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PETITIONER: ROHINI PRASAD & ORS.

       Vs.

RESPONDENT: KASTURCHAND & ANR.

DATE OF JUDGMENT:       03/03/2000

BENCH: D.P.Wadhwa, S.S.Ahmad

JUDGMENT:

     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

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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

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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

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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

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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.