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2011 Supreme(MP) 636
2012 jk fu 26o 2012 RN 26
¼mPp U;k;ky;½ (HIGH COURT)
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A.K. Shrivastava, J.
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Santosh Sharma v. Stateof M.P. and another
f}rh; vihy dz- 3 lu~ 1995 (tcyiqj)( fu.khZr fnukad 18-8-2011A
Second Appeal No. 3 of 1995 (Jabalpur); Decided on 18.8.2011.
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Kapil Jain for appellant; Akhilesh Singh, Panel Lawyer for respondents.
Headnote:1- Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 248 ¼1½ & rglhynkj ds vkns‘k ls 1-6-1959 dks foU/; izns‘k jkT; esa Hkwfe dk iV~Vk fn;k x;k & 2-10-1959 dks lafgrk ds izo`Rr gksus ij & ,slk iV~Vsnkj d`"kd fof/k ds izHkko ls HkwfeLokeh gks x;k & mls vfrdzked ugha dgk tk ldrkA ¼iSjk 11 rFkk 12
2- Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 158 ¼1½ ¼?k½ ¼,d½ & foU/; izns‘k jkT; esa 1-6-1959 dks Hkwfe dk iV~Vk iznku fd;k x;k & ,slk iV~Vsnkj d`"kd 2-10-1959 dks lafgrk ds izo`Rr gksus ij fof/k ds izHkko ls HwkfeLokeh gks x;kA
¼iSjk 11 rFkk 12
3- Hkw&jktLo rFkk d`"kdkf/kdkj vf/kfu;e] 1953 ¼fo-iz-½ & /kkjk 2 ¼1½ (xvi) ¼[k½ & iV~Vsnkj d`"kd & ls vfHkizk; & rglhynkj ds vkns‘k }kjk Hkwfe dk iV~Vk iznku fd;k x;k & d`"kd iV~Vsnkj d`"kd gS & ,slk d`"kd 1959 dh lafgrk ds izo`Rr gksus ij HkwfeLokeh gks x;kA ¼iSjk 11 rFkk 12
(1) Madhya Pradesh Land Revenue Code, 1959 -- S. 248 (1) -- patta of land granted by order of Tahsildar on 1.6.1959 in Vindhya Pradesh region -- on coming into force of Code on 2.10.1959 -- such pattedar tenant became Bhumiswami by operation of law -- he cannot be said to be trespasser. [Paras 11 and 12
(2) Madhya Pradesh Land Revenue Code, 1959 -- S. 158 (1) (d) (i) -- patta of land granted on 1.6.59 in Vindhya Pradesh region -- such pattedar tenant became Bhumiswami on enforcement of Code on 2.10.1959 by operation of law. [Paras 11 and 12
(3) Land Revenue and Tenancy Act, 1953 (V.P.) -- S. 2 (1) (xvi) (b) -- Pattedar tenant -- means of -- patta of land granted by order of Tahsildar -- tenant is pattedar tenant -- such tenant became Bhumiswmi on enforcement of Code of 1959. [Paras 11 and 12
1. This is plaintiff second appeal against that judgment and decree passed by learned Trial Court and which has been affirmed by learned First Appellate Court.
2. The plaintiff filed a suit for declaration that the proceeding initiated against him by the State Government (defendant) under section 248 of the M.P. Land Revenue Code (in short “Code”) is illegal and ineffective against him and the patta dated 1.06.1959 which has been given to him in pursuance to the order of Tehsildar dated 29.4.1959, he had become the bhumiswami on coming into the force of the Code. In the alternative, it has been prayed that since the plaintiff is possessing the suit property for last 35 years he has acquired the bhumiswami right by way of adverse possession. A decree of permanent injunction has also been sought by him that the defendants be restrained from interfering into his possession.
3. The defendants filed written statement and refuted the plaint averments, however, the possession of the plaintiff has been admitted. According to defendants, the possession of the plaintiff is that of a trespasser.
4. Learned Trial Court after framing necessary issues recorded the evidence of the parties and thereafter partly decreed the suit of the plaintiff holding that defendants shall not evict the plaintiff from suit land without adopting the due process prescribed under the law. The other reliefs claimed by the plaintiff have not been allowed and the suit in that regard has been dismissed.
5. The plaintiff assailed that part of the judgment and decree of learned trial Court by which his suit was partly dismissed by filing a first appeal, which has been dismissed by the impugned judgment and decree.
6. In this manner this second appeal has been filed by the plaintiff.
7. This Court on 18.9.1995 has admitted the second appeal on the following substantial question of law :
“If the Courts below erred in not holding that the appellant was a Pattedar tenant and as such was bhumi-swami of the relevant land under section 158 of M.P.L.R. Code?
8. By inviting my attention to the foundation stone of the case Ex. P/7 which is a Patta dated 1.6.1959 it has been put-forth by learned counsel that in this Patta the name of Zamindar Sarkar Bahadur is mentioned and Khata No. 21 Khasra No. 370 having area 0.05 dismal has been mentioned and in the column of Nauiyat Kasht, Pattedar has been mentioned. Hence, learned counsel submits that since this Patta was given earlier to coming into force of Code, therefore, on 2.10.1959 when the Code came into force the plaintiff became bhumiswami. In this context learned counsel has invited my attention of section 158 (1) (iii) of the Code.Hence, it has been contended by learned counsel that learned two Courts below erred in substantial error of law dismissing the suit.
9. On the other hand learned counsel for respondents argued in support of impugned judgment.
10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.
Regarding substantial question of law :-
11. The foundation stone of the case is the Patta dated 1.6.1959 (Ex. P/7) which has been granted to one Kashi Prasad who was the father of plaintiff. On going through Patta (Ex. P/7) this Court finds that disputed property was given to Kashi Prasad as Pattedar because in the column of Nauiyat Kasht, Pattedar is mentioned. In this Patta it has been mentioned that by order of Tehsildar in file No. 349 dated 29.4.1959 to open a dairy over land which was given to him. Thus, the plaintiff’s father was the Pattedar when the Code came into force. At this juncture, it would be profitable to quote the relevant provisions of section 158 subsection (1) of the Code, which reads thus :
158. Bhumiswami : - (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by
