Hussain (Dead) Thr. Lrs Vs. Hafiz Khan and Ors  Insc 969 (24 September 2007)
Arijit Pasayat & D.K. Jain
APPEAL NOS. 497-498 OF 2001 Dr. ARIJIT PASAYAT, J.
Challenge in these appeals is to the judgment of a learned Single Judge of the
Madhya Pradesh High Court in Second Appeal No.180 of 1993. The
appellant-plaintiff filed a suit for declaration of his title and permanent
injunction in respect of the lands. The plaintiff claimed to be bhumiswami of
the land. According to him, deceased Nannu Khan and his son Hafiz
Khan-respondent No.1 forcibly secured the possession of the land on 1.7.1970
and deprived him of his rights over the lands. According to him, the defendants
had no right or interest to continue their possession over the suit lands.
the suit was filed. The defendants filed a joint statement and denied title of
the plaintiff and pleaded that the plaintiff's right over the suit land had
extinguished as they had perfected their title by adverse possession. Plaintiff
used to reside in Bhopal for more than 20 years and the
defendants are in possession of the suit lands openly to the knowledge of the
plaintiff from 1962. Since their possession over the land was for more than 12
years, the suit is barred by limitation.
trial Court held that the possession of the defendants is not adverse but they
are in permissible possession of the suit lands. Therefore, it was held that
the plaintiff is entitled for a decree of possession. The first Appellate Court
found that the defendants are in possession of the suit lands with the
permission of the plaintiff. It was also held that the defendants have failed
to prove their adverse possession.
the judgment and decree of the trial Court were affirmed.
Respondents filed Second Appeal in terms of Section 100 of the Code of Civil
Procedure, 1908 (in short the 'CPC'). The following question stated to be a
substantial question of law was formulated for adjudication:
the finding that the defendants were cultivating the lands with the permission
of the plaintiffs for more than six years from the date of filing of the suit,
the defendants have acquired any Bhumiswami rights under Section 168 of the
M.P. Land Revenue Code?"
According to the High Court the only question which remained in the case was
whether the possession of the defendants was by way of lease or otherwise.
Analyzing the evidence on record it was held that the defendants had acquired
the right of occupancy tenant and, therefore, no decree for eviction can be
According to learned counsel for the appellant no issue relating to any use of
rights or any rights under Section 168 of the M.P. Land Revenue Code (in short
the 'Code') was formulated.
entirely new case has been made out in the Court.
counsel for the respondent submitted that in view of the findings recorded, the
conclusions of the High Court cannot be faulted.
is to be noted that the High Court has come to a conclusion that respondent
No.1 was son of the deceased and, therefore, was Bhumiswami under Section 169
of the Code.
it is to be noted that it was nobody's case that the position related to
possession of the defendants by way of lease or otherwise. The issues framed
were as follows:
Whether the plaintiff has title on the suit lands.
Whether the defendants have dis- possessed the plaintiff on 1.7.1970 and have
taken illegal possession.
Whether the plaintiff is entitled to claim compensation and if so, what rate.
Whether the defendants on the basis of the principle of adverse possession have
acquired title of the suit lands.
Relief and costs.
would be seen from the above the basic issue was Issue No.4 which relates to
adverse possession. There was no issue even relating to any lease having been
executed. The High Court held that once it is concluded that the suit lands
were cultivated with the permission of the Bhumiswami then considering the
language of Section 168 of the Code, that lease means transfer of right to
enjoy any land made for a certain time, the question has to be considered
accordingly. Sections 168 and 169 of the Code are read as follows:
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:
that nothing in this sub-section shall apply to the lease of any land-
by Bhumiswami who is a member of a registered Co-operative Farming Society to
by a Bhumiswami for non- agricultural purposes.
the purposes of this section-
"lease" means a transfer of a right to enjoy any land, made for a
certain time, expressed or implied in consideration of price paid or promised
or of money or any other thing of value to be given periodically to the transferer
by the transferee who accepts the transfer on such terms;
any arrangement whereby a person cultivates any land of a Bhumiswami with
bullocks belonging to or procured by such giving a specified share of the
produce of the land to the Bhumiswami shall be deemed to be a lease;
the grant of a right merely to cut grass or to graze cattle or to grow 'Singhara'
or to propagate or collect lac, pluck or collect tendu leaves shall not be
deemed to be a lease of the land.
(2) A Bhumiswami
widow ; or
unmarried woman ; or
married woman who has been deserted by her husband ; or
minor ; or
person subject to physical or mental disability due to old age or otherwise ;
person detained or imprisoned under any process of law ; or
person in the service of Armed Forces of the Union ; or
a public, charitable or religious institution;
local authority or a Co-operative Society;
lease the whole or any part of his holding:
that where a holding is held jointly by more than one person the provisions of
this sub-section shall not be applicable unless all such persons belong to any
one or more of the classes aforesaid:
further that any lease made in pursuance of this sub-section shall cease to be
in force after one year of the determination of the disability by death or
Where a lease is granted in pursuance of sub-section (2) 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.
Where on the coming into force of his Code any land is held on lease from a Bhumiswami
who belongs to any one or more of the classes mentioned in sub-section (2),
such lease shall, on the coming into force of this Code be deemed to be a lease
granted in pursuance of sub-section (2).
Lessees.If a Bhumiswami leases out for any period whatsoever any land comprised
in his holding in contravention of section 168, the rights of an occupancy
tenant shall thereupon accrue to the lessee in such land."
Section 169 has different parameters as compared to Section 168. There was no
material evidence led in that regard. However, the substantial question of law
formulated did not arise out of the orders of the courts below. In the
circumstances, the impugned judgment cannot be maintained and is set aside. We
request the High Court to re-hear the matter and consider whether any
substantial question of law arises which needs adjudication and thereafter to
decide the appeal in accordance with law. Needless to say an appeal under
Section 100 of CPC is maintainable only if substantial question of law is
appeals are allowed to the aforesaid extent with no order as to costs.