Indian Kanoon - Search engine for Indian Law

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 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.

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 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:

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 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:-

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 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:-