Decd.Raizada Balkrishna Jham ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 7029 MP

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                                    SECOND APPEAL No. 143 of 2017



 IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

                        BEFORE
          HON'BLE SHRI JUSTICE ANIL VERMA

                ON THE 10th OF MAY, 2022
              SECOND APPEAL No. 143 of 2017
   Between:-
1. DECD.RAIZADA BALKRISHNA JHAM,
   S/O RAMLAL RADHU
   (DECEASED) THROUGH LEGAL REPRESENTATIVES

a. PRAVEEN KUMAR S/O BALKRISHNA JHAM,
   AGED ABOUT 62 YEARS, OCCUPATION: BUSINESS,
   R/O DHARAMPURI, DHAR (MADHYA PRADESH)

b. SMT SASHI W/O LATE DEEPAK PATRA,
   AGED ABOUT 57 YEARS,
   R/O DAYANAND MARG, DHAR (MADHYA PRADESH)

c. PRADEEP S/O LATE BALKRISHNA JHAM,
   AGED ABOUT 54 YEARS, OCCUPATION: DOCTOR,
   R/O 06, KALIKA MARG, DHAR (MADHYA PRADESH)
                                           .....APPELLANTS
   (BY SHRI SUMEET SAMVATSAR, ADVOCATE)

  AND

1. THE STATE OF MADHYA PRADESH,
   THROUGH CHIEF SECRETARY,
   VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

2. REVENUE SECRETARY,
   VALLABAH BHWAN,
   BHOPAL (MADHYA PRADESH)

3. COLLECTOR,
   DISTRICT DHAR (MADHYA PRADESH)
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                                            SECOND APPEAL No. 143 of 2017




4. SMT PUSHPRAJ W/O NARESH RAJ,
   AGED ABOUT 60 YEARS,
   OCCUPATION: HOUSEWORK,
   R/O ASHOK NAGAR, ALLAHABAD (UTTAR PRADESH)

5. RAIZADA LAXMINARAYAN S/O RAMLAL RADHU,
   AGED ABOUT 78 YEARS, OCCUPATION: BUSINESS,
   R/O DHAR, PRESENT ADDRESS ENGLAND,
   THROUGH POWER OF ATTORNEY HOLDER
   RAIZADA BALKRISHNA JHAM,
   S/O RAMLAL RADHU
                                              .....RESPONDENTS
   (R.NO.1 TO 3 / STATE BY SHRI RANJEET SEN, GA)

      This petition coming on for admission this day, the court
passed the following:
                     J U D G M E N T

The present second appeal has been filed by the appellants / plaintiff No.2 under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC') against the impugned judgment and decree dated 06/10/2016 passed by 1st Additional District Judge, Dhar in Regular Civil Appeal No.116-A/2014, thereby affirming the judgment and decree dated 25/02/2010 passed by 1st Civil Judge, Class-I, Dhar in Civil Suit No.22-A/2009, which was filed by the appellants / plaintiff No.2 and respondent No.5 / plaintiff No.1 for declaration of title and mandatory permanent injunction. 02- The facts of the case in brief are that the respondent No.5 / plaintiff No.1 and appellants / plaintiff No.2 had filed a civil suit for declaration of title and mandatory injunction with the averment that

SECOND APPEAL No. 143 of 2017

Maharaja Anandraoji Panwar, who was the ex-ruler of the Dhar State owned a land bearing survey No.607, 608 and 609 ad- measuring 0.708 hectares situated at Dhar. Before the merger of the States in the Union of India, the Maharaja had constructed a Talkies namely Anand Talkies. He sold the aforementioned land along with Talkies by a registered sale deed dated 16/03/1953 to Major Jagdevraj Maharaj Panwar and in turn Major Jagdevraj Maharaj Panwar has sold the land to Manohar Varmani vide registered sale deed dated 03/10/1966 along with all the furniture and fittings. Again Manohar sold the suit property to plaintiffs by the registered sale deed dated 06/04/1982. The land was registered in revenue records in the name of Manohar Varmani and before him in the name of Major Jagdevraj Maharaj Panwar. After purchasing the suit land, plaintiffs filed an application for mutation but instead of recording the name of plaintiffs, the name of State Government i.e. respondent No.1 was recorded, therefore, the plaintiffs filed a suit before the trial Court.

03- The defendants No.1 to 3 have filed their written statement. They have denied all the averments made in the plaint and specifically alleged that the at the time of merger of the State in the Union Government, the disputed land was vested in the Government, therefore, it is a Nazool property. Court fees was also not paid according to the rules. Plaintiffs have filed this suit with malafide intention to grab the Government property.

SECOND APPEAL No. 143 of 2017

04- The trial Court after recording the evidence of both the parties dismissed the suit filed by the plaintiffs by the impugned judgment and decree dated 25/02/2010. Being aggrieved by the aforesaid judgment and decree, the plaintiffs had preferred an appeal before the First Appellate Court and the learned First Appellate Court by the impugned judgment and decree dated 06/10/2016 affirmed the judgment and decree passed by the trial Court. Being aggrieved by the aforesaid judgments and decrees, present second appeal has been filed.

05- Learned counsel for the appellants contended that the First Appellate Court has committed grave illegality and perversity in dismissing the appeal filed by the appellants because the disputed property never vested in the Government, therefore, it could not be a Nazool land. Appellate Court has also committed grave error of law in holding that the appeal is not maintainable after the death of Balkrishna and his legal representatives have no right to continue the appeal. The judgments and decrees passed by both the Courts below are illegal and are not based upon the proper appreciation of the facts. Both the Courts below have failed to consider oral as well as documentary evidence produced by the appellants. It is also contended that the trial Court has erred in dismissing the suit preferred by the plaintiffs. Both the Courts below have ignored the pleadings made by the appellants, therefore, the findings of both the Courts below are perverse and against the evidence available on

SECOND APPEAL No. 143 of 2017

record. Thus, in light of the aforesaid, it is contended that the present appeal deserves to be allowed.

06- I have gone through the judgments and decrees passed by the Courts below and also perused the entire record. 07- The history is witnessed that after the independence of our country, 565 princely states merged with the Government of India and properties of these princely states were vested in the Union of India, one of them was princely state of Dhar. It has often been seen that with the passage of time, the princely state have disappeared and monarchy is replaced by democracy but some of the princely states are not able to give up their conceit being the ruler and omnipotent.

08- From perusal of the revenue record of the property in question it reveals that all the suit lands have been recorded in the name of State Government i.e. respondent No.1 in the revenue record (Exhibit-P/2 to P/22). Although learned counsel for the appellants contended that they have purchased the suit land by one Manohar Varmani vide registered sale deed dated 06/04/1982 (Exhibit-P/60). The plaintiffs had filed an application (Exhibit- P/61) for entering their possession over the suit property before the Naib Tehsildar, Dhar.

09- As per the order (Exhibit-P/64) of the Naib Tehsildar, possession of the plaintiffs was entered in Column No.12 of the Khasra (Exhibit-P/14 and P/15), but just after that the name of

SECOND APPEAL No. 143 of 2017

respondent No.1 i.e. State Government was again mutated in the revenue record. Admittedly after merger of princely state in the Union of India, the entire suit land was recorded in the name of M.P. Government. After perusal of the Khasra (Exhibit-P/13) it is evident that land bearing survey No.607, which was recorded in the name of Madhya Pradesh Government as aabadi land was in possession of the Archaeological Department. It is also remarkable that some of the suit property is situated besides the historical Bhojshala of Dhar and therefore, it is treated as the property of Archaeological Department.

10- The plaintiff Raizada Balkrishna Jham (PW-1) categorically admitted in his cross-examination that he did not remember that when he purchased the suit property from Manohar Varmani and it was recorded in his name in the record or not and his son Praveen Jham also admitted that at the time of registry he did not seen the Khasra entries of the suit land.

11- The Tehsildar Manorama Koshti (DW-1) also admitted in her cross-examination as under:-

**12& ;g lgh gS fd iz- dz- &3&v&[email protected]&83 es uk- rsglhynkj iaokj ds U;k;ky; ds }kjk dsoy nks ykbu fy[kk dj l- ua- 607] 608] 609 esa dCtk ntZ fd;k x;k gSA ;g lgh gS fd] iz-ih-&72] ls ih&74 dh izekf.kr izfrfyfi;ka iz- dz- [email protected]&[email protected]&6v ds izdj.k dh izekf.kr izfrfyfi;ka gSA Lor% dgk fd rsglhynkj o uk;c rsglhynkj dks 'kkldh; Hkwfe ij dCtk ntZ djus vf/kdkj ugh fn;s x;s gsA ;g vf/kdkj dsoy dysDVj lkgc ds vkns'k ls utqy vf/kdkjh djsxk A dCtk bUnzkt Hkw jktLo lafgrk dh /kkjk 116 ds rgr ntZ fd;k tkrk gSA tqykbZ

SECOND APPEAL No. 143 of 2017

vkSj tuojh ekg es djsxkA** On the basis of the statement of the Tehsildar Manorama Koshti and provision of Section 116 of the Madhya Pradesh Land Revenue Code, 1959 it is apparently clear that Tehsildar and Naib Tehsildar have no jurisdiction to enter the possession of any person in respect of the Government land, therefore, the order Exhibit-P/63 passed by the Naib Tehsildar in respect of recording the name of plaintiffs in the government land (suit land) cannot be considered as a legal order and appellants / plaintiffs cannot get claim or right on the basis of the aforesaid order over the suit property.

12- Learned counsel for the appellants also prays that after merger of all the properties which were in possession of the ex-ruler were continuing to be as their personal property and did not vested in the State Government. But appellants have not filed any relevant order that which properties are vested in the Government after merger of princely state in the Union of India and how many properties were remain continue to be as their personal property. Name of Madhya Pradesh Government was recorded in the suit land after merger and the name of ex-ruler of princely state was never recorded as Bhumiswami in the revenue record, therefore, in absence of the aforesaid material documentary evidence, it is not proved that the suit property remain continued to be their personal property.

13- Counsel for the appellants also contended that the suit property is situated in the municipal limits of District Dhar,

SECOND APPEAL No. 143 of 2017

therefore, it cannot be treated as a Nazool land. In respect of his contention he has placed reliance upon judgments delivered by the apex Court in the case of The Municipal Council, Mandsaur Vs. State of M. P., Bhopal and Others reported in AIR 1973 MP 99 and Sind Mahajan Exchange Ltd., Lashkar Vs. State of M. P. and another reported in 1980 JLJ 581, wherein it has been held that the open land lies within the municipal limit cannot be treated as nazool land, but the second citation is based upon the circular No.3 issued by the Gwalior State in Samvat 1998 and Section 87 of the Gwalior State Municipalities Act, which are applicable in the present case. It is further held that the land vested in the Municipality, the nazool officer cannot start proceedings. Both the citations are distinguishable on facts and therefore, these citations cannot be made applicable in the present matter. 14- In the light of the aforesaid oral and documentary evidence available on record, this Court is of the considered view that appellants/plaintiffs have failed to prove that they are exclusive owner of the suit land. Therefore, this Court is of the considered view that the judgments and decrees passed by both the courts below are well reasoned and are based on due appreciation of oral as well as documentary evidence available on record. The findings recorded by the courts below are concurrent findings of fact. 15- Learned counsel for appellants has failed to show that how the findings of fact recorded by the courts below are illegal,

SECOND APPEAL No. 143 of 2017

perverse or based upon no evidence. Thus, no substantial question of law arises for consideration in the present second appeal. 16- The Supreme court in number of cases has held that in exercise of powers under section 100 of the Code of Civil Procedure the Court can interfere with the findings of fact only if the same is shown to be perverse and based upon no evidence. Some of these judgments are Hafazat Hussan Vs. Abdul Majeed and others, 2011(7) SCC 189, Union of India Vs. Ibrahim Uddin, 2012(8) SCC 148 and Vishwanath Agrawal Vs. Sarla Vishwanath Agralwal 2912(7) SCC 288.

17- For the aforesaid reasons, no substantial questions of law arises for consideration in this appeal.

18- The appeal fails and is hereby dismissed in limine.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej

Digitally signed by TEJPRAKASH VYAS Date: 2022.05.11 18:58:43 +05'30'