Madhya Pradesh High Court
Kishan Yadav & Ors vs Hariprasad & Ors on 20 December, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 20th OF DECEMBER, 2024
SECOND APPEAL NO. 912 OF 2004
PUSHPA YADAV & OTHERS
VS.
HARIPRASAD AND OTHERS
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Appearance:
Shri Anoop Nair - Senior Advocate assisted by Ms Disha Rohitas -
Advocate for the appellants.
Shri R.K. Sanghi with Shri Siddharth Kumar Sharma - Advocate
for the respondents.
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SECOND APPEAL NO. 913 OF 2004
PUSHPA YADAV & OTHERS
VS.
HARIPRASAD AND OTHERS
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Appearance:
Shri Anoop Nair - Senior Advocate assisted by Ms Disha Rohitas -
Advocate for the appellants.
Shri R.K. Sanghi with Shri Siddharth Kumar Sharma - Advocate
for the respondents.
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Reserved on: 10.12.2024
Pronounced on : 20.12.2024
2
JUDGMENT
Since both the appeals have been filed by different sets of parties
challenging the common impugned judgment and decree dated 28.06.2004
passed by the First Appellate Court deciding two regular civil appeals
bearing Nos. 8-A/2004 and 9-A/2004 and therefore, they are being decided
by this common judgment.
2. Appellants have filed these appeals under Section 100 of the Code of
Civil Procedure. This Court vide order dated 02.03.2020 admitted the
appeals on the following substantial questions of law:-
“A. Whether the first appellate court was legally justified
in reversing the finding of the trial Court that the
plaintiff/respondents were only entitled to 1/4th share in the
suit lands which belonged to Moolchand?
B. Whether the Courts below were legally justified in
holding that the sale-deeds of the suit lands executed in favour
of the defendant/appellants by the L.Rs. of the remaining three
brothers of Moolchand were void even to the extent of their
3/4th share in the suit property?
C. Whether the first appellate court was legally justified
in holding that the plaintiff/respondents had got Bhumiswami
rights over the suit lands under Section 190 of the MPLR
Code, specially when there is no evidence to show that
Motilal, Kanhaiyalal and Kunjilal, the brothers of Moolchand
had not given their part of the suit lands and Shikmi to
Nandlal?
D. Whether the defendant/appellants were entitled to
retain 3/4th part of the suit lands by virtue of the sale-deeds in
their favour and the courts below legally erred in not decreeing
their counter claim?
3
3. To answer the substantial questions of law, it is appropriate to
consider the facts of the case, which are being extracted from the pleadings
of the parties and those are as under:-
3.1 The plaintiffs had preferred a suit for declaration of title and also for
declaration of sale deeds executed in favour of defendant Nos. 15 to 21 as
null and void. They had also sought decree of permanent injunction.
3.2 The suit property is Kh. Nos. 1092/2, 933, 934 and 109/1 together
measuring 17.21 acres, Kh. No. 11/2/1 measuring 4.71 acres and Kh. No.
11/13 measuring 4.63 acres. The said property is situated in the Village
Qasba, District Sehore (For brevity, hereinafter referred to as ‘suit
property’).
3.3 The trial court vide its judgment and decree dated 12.01.2004 passed
in RCS No. 60-A/1998 decreed the suit partially declaring that the
plaintiffs are having title and possession over 1/4 part of the suit property
and sale deeds executed in favour of defendant Nos. 15 to 21 are null and
void and also granted decree of permanent injunction restraining
defendants from interfering into peaceful possession of the share for which
plaintiffs are declared as title holders.
3.4 The said judgment and decree dated 12.01.2004 was further assailed
by the plaintiffs in Regular Civil Appeal before the Appellate Court under
Section 96 of CPC. The said appeal was registered as RCA No. 08-A/2004.
At the same time, the defendant Nos. 15 to 21 had also preferred an appeal
challenging the judgment and decree passed by the trial court and the said
appeal was registered as RCA No. 09-A/2004. Both the appeals were heard
analogously and decided by the First Appellate Court by a common
4
judgment and decree dated 28.06.2004. The First Appellate Court allowed
the RCA No. 08-A/2004 decreeing the suit in its entirety and the appeal
preferred by the defendant Nos. 15 to 21/appellants i.e. RCA No. 09-
A/2004 was dismissed.
4. As per the averments made in the plaint, the case of the plaintiffs
before the trial court was as follows:
4.1 The suit property belonged to Moolchand, Motilal, Kanhaiyalal and
Kunjilal, who gave the land to Nandlal (predecessor of plaintiffs) as Sikmi
Kastkar w.e.f. 15.06.1956 and as such they delivered the possession of the
suit property to Nandlal.
4.2 As on 01.01.1959, Nandlal was the Sikmi Kastkar of the suit
property whereas on 02.10.1959, M.P. Land Revenue Code, 1959 (for
brevity ‘Code, 1959’) was enforced, but even thereafter from 02.10.1959
to 30.06.1961 Nandlal was in peaceful possession of the suit property in
the capacity of Bhumiswami.
4.3 Since the actual land owners/Bhumiswami i.e. Moolchand, Motilal,
Kanhaiyalal and Kunjilal did not move any application under Section
189(1) of the Code, 1959 for resumption of their land occupied by Nandlal
till 02.10.1960, therefore, Nandlal had claimed that since the application
was not filed within one year from the date of enforcement of the
provisions of Code, 1959, he had acquired the right of Bhumiswami over
the suit property by virtue of Section 190 of the Code, 1959 on 01.07.1961.
4.4 Nandlal expired on 27.11.1980 and thereafter the plaintiffs remained
in possession of the suit property in the capacity of Bhumiswami and also
5considered to be occupancy tenant under Section 185 of the Code, 1959
and that status of Nandlal was converted into Bhumiswami as he had
acquired the same in absence of any claim raised by Moolchand, Motilal,
Kanhaiyalal and Kunjilal by moving application under Section 189 of the
Code, 1959 claiming resumption of their land.
4.5 Moolchand submitted an application against Nandlal before the
Tahsildar under Sections 250 and 168 of the Code, 1959 for restoration of
possession, but that application was rejected by the Tahsildar vide order
dated 01.07.1967 holding that Nandlal is in possession of the land as Sikmi
Kastkar and as per Section 185 and 190 of the Code, 1959, he had acquired
the status of Bhumiswami right over the suit property.
4.6 Moolchand and his three brothers had also agitated the proceedings
under Section 168(4) of the Code, 1959 for recovery of possession from
Nandlal but that was rejected by the Sub Divisional Officer vide order
dated 31.07.1967, which was later on confirmed by higher appellate court
in favour of Nandlal.
4.7 However, in the simultaneous proceedings instituted by Nandlal
seeking declaration of Bhumiswami right, the Tehsildar allowed his
application declaring him as Bhumiswami over the suit property by order
dated 31.12.1966 and that order was later on modified by the Sub
Divisional Officer in appeal by order dated 31.07.1967 holding that
Ikrarnama executed in the year 1956 and 1958 with respect to suit property
was done only by Moolchand regarding his 1/4 share and other three
brothers were not the party in the said Ikrarnama and that order was later
on confirmed by higher revenue authorities.
6
4.8 Plaintiffs have claimed that they have already perfected their title
and possession over the entire suit property acquiring Bhumiswami rights
as per the provisions of Section 185 and 190 of the Code, 1959 way back
in the year 1961 against Moolchand and his three brothers and the legal
heirs of Nandlal even after the death of Nandlal were in continuous and
exclusive hostile possession of the suit property and Moolchand, Motilal,
Kanhaiyalal and Kunjilal despite their legal efforts could not obtain the
possession of the suit property and therefore they have (plaintiffs) also
perfected their title by adverse possession against Moolchand, Motilal,
Kanhaiyalal and Kunjilal.
4.9 The sale deeds executed contrary to the rights of Nandlal and his
legal heirs (plaintiffs) by other defendants were null and void.
5. The defendant Nos. 1, 2, 3 7 and 13 submitted their joint written
statement before the trial court controverting the averments made in the
plaint and taken stand that Nandlal preferred an application seeking
declaration of Bhumiswami right over the suit property before the
Tahsildar, which was allowed declaring him to be Bhumiswami of the suit
property but that order of Tehsildar was modified by the Sub Divisional
Officer in appeal decided by order dated 31.07.1967 holding that Nandlal
can be declared Bhumiswami only in respect of the property of Moolchand
i.e. 1/4 share of the property because Ikrarnama was executed only
between Moolchand and Nandlal. The other brothers of Moolchand were
not party to the said agreement and according to the defendants, the said
order of Sub Divisional Officer was affirmed by higher revenue authority.
In addition to that, they had also claimed that the suit was barred by
7
limitation because the plaintiffs had not demonstrated the details of their
adverse possession over the suit property and out rightly denied the factum
of Sikmi of suit property being given by Moolchand, Motilal, Kanhaiyalal
and Kunjilal to Nandlal.
6. The trial court framed 15 issues for adjudication of the dispute and
evidence was produced by the parties in support of the issues. The
evidence produced was oral as well as documentary.
7. Considering the material placed before the trial court, vide judgment
and decree dated 12.01.2004 the trial court partially decreed the suit.
8. As per the finding given by the trial court, the material ingredients
for decreeing the suit partially are as under:-
(a) Plaintiffs although had proved their possession over the suit
property, but as per the order of the revenue courts, they were only
entitled to get declaration for 1/4 share of the property.
(b) The suit preferred by the plaintiffs was not time barred.
(c) The sale deeds executed during the pendency of suit without
delivery of possession are null and void against the plaintiffs.
(d) The factum of adverse possession and when it became adverse
against the defendants was not proved and therefore that plea of
plaintiffs was declined.
(e) The suit of the plaintiffs was decreed holding them entitled and
that they had perfected their title only over 1/4 part of the suit
8property and decree of permanent injunction to that share had been
granted, but not on the entire property.
9. Appeals were preferred against the judgment and decree dated
12.01.2004 before the Additional District Judge, Sehore and entertaining
the regular civil appeals under Section 96 of CPC, the appellate court vide
its common impugned judgment and decree dated 28.06.2004 allowed the
appeal preferred by the plaintiffs i.e. RCA No. 08-A/2004 and decreed the
entire suit and dismissed the appeal preferred by the defendant Nos. 15 to
21 i.e. RCA No. 09-A/2004. The reasons for dismissal of the appeal of
defendant Nos. 15 to 21 and decreeing the suit of the plaintiffs in toto can
be gathered from the impugned judgment and decree and the material
ingredients of the said impugned judgment and decree are as under:-
(1) That Moolchand, Motilal, Kanhaiyalal and Kunjilal did not make
make any endeavour to file any civil dispute after 02.10.1959 uptil
12 years seeking recovery of possession or made any application
under Section 190 of the Code, 1959.
(2) That the prior to filing of the civil suit, the actual owners
Moolchand, Motilal, Kanhaiyalal and Kunjilal were never in
possession of the suit property whereas Nandlal and his legal heirs
(plaintiffs) thereafter were found in possession of the suit property
for which the appellate court has referred Ex. P/15 to P/19, Ex. P/20
to Ex. P/30, receipts of payment of land revenue and there was no
challenge to those documents and evidence produced by the
defendants and no evidence in rebuttal was also produced.
9
(3) The appellate court has also observed that the defendants have
purchased the suit property from Moolchand and his brother during
the pendency of the trial and only on 22.10.1994, relief of delivery
of possession was claimed after 02.10.1959 and the relief claimed by
Moolchand and his brothers under Section 168 of the Code, 1959
was denied by the revenue authorities, but they did not prefer any
proceeding before the civil court for recovery of possession despite
the knowledge and the court found that their counter claim i.e. of
defendants Nos. 15 to 21 seeking deliver of possession was barred
by time.
(4) The appellate court also considered the statement of PW-1-
Hariprasad, who had stated that Nandlal was in possession of the
suit property and after his death plaintiffs came in possession of the
suit property and this fact was neither rebutted by the defendants in
cross-examination nor any suggestion was given by them. The
statement of PW-1 Hariprasad was also supported by other witnesses
and as such the court found that the plea regarding possession over
the suit property was perfected by the plaintiffs over the suit
property and as such they had successfully proved their claim
holding the possession uninterruptedly and continuously and as such
the appellate court had also found that the plaintiffs had otherwise
acquired the title over the suit land by virtue of adverse possession.
(5) It is observed by the appellate court that the original
Bhumiswami submitted an application under Section 168 and 250 of
the Code, 1959 seeking recovery of possession from Nandlal by
10
disputing his possession, but recovery of possession and the claim in
that regard was maintainable within a period of 12 years from the
date of enforcement of the Code, 1959, however, Bhumiswami had
failed to do so by not exercising their rights and therefore,
transferring the land in favour of Kishan Yadav and others did not
give any right to the purchasers and any title by virtue of said
transfer.
(6) It is observed by the appellate court that when original owners
did not have any title and possession over the land, therefore,
transfer of land by them to the defendants/purchasers is a futile
transfer because vendors did not have title and possession over the
land and therefore, the appellate court set aside the judgment and
decree passed by the trial court holding plaintiffs entitled to the
extent of 1/4 share and found that they had perfected their title over
the suit land and also observed that they had been in possession of
the suit land and, therefore, they were entitled to get decree of
permanent injunction too.
Thus, the defendant Nos. 15 to 21 have filed this appeal challenging
the impugned judgment and decree dated 28.06.2004 and this Court has
admitted the same on the substantial questions of law already quoted
hereinabove.
10. Learned counsel for the appellants has submitted that Hari Prasad
(PW-1) had admitted the fact that only Moolchand had entered into the
agreement (Ikrarnama) with Nandlal but his brothers did not enter into the
same and therefore, the judgment and decree passed by the trial court was
11
proper to observe that Nandlal could claim title only over 1/4 share or to
the extent of share belonging to Moolchand but not of other brothers. He
has also submitted that the suit property does not include Kh. No. 112, but
it was the land belonging to Kh. No. 113. He has also submitted that Ex.
P/2 and P/4 maintained by Ex. P/3 in which it is held that Moolchand was
entitled to get 1/4 in the property and 3/4 share was not given to him at any
point of time. He has also drawn attention of this Court towards the finding
given by the appellate court in para-11 and 12 of its judgment saying that
the same is perverse and no evidence is available on record. He has
submitted that the sale deeds were executed on 12.04.1983 that too after
filing the suit, which was filed on 13.02.1983.
11. Learned counsel for the appellants has placed reliance upon the
judgment reported in 2006 (4) MPHT 75 – Gafoor Khan vs. Sultan
Jehan deceased through L.Rs. Rajamiya and others saying that the plea
of adverse possession in the facts and circumstances of the case is not
sustainable and the finding with regard to perfecting the title by adverse
possession is not sustainable.
12. Learned counsel for the appellant has also relied upon a judgment
reported in (2020) 15 SCC 218-Narasamma and others vs. A.
Krishnappa (dead) through Legal Representatives saying that the
inconsistent plea with regard to claiming title by virtue of other right and at
the same time by virtue of adverse possession is not maintainable and as
such the finding given by the trial court in favour of the plaintiffs
perfecting their title by virtue of adverse possession is illegal and deserves
to be set aside.
12
13. In rebuttal to the submission made by the learned counsel for the
appellants, learned counsel for the respondents has submitted that the suit
land includes Kh. No. 112. He has submitted that the original defendants in
their written statement did not deny the pleadings made in para-5 of the
plaint and as such the facts mentioned in para-5 of the plaint is considered
to be the admitted facts. He has submitted that no appeal was preferred by
the original owners but by the purchasers only and they are taking contrary
stand to the stand of vendors/original owners and therefore their stand
cannot be taken note of. He has also pointed out that the trial court in para-
12 of its judgment has observed about the possession over the entire land
but that finding was never challenged by the original owners. He has also
pointed out that the defendants witnesses have admitted the fact that
Moolchand was the Karta of the family and was managing the suit
property. He has also pointed out that the application under Section 250 of
the Code, 1959 was filed in the year 1963 indicating that Moolchand was
not in possession of the suit property. Therefore, he has submitted that the
appellate court has rightly reversed the judgment and decree of the trial
court and he has submitted that the fact of possession is concurrent finding
of fact and there is no perversity in the said finding and as such the same
cannot be disturbed by the court.
14. Learned counsel for the respondents has placed reliance upon the
following judgments:
[2002(1) MPLJ 200 – Gowardhan s/o Thawarji vs. Ghasiram
deceased through L.Rs. Ramkunwarbai and others in which it
has been observed by the Court that persons holding land in the
13Madhya Bharat region as tenant or sub-tenant who on
commencement of Code on 02.10.1959 continuously remained in
possession of land entitled to rights of occupancy tenant.
[2020(3) MPLJ 565 – Bhogiram s/o Toran Singh Kirar and
others vs. Sher Singh s/o Komal Singh Bhadoriya in which the
court has observed that no application under Section 189 for
resumption of land held by appellants occupancy tenants, was filed
by original Bhumiswami, within a period of one year from the date
of coming into force of Code – Bhumiswami rights stood conferred
on the persons or their predecessors in title with effect from the
agriculture year next following expiry of period for making
application for resumption of land.
(2010) 15 SCC 530 – Gurvachan Kaur and others vs. Salikram
(dead) through L.Rs. in which the Court in respect of scope of
interference in second appeal observed that it is not permissible to
interfere in the finding of fact unless it is found perverse.
(2007) 12 SCC 190 – Krishnan vs. Backim and another in which
also it is observed by the Supreme Court that the scope of
interference under Section 100 by the High Court in second appeal
in respect of finding of fact unless it is found perverse, the same
cannot be interfered with.
[1998(2) MPLJ 26 – Lal Bahadur Singh vs. State of M.P. –
Relying upon this judgment, learned counsel for the respondents has
submitted that the decree of adverse possession in the existing facts
and circumstances of the present case cannot be disturbed.
14
(2012) 7 SCC 738 – A. Nawab John and others vs. V.N.
Subramaniyam – The Supreme Court has observed about the
impact of Section 52 of the Transfer of Property Act, 1882 and held
that Section 52 does not protect the right of the purchaser if transfer
is pendente lite, but the pendente lite purchaser would be entitled to
or suffer same legal rights and obligations of his vendor as may be
eventually determined by the court.
[2011(3) MPLJ 44] – Jaiprakash Associates Ltd. Naubasta vs.
State of M.P. and others – The High Court has observed about the
impact of Section 52 of the Transfer of Property Act, 1882 and held
that the tranferee is bound by the order passed against the party from
whom the transferee is deriving right, title and interest in the suit
property.
15. I have heard the arguments advanced by the learned counsel for the
parties on the issue and also perused the record of the court below.
16. So far as the submission made by the learned counsel for the
appellants with regard to the fact that the judgment and decree passed by
the trial court holding 1/4 share by the plaintiffs as only Moolchand
entered into the agreement and his brothers were not is concerned, the
statement of PW-1-Hariprasad is required to be seen. From perusal of the
statement of Hariprasad (PW-1) it reveals that the suggestion was put
before him that in the plaint it is mentioned that the agreement with regard
to giving land on Sikmi took place between the Nandlal and Moolchand
and in reply to that suggestion, he had stated that if the said fact is
mentioned in the plaint, the same would be correct, but later he had stated
15
that the suit land was being managed by Moolchand and the complete suit
land was given to Nandlal on Sikmi and as such possession of the land was
given to Nandlal and he had been cultivating the land and consequently he
was having possession over the suit land, but, at the same time, the
witnesses produced during the course of trial although had stated that
Moolchand was the Karta of the Family and was managing the suit
property. Thus, from the statement of defendants witnesses and even from
the statement of the witnesses of the plaintiffs, it is clear that Moolchand
was managing the affairs of the suit property on behalf of his brother and
was also looking-after the litigation relating to the suit property. The fact
about handing over the possession of the suit land to Nandlal was not
rebutted and it remained uncontroverted. The trial court in its judgment
discussing about the possession of the plaintiffs over the suit property has
found that on the basis of material available and considering the evidence
of witnesses, it is proved that the plaintiffs were in possession of the suit
property. The following observation has been made by the trial court in
paragraph-12 of its judgment:-
^^pwafd bl laca/k esa izfroknhx.k us Hkh og vLohdkj ugha fd;k gS
fd oknxzLr Hkwfe ij orZeku esa oknhx.k dkfct u gksA bl dkj.k
bl rF; ls badkj ugha fd;k tk ldrk fd oknxzLr laiw.kZ Hkwfe ij
oknhx.k dk dCtk u gksA^^
It is pertinent to mention that the above finding of the trial court has also
been affirmed by the appellate court. It is further pertinent to mention that
the original owners have never preferred any appeal against the said
judgment and decree. It was the purchasers, who purchased the suit
property during the pendency of suit, had challenged the said judgment
and decree by filing appeal. Thus, it is clear that the sale deeds though
16were executed in favour of present appellants but possession of the suit
land was never handed over to them because the sale deeds were said to be
executed on 12.04.1983 and the suit was filed on 13.02.1982. There were
litigation before the revenue authorities; orders were passed; civil suit was
filed; original owners were out of the possession and since they did not
approach the revenue authorities in time therefore, just to get rid of the
dispute with regard to claiming ownership over the suit land, they executed
the sale deeds in favour of the present appellants. The appellate court has
observed that the possession of the land was never given to the present
appellants. From the circumstances existing in the present case and
considering the evidence produced, it is clear that although the agreement
did not contain the signatures of other brothers but even otherwise the land
owners had never approached the revenue authority after enforcement of
the Code, 1959 and not claimed resumption of land within the period of
limitation by moving an application under Section 190 of the Code, 1959.
17. The legal position on such issue has been laid down by the High
Court in the case of Bhogiram (supra) observing that if application by the
original land owners is not filed within a period of one year from the date
of enforcement of the Code, 1959 for resumption of possession, the
Bhumiswami right stood conferred on the person possessing the land. The
High Court in paragraphs 22 to 29 has observed as under:-
“22. In the present case, it is not the case of any party
that the original owner namely J.P. Shrivastava had
ever filed any application for resumption of land held
by his occupancy tenant i.e., the appellants/defendants.
Thus, as no application under section 189 of M.P.L.R.
Code was filed by original Bhumiswami for
resumption of his land within a period of one year
17from the date of coming into force of the Code,
therefore, the rights of Bhumiswami shall accrue to the
occupancy tenant in respect of the land held by him
from such Bhumiswami with effect from the
commencement of the agricultural year next following
the expiry of the aforesaid period. Thus, as the original
Bhumiswami, namely J.P. Shrivastava, did not file any
application for resumption of land within a period of
one year from the date of coming into force of the
Code, then the Bhumiswami rights stood conferred on
the appellants/defendants or their predecessor(s) in title
w.e.f. the commencement of the agricultural year next
following the expiry of period for making application
for resumption of land. Thus, it is clear that since, the
one year for making application for resumption of land
had expired in the year 1960, therefore, the
appellants/defendants or their predecessor(s) in title
became Bhumiswami in the year 1961 because not
only the appellants/defendants or their predecessor(s)
in title were in possession of the land but the period of
original lease had also not expired. The co-ordinate
Bench of this Court in the case of Gowardhart v.
Ghasiram deceased through L.R. s, reported in (2002)
1 MP LJ 200 has held as under:
“19. As per the clear provisions of section 185 of
the M.P. Land Revenue Code, 1959 every person
who at the coming into force of this Code holds any
land as a sub-tenant or tenant, only such persons
who continuously possess any such land as a tenant
or subtenant on the commencement of the code are
entitled under section 185(1), sub-clause (i)(a) to
(d) to claim the status of occupancy tenant and
thereafter by virtue thereof acquired rights of
Bhumiswami in accordance with provisions of
section 190 of the Code. Therefore, it was the
burden on the appellant/defendant to prove that on
2-10-1959 he was holding the land or was in
possession as a tenant or sub-tenant provided either
under the Madhya Bharat Muafi and Inam Tenants
and Sub-tenants Protection Act, 1954 or Madhya
Bharat Ryotwari sub-lessee Protection Act, 1955 or
Madhya Bharat Abolition of Jagirs Act, 1951 or
Madhya Bharat Zamindari Abolition Act, 1951 and
18for that under Clause (ii) the words “actual
possession of a sub-tenant is important.” Obviously
the intention of section 185(i), (ii) of the Code is to
give occupancy rights to those who were holding
lands when the Code came into force. In this case
the rights of the appellant/defendant are not
protected by section 185 of the Code on the ground
that even if it is taken into consideration that a Patta
was granted for a period of one year in Samvat
2004 and in Samvat 2005 a suit was filed for taking
possession back from the lessee Pattedar and when
the appellant was not in possession in the land in
dispute right from 30-6-1948 to 1967, he cannot
claim any right on the basis of the aforesaid Patta
for a period of one year.”
23. In the present case, in fact the findings of fact
recorded by trial Court, with regard to execution of a
patta(s) Ex. D-6 and D-7, in favour of
appellants/defendants or their predecessor(s) in title,
and their possession till 1962, is in favor of the
appellants. Therefore, none of the findings of facts
recorded by the Courts below are being disturbed.
24. Since, the question that whether the tenant was in
possession of the land in dispute on 2-10-1959 or not
and whether the original Bhumiswami had filed an
application for restitution of land or not are two
important aspects for ascertaining the fact that whether
the tenant had acquired the rights of Bhumiswami or
not? Since, both the questions of facts were answered
by the trial Court in favor of the appellants, therefore,
the trial Court was wrong in holding that the appellants
would not acquire Bhumiswami rights by force of law.
25. As the appellants/defendants or their predecessors)
in title had already acquired the rights of a
Bhumiswami in the year 1961, therefore, the trial
Court committed material illegality by dismissing the
case of the defendants on the ground that they have
failed to prove their possession over the land in
dispute. The observation made by the trial Court in
para 28 of its judgment that the appellants would not
get any rights merely by force of law is erroneous.
19
26. So far as the contention of the Counsel for the
respondents that the appellants should have filed a
separate appeal against the dismissal of their counter-
claim is concerned, this Court has gone through the
memo of appeal filed by the appellants before the First
Appellate Court. It was a combined memo of appeal
and in the prayer clause, the appellants had also sought
declaration of their title. Thus, in fact, the dismissal of
counter-claim was also challenged by the appellants.
Even otherwise, the defence of the appellants and their
counter-claim was based on similar facts. Thus, this
submission made by the Counsel for the respondents is
rejected.
27. So far as the contention of the Counsel for the
respondents, that the lease was granted by J.P.
Shrivastava vide Ex. D-6 and D-7 for limited purposes
is concerned, it is suffice to say that this Court is only
required to consider that whether there was any
lease/patta in favour of the appellants/defendants or
their predecessor(s) in title or not? No exception has
been carved out in the Madhya Bharat Zamindari
Abolition Act, or Madhya Bharat Land Revenue and
Tenancy Act or M.P.L.R. Code. Thus, once, it is proved
that there was a patta Ex. D-6 and D-7 in favour of the
appellants/defendants or their predecessor(s) in title,
then their claim of acquisition of Bhumiswami rights
under section 158, 190 of M.P.L.R. Code cannot be
frustrated. Further more, there is nothing in Patta Ex.
D-6 and D-7 to indicate, that the same was granted for
limited purposes only. Further more, it is not the case
of the respondents that license was granted to the
appellants/defendants or their predecessor(s) in title.
28. Therefore, this Court is of the considered opinion,
that the Courts below have failed to consider the
provisions of law as well as the fact that since by virtue
of lease deed, Ex. D/7, the appellants/defendants or
their predecessor(s) in title were in possession of the
land in dispute in the year 1961, therefore, they had
acquired the Bhumiswami rights.
29. Accordingly, it is held that since, the
appellants/defendants or their predecessor(s) in title
had acquired the rights of a Bhumiswami in the a year
20
1961, therefore, the respondents would not get any
right or title by virtue of sale deed dated 28-7-2008 Ex.
P/4, as their sellers had no right or title in them. It is
hereby declared that the appellants/defendants are the
owners and in possession of the land in dispute which
is in their possession respectively.”
At the same time, it is also clear that indisputably the plaintiffs were in
possession of the suit land at the time of enforcement of the Code, 1959
and thereafter also and as such as per the provisions of Section 185 of the
Code, 1959, they became the occupancy tenant and the observation made
by the High Court in the case of Gowardhan (supra) is material in this
regard, which is as under:
“18. Section 185 of the M.P. Land Revenue Code,
1959 categorised the persons who shall be recorded a
occupancy tenant. Sub-clause (ii) of section 185
provides as under:–
“(ii) in the Madhya Bharat region:–
(a) any Inam land as a tenant, or as a sub-tenant or as
an ordinary tenant; or
Explanation:– The expression Inam land shall have
the same meaning as assigned to it in the Madhya
Bharat Muafi and Inam Tenants and Sub-Tenants
Protection Act, 1954 (32 of 1954).
(b) any land as Ryotwari sub-lessee defined in the
Madhya Bharat Ryotwari Sub-Lessee Protection Act,
1955 (29 of 1955); or
(c) any Jagir land as defined in the Madhya Bharat
Abolition of Jagirs Act, 1951 (28 of 1951), as a sub-
tenant or as a tenant of a sub-tenant; or
(d) any land of a proprietor as defined in the Madhya
Bharat Zamindari Abolition Act, 1951 (13 of 1951), as
a sub-tenant or as a tenant of a sub-tenant; or.”
19. As per the clear provisions of section 185 of the
M.P. Land Revenue Code, 1959 every person who at
21
the coming into force of this Code holds any land as a
sub-tenant or tenant, only such persons who
continuously possess any such land as a tenant or sub-
tenant on the commencement of the Code are entitled
under section 185(i), sub-clause (ii) (a) to (d) to claim
the status of occupancy tenant and thereafter by virtue
thereof acquired rights of Bhumiswami in accordance
with provisions of section 190 of the Code. Therefore,
it was the burden on the appellant/defendant to prove
that on 2-10-1959 he was holding the land or was in
possession as a tenant or sub-tenant provided either
under the Madhya Bharat Muafi and Inam Tenants and
Sub-Tenants Protection Act, 1954 or Madhya Bharat
Ryotwari Sub-Lessee Protection Act, 1955 or Madhya
Bharat Abolition of Jagirs Act, 1951 or Madhya Bharat
Zamindari Abolition Act, 1951 and for that under
clause (ii) the words “actual possession of a sub-tenant
is important.” Obviously the intention of section 185(i)
(ii) of the Code is to give occupancy rights to those
who were holding lands when the Code came into
force. In this case the rights of the appellant/defendant
are not protected by section 185 of the Code on the
ground that even if it is taken into consideration that a
Patta was granted for a period of one year in Samvat
2004 and in Samvat 2005 a suit was filed for taking
possession back from the lessee Pattedar and when the
appellant was not in possession in the land in dispute
right from 30-6-1948 to 1967, he cannot claim any
right on the basis of the aforesaid Patta for a period of
one year.
20. In the case of Nathu Prasad v. Ranchhod Prasad,
reported in (1969) 3 SCC 11 : AIR 1970 SC 483, it has
been held as under:–
“A person inducted as a sub-lessee contrary to the
provisions of section 73 of Act 66 of 1950 did not
therefore acquire any right under a contract of sub-
letting, and his possession was not protected under Act
29 of 1955. Such a person is not a ryotwari sub-lessee
as defined in Act 29 of 1955 and it is only on
‘Ryotwari sub-lessee’ as defined in that Act that the
right of occupancy tenant is conferred by section
22185(1)(ii)(b) of the Madhya Pradesh Land Revenue
Code.”
21. Therefore, in view of the aforesaid discussions it is
clear that the appellant/defendant did not acquire any
Bhumiswami rights under section 185 of the Code as
he was not holding the land and the lands in dispute
did not remain in possession upto 2-10-1959 and even
if Patta granted to the appellant for a period of one year
and the restitution suit for possession was filed in
Samvat 2005 and interim possession was given to the
Respondent under the relevant Laws which were
prevalent in Samvat 2004 (1947) there was no bar for
grant of Patta. Therefore, the appellant/defendant
cannot claim the acquisition of occupancy rights in his
favour and the matter stands concluded by the finding
of facts recorded by the two Courts below and there
cannot be a case regarding perfection of title in favour
of Daula, predecessor of Gowardhan. Hence, the
question No. 1 answered accordingly.
22. As regards second question about the sale effected
by Lacchibai and the legal representatives of Punnibai
in favour of Respondent Ghasiram whether hit by the
doctrine of lis-pendens. For this question the
submission of the learned counsel for appellant is that
the alleged sale has taken place on 23-5-1958 during
the pendency of the restitution proceedings before the
Tehsildar which was filed on 14-4-1954. Section 52 of
the Transfer of Property Act creates only a right to be
enforced to avoid a transfer made pendente lite,
because such transfers are not void but voidable and
that too at the option of the affected party to the
proceedings. The only effect of the doctrine of lis
pendens on the sale transaction is to make it subject to
the decree or order to be passed in the suit. The rights
obtained by way of transfer during the pendency of suit
are subservient to the rights of the transferor and binds
the transferee in the same manner in which the
transferor is. Therefore, as submitted by the learned
counsel for appellant that by virtue of doctrine of lis
pendens the sale effected would be void. As the two
Courts have’ already held that the Respondent/plaintiff
has acquired rights by virtue of sale-deed dated 23-5-
23
1958. The first Appellate Court has held that the
proceedings under section 326 of Kanoon Mal Gwalior
is a summary proceedings for recovery of possession.
The proceedings are analogous to proceedings under
section 9 of the Specific Relief Act. The questions of
title are not decided in those proceedings. Any decision
in that proceedings is subject to decision about title by
Civil Court. Consequently the dismissal of the said
proceedings in default would not affect the right, title
or interest of any party in suit, because those rights are
to be finally decided by the Civil Court.”
18. The appellate court in its judgment and decree has observed that the
Tahsildar in his order declared the plaintiffs as Bhumiswami of the suit
land as per the provision of Section 190 of the Code, 1959 and thereafter
an application under Sections 160 and 250 of the Code, 1959 was filed by
the original owners for resumption of possession but that application was
rejected by the revenue authority. It was held in favour of the plaintiffs that
they could not be dispossessed from the suit property because they had
acquired the Bhumi Swami right over the suit property and even after
coming into force the Code, 1959 on 02.10.1959, none of the original
owners had raised any claim with regard to resumption of possession of
the land and even not moved any application under Section 190 of the
Code, 1959 to claim possession over the suit land. The appellate court has
also considered the documents Ex. P/6 to P/9 and found that Moolchand
had received the share of crops cultivated in the said land and as per the
appellate court, it otherwise indicated that Moolchand on behalf of his
other brothers was also taking share and as such he was the only person,
who was looking-after the suit land on behalf of his family. The appellate
court has also observed that the documents Ex. P/15 to P/19 revealing that
from 1964 till 1969 Nandlal was in possession of the suit land and as has
24
also been observed by the trial court, the possession of Nandlal was
perfected over the suit land. Ex. P/20 to P/30 are receipts of payment of
land revenue, but nothing was rebutted and possession of Nandlal was
perfected continuously. However, the plea of adverse possession, in my
opinion, is not sustainable and the decree in that regard is also not proper
for the reason that admittedly an agreement was executed between the
parties and possession over the suit land was given to Nandlal by
Moolchand and that possession was nothing but a permissive possession
and as such claiming title by virtue of that possession on the one hand
when title was claimed on the ground that the plaintiffs became
Bhumiswami by virtue of the provision of Code, 1959 and on the other
hand claiming adverse possession is just a contrary stand taken by the
plaintiffs and in the light of the legal position and the judgments on which
the appellants have placed reliance and even otherwise when the
possession of the land was permissive, the decree of declaration by virtue
of adverse possession cannot be granted and as such the said finding of
appellate court is not sustainable and, in my opinion, it deserves to be set
aside. However, with regard to finding of fact about possession and also
the fact that the original owners had not claimed any right over the suit
property after enforcement of the Code, 1959 and that when plaintiffs had
acquired the status of occupancy tenant and no approach was made by the
original owners within the appropriate time for resumption of land and as
such plaintiffs have acquired the status of Bhumiswami as per the
provisions of Section 190 of the Code, 1959, which reads thus:-
“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
25specified in sub-section (1) of Section 185 except in items
(a) and (b) of clause (i) thereof] fails to make an
application under sub- section (1) of Section 189 within
the period laid down therein, the rights of a Bhumiswami
shall accrue to the occupancy tenant in respect of the land
held by him from such Bhumiswami with effect from the
commencement of the agricultural year next following the
expiry of the aforesaid period.
(2) Where an application is made by a Bhumiswami in
accordance with the provision of sub-section (1) of
Section 189, the rights of a Bhumiswami shall accrue to
the occupancy tenant in respect of the land remaining with
him after resumption, if any, allowed to the Bhumiswami
with effect from the commencement of the agricultural
year next following the date on which the application is
finally disposed of.
*[(2-A) Where the land of a Bhumiswami is held
by an occupancy tenant other than an occupancy tenant
referred to in sub-section (1), the rights of a Bhumiswami
shall accrue to the occupancy tenant in respect of such
land-
(a) in the case of occupancy tenants of the
categories specified in items (a) and (b) of clause
(i) of sub-section (1) of Section 185, with effect
from the commencement of the agricultural year
next following the commencement of the Principal
Act;
(b) in any other case, with effect from the
commencement of the agricultural year next
following the date on which the rights of an
occupancy tenant accrue to such tenant.]
(3) Where the rights of a Bhumiswami accrue to an
occupancy tenant under sub-section (1), sub-section (2)
*[or sub-section (2- A)] such occupancy tenant shall be
liable to pay to his Bhumiswami compensation equal to
fifteen times the land revenue payable in respect of the
land in five equal annual instalments, each instalment,
being payable on the date on which the rent payable under
Section 188 for the corresponding year falls due, and if
26
default is made in payment, it shall be recoverable as an
arrear of land revenue :
Provided that if from any cause the land revenue is
suspended or remitted in whole or in part in any area in
any year, the annual instalment of compensation payable
by an occupancy tenant holding land in such area in
respect of that year shall be suspended and shall become
payable one year after the last of the remaining
instalments.
(4) Any occupancy tenant may at his option pay the entire
amount of compensation in a lump sum, and where an
occupancy tenant exercise this option, he shall be entitled
to a rebate at the rate of ten per cent.
(5) The amount of compensation, whether paid in lump
sum or in annual instalments, shall be deposited in such
manner and form as may be prescribed by the occupancy
tenant with the *[Tahsildar], for payment to the
Bhumiswami.
(6) Where the rights of a Bhumiswami in any land accrue
to an occupancy tenant under this section, he shall be
liable to pay the land revenue payable by the Bhumiswami
in respect of such land with effect from the date of accrual
of such rights.”
Thus, from the above it is clear that it is an admitted position that
after coming into force the provisions of Code, 1959, the original owners
did not move any application under sub-section (1) of Section 189 of the
Code, 1959 for resumption of possession of the land from the occupancy
tenants and as such they became the Bhumiswami. It has already been
observed that the plaintiffs have acquired the status of occupancy tenant as
per Section 185 of the Code, 1959 because at the time of enforcement of
the provisions of the Code, 1959 they were in possession of the land and as
per the legal position, as has been laid down by the High Court and has
been considered hereinabove, the status of the occupancy tenant was
acquired by the plaintiffs and therefore, it was obligatory for the original
27
owners to move an application under sub-section (1) of Section 189 of the
Code, 1959 for resumption of their land from occupancy tenant, but
nothing was done. Sub-section (1) of Section 189 of the Code, 1959 reads
as under:-
“(1) 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 clause (i) thereof] may, if the area
of land under his personal cultivation is below twenty-
five acres of unirrigated land, within one year of the
coming into force of this Code, make an application to
the Sub-Divisional Officer for resumption of land held
by his occupancy tenant for his personal cultivation.”
19. From the above, it is clear that undisputably within a period of one
year there was no such application moved by the original Bhumiswami
against the plaintiffs and as such by virtue of operation of law, as has been
provided under Section 190 of the Code, 1959, the plaintiffs became the
Bhumiswami and in consequence thereof original Bhumiswami had lost
their right over the suit land and further in view of the judgment and
decree passed by the appellate court it is evident that the court had found
that the possession was there with the plaintiffs continuously and any
transfer made in between in favour of the present appellants did not give
any right to them over the suit property because the said sale deeds by the
original Bhumiswami (vendors of the present appellants) did not have any
right and title over the suit land and the sale deeds were rightly held to be
null and void and illegal. The original owners had also not come forwarded
to protect their interest after the judgment and decree passed by the trial
court and therefore, when rights of the original Bhumiswami was not
determined by the court over the suit land and their title was not perfected,
28
the present appeal on behalf of the purchasers seeking declaration about
the validity of the sale deeds in the facts and circumstances has no
substance.
The Supreme Court has laid down the law with regard to scope of
interference by the Courts in a second appeal filed under Section 100 of
CPC.
In Damodarlal (supra), the Supreme Court has observed as under:-
“8. “Perversity” has been the subject-matter of
umpteen number of decisions of this Court. It has also
been settled by several decisions of this Court that the
first appellate court, under Section 96 of the Civil
Procedure Code, 1908, is the last court of facts unless
the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam, (2007) 12 SCC 190, it has
been held at para 11 that: (SCC pp. 192-93)
“11. It may be mentioned that the first appellate
court under Section 96 CPC is the last court of
facts. The High Court in second appeal under
Section 100 CPC cannot interfere with the findings
of fact recorded by the first appellate court under
Section 96 CPC. No doubt the findings of fact of
the first appellate court can be challenged in second
appeal on the ground that the said findings are
based on no evidence or are perverse, but even in
that case a question of law has to be formulated and
framed by the High Court to that effect.”
10. In Gurvachan Kaur v. Salikram, (2010) 15 SCC
530 : (2013) 2 SCC (Civ) 113, at para 10, this principle
has been reiterated: (SCC p. 532)
“10. It is settled law that in exercise of power under
Section 100 of the Code of Civil Procedure, the
High Court cannot interfere with the finding of fact
recorded by the first appellate court which is the
final court of fact, unless the same is found to be
29
perverse. This being the position, it must be held
that the High Court [Salik Ram Boloram Mehar v.
Guruvachan Kaur, 2000 SCC OnLine MP 340] was
not justified in reversing the finding of fact
recorded by the first appellate court on the issues of
existence of landlord-tenant relationship between
the plaintiff and the defendant and default
committed by the latter in payment of rent.”
In Krishnan (supra), the Supreme Court has observed as under:-
“10. Under the amended Section 100 CPC the High
Court has to frame substantial questions of law and can
decide the second appeal only on those questions
framed. A perusal of the questions framed shows that
no question of law was framed as to whether the
finding of fact of the first appellate court that Lakshmi
and Ramayee are one and the same person, is based on
no evidence or is perverse.
11. It may be mentioned that the first appellate court
under Section 96 CPC is the last court of facts. The
High Court in second appeal under Section 100 CPC
cannot interfere with the findings of fact recorded by
the first appellate court under Section 96 CPC. No
doubt the findings of fact of the first appellate court
can be challenged in second appeal on the ground that
the said findings are based on no evidence or are
perverse, but even in that case a question of law has to
be formulated and framed by the High Court to that
effect. In the present case no question was framed by
the High Court as to whether the finding of the first
appellate court that Ramayee and Lakshmi are one and
the same person, is a finding based on no evidence or
is perverse. Hence the findings of the first appellate
court that Ramayee and Lakshmi are one and the same
person, could not have been interfered with by the
High Court.”
20. This Court also thinks it proper to mention here that the original
owners of the land had contested the suit, but after passing the decree by
the trial court, they did not file any appeal and even after the impugned
30
judgment and decree passed by the first appellate court, only the
purchasers, present appellants, have preferred these appeals. As per the
facts of the case and considered by this Court that the possession with
regard to the suit land was admittedly with the respondents and both the
courts have given finding in that regard in favour of the
respondents/plaintiffs. Thus, it is also clear that although the sale deeds
were executed during the pendency of suit, but possession of the suit land
was not given to the present appellants and as such it is clear that at the
time of transfer the possession was not with the ostensible owners and this
Court can considered that the present appellants are not the bonafide
purchasers and therefore, they are not entitled to get any protection as per
Sections 41 and 52 of the Transfer of Property Act, 1882. The Supreme
Court in the case of Chander Bhan (D) Through Lr. Sher Singh vs.
Mukhtiar Singh and others reported in 2024 SCC OnLine SC 761 has
observed as under:
“15. In order to appreciate the rival contentions of the
parties, it will be appropriate to reproduce the relevant
provisions of the Transfer of Property Act, 1882, the
benefit of which is being claimed by both the parties.
Section 41 of the Act of 1882 which governs the
principle of bonafide purchaser for valuable
consideration is reproduced below:
“41. Transfer by ostensible owner. – Where with
the consent, express or implied, of the persons
interested in immovable property, a person is the
ostensible owner of such property and transfers
the same for consideration, the transfer shall not
be voidable on the ground that the transferor was
not authorised to make it:
Provided that the transferee, after taking
reasonable care to ascertain that the transferor
31had power to make the transfer, has acted in good
faith.”
Similarly, Section 52 of the Act of 1882 governs
the principle of list pendens and is reproduced below:
“52. Transfer of property pending suit relating
thereto.- During the [pendency] in any Court
having authority [within the limits of India
excluding the State of Jammu and Kashmir] or
established beyond such limits] by [the Central
Government, of [any] suit or proceeding [which is
not collusive and] in which any right to
immovable property is directly and specifically in
question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other
party thereto under any decree or order which
may be made therein, except under the authority of
the Court and on such terms as it may impose.
[Explanation.-For the purpose of this section, the
pendency of a suit or proceeding shall be deemed
to commence from the date of the presentation of
the plaint or the institution of the proceeding in a
court of competent jurisdiction, and to continue
until the suit or proceeding has been disposed of
by a final decree or order, and complete
satisfaction or discharge of such decree or order
has been obtained, or has become unobtainable by
reason of the expiration of any period of limitation
prescribed for the execution thereof by any law for
the time being in force.]”
21. Once it has been held that the transactions executed
by the respondents are illegal due to the doctrine of lis
pendens the defence of the respondents 1-2 that they
are bonafide purchasers for valuable consideration and
thus, entitled to protection under Section 41 of the Act
of 1882 is liable to be rejected.”
21. In view of discussion made hereinabove and also taking note of the
law laid down by the Supreme Court and also by the High Court on the
issue in the cases referred hereinabove, there is no occasion for this Court
32
to interfere in the concurrent finding of fact about possession, especially
when appellants failed to prove any perversity in the said finding. The
original owners even after knowing about the fact of possession by the
plaintiffs over the suit land, after enforcement of the provisions of Code,
1959, did not make any application claiming resumption of their land from
the occupancy tenant and as a consequence thereof, the plaintiffs, in
pursuance to the provision of Section 190 of the Code, 1959, became the
Bhumiswami. Thus, in my opinion, nothing wrong has been committed by
the appellate court and hence the judgment and decree passed by the
appellate court in pursuance to the substantial questions of law framed by
the Court, I have no hesitation to say that appellants failed to prove any
substantial question of law so as to disturb the impugned judgment and
decree.
22. Ex-consequentia, appeals being without substance are hereby
dismissed. However, looking to the facts and circumstances of the case,
there shall be no order as to costs.
(SANJAY DWIVEDI)
JUDGE
Raghvendra
RAGHVENDRA
SHARAN SHUKLA
2024.12.20
19:16:56 +05’30’