Madhya Pradesh High Court
Ghisalal vs Bhuwanilal (Decd.) Thru.Lrs Mohanlal on 16 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 581 of 1998
GHISALAL
Versus
BHUWANILAL (DECD.) THRU.LRS MOHANLAL AND OTHERS
Appearance:
Shri Sunil Kumar Jain, Senior Advocate with Shri Akshat Pahadiya, Advocate for the
appellant.
Shri A.S. Kutumbale, Senior Advocate with Shri B.S. Gandhi, Advocate for the
respondents.
WITH
SECOND APPEAL No. 596 of 1998
GHISALAL
Versus
BHUWANILAL (DECD.) THRU.LRS MOHANLAL AND OTHERS
Reserved on :- 18.11.2024
Pronounced on :- 16.04.2025
_____________________________________________________________________
JUDGEMENT
Since these appeals arise out of the same suit and common judgment passed
by the lower appellate Court, they have been heard together and are being decided
by a common order.
Signature Not Verified
Signed by: SHILPA
NAAGDEVE
Signing time: 16-Apr-25
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02. For appreciating the disputes involved in these appeals, the genealogical
tree of the parties being material is reproduced below:-
GIRDHARILAL
(Dead)MOTILAL HEERALAL
(Dead) (Dead 1950)SHANTILAL BHAWANILAL NATHULAL
(Def. 1) (Plff. 1) (Plff. 2)
03. The case of plaintiffs is that Motilal was the owner of the suit lands
bearing survey Nos.1407, 1408, 1049 and 1412 at Gram Jeeran, Tehsil and District
Neemuch. He had given the same to plaintiff’s father Heeralal perpetually for
cultivation upon payment of land revenue. A document in that regard was also
executed by Motilal in favor of Heeralal on 04.03.1945. Since then Heeralal and
after him plaintiffs have been in possession of the suit lands paying land revenue to
Motilal and after his death to his adopted son, Shantilal. They have become the
owners of the suit lands by operation of law. After death of Motilal, defendant No.1
illegally got himself recorded over the suit lands in the revenue records. He has never
been in possession thereof. On 14.06.1989 defendant No.1 threatened to forcibly
dispossess the plaintiffs from the suit lands and by a registered sale deed dated
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NAAGDEVE
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19.06.1989 sold the same in favour of defendant No.2. The plaintiffs have acquired
knowledge during pendency of the suit that a document dated 09.06.1989 titled to
be an agreement has fraudulently been got executed by defendant No.1 from plaintiff
No.1 by practicing fraud. The same is not binding upon the plaintiffs. No admission
has been made by plaintiff No.2 as regards title of defendant No.1.
04. On such contentions, the plaintiffs instituted an action for declaration of
their title to the suit lands, declaration that the sale deed dated 19.06.1989 is null and
void and not binding upon them and for permanent injunction restraining the
defendants from interfering with their possession over the suit lands.
05. Defendants No.1 and 2 filed their separate written statements taking the
same plea that the suit lands were not held by Motilal. The same are ancestral land.
Upon death of Motilal, defendant No.1 was mutated over the suit lands in the
revenue record as Bhumiswami. No document was executed by Motilal on
04.03.1945. He had given the suit lands to Heeralal for cultivation under a license
upon payment of land revenue. The Bhumiswami however was Motilal and after his
death, defendant No.1 became the Bhumiswami thereof. After death of Heeralal,
plaintiff No.1 has been cultivating the suit lands as licensee of defendant No.1. After
taking the crops for the year 1987-88, plaintiff No.1 voluntarily delivered possession
of the suit lands to defendant No.1. An agreement in that regard was also executed
on 09.06.1989. Defendant No.1 has since then been in possession and has validly
sold the suit lands in favour of defendant No.2. Defendant No.2 also laid a counter
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NAAGDEVE
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claim for permanent injunction, restraining the plaintiffs from interfering with his
possession over the suit lands.
06. By judgment and decree dated 03.01.1995, the trial Court held that
defendants have proved that on 09.06.1989 plaintiff No.1 had executed a document
in favor of defendant No.1 in which he had stated that he has already delivered
possession of the suit lands to him. The defendants have also proved that one year
prior to execution of the said document possession of the suit lands had been
delivered by plaintiff No.1 to defendant No.1 which has been delivered by him to
defendant No.2. Plaintiffs have failed to prove that plaintiff No.1 is in possession of
the suit lands. The document executed in favor of Heeralal by Motilal was a license
and was not a lease deed hence on the basis of the same, he has not acquired any
right since he was not a sub-tenant of the suit lands. The plaintiffs have failed to
prove that they have acquired Bhumiswami rights to the suit lands by operation of
law. In consequence, plaintiffs’ claim was dismissed. Further holding that since
defendants are in possession of the suit lands, their counter claim does not require
any adjudication.
07. Being aggrieved by the judgment and decree aforesaid, plaintiffs as well
as defendant No.2 preferred separate appeals before the lower appellate Court. By
the impugned judgment and decree dated 29.07.1998, the appeal preferred by
plaintiffs has been allowed, whereas that preferred by defendant No.2 has been
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NAAGDEVE
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dismissed. Consequently, the plaintiffs’ claim stands decreed and the counter claim
of defendant No.2 stands dismissed.
08. The lower appellate Court has held that the document dated 04.03.1945 is
not a license but is a lease deed. Under the same, Heeralal was put in possession of
the suit lands and by operation of law, upon coming into force of M.P. Land Revenue
Code, 1959, acquired Bhumiswami rights in the suit lands. Upon his death the
plaintiffs have become the Bhumiswamis. No steps were ever taken by defendant
No.1 for obtaining possession of the suit lands from plaintiffs. Since defendant No.1
did not remain to be the Bhumiswami of the suit lands the sale deed executed by him
on 19.06.1989 in favor of defendant No.2 is without any authority and is not binding
upon plaintiffs. It has not been proved that on 19.06.1989 possession of the suit lands
was delivered by plaintiffs to defendant No.1.
09. By order dated 24.09.2002, these appeals were admitted on the following
substantial questions of law:-
“(1) Whether the Lower Appellate Court was justified in reversingh the decree passed by
the Trial Court dismissing the suit so too the counter claim filed by defendant No.2
Ghasilal (appellant herein)?
(2) Whether lower appellate Court was justified in decreeing the suit filed by the plaintiff
and dismissing the Counter claim of defendant No.2 ?
(3) Wheter finding recorded by the First Appellate Court that plaintiff has acquired the
rights of Bhumiswami the suit land on account of their long possession is factually and
legally sustainable ?
(4) Whether finding of Lower Appellate Court that the sale deed dated 19.6.89 executed
by Shantilal in favour of Ghisalal (Appellant/defendant No.2) is not binding on plaintiff
and hence void is legally and factually sustainable ?”
Signature Not Verified
Signed by: SHILPA
NAAGDEVE
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10. Thereafter, by order dated 21.11.2024, following substantial questions of
law were also framed in this appeal and the learned counsel for the parties have been
heard on them also:-
“(5) Whether, the first appellate Court misread and mis-interpreted the document Exhibit
P/35 in holding it to be a lease and not licence and further erred in reversing findings of
the Trial Court on that issue?
(6) Whether the first appellate Court committed a grave error of law in reversing the
findings of the Trial Court on issue no.6(a) (b) as to the document marked as Exhibit
D/1?”
11. Learned senior counsel for defendant No.2 has submitted that the lower
appellate Court has erred in holding the document dated 04.03.1945 (Exhibit P/35)
to be a lease deed and not a license. From the contents of the document and the
manner in which the suit lands were given thereunder, it is evident that the same is
a license and not a lease deed. The necessary requisites for holding the document to
be a lease deed are wholly absent. By holding the document to be a lease deed, the
entire judgment of the lower appellate Court has been vitiated. It is further submitted
that by operation of law, plaintiffs did not acquire any Bhumiswami rights over the
suit lands. The relevant legal provisions as were applicable at the time of execution
of the document and thereafter from time to time have not been properly
appreciated. Motilal and after him defendant No.1 continued to be the Bhumiswami
of the suit lands. On 09.06.1989 document (Exhibit D/1) was executed by plaintiff
No.1 in favor of defendant No.1 delivering possession of the suit lands to him which
document and delivery of possession pursuant thereto has been duly proved by the
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NAAGDEVE
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defendants but the same has been illegally disbelieved by the lower appellate Court.
After obtaining possession of the suit lands, defendant No.1 validly executed sale
deed with respect thereto in favor of defendant No.2 followed by delivery of
possession. Since plaintiffs are not the owners of the suit lands, their claim deserves
to be dismissed and counter claim of defendant No.2 deserves to be decreed.
Reliance has been placed on the decision of the Apex Court in Delta International
Ltd. v. Shyam Sundar Ganeriwalla and Another, 1999 (4) SCC 545, Associated
Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262 and R.V.E. Venkatachala
Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, 2003 (8) SCC
752.
12. Per contra, learned counsel for the plaintiffs has submitted that the lower
appellate Court has not committed any error in reversing the judgment and decree
passed by the trial Court. The document dated 04.03.1945 (Exhibit P/35) is a lease
deed and is not a license. Admittedly, plaintiffs remained in possession of the suit
lands pursuant to execution of the said document hence acquired the status of
occupancy tenant and thereafter of Bhumiswami by virtue of enactments as came
into force from time to time. Possession of the suit lands was not delivered to
defendant No.1 on 09.06.1989 as contended by the defendants. The document
(Exhibit D/1) is a completely forged and fabricated document as has been proved by
plaintiffs. In any case, the same is wholly incapable of conferring title upon
defendant No.1 which could have been done only by way of a registered document.
Signature Not Verified
Signed by: SHILPA
NAAGDEVE
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The sale deed hence executed by defendant No.1 in favor of defendant No.2 does
not confer any title upon him and is not binding upon the plaintiffs. The appeal hence
deserves to be dismissed. Reliance has been placed on the decision of the Apex Court
in Atyam Veerraju and Others v. Pechetti Venkanna and Others, AIR 1966 SC
629 and of this Court in Bharat Singh and Others Vs. Gyan Singh and Another,
1970 RN 426 and Shubrati Vs. State of M.P. and Another, 1990 RN 337.
13. I have considered the submissions of the learned counsel for the parties
and have perused the record.
14. The Apex Court in the case of Delta International Limited (Supra) has
laid down the tests for determining whether a document is a lease or licensee and
has held that to find out whether the document creates a lease or license, the real test
is to find out the intention of the parties. The intention is to be gathered from the
document itself. If the terms of the document are not clear, the surrounding
circumstances and the conduct of the parties has also to be borne in mind. If dispute
arises between the parties to a written instrument, the intention is to be gathered from
the document read as a whole. Exclusive possession is determinative though not
decisive but is of significance. It has been held as under:-
13. Along with other cases, the aforesaid case was referred to and relied upon in the
case of Rajbir Kaur v. S. Chokesiri and Co. [(1989) 1 SCC 19, 31-33] where this
Court considered and held that ultimately the question whether a transaction is a
lease or a licence “turns on the operative intention of the parties and there is no
single, simple litmus test to distinguish one from the other”.
14. The relevant discussion in para 22 is as under: (SCC p. 31)
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Signed by: SHILPA
NAAGDEVE
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9“22. It is essential to the creation of a tenancy that the tenant be granted
the right to the enjoyment of the property and that, further, the grant be for
consideration. While the definition of ‘lease’ in Section 105 of the Transfer of
Property Act, 1882, envisages the transfer of a right to enjoy the property, on
the other hand the definition of a ‘licence’ under Section 52 of the Indian
Easements Act, 1882, consistently with the above, excludes from its pale any
transaction which otherwise, amounts to an ‘easement’ or involves a transfer
of an interest in the property, which is usually involved in the case of a transfer
of right to enjoy it. These two rights, viz., easements and lease in their very
nature, are appurtenant to the property. On the other hand, the grant only for
the right to use the premises without being entitled to the exclusive possession
thereof operates merely as a licence. But the converse implications of this
proposition need not necessarily and always be true. Wherever there is
exclusive possession, the idea of a licence is not necessarily ruled out. English
law contemplates what are called ‘Possessory Licences’ which confer a right
of exclusive possession, marking them off from the more usual type of licences
which serve to authorise acts which would otherwise be trespasses. Thus
exclusive possession itself is not decisive in favour of a lease and against a mere
licence, for, even the grant of exclusive possession might turn out to be only a
licence and not a lease where the grantor himself has no power to grant the
lease. In the last analysis the question whether a transaction is a lease or a
licence ‘turns on the operative intention of the parties’ and that there is no
single, simple litmus test to distinguish one from the other. The ‘solution that
would seem to have been found is, as one would expect, that it must depend on
the intention of the parties’.
(emphasis added)
15. Dealing with the contention that the intention of the parties is to be determined
upon a proper construction of the deed entered into between the parties, and that
alone is a decisive matter, the Court dealt with the said contention in para 32 and
observed as under: (SCC p. 34)
“Indeed learned counsel placed strong reliance on the following
observations by this Court in M.N. Clubwala v. Fida Hussain Saheb [AIR 1965
SC 610 : (1964) 6 SCR 642] :
‘Whether an agreement creates between the parties the relationship of
landlord and tenant or merely that of licensor and licensee the decisive
consideration is the intention of the parties. This intention has to be ascertained
on a consideration of all the relevant provisions in the agreement.’Signature Not Verified
Signed by: SHILPA
NAAGDEVE
Signing time: 16-Apr-25
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10(emphasis supplied)
The proposition of Dr Chitale as to the conclusiveness of what emanates
from the construction of the documents has, in this case, its own limitations.
The import, significance and conclusiveness of such documents making, or
evidencing, the grants fall to be examined in two distinct contexts. The dispute
may arise between the very parties to the written instrument, where on the
construction of the deed one party contends that the transaction is a ‘licence’
and the other that it is a ‘lease’. The intention to be gathered from the document
read as a whole has, quite obviously, a direct bearing. But in cases where, as
here, the landlord alleges that the tenant has sub-let the premises and where
the tenant, in support of his own defence sets up the plea of a mere licensee and
relies upon a deed entered into, inter se, between himself and the alleged
licensee, the landlord who is not a party to the deed is not bound by what
emanates from the construction of the deed. At best, it is a piece of evidence,
the weight to be accorded to which will necessarily depend upon all the other
circumstances of the case. The tenant and the sub-tenant, who jointly set up a
plea of licence against the landlord may choose to camouflage the truth and
substance of the transaction behind a facade of a self-serving and conveniently
drafted instrument.”
(emphasis supplied)
16. Learned counsel for the respondent had also relied upon the decision of this Court
in the case of Sohan Lal Naraindas v. Laxmidas Raghunath Gadit [(1971) 1 SCC 276,
279] wherein the Court has observed as under: (SCC pp. 279-80, paras 6 & 9)
“6. An attempt was deliberately made to camouflage the true nature of the
agreement, by reciting in several clauses that the agreement was for lease and
licence and it emphasised the pretence, it was also recited that the defendant
was not to have any right as tenant or sub-tenant in respect of the loft.
***
[(1997) 2 SCC 706] . Intention of the parties to an instrument must be
gathered from the terms of the agreement examined in the light of the
surrounding circumstances. The description given by the parties may be
evidence of the intention but is not decisive. Mere use of the words appropriate
to the creation of a lease will not preclude the agreement operating as a licence.
A recital that the agreement does not create a tenancy is also not decisive. The
crucial test in each case is whether the instrument is intended to create or not
to create an interest in the property the subject-matter of the agreement. If it is
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NAAGDEVE
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in fact intended to create an interest in the property it is a lease, if it does not,
it is a licence. In determining whether the agreement creates a lease or a licence
the test of exclusive possession, though not decisive, is of significance.”
(emphasis added)
From the aforesaid discussion what emerges is:
(1) To find out whether the document creates a lease or a licence the real test is to
find out “the intention of the parties”; keeping in mind that in cases where
exclusive possession is given, the line between a lease and a licence is very thin.
(2) The intention of the parties is to be gathered from the document itself. Mainly,
the intention is to be gathered from the meaning and the words used in the
document except where it is alleged and proved that the document is a
camouflage. If the terms of the document evidencing the agreement between the
parties are not clear, the surrounding circumstances and the conduct of the
parties have also to be borne in mind for ascertaining the real relationship
between the parties.
***——***——-***
15. Keeping the aforesaid principles in mind, the document dated 04.05.1945
(Exhibit P/35) is perused. The same recites that possession of the suit lands has been
delivered by Motilal to Hiralal. The parties to the document were closely related to
each other, which fact is also mentioned in the document. The document states that
the lands covered thereunder have been given to Hiralal for his maintenance. A
condition was imposed that he would pay the Government land revenue and shall
take the proceeds for himself. The only condition put upon him was that he would
not sell or encumber the lands or the well situated therein. The most important
condition was that if at the time of marriage of Nathulal, there would be need of
money, then the amount as shall be determined by two Panch and relatives shall be
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NAAGDEVE
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paid by Shantilal to Heeralal and he shall be entitled to take back the land. This
condition shows that not only possession of the suit lands was given to Heeralal, but
a right was also conferred upon him to retain the same absolutely with the only rider
of not selling or encumbering it and further entitled him for being paid amount as
may be determined for returning the land and handing over the document. This
condition itself meant that if the amount is not so paid to Heeralal, he shall have the
right to continue to be in possession of the suit lands. The document was not only
for the purpose of authorizing Heeralal to take the crops from the suit lands. In view
of the decision of the Apex Court in Delta International Limited (Supra), it is
evident that the document dated 04.03.1945 (Exhibit P/35) is a lease deed and is not
a license as has rightly been held by the lower appellate Court.
16. In the document dated 04.03.1945 (Exhibit P/35), it was stated by Motilal
that he is having Morusi interest in the suit lands. The same was transferred by him
in favour of Hiralal. It is an admitted fact between the parties that Gram Jeeran was
a Jagir village. Thus, as per Section 4, 5 and 65 of Kanun Raiyatwari Riyasat,
Gwalior Samvat 1974, Heeralal had became a Morusi Kashtkar of the suit lands.
Upon coming into force of Kanun Mal Gwalior, Samvat 1983 Hiralal, by virtue of
Section 245 thereof became a Kashtkar of the suit lands since he was already
recorded as a Morusi Kashtkar over the same. Upon coming into force of M.P. Land
Revenue and Tenancy Act, Samvat, 2007 i.e. 1950 A.D., by virtue of Section 54
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NAAGDEVE
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(vii) Hiralal became a Pakka tenant of the suit lands since he was recorded in respect
of his holding as a Morusi. Section 54 of the Act, 1950 is as under:-
“54(vii) Pakka tenant-means a tenant who has been or whose predecessor in interest had
been lawfully recorded in respect of his holding as a “Ryot Pattedar” “Maurusi”
“Mamuli” “Gair Maurusi”, and “Pukhta Maurusi” when this Act comes into force or who
may in future be duly recognised as such by a competent authority.”
17. Thereafter, the Madhya Bharat Abolition of Jagirs Act, Samvat 2008 i.e.
1951 A.D. came into force with effect from 27.11.1951, whereby all the Jagir lands
were resumed. By virtue of Section 20 thereof Heeralal came to hold the suit lands
as a Pakka tenant of the same since the same was being personally cultivated by him.
For ready reference Section 20 of the Act, 1951 is reproduced below:-
“20. Conferral of Pacca tenancy right on Tenants and Shikmis.–(1) Subject to other
provisions of this Act, every tenant of a Jagirdar, or zamindar including the “Shikmi”
shall, as from the date of resumption be deemed to be a Pacca tenant of the land cultivated
personally by him.
Explanation-For the purposes of this section and section 22, “Shikmi” shall mean any
person holding the Khud-kasht land of the Jagirdar or the zamindar, as the case may be.
(2) Rent at the village rate assessed in the current settlement shall be changed from every
tenant or Shikmi deemed to be a Pacca tenant under this section:
Provided that the rent charged from such of them including the Sakitulmilkiyat tenant
who had been fully assessed in the current settlement shall continue to be the same as
assessed in the said settlement till their re-assessment in the next settlement.”
18. Heeralal had died in the year 1950 and Bhawanilal and Nathulal came in
possession of the suit lands upon his death. Upon coming into force of M.P. Land
Revenue Code, 1959, by virtue of Section 158 thereof, they became Bhumiswamis
of the suit lands since the same were held by them as Pakka tenant. The relevant
portion of Section 158 is as under:-
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NAAGDEVE
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“158(1)(b) every person in respect of land held by him in the Madhya Bharat region as a
Pakka tenant or as a Muafidar, Inamdar or Concessional holder, as defined in the
Madhya Bharat Land Revenue and Tenancy Act, Samvat, 2007 (66 of 1950);”
19. Since Bhawanilal and Nathulal had become the Bhumiswamis of the suit
lands defendant No.1 had no right to execute any sale deed with respect to the same
in favour of defendant No.2 hence the sale deed executed in his favour is null and
void and does not confer any title upon him. From the revenue documents which are
available on record, it is further evident that the plaintiffs have been in possession of
the suit lands ever since the death of their father and have been continued to be
recorded in the revenue records. Earlier their father Heeralal was in possession
pursuant to the document dated 04.03.1945. Though a document dated 09.06.1989
(Exhibit D/1) has been relied upon by the defendants to contend that possession of
the suit lands was delivered by plaintiff No.1 in favour of defendant No.1 but merely
on the basis of such an agreement, no title can be conferred upon defendant No.1.
The plaintiffs were the Bhumiswamis of the suit lands and title could not have been
transferred by them in favour of defendant No.1 by a mere agreement executed in
that regard. For the said purpose, a registered document was required to be executed
which is wholly absent in the present case. Though it is contended by defendants
that possession of the suit lands was delivered to defendant No.1 by plaintiff No.1
one year prior to the execution of the agreement dated 09.06.1989 but the said fact
has not been proved by them. The date, time manner and the persons in whose
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NAAGDEVE
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presence possession was delivered has not been mentioned. The lower appellate
Court has discussed the material available on record in this regard and has held that
defendants have not been able to prove delivery of possession. The said finding is a
pure finding of fact and has not been shown to be illegal or perverse in any manner.
The plea of defendants as regards delivery of possession itself proved that plaintiffs
have been in possession of the suit lands ever since execution of the document dated
04.03.1945.
20. The plaintiffs are hence the Bhumiswamis of the suit lands and are entitled
for the relief as claimed for by them. The trial Court had however illegally negatived
with their title to the suit lands whose judgment and decree has rightly been reversed
by the lower appellate Court who has correctly decreed the claim of plaintiffs and
dismissed the counter claim of defendant No.2. Thus, the substantial questions of
law, as framed are answered in favour of the plaintiffs and against defendant No.2,
as a result of which the appeals are found to be devoid of any merits and are hereby
dismissed.
No order as to costs.
(PRANAY VERMA)
JUDGE
Shilpa
Signature Not Verified
Signed by: SHILPA
NAAGDEVE
Signing time: 16-Apr-25
5:21:50 PM
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