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1993 (0) MPLJ 151
S.K. Dubey, J.
Bankat Lal
vs
Mathuralal And Ors.
Decided on : 23 June, 1992
LAND TENURE - ZAMINDARI ABOLITION ACT - MORTGAGE WITH POSSESSION - EFFECT - RIGHTS OF MORTGAGEE - PACCA TENANCY RIGHTS - ACQUISITION - CONDITIONS - BURDEN OF PROOF - FORGERY - PROSECUTION - DISCRETION OF COURT - DELAY - RELEVANCE.
Fact of the Case:
Plaintiff claimed title, possession, and mesne profits over land, alleging he acquired Bhumiswami rights under the Madhya Pradesh Land Revenue Code, 1959, after becoming a 'Pakka' tenant under the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, due to a 'Patta' granted by the ex-Zamindar. The defendants contested, asserting the land was mortgaged as security for a loan, not given on 'Patta,' and that the plaintiff never acquired 'Pakka' tenancy rights. The trial court dismissed the suit, finding the 'Patta' unproven and the plaintiff not in possession. The first appellate court confirmed the dismissal. The plaintiff appealed, raising questions about the acquisition of Bhumiswami rights, the legality of the prosecution order, and the defendants' right to take possession after Zamindari abolition.
Finding of the Court:
The High Court held that the plaintiff failed to prove the execution of the 'Patta' and that the land was not given on lease but was mortgaged as security for a loan. The court found that the plaintiff never went to the land, was not cultivating it personally, and did not acquire 'Pakka' tenancy rights under the Zamindari Abolition Act. The court also held that the defendants, being Zamindars, were entitled to remain in possession of the land as their 'Khudkasht' land under Section 4(2) of the Zamindari Abolition Act. Regarding the prosecution order, the court exercised its discretion and dropped the prosecution proceedings against the plaintiff, considering the long delay and the plaintiff's age.
Issues: 1. Whether the plaintiff acquired the rights of a Bhumiswami? 2. Whether the order directing the prosecution of the plaintiff is in accordance with law? 3. Whether the defendants had a right to take over possession of the land in dispute after the abolition of Zamindari? 4. Had the defendants become 'Pakka' tenant as claimed?
Ratio Decidendi: 1. The court held that the plaintiff failed to prove the execution of the 'Patta' and that the land was not given on lease but was mortgaged as security for a loan. The court found that the plaintiff never went to the land, was not cultivating it personally, and did not acquire 'Pakka' tenancy rights under the Zamindari Abolition Act. Therefore, the plaintiff did not acquire the rights of a Bhumiswami. 2. The court held that the prosecution order was not in accordance with law as the trial court failed to exercise judicial discretion in determining the expediency of prosecution. The court considered the long delay and the plaintiff's age and dropped the prosecution proceedings. 3. The court held that the defendants, being Zamindars, were entitled to remain in possession of the land as their 'Khudkasht' land under Section 4(2) of the Zamindari Abolition Act. 4. The court held that the defendants did not become 'Pakka' tenants as claimed.
Final Decision: The appeal was dismissed with costs.
S.K. Dubey, J.
1. This is a plaintiffs second appeal against concurrent findings of the two Courts below dismissing the suit of the plaintiff for declaration of title, possession and mesne profits claimed at the rate of Rs. 1,000/- per year, in respect of the land situated at Survey Nos. 278 and 279 (new survey No. 216), area 16 Bigha' 12 Biswa', in village Amkheda, Tahsil Chachoda, District Guna.
2. The appeal was admitted on 12-7-1991 for hearing on the following substantial questions of law : --
"1. Whether the plaintiff had acquired the rights of a Bhumiswami?
2. Whether the order directing the prosecution of the plaintiff is in accordance with law?
3. Whether the defendants had a right to take over possession of the land in dispute after the abolition of Zamindari?
4. Had the defendants become 'Pakka' tenant as claimed?"
3. The facts in brief are thus:
According to the plaintiff the land in dispute was given to him on Patta' (ExtP/1) dated 2-8-1943 by Kishorilal, the ex-Zamindar; the plaintiff was recorded as a tenant in the Khasras of Samvat 2007 and 2008; after the enforcement of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (for short, the 'Act') the plaintiff became 'Pakka' tenant as defined under Section 54(vii) of the Act, and after the enforcement of the M.P. Land Revenue Code, 1959 (for short, the 'Code') on 2-10-1959, he became Bhumiswami under Section190 of the Code. It was alleged that the heirs of deceased Kishorilal illegally initiated proceedings under Section 91 of the Act and obtained possession on 6-5-1956. The orders of the Revenue authorities including that of the Board of Revenue are illegal and void; therefore, the delivery of possession to the defendants was illegal; the defendants are in illegal possession from whom the plaintiff is entitled to claim the possession on the basis of his title which he acquired by operation of law.
3A. The defendants contested the suit and contended that no 'Patta' was ever given to the plaintiff either by Kishorilal or his brother Ramkishan; Kishorilal died before 1950 and Ramkishan, who had no issues, pre-deceased him; on the death of Kishorilal, his son Rajaram became Zamindar; the land was mortgaged with possession by Kishorilal as a security for re-payment of a loan; Kishorilal was the manager of the family; therefore, execution of the Patta (Ext.P/1), allegedly by Ramkishan, the brother of Kishorilal, was without any authority, which did not grant any right to the plaintiff of a tenant or of a sub-tenant nor any right of Pakka' Krishak" accrued to him; proceedings under Section 319 of the Qanoon Mal, Gwalior State, Samvat 1983 (for short, the 'Qanoon Mal') were initiated, wherein the Tahsil Court held that the land was given as a security for repayment of loan, which would be evident from columns Nos. 5 and 6 of the Khasra entry of Samvat 2007 (1950-51) (Ext.P/8), which respectively speak "BANKATLAL S/O JAINARAYAN, CASTE MAHESHWARI, R/O KUMBHARAJ, GARECH MU. 8 SAL BARUYE BASHRAT SADAR; BI. LA KARJA PATTA BILL 840 KARJA." The plaintiff did not acquire any right under Section 247 of the Qanoon Mal, of 'Haq Maurusi" or 'Dakhilkar" as he did not cultivate the land personally nor remained in possession for a period of 12 years; the defendants' servants cultivated the land and gave a certain quantity of crop in lieu of loan. The proceedings under Section 319, Qanoon Mal (numbered as Case No. 48/1950) culminated on 22-5-1950, a compromise was arrived at between the parties, according to which the plaintiff agreed to hand over the possession in Samvat 2010, but as the plaintiff did not do so, proceedings under Section 91 of the Act were initiated for restoration of possession. The Tahsildar in case No. 15/55X3/4, by order dated 304-1956, copy of which is Ext.D/1, directed restoration of possession, holding that the Madhya Bharat Zamindari Abolition Act, Samvat 2008 (for short, the 'Zamindari Abolition Act') had no retrospective effect on the agreement or con
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