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1992 Supreme(MP) 107
High Court Of Madhya Pradesh
R. C. LAHOTI
BADRILAL - Appellant
Versus
RAMPYARI - Respondents
S. A. 222 Of 1977
Decided On : 02/28/1992
A.K.CHITALE, S.D.SANGHI
Bhumiswami rights are capable of being acquired by adverse possession.
Headnote:
ADVERSE POSSESSION - Bhumiswami Rights - Acquisition - Madhya Pradesh Land Revenue Code, 1959 - Section 165 - Madhya Pradesh Land Revenue and Tenancy Act, 1950 - Section 70 - U. P. Zamindari Abolition and Land Reforms Act, 1951 - Section 152 - Whether Bhumiswami rights are capable of being acquired by adverse possession.
Fact of the Case:
The plaintiffs filed a suit for declaration of title and confirmation of possession over the suit property, claiming that they had acquired Bhumiswami rights over the land by adverse possession. The defendants contested the suit, contending that the plaintiffs had not acquired any title by adverse possession and that the suit was barred by time.
Finding of the Court:
The Court held that Bhumiswami rights are capable of being acquired by adverse possession, overruling the earlier decision in Mangilal v. Onkar, 1976 JLJ SN 39. The Court further held that the plaintiffs had succeeded in proving that they had acquired title to the suit property by adverse possession, as they had been in exclusive possession of the land for over 30 years, claiming and canvassing their right to have their names recorded as owners in the revenue papers.
Issues: 1. Whether Bhumiswami rights are capable of being acquired by adverse possession? 2. Whether the plaintiffs had acquired any title by adverse possession over the suit property? 3. Whether the suit was barred by time?
Ratio Decidendi: 1. The Court held that Bhumiswami rights are capable of being acquired by adverse possession, relying on the Full Bench decision in Kashiram Gari v. Nathu, 1980 JLJ 879, which held that "title may be acquired by adverse possession on the land of a Bhumiswami who can transfer his land without any impediment." 2. The Court held that the plaintiffs had succeeded in proving that they had acquired title to the suit property by adverse possession, as they had been in exclusive possession of the land for over 30 years, claiming and canvassing their right to have their names recorded as owners in the revenue papers. 3. The Court held that the suit was not barred by time, as the plaintiffs were not obliged to sue immediately after they had knowledge of the adverse entry in the revenue records, but could wait to bring their suit when an attempt was made to oust them from possession on the basis of the entry.
Final Decision: The Court dismissed the appeal and confirmed the decrees of the Courts below, holding that the plaintiffs had acquired Bhumiswami rights over the suit property by adverse possession and that the suit was not barred by time.
( 1 ) ONE set of defendants, consisting of defendants Nos. 2 to 9, has come up in appeal, aggrieved by the judgments and decrees of the two courts below, directing the suit filed by the plaintiff/ respondents Nos. 1 to 4 to be decreed in part granting a decree of declaration of title with respect to the part of the suit property, also declaring plaintiffs' entitlement to take water from the two wells proportionate with certain shares. The trial Court has held that the four plaintiffs with Mangilal, the defendant No. 1 are Bhumiswamis of the land described in para 12 (a) of the plaint, also entitled to have their names mutated in the revenue papers accordingly, that the plaintiffs are entitled to take water from the well S. No. 164 to the extent of 1/4th; that S. No. 443 area 3 acres 8 decimal had fallen to the share of the plaintiffs and Mangilal the defendant No. 1 and they were the Bhumiswamis entitled to have their name mutated in the revenue papers; that the plaintiffs were also entitled to take water from the well S. No. 419 to the extent of 3/8th. As to land S. No. 163 and S. No. 155/1968, the suit filed by the plaintiffs seeking separate possession by partition and recovery of mesne profits has been directed to be dismissed.
( 2 ) THE following is the family tree of the parties which has not been disputed: - thus the dispute is mainly between the heirs of late Mukund on the one side and the heirs of late Sitaram on the other side. The defendants Nos. 10 to 17 are the collaterals of these parties.
( 3 ) THERE were two agricultural holdings in the family. One of the holdings consisted of 25. 84 acres, situated at village Rajoda and known as Ryotwari Khata. The land forming part of this Ryotwari Khata is not subject-matter of dispute between the parties though a reference may be required to be made to it hereinafter and that is why this fact is being mentioned. There is another holding consisting of 51-32 acres situated at village Rajoda and known as Khata haq malikana which is the subject-matter of dispute. The details of the land forming part of Khata haq Malikana are given in para 10 of the plaint. The survey numbers, the area and the location of the land are not in dispute.
( 4 ) ACCORDING to the plaintiffs, Khata haq malikana was acquired in the name of Shobharam with the aid of joint family funds, the earnings of Ryotwari Khata forming nucleus for such acquisition and having been so acquired the land continued to be enjoyed jointly by Shobharam and Mukund and their family members until the year 1931-32 when it came to be partitioned. The partition was oral one whereat 24. 26 acres of land described in plaint para 12 (a) fell to the share of Mukund and 25. 90 acres of land described in plaint para12 (b) fell to the share of Shobharam. Both of them entered in possession of the land falling to their respective shares. Hiralal who was a collateral of Shobharam and Mukund was given 2. 36 acres of land described in para 14 of the land for the purpose of maintaining himself as a licensee and that land has continued to remain in his possession always. There were wells situated over S. Nos. 164 and 419. As the wells were not capable of being partitioned, it was agreed upon at the time of partition, that Mukund shall be entitled to take water to the extent of 1/4th from the well S. No. 164 and to the extent of 3/8 from the well S. No. 419, in accordance with which shares the plaintiffs have always been taking the water. In spite of the land having been partitioned, the names of Mukund, and thereafter his heirs, were not recorded in the revenue papers and the names of Shobharam and thereafter Sitaram and his sons continued to remain recorded. The dispute arose when Sitaram expired on 1-4-l970 and the defendants Nos. 2 to 9 applied for mutation in their own names while the plaintiffs and the defendant No. 1 filed objections simultaneously praying for their own names to be mutated. The proceedings in mutation ulti
