deputy Commissioner vide order dated 205.5.1957 (Ex.P-67) Toran and Ors became bhumi-dhari i.e. tenure holders under the Act of 1954 and remarks made under order dated 20.2.1952 by the Compensation Officer lost its efficacy and became ineffective in so far as two tanks no. 81 and 142 were concerned. The eclipse created by order dated 20.2.1952, which certainly was not an order under Section 14 of the Act of 1950, became ineffective in law and it was no longer necessary for Beniram and ors. to even challenge order dated 20.2.1952. The land records were also corrected in the year 1954-55 in respect of the two tanks of khasra No.81 & 142, by which Beniram and ors were recorded as bhumi swami in view of order dated 18.5.1957 referred to herein-above and in this manner the two tanks were settled in their favour. The relevant land records of the year 1954-55 are ExP-82 and Ex.P-83.
55. After coming into force of the MP Land Revenue Code 1959 which repealed Land Revenue Act 1954, Beniram and ors became bhumi-swami in view of provision contained in Section 158 of the new Act, relevant part of which is extracted herein- below:-
"158 - Bhumiswami [1], Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely :-(a) every person in respect of land held by him in he Mahakoshal region in Bhumiswami or Bhumidhari rights in accordance with the provision of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955) .-59-
x x x
x x x
Beniram and ors./successors Toran and Ors. thus became bhumi swami of the two disputed tanks by operation of law. In this background, in revenue records kistbandi khatouni of the year 1960-61 and khasra panchasala of the year 1961-61 Beniram and ors were recorded as bhumi-swami.
56. The discussion in presiding paragraph and conclusion arrived at by this Court answers the submission of learned counsel for the Panchayat that while filing suit in the present case, no relief was sought for declaring voide and inoperative the order dated 20.2.1952 passed by the Compensation Officer. Order dated 20.2.1952 in respect of the two tanks has lost its efficacy and, later on, at the time of filing of present suit, Beniram and Ors were already conferred bhumi-swami rights and so recorded. It has already been held in presiding paragraph that order dated 20.2.1952 was not in the nature of an order under Section 14 of the Act of 1950.
57. Learned counsel for the State has stressed upon the submission that in any case, after coming into the force of M.P. Land Revenue Code 1959 , State acquired ownership over the two tanks. The contention is erroneous in law because proviso to sub section (1) of Section 57 saves rights of any persons subsisting at the time of coming into force the code in any property. Part of Section 57 is extracted herebelow:
"57 . State ownership in all lands. All lands belong to the State Government and its is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government:
[Provided that nothing in this section shall, save as the otherwise provided in this Code, be deem ed to affect any rights of any person subsisting at the coming into force of this Code in any such property.] -60- x x x
58. At the time of coming into force of the Land Revenue Code of 1959 Beniram had already acquired bhumi-swami rights which cannot be said to be taken away under Section 57 of the Code of 1959.
59. Learned counsel for appearing for the State as well as Panchayat have placed heavy reliance upon the decision of the Full Bench of High Court of Madhya Pradesh in the case of Raghubar Singh Padumlal (supra), to contend that upon coming into force of the Code of 1959, the tanks vested in the State under Section 251 of the Code of 1959. In that case, the possession was admittedly of Gaonthia and a protected Thekedar of village and his rights was governed by the Raigarh State Wajib-ul-urge . The case proceeded on certain undisputed premise that perforce Section 3 of the Act of 1950, the proprietor rights vested in the State and then the Court proceeded to examine the scheme of protection of certain possessory rights of the ex-proprietor, as provided under clauses (e) (f) (g) of Section 5 of the Act of 1950. On conjoint reading of Section 4 & 5 of the Act of 1950, it was held that even though proprietary rights have vested in the State in respect of tanks held in unoccupied land, possessory title of the outgoing proprietor in property mentioned in Section 5 were intended to be continued with the ex-proprietor or other person, even assuming that proprietary rights might have vested in the State. On this premise, the Court decided the issue as to what would be the effect of Section 251 in respect of those possessory rights of proprietor which continued under Section 5 of the Act. It was held:
"21. What Section 251 of the M. P. Land Revenue Code, 1959, aimed at abolishing was rights in tanks situated on unoccupied lands in which villagers had either the right of irrigation or the right of Nistar. The right of Nistar of villagers was not at all relevant under Sub-sections (e), (f) and (g) of Section 5 of the Abolition Act, and moreover. Section 251 of the 1959 Code does not affect the tanks situated on occupied -61- lands, but it pertains to tanks situated on unoccupied lands only. That is the distinction. Thus, the argument of a second vesting would not at all be tenable as the scope of Sections 3, 4 and 5 of the Abolition Act and Section 251 of the M. P. Land Revenue Code, 1959, is altogether different and their operation is limited to the, specific categories mentioned in those Sections. "
60. The observations made in the aforesaid case clearly shows that Section 251 of the Code of 1959 does not affect the tanks situated in occupied land but it operates when tank is situated in unoccupied land.
61. For ready reference Section 251 of the Act of 1959 is reproduced hereinbelow:
"251 -Vesting of tanks in State Government. [(1) All tanks situated on unoccupied land on or before the date of coming into force of the Act, providing for the abolition of the rights of intermediaries in the area concerned and over which members of the village community were, immediately before such date, exercising rights of irrigation or nistar, shall, if not already vested in the State Government, vest absolutely in the State Government with effect from the 6th April 1959;
Provided the nothing in this section shall be deemed to affect any right of a lessee in the tank under a lease subsisting on the date of vesting of the tank which shall be exercisable to the extent and subject to the terms and conditions specified in the lease:
Provided further that no tank shall vest in the State Government, unless -62-
(i) after making such enquiry as he deems fit, the Collector is satisfied that the tank fills the conditions laid down in this sub-section; and
(ii) notice has been served on the parties interested and opportunity given to them for being heard.].
(2) Any person claiming in any such tank any interest other than the right of irrigation or nistar, may, within a period of [four years] from the date of vesting under sub-section (1), make an application in the prescribed form the Collector for compensation in respect of his interest.
[(2-a) The provisions of section 239 shall apply to trees standing on the embankments of tank vested in the State Government under sub-section (1) as they apply to trees planted in an unoccupied land.] (3) Such compensation shall be fifteen times the land revenue assessable on the land covered by the tank and for purposes of assessment such land shall be treated as irrigated land of the same quality as the adjoining land.
(4) The compensation as determined under sub-
section (3) shall be paid by the Collector to the person or persons proved to his satisfaction to be owning interest in the tank concerned.
(5) The payment of compensation under sub-section (4) shall be a full discharge of the State Government from all liability for compensation in respect of the tank concerned, but shall not prejudice any right in respect of such tank to which any other person may be entitled by due process of law to enforce against the person or persons to whom compensation has been paid as aforesaid.
-63-(6) The State Government may make rules providing for the regulation of the use of water from such tanks. (7) The vesting of any tank under sub-section (1) shall not affect the rights of irrigation and nistar in such tank to which any person is entitled immediately before the date of vesting.
[Explanation. For the purposes of this section, tank includes the trees standing on the embankments of the tank but does not include buildings, temples or other constructions standing on the embankments thereof.]"
62. From reading of the aforesaid provision, it is clear that vesting of tanks in the State would take place only when tanks are situated in unoccupied land, however with a rider that no tank shall vest in the State unless after making enquiry, the Collector is satisfied that tank fulfills the conditions laid down in this provision and notice has been served on the parties interested and opportunity given to them for being heard. Thus vesting is not automatic but only upon the enquiry after affording opportunity of hearing and an order or entry to that effect made in the revenue records. Further more, it has to be noted that in the present case, the tanks were situated in occupied land and not in unoccupied land. This would be clear from definition of occupied land as defined under clause- (k) of Section (2) of the Act of 1950 which reads as under.
"2 (k)- "occupied land" means-
(i) in relation to the Central Provinces, land held immediately before the date of vesting in absolute-
occupancy, occupancy for village service, tenure, or land held as malik-makbuza, or land comprised in a home-farm;
(ii) in relation to the merged territories, land held by a raiyot, tenant or a village servant or and comprised in home -farm;
x x x
63. In view of finding recorded by this Court on the basis of material evidence -64- on record that on the date of coming into force the Act of 1950, Toran and Ors were holding the two tanks in malik makbuja, it was to be treated only as an occupied land. In this regard, definition of unoccupied land as contained in clause (22) of Section (2) of the Act of the MP Land Revenue Code, 1954 is also relevant and extracted below:
"(22) "unoccupied land" means the land in a village other than the Abadi or the land held by a tenure-
holder, a tenant or a Government, lessee.
64. As Toran and Ors, were enjoying malik makbuja rights on the date of coming into force of the Code of 1954, as has been held herein-above, they became tenure holder under Section 145 of the Code of 1954 which details were duly recognized also by orders of the Revenue authority on 6.8.1956 (Ex.P-62) and 18.5.1957 / 25.5. 1957(Ex.P-61) which was passed by the Deputy Additional Commissioner, Durg and had attained finality.
65. May be that to some extent, villagers were using water of the tank for bathing or for cattle cleaning but if the land is an occupied one, Section 251 of the Code of 1959 will have no application and the plaintiffs would continue to enjoy bhubmi-swami rights. The decision of the Full Bench is distinguishable on facts in the present case.
66. In the result, there is no ground to interfere with the judgment and decree passed by learned trial Court. The two appeal fails and are hereby dismissed.
67. Cost of the proceedings shall be borne by the appellants and payable to respondent-plaintiff on proper certification. Appellate decree be drawn accordingly.
Sd/--
(Manindra Mohan Shrivastava) Judgee Praveen