Madhya Pradesh High Court
Keshav Singh And Ors. vs Shantabai Shrikhande And Ors. on 24 November, 1994
Equivalent citations: 1995(0)MPLJ656, 1996 A I H C 726, (1995) MPLJ 656
JUDGMENT A.S. Tripathi, J.
1. This Letters Patent Appeal under Clause 10, Chapter IV of High Court Rules and Orders has been preferred against the judgment and order dated 21st of September, 1990 passed by Hon'ble K. M. Agrawal, the then Judge of this Court.
2. The learned Single Judge had partly allowed the first appeal with the direction that the decree for possession granted by the trial Court was maintained. The decree for mesne profits was modified with the direction that such profits to be determined during execution by holding an inquiry in that regard for a period preceding three months from the date of suit and for a period subsequent to the suit till the date of delivery of possession of their share in the suit land to the legal representatives of the deceased/plaintiff. It was further directed that mesne profits that may be determined by the Court below during execution shall not exceed the amount claimed by way of mesne profits per year by the plaintiff.
3. The facts of the case are that one Keshavrao had filed Civil Suit No. 7-A of 1968 with the prayer that possession be delivered to the plaintiff as against defendants 1 to 4 who are the present appellants over half share declaring that the alleged Patta in favour of present appellants 1 to 4 who were defendants, was null and void as against the plaintiff.
4. In the alternative, the plaintiff also prayed that the possession over half share be delivered to him, or in the alternative joint possession along with the then defendants 1 to 4 (present appellants) be held and a decree be passed accordingly. The plaintiff in that suit also prayed for arrears of mesne profits Rs. 7,500/- and future mesne profits during the pendency of the suit and future at the rate of Rs. 5000/- per year till possession was delivered.
5. The defendants (present appellants) had contested the suit. The trial Court i.e. IV Additional District Judge of Gwalior had decreed the suit in favour of the plaintiff. Aggrieved by that judgment the first appeal was filed before this Court. Learned Single Judge, after hearing the parties, had modified the judgment of the trial Court as indicated above.
6. The plaintiff had died during the pendency of the appeal and his legal representatives were brought on record who are respondents in this appeal.
7. It was not disputed that land in suit was jointly owned by the parties. The names of deceased-plaintiff Keshavrao and one Ramchandra Rao were recorded in the revenue papers. The defendants 1 to 4 (present appellants) claim possession over the entire land in pursuance of alleged Patta dated 1st of July, 1950 to have been executed in their favour by Ramchandra Rao alone.
8. It was alleged that after abolition of Jagirs in the State of Madhya Pradesh, the defendants 1 to 4 (the present appellants) applied for acquisition of Pakka tenancy rights against the then plaintiff and the deceased Ramchandra Rao, under the provisions of Section 121 of Madhya Bharat Abolition of Jagirs Act, Samvat 2008 (hereinafter called the Act).
9. The application of the defendants 1 to 4 (present appellants) was rejected by the First Revenue Court. The matter went up to the Board of Revenue which had remanded the case by its order dated 25th of March, 1967 to make further inquiries by the First Revenue Court. That application was pending and the civil suit was filed in the meantime. It also appears that before passing of the remand order by the Board of Revenue the deceased-plaintiff had applied under Section 24 of the Act for ejectment of the present appellants. That application was allowed by the Tahsildar and the deceased-plaintiff had obtained possession of the land in suit on 11th of October, 1960. Later on, in appeal, by order dated 25th of October, 1960 by Sub-Divisional Officer, the possession was again reverted back to the present appellants by an order passed by Tahsildar in that respect on 29th October, 1969. Then the present suit was filed with the aforesaid prayers.
10. The present appellants, who were defendants in that suit, contested the suit by filing joint written statement. During the pendency of the suit after filing the written statement the present appellants who were defendants, remained absent and the suit proceeded ex parte. The trial Court decreed the suit ex parte, as indicated above. Against that judgment and decree an appeal was preferred which was heard and decided by the learned Single Judge of this Court partially modifying the decree of the trial Court.
11. We have heard learned counsel for the appellants, Shri R. D. Jain and also learned counsel for the respondents Shri Arun Mishra and Shri M. L. Hirvey and examined the record.
12. The first question raised in this appeal was as to whether the defendants/appellants had acquired any right over the plaintiff/respondents' share in the suit land in pursuance of the alleged patta dated 1st July, 1950, executed in favour of Ramchandra Rao alone ?
13. On this point, the learned Single Judge had given his finding that the defendants/appellants did not acquire any tenancy right in pursuance of the said patta and their possession was that of a trespasser. With these findings, the appeal of the defendants on the point of title and possession was dismissed and the decree of the trial Court for recovery of possession by the plaintiff over half share was maintained.
14. Learned Single Judge had further directed for the recovery of mesne profits being calculated by the trial Court.
15. So far as the first point is concerned, it was admitted on. record and proved that the land in suit jointly belonged to the plaintiff and the deceased Ramchandra Rao. Ramchandra Rao was a co-tenant and according to the plaintiff/respondents he had no right to execute any patta in favour of the defendant/appellants on 1st July, 1950 without the consent of the other co-sharers. However, it was pointed out that the names of the defendants/appellants were recorded in revenue papers in pursuance of the said patta as sub-tenants, but the learned Single Judge held that the defendants/appellants could not acquire the right of Pakka tenant automatically without any order passed by the Tahsildar, as provided under Section 21, sub-section (1) of the Act. The provisions of Section 21, sub-section (1) are quoted as below :-
"21. (1) A sub-tenant or a tenant of a sub-tenant who is in possession of any land in a resumed Jagir-land, may, within the relevant period, apply to the Tahsildar within whose jurisdiction that Jagir-land is situated (hereinafter referred to as "the Tahsildar") for acquiring the rights of a Pakka tenant in his holding."
The learned Single Judge held that without moving an application and without an order of the Tahsildar on the application in respect of Pakka tenancy under Section 21, sub-section (1) of the Act, the sub-tenant, even was in possession in pursuance of the alleged patta, which was illegal, could not acquire Pakka tenancy rights under the Act.
16. Learned Single Judge had clearly held that this patta was invalid in view of the fact that it was not executed with the consent of the other co-tenant. A patta executed by a co-tenant without the consent of the other co-tenant was invalid and even if the sub-tenant, in pursuance of such patta was put in possession, his possession will be that of a trespasser and he could not acquire Pakka rights unless the same was recognized and appropriate order was passed under the provisions of Section 21, sub-section (1) of the Act, as indicated above.
17. Reference was made to the case of Wall Mohammed (Deceased by L.Rs.) v. Ram Surat and Ors., reported in AlR 1989 SC 2296. That case was not applicable to the facts of the present case and the learned Single Judge rightly held that the entries in favour of the defendants/appellants were fictitious. Instead of jointly recording the names of the appellants/defendants and the respondents/plaintiffs only the names of the appellants were recorded in pursuance of the alleged Patta in respect of the share of Ramchandra Rao. The defendants/appellants could not perfect their title even by adverse possession as the plaintiff was contesting his rights by opposing the application under Section 21 of the Act and the plaintiff was claiming the ejectment of the defendants by filing an application under Section 24 of the Act.
18. In view of these facts the learned Single Judge has rightly held that the decision in the case of Wall Mohammed (supra) did not apply to the facts of the present case.
19. It was also found that the plaintiff was also temporarily put in possession of the land in suit in pursuance of the order passed in his favour by the Tahsildar on the basis of his application under Section 24 of the Act. The suit was filed within 12 years from 29-10-1960, the date on which the Tahsildar had ordered the appellants to be put in possession. The plaintiff's suit was, therefore, clearly within time and the defendants could not claim even their title by adverse possession. Reference was made to the case of Sushila Bai and Ors. v. Gorabai and Ors., in S. A. No. 207/78 which was also not applicable to the facts of this case and was distinguishable and the learned Single Judge rightly distinguished the same in view of the facts of the present case. Similarly, the case of Sardar Dev Rao Jadhav v. Gangaram, 1983 R. N. 344 was also not applicable to the facts of the present case as that case was under the Madhya Bharat Abolition of Jagirs Act, Samvat 2008.
20. Learned Single Judge, after examining the evidence, had clearly held and also in view of the law on the subject that the plaintiffs were entitled to a decree for the possession to the extent of their half share in the suit land and the finding of the learned trial Court was confirmed on that point.
21. These findings of the learned Single Judge have been challenged by the appellants on the ground that the suit was not cognizable by the Civil Court and the same should have been dismissed by the trial Court. This point of jurisdiction we shall take up later on.
22. The learned counsel for the appellants argued that the then appellants had perfected their title on adverse possession and had acquired Pakka tenancy right automatically.
23. It was pointed out that on 1st of July, 1950 a-Patta was executed by Ramchandra Rao alone and possession was delivered to the defendants. The appellants had filed an application under Section 21 of the Act which was Ex. P-8 on record. Keshav Rao filed written statement in the above case which was Ex. P. 9. Keshav Rao had obtained an order of ejectment against the defendants/appellants from Tahsildar on 10th of October, 1961 which was Ex. P. 11 and he was temporarily put in possession. Later on, on 27th of October 1960 the possession was returned back to the defendants/appellants and then the suit was filed by the plaintiff which was decreed.
24. Learned counsel for the appellants raised the point that the decree could not be passed in favour of the plaintiff without proof of his title. He argued that the plaintiff could recover possession only if he was able to prove his title of Pakka tenancy rights. Admittedly, the land in suit was situated in Jagir village. It was further argued that the plaintiff was not cultivating the land on the date of vesting and the defendants/appellants were in possession of the land in the Khasra, Samvat 2007 and the plaintiff was out of possession. Copy of Khasra has been filed with an application under Section 41, Rule 27 of the Code of Civil Procedure and this application, we will consider later on.
25. For the present it was admitted that Ramchandra Rao was a joint owner of the land in suit. He was a co-tenant and he could not execute a Patta without the consent of the other co-tenant. As such, it is established from record that in pursuance of the Patta the defendants/appellants could not acquire Pakka tenancy rights. They had moved an application under Section 21 for acquisition of Pakka tenancy rights but the same was rejected. On the other hand, the plaintiffs/respondents were recognized as Pakka tenants and they were entitled to recover possession from the defendants/appellants as the possession of the defendants/appellants was that of a trespasser.
26. The learned trial Court had clearly held that the possession of the defendants/appellants was that of a trespasser. The said finding has been confirmed by the learned Single Judge. We do not find any material on record to hold otherwise and the possession of the defendants/appellants was simply that of a trespasser and the decree for recovery of possession in favour of the plaintiff was rightly passed by the trial Court and correctly confirmed by the learned Single Judge.
27. Reliance was placed on the case of Mt. Lachhmina Kunwari v. M.L. Makfula Kunwari and Ors., reported in AIR 1938 Allahabad 316 [H. N. - (b).J It was held in that if an agricultural plot was owned by two or more co-sharers, the perpetual lease of the same could not be granted by one co-sharer without the consent of the other co-sharers and any lease granted without the consent of other co-sharers, was invalid. The law laid down in that case still holds good and in view of the fact that the Patta was executed by Ramchandra Rao without the consent of the other co-sharers it was certainly invalid.
28. Learned counsel for the respondents relied- on the case of Corporation of the City of Bangalore v. M. Papaiah and another reported in AIR 1989 SC 1809 [H.N. - (B)] wherein it was held :-
"Civil PC. (1908), Section 100 - Question of law - Revenue record is not document of title - Interpretation of revenue record is not question of law - Finding of fact rendered by lower court on basis of interpretation of revenue record - Interference with finding by High Court is illegal."
On that basis it was argued that the findings of fact recorded by the trial Court and the learned Single Judge could not be disturbed in any way by way of this Letters Patent Appeal. Therefore, it was clear on record that the alleged Patta was void to the extent of the plaintiff's share and the suit was rightly decreed for the same.
29. In the case of Deorao Jadhav v. Ramchandra Rao, 1982 MPLJ 414 (FB) = 1982 R. N. 247 (FB) it was held that if a person is not in possession, but illegally deprived of it, opponent's possession is to be deemed as that of a trespasser. In the present case the status of the defendants/appellants vis-a- vis to plaintiff/respondents was that of a usurper of the land and the plaintiff/respondents were rightful owners and they could very well recover the possession by way of filing a suit.
30. Learned counsel for the respondents argued that in the case of Pakka tenant Section 20 of Abolition of Jagirs Act is applicable and there was automatic conferment of Pakka tenancy rights on the tenant of a Jagirdar in Jagir area. In the present case, the plaintiff was not a Jagirdar but was a Kashtkar. As such the claim of the defendants/appellants relating to the right of Jagirdar was completely misconceived. In the present case it was not the case of Jagirdar or Zamindar. In view of the Full Bench decision in Deorao Jadhav v. Ramchandra and Ors., cited above, the question of actual possession was not relevant. The real question was the right to possess. This view was clearly laid down in the case of Bhanwar Singh Jawahar Singh v. State of M. P. and Ors., reported in 1976 MPLJ page 38.
31. It has been further pointed out that the defendants/appellants did not enter into the witness box and did not lead any evidence to prove the validity of the Patta in question.
32. Therefore, we find that the learned Single Judge had rightly held that the Patta executed by Ramchandra Rao without the consent of the other co-sharers was invalid and the same did not confer any Pakka tenancy right to the defendants/appellants. Their possession was that of a trespasser and the plaintiff's suit was rightly decreed for possession of their half share in the suit property. The trial Court's finding on that point is accordingly confirmed.
33. The second point raised in this appeal was that the plaintiff's suit , was without jurisdiction and was not cognizable by Civil Court and the suit on that ground should have been dismissed.
34. Learned counsel for the appellants placed reliance on the case of Raghunalh (dead) by LRs. v. Kanhiya (dead) by LRs. reported in AIR 1979 SC 1936 and the cases of Ramnaraln Thakur v. Purshottam and others, reported in 1981 R.N. 255 and Him v. Bheru reported in 1989 R. N. 196.
35. On the other hand, learned counsel for the respondents argued that the suit was fully cognizable by Civil Court as it was not a case for determination of tenancy rights under the Act. It was further argued that since no order was passed by Tahsildar under the provisions of Section 21, sub-section (1) of the Act, the suit was maintainable in the Civil Court. The suit was not for quashing of the order passed by Tahsildar. No order was passed by the Tahsildar under Section 21, sub-section (1) and as such no tenancy rights were conferred on the defendants/appellants. The suit was simply for the determination of the title of the plaintiffs and for recovery of possession of half share and so it was quite maintainable in the Civil Court, as held in the case of Ramgopal v. Chetu reported in 1976 MPLJ 325 = 1976 JLJ 278 (FB). It was argued that the case laws reported in AIR 1979 SC 1936, 1981 R.N. 255 and 1989 R.N. 196 did not apply to the facts and circumstances of the present case in view of the finding that no tenancy rights were acquired by the defendants/appellants. At no point of time Pakka tenancy right was conferred on the appellants and as such, there was a question for determination of title in the civil suit and the same was cognizable only in the Civil Court as held in the case of Abdul Waheed Khan v. Dhawani and others, reported in 1966 MPLJ 954 (SC) = 1966 JLJ 1022.
36. Therefore, we hold that in view of the facts and circumstances of the present case the Civil Court had jurisdiction to try that suit and pass an appropriate decree. The contention of the learned counsel for the appellants on the point of jurisdiction is rejected.
37. The last point raised was that an application under Order 41, Rule 27, Civil Procedure Code was moved for admitting fresh evidence like the Khasra entries. This application was highly belated and could not be entertained in this Letters Patent Appeal. The point has already been considered by the trial Court and learned Single Judge of this Court while passing the impugned judgment and decree. At this stage, we do not consider it appropriate to entertain this application under Order 41, Rule 27 of the Code of Civil Procedure and the same is rejected.
38. Learned counsel for the appellants, however, pointed out that the direction of the learned Single Judge regarding the calculation of mesne profits to the trial Court and awarding mesne profits was against equity. We have considered this point. In view of the facts and circumstances of the case we find that the learned Single Judge has rightly considered the point of mesne profits and gave appropriate direction in the judgment. We do not find any reason to interfere with the same.
39. In view of the findings recorded above, there is no merit in this appeal and the same is dismissed with costs.