JUDGMENT S.T. Kharche, J.
Page 1601
1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the unsuccessful plaintiffs takes an exception to the judgment dated 5.8.1987 and decree passed by the learned District Judge, Wardha, in Regular Civil Appeal No. 79 of 1984 whereby the appeal has been dismissed and the judgment and decree passed by the trial Court on 31.3.1984 in Regular Civil Suit No. 48 of 1973 was confirmed by which the suit instituted by the plaintiffs for possession and damages has been dismissed.
2. Brief facts are required to be stated as under:
Agricultural land bearing Survey No. 105/3-K, area 4.15 acres, situated at mouza Ashti, district Wardha was previously owned by Ashti Ginning Factory. This land was shown in green boundaries in the plaint map. The said Ginning Factory carried its business till the year 1912. Thereafter it went into liquidation as per the order of the District Judge, Wardha and the above land along with the buildings and machineries were auctioned on 2.11.1913. Shrimant Bhagwant Atmaram Dhongadi, the father of plaintiffs No. 1 and 2 and husband of plaintiff No. 3 purchased the said land in auction for Rs. 8,450/-. Narayan Ramsa Dhole, Pleader at Arvi, was appointed as Liquidator and he executed the sale-deed in favour of Bhagwant Dhongadi. He delivered possession of the land and buildings with the machineries etc. to the purchaser who continued to remain in possession till his death. Bhagwantrao died in the year 1960 and thereafter it is contended that the plaintiffs have inherited the said property and came in exclusive possession of the said land. Further the mutation entries were also recorded. In 1951-52 the land comprised in Kh. No. 105/3ka was entered as Nazul land thereby Page 1602 meaning that the land had vested in the State Government. It is contended by the plaintiffs that the said entry was recorded without hearing Bhagwantrao and, therefore, the subsequent entries recorded in Nistar Patrak and record of rights prepared in the year 1958-59 is bad in law. Therefore, the plaintiffs made an application to the Tahsildar Arvi for correction of the entries and recording them as owners of the land who submitted his report to the Sub Divisional Officer, Arvi. The Sub Divisional Officer on 16.10.1961 passed an order that the revenue record be corrected by showing the plaintiffs as owners of the aforesaid land. The said order was the subject matter of Revision before the Collector who by his order dated 27.6.1962 held that the names of the plaintiffs be shown in the Nistar Patrak who would be entitled for settlement under Section 5(a) of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienate Lands) Act, 1950 (for short the Act).
3. The defendant had unauthorizedly constructed Ashti-Durgwada Road through the said suit land and also constructed one Rest House and Building for the office use on that land and made encroachments. Ultimately, notice under Section 80 of the Code of Civil Procedure was served claiming possession of the site under encroachment, but in vain. Therefore, the plaintiffs were constrained to file suit for possession of the dispute site.
4. The defendant combated the claim of the plaintiffs and contended that the suit property was never the property of Bhagwantrao. It was a Nazul land and had rightly vested in the State as per the Act. The Collector by exercising revisional jurisdiction has observed that the plaintiffs would be entitled for settlement in view of Section 5(a) of the Act and they are not entitled for possession as it was Abadi land prior to its sale and continued to be so which vest in the State and, therefore, the suit is liable to be dismissed.
5. The trial Court on appreciation of the evidence dismissed the suit. The plaintiffs being aggrieved by the judgment and decree carried appeal to the District Court and the learned District Judge dismissed the appeal on 5.8.1987. It is this judgment and decree which has been challenged in this appeal.
6. Mr. Ahirrao, learned Counsel, for the plaintiff contended that as per Section 3 of the Act which deals with vesting of proprietary rights in the State requires a notification to be issued by the State Government in that behalf and without such notification no proprietary right can vest in the State automatically and both the Courts below have committed an error of law in coming to the conclusion that the suit land was Abadi land and, therefore, vested in the State. He contended that even the Collector has observed in the order dated 27.6.1962 that there was no justification in recording the land in question as Nazul land to the detriment of plaintiffs' interest when they have purchased the site for consideration long before and have been in continuous and undisturbed possession thereof and accordingly directed that the land should be continued to be shown as Abadi land in Nistar Patrak with necessary entry in favour of the non-applicants as was shown before. He, therefore, contended that Page 1603 the substantial question of law that arises in this appeal is, whether the land has vested in the State after introduction of the Act? and consequently the appeal deserves to be allowed.
7. The learned A.G.P. Contended that the relevant notification bearing No. 627-XII dated 27.1.1951 under Section 3 of the Act has already been issued by the defendant/State in exercise of its powers under Sections 1 and 3 of the Act, which would indicate that in exercise of powers conferred by Sub-sections (1) and (3) of Section 3 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951), the State Government are pleased to specify for the areas mentioned in column (1) of the Schedule annexed hereto the dates mentioned in the corresponding entries in column (2) of the said Schedule as the dates for the purposes of the said section and that the area of Wardha district is included in Column No. 1 and Sr.No. (ii) of the Schedule and the date as mentioned in Column No. 2 is 31.3.1951. The learned A.G.P. therefore contended that the suit land vests in the State Government as per the provisions of Section 3 of the Act. He, therefore, contended that both the Courts below have recorded the concurrent findings that what was purchased by Bhagwant was only the building of Ginning Factory and the machineries standing thereon and not the land as per the recitals of the sale-deed (Ex.80) and this fact of finding is not liable to be disturbed in second appeal. He contended that since the land vests in the Government after coming into force of the Act, no substantial question of law arises in this appeal and the same may kindly be dismissed. In support of these submissions, he placed reliance on a decision of apex court in the case of The State of Madhya Pradesh v. Yakinuddin - .
8. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. There is no dispute that Ashti Ginning Factory was situated on some land which is said to be Abadi land, the said Ginning Factory went into liquidation and the Liquidator had executed the sale-deed (Ex.80) dated 14.5.1914 in favour of Bhagwant Atmaram Dhongadi. It is also not in dispute that Bhagwant died in the year 1960 and the plaintiffs No. 1 and 2 are his sons and plaintiff No. 3 is his widow. Both the Courts below have considered the evidence and recorded the finding that what was sold to the plaintiffs was only building of Ginning Factory together with the machineries and some articles and not the land on which the structure of the building was standing. This finding of fact cannot be said to be not based on the evidence adduced by the parties. The relevant recitals of the sale-deed have been reproduced in the judgment of the appellate Court which would clearly indicate that what was sold was only the building of the Ginning Factory and the machineries standing thereon along with some articles and not the land on which the structure of the building was standing and in such circumstances this Court is not required to disturb the said finding of fact which is based on the evidence adduced on record.
9. So far as the question of vesting of land in the State is concerned, the learned A.G.P. rightly pointed out that the notification No. 627-XII dated 27.1.1951 has been already issued by the State in exercise of the powers Page 1604 conferred by Sub-sections (1) and (3) of Section 3 of the Act and since 31.3.1951 the area of the land in Wardha district vested in the State by virtue of Section 3 of the Act. It is necessary to reproduce Section 3 of the Act which reads thus :
"Vesting of Proprietary rights in the State.-(1) Save as otherwise provided in this Act, on and -from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances."
10. No doubt, the Collector while dealing with the question of correction of entries in the Nistar Patrak has observed that there was no justification in recording the land in question as Nazul to the detriment of the plaintiffs' interest when they have purchased the site for consideration long before and have been in continuous and undisturbed possession thereof and directed that the land should be shown as Abadi land and necessary entries in favour of the plaintiffs in the remarks column have been shown, as was shown before. This operative part of the order of the Collector appears to be correct because the plaintiffs would be entitled for settlement as per Section 5(a) of the Act on such terms and conditions as may be determined. The Collector has also observed in the said order dated 27.6.1962 that the said question would be taken up in due course of time.
11. It is necessary to reproduce Section 5(a) of the Act which reads thus :
"Certain properties to continue in possession of proprietor or other person.- Subject to the provisions in Sections 47 and 63-
(a) All open enclosures used for agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948-49; all open house-sites purchased for consideration; all buildings; places of worship; wells situated in and trees standing on lands included in such enclosures or house-sites or land appertaining to such buildings or places of worship; within the limits of a village-site belonging to or held by the outgoing proprietor or any other person, shall continue to belong to or be held by such proprietor or other person, as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine;"
12. The plaintiffs did not make any application before the Competent Authority for such settlement as is require to be carried out under Section 5(a) and, therefore, no fault could be found with the order of the Collector when he says that the said question of settlement would be taken up in due course of time.
13. Both the Courts below have considered this aspect of the matter also and the appellate court observed in para 15 that neither Bhagwantrao Page 1605 Dhongadi nor the appellant- plaintiffs have taken any steps to settle the subject-matter of the suit with the State Government as per Section 5 of the Act and unless that is done the plaintiffs are not entitled to put forth their objection for the construction of building and metal road etc on the suit site. The suit land continues to vest in the State after the publication of the notification.
14. The plaintiffs had also amended their plaint and sought relief that direction should be given to the Government to settle the dispute in accordance with law. The appellate court declined to grant such direction but then it would be quite obvious from the order of the Collector that he had granted relief to the plaintiffs by saying that the question of settlement would be taken up in due course of time which is in consonance with the provisions of Section 5(a) of the Act.
15. In State of Madhya Pradesh v. Yakinuddin - , cited supra, the apex court was dealing with the provisions of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 and observed in para No. 7, 9 and 11 as under:
"The provisions of the Act also came in for consideration in the case of . In that case, the petitioners had obtained from the outgoing proprietors the right to collect tendu leaves and other forest produce in villages which formed part of the proprietors' estates, before the coming into effect of the Act. Some of the agreements were registered whereas others were not. The State did not respect those grants and put those rights to auction, after having taken possession of those estates, when they had vested in the State under Section 3 of the Act. The petitioners then moved this Court under Article 32 of the Constitution, complaining of the infringement of their rights to property. It was held by this Court that the agreements required registration and in the absence of registered documents could not confer any rights, which were some interest in land. It was also held that rights conveyed to the petitioners under the agreements were proprietary rights which, under the provisions of Sections 3 and 4 of the Act became vested in the State. Alternatively, if the interests created by the agreements were not in respect of proprietary rights, it was held that in those interests the State was not interested, as the State was not bound by the agreements entered into by the outgoing proprietors.
In our opinion, there is no substance in the contention raised on behalf of the respondents. Under Section 3 of the Act, from the date of notification by the State, all proprietary rights in an estate vesting in a proprietor of such an estate or in a person having interest in such proprietary rights through the proprietor, shall vest in the State for the purposes of the State, free from all encumbrances. The consequences of such a vesting are laid down in Section 4, which runs into several clauses and sub-sections, Section 4(1) (a) is the relevant provision of the Act which determines this controversy entirely against the respondents. It provides that "when the notification under Section 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for Page 1606 the time being in force, and save as otherwise provided in this Act, the consequences as hereinafter set forth shall ... ensue, namely (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrubjungle, forest, trees ... shall cease and be vested in the State for the purposes of the State free of all encumbrances ...." (We have omitted the words which are not necessary for the purposes of the present appeals). It is clear on a bare reading of the provisions of Clause (a) of Section 4(1) that whatever rights the proprietor, or a person claiming interest through him, had in the trees, scrubjungle, forest etc., ceased on the vesting of the estate in the State.
A great deal of argument was advanced on behalf of the respondents showing the distinction between a bare licence and a licence coupled with grant or profits a prendre. But, in our opinion, it is not necessary to discuss those fine distinctions because whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents those grants had no legal effect as against the State, except in so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of Section 5."
16. In the present case, when the notification has been already issued and when both the Courts below have recorded concurrent findings that the land vests in the State by virtue of provisions of Section 3 of the Act, the contention of the learned Counsel for the plaintiffs that they are the owners of the said land and are in possession thereof and their possession should be protected, cannot be accepted. Needless to mention that plaintiff would be entitled to the settlement under Section 5(a) of the Act and the Collector is directed to decide this question in accordance with law within six months from the date of receipt of this order. Taking into consideration the legal position, this Court is of the considered opinion that no substantial question of law is involved in this appeal and the same is dismissed except with the modification in the impugned judgment as mentioned above. There shall be no order as to costs.