Kishan Yadav & Ors vs Hariprasad & Ors on 20 December, 2024

[Cites 16, Cited by 0]

Madhya Pradesh High Court

Kishan Yadav & Ors vs Hariprasad & Ors on 20 December, 2024

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 20th OF DECEMBER, 2024
SECOND APPEAL NO. 912 OF 2004
PUSHPA YADAV & OTHERS
VS.
HARIPRASAD AND OTHERS
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Appearance:
Shri Anoop Nair - Senior Advocate assisted by Ms Disha Rohitas -
Advocate for the appellants.
Shri R.K. Sanghi with Shri Siddharth Kumar Sharma - Advocate
for the respondents.
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SECOND APPEAL NO. 913 OF 2004
PUSHPA YADAV & OTHERS
VS.
HARIPRASAD AND OTHERS
------------------------------------------------------------------------------------------
Appearance:
Shri Anoop Nair - Senior Advocate assisted by Ms Disha Rohitas -
Advocate for the appellants.
Shri R.K. Sanghi with Shri Siddharth Kumar Sharma - Advocate
for the respondents.
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Reserved on: 10.12.2024
Pronounced on : 20.12.2024
2

JUDGMENT

Since both the appeals have been filed by different sets of parties challenging the common impugned judgment and decree dated 28.06.2004 passed by the First Appellate Court deciding two regular civil appeals bearing Nos. 8-A/2004 and 9-A/2004 and therefore, they are being decided by this common judgment.

2. Appellants have filed these appeals under Section 100 of the Code of Civil Procedure. This Court vide order dated 02.03.2020 admitted the appeals on the following substantial questions of law:-

"A. Whether the first appellate court was legally justified in reversing the finding of the trial Court that the plaintiff/respondents were only entitled to 1/4th share in the suit lands which belonged to Moolchand?

B. Whether the Courts below were legally justified in holding that the sale-deeds of the suit lands executed in favour of the defendant/appellants by the L.Rs. of the remaining three brothers of Moolchand were void even to the extent of their 3/4th share in the suit property?

C. Whether the first appellate court was legally justified in holding that the plaintiff/respondents had got Bhumiswami rights over the suit lands under Section 190 of the MPLR Code, specially when there is no evidence to show that Motilal, Kanhaiyalal and Kunjilal, the brothers of Moolchand had not given their part of the suit lands and Shikmi to Nandlal?

D. Whether the defendant/appellants were entitled to retain 3/4th part of the suit lands by virtue of the sale-deeds in their favour and the courts below legally erred in not decreeing their counter claim?

3. To answer the substantial questions of law, it is appropriate to consider the facts of the case, which are being extracted from the pleadings of the parties and those are as under:-

3.1 The plaintiffs had preferred a suit for declaration of title and also for declaration of sale deeds executed in favour of defendant Nos. 15 to 21 as null and void. They had also sought decree of permanent injunction.

3.2 The suit property is Kh. Nos. 1092/2, 933, 934 and 109/1 together measuring 17.21 acres, Kh. No. 11/2/1 measuring 4.71 acres and Kh. No. 11/13 measuring 4.63 acres. The said property is situated in the Village Qasba, District Sehore (For brevity, hereinafter referred to as 'suit property').

3.3 The trial court vide its judgment and decree dated 12.01.2004 passed in RCS No. 60-A/1998 decreed the suit partially declaring that the plaintiffs are having title and possession over 1/4 part of the suit property and sale deeds executed in favour of defendant Nos. 15 to 21 are null and void and also granted decree of permanent injunction restraining defendants from interfering into peaceful possession of the share for which plaintiffs are declared as title holders.

3.4 The said judgment and decree dated 12.01.2004 was further assailed by the plaintiffs in Regular Civil Appeal before the Appellate Court under Section 96 of CPC. The said appeal was registered as RCA No. 08-A/2004.

At the same time, the defendant Nos. 15 to 21 had also preferred an appeal challenging the judgment and decree passed by the trial court and the said appeal was registered as RCA No. 09-A/2004. Both the appeals were heard analogously and decided by the First Appellate Court by a common 4 judgment and decree dated 28.06.2004. The First Appellate Court allowed the RCA No. 08-A/2004 decreeing the suit in its entirety and the appeal preferred by the defendant Nos. 15 to 21/appellants i.e. RCA No. 09- A/2004 was dismissed.

4. As per the averments made in the plaint, the case of the plaintiffs before the trial court was as follows:

4.1 The suit property belonged to Moolchand, Motilal, Kanhaiyalal and Kunjilal, who gave the land to Nandlal (predecessor of plaintiffs) as Sikmi Kastkar w.e.f. 15.06.1956 and as such they delivered the possession of the suit property to Nandlal.

4.2 As on 01.01.1959, Nandlal was the Sikmi Kastkar of the suit property whereas on 02.10.1959, M.P. Land Revenue Code, 1959 (for brevity 'Code, 1959') was enforced, but even thereafter from 02.10.1959 to 30.06.1961 Nandlal was in peaceful possession of the suit property in the capacity of Bhumiswami.

4.3 Since the actual land owners/Bhumiswami i.e. Moolchand, Motilal, Kanhaiyalal and Kunjilal did not move any application under Section 189(1) of the Code, 1959 for resumption of their land occupied by Nandlal till 02.10.1960, therefore, Nandlal had claimed that since the application was not filed within one year from the date of enforcement of the provisions of Code, 1959, he had acquired the right of Bhumiswami over the suit property by virtue of Section 190 of the Code, 1959 on 01.07.1961.

4.4 Nandlal expired on 27.11.1980 and thereafter the plaintiffs remained in possession of the suit property in the capacity of Bhumiswami and also 5 considered to be occupancy tenant under Section 185 of the Code, 1959 and that status of Nandlal was converted into Bhumiswami as he had acquired the same in absence of any claim raised by Moolchand, Motilal, Kanhaiyalal and Kunjilal by moving application under Section 189 of the Code, 1959 claiming resumption of their land.

4.5 Moolchand submitted an application against Nandlal before the Tahsildar under Sections 250 and 168 of the Code, 1959 for restoration of possession, but that application was rejected by the Tahsildar vide order dated 01.07.1967 holding that Nandlal is in possession of the land as Sikmi Kastkar and as per Section 185 and 190 of the Code, 1959, he had acquired the status of Bhumiswami right over the suit property.

4.6 Moolchand and his three brothers had also agitated the proceedings under Section 168(4) of the Code, 1959 for recovery of possession from Nandlal but that was rejected by the Sub Divisional Officer vide order dated 31.07.1967, which was later on confirmed by higher appellate court in favour of Nandlal.

4.7 However, in the simultaneous proceedings instituted by Nandlal seeking declaration of Bhumiswami right, the Tehsildar allowed his application declaring him as Bhumiswami over the suit property by order dated 31.12.1966 and that order was later on modified by the Sub Divisional Officer in appeal by order dated 31.07.1967 holding that Ikrarnama executed in the year 1956 and 1958 with respect to suit property was done only by Moolchand regarding his 1/4 share and other three brothers were not the party in the said Ikrarnama and that order was later on confirmed by higher revenue authorities.

4.8 Plaintiffs have claimed that they have already perfected their title and possession over the entire suit property acquiring Bhumiswami rights as per the provisions of Section 185 and 190 of the Code, 1959 way back in the year 1961 against Moolchand and his three brothers and the legal heirs of Nandlal even after the death of Nandlal were in continuous and exclusive hostile possession of the suit property and Moolchand, Motilal, Kanhaiyalal and Kunjilal despite their legal efforts could not obtain the possession of the suit property and therefore they have (plaintiffs) also perfected their title by adverse possession against Moolchand, Motilal, Kanhaiyalal and Kunjilal.

4.9 The sale deeds executed contrary to the rights of Nandlal and his legal heirs (plaintiffs) by other defendants were null and void.

5. The defendant Nos. 1, 2, 3 7 and 13 submitted their joint written statement before the trial court controverting the averments made in the plaint and taken stand that Nandlal preferred an application seeking declaration of Bhumiswami right over the suit property before the Tahsildar, which was allowed declaring him to be Bhumiswami of the suit property but that order of Tehsildar was modified by the Sub Divisional Officer in appeal decided by order dated 31.07.1967 holding that Nandlal can be declared Bhumiswami only in respect of the property of Moolchand i.e. 1/4 share of the property because Ikrarnama was executed only between Moolchand and Nandlal. The other brothers of Moolchand were not party to the said agreement and according to the defendants, the said order of Sub Divisional Officer was affirmed by higher revenue authority.

In addition to that, they had also claimed that the suit was barred by 7 limitation because the plaintiffs had not demonstrated the details of their adverse possession over the suit property and out rightly denied the factum of Sikmi of suit property being given by Moolchand, Motilal, Kanhaiyalal and Kunjilal to Nandlal.

6. The trial court framed 15 issues for adjudication of the dispute and evidence was produced by the parties in support of the issues. The evidence produced was oral as well as documentary.

7. Considering the material placed before the trial court, vide judgment and decree dated 12.01.2004 the trial court partially decreed the suit.

8. As per the finding given by the trial court, the material ingredients for decreeing the suit partially are as under:-

(a) Plaintiffs although had proved their possession over the suit property, but as per the order of the revenue courts, they were only entitled to get declaration for 1/4 share of the property.

(b) The suit preferred by the plaintiffs was not time barred.

(c) The sale deeds executed during the pendency of suit without delivery of possession are null and void against the plaintiffs.

(d) The factum of adverse possession and when it became adverse against the defendants was not proved and therefore that plea of plaintiffs was declined.

(e) The suit of the plaintiffs was decreed holding them entitled and that they had perfected their title only over 1/4 part of the suit 8 property and decree of permanent injunction to that share had been granted, but not on the entire property.

9. Appeals were preferred against the judgment and decree dated 12.01.2004 before the Additional District Judge, Sehore and entertaining the regular civil appeals under Section 96 of CPC, the appellate court vide its common impugned judgment and decree dated 28.06.2004 allowed the appeal preferred by the plaintiffs i.e. RCA No. 08-A/2004 and decreed the entire suit and dismissed the appeal preferred by the defendant Nos. 15 to 21 i.e. RCA No. 09-A/2004. The reasons for dismissal of the appeal of defendant Nos. 15 to 21 and decreeing the suit of the plaintiffs in toto can be gathered from the impugned judgment and decree and the material ingredients of the said impugned judgment and decree are as under:-

(1) That Moolchand, Motilal, Kanhaiyalal and Kunjilal did not make make any endeavour to file any civil dispute after 02.10.1959 uptil 12 years seeking recovery of possession or made any application under Section 190 of the Code, 1959.

(2) That the prior to filing of the civil suit, the actual owners Moolchand, Motilal, Kanhaiyalal and Kunjilal were never in possession of the suit property whereas Nandlal and his legal heirs (plaintiffs) thereafter were found in possession of the suit property for which the appellate court has referred Ex. P/15 to P/19, Ex. P/20 to Ex. P/30, receipts of payment of land revenue and there was no challenge to those documents and evidence produced by the defendants and no evidence in rebuttal was also produced.

(3) The appellate court has also observed that the defendants have purchased the suit property from Moolchand and his brother during the pendency of the trial and only on 22.10.1994, relief of delivery of possession was claimed after 02.10.1959 and the relief claimed by Moolchand and his brothers under Section 168 of the Code, 1959 was denied by the revenue authorities, but they did not prefer any proceeding before the civil court for recovery of possession despite the knowledge and the court found that their counter claim i.e. of defendants Nos. 15 to 21 seeking deliver of possession was barred by time.

(4) The appellate court also considered the statement of PW-1- Hariprasad, who had stated that Nandlal was in possession of the suit property and after his death plaintiffs came in possession of the suit property and this fact was neither rebutted by the defendants in cross-examination nor any suggestion was given by them. The statement of PW-1 Hariprasad was also supported by other witnesses and as such the court found that the plea regarding possession over the suit property was perfected by the plaintiffs over the suit property and as such they had successfully proved their claim holding the possession uninterruptedly and continuously and as such the appellate court had also found that the plaintiffs had otherwise acquired the title over the suit land by virtue of adverse possession.

(5) It is observed by the appellate court that the original Bhumiswami submitted an application under Section 168 and 250 of the Code, 1959 seeking recovery of possession from Nandlal by 10 disputing his possession, but recovery of possession and the claim in that regard was maintainable within a period of 12 years from the date of enforcement of the Code, 1959, however, Bhumiswami had failed to do so by not exercising their rights and therefore, transferring the land in favour of Kishan Yadav and others did not give any right to the purchasers and any title by virtue of said transfer.

(6) It is observed by the appellate court that when original owners did not have any title and possession over the land, therefore, transfer of land by them to the defendants/purchasers is a futile transfer because vendors did not have title and possession over the land and therefore, the appellate court set aside the judgment and decree passed by the trial court holding plaintiffs entitled to the extent of 1/4 share and found that they had perfected their title over the suit land and also observed that they had been in possession of the suit land and, therefore, they were entitled to get decree of permanent injunction too.

Thus, the defendant Nos. 15 to 21 have filed this appeal challenging the impugned judgment and decree dated 28.06.2004 and this Court has admitted the same on the substantial questions of law already quoted hereinabove.

10. Learned counsel for the appellants has submitted that Hari Prasad (PW-1) had admitted the fact that only Moolchand had entered into the agreement (Ikrarnama) with Nandlal but his brothers did not enter into the same and therefore, the judgment and decree passed by the trial court was 11 proper to observe that Nandlal could claim title only over 1/4 share or to the extent of share belonging to Moolchand but not of other brothers. He has also submitted that the suit property does not include Kh. No. 112, but it was the land belonging to Kh. No. 113. He has also submitted that Ex. P/2 and P/4 maintained by Ex. P/3 in which it is held that Moolchand was entitled to get 1/4 in the property and 3/4 share was not given to him at any point of time. He has also drawn attention of this Court towards the finding given by the appellate court in para-11 and 12 of its judgment saying that the same is perverse and no evidence is available on record. He has submitted that the sale deeds were executed on 12.04.1983 that too after filing the suit, which was filed on 13.02.1983.

11. Learned counsel for the appellants has placed reliance upon the judgment reported in 2006 (4) MPHT 75 - Gafoor Khan vs. Sultan Jehan deceased through L.Rs. Rajamiya and others saying that the plea of adverse possession in the facts and circumstances of the case is not sustainable and the finding with regard to perfecting the title by adverse possession is not sustainable.

12. Learned counsel for the appellant has also relied upon a judgment reported in (2020) 15 SCC 218-Narasamma and others vs. A. Krishnappa (dead) through Legal Representatives saying that the inconsistent plea with regard to claiming title by virtue of other right and at the same time by virtue of adverse possession is not maintainable and as such the finding given by the trial court in favour of the plaintiffs perfecting their title by virtue of adverse possession is illegal and deserves to be set aside.

13. In rebuttal to the submission made by the learned counsel for the appellants, learned counsel for the respondents has submitted that the suit land includes Kh. No. 112. He has submitted that the original defendants in their written statement did not deny the pleadings made in para-5 of the plaint and as such the facts mentioned in para-5 of the plaint is considered to be the admitted facts. He has submitted that no appeal was preferred by the original owners but by the purchasers only and they are taking contrary stand to the stand of vendors/original owners and therefore their stand cannot be taken note of. He has also pointed out that the trial court in para- 12 of its judgment has observed about the possession over the entire land but that finding was never challenged by the original owners. He has also pointed out that the defendants witnesses have admitted the fact that Moolchand was the Karta of the family and was managing the suit property. He has also pointed out that the application under Section 250 of the Code, 1959 was filed in the year 1963 indicating that Moolchand was not in possession of the suit property. Therefore, he has submitted that the appellate court has rightly reversed the judgment and decree of the trial court and he has submitted that the fact of possession is concurrent finding of fact and there is no perversity in the said finding and as such the same cannot be disturbed by the court.

14. Learned counsel for the respondents has placed reliance upon the following judgments:

[2002(1) MPLJ 200 - Gowardhan s/o Thawarji vs. Ghasiram deceased through L.Rs. Ramkunwarbai and others in which it has been observed by the Court that persons holding land in the 13 Madhya Bharat region as tenant or sub-tenant who on commencement of Code on 02.10.1959 continuously remained in possession of land entitled to rights of occupancy tenant.

[2020(3) MPLJ 565 - Bhogiram s/o Toran Singh Kirar and others vs. Sher Singh s/o Komal Singh Bhadoriya in which the court has observed that no application under Section 189 for resumption of land held by appellants occupancy tenants, was filed by original Bhumiswami, within a period of one year from the date of coming into force of Code - Bhumiswami rights stood conferred on the persons or their predecessors in title with effect from the agriculture year next following expiry of period for making application for resumption of land.

(2010) 15 SCC 530 - Gurvachan Kaur and others vs. Salikram (dead) through L.Rs. in which the Court in respect of scope of interference in second appeal observed that it is not permissible to interfere in the finding of fact unless it is found perverse.

(2007) 12 SCC 190 - Krishnan vs. Backim and another in which also it is observed by the Supreme Court that the scope of interference under Section 100 by the High Court in second appeal in respect of finding of fact unless it is found perverse, the same cannot be interfered with.

[1998(2) MPLJ 26 - Lal Bahadur Singh vs. State of M.P. - Relying upon this judgment, learned counsel for the respondents has submitted that the decree of adverse possession in the existing facts and circumstances of the present case cannot be disturbed.

(2012) 7 SCC 738 - A. Nawab John and others vs. V.N. Subramaniyam - The Supreme Court has observed about the impact of Section 52 of the Transfer of Property Act, 1882 and held that Section 52 does not protect the right of the purchaser if transfer is pendente lite, but the pendente lite purchaser would be entitled to or suffer same legal rights and obligations of his vendor as may be eventually determined by the court.

[2011(3) MPLJ 44] - Jaiprakash Associates Ltd. Naubasta vs. State of M.P. and others - The High Court has observed about the impact of Section 52 of the Transfer of Property Act, 1882 and held that the tranferee is bound by the order passed against the party from whom the transferee is deriving right, title and interest in the suit property.

15. I have heard the arguments advanced by the learned counsel for the parties on the issue and also perused the record of the court below.

16. So far as the submission made by the learned counsel for the appellants with regard to the fact that the judgment and decree passed by the trial court holding 1/4 share by the plaintiffs as only Moolchand entered into the agreement and his brothers were not is concerned, the statement of PW-1-Hariprasad is required to be seen. From perusal of the statement of Hariprasad (PW-1) it reveals that the suggestion was put before him that in the plaint it is mentioned that the agreement with regard to giving land on Sikmi took place between the Nandlal and Moolchand and in reply to that suggestion, he had stated that if the said fact is mentioned in the plaint, the same would be correct, but later he had stated 15 that the suit land was being managed by Moolchand and the complete suit land was given to Nandlal on Sikmi and as such possession of the land was given to Nandlal and he had been cultivating the land and consequently he was having possession over the suit land, but, at the same time, the witnesses produced during the course of trial although had stated that Moolchand was the Karta of the Family and was managing the suit property. Thus, from the statement of defendants witnesses and even from the statement of the witnesses of the plaintiffs, it is clear that Moolchand was managing the affairs of the suit property on behalf of his brother and was also looking-after the litigation relating to the suit property. The fact about handing over the possession of the suit land to Nandlal was not rebutted and it remained uncontroverted. The trial court in its judgment discussing about the possession of the plaintiffs over the suit property has found that on the basis of material available and considering the evidence of witnesses, it is proved that the plaintiffs were in possession of the suit property. The following observation has been made by the trial court in paragraph-12 of its judgment:-

^^pwafd bl laca/k esa izfroknhx.k us Hkh og vLohdkj ugha fd;k gS fd oknxzLr Hkwfe ij orZeku esa oknhx.k dkfct u gksA bl dkj.k bl rF; ls badkj ugha fd;k tk ldrk fd oknxzLr laiw.kZ Hkwfe ij oknhx.k dk dCtk u gksA^^ It is pertinent to mention that the above finding of the trial court has also been affirmed by the appellate court. It is further pertinent to mention that the original owners have never preferred any appeal against the said judgment and decree. It was the purchasers, who purchased the suit property during the pendency of suit, had challenged the said judgment and decree by filing appeal. Thus, it is clear that the sale deeds though 16 were executed in favour of present appellants but possession of the suit land was never handed over to them because the sale deeds were said to be executed on 12.04.1983 and the suit was filed on 13.02.1982. There were litigation before the revenue authorities; orders were passed; civil suit was filed; original owners were out of the possession and since they did not approach the revenue authorities in time therefore, just to get rid of the dispute with regard to claiming ownership over the suit land, they executed the sale deeds in favour of the present appellants. The appellate court has observed that the possession of the land was never given to the present appellants. From the circumstances existing in the present case and considering the evidence produced, it is clear that although the agreement did not contain the signatures of other brothers but even otherwise the land owners had never approached the revenue authority after enforcement of the Code, 1959 and not claimed resumption of land within the period of limitation by moving an application under Section 190 of the Code, 1959.

17. The legal position on such issue has been laid down by the High Court in the case of Bhogiram (supra) observing that if application by the original land owners is not filed within a period of one year from the date of enforcement of the Code, 1959 for resumption of possession, the Bhumiswami right stood conferred on the person possessing the land. The High Court in paragraphs 22 to 29 has observed as under:-

"22. In the present case, it is not the case of any party that the original owner namely J.P. Shrivastava had ever filed any application for resumption of land held by his occupancy tenant i.e., the appellants/defendants. Thus, as no application under section 189 of M.P.L.R. Code was filed by original Bhumiswami for resumption of his land within a period of one year 17 from the date of coming into force of the Code, therefore, the rights of Bhumiswami shall accrue to the occupancy tenant in respect of the land held by him from such Bhumiswami with effect from the commencement of the agricultural year next following the expiry of the aforesaid period. Thus, as the original Bhumiswami, namely J.P. Shrivastava, did not file any application for resumption of land within a period of one year from the date of coming into force of the Code, then the Bhumiswami rights stood conferred on the appellants/defendants or their predecessor(s) in title w.e.f. the commencement of the agricultural year next following the expiry of period for making application for resumption of land. Thus, it is clear that since, the one year for making application for resumption of land had expired in the year 1960, therefore, the appellants/defendants or their predecessor(s) in title became Bhumiswami in the year 1961 because not only the appellants/defendants or their predecessor(s) in title were in possession of the land but the period of original lease had also not expired. The co-ordinate Bench of this Court in the case of Gowardhart v. Ghasiram deceased through L.R. s, reported in (2002) 1 MP LJ 200 has held as under:

"19. As per the clear provisions of section 185 of the M.P. Land Revenue Code, 1959 every person who at the coming into force of this Code holds any land as a sub-tenant or tenant, only such persons who continuously possess any such land as a tenant or subtenant on the commencement of the code are entitled under section 185(1), sub-clause (i)(a) to

(d) to claim the status of occupancy tenant and thereafter by virtue thereof acquired rights of Bhumiswami in accordance with provisions of section 190 of the Code. Therefore, it was the burden on the appellant/defendant to prove that on 2-10-1959 he was holding the land or was in possession as a tenant or sub-tenant provided either under the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act, 1954 or Madhya Bharat Ryotwari sub-lessee Protection Act, 1955 or Madhya Bharat Abolition of Jagirs Act, 1951 or Madhya Bharat Zamindari Abolition Act, 1951 and 18 for that under Clause (ii) the words "actual possession of a sub-tenant is important." Obviously the intention of section 185(i), (ii) of the Code is to give occupancy rights to those who were holding lands when the Code came into force. In this case the rights of the appellant/defendant are not protected by section 185 of the Code on the ground that even if it is taken into consideration that a Patta was granted for a period of one year in Samvat 2004 and in Samvat 2005 a suit was filed for taking possession back from the lessee Pattedar and when the appellant was not in possession in the land in dispute right from 30-6-1948 to 1967, he cannot claim any right on the basis of the aforesaid Patta for a period of one year."

23. In the present case, in fact the findings of fact recorded by trial Court, with regard to execution of a patta(s) Ex. D-6 and D-7, in favour of appellants/defendants or their predecessor(s) in title, and their possession till 1962, is in favor of the appellants. Therefore, none of the findings of facts recorded by the Courts below are being disturbed.

24. Since, the question that whether the tenant was in possession of the land in dispute on 2-10-1959 or not and whether the original Bhumiswami had filed an application for restitution of land or not are two important aspects for ascertaining the fact that whether the tenant had acquired the rights of Bhumiswami or not? Since, both the questions of facts were answered by the trial Court in favor of the appellants, therefore, the trial Court was wrong in holding that the appellants would not acquire Bhumiswami rights by force of law.

25. As the appellants/defendants or their predecessors) in title had already acquired the rights of a Bhumiswami in the year 1961, therefore, the trial Court committed material illegality by dismissing the case of the defendants on the ground that they have failed to prove their possession over the land in dispute. The observation made by the trial Court in para 28 of its judgment that the appellants would not get any rights merely by force of law is erroneous.

26. So far as the contention of the Counsel for the respondents that the appellants should have filed a separate appeal against the dismissal of their counter- claim is concerned, this Court has gone through the memo of appeal filed by the appellants before the First Appellate Court. It was a combined memo of appeal and in the prayer clause, the appellants had also sought declaration of their title. Thus, in fact, the dismissal of counter-claim was also challenged by the appellants. Even otherwise, the defence of the appellants and their counter-claim was based on similar facts. Thus, this submission made by the Counsel for the respondents is rejected.

27. So far as the contention of the Counsel for the respondents, that the lease was granted by J.P. Shrivastava vide Ex. D-6 and D-7 for limited purposes is concerned, it is suffice to say that this Court is only required to consider that whether there was any lease/patta in favour of the appellants/defendants or their predecessor(s) in title or not? No exception has been carved out in the Madhya Bharat Zamindari Abolition Act, or Madhya Bharat Land Revenue and Tenancy Act or M.P.L.R. Code. Thus, once, it is proved that there was a patta Ex. D-6 and D-7 in favour of the appellants/defendants or their predecessor(s) in title, then their claim of acquisition of Bhumiswami rights under section 158, 190 of M.P.L.R. Code cannot be frustrated. Further more, there is nothing in Patta Ex. D-6 and D-7 to indicate, that the same was granted for limited purposes only. Further more, it is not the case of the respondents that license was granted to the appellants/defendants or their predecessor(s) in title.

28. Therefore, this Court is of the considered opinion, that the Courts below have failed to consider the provisions of law as well as the fact that since by virtue of lease deed, Ex. D/7, the appellants/defendants or their predecessor(s) in title were in possession of the land in dispute in the year 1961, therefore, they had acquired the Bhumiswami rights.

29. Accordingly, it is held that since, the appellants/defendants or their predecessor(s) in title had acquired the rights of a Bhumiswami in the a year 20 1961, therefore, the respondents would not get any right or title by virtue of sale deed dated 28-7-2008 Ex. P/4, as their sellers had no right or title in them. It is hereby declared that the appellants/defendants are the owners and in possession of the land in dispute which is in their possession respectively."

At the same time, it is also clear that indisputably the plaintiffs were in possession of the suit land at the time of enforcement of the Code, 1959 and thereafter also and as such as per the provisions of Section 185 of the Code, 1959, they became the occupancy tenant and the observation made by the High Court in the case of Gowardhan (supra) is material in this regard, which is as under:

"18. Section 185 of the M.P. Land Revenue Code, 1959 categorised the persons who shall be recorded a occupancy tenant. Sub-clause (ii) of section 185 provides as under:--

"(ii) in the Madhya Bharat region:--

(a) any Inam land as a tenant, or as a sub-tenant or as an ordinary tenant; or Explanation:-- The expression Inam land shall have the same meaning as assigned to it in the Madhya Bharat Muafi and Inam Tenants and Sub-Tenants Protection Act, 1954 (32 of 1954).

(b) any land as Ryotwari sub-lessee defined in the Madhya Bharat Ryotwari Sub-Lessee Protection Act, 1955 (29 of 1955); or

(c) any Jagir land as defined in the Madhya Bharat Abolition of Jagirs Act, 1951 (28 of 1951), as a sub- tenant or as a tenant of a sub-tenant; or

(d) any land of a proprietor as defined in the Madhya Bharat Zamindari Abolition Act, 1951 (13 of 1951), as a sub-tenant or as a tenant of a sub-tenant; or."

19. As per the clear provisions of section 185 of the M.P. Land Revenue Code, 1959 every person who at 21 the coming into force of this Code holds any land as a sub-tenant or tenant, only such persons who continuously possess any such land as a tenant or sub- tenant on the commencement of the Code are entitled under section 185(i), sub-clause (ii) (a) to (d) to claim the status of occupancy tenant and thereafter by virtue thereof acquired rights of Bhumiswami in accordance with provisions of section 190 of the Code. Therefore, it was the burden on the appellant/defendant to prove that on 2-10-1959 he was holding the land or was in possession as a tenant or sub-tenant provided either under the Madhya Bharat Muafi and Inam Tenants and Sub-Tenants Protection Act, 1954 or Madhya Bharat Ryotwari Sub-Lessee Protection Act, 1955 or Madhya Bharat Abolition of Jagirs Act, 1951 or Madhya Bharat Zamindari Abolition Act, 1951 and for that under clause (ii) the words "actual possession of a sub-tenant is important." Obviously the intention of section 185(i)

(ii) of the Code is to give occupancy rights to those who were holding lands when the Code came into force. In this case the rights of the appellant/defendant are not protected by section 185 of the Code on the ground that even if it is taken into consideration that a Patta was granted for a period of one year in Samvat 2004 and in Samvat 2005 a suit was filed for taking possession back from the lessee Pattedar and when the appellant was not in possession in the land in dispute right from 30-6-1948 to 1967, he cannot claim any right on the basis of the aforesaid Patta for a period of one year.

20. In the case of Nathu Prasad v. Ranchhod Prasad, reported in (1969) 3 SCC 11 : AIR 1970 SC 483, it has been held as under:--

"A person inducted as a sub-lessee contrary to the provisions of section 73 of Act 66 of 1950 did not therefore acquire any right under a contract of sub- letting, and his possession was not protected under Act 29 of 1955. Such a person is not a ryotwari sub-lessee as defined in Act 29 of 1955 and it is only on 'Ryotwari sub-lessee' as defined in that Act that the right of occupancy tenant is conferred by section 22 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code."

21. Therefore, in view of the aforesaid discussions it is clear that the appellant/defendant did not acquire any Bhumiswami rights under section 185 of the Code as he was not holding the land and the lands in dispute did not remain in possession upto 2-10-1959 and even if Patta granted to the appellant for a period of one year and the restitution suit for possession was filed in Samvat 2005 and interim possession was given to the Respondent under the relevant Laws which were prevalent in Samvat 2004 (1947) there was no bar for grant of Patta. Therefore, the appellant/defendant cannot claim the acquisition of occupancy rights in his favour and the matter stands concluded by the finding of facts recorded by the two Courts below and there cannot be a case regarding perfection of title in favour of Daula, predecessor of Gowardhan. Hence, the question No. 1 answered accordingly.

22. As regards second question about the sale effected by Lacchibai and the legal representatives of Punnibai in favour of Respondent Ghasiram whether hit by the doctrine of lis-pendens. For this question the submission of the learned counsel for appellant is that the alleged sale has taken place on 23-5-1958 during the pendency of the restitution proceedings before the Tehsildar which was filed on 14-4-1954. Section 52 of the Transfer of Property Act creates only a right to be enforced to avoid a transfer made pendente lite, because such transfers are not void but voidable and that too at the option of the affected party to the proceedings. The only effect of the doctrine of lis pendens on the sale transaction is to make it subject to the decree or order to be passed in the suit. The rights obtained by way of transfer during the pendency of suit are subservient to the rights of the transferor and binds the transferee in the same manner in which the transferor is. Therefore, as submitted by the learned counsel for appellant that by virtue of doctrine of lis pendens the sale effected would be void. As the two Courts have' already held that the Respondent/plaintiff has acquired rights by virtue of sale-deed dated 23-5- 23 1958. The first Appellate Court has held that the proceedings under section 326 of Kanoon Mal Gwalior is a summary proceedings for recovery of possession. The proceedings are analogous to proceedings under section 9 of the Specific Relief Act. The questions of title are not decided in those proceedings. Any decision in that proceedings is subject to decision about title by Civil Court. Consequently the dismissal of the said proceedings in default would not affect the right, title or interest of any party in suit, because those rights are to be finally decided by the Civil Court."

18. The appellate court in its judgment and decree has observed that the Tahsildar in his order declared the plaintiffs as Bhumiswami of the suit land as per the provision of Section 190 of the Code, 1959 and thereafter an application under Sections 160 and 250 of the Code, 1959 was filed by the original owners for resumption of possession but that application was rejected by the revenue authority. It was held in favour of the plaintiffs that they could not be dispossessed from the suit property because they had acquired the Bhumi Swami right over the suit property and even after coming into force the Code, 1959 on 02.10.1959, none of the original owners had raised any claim with regard to resumption of possession of the land and even not moved any application under Section 190 of the Code, 1959 to claim possession over the suit land. The appellate court has also considered the documents Ex. P/6 to P/9 and found that Moolchand had received the share of crops cultivated in the said land and as per the appellate court, it otherwise indicated that Moolchand on behalf of his other brothers was also taking share and as such he was the only person, who was looking-after the suit land on behalf of his family. The appellate court has also observed that the documents Ex. P/15 to P/19 revealing that from 1964 till 1969 Nandlal was in possession of the suit land and as has 24 also been observed by the trial court, the possession of Nandlal was perfected over the suit land. Ex. P/20 to P/30 are receipts of payment of land revenue, but nothing was rebutted and possession of Nandlal was perfected continuously. However, the plea of adverse possession, in my opinion, is not sustainable and the decree in that regard is also not proper for the reason that admittedly an agreement was executed between the parties and possession over the suit land was given to Nandlal by Moolchand and that possession was nothing but a permissive possession and as such claiming title by virtue of that possession on the one hand when title was claimed on the ground that the plaintiffs became Bhumiswami by virtue of the provision of Code, 1959 and on the other hand claiming adverse possession is just a contrary stand taken by the plaintiffs and in the light of the legal position and the judgments on which the appellants have placed reliance and even otherwise when the possession of the land was permissive, the decree of declaration by virtue of adverse possession cannot be granted and as such the said finding of appellate court is not sustainable and, in my opinion, it deserves to be set aside. However, with regard to finding of fact about possession and also the fact that the original owners had not claimed any right over the suit property after enforcement of the Code, 1959 and that when plaintiffs had acquired the status of occupancy tenant and no approach was made by the original owners within the appropriate time for resumption of land and as such plaintiffs have acquired the status of Bhumiswami as per the provisions of Section 190 of the Code, 1959, which reads thus:-

"190. Conferral of Bhumiswami rights on occupancy tenants. - (1) Where a Bhumiswami whose land is held by an occupancy tenant *[belonging to any of the categories 25 specified in sub-section (1) of Section 185 except in items

(a) and (b) of clause (i) thereof] fails to make an application under sub- section (1) of Section 189 within the period laid down therein, the rights of a Bhumiswami shall accrue to the occupancy tenant in respect of the land held by him from such Bhumiswami with effect from the commencement of the agricultural year next following the expiry of the aforesaid period.

(2) Where an application is made by a Bhumiswami in accordance with the provision of sub-section (1) of Section 189, the rights of a Bhumiswami shall accrue to the occupancy tenant in respect of the land remaining with him after resumption, if any, allowed to the Bhumiswami with effect from the commencement of the agricultural year next following the date on which the application is finally disposed of.

*[(2-A) Where the land of a Bhumiswami is held by an occupancy tenant other than an occupancy tenant referred to in sub-section (1), the rights of a Bhumiswami shall accrue to the occupancy tenant in respect of such land-

(a) in the case of occupancy tenants of the categories specified in items (a) and (b) of clause

(i) of sub-section (1) of Section 185, with effect from the commencement of the agricultural year next following the commencement of the Principal Act;

(b) in any other case, with effect from the commencement of the agricultural year next following the date on which the rights of an occupancy tenant accrue to such tenant.] (3) Where the rights of a Bhumiswami accrue to an occupancy tenant under sub-section (1), sub-section (2) *[or sub-section (2- A)] such occupancy tenant shall be liable to pay to his Bhumiswami compensation equal to fifteen times the land revenue payable in respect of the land in five equal annual instalments, each instalment, being payable on the date on which the rent payable under Section 188 for the corresponding year falls due, and if 26 default is made in payment, it shall be recoverable as an arrear of land revenue :

Provided that if from any cause the land revenue is suspended or remitted in whole or in part in any area in any year, the annual instalment of compensation payable by an occupancy tenant holding land in such area in respect of that year shall be suspended and shall become payable one year after the last of the remaining instalments.

(4) Any occupancy tenant may at his option pay the entire amount of compensation in a lump sum, and where an occupancy tenant exercise this option, he shall be entitled to a rebate at the rate of ten per cent.

(5) The amount of compensation, whether paid in lump sum or in annual instalments, shall be deposited in such manner and form as may be prescribed by the occupancy tenant with the *[Tahsildar], for payment to the Bhumiswami.

(6) Where the rights of a Bhumiswami in any land accrue to an occupancy tenant under this section, he shall be liable to pay the land revenue payable by the Bhumiswami in respect of such land with effect from the date of accrual of such rights."

Thus, from the above it is clear that it is an admitted position that after coming into force the provisions of Code, 1959, the original owners did not move any application under sub-section (1) of Section 189 of the Code, 1959 for resumption of possession of the land from the occupancy tenants and as such they became the Bhumiswami. It has already been observed that the plaintiffs have acquired the status of occupancy tenant as per Section 185 of the Code, 1959 because at the time of enforcement of the provisions of the Code, 1959 they were in possession of the land and as per the legal position, as has been laid down by the High Court and has been considered hereinabove, the status of the occupancy tenant was acquired by the plaintiffs and therefore, it was obligatory for the original 27 owners to move an application under sub-section (1) of Section 189 of the Code, 1959 for resumption of their land from occupancy tenant, but nothing was done. Sub-section (1) of Section 189 of the Code, 1959 reads as under:-

"(1) A Bhumiswami whose land is held by an occupancy tenant *[belonging to any of the categories specified in sub-section (1) of Section 185 except in items (a) and (b) of clause (i) thereof] may, if the area of land under his personal cultivation is below twenty-

five acres of unirrigated land, within one year of the coming into force of this Code, make an application to the Sub-Divisional Officer for resumption of land held by his occupancy tenant for his personal cultivation."

19. From the above, it is clear that undisputably within a period of one year there was no such application moved by the original Bhumiswami against the plaintiffs and as such by virtue of operation of law, as has been provided under Section 190 of the Code, 1959, the plaintiffs became the Bhumiswami and in consequence thereof original Bhumiswami had lost their right over the suit land and further in view of the judgment and decree passed by the appellate court it is evident that the court had found that the possession was there with the plaintiffs continuously and any transfer made in between in favour of the present appellants did not give any right to them over the suit property because the said sale deeds by the original Bhumiswami (vendors of the present appellants) did not have any right and title over the suit land and the sale deeds were rightly held to be null and void and illegal. The original owners had also not come forwarded to protect their interest after the judgment and decree passed by the trial court and therefore, when rights of the original Bhumiswami was not determined by the court over the suit land and their title was not perfected, 28 the present appeal on behalf of the purchasers seeking declaration about the validity of the sale deeds in the facts and circumstances has no substance.

The Supreme Court has laid down the law with regard to scope of interference by the Courts in a second appeal filed under Section 100 of CPC.

In Damodarlal (supra), the Supreme Court has observed as under:-

"8. "Perversity" has been the subject-matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.

9. In Krishnan v. Backiam, (2007) 12 SCC 190, it has been held at para 11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."

10. In Gurvachan Kaur v. Salikram, (2010) 15 SCC 530 : (2013) 2 SCC (Civ) 113, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be 29 perverse. This being the position, it must be held that the High Court [Salik Ram Boloram Mehar v.

Guruvachan Kaur, 2000 SCC OnLine MP 340] was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."

In Krishnan (supra), the Supreme Court has observed as under:-

"10. Under the amended Section 100 CPC the High Court has to frame substantial questions of law and can decide the second appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the first appellate court that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse.

11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the first appellate court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the first appellate court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court."

20. This Court also thinks it proper to mention here that the original owners of the land had contested the suit, but after passing the decree by the trial court, they did not file any appeal and even after the impugned 30 judgment and decree passed by the first appellate court, only the purchasers, present appellants, have preferred these appeals. As per the facts of the case and considered by this Court that the possession with regard to the suit land was admittedly with the respondents and both the courts have given finding in that regard in favour of the respondents/plaintiffs. Thus, it is also clear that although the sale deeds were executed during the pendency of suit, but possession of the suit land was not given to the present appellants and as such it is clear that at the time of transfer the possession was not with the ostensible owners and this Court can considered that the present appellants are not the bonafide purchasers and therefore, they are not entitled to get any protection as per Sections 41 and 52 of the Transfer of Property Act, 1882. The Supreme Court in the case of Chander Bhan (D) Through Lr. Sher Singh vs. Mukhtiar Singh and others reported in 2024 SCC OnLine SC 761 has observed as under:

"15. In order to appreciate the rival contentions of the parties, it will be appropriate to reproduce the relevant provisions of the Transfer of Property Act, 1882, the benefit of which is being claimed by both the parties. Section 41 of the Act of 1882 which governs the principle of bonafide purchaser for valuable consideration is reproduced below:

"41. Transfer by ostensible owner. - Where with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:

Provided that the transferee, after taking reasonable care to ascertain that the transferor 31 had power to make the transfer, has acted in good faith."

Similarly, Section 52 of the Act of 1882 governs the principle of list pendens and is reproduced below:

"52. Transfer of property pending suit relating thereto.- During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government, of [any] suit or proceeding [which is not collusive and] in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

[Explanation.-For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]"

21. Once it has been held that the transactions executed by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents 1-2 that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 of the Act of 1882 is liable to be rejected."

21. In view of discussion made hereinabove and also taking note of the law laid down by the Supreme Court and also by the High Court on the issue in the cases referred hereinabove, there is no occasion for this Court 32 to interfere in the concurrent finding of fact about possession, especially when appellants failed to prove any perversity in the said finding. The original owners even after knowing about the fact of possession by the plaintiffs over the suit land, after enforcement of the provisions of Code, 1959, did not make any application claiming resumption of their land from the occupancy tenant and as a consequence thereof, the plaintiffs, in pursuance to the provision of Section 190 of the Code, 1959, became the Bhumiswami. Thus, in my opinion, nothing wrong has been committed by the appellate court and hence the judgment and decree passed by the appellate court in pursuance to the substantial questions of law framed by the Court, I have no hesitation to say that appellants failed to prove any substantial question of law so as to disturb the impugned judgment and decree.

22. Ex-consequentia, appeals being without substance are hereby dismissed. However, looking to the facts and circumstances of the case, there shall be no order as to costs.

(SANJAY DWIVEDI) JUDGE Raghvendra RAGHVENDRA SHARAN SHUKLA 2024.12.20 19:16:56 +05'30'

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