Smt. Kalpana Sharma vs Late Suleman Khan Thr Lrs ...
2023 Latest Caselaw 4063 MP

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 IN THE HIGH COURT OF MADHYA PRADESH
              AT I N D O R E
                      BEFORE
        HON'BLE SHRI JUSTICE VIVEK RUSIA

            SECOND APPEAL No. 42 of 2001

BETWEEN:-
    SULEMAN KHAN S/O HAWAS KHAN DEAD THR
    LRS. QAMAR JAMAN KHAN S/O SULEMAN
1.
    KHAN, AGED ABOUT 25 YEARS, VILLAGE MOLTA
    DISTRICT SHAJAPUR (MADHYA PRADESH)
    SHAH JAMAN KHAN S/O SULEMAN KHAN, AGED
2. ABOUT 23 YEARS, VILLAGE MOLTA (MADHYA
    PRADESH)
    KHAN JANAN KHAN S/O SULEMAN KHAN, AGED
3. ABOUT 21 YEARS, VILLAGE MOLTA (MADHYA
    PRADESH)
    IRSHAD KHAN S/O SULEMAN KHAN, AGED
4. ABOUT 17 YEARS, VILLAGE MOLTA (MADHYA
    PRADESH)
    TAJ BEE W/O SULEMAN KHAN, AGED ABOUT 52
5.
    YEARS, VILLAAGE MOLTA (MADHYA PRADESH)
    ABDUL REHMAN S/O HAWAS KHAN, AGED
6. ABOUT 48 YEARS, VILLAAGE MOLTA (MADHYA
    PRADESH)
    UMAR FAROOQ S/O ORANGZEB KHAN, AGED
7. ABOUT 33 YEARS, VILLAAGE MOLTA (MADHYA
    PRADESH)
    MUSTAFA KHAN DECD THR. LRS AMEER JAN
8. BEE W/O MUSTUFA KHAN, AGED ABOUT 70
    YEARS, VILLAAGE MOLTA (MADHYA PRADESH)
    MALKA BEE W/O ATA ULLA KHAN, AGED ABOUT
9.
    42 YEARS, RAFIQUEGANJ, (MADHYA PRADESH)
    NOOR HAHAN BEE W/O RAJJAK KHAN, AGED
10.
    ABOUT 40 YEARS, BOLGA (MADHYA PRADESH)
    AHSAN ULLA S/O MUSTAFA KHAN, AGED ABOUT
11. 38 YEARS, GANDHI NAGAR SECTOR-1, MASJID
    KE PICHHE (MADHYA PRADESH)
    SAFI ULLA KHAN S/O MUSTAFA KHAN, AGED
12. ABOUT 35 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
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    KIFAYATULLA KHAN S/O MUSTAFA KHAN, AGED
13. ABOUT 31 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    SEFU REHMAN KHAN S/O MUSTAFA KHAN,
14. AGED ABOUT 29 YEARS, GRAM MOLTA
    PARGANA SHAJAPUR (MADHYA PRADESH)
    MASOOD KHAN S/O MUSTAFA KHAN, AGED
15. ABOUT 27 YEARS, GRAM BATAWDA, TAPPA
    KANAD (MADHYA PRADESH)
    RANI W/O PARVEZ KHAN, AGED ABOUT 24
16.
    YEARS, IMAMI GATE (MADHYA PRADESH)
                                       .....APPELLANTS
(BY SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE ALONGWITH
SHRI HARISH JOSHI-ADVOCATE)

AND
   KAILASH CHANDRA THR LRS. SMT. KALPANA
   W/O KAILASHCHANDRA SHARMA, AGED ABOUT
1.
   65 YEARS, OCCUPATION: HOUSEWIFE NAVIN
   NAGAR SHAJAPUR (MADHYA PRADESH)
2 NAVNEET WHARMA S/O KAILASHCHANDRA
. SHARMA, AGED ABOUT 45 YEARS, NAVIN NAGAR
   (MADHYA PRADESH)
   NITIN SHARMA S/O KAILASHCHANDRA SHARMA,
3. AGED ABOUT 39 YEARS, VILLAAGE MOLTA
   (MADHYA PRADESH)
   VRINDA    RAWAT    D/O   KAILASHCHANDRA
4. SHARMA, AGED ABOUT 42 YEARS, A-34,
   ALKAPURI (MADHYA PRADESH)
   SARDAR KHAN S/O NOOR KHAN, AGED ABOUT 32
5.
   YEARS, VILLAGE NICHAMA (MADHYA PRADESH)
   STATE   OF   M.P.  THROUGH    COLLECTOR
6.
   SHAJAPUR (MADHYA PRADESH)
                                     .....RESPONDENTS
(BY SHRI NITIN SINGH BHATI-GOVERNMENT ADVOCATE)

             SECOND APPEAL No. 6 of 2001

BETWEEN:-
  SMT.   KALPANA    SHARMA    W/O SHRI
1
  KAILASHCHANDRA SHARMA, AGED ABOUT 65
.
  YEARS, OCCUPATION: HOUSEWORK NAVEEN
  NAGAR SHAJAPUR (MADHYA PRADESH)
2 NAVNEET SHARMA S/O KAILASHCHANDRAJI
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. SHARMA, AGED ABOUT 45 YEARS, OCCUPATION:
   SHAJAPUR SHAJAPUR (MADHYA PRADESH)
   NITIN SHARMA S/O KAILASHCHANDRA SHARMA,
3. AGED ABOUT 39 YEARS, NAVIN NAGAR (MADHYA
   PRADESH)
   SMT.VRINDA RAWAT D/O KAILASHCHANDRA
4. SHARMA, AGED ABOUT 42 YEARS, A-34,
   ALKAPURI (MADHYA PRADESH)
                                      .....APPELLANTS


AND
    LATE SULEMAN KHAN THR LRS KAMARJAMAN,
    AGED ABOUT 27 YEARS, OCCUPATION:
1.
    AGRICULTURE    GRAM   MOLTA    PARGANA
    SHAJAPUR (MADHYA PRADESH)
    SHAH JAMAN S/O SULEMAN KHAN, AGED
2. ABOUT 25 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    KHAN JAMAN S/O SULEMAN KHAN, AGED
3. ABOUT 23 YEARS, GRAM MOLTA (MADHYA
    PRADESH)
    PARVEZ KHAN S/O SULEMAN KHAN, AGED
4. ABOUT 24 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    IRSHAD KHAN S/O SULEMAN KHAN, AGED
5. ABOUT 19 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    TAJ BEE W/O SULEMAN KHAN, AGED ABOUT 54
6. YEARS, GRAM MOLTA PARGANA SHAJAPUR
    (MADHYA PRADESH)
    ABDUL REHMAN S/O HABBAS KHAN, AGED
7. ABOUT 63 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    UMAR FAROOKH S/O ORANGZEB KHAN, AGED
8. ABOUT 50 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    MUSTAFA KHAN DECD.THR.LR'S SHAFI ULLA
    KHAN S/O MUSTAFA KHAN, AGED ABOUT 50
9.
    YEARS, GRAM MOLTA PARGANA SHAJAPUR
    (MADHYA PRADESH)
    KIFAYAT KHAN S/O MUSTAFA KHAN, AGED
10. ABOUT 45 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
11. MAKSOOD KHAN S/O MUSTAFA KHAN, AGED
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    ABOUT 40 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    SHEFU KHAN S/O MUSTAFA KHAN, AGED ABOUT
12. 35 YEARS, GRAM MOLTA PARGANA SHAJAPUR
    (MADHYA PRADESH)
    AHSAN KHAN S/O MUSTAFA KHAN, AGED
13. ABOUT 30 YEARS, GRAM MOLTA PARGANA
    SHAJAPUR (MADHYA PRADESH)
    SARDAR KHAN S/O NOOR KHAN, AGED ABOUT
14. 47 YEARS, GRAM NICHAMA PARGANA (MADHYA
    PRADESH)
                                                    .....RESPONDENTS

         Heard and reserved on               :   15.02.2023

         Judgment delivered on               :   15.03.2023

This appeal coming on for judgment this day, the court passed the
following:

                                  JUDGMENT

Both the appeals are filed against the judgment dated 20.09.2000 passed by District Judge, Shajapur in Civil Appeal No. 29 and 30A of 2000 whereby the judgment and decree dated 30.08.1999 passed in Civil Suit No. 20A/1994 passed by Civil Judge Class-I, Shajapur in favour of the plaintiffs has been set aside.

The facts of the case in short are as under :-

1. The plaintiffs are legal heirs/sons of Hawas Khan S/o Sardar Khan. According to the plaintiffs, their father Hawas Khan was the owner of the land of several survey numbers the details of which are recorded in para-2 of the plaint and after his death, they are in possession and doing agricultural activities in these lands. They are regularly paying taxes to the government (Lagaan). During the period of Zamindari, Hawas Khan was in possession as an

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agriculturist (Khud Kashtkar). His name was recorded as khudkasht (self cultivator) in the revenue records from Samwat 2007 till 2009. Thereafter, from Samwat 2010 till 2014 (Year 1953 to 1957), the name of Hawas Khan continue to be recorded as bhumiswami with an additional entry of 'kabjabilaizazat' i.e. possession without permission. Thereafter, the name of Hawas Khan was omitted from the revenue record.

2. It is further pleaded in the plaint that the suit land bearing survey No. 100 and 117/2 was allotted to defendant No. 2 Kailashchandra, while survey No. 101 was allotted to one Mansingh and survey No. 103 and 115 was allotted to the father of defendant No. 3 in the year 1974 by the collector. The Collector, District-Shajapur passed an order in case No. 219/A-85/70-71 whereby the land bearing survey No. 101 and part of survey No. 100 were granted to the plaintiffs in bhumiswami rights.

3. The plaintiffs were served with a show-cause notice by the Tahsildar, Shajapur on 22.04.1986 in an exercise of the power conferred under Section 248 of M.P. Land Revenue Code, 1959 which in fact gave the cause of action to the plaintiffs to file the suit for declaration title of the suit land and permanent injunction. The plaintiffs filed the suit on 18.08.1986 seeking a declaration of bhumiswami rights as well as the declaration that the patta granted to defendants No. 2 and 3 are illegal and not binding upon them. According to the plaintiffs, they had acquired the bhumiswami rights after the abolition of the zamindari system. By way of alternative relief, the plaintiffs claimed the title of the suit land by way of adverse possession of uninterrupted 30 years.

4. Defendant no. 1, State of M.P. filed the written statement

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refuting the averment made in the plaint by submitting that the suit land mentioned in para-2 was unirrigated land recorded as in the category of Bid land. Therefore, it was out of the purview of khudkasht (agriculture land). After the abolition of zamindari system w.e.f. 02.10.1951, the suit land vested with the State Government. Therefore, the plaintiffs had no title to the said land. It was further submitted that other legal heirs son, grandson and daughter-in-law of Hawas Khan S/o Sardar Khan have not been made defendants hence, the suit suffers from non-joinder of the necessary party. It is further submitted that the plaint is not maintainable by virtue of Section 57 read with Section 257 of M.P. Land Revenue Code, 1959.

5. Defendant No. 2 also filed the written statement by submitting that after the abolition of zamindari system, the land had vested with the State Government and thereafter he has rightly been allotted the land by the revenue authorities. Defendant No. 2 filed a counter claim also claiming possession as well as mesne profit Rs.3,000/- as the loss suffered due to non-grant of possession of the land for cultivation. Defendant No. 3 filed the written statement in support of the plaintiffs.

On the basis of pleadings, the learned Civil Judge framed 21 issues for adjudication.

7. Issue No. 6 in respect of the maintainability of the suit by virtue of the provisions of Section 57 read with Section 257 of M.P. Land Revenue Code, 1959. The learned Civil Judge decided the same as a primary issue vide order dated 21.02.1996 in favour of the plaintiffs by holding that the suit seeking a decree of declaration of title is maintainable. However, none of the defendants challenged

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the aforesaid order and participated in the suit.

8. Thereafter the plaintiffs examined 5 witnesses namely Daulatsingh, Umar Farukh Khan, Madhavsingh, Gordhansingh and Gopal Singh as P.W.-1 to PW-5 and exhibited 16 documentary evidence as exhibit P/1 to P/16, whereas the defendants examined 3 witnesses namely Mirza Faiyyazbeg (Patwari of the village), Kailashchandra and Babudas D.W./1 to D.W./3 and exhibited 9 documents as exhibit D/1 to D/9.

9. After evaluating the evidence that came on record, the learned Civil Judge had held that the plaintiffs have acquired the title after the abolition of zamindari system as the name of the Hawas Khan was recorded as khudkasht in the revenue record. The learned Civil Judge did not give findings on other issues like the acquisition of title by way of adverse possession. So far validity of allotment of the part of the suit land in favour of plaintiffs No. 2 and 3 is concerned, the learned Civil Judge has held that once the plaintiffs have acquired the title and the land did not vest with the State Government after the abolition of zamindari system, the allotment in favour of defendant No. 2 and 3 are not binding on plaintiffs.

10. Being aggrieved by the aforesaid judgment and decree dated 30.08.1999, State of Madhya Pradesh filed a First Appeal No. 29A of 2000 and defendant Kailashchandra filed a First Appeal No. 30A/2000, both the appeals were heard and decided by judgment dated 20.09.2000 against the plaintiffs. The learned Additional District Judge had held that though the land was recorded in the revenue record in the name of Hawas Khan as khudkasht, the land was a Hakat land and Bid land meaning thereby not used for

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agriculture purposes. Therefore, there was no agricultural activities were carried out by Hawas Khan, hence, he did not acquire the title by virtue of khudkasht and the land gone vested with the State Government under Section 2C & 4 (ii) of Zamindari Abolition Act and Section 5 & 7 of M.P.L.R.C. In addition to the above, the learned Additional District Judge has also held that the suit is not maintainable under the provision of Section 57(2) read with Section 257(2) of M.P.L.R.C. and reversed the finding recorded on 21.02.1992 as issue No. 6 and dismissed the suit vide judgment dated 20.09.2000.

11. Being aggrieved by the aforesaid judgment, the plaintiffs filed a Second Appeal No. 42 of 2001, vide order dated 28.01.2003, this Court has admitted the second appeal on 3 questions of law :-

[1] "Whether the lower appellate court was justified in reversing the decree passed by the trial Court, which was decreed the plaintiffs suit?" [2] "Whether the lower appellate court was justified in dismissing the suit as not maintainable in a Civil Court ?"

[3] "Whether the lower appellate court was justified in holding that the suit is hit by Section 57(2) readwith Section 257(2) of M.P.L.R. Code and hence, not maintainable ?"

12. Kailashchandra defendant No. 2 has also filed a Second Appeal No. 6 of 2001, in which this Court vide order dated 08.04.2002 has admitted the second appeal on 2 questions of law as under:-

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[1] "Whether lower Appellate Court was justified in reversing the finding of trial Court which had decided the plaintiffs's suit ?"

[2] "Whether finding of learned Appellate Court that land in suit stood vested in State by virtue of Jamidar Abolition Act w.e.f. 02.10.51 thereby taking away the Bhumiswami rights of plaintiffss predecessor in title Hawas Khan and consequently plaintiffs is legally sustainable ?"

I have heard Shri A.K. Sethi, learned Senior Counsel appearing on behalf of the appellants in Second Appeal No. 42 of 2001 (plaintiffs) and Shri S.N. Bhati, Government Advocate appearing on behalf of the State in both the second appeals.

13. Shri Sethi, learned Senior Counsel for the appellants/ the plaintiffs argued that the First Appellate Court has wrongly reversed the judgment and decree passed in favour of the plaintiffs by relying on provisions of Section 57 readwith Section 257 of M.P.L.R.Code. The aforesaid findings are unsustainable by virtue of the law laid down by the Full Bench of this Court in the case of State of Madhya Pradesh Vs Balveer Singh reported in 2001 (2) MPLJ 644 in which it is held that civil suit is maintainable in respect of the dispute with the State other than contemplated under Section 57(1). Shri Sethi learned Senior Counsel further submitted that learned Civil Court has rightly appreciated oral as well as documentary evidence that came on record and has rightly held that the suit land was recorded as khudkasht land in the revenue record and not as 'Alava Jot'. Therefore, after the abolition of zamindari system, the father of the plaintiffs became a bhumiswami after the

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M.P.L.R.C. came into force. The First Appellate Court has wrongly set aside and reversed the said finding. It is further submitted that the order dated 21.02.1992 was not challenged by any of the defendants therefore, the same has attended finality. The First Appellate Court has wrongly dismissed the suit by setting aside the finding recorded in the order dated 21.02.1992 as well as prays for the impugned judgment by setting aside.

14. Shri N.S. Bhati, learned Government Advocate appearing on behalf of the State contended in support of the impugned judgment by submitting that the First Appellate Court was fully justified in reversing the decree passed in favour of the plaintiffs as the suit was maintainable by virtue of provisions section 57(2) read with 257(2) M.P.L.R.Code. In support of his contention, he has reliance judgment passed by the coordinate Bench of this Court in the case of Hukumsingh Vs State of M.P. 2000 (1) MPLJ 1993. It is further submitted that First Appellate Court has not committed any error while setting aside judgment and decree merely recording the name as khudkasht would not entitle the plaintiffs to get the declaration of bhumiswami when their father was not cultivating the said land and it was recorded in the revenue record as Bid land.

Heard both sides and perused the record.

15. The first issue which requires consideration is whether the First Appellate Court has rightly held that the suit is not maintainable by virtue of Section 57 (2) of 257(2) of M.P.L.R. Code.

16. The plaintiffs filed a suit for declaration of title claiming bhumiswami rights by virtue of abolition of Zamindari Act as well as adverse possession of 30 years against the State Government.

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The suit was filed for declaration of title. Apart from that the plaintiffs sought a declaration in respect of the allotment of part of the suit land to defendants no. 2 and 3. During the pendency of these two appeals, a similar issue came up for consideration before the Full Bench of this Court in the case of State of M.P. Vs. Balveer Singh (Supra) and this Court after examining provisions of 57 and 257 of M.P.L.R.C. has categorically held that accrual of bhumiswami rights by adverse possession of is not contemplated under M.P.L.R. Code. That the determination of the bhumiswami rights within the province of Civil Court accepting the case falling within the ambit of those specified in Section 257 of the Code. It has also been held that the civil suit is directly maintainable in respect of the dispute with the State other than the disputes contemplated under Section 57(1) of the Code. So far the rights contemplated under Section 57(2) is concerned, further held that there can be no distinction as to the forum with respect to the right of bhumiswami acquired after coming into force of the M.P. Land Revenue Code and bhumiswami right acquired on the basis of 3 existing rights. Apart from that the Apex Court in case of Hukum Singh Vs. State of M.P. Reported in 2005 (10) SCC 124 has held that the case for declaration of bhumiswami right and injunction is maintainable directly in Civil Court without approaching the Sub Divisional Officer. Therefore in view of the above, the question of law is answered in favour of the plaintiffs and the finding recorded by the First Appellate Court is hereby set aside that the suit is not maintainable by virtue of the provision of sections 57 and 257 of M.P.L.R.Code. This issue is answered in favour of the appellants/ the plaintiffs.

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17. So far as the question of law whether the lower appellate Court was justified in reversing the decree passed by the appellate Court on merit is concerned. Undisputedly the name of Hawas Khan was recorded as khudkasht in the revenue record before the abolition of zamindari system. Thereafter, the said entry was modified and the word 'kabjabilaizazat' was added. The name Hawas Khan continued in the revenue record till 1974. Thereafter, the first time the notice was issued under Section 248 of M.P.L.R.C. in the year 1986. From 1950 till 1974, the name of Hawas Khan remained in the record as bhumiswami and all these khasra Panchshala were exhibited as exhibits P/2 to P/13. The defendant came up with the plea that after Zamindari Abolition Act came into force, all the suit land vested with the State Government. It was never recorded in the name of the State Government after the abolition of the system. The defendants have not filed any revenue record to show that the name of the State Government was recorded immediately after Abolition Act came into force. D.W./1 in his evidence admitted that he is not having any knowledge that the State Government allotted 20% of the land to the plaintiffs. The plaintiffs examined 5 witnesses who categorically stated that they are seeing the plaintiffs cultivating the land in possession as well as cultivating the various crops. All this evidence remained unrebutted despite wrong entries in the revenue record, the plaintiffs have established that they remained in possession after the death of Hawas Khan and cultivating the land. However, no document has been filed in respect of the payment of Lagan and P.W./2 has also admitted that he is not having any receipt in respect of the payment of Lagan. Hawas Khan was a zamindar therefore, the learned trial

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Court has wrongly reversed the finding only on the basis of a certain entry in the revenue record about the class of the land as Hakat land and Bid land whereas the oral evidence came on record establishing that after the death of Hawas Khan, his sons were cultivating land and thereafter the grandson.

In view of the above discussion, Second Appeal No. 42 of 2001 is hereby allowed and Second Appeal 6 of 2001 is hereby dismissed.

The judgment and decree dated 30.08.1999 passed in Civil Suit No. 20A/1994 passed by Civil Judge Class-I, Shajapur in favour of the plaintiffs is hereby restored.

The office is directed to send the record to the concerned courts.

Copy of this order be placed with connected filed.

(VIVEK RUSIA) JUDGE vindesh

Digitally signed by PRAVEEN NAYAK Date: 2023.03.16 19:04:55 +05'30'