Full Judgment Text
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CASE NO.:
Appeal (civil) 497-498 of 2001
PETITIONER:
Bakhtiyar Hussain (dead) thr. Lrs
RESPONDENT:
Hafiz Khan and Ors
DATE OF JUDGMENT: 24/09/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NOS. 497-498 OF 2001
Dr. ARIJIT PASAYAT, J.
1. 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.
Therefore, 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.
The 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.
Accordingly, the judgment and decree of the trial Court were
affirmed.
2. 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:
"Whether 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?"
3. According to the High Court the only question which
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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 passed.
4. 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.
5. An entirely new case has been made out in the Court.
Learned counsel for the respondent submitted that in view of
the findings recorded, the conclusions of the High Court
cannot be faulted.
6. It 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.
But, 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:
1. Whether the plaintiff has title on the suit
lands.
2. Whether the defendants have dis-
possessed the plaintiff on 1.7.1970 and
have taken illegal possession.
3. Whether the plaintiff is entitled to claim
compensation and if so, what rate.
4. Whether the defendants on the basis of
the principle of adverse possession have
acquired title of the suit lands.
5. Relief and costs.
7. As 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:
"Lease- 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 nothing in this sub-section
shall apply to the lease of any land-
(i) made by Bhumiswami who is a member
of a registered Co-operative Farming Society to
such Society;
(ii) held by a Bhumiswami for non-
agricultural purposes.
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Explanation.\027"For the purposes of this
section-
(a) "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;
(b) 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;
(c) 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 who is-
(i) a widow ; or
(ii) an unmarried woman ; or
(iii) a married woman who has been deserted
by her husband ; or
(iv) a minor ; or
(v) a person subject to physical or mental
disability due to old age or otherwise ; or
(vi) a person detained or imprisoned under any
process of law ; or
(vii) a person in the service of Armed Forces of
the Union ; or
(viii) a public, charitable or religious
institution;
(ix) a local authority or a Co-operative Society;
may lease the whole or any part of his holding:
Provided 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:
Provided 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 otherwise.
(3) xx xx xx
(4) 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
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condition of the lease or on the lease ceasing to
be in force.
(5) 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).
169. Unauthorised Lessees.\027If 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."
8. 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 involved.
9. The appeals are allowed to the aforesaid extent with no
order as to costs.