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CASE NO.: Appeal (civil)  4601 of 2005

PETITIONER: Narain Prasad Aggarwal (D) by LRs

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :          1.      This appeal is directed against the judgment and order dated  11.5.2004 passed by a Division Bench of the Madhya Pradesh High Court  in First Appeal No. 8 of 1988 dismissing the appeal preferred from a  judgment and decree dated 23.11.1987 passed by the Additional District  Judge, Hoshangabad in C.S. No. 12-A of 1986 dismissing the suit filed by  the appellant herein.   

2.      The basic fact of the matter which is not in dispute is that the suit  property was put in auction in or about 1859 by the ancestors of Rai Baldev  Bux and Gaurabai i.e. one Ramjanaki Prasad.  They, thus, became the  owners of the said land, and all remained in possession thereof till their  death.  On or about 24.3.1986, the said  land was purchased by Late Fateh  Chand from Rai Baldev Bux and Gaurabai.  He died in or about the year  1920.  His wife, Smt. Putari Sethani, being his sole heir became the owner  of the said land.  She expired on 8.5.1961.  It is not in dispute that she did  not have any issue and the plaintiff Narain Prasad Aggarwal and defendant  No. 2 Guruprasad Agarwal inherited the said property as her heirs being  sons of Hira Lal, the brother of late Fateh Chand.   

3.      It appears from the records that a proceeding was initiated by the  said Putari Sethani in connection with proceeding for assessment of  enhancement of lease rent by the then Collector of Hoshangabad.  An order  was passed against her.  The matter was taken to the Court of  Commissioner of Settlements in an appeal against the order of the  Collector.  The said authority by an order dated 30.10.1922 passed in C.P.  No. 2454/1 held :

       "Mt. Putari Sethani appeals against the  orders of the Assistant Settlement Officer, Nazual,  Hoshangabad in respect of the following plots in  that town.

       Nos. 207/18, 87/21. 70/21, 108/21.  All  assessed as "riths" by the Assistant Settlement  Officer.  This assessment had already been  cancelled in general revision order dated the 14th  October, 1921 recorded on the spot.         11/7 Assessed as a Sitaphal Bari, the fruits  of this bari are sold, as admitted.  It was muaf  when held by a Mohammadan who looked after  the tomb in it.  As 30 years ago it came in to  applicant’s possession by mortgage, and she is a  Hindu she obviously has no right to hold muaf.   The assessment order of the Assistant Settlement

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Officer is upheld. No. 3/44 area 12.11     old rent        Rs. 52-6-5                                 New rentRs. 60-8-0 1/60 \026do- 6,26               Old rent        Rs. 24-0-0                                 New rent        Rs. 31-4-0         These are bungalow sites.  In his letter No.  551-A, dated the 15th April 1920, the  Commissioner, Narbudda Division distinctly  ordered that these plots for which no leases existed  by considered as held on permanent lease in  accordance with the Deputy Commissioner’s  proposals contained in his letter No. 290, dated the  24th March, 1920.  The Assistant Settlement  Officer Nazul has no right to enhance the rent, for  in the leases executed in compliance with the  Commissioner’s orders, a term of 30 years, with  effect from the 1st April 1899 was entered.  As laid  down by the Hoshangabad Nazul Resolution, the  term of these leases should have been extended, so  as to expire with the term of the new Settlement  and the rent left unaltered.         The Assessment order of the Assistant  Settlement Officer is therefore reversed and the old  rents of these plots will be recorded in the Khasra.

       Deputy Commissioner will kindly have this  done.                                 Sd/- G.G.C. Trench                         Commissioner of Settlements                                 Central Provinces 19.10.1922"

       The said order was marked as Exhibit P-3 in the suit.   

4.      An application was filed by the plaintiff-appellant and the defendant  No. 2 for mutation of their names in the revenue records, which was  allowed by an order dated 12.12.1964 but the same  was set aside by an  order of the appellate authority passed on 26.6.1965.  By an order dated  15.3.1968, the Additional Commissioner, Bhopal opined that the land in  question could not have been treated to be freehold as allegedly rent was  assessed under the 1881 Land Revenue Act and 1917 Land Revenue Code  and the same had not been challenged, stating :

"Moreover under the 1881 Land Revenue Act and 1917  Land Revenue Act all land was liable to pay land revenue  and only as a matter of grace lands which were built over  prior to 1891 were exempted from assessment but the  Government always reserved the right to levy assessment on  these sites at the time of settlement.  The present suit land  was presumably not built over land at the time of settlement  in 1921 and was therefore assessed.  At any rate, the  assessment then levied and not challenged that time cannot  be questioned now.  Under Sec. 100 of the M.P.L.R. Code  1959 (hereinafter termed Code) such an assessment is liable  to be revised after the expiry of the terms of settlement and  was, therefore, rightly revised by the learned Collector  rejecting the claim of the appellants that the property is not  liable to assessment.  The method of the computation  adopted by the learned Collector for fixing the revised  assessment and premium has not been challenged at all and  is generally in order.  This in my opinion is payable by  holder of the suit land irrespective of the fact the holder  accepts or refuses to accept the same.  If holder does not  want to hold the suit land at this revised assessment and  premium, it is clear that the learned Collector has no choice

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but to declare it as open Nazul land.  The order of the  learned Collector declaring accordingly does not in my  opinion call for any interference and appeal against the  impugned order has to be dismissed."

5.      It is, however, stated at the bar that the provisions of the Land  Revenue Code have no application in respect of  harvested land.

6.      In regard to the order of mutation passed in favour of the appellant, it  was, however, observed that mutation in respect of Nazul land being not  governed by the provisions of M.P.L.R. Code, the second appeal was not  maintainable.   

7.     Appellant Narain Prasad Aggarwal, thereafter, filed a suit in the  Court of District Judge, Hoshangabad praying inter alia for the following  reliefs:

"a.     It may be declared that the plaintiff and defendant No.  2 Guruprasad, are the legal heirs of deceased Smt. Putri  Sethani and, therefore, are the owners and in possession of  Nazul Plot No. 3, area 12-11 acre (57538 sq. ft.) Sheet No.   44, Mohalla Civil Station, city Hoshangabad, Tehsil &  District Hoshangabad, as has been shown in the Schedule  ’A’ sketch map; b.      It may also be declared that the said place of land was  never given on lease by the Governemnt to the deceased  Putri Sethani or anyone of her ancestors. 13(a)   That a decree for permanent injunction may be passed  restraining the defendant No. 1 from taking possession of  any portion of the piece of plot in dispute and the defendant  No. 1 may be directed that he may get the name of the  plaintiff and defendant No. 2 entered in respect of the plot in  dispute and he may re-assess the land revenue in terms of  the advertisement No. 4-C-63 dated 16.2.1963."

8.      In its written statement, the respondent inter alia contended:

(i)     The rate of land revenue in respect of such lands which had  not been fixed bound to be increased and lease could be  directed to be renewed in law.  Such a decision was to be  taken irrespective of the fact as to whether the land in question  had been lying vacant or houses have been constructed  thereupon. (ii)    As the plaintiffs have violated the terms and conditions of the  lease, a decision had been taken to determine the lease in  accordance with law wherefor recommendations were sent to  the Government.   (iii)   In any event, the plaintiffs have accepted the liability to pay  rent and the order passed by the competent authority having  not been challenged, the suit was not maintainable.   

9.      The First Additional District Judge, Hoshangabad in whose Court  the suit was transferred inter alia framed the following issues having regard  to the rival contentions raised  by the parties in their respective pleadings :

"1      (a)     Whether this suit is within time?         (b)     Whether it is barred by time? 2.      Whether the plaintiff is not in possession of the  suit property? Its effect? 3.      (a)     Whether the suit property was purchased by          Ramjanki        Prasad in a public auction about          27 years prior to 1886 and thereafter he          obtained possession of the same. (b)     Whether on 24.3.1986 Gourabai, widow of  Ramjanki Prasad and Rai Baldev Bux son of

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Bakshi sold the same to deceased Seth  Fatehchand son of Seth Dharamchand by  registered sale deed and obtained possession  thereunder? (c)     Whether in 1920 after the death of Seth  Fatehchand his widow Putri Sethani came in  possession of the same as his legal heir?        (d)     Whether on 30.10.22 Settlement  Commissioner, Central Provinces and Berar at  Nagpur held that about Putri Sethani was the  permanent lessee of the suit plot? (e)     Whether on 8.5.61 the plaintiff and his brother  defendant 2 on death of Putri Sethani came in  possession of this property as her heirs? (f)     Whether this property belongs to defendant No.  1? (g)     Whether plaintiff and defendant No. 2 are  owners of the same? 4.              Relief, costs and compensatory costs?"

10.     All the issues were answered in favour of the plaintiff save and  except issue No. 3(f) and 3(g).  While, thus, declaring title of the plaintiff,  only in view of the entries made in the revenue records, the suit was held to  be not maintainable.   

11.     It is interesting to note the findings of the Trial Judge on the issues  framed by it, which are as under :  (a)     The suit is not barred by limitation. (b)     In respect of issue No. 2, it was noticed that no evidence had been  produced by the State to controvert the evidence adduced on behalf  of the plaintiff.  The plaintiff and defendant No. 2 had been in  possession of the suit land. (c)     In regard to issue No. 3(a), it was found that no dispute had been  raised by defendant No. 1 respect thereof.  It was further noticed that  the suit plot was purchased on 24.3.1986 by Late Fatehchand from  Rai Baldev Bux and the said fact has been admitted by the defendant  No. 1.  Inheritance of the said property from Late Fatehchand by  Putri Sethani has also been admitted by the defendant No. 1 in its  written statement.   (d)     While adverting to issue No. 3(d), the Court accepted that the State  has not produced any evidence to controvert the order passed by the  Settlement Commissioner dated 30.10.22 (wrongly stated as 3.10.22)  wherein it was held that the property in question had not been given  on lease in favour of the predecessors in interest of the appellant and,  thus, the said issue was also answered in favour of the plaintiff.   (e)     Yet again while adverting to issue No. 3(a), the learned Trial Judge  noticed that no evidence had been produced by the defendant No. 1  to controvert the fact that after the death of Smt. Putari Sethani, the  plaintiff and the defendant No. 2 had been in possession of the whole  property.  It was further held that the dispute in the whole case is  mainly centered on the decision of these two issues.   (f)     The plaintiff has shown that his ancestors are the owners and in  possession of the plot.  For this reason, he and the defendant No. 2  are now owners of the said plot.   (g)     The defendant No. 1 i.e. the State of Madhya Pradesh has shown that  in the Nazul settlement for the year 1920-21, the suit plot was given  to the ancestor of the plaintiff no.2 ’Putari Sethani’ on lease for a  period of 30 years.  The land was a Nazul residential land and,  therefore, the ownership rights of this land were with the State  Government.   (h)     Smt. Putri Sethani was only a lessee and rent used to be recovered  from her.   (i)     As Putari Sethani had no title over the plot in dispute, the plaintiff  and defendant No. 2 also do not have any title over this plot.

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12.     The learned Trial Judge by a queer process of reasonings, and only  having regard to the entries made in the revenue records, came to  contradictory and inconsistent findings that the State has also shown that it  is the owner of the suit plot, although it was clearly opined that the plaintiff  and the defendant no. 2 had proved their title and possession.  Exhibit P-4  and Exhibit P-6 certified copy of the Khasras were relied upon by the  learned Trial Judge to hold :

"in column No. 8 thereof, the same thing is written.  Both  these documents have been produced on behalf of the  plaintiff who has relied on the same.  From the 1920-21  settlement report produced by defendant No. 1 and the  documents of the Revenue appeal, it is proved that the  ownership rights over the urban residential Nazul lands are  with the State and such land is given by the State on lease to  individual persons and in this case also the same thing is  proved that the suit plot was given to Smt. Putri Sethani on  lease upto the period 31.3.1951.  Exhibit P-4 and Exhibit P-6  submitted by the plaintiff are certified copies of the Khasra  numbers.  He has also relied on them.  These come in the  category of public documents, which are admissible in  evidence in terms of the provisions of Section 35 of the  Evidence Act, unless the same are proved otherwise.  On  both these documents, it is written that the suit plot was  given to Smt. Putri Sethani on lease upto the period  31.3.1951. It supports the side of defendant No. 1"

13.     On the aforementioned findings, the suit was dismissed.  The trial  Court also rejected the contention of the appellant stating "the lands in  question are not Nazul lands stating that in the wake of all these  documents, the contention that the suit land was not Nazul land and was in  ownership right of the appellant and his brother or their predecessor-in-title  cannot be accepted.  The lease of Nazul land can be terminated if the  conditions of lease are violated by the holder.  Therefore, the contention of  learned counsel for the appellant that the Government has no right to  terminate the lease cannot be accepted.  If there is illegality in the  termination of the lease, the holder is free to make recourse to the legal  remedy, but it cannot be said that the Government or other competent  authorities have no jurisdiction to terminate the lease".

14.     Mr. A.K. Sanghi, learned counsel appearing on behalf of the  appellant in support of this appeal inter alia submitted that the learned Trial  Judge as also the High Court committed a manifest error in arriving at  self- contradictory and inconsistent findings insofar as while, on the one hand, it  was held that the plaintiffs have title over the lands in suit, on the other,  opined that the defendants have also proved their title.   

 15.   Mr. B.S. Banthia, learned counsel appearing on behalf of the  respondent-State, on the other hand, contended that Smt. Putari Sethani  havig been paying rent for the Nazul land and thus accepting the State as  her lessor, the appellant now cannot be permitted to turn round and contend  that the land in question is not  Nazul land.  It was submitted that an  application had been filed as far back as on 2.7.1920 for grant of a Putta  and, in that view of the matter too, the State’s title must be held to have  been admitted and acknowledged.   

16.     We feel it difficult to appreciate the findings of the Trial Judge,  which are, in our opinion, self-contradictory.  We have noticed  hereinbefore that the land in question was put to auction as far back as in  the year 1859.  The plaintiff and the defendant No. 2 and their predecessors  in interest had all along been in possession thereof.  While it may be true  that the land in question in the revenue records of rights had been shown as  Nazul land and the said late Smt. Putari Sethani filed an application for  grant of a lease or paid rent to the State, it is evident from the order passed  by the Commissioner of Settlements dated 30.10.22 that no such deed of

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lease was available on record.  The property in question must be held to  have been held by her and her predecessor in interest as a perpetual lessee.   The learned Trial Judge, while arriving at the finding that Late Smt. Putari  Sethani obtained a lease for a period of 30 years, did not refer to any  documentary or oral evidence produced by the State.  If a deed of lease was  executed by the Collector in favour of Smt. Putari Sethani, the same should  have been produced.  In fact, as noticed hereinbefore, the Settlement  Commissioner arrived at a positive finding that the Collector had not  executed any deed of lease.  The correctness and/or validity of the said  order passed by the Settlement Commissioner has never been put in issue.   As the said order attained finality, the said order of the Commissioner of  Settlement, thus, became final and binding on the revenue authorities, the  question could not have been permitted to be reopened only because  another officer of the Revenue Department took a contrary view.   

17.     The learned Trial Judge, in our opinion, could not have ignored the  title derived by the predecessor in interest of the plaintiffs and the  defendant No. 2 which was acquired as far back as in the year 1859 being  the subject matter of an auction.  No document has been brought on record  to show as to what was the nature of the interest which the original owner  had in the land.   

18.     It is one thing to say that the proprietary interest of all the proprietors  and under tenure holders having vested in the State, the plaintiff and the  defendant No. 2 were bound to pay rent to the State of Madhya Pradesh,  but it is another thing to say that the State was the owner of the land which  was having the characteristics  of the nature of Nazul land and the plaintiff  and the defendant No. 2 or the said late Smt. Putri Sethani was a lessee  under it for a fixed period.   

19.     The term ’Nazul land’ has a definite connotation.  It inter alia means  "Land or buildings in or near towns or villages which have escheated to the  Government; property escheated or lapsed to the State: commonly applied  to any land or house property belonging to Government either as an escheat  or as having belonged to a former Government."   

20.     Even in the Revenue Book Documents, Part four Serial No. 1, Nazul  land situated within the prescribed limits of the Municipal Corporation and  the Nagar Palika is stated as under: "1.     "Nazul" and "Government land" 1.      That land which is the property of the  Government and which \026 (a)     is not forming part of the records in the account  of any village; (b)     is not recorded as Banjar, jharidar jungle, hilly  and chattans, rivers, village trees or  Government trees; (c)     is not recorded for Village roads, gothan, charai  land, or in the shape of grazing in abadi  Chargahs; (d)     is not ear-marked and reserved for development  of the village or any other community  development projects; or  (e)     is not service land.

       There are two categories i.e. "Nazul" and  "Government land".  In "Nazul" lands, such Government  lands are included which are used for construction projects  or for general public facilities like Bazars or entertainment  parks, or the lands which may possibly be required to be  used in future for such projects.         The categorization of the land which is in custody of  any Department of the State Government or Central  Government or which is recorded in the records of  Government Lands, will be done.  In brief, it can be said that

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"Nazul" is that land which if kept as open site carries more  importance and not agriculture related.  The lands which are  generally categorized as "Nazul" lands, are as under:- -       Plots of lands near the buildings, whether they are  Government or non-government. -       Cantonment lands; -       Parks -       Plots of lands used for Bazards, Haat or fairs; -       Lands of Shamshan Chat (Crematorium); -       Lands where possibility of construction is there, and  other such lands where there is a possibility that these  can be used for public purposes in the near future.         Under the ’Nazul’ land, those Government plot of  lands will also be included which are meant for  Sarais, Kanji Hauzes, Bazars, etc. and which are in  possession of the local residents or which are standing  in their names."

21.     The learned Trial Judge had categorically come to the finding that  the State had admitted the documents relied upon by the plaintiff and had  not also controverted the evidence adduced by him and, hence, in our  opinion, it could not have dismissed the suit relying only upon the entries  made in the record of rights.    

22.     Record of right is not a document of title.  Entries made therein in  terms of Section 35 of the Indian Evidence Act although are admissible as  a relevant piece of evidence and although the same may also carry a  presumption of correctness, but it is beyond any doubt or dispute that such  a presumption is rebuttable.  Exhibit P-4 and Exhibit P-6, whereupon  reliance has been placed by the learned trial judge to hold that the State had  title over the property in question, were documents of year 1920-21, but  failed to notice that the documents must have been taken into consideration  and/ or would be presumed to have been taken into consideration by the  Settlement Commissioner when the aforementioned order dated 30.10.1922  (Exhibit P-3) was passed wherein it had categorically been held that no  deed of lease having been executed in respect of the land in question, the  title of the said Putri Sethani should be deemed to be a permanent lessee.

23.        Although title in respect of  an immovable property may have  different concepts, it is fundamental that title of the same nature cannot be  found to be existing in two different persons where their claims thereover  are opposite.  It was possible for the court to hold in a situation of this  nature that the plaintiffs and the defendant No. 2 being a permanent lessee  under the State were bound to pay rent to the State by way of land revenue  or otherwise but the same would not mean that despite the plaintiff being  the holder of title, the State had in it a right of reversion or for that matter  the character of the land was Nazul land.   

24.     It is, therefore, difficult to agree with the findings of the learned Trial  Judge as affirmed  by the High Court.   

25.     The existence of a lease deed must be proved.  The same must also  answer the legal requirements contained in Section 105 and 107 of the  Transfer of Property Act. The relationship of lessor and lessee and the  terms and conditions of a lease would depend upon the contract between  the parties.  It is not and cannot be the case of the State that an oral lease  was granted in favour of  Putri Sethani.  In a case involving the State and  particularly when the nature of the land is said to be Nazul land, it was  imperative on the part of the State to execute a deed of lease.  As execution  of such a document has not been proved, the learned Trial Judge, in our  opinion, committed a manifest error in solely relying upon the entries made  in the revenue record of rights despite noting the order of the  Commissioner of Settlement dated 30.10.1922.  Entries made in the  revenue record of rights, it would bear repetition to state, cannot defeat the  lawful  title acquired by an auction purchaser, particularly, in view of the

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fact that Putri Sethani had questioned the order passed by the Collector of  the District before the Commissioner of Settlement which ended in her  favour.  It is well-settled that payment or non-payment of rent does not  create or extinguish  title.   

26.     The plaint might not have been very happily drafted.  But it is well  known that, ordinarily, moffusil pleadings are not to be strictly construed  as has been held in Des Raj Vs. Bhagat Ram [2007 (3 SCALE 371] in the  following terms:

       "It may be true that in his plaint, the plaintiff  did not specifically plead ouster but muffosil  pleadings, as is well known, must be construed  liberally.  Pleadings must be construed as a whole.   Only because the parties did not use the  terminology which they should have, ipso facto,  would not mean that the ingredients for satisfying  the requirements of statute are absent.  There  cannot be any doubt whatsoever that having regard  to the changes brought about by Articles 64 and 65  of the Limitation Act, 1963 vis-‘-vis Articles 142  and 144 of the Limitation Act, 1908, the onus to  prove adverse possession would be on the person  who raises such a plea.  It is also furthermore not  in dispute that the possession of a co-sharer is  presumed to be possession of the other co-sharers   unless contrary is proved."   27.     Pleadings, as is well known, must be construed in its entirety.  We,  therefore, are of the opinion that the findings of the learned Trial Judge as  also the High Court, that the State was the owner of land, is not correct.   The State has not furthermore been able to establish the character of the  land as Nazul land and in any event has  not been able to show that it had a  right of reversion.   

28.     We, however, do not intend to express any opinion as to whether the  State of Madhya Pradesh is otherwise entitled to receive any rent from the  appellants or not.  Such a question if raised may be determined in an  appropriate proceedings.   

29.     For the reasons stated hereinabove, we set aside the impugned order  of the High Court as well as of the learned Trial Judge and the suit of the  plaintiff shall be decreed.  The appeal is allowed with costs.  Counsel’s fee  assessed at Rs. 25,000/-.