Madhya Pradesh High Court
Pranveer Singh vs Laxminarayan on 16 November, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B. : HON'BLE MS. JUSTICE VANDANA KASREKAR
WRIT PETITION NO. 15930/2016
Pranveer Singh
vs.
Laxminarayan & others
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Shri R. P. Khare, learned counsel for the petitioner.
Shri Dhruv Verma, learned counsel for respondent
No.1.
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O R D E R
(16/11/2017) The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 11/08/2016 passed by respondent No.2.
2. Brief facts of the case are that respondent No.1 was the owner of the land bearing Khasra No.192/1/3/2 area 1.53 acres and Khasra No.192/2 area 1.76 acres, total area 3.29 acres, situated at village Khillikheda Tahsil Goharganj District Raisen. The said land was given on lease to the petitioner in the year 1994 by executing a lease agreement in his favour for the period of 5 years. Since then the petitioner is continuing in possession of the said land and respondent No.1 has not taken any step to restore its possession from the petitioner. The petitioner, therefore, filed an application before the Tahsildar for declaring him as Bhumiswami as well as for recording his name in revenue record as Bhumiswami of the land in question. Respondent No.1 has filed reply to the said application and submits that the said land was given on lease to the petitioner for a period of 5 years. The Tahsildar after enquiry, passed an order dated 01/12/2000 whereby allowing the application of the petitioner and declared him as Bhumiswami of the land in question. Accordingly, the name of the petitioner was also recorded as Bhumi Swami in the land revenue record. Being aggrieved by that order, respondent No.1 preferred an appeal before the Sub-Divisional Officer along with an application under Section 5 of the Limitation Act. The Sub Divisional Officer vide order dated 22/10/2012 dismissed the appeal of respondent No.1 on the ground that the Additional Commissioner remanded the case to the Additional Collector on the basis of complaint filed by one Banshilal. Therefore, the Collector, Raisen exercised its jurisdiction under Section 50 of the M.P.Land Revenue Code. Thereafter, respondent No.1 filed an appeal before the Commissioner, Bhopal Division Bhopal. The Additional Commissioner vide order dated 08/06/2015 allowed the appeal of respondent No.1 and set aside the order passed by the Tahsildar. Being aggrieved by this order, the petitioner has filed a revision before the Board of Revenue and Board of Revenue vide impugned order dated 11/08/2016 dismissed the revision of the petitioner. Being aggrieved by that order, the petitioner has filed the present petition.
3. Learned counsel for the petitioner argues that the Board of Revenue has erred in dismissing the revision preferred by the petitioner on the ground that the revenue authority cannot decide the question of title and same is vested only with the civil Court. He further argues that as per Section 168 of MPLRC, it is not necessary to produce in writing the lease agreement. It may be proved that the land has been leased out by Bhumiswami to some other persons for a consideration of a price paid or promised. In the present case, admittedly, the lease agreement was executed by respondent No.1 although it was not executed in any stamp paper, therefore, the learned Board of Revenue wrongly held that the lease agreement has not been executed on stamp paper. He further submits that the Board of Revenue has erred in holding that the Tahsildar has no jurisdiction to held the petitioner as Bhumiswami of the land in question on the basis of the provision of Sections 169 and 190 of the MPLRC. He submits that as per the Section 257(o) of MPLRC, the conferral of Bhumiswami right is exclusively vested with the Revenue Court. The occupancy tenant right accrued to the petitioner under Section 169(a) of the MPLRC and Bhumiswami right acquired under Section 190 of the MPLRC. The learned Board of Revenue wrongly held that the revenue Court has no jurisdiction to decide the application under Sections 168 & 169 of the MPLRC or to confer the right of Bhumiswami to the petitioner under Section 190 of the MPLRC. For the said purpose, he relied on a judgment passed in the case of Pushpalata (Smt.) vs. S mt. Mishri Bai and others, 2013, RN, page 87.
4. The respondent No.1 has filed reply and in the said reply, respondent has stated that the petitioner by playing a fraud, filed a mutation application before the Tahsildar and produced a plain paper with false signatures of the respondents. The Tahsildar without application of mind allowed the mutation application and declared the petitioner as Bhumiswami. The Tahsildar has declared him ex-parte and the order of the Tahsildar was challenged before the SDO. The SDO was dismissed the appeal of the respondent. The Second Appeal before the Commissioner Bhopal was allowed and the Board of Revenue dismissed the revision preferred by the petitioner.
5. In Sections 186 & 190 of MPLRC, there is a separate scheme for Bhumiswami right and declaration relating to Bhumiswami, but when there is specific dispute regarding the title, then the same can be decided by the Civil Court not by the authority. In such circumstances, learned counsel for the respondents supports the order passed by the Board of Revenue. He further relied on a judgment passed by the Apex Court in the case Rohini Prasad and others vs. Kasturvhand and another, AIR 2000 SC 1283 (2000 RN 141). as well as the judgment passed by this Court in the case of Narayan Prasad and another vs. Tulsidar and another, 2002 RN 306.
6. Heard learned counsel for the parties and perused the record. The Section 190 of the MPLRC provides for conferral of bhumiswami rights on occupancy tenants. According, to this Section, where a bhumiswami whose land is held by an occupancy tenant belonging to any of the categories specified in sub-section (1) of Section 185. He can file an application under this Section for claiming him as Bhumiswami right on him.
7. In the present case, the petitioner has filed an application for mutation under Sections 109 & 110 of MPLRC. While deciding the said application for mutation, the Tahsildar has also declared him as Bhumiswami. While deciding the application under Sections 109 & 110, the Tahsildar could not have decided the right of the parties. In the present case, there is a serious dispute about ownership of the disputed property and, therefore, only the Civil Court has jurisdiction to decide the title of the property. The powers under Sections 168, 169, 185 & 190 of the MPLRC is vested only with the Civil Court and not with the Revenue authority.
8. The Apex Court in the case of Rohini Prasad (supra) in para 8 has held as under :-
"8. Now, Maqsood Ali and Abid Ali have not asserted their right by filing any application under Section 250 of the Code before the Tehsildar. After selling the land, they appear to have become uninterested persons. Under Section 257 of the Code, jurisdiction of Civil Court is barred in the matter of ejectment of lessee of a Bhumiswami under sub- section (4) of Section 168 [clause (k)] or in claims by occupancy tenants for conferral of the rights of Bhumiswami on him under Section 190 [clause (o)] or in any decision regarding reinstatement of a Bhumiswami improperly dispossessed under Section 250 [clause (x)]. By approaching the revenue courts, Rohini Prasad has sought conferring of right of Bhumiswami under Section 190 of the Code. Certainly, there have been two parallel proceedings one under the Code before the Revenue Court and the other under ordinary law before the Civil Court. Mr. Khanduja did contend that the Civil Court had no jurisdiction to try the suit. The question of jurisdiction was raised before the Trial Court in civil proceedings and an issue raised which was decided as a preliminary issue. It was held that the Civil Court had jurisdiction in the matter. This finding of the Civil Court had not been challenged in appeal either before the lower Appellate Court or before the High Court. Even in the grounds of appeal in this Court, there is no challenge to the finding of the Trial Court that the Civil Court has jurisdiction in the matter. We find there have been consistent decisions of the Madhya Pradesh High Court holding that the determination of the question of title is the province of Civil Court and unless there is any express provision to the contrary, exclusion of Civil Court cannot be assumed or implied. A Full Bench of the Madhya Pradesh High Court in Ramgopal vs. Chetu [1976 RN 146] was considering the question whether the Civil Court cannot take cognizance of a suit instituted by Bhumiswami on the basis of his title against the trespassers. The Full Bench repelled the argument that in proceedings under Section 250 of the Code, since the Revenue Authority has no jurisdiction to go into the question of title, it would lead to anomalous results if again it is held that the Civil Court has jurisdiction to decide any question relating to the title. The Full Bench observed :
"Under the general law, a suit for possession based on title can be instituted in the Civil Court within 12 years from the date of dispossession. The principle that possession must follow title has received greater weight and sanctity when the distinction between the scope and effect of Article 142 and those of article 144 of the Limitation Act, 1908, has been watered down and simpler provisions have been substituted in Articles 64 and 65 of the Limitation Act of 1963. It will be anomalous to read section 250 as providing for a suit for possession based on title, which is to be instituted within two years only. It will entail a fantastic result that if a suit is not brought within two years under section 250, the Bhumiswami's right will be extinguished, because by virtue of section 26 of the Limitation Act, if a suit for possession is not instituted within the period of limitation prescribed therefore, not only the remedy is barred but the right is also extinguished. Section 27 is an exception to the general rule that limitation bars the remedy but does not extinguish the right."
The Full Bench then went to hold :
"The remedy provided in section 250 of this Code can be resorted to by a Bhumiswami by an application to the Tehsildar. He has to show either (1) that he was dispossessed by the non- applicant otherwise than in due course of law, or (2) that he was dispossessed within two years from the date on which the possession of such person became unauthorised (although initially the possession of that person may be authorised). Thus, clearly enough, this section provides for a remedy at the hands of the Tehsildar for restoration of possession, when a Bhumiswami is improperly dispossessed, that is, without due process of law. Clause (x) of section 257 excludes the jurisdiction of the Civil Court to challenge "any decision regarding reinstatement of a Bhumiswami, improperly dispossessed under section 250". In both these provisions the subject matter of enquiry is possession not title.
Determination of the question of title is the province of the civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the civil court cannot be assumed or implied."
9. The similar view was taken by this Court in the case of Narayan Prasad (supra) in para 11 which reads as under :-
"11. Obviously, the trial Court was wrong in drawing a presumption of continuance of possession both backward and forward as per Ambika Prasad vs. Ram Ekbal (AIR 1966 SC
605) on the basis of single entry in favor of appellants in Khasra Panchshala for the year 1976-77. Actually the trial Court had misapplied the above principal.
Navalshankar Iswarlal Dave Vs. State of Gujarat (AIR 1994 SC 1496), B.S.V. Temple Vs. P. Krishna Murthi (AIR 1973 SC 1299), Chadrakantaben Vs. Vadilal Bapalal (AIR 1989 SC 1269), Guru Amarjit Singh vs. Rattan Chand (AIR 1994 SC 227) are authorities on the point of presumption raised by mutation. Of course, mutation is not proof of title.
Parties have to establish by proof proving alinude their title to the property. At the most a presumption of possession can be had from them. Obviously from single entry in Khasra for the year 1976-77 neither the title of respondents was proved nor a long adverse possession for more than 12 years was established.
Actually, there has been no explanation why the respondents did not get their names mutated to the revenue records for long 16 years after alleged execution of sale-note Ex. D-3.
10. Thus, in the proceedings of mutation, the Tahsildar has no power to decide the title of the parties. In light of the aforesaid judgment passed by the Hon'ble Apex Court as well as by this Court, the Board of revenue as well as the Commissioner has not committed any error in passing the impugned orders.
11. In the present petition, being filed under Article 227 of the Constitution of India, the scope of interference of this Court is very limited. Thus, I do not find any reason to interfere into the said writ petition. The petition is, accordingly, dismissed.
(MS. VANDANA KASREKAR) JUDGE manju Digitally signed by MANJU CHOUKSEY Date: 2017.11.17 10:51:34 +05'30'