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CASE NO.: Appeal (civil)  1196 of 2006

PETITIONER: Begam Suraiya Rashid & Ors.                              

RESPONDENT: State of Madhya Pradesh & Ors.                   

DATE OF JUDGMENT: 20/02/2006

BENCH: H.K.SEMA & Dr.A.R. Lakshmanan

JUDGMENT: J U D G M E N T (Arising out of S.L.P.( C ) No. 19756 of 2005)

H.K.SEMA,J      

                Leave granted

               The facts of this case revolves as to how the  appellants clandestinely and by suppressing the facts tried to  grasp the public land measuring 59.17 acres in Khasra Nos.  943, 960, 961, 962 of Jahangirabad ( Jail Bag ) area of Bhopal  city under the guise of order dated 2.3.1954 passed by the  Jagir Commissioner in respect of land in Khasra Nos.72/1, 73,  74, 75, 76 in village Dharampuri.                  The facts of this case are cumbersome and may be  recited briefly and strictly for the purpose of disposal of this  appeal.  The present disputed land measuring 59.17 acres in  Khasra Nos.943, 960, 961 and 962 was recorded in the name  of jail department and situated in the area of Bhopal city near  the Arera Hills in front of old jail premises since 1935.  It  appears that the area was developed as a garden having trees  of Mangoes, Jamun, Lemon etc. and the same was used to let  out to different contractors and the property was managed  from the income received from the fruits grown in the garden.   No revenue was assessed on that income as the land belonged  to the State Government.  It is not disputed that the said land  was given on lease to one Shri Bhawani Singh and Shri Jameel  Ahmed by the Superintendent of Jail for a consideration of  Rs.375/- per annum.  Subsequently one Shri Rashiduzzafar  Khan, the predecessor of the appellants, obtained a deed of  relinquishment in his favour from the lessees Bhawani Singh  and Jameel Ahmed.  This was done without the concurrence  and consent of the Government.  Rashiduzzafar Khan  continued using the land in the capacity of lessee and used to  pay annual rent at the rate of Rs.375/-.                     Rashiduzzafar Khan, predecessor of the appellants  submitted an application in August, 1960 to the Government  for recording his name as a Bhumiswami in respect of the said  land in Khasra Nos.943, 960, 961 and 962.  The same was,  however, rejected by an order-dated 5.8.1962.  Another  application filed by the appellants herein was rejected on  29th/30th January, 1965 on the ground that the land in  question was recorded in the name of jail department.           

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       Thereafter, a proceeding under Section 248 of the  Madhya Pradesh Land Revenue Code, 1959 (hereinafter  referred to as ’the Code’) was initiated for eviction of the  appellants in 1981.  It was held that the appellants were the  trespassers and order of eviction was passed by the Tahsildar  on 16.9.1981.  The Tashildar’s order was challenged before the  SDO which was dismissed on 19.3.1985.  SDO’s order was  challenged before the Commissioner in second appeal and the  same was dismissed by the Commissioner on 29.6.1989.  The  order of the Commissioner was challenged by filing M.P.  No.3978 of 1991, which was dismissed as withdrawn on  25.4.1998.  Thereafter, the Commissioner’s order was assailed  before the Revenue Minister and he directed an enquiry in the  matter and the said order was set-aside by the Government by  its order dated 1.11.1991 on the ground that the Revenue  Minister had no jurisdiction to pass such an order.  This  would show that the order of eviction passed by the Tahsildar  on 16.9.1981 attained its finality.                            Another attempt was made by the appellants by  filing application under Section 57(2) of the Code on  14.11.1983 praying inter alia to declare Bhumiswami rights in  their favour.   The said application was filed before the SDO,  Bhopal, on the basis of the registered deed dated 6.4.1940  executed by Bhawani Singh and Jameel Ahmed.    This  application was, however, not pursued by the appellants.                  Thereafter, the appellants filed civil suit No.159- A/84 in the Court of District Judge, Bhopal.  In the said suit  the State Government filed the written statement.  The said  suit was dismissed on withdrawal on 1.7.1998.                         Thereafter, the appellants filed an application for  mutation before the Naib Tahsildar in 1989.  The said  application was allowed by the Tahsildar on 29.1.1990.  Suo  Motu proceedings were drawn by the Collector, Bhopal on  3.8.1990.  An enquiry was ordered against the Naib Tahsildar  and by an enquiry report dated 27.4.1994 the Naib Tashildar  was held guilty of ordering mutation improperly.                          From the aforestated facts it clearly appears that the  land in dispute was recorded in the name of jail department  since from 1935 till 1989, when for the first time the  appellants filed an application for mutation.                  At this stage, we may dispose of one of the  arguments of Mr. Rohtagi learned senior counsel for the  appellants.  It is contended that pursuant to the Jagir  Commissioner’s order dated 2.3.1954 Civil Suit No.180-A of  1984 was filed by the appellants which was decreed by the  Trial Court and affirmed by the Division Bench on 17.4.1987  and SLP against the same was dismissed on 6.5.1988.   Therefore, the present dispute is barred by the principle of res  judicata.   He specifically referred to issue No.9 in the said  suit.  It reads:- "Whether the order dated 02.03.1954 of the  Jagir Commissioner is contrary to law and  void?"

According to Mr. Rohtagi, the order of Jagir Commissiner  dated 2.3.1954 was on one of the issues in suit No.180-A/84  which has been decreed in favour of the appellants and since  the present case also revolves around the order dated  2.3.1954 passed by the Jagir Commissioner the present  dispute in hand is barred by the principle of res judicata.         

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     In our view, this submission is misconceived.  It is  not disputed by the respondents that the decree in Civil Suit  No.180-A/84 passed in favour of the present appellants has  attained finality, SLP being dismissed on 6.5.1988.  It is,  however, to be noted that it is the specific case of the  respondent-Government that the order of the Jagir  Commissioner dated 2.3.1954 which was the subject matter of  Civil Suit No. 180-A/84 does not include the area of the land  in the present dispute.  From the order of Jagir Commissioner  as quoted by the Trial Court it clearly appears that the land  involved in the earlier suit was in Khasra Nos.72/1, 73, 74, 75  and 76 in village Dharampuri and the area of land is 7.26  acres.  Undisputedly, the land involved in the present dispute  relates to Khasra Nos.943, 960, 961 and 962 of Jahangirabad  area of Bhopal city measuring 59.17 acres.    While it is true  that in issue No.9 in the said suit reference was made to the  order passed by the Jagir Commissioner dated 2.3.1954 which  was decided in favour of the appellants but the land in the  present dispute was not covered by the Jagir Commissioner’s  order dated 2.3.1954.  As already noticed the land in the  present dispute is distinctly different from the point of view of  the location of the land and Khasra Nos. from the subject  matter of earlier suit.   Therefore, by no stretch of imagination,  it can be said that the present dispute is hit by the principle of  res judicata in view of the decision rendered in Civil Suit  No.180-A/84, which has attained finality.  In this connection,  reliance has been placed by Mr. Rohtagi on the cases of  Dhanvanthkumariba    vs.   State of Gujarat, (2004) 8 SCC  121, Mahila Bajrangi   vs.  Badribai, (2003) 2 SCC 464 and  Phool Pata   vs.  Vishwanath Singh. 2005 AIR 3575.  These  decisions are of no assistance to the appellants’ case.                           Next, Mr. Rohtagi referred to the provisions of the  Bhopal Abolition of Jagirs and Land Reforms Act, 1953 (in  short the Act), in particularly Section 4, Section 5, sub-section  1(b) of Section 6, Sub-section (2) of Section 6, Section 17 and  Section 27.  According to Mr. Rohtagi, no appeal has been  preferred by the State Government against the Order of the  Jagir Commissioner dated 2.3.1954 as provided under Section  27 of the Act.  The order passed by the Jagir Commissioner  has become final.   This contention would be of no help to the  appellants’ case.  We have already held that the Jagir  Commissioner’s order dated 2.3.1954 does not refer to the  land in dispute in the present case measuring 59.17 acres.   We have also held that the land in question has been recorded  in the name of jail department in revenue records since from  1935. It was never Jagirs land prior to the enforcement of  abolition of Jagirs Land Reforms Act.  That the land in  question was not covered by the Jagir Commissioner’s order  dated 2.3.1954 has been accepted by the appellants by their  own conduct.     

     That the land in the present dispute is not a part of  the order dated 2.3.1954 passed by the Jagir Commissioner is  also fortified by the following facts which we will be reciting  presently.                        In the Civil Suit No.159-A/84 filed by the appellants,  inter alia  prayed the following relief:

"(A) A decree for declaration be passed in  favour of the plaintiffs and it be decreed that  the plaintiffs have become Bhumiswamis and  owners of the suit lands situated in Bhopal

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town at Hoshangaband Road mentioned in  Khasra Nos. and area as shown below:-                                            Khasra Nos.                             Area 943     25.92 960     12.39            961       7.23 962     13.63 Total:      59.17 acres.

In the said suit, the appellants admitted in paragraph 5 that  Bhawani Singh and Jameel Ahmed used to send Rs.375/- to  jail department which was paid by late Nawab Rashid \026Uz-  Zafar Khan from 1940 till his death, and after his death in  1961 the plaintiffs reunited the amount till 1978, when the jail  department refused to accept the payment.

               In paragraph 11 it is stated that the Naib Tahsildar,  Nazul, Bhopal passed an order dated 16th September, 1981  evicting the plaintiffs from the land which has attained finality.   As already noticed the suit was withdrawn by the appellants  and was dismissed on withdrawal on 1.7.1988.                 In paragraph 22 of the plaint, the plaintiffs averred  that they paid income tax and wealth tax on the stud and  agricultural farm and it was assessed by the Income Tax and  other Taxation authorities.  In the return filed by the  appellants on 8.6.1968 in paragraph 5 (Jail Bagh Farm), the  appellants admitted that they are only lessees of   the land and  that they paid a rent of Rs.375/- per annum to the jail  department of M.P.                 In the application filed before the SDO by the  appellants on 14.11.1983 it is also admitted  in pargraph 5   that late Rashiaz Zaffar Khan used to send Rs.375/- yearly in  the leased account to the jail department. In the said  application Khasra Nos.943, 960, 961 and 962 and total area  of the land measuring 59.17 acres are shown.  A prayer was  made that the appellants be declared as Bhumiswami of the  disputed lands.                  In the letter dated 30.7.1968 counsel for the  appellants addressed to the Assistant Controller of Estate  Duty, Indore, in connection with the estate duty of Late  Nawabzada Rashiduzzafar Khan, it is stated in paragraph 4 of  the letter as under:-                 "Jail Bag Farm:            Copy of the Khasra in respect of Jail  Bag Land, Khasra Nos. 943, 960, 961 and 962  of village Shahar is enclosed.  As this land is  owned by the Jail Department, as per land  records, it is called Jail Bag Farm.  Our client  pays rent of Rs.375/- per annum to the Jail  Department of M.P. in respect of this land  owned by the Jail Department."

                                       (emphasis supplied)

               In the letter dated 18.10.1962 written by the  Chartered Accountant of the appellants to the Deputy  Controller of the Estate Duty, it is stated in 3.9 that Stud  Farm (Jail Bagh) standing in the area of about 59 acres, which  is used for breeding of horses, and that land does not belong  to the owners.                   The facts as adumbrated above would clearly show  that all along the appellants accepted that the land belonged  to the jail department and they were only the lessees paying

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rent of Rs.375/- to the jail department. In all the  correspondences as recited above not even a reference was  made to the order dated 2.3.1954 passed by the Jagir  Commissioner.                  For the first time in 1989 an application was made  under Section 109 of the Code for mutation purportedly on the  strength of the order dated 2.3.1954 passed by the Jagir  Commissioner.  The power under Section 109 can only be  exercised by the authority in respect of any person lawfully  acquiring a right and such application shall also be filed  within six months from the date of such acquisition.  In the  instant case, as already noted, the land in question was never  lawfully acquired by the appellants as they were only the  lessees paying Rs.375/- to the jail authorities and there was  no question of lawfully acquiring any right as contemplated  under Section 109 of the Code.  This apart, right if any, is  acquired lawfully by any person, such application must be  made within six months from the date of such acquisition and  therefore application made for the first time in 1989 under  Section 109 of the Code purportedly on the basis of the order  dated 2.3.1954 passed by the Jagir Commissioner was clearly  an abuse of the process of law.                  We may now make a quick survey of the relevant  Sections of the Code, for the purpose of disposal of the case at  hand.                   Chapter IX, Section 104 of the Code deals with the  land records.                 Section 108 of the Code deals with the record of   rights and shall include the following particulars: (b) the names of all occupancy tenants and  Government lessees together with survey  numbers or plot numbers held by them and  their area, irrigated or unirrigated;  

               Section 117 of the Code deals with the presumption  as to entries in land records and it provides that all entries  made under this Chapter in the land records shall be  presumed to be correct until the contrary is proved.                  Section 114 of the Code deals with the land records  and it provides that in addition to the map there shall be  prepared for each village a khasra or field book.                 Section 116 deals with the disputes regarding entry  in khasra or in any other land records and it provides that if  any person is aggrieved by an entry made in the land records  prepared under Section 114 he shall apply to the Tahsildar for  its correction within one year of the date of such entry.                 In the present case Khasra Nos. were entered in the  name of jail department since from 1935 and if the appellants  were aggrieved they could have raised the dispute under  Section 116 to the Tahsildar for its correction within one year  from the date of such entry. As already noted Section 117  raises a presumption as to entries in land records being  correct until the contrary is proved.  Having not availed the  aforesaid provisions of Law, the only remedy that was open to  the appellants was under Section 57(2)(3).                   Section 57 Chapter VI of the Code deals with the  land and land revenue. It provides that all lands belong to the  State Government, and all such lands including standing and  flowing water, mines, quarries, minerals and forests reserved  or not, and all rights in the sub-soil of any land are the  property of the State Government.  Proviso to Section 57  provides that the Section shall not affect any rights of any  person subsisting at the coming into force of this Code in any  such property.  Sub-section 2 of Section 57 provides that if

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any dispute arises between the State Government and any  person in respect of any right under sub-section (1) such  dispute shall be decided by the Sub-divisional Officer.   Further, sub-section 3 provides that if any person is aggrieved  by any order passed by the SDO under sub-section 2 he may  file a civil suit to contest the validity of the order within a  period of one year from the date of such order.                 As already noticed the appellants filed a Civil Suit  No.159-A/84 and it was dismissed on withdrawal on 1.7.1998.

               As already noted on application being filed by the  appellants in 1989, the Tahsildar by ex-parte order dated  29.1.1990 ordered the land in question to be mutated in the  name of the appellants.  The Tahsildar in his order also  noticed that the name of the jail department is mentioned in  the land records.  However, the order was passed ex-parte on  the ground that despite several letters sent to the jail  department none appeared on its behalf.  We have already  noted that the order passed by the Naib Tahsildar dated  29.1.1990 was an abuse of the process of law.  The said order  was set-aside by the Appellate Authority, in our view, rightly  by a detailed order passed on 24.6.1996.  Aggrieved thereby a  revision under Section 50 of the Code was preferred before the  Board of Revenue.  Section 50 reads:-          "50.Revision.-(1) The Board ( or the  Commissioner)/ (x x x ) or the (Settlement  Commissioner or the Collector or the  Settlement Officer) may at any time on its/his  motion or on the application made by any  party for the purpose of satisfying  itself/himself as to legality or propriety of any  order passed by or as to the regularity of the  proceedings of any Revenue Officer  subordinate to it/him call for, and examine the  record of any case pending before, or disposed  or by such officer, and may pass such order in  reference thereto as it/he thinks fit:

On a cursory reading of Section 50 it postulates that the  Board of Revenue would exercise revisional powers if the  revenue officer subordinate to it, appears to have exercised a  jurisdiction not vested in it by law or to have failed to exercise  a jurisdiction so vested or to have acted in the exercise of its  jurisdiction illegally or with material irregularity.  In the  instant case, the Board of Revenue erroneously called for the  report again by directing a roving enquiry.   As was pointed  out by the High Court, the Board of Revenue exercised  revisional powers which is patently erroneous, contrary to law  and it transgressed its revisional jurisdiction by calling report  from the Tahsildar despite the impeccable facts available on  the record.  Thus, the High Court was justified in setting-aside  the said order.                 Even in the report submitted by the Naib Tahsildar  on 7.9.1996 it is stated as under: "In the Patwari record 1995-96 Khasra No.943,  area 25.92 Khasra No.960, area 12.39, Khasra  No.961 \026 area 7.23, Khasra No.962 \026 area  13.63, on total 59.17 acre in the Khasra,  Department of Jail is recorded.  But at the  place Stud Farm is constructed."

                                       ( emphasis added )

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The report shows that the land in dispute was clearly  recorded in the revenue records in the name of jail  department and the board of revenue acted contrary to the  facts in ordering mutation to be carried out in favour of the  appellants.  It is unfortunate.                 In the facts and circumstances this appeal is devoid  of merits and deserves to be dismissed which we hereby do.  Considering the fact that the appellants were suppressing the  facts at every stage of proceeding, we deem it necessary that  the appeal deserves to be dismissed with costs which we  quantify at Rs.10,000/- (Rs.Ten Thousand Only).  The appeal  is dismissed with costs.