Back
2014 Supreme(Chh) 47
HIGH COURT OF CHHATTISGARH, BILASPUR
SANJAY K. AGRAWAL, J.
GHUDAURAM – Appellant
Vs.
BADARU & OTHERS – Respondents
Second Appeal No. 348 of 2001
Decided on: 7-2-2014
Shri Prafull Bharat and Shri Vikas Shrivastava, Advocates, for the Appellant/defendant No. 1.
Smt. Savita Tiwari, Advocate, for the Respondents/plaintiffs.
Shri Sanjeev Kumar Agrawal, Panel Lawyer, for the State/respondent/defendant No. 2.
Headnote:
Civil Procedure Code, 1908 – Section 96 and 100 – M.P. Land Revenue Code – Section 257, 168 and 190 – Land Revenue Code – Sections 110, 169 and 190 – Madhya Pradesh Land Revenue Code, 1954 Vindhya Pradesh Land Revenue and Tenancy Act, 1953 – Madhya Bharat Zamindari Abolition Act, 1951 – Madhya Bharat Ryotwari Sub-Lessees Protection Act, 1955 – Plaintiffs filed a suit for declaration of title, possession and for declaration of order of Tahsildar as null and void stating inter alia that the suit lands plaintiffs are title and possession holder of scheduled suit land Duly entered in schedule I annexed with plaint further pleaded that with plaintiffs defendant is cultivating land out of land belonged to them out of land and defendant made an application before an application basis that and on said application Tahsildar by order declared that defendant occupancy tenant entitled for Bhumiswami right on said land pleaded that plaintiffs father and sought for relief of declaration of title and possession and declaration of order of Tahsildar as null and void – Held, Whether defendant acquired status of occupancy tenant in respect of scheduled suit land deals with conferral of Bhumiswami right on occupancy tenant and operate only when who is admittedly an occupancy tenant – Case defendant was not admittedly an occupancy tenant but he made an application before Tahsildar, Kondagaon, District Bastar for conferral of rights as a occupancy tenant unregistered sale-deed which is inadmissible in evidence and defendant has not acquired any right of an occupancy tenant – It is held that civil suit framed and filed is clearly maintainable and both Courts below have rightly held that Tahsildar had no jurisdiction to pass order and as such judgment and decree passed by both Courts below deserve to be affirmed – High Court in a second appeal should not disturb concurrent findings of fact unless it is shown that findings recorded by Courts below are perverse being based on no evidence or that on evidence on record no reasonable person could have come to that conclusion may note here that solely because another possible on basis of evidence High Court would not be entitled to exercise jurisdiction – Appeal Dismissed.
1. The substantial questions of law involved and to be answered by this Court in this appeal are as under:
"(1) Whether in view of the bar contained in Section 257 of the M.P. Land Revenue Code the suit in the present form was maintainable ?
(2) Whether findings of both the Courts below that the order of the Tahsildar passed under Section 190 of the M.P. Land Revenue Code was without jurisdiction in view of the Section 168(2) of the M.P. Land Revenue Code, is contrary to law on the basis of material available on record?"
[For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.]
2. The imperative facts required to be noticed for adjudication of this appeal are as under:
(2.1) The plaintiffs filed a suit for declaration of title, possession and for declaration of order of Tahsildar dated 29-11-1996 as null and void stating inter alia that the suit lands plaintiffs are title and possession holder of the scheduled suit land Duly entered in the schedule I annexed with the plaint. It was further pleaded that with the plaintiffs defendant No.1 Ghudauram is cultivating Khasra No. 188/1 area 3.02 acres of the land out of land belonged to them out of 11.49 acres of the land and on 12-6-1996 the defendant No.1 made an application before the Tahsildar, Kondagaon an application under Sections 110, 169 and 190 of the Land Revenue Code (henceforth 'the LR Code') on the basis that and on the said application the Tahsildar by order dated 29-11-1996 declared that the defendant No.1 is an occupancy tenant and, therefore, he is entitled for Bhumiswami right on the said land under Sections 110, 169, 190 of the LR Code. It was pleaded that the plaintiffs father died in the year 1977 and sought for the relief of declaration of title and possession and declaration of order of Tahsildar as null and void.
(2.2) The defendant No.1 filed his written statement stating inter alia that the defendant No.1 is in possession of the scheduled suit land for last 22 years and has also perfected his title by adverse possession and further pleaded that the plaintiffs mother Ganga on 3-5-1984 sold the suit land in favour of plaintiff's son for cash consideration of Rs.4,000/- and has also executed a receipt on 3-5-1984 and thus prayed that the suit be dismissed.
3. The trial Court by its judgment and decree dated 30-1-1999 granted a decree that the order of Tahsildar, Kondagaon, District Bastar dated 29-11-1996 (Ex.P-7) is null and void and further directed to defendant No. 1 to hand over peaceful possession of the suit land to the plaintiffs.
4. Defendant No.1 challenged the judgment and decree granted by the trial Court in first appeal preferred under Section 96 of the Code of Civil Procedure, 1908 (henceforth 'the CPC') before the first appellate Court. The first appellate Court by the impugned judgment and decree affirmed the judgment and decree passed by the trial Court resulting into filing of the instant appeal by defendant No. 1 under Section 100 of the CPC.
5. This is an appeal by defendant No. 1 under Section 100 of the CPC challenging the judgment and decree dated 26-7-2001 passed by 3rd Additional District Judge, Bastar at Jagdalpur in Civil Appeal No. 10-A/99 arising out of the judgment and decree dated 30-1-1999 passed by Civil Judge Class-II, Kondagaon in Civil Suit No. 22-A/97.
6. Shri Prafull Bharat and Shri Vikas Shrivastava, learned counsel appearing for the appellant/defendant No. 1 would submit that both the Courts below have concurrently erred in entertaining the suit and granting the decree in favour of the plaintiff in view of specific bar created under Section 257(o) of the LR Code. Shri Bharat would further submit that the findings of the two Courts below holding the order of Tahsildar, Kondagaon, District Bastar dated 29-11-1996 (Ex.P-7) under Section 190 of the LR Code was without jurisdiction in view of Section 168(2) of the LR Code.
7. Combating the submission made by Shri Prafull Bhar
