Zaminder Dharmik & Shekshnik Nyas Vs. Siddhanath (Dead) by Lrs  Insc 661
(22 May 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a learned Single Judge
of the Madhya Pradesh High Court dismissing the civil appeal filed by the
appellant under Section 100 of the Code of Civil Procedure, 1908 (in short the
The appeal was dismissed summarily at the admission stage holding that no
substantial question of law is involved.
2. Learned counsel for the appellant submitted that several questions of law
3. Learned counsel for the respondent on the other hand submitted that there
is no substantial question of law involved.
4. Background facts in a nutshell as projected by appellant are as follows:
5. The present case relates to a land measuring 3.23 acres belonging to the
ancestors of Rao NihaI Karan Jamindara Bada Ravala of Indore and later on was a
part of a religious and educational trust. The appellants are its trustees. The
land in dispute is an important place where the appellant trust is carrying out
annual Dussehra Puja even prior to independence. The Zamindar family used to
perform puja from generation to generation. There was no dispute whatsoever raised
about the said land upto 1969. The respondent was merely a vegetable seller who
used to collect vegetables and fruits from the land on contract from the trust.
6. In 1969, Government issued a notice for ejectment under Section 248 of
the M.P. Land Revenue Code (in short 'the Code') claiming the land to be a land
of the Government and the appellant was dispossessed.
7. The Panchnama dated 12.6.1975 shows that the land in dispute was handed
over to the Government by none else than the father of the respondents herein
i.e. the original plaintiff Siddhanath.
8. An application for adjudication of right and title of the appellant was
made before the Sub Divisional Officer, Indore, who was a competent authority
under Section 57 of the Code.
9. Section 57 of the M.P. Land Revenue Code reads as under:
"57. State ownership in all lands. - (1) All lands belong to the State
Government and it is hereby declared that all such lands, including standing
and flowing water, mines, quarries, minerals and forests reserved or not, and
all right in the sub-soil of any land are the property of the State Government:
Provided that nothing in this section shall, save as otherwise provided in
this Code, be deemed to affect any rights of any person subsisting at the time
of coming into force of this Code in any such property.
(2) Where a dispute arises between the State Government and any person in
respect of any right under sub-section (1) such dispute shall he decided by the
(3) Any person aggrieved by any order passed under sub-section (2) may
institute a civil suit to Contest the validity of the order within a period of
one year from the date of such order.
3-a) (a) Notwithstanding anything contained in the Code of Civil Procedure,
1908 (V of 1908) no Civil Court shall, in a civil suit instituted under sub
section (3) on or after 24th October, 1983, by order of temporary injunction
disturb the person to whom possession is restored under section 250 if such
person furnishes a reliable surety to recompensate the aggrieved party against
any loss in case the Civil Court grants a decree in favour of the aggrieved :
Provided that no surety shall he required to be furnished by a member of a
tribe declared to be an aboriginal tribe under sub-section (6) of Section165;
(h) Where a Civil Court by an order of temporary injunction disturbed the
person referred to in clause (a) on or after 24th October, 1983 but before the
publication of Revenue Department's Notification No.1-70-VII-N-2-83, dated 4th
January, 1984 such order shall abate on such publication and the Tehsildar
shall restore possession to a person who is disturbed by such order.
(4) Where a civil suit has been instituted under sub-section (3) against any
order, such order shall not be subject to appeals or revision."
10. The Sub-divisional Officer decided the title and declared the appellant
as Bhumiswami of the land in dispute and also held that the land was being used
for Dussehra Puja by the appellant
11. In pursuance of the application for restoration of possession in view of
the aforesaid order dated 19.9.1974, the Tehsildar ordered restoration of
possession to the appellant. In pursuance of the said order of the Tehsildar,
the Patwari went to the spot and made a report that the place was in possession
of the plaintiff/respondent's father Shri Siddhanath. The appellant, therefore,
applied for an order before the Tehsildar.
The Tehsildar on the one hand passed an order seeking clarification from the
Board of Revenue about the area of the land and at the same time served a copy
of the appellant's application to Sri Siddhanath, father of the Respondent.
12. Siddhanath filed an appeal challenging the order dated 19.9.1974 which
13. Aggrieved by the order of the Collector, Siddhnath, father of the
respondent filed a revision before the Commissioner (Land Revenue) which was
also dismissed on the ground of limitation.
14. Aggrieved by the order of the Commissioner, Siddhanath, father of
respondent filed revision before the Board of Revenue.
15. The Board of Revenue, vide it order dated 26.8.1982 also dismissed the
said revision filed by the father of the respondent.
16. Siddhnath, father of the respondent, in the meanwhile filed a civil suit
No.259A/1981 for declaration of title and for injunction against the appellant
and Rao Nihal Karan much after the expiry of one year from the date of order of
Sub- Divisional officer dated 19.9.1974. The suit was thus barred under Section
57(3) of the M.P. Land Revenue Act, 1959 (in short the 'Act'). However, in the
said suit the appellant filed an application for discovery of documents. The
father of the respondent did not file the said documents and the said suit was
dismissed on 17.8.1983 under Order X1 Rule 21 CPC.
Order XI Rule 21 CPC reads as under: "Order XI. discovery and
Rule 21. No-compliance with order for discovery - (1) Where any party fails
to comply with any order to answer interrogatories, or for discovery or
inspection of documents, he shall, if a plaintiff, be liable to have his suit
dismissed for want of prosecution, and, if a defendant, to have his defence, if
any, struck out, and to be placed in the same position as if he had not
defended, and the party interrogating or seeking discovery or inspection may
apply to the Court for an order to that effect and an order may be made on such
application accordingly, after notice to the parties and after giving them a
reasonable opportunity of being heard.
(2) Where an order is made under sub- rule(1) dismissing any suit, the
plaintiff shall be precluded from bringing a fresh suit on the same cause of
17. No further appeal or revision or any other proceedings against the said
order were opted and thus this decision became final under Section 57 of the
18. Siddhnath, father of the respondent, not deterred by previous orders,
filed present suit without making the appellant or Rao Nihal Karan as a party
to the said suit. In the said suit Siddhnath claimed adverse possession against
the State of M.P. as will be evident from para 8 of the plaint.
Respondent concealed the institution of his previous suit dated 21.12.1981
as well as the order of its dismissal dated 17.8.83.
19. Appellant herein who was not made a party, applied for being made a
party which was allowed and the appellant was arrayed as Defendant No.3.
20. The State authorities in collusion with the respondent filed written
statement and admitted that the respondent was in possession since 1950.
21. As the appellant is a religious and charitable trust, the trustees could
not collect the relevant documents of the ancestors of Zamindara Bada Ravala
nor could timely lead the evidence. However, the appellant filed some documents
and memo of appeal presented by Siddhnath which was allowed to be taken on record.
22. Thereafter the appellant filed an application under Order XIII Rule 10
for proving the Memo of Appeals filed against the order dated 19.9.1974 in
which the respondent specifically took the plea that he was in possession on
behalf of the appellant.
23. The trial Court rejected the said application.
24. The appellant also filed an application under Order VI Rule 17 for
amendment of the written statement for inserting very important facts including
the fact that the dismissal order dated 17.8.83 of the previous suit make the
present suit as not maintainable. The same was also rejected.
25. The trial Court vide judgment and order decreed the said suit on
26. Aggrieved by the judgment of the trial Court, the appellant herein filed
first appeal before the Additional District Judge, being First Appeal No.3 of
27. The IIIrd Additional District Judge, Indore vide its order dismissed the
first appeal on 30.1 1999.
28. Second appeal was filed which as noted above was dismissed.
29. In the Memorandum of appeal following questions were formulated by the
(i) Whether the learned Courts below have not erred in decreeing
plaintiff-respondent's suit? (ii) Whether the plaintiff's claim could be
decreed without there being any challenge to the decision of the Revenue
Authorities for restoration of possession to the appellant? (iii) Whether the
learned Courts below are right in accepting the plaintiff's claim of possession
in his own right or adverse possession? (iv) Whether the learned First
Appellate Court was right in rejecting the applications, I.A. 5 and I.A. 6? (v)
Whether the decisions are rendered by wrongly placing burden of proof on the
appellant? (vi) Whether the suit of the plaintiff was maintainable in view of
the dismissal under Order XI Rule 21 of his earlier Suit No. 359/81?
30. In our considered view the questions (ii), (iii) and (vi) are prima
facie substantial questions of law which need to be adjudicated. Accordingly we
set aside the order of the High Court and remit the matter to it for hearing
the second appeal on the questions (ii), (iii) and (vi) as quoted above. We
make it clear that though prima facie there appears to be substantial questions
of law, the High Court shall be free to decide the matter in accordance with
31. Appeal is allowed without any orders as to costs.
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