Court upheld that conferral of Bhumiswami rights under specific state legislation needs proper evidential basis; procedural flaws in suits must be recognized.

ORDER It is submitted by Shri Bhargava that he has no instructions. Thus, respondent is proceeded ex parte.

2. This second appeal, under Section 100 of CPC, has been filed against the judgment and decree dated 9/8/2001 passed by I Additional District Judge Vidisha in Civil Appeal No. 14A/2000, as well as, judgment and decree dated 28-08-1995 passed by Civil Judge Class I, Kurwai, District Vidisha in Civil Suit No. 42A/1994.

3. The appellant is the defendant who has lost its case from both the Courts below.

4. The facts necessary for disposal of the present appeal, in short, are that the plaintiff filed a suit for declaration of title and permanent injunction, claiming inter alia that the disputed property is Survey No. 261/3, Area 1.672 hectares which is situated in village Barkheda, Tahsil Kurwai, District Vidsiah. The plaintiff was in possession of the said property even prior to Signature Not Verified Signed by: ANAND

1984 and apart from the property in dispute, he had no other land and, accordingly in the year 1984, he became Bhumiswami. It was pleaded that by order dated 14-10-1988 passed by Naib Tahsildar, Kurwai in Case No. 15/A-19/87-88, the Bhumiswami rights were conferred on the plaintiff and accordingly the name of the plaintiff was also recorded in the capacity of a Bhumiswami and the plaintiff is in cultivating possession of the property in dispute. It was pleaded that the SDO, without looking into the record of the case, set aside the order of conferral of Bhumiswami rights passed by the Naib Tahsildar on 14-10-1988 and remanded the matter back. It was pleaded that no original document was received by the Court of SDO, therefore he had no authority to remand the matter back to the Court of Naib Tehsildar. It was further pleaded that the SDO had granted two months’ time to the Naib Tehsildar to pass the order, however in spite of expiry of two months, no final order has been passed by the Naib Tehsildar and the matter has been kept pending unnecessarily. The suit was filed for declaration that the plaintiff is the owner of Survey No. 261/3, area 1.672 hectares situated in Village Barkheda and the defendants be restrained from interfering with peaceful possession of the plaintiff either by themselves or through their agents, and it was also prayed that the order dated 18-3-1992 passed by SDO in Case No. 75/90 be declared as null and void.

5. The defendants/appellant filed its written statement and it was pleaded that the settlement of more than one acre of land in favor of plaintiff was illegal. The SDO has taken the matter in suo motu revision and set aside the order of settlement. If the plaintiff was aggrieved by the order passed by Signature Not Verified Signed by: ANAND the SDO, then he should have preferred an appeal before the competent Authority, which was not done. It was further pleaded that the matter was remanded back by the SDO and therefore, the plaintiff has no case in his favour.

6. The trial Court, after framing issues and recording evidence, decreed the suit. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal which too has been dismissed by the appellate Court.

7. This second appeal has been admitted on the following substantial questions of law:-

"(1) Whether courts below are justified to pass the judgment and decree declaring title of the plaintiff on the suit land under the Madhya Pradesh Krishi Prayojan Ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upabandh) Adhiniyam, 1984 , without having any pleading that the plaintiff is the agricultural labourer and not possessing the land in the village, in his name or in the name of members of his family as specified therein?

(2) Whether the suit filed by the plaintiff setting aside the order of SDO is maintain