KALLU Vs. MUNNA

JUDGEMENT

(1.) THE facts giving rise to this appeal are that the respondent Balram (who is now dead and whose legal representatives have been substituted in his place) and other respondents, namely, Lokman, Mekhram and Udainarayan, who are sons of Balram, instituted a suit for recovery of possession of land khasra No. 138/2 of village Pipariya (Kala) from the defendants-appellants Kallu and Premlal. The plaintiffs' case in the plaint was that they were ex-proprietors of the village, that the land was grass land and was in their possession for a long time, that it was reserved by them as their grass land, and that after the abolition of proprietary rights it was settled with them by the order of the Nistar Officer passed on 1st December, 1953 in the rights of an occupancy tenant. It was further alleged that the defendants forcibly took possession of the said land sometime in November, 1960. The plaintiffs, therefore, claimed the relief of possession and msne profits. In answer to the plaintiffs' suit, the defendants pleaded that they were in possession of the suit land for the last fifty years and that the plaintiffs were never in possession of the same in any capacity whatsoever. It was also pleaded that the defendants had no knowledge of the order of the Nistar Officer and that the said order, which Was passed behind their back, could not affect their rights. As regards the plaintiffs' alleged dispossession in November, 1960, the defendants stated that the same was wholly untrue as the plaintiffs were never in possession and the question of their dispossession in 1960 could not arise. The trial Court decreed the plaintiffs' claim for possession and for Rs. 10 as damages. It also directed that the defendants shall be liable to pay pendente lite and post decree damages till the date of delivery of possession at the rate of Rs. 10 per year. This decree was confirmed in appeal by the 1st Additional District Judge, Jabalpur. The defendants have, therefore, come up in second appeal to this Court.

(2.) THE contention raised by the learned counsel for the appellants in this appeal is that the order of the Nistar Officer under which the plaintiffs-, respondents claimed title to the suit land was invalid and void as the land was never reserved by them as grass land for their exclusive use before the abolition of proprietary rights. In answer to this contention, the learned counsel for the respondents submitted that it was not necessary that the land should have been reserved by the respondents for their exclusive use before it could be settled with them by the Nistar Officer, that the land was in fact so reserved by them and that the order of the Nistar Officer was not open to challenge in the Civil court.

(3.) TO appreciate the rival contentions, it is necessary first to refer to certain statutory provisions. The settlement of grass land in this case was governed by rules made under section 91 (1) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. The relevant rules were made by notification no. 777-XXVIII dated 7th October, 1951. The title of these rules was "rules for the reservation of land to ex-proprietors recorded as Bir Chhota ghas etc. , vesting in the State under the Act. " Rule 1, as originally made, read as follows: