The court held that defendants failed to prove lawful possession of land, affirming the plaintiffs' ownership and the maintainability of their suit under the Repeal Act.

JUDGEMENT

Appellants/defendants have preferred this second appeal under Section 100 of Code of Civil Procedure, 1908 assailing judgment and decree dated 13.9.2020 passed by First Additional Judge to the Court of First Additional District Judge, Bhopal in RCA No.129-A/2010, whereby appellants/defendants’ appeal against judgment dated 31.3.2005 passed by Third Civil Judge Class-I, Bhopal in Civil Suit No.21-A/2004 was dismissed and trial Court’s findings were affirmed.

2. Briefly facts relevant for disposal of present appeal are that respondents/plaintiffs filed a suit for declaration and permanent injunction on the ground that plaintiffs are owner and in possession of Survey No.366, 367, 368, 369, 370/2, 374, 386/413, total area 2.54 acres, situated in Village Bawariyakalan, District Bhopal. Aforesaid property was of joint Hindu family and plaintiffs have received the same in partition and they are in possession of the same since the time they received it in partition. Initially part of aforesaid lands were declared excess under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to “Act, 1976”) and were vested in the State. The aforesaid Act has been repealed on 17.2.2000 and by virtue of provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to “Act, 1999”), the lands, which were not taken possession by the State, have been released. As State never took possession of disputed lands and plaintiffs remained in actual possession of the lands, therefore, the aforesaid lands stand released on account of provisions of the Repeal Act, 1999. Without hearing plaintiffs, name of defendant No.1 has been mutated over the suit property. By virtue of Repeal Act, 1999, plaintiffs are owner of the suit property.

3. Learned counsel for the appellants, after referring to Ex.P-10, submits that in the instant case, date of acquisition is 18.10.1985 and appellants/defendants took possession of the property on 26.11.1990 vide Ex.P-35. It is urged that if notification has been issued and a Panchanama for taking possession has been prepared, then, possession over the land would be presumed to be that of State. Ex.P-35 is conclusive proof of taking of the possession. On the date of institution of suit, proceedings were complete and land was recorded in the name of the State. It is also urged that for State, it is not possible to take physical possession of the land, only symbolic possession is required to be taken by the State. In view of aforesaid, provisions of the Act, 1999 does not benefit respondents/plaintiffs in any manner whatsoever. It is also urged that in view of provisions of the Act, 1976, suit in civil Court is not maintainable.

4. Learned counsel for the appellants further submits that even if taking of possession by the State is not proved, still then, plaintiffs’ suit is not maintainable, because on the date of institution of suit, no proceedings were pending. In this connection, he has referred to Section 4 of the Act, 1999. With respect to aforesaid submissions, learned counsel for the appellants has relied upon the judgments of Hon’ble Apex Court as well as Coordinate Bench of this Court in the case of Competent Authority, Calcutta Vs. David Mantosh and others , (2020) 12 SCC 542 , Sunder Das Vs. Ram Prakash , (1977) 2 SCC 662 , Ram Narayan and others Vs. State of MP and others (WA No.81/2006) decided on 14.2.2022, Rishi Kumar Agrawal and others Vs. State of MP and others (FA No.537/2006) decided on 13.4.2023. On above grounds, it is urged that appeal filed by the appellants be allowed and impugned judgment and decree passed by the trial Court as well as a