A suit claiming Bhumiswami rights against the State is barred under Section 57(2) of the M.P. Land Revenue Code, 1959, as such a claim amounts to a claim of ownership, which must first be adjudicated by the Sub-Divisional Officer under Section 57(2) of the Code.

S.S. Jha, J.

1. This appeal is admitted on the following substantial questions of law :--

(i) "Whether the suit filed by the plaintiffs/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 ?"

2. For appreciating the dispute, Section 57 of M.P. Land Revenue Code (Hereinafter, referred to as 'Code') is reproduced below :--

"57. State ownership in all lands :--

(1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government :

Provided that nothing in this Section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person, subsisting at the coming into force of this Code in any such property.

(2) Where a dispute arises between the State Government and any person in respect of any right under Sub-section (1) such dispute shall be decided by the Sub-Divisional Officer.

(3) Any person aggrieved by any order passed under Sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order.

(3-a) (a) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1980) no civil Court shall, in a civil suit instituted under Sub-section (3) on or after 24th October, 1983, by order of temporary injunction disturb the person to whom possession is restored under Section 250 if such person furnishes a reliable surety to recompensate the aggrieved party against any loss in case the Civil Court grants a decree in favour of the aggrieved party :

Provided that no surety shall be required to be furnished by a member of a tribe declared to be an aboriginal tribe under Sub-section (6) of Section 165,

(b) Where a civil Court by an order of temporary injunction disturbed the person referred to in Clause (a) on or after 24th October, 1983, but before the publication of Revenue Department's Notification No. 1--70-VII-N-2-83, dated 4th January, 1984 such order shall abate on such publication and the Tehsildar shall restore possession to a person who is disturbed by such order. (4) Where a civil suit has been instituted under Sub-section (3) against any order such order shall not be subject to appeal or revision."

3. Learned counsel for the appellants raised following contentions :--

(a) In a case where there is no dispute as to ownership between the State and plaintiff, bar of suit under Section 57 (2) of the Code is not attracted.

(b) When a declaration that all the lands in the State are owned by the State Government, then no claim for right of ownership against State can be made.

(c) Plaintiffs are claiming rights of 'Bhumiswami' against the State, therefore in the absence of claim as to ownership against the State suit is not barred under Section 57(2) of the Code.

(d) Proviso to Section 57(1) of the Code provides that rights subsisting at the time of enforcement of the Code are saved.

(e) Since Bhumiswami is only one class of holder of land under Section 158 of the Code, the claims of Bhumiswami rights against the State are maintainable.

4. Learned counsel for the appellants placed reliance upon the following judgments in the cases of State of M.P. v. Gyasiram (1993 RN 113), Ramsahai v. State of M.P. (1996 RN 195), Ram Veer Singh v. State of M.P. (1997 RN 375), Sheela Devi v. State of M.P. (1994 RN 157), Gajraj v. Jagat Singh (1970 RN 133) and Her Highness Mehr Taj Nawab of Bhopal v. State of M.P. (1977 JLJ 337).

5. Learned counsel for the appellants submitted that Division Bench of this Court in the case of State of M.P. v. Gyasiram (supra) has considered this question in length. Learned counsel strongly relied upon the conclusion