IMPORTANT POINT
Suit for declaration and possession based on title is not barred under Section 257 of the Madhya Pradesh Land Revenue Code.

JUDGMENT

D.P. Wadhwa, J.-Appellant, Rohini Prasad, is aggrieved by the judgment dated October 19, 1987 of the Madhya Pradesh High Court at Jabalpur delivered in Second Appeal. High Court had set aside the findings of the first Appellate Court that appellant had acquired Bhumiswami rights under the Madhya Pradesh Land Revenue Code, 1959 (for short, the Code ). Appellant was defendant in civil suit filed by the respondent-plaintiff for possession of agricultural land and for mesne profits. Trial Court decreed the suit for possession but did not grant relief for mesne profits. On appeal filed by the defendant (who is now appellant before us), it was allowed and the suit of the plaintiff (now respondent before us) was dismissed. Plaintiff brought the matter to the High Court in second appeal which was allowed. High Court affirmed the decree passed by the trial Court and directed the defendant to hand over vacant possession of the suit land within two months from the date of the judgment and on his failure to do so, the plaintiff would be entitled to mesne profits @ Rs. 1,000/- per year.

2. The disputed land is agricultural land governed under the provisions of the Code. Maqsood Ali and Abid were Bhumiswami of the land. They sold the same to the respondent (Kasturchand) by sale deed dated September 12, 1977. Earlier, they had granted lease for one year of this land for the agricultural year 1975-76 to the appellant (Rohini Prasad). High Court has noticed that agricultural year is from 1.7.1975 to 30.7.1976. Rohini Prasad had contended that lease which was granted for the year 1975-76 was extended for a further year 1976-77. If his contention is correct, he becomes Bhumiswami in view of Section 168 of the Code. This Section, in relevant part, we reproduce as under :

"168. Leases.-(1) Except in cases provided for in sub-section (2) no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years.

Provided that....

(2) ..................

(3) Omitted.

(4) Where a lease is granted in pursuance of sub-section (1), the lessee shall hold the land on such terms and conditions as may be agreed upon between him and the Bhumiswami and may be ejected by an order of a Sub-Divisional Officer on the application of the Bhumiswami on the ground of contravention of any material term or condition of the lease or on the lease ceasing to be in force.

(5) .................."

3. Rohini Prasad, it appears, approached the Naib Tehsildar for declaration of his right as Bhumiswami in view of Section 169 of the Code who held in his favour and by order dated March 7, 1979 conferred Bhumiswami rights on him under Section 190 of the Act. That order of the Naib Tehsildar is not on record but can be inferred from the appellate order of the Sub-Divisional Officer in appeal filed by Kasturchand against that order under the Code. Sections 169 and 190, in relevant parts, are as under :

"169. Unauthorised lease etc.-If a Bhumiswami-

(i) leases out for any period any land comprised in his holding in contravention of Section 168; or

(ii) by an arrangement which is not a lease under sub-section (1) of Section 168 allows any person to cultivate and land comprised in his holding otherwise than as his hired labour and under that arrangement such person is allowed to be in possession of such land for a period exceeding two years the right of an occupancy tenant shall-

(a) in the case of (i) above, thereupon accrue to the lessee in such land; and

(b) in the case of (ii) above, on the expiration of a period of two years from the date of possession accrue to such person in that land :

Provided that..."

"190. Conferral of Bhumiswami rights on occupancy tenants.-(1) Where a Bhumiswami whose land is held by an occupancy tenant belonging to any of the categories specified in sub-section (1) of Section 185 except in items (a) and (b) of claus