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2012 Supreme(Chh) 141
HIGH COURT OF MADHYA PRADESH, JABALPUR
A. K. Shrivastava, J.
State of M.P.
Vs.
Radhika Prasad (since dead) thr. L.Rs. and others
First Appeal No. 577 of 1997
Decided on : 28-6-2012
Mr. Amit Kumar Sharma, Panel Lawyer, for the Appellant-State.
Mr. Ravish Agrawal, Sr. Advocate and Mr. Abhishek Singh, Advocate with him, for the Respondents.
The main legal point established in the judgment is the affirmation of the Bhumiswami right of the plaintiff based on the legal provisions and historical evidence.
Headnote:
Bhumiswami Right - Property Dispute - Central Provinces Land Revenue Act, 1917, Abolition of Proprietary Rights Act, 1950, M.P. Land Revenue Code, 1954 - The court discussed the Bhumiswami right in the context of the Revenue Act of 1917, Abolition of Proprietary Rights Act, 1950, and M.P. Land Revenue Code, 1954. It affirmed the Bhumiswami right of the plaintiff based on the legal provisions and historical evidence.
Fact of the Case:
The plaintiffs filed a suit for declaration of Bhumiswami right in a property and to restrain the State of Madhya Pradesh from interfering in their possession. The State Government claimed that the first plaintiff was a trespasser and the suit was not maintainable.
Finding of the Court:
The court found that the first plaintiff was not a trespasser and had become the Bhumiswami of the property by operation of law. It also held that the civil suit for declaration and injunction was maintainable without availing the remedy under Section 57(2) of the Code.
Issues: Whether the first plaintiff was a trespasser, whether he was a Government lessee, and whether the civil suit was maintainable without availing the remedy under Section 57(2) of the Code.
Ratio Decidendi: The court relied on the legal provisions of the Revenue Act of 1917, Abolition of Proprietary Rights Act, 1950, and M.P. Land Revenue Code, 1954 to establish the Bhumiswami right of the plaintiff and the maintainability of the civil suit.
Final Decision: The appeal was dismissed, affirming the Bhumiswami right of the plaintiff and the maintainability of the civil suit.
1. Feeling aggrieved by the judgment and decree dated 9-8-1997 passed by learned First Additional Judge, Mundwara to the Court of District Judge, Mundwara in Civil Suit No. 21-A/1993 decreeing the suit of the plaintiffs, the State of Madhya Pradesh has preferred this appeal under Section 96 of the Civil Procedure Code.
2. The facts, in brief, for the purposes of disposal of this appeal lie in a narrow compass. Suffice it to say that a suit for declaration of Bhumiswami right in respect to the immovable property the description whereof has been mentioned in the plaint and which is the subject-matter of the suit has been filed by the plaintiffs on 24-6-1993 with a further relief that the State of Madhya Pradesh and its functionaries be restrained from interfering in their possession. According to the plaintiffs, they are the owners in Bhumiswami right in respect to the suit property and also the various superstructures built thereupon. First plaintiff, Radhika Prasad Katare bought the suit property in Malik Makbooja right vide sale deed dated 24-5-1948 from its previous owner, viz., Church of England Zenana Mission Society (hereinafter referred to as "the Society") a Charitable Trust which was in occupation since the time immemorial to carry on its religious activities like running of school and orphanage etc. Further it has been pleaded by plaintiffs that originally the suit properly belonged to one Miss Elizabeth Branch, Spinster residing at Pachmarhi in Malik Makbooja rights who vide registered transfer/sale deed dated 21-3-1906 sold out the suit property in favour of the above said Society in Malik Makbooja right including the superstructure built thereupon and various buildings in the nature of hostel, orphanage, houses, messauges, tenements and well etc. After having purchased the suit property by first plaintiff he in some portion installed an Oil Mill, namely, Shankar Oil Mill and also raised various constructions from time to time with due permission of Municipal Corporation. Katni and rented out some of them to various tenants, who are in all 28 in number. In Paras 7 and 8 of the plaint, it has been pleaded that land revenue was fixed and enhanced from time to time by the erstwhile Government. In Para 10, it has been pleaded that after a period of 37 years first plaintiff Radhika Prasad all of a sudden received a notice on 24-6-1991 from Naib Tehsildar, Nazul, Katni to the effect that he was in possession of the Nazul land on 30 years' permanent lease from the Government on annual rent of Rs.126.56 paise vide order passed in Revenue Case No. 17/VII5/51-52 which had expired long back and he should take immediate steps else legal action would be taken against him for its eviction etc. According to the plaint, averments made in Para 11 of the plaint, first plaintiff-Radhika Prasad Katare is an ordinary old businessman who is not acquainted with the law and above case of 1952 was also not within his memory nor the findings given in that case. Believing the above notice of Naib Tehsildar to be correct he was advised to make an application for renewal of the lease immediately without wasting any time so as to save his immovable property (the disputed property) of huge valuation, but, although he moved such an application it was not pressed and the same was dismissed.
3. Further it has been pleaded by the plaintiffs that since the suit land was declared abadi to be used as building sites, according to Section 219 of the Central Provinces Land Revenue Act, 1917 (for short "the Revenue Act of 1917") every old occupations were validated and the sites were allowed to be retained as owner thereof and these sites were made heritable and transferable by the Government. Further it has been pleaded that according to the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienate Lands) Act, 1950 (in short "the Abolition of Proprietary Rights Act") all the abadi sites were required to be settled wi
