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CASE NO.: Appeal (civil)  5835 of 2000

PETITIONER: Zaminder Dharmik & Shekshnik Nyas

RESPONDENT: Siddhanath (dead) by Lrs

DATE OF JUDGMENT: 22/05/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

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 ’CPC’ ).   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 are involved.   

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

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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 Sub-divisional Officer. (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 was dismissed.

13.     Aggrieved by the order of the Collector, Siddhnath, father

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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:\027  

"Order XI. discovery and Inspection. 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 action."

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 Act.

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.

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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 31.1.1997.

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 1997.

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 appellant:

(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 law.

31.     Appeal is allowed without any orders as to costs.