Rohini
Prasad & Ors Vs. Kasturchand & ANR [2000] INSC 101 (3 March 2000)
D.P.Wadhwa,
S.S.Ahmad
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. The disputed land is agricultural land
governed under the provisions of the Code. Maqsood Ali and Abid Ali 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 Section168 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) ..." 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 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)
..." The order of the Sub-Divisional Officer is dated July 16, 1979. Respondents therein are Rohini
Prasad, the lessee and Maqsood Ali and Abid Ali recorded Bhumiswamis.
Sub-Divisional
Officer affirmed the order of the Naib Tehsildar and held that Rohini Prasad
was the tenant of Maqsood Ali and Abid Ali and he continued to be so for two
successive years and since the Bhumiswamis failed to apply for resumption of
the land leased out there was thus contravention of sub-section (1) of Section
168 of the Code.
In
proceedings before the Naib Tehsildar, Kasturchand was not made a party but his
contention that he was interested party and that notice should have been issued
to him was repelled by the Sub- Divisional Officer. Kasturchand then went in
second appeal under sub- section (2) of Section 44 of the Code to the
Commissioner. By order dated 27.5.1987, the Additional Commissioner, Jabalpur, dismissed the appeal.
He,
however, took note of the fact that Kasturchand had filed a civil suit for
possession of the disputed land which though decreed was dismissed in appeal
filed by Rohini Prasad and second appeal against that filed by Kasturchand was
pending in the High Court. He, therefore, did not decide the appeal before him
on merit. In the civil suit filed by Kasturchand, one of the issues raised was
whether the suit was maintainable in a civil court. This issue was decided in favour
of Kasturchand. In the civil suit, Maqsood Ali and Abid Ali, who were the
recorded Bhumiswamis, were not made parties. First Appellate Court, on appeal
filed by Rohini Prasad, did not comment on this issue and rather held that Maqsood
Ali and Abid Ali had admittedly granted lease of the land to Rohini Prasad for
the year 1975-76 and that it was continued for another year 1976-77.
That
would bring the case of Rohini Prasad under Section 168 of the Code. High
Court, in appeal filed by Kasturchand, also did not go into the question if the
civil court had jurisdiction to try the suit. It reversed the finding of the
first Appellate Court that lease was continued for the year 1976-77. High Court
observed that it was misreading of the evidence by the first Appellate Court
that lease was continued for the year 1976-77 as well. It said that conclusion
arrived at by the first Appellate Court was perverse. It appears to us that the
High Court interfered in the second appeal not because that appreciation of
evidence by the first Appellate Court was not correct but on account of the
fact that the first Appellate Court misread the evidence which lead to
miscarriage of justice. Before us, Mr. Khanduja in support of this appeal has
raised two principal contentions : (1) High Court could not upset the finding
of fact in second appeal and that no substantial question of law had arisen and
that (2) Civil Court had no jurisdiction to try the suit.
The fact that Kasturchand purchased the land from Maqsood Ali and Abid Ali by
registered sale deed is not disputed. It is also not disputed that Maqsood Ali
and Abid Ali gave the land on lease for the year 1975-76 to Rohini Prasad. Now,
either Rohini Prasad has continued in possession of the land on account of
continuation of lease or renewal of the lease by Maqsood Ali and Abid Ali for
the year 1976-77 or he is in unauthorised possession of the land after expiry
of his lease for the year 1975-76. Under Section 250 of the Code, if a Bhumiswami
is dispossessed of the land or if any person unauthorisedly continues in
possession of the land of the Bhumiswami to use of which such person has no
right under the Code, he may apply to the Tehsildar for restoration of the
possession. Sub- section (1) and (2) of Section 250 which are relevant may be quoted
: "250. Reinstatement of bhumiswami improperly dispossessed.(1) If a Bhumiswami
is dispossessed of the land otherwise than in due course of law or if any
person unauthorisedly continues in possession of any land of the Bhumiswami to
the use of which such person has ceased to be entitled under any provision of
this Code may apply to the Tehsildar for restoration of the possession : (a)
... (b) ... (2) The Tehsildar shall, after making an enquiry into the
respective claims of the parties, decide the application and when he orders the
restoration of the possession to the Bhumiswami, put him in possession of the
land." Now, Maqsood Ali and Abid Ali have not asserted their right by
filing any application under Section 250 of the Code before the Tehsildar.
After selling the land, they appear to have become uninterested persons. Under
Section 257 of the Code, jurisdiction of Civil Court is barred in the matter of
ejectment of lessee or a Bhumiswami under sub-section (4) of Section 168
[clause (k)] or in claims by occupancy tenants for conferral of the rights of Bhumiswami
on him under Section 190 [clause (o)] or in any decision regarding
re-instatement of a Bhumiswami improperly dispossessed under Section 250
[clause (x)]. By approaching the revenue courts, Rohini Prasad has sought
conferring of right of Bhumiswami under Section 190 of the Code.
Certainly,
there have been two parallel proceedings one under the Code before the Revenue Court and the other under ordinary law
before the Civil Court. Mr. Khanduja did contend that the Civil Court had no jurisdiction to try the
suit. The question of jurisdiction was raised before the Trial Court in civil
proceedings and an issue raised which was decided as a preliminary issue. It
was held that the Civil
Court had
jurisdiction in the matter. This finding of the Civil Court had not been challenged in appeal either before the lower
Appellate Court or before the High Court.
Even
in the grounds of appeal in this Court, there is no challenge to the finding of
the Trial Court that the Civil
Court has
jurisdiction in the matter. We find there have been consistent decisions of the
Madhya Pradesh High Court holding that the determination of the question of
title is the province
of Civil Court and
unless there is any express provision to the contrary, exclusion of Civil Court cannot be assumed or implied. A
Full Bench of the Madhya Pradesh High Court in Ramgopal vs. Chetu [1976 RN 146]
was considering the question whether the Civil Court cannot take cognizance of
a suit instituted by Bhumiswami on the basis of his title against the
trespassers. The Full Bench repelled the argument that in proceedings under
Section 250 of the Code, since the Revenue Authority has no jurisdiction to go
into the question of title, it would lead to anomalous results if again it is
held that the Civil
Court has
jurisdiction to decide any question relating to the title.
The
Full Bench observed : "Under the general law, a suit for possession based
on title can be instituted in the Civil Court within 12 years from the date of dispossession. The
principle that possession must follow title has received greater weight and
sanctity when the distinction between the scope and effect of Article 142 and
those of article 144 of the Limitation Act, 1908, has been watered down and
simpler provisions have been substituted in Articles 64 and 65 of the
Limitation Act of 1963. It will be anomalous to read section 250 as providing
for a suit for possession based on title, which is to be instituted within two
years only. It will entail a fantastic result that if a suit is not brought
within two years under section 250, the Bhumiswami's right will be
extinguished, because by virtue of section 26 of the Limitation Act, if a suit
for possession is not instituted within the period of limitation prescribed therefor,
not only the remedy is barred but the right is also extinguished. Section 26 is
an exception to the general rule that limitation bars the remedy but does not
extinguish the right." The Full Bench then went to hold :
"The
remedy provided in section 250 of this Code can be resorted to by a Bhumiswami
by an application to the Tehsildar. He has to show either (1) that he was
dispossessed by the non-applicant otherwise than in due course of law, or (2)
that he was dispossessed within two years from the date on which the possession
of such person became unauthorised (although initially the possession of that
person may be authorised). Thus, clearly enough, this section provides for a
remedy at the hands of the Tehsildar for restoration of possession, when a Bhumiswami
is improperly dispossessed, that is, without due process of law. Clause (x) of
section 257 excludes the jurisdiction of the Civil Court to challenge "any decision regarding reinstatement of
a Bhumiswami, improperly dispossessed under section 250". In both these
provisions the subject matter of enquiry is possession not title.
Determination
of the question of title is the province of the civil Court and unless there is
any express provision to the contrary, exclusion of the jurisdiction of the
civil court cannot be assumed or implied." In three different appeals
coming to the Madhya Pradesh, Hon'ble Judges sitting singly have consistently
held that the civil suit of possession based on title is triable by the Civil Court. That being the law laid by the
High Court of Madhya Pradesh while interpreting the Code which applies to the
State of Madhya Pradesh and held the field for all these
years, it is not desirable for the Supreme Court to give a different
interpretation and to upset the settled law. Merely because a different view is
possible and that on that ground the decision of the High Court is erroneous,
in our view, should not be a ground to interfere. Law should be certain and
parties should know where they stand. We have already said that the finding of
the First Appellate Court on reading of the evidence was perverse and the High
Court rightly interferes to upset the same. As a matter of fact there was no
evidence to come to the conclusion that Rohini Prasad was in possession of the
land in continuation or renewal of the lease after expiry of the year 1975-76.
Accordingly we do not find any merit in the appeal. It is dismissed with costs.
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