Madhya Pradesh High Court
The State Of Madhya Pradesh vs Balwant Singh (Decd.) Thr. Lrs Dhan ... on 6 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1005
Author: Vivek Rusia
Bench: Vivek Rusia
-1- SA No.2216/2018
HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
SECOND APPEAL NO.2216/2018
(State of M.P vs. Balwant Singh s/o Jaswant Singh Rajput &
others)
06.09.2019 (INDORE):
Shri Vinay Puranik, learned Panel Lawyer for the
appellant.
Shri Sunil Jain, learned Senior Counsel with Shri
Kushagra Jain for the respondents.
Heard on IA No.9028/18, an application for
condonation of delay in filing this appeal. The appeal is
barred by 3701 days.
ORDER
Learned counsel for the State submits that initially the suit filed by the respondent Balwantsingh was decreed by the trial Court in his favour. Thereafter the State Govt. preferred a first appeal and the same was allowed. Thereafter, plaintiff preferred a second appeal No.597/98 and the matter was remanded back to the first appellate Court for rehearing vide order dated 07.02.2008. However, the OIC could not follow up the matter due to his involvement in the Assembly election in the State of Madhya Pradesh in November, 2008. The counting was concluded on 08.12.2008 and thereafter due to frequent transfer of the officers the matter could not be followed. On 27.07.2013 when the plaintiff filed a certified copy of the judgment and decree along with an -2- SA No.2216/2018 application for mutation in the office of Tehsildar, Piploda they came to know about the said judgment and decree and immediately letter was written to the higher officials for obtaining necessary permission. The concerned officer wrote a letter to the Collector, Ratlam on 24.04.2015 and thereafter sought the opinion from the office of A.G.P for filing the second appeal. The file was sent to the higher authorities for getting the approval on 13.12.2017. On 15.12.2017 the Collector wrote a letter to the Principal Secretary (Revenue).
2. Learned counsel for the appellant submits that the plaintiff has not filed any document in respect of title and he succeeded before the Court on the basis of oral evidence, therefore, the appellant has got a prima facie case and hope to succeed in appeal. The delay caused was beyond the control of the appellant, hence the delay being bona fide the same be condoned.
3. Learned Senior Counsel for the respondents filed a reply to the application for condonation of delay by submitting that the appellant has utterly failed to explain the delay from the year 2008 to 2013. Even the judgment and decree dated 01.05.2008 came to the knowledge of the appellant in the year 2013 but they took five years to file the second appeal, therefore, appeal is hopelessly barred by limitation. The plaintiff has perfected the title under the provisions of the M.P Land Revenue Code. Both the Courts below have concurrently recorded the findings in favour of -3- SA No.2216/2018 the plaintiff. The appellant/defendant has failed to produce any document to establish that the land in dispute is a government land, hence the delay is not liable to be condoned and the appeal be accordingly dismissed.
4. Admittedly, the appeal is barred by 3701 days. The appeal filed by the State against the judgment and decree dated 23.11.1995 has been dismissed vide judgment dated 01.05.2008. Thereafter, no steps have been taken for filing the second appeal before this Court. According to the plaintiff on 27.07.2013 the plaintiff submitted the certified copy of the judgment along with an application for mutation, therefore, it was come to the knowledge of the government authorities about the dismissal of the appeal in the year 2013. When this fact came to the knowledge of the appellant in the year 2013 even then this second appeal is filed in the year 2018, therefore, the appellant has failed to explain the delay properly. Even no action has been taken against the erring official who have caused the delay in filing the second appeal.
5. In the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbaireported in (2012) 5 SCC 157, the Apex Court has considered the scope of section 5 of the Limitation Act in the cases where the State and its agencies/instrumentalities are party. The Apex Court has held that no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its -4- SA No.2216/2018 agencies / instrumentatilities. Para Nos. 19 to 26 of the said judgment are reproduced below:
19 In P.K. Ramachandran v. State of Kerala ,(1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that:
the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statutes prescribes and the Courts have no power to extend the period of limitation on equitable grounds.
20 In Vedabai v. Shantaram Baburao Patil ,(2001) 9 SCC 106, the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.
21 In State of Nagaland v. Lipok AO (supra), the Court referred to several precedents on the subject and observed that the proof of sufficient cause is a condition precedent for exercise of discretion vested in the Court.
8.What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. 22 The Court also took cognizance of the usual bureaucratic delays which takes place in the functioning of the State and its agencies/instrumentalities and observed:
13.Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-
making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts,therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal.
23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression s ufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bonafides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be -5- SA No.2216/2018 concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies /instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.
26. In the light of the above, it is to be seen whether the explanation given by the respondent for condonation of more than 7 years and 3 months delay was satisfactory and whether the learned Single Judge of the High Court had correctly applied the principles laid down by this Court for the exercise of power under Section 5 of the Limitation Act.
6. Hence, appellant has utterly failed to explain the inordinate delay properly.
7. Even so far the merit of the case is concerned, respondent/plaintiff filed the civil suit seeking the relief of declaration and permanent injunction in respect of land bearing survey No.101 area 3.861 Aari of Gram Sarsana. According to the plaintiff the land was belonging to the then Jagirdar Chainsingh, who gave it to the father of the plaintiff for cultivation in the year 1932. After abolition of the Jagirdari System the father of the plaintiff in the year 1932 and since thereafter the plaintinff is in possession, therefore, he has acquired the tile of Bhumiswami by virtue of the provisions of the M.P Land Revenue Code, 1959.
8. By virtue of Section 158 of the MPLRC, every person who at the time of coming into force of this Code, shall be called a Bhumiswami if the lands held by him in Madhya Bharat region as 'Pakka Tenant' or as a 'Muafidar', Inamdar' or Concessional holder as defined in Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007.
-6- SA No.2216/2018Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007 defines 'Pakka' tenant", 'Maufidar' and'Inamdar', as under :
"54 (vii) Pakka tenant means a tenant who hasbeen or whose predecessor in interest had been lawfully recorded in respect of his holding as a"Ryot Pattedar", "Mamuli Maurusi", "Gair Maurusi" and "Pukhta Maurusi" when this Act comes into force ....."
Section 54(xix) defines 'lands' as under :-
"54(xix). Lands - means lands which is let or held for growing of crops, or as grove lands or for pasturage............".
Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007 was made applicable in respect of lands held by any person for growing of crops, etc., hence, the provisions of the said Act would not apply to the suit lands held by predecessors of the plaintiff for the purpose of Mill. Therefore, the father of the plaintiffs was not 'Pakka tenant' or 'Maufidar' or 'Inamdar' as defined in Madhya Bharat Lands Revenue and Tenancy Act, Samvat 2007, hence plaintiffs cannot become Bhumiswami u/s. 158 of the MPLRC.30.So far as applicability of Section 185 of the MPLRC is concerned, every person who at the time of coming into force of this Code holds the lands of a proprietor as defined in Madhya Bharat Zamindari Abolition Act, 1951 as a sub-tenant or as a tenant of a sub-tenant, would be called as "Occupancy Tenant"..Therefore, u/s. 185 of the MPLRC, only a sub-tenant or the tenant of sub-tenant of a property is entitled to get the status of"occupancy tenant".31.Section 38 -7- SA No.2216/2018 of Zamindari Abolition Act, 1951 confers power of 'Pakka' tenancy, right of the tenant and sub-tenant. As held above, these rights are available only to 'Krishak' if the land is held for agricultural purposes as tenant or sub-tenant.
9. The Supreme Court of India in the case of Gordhan Das vs. Pirkhan (2002) 1 SCC 686, in which it is held that where sub tenant had been in continuous possession of the lands prior to coming into force of the Zaminder Abolition Act becomes a 'Pakka' tenant under section 38 of the Zamindar Abolition Act.
10. The defendant came up with the plea that the plaintiff is an encroacher and the proceedings under section 248 of the MPLR Code were initiated against him in the year 1992 and a fine of Rs.100/- was imposed. The land was not given on lease to the plaintiff by the Jagirdar. After appreciating the evidence the trial Court has decreed the suit in favour of the plaintiff by holding that he has acquired the title of Bhumiswami.
11. The present appellant/defendant did not produce any documentary as well as oral evidence. In appeal the defendant filed an application under Order 41 Rule 27 CPC for bringing some additional documents on record i.e. Khasra Panchshala for the year 1957-58 to 1979-80 and 1983-84. These documents were available with the defendant/State but they failed to give any reason as to why the same were not produced before the trial Court, therefore, the first appellate Court has rightly rejected the application -8- SA No.2216/2018 under section 41 Rule 27 CPC. Both the Courts below have concurrently held that the plaintiff has acquired the title by way of adverse possession.
12. In second appeal the High Court can interfere with the judgment and decree passed by the subordinate Courts only on a question of law much less substantial question of law. The finding of fact recorded by the Courts below are not liable to be interfered with unless the same are perverse.
13. The apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:
5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
6. If the question of law termed as a substantial ques-
tion stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be -9- SA No.2216/2018 arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.
14. In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:
16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.
15. Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:
"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a -10- SA No.2216/2018 conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.
18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."
16. Hence, even on merit the appellant has no prima facie case. In view of the above, the application IA No.9028/18 seeking condonation of delay is hereby dismissed. Consequently, the appeal is also dismissed.
(VIVEK RUSIA) JUDGE Digitally signed by Hari Kumar Nair Date: 2019.09.09 18:28:20 +05'30' hk/