ORDER

1.Heard the learned counsel for the parties.

2. The suit filed by the appellant claiming bhumiswami rights over the land in question was decreed by the trial court. The first appeal filed by the defendants, aggrieved by the decree of the trial court, was allowed and the decree passed by the trial court was set aside. The plaintiffs, who are the appellants herein, took up the matter before the High Court. The High Court, by the impugned judgment, interpreting the provisions of Section 57(2) of the Madhya Pradesh Land Revenue Code, 1959 (for short "the Code") dismissed the second appeal holding that the civil court had no jurisdiction. The High Court had admitted the second appeal on the following two substantial questions of law:

"(i) Whether the suit filed by the plaintiff-appellants was barred under the provisions of Section 57(2) of the M.P. Land Revenue Code, 1959?

(ii) Whether it was mandatory upon the plaintiffs to deposit the amount for acquiring pucca tenancy rights under Section 38(2) of the Madhya Bharat Zamindari Abolition Act?"

3. On the first substantial question of law, the High Court, referring to the Division Bench judgment of the High Court as well as the judgment of the Full Bench of the High Court in Ramgopal Kanhaiyalal v. Chetu Batte1 found that the suit filed by the appellants was not maintainable.

4. Before us, the learned Senior Counsel for the appellants contended that the High Court committed a serious error in not correctly applying the law laid down in the Full Bench decision of the High Court in Ramgopal1• He drew our attention to the question raised before the Full Bench in the said case. The question that was considered by the Full Bench was whether the civil court could not take cognizance of a suit instituted by bhumiswami on the basis of his title against a trespasser and whether the decision in Nathu v. Dilbande Hussain2 is no longer a good law. In particular, he also drew our attention to paras 14 and 17.

5. On the other hand, the learned counsel for the respondent State argued that since the suit filed by the appellants was the one seeking declaration of title, it was barred having regard to Section 57(2) of the Code.

6. A reading of the judgment of the trial court shows as if the suit was for declaration of title. We have seen the original plaint, which is in Hindi. The learned counsel for the State, on seeing the averments. made in the plaint and the relief sought for, could not dispute that in the said suit, declaration was sought by the appellant in relation to his rights as a bhumiswami.

7. Paras 14 and 17 of the decision rendered by the Full Bench of the Madhya Pradesh High Court read: (AIR p. 164)

"14. It must be remembered that a bhumiswami has a title though he

is not the swami of the bhumi which he holds, in the sense of absolute ownership, because as declared in Section 257 of the Revenue Code, ownership of land vests in the State Government, yet, he is a bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and, he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation.

17. We, therefore, hold that a bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250 of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the civil court for declaration of his title and possession. Even if there has been a decision under Section 250 by a Revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. We further hold that Nathu v. Dilbande Hussain2 was correctly decided. The civil court can take cognizance of a suit. This is our answer to the questions referred to us."

8. The view taken by the Full Bench of the Madhya Pradesh H