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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.