KASHIRAM Vs. NATHU

JUDGEMENT

(1.) The questions referred for the opinion of the Full Bench are as follows:--

(2.) The agricultural land-in-suit is situated in village Palia Haider. This village formed part of the erstwhile Holkar State. The suit land is recorded in the name of the defendant-appellant as the Bhumiswami thereof. Initially the suit land was recorded in the name of the deceased Gopal father of the appellant. Gopal filed a suit (Civil Suit No. 32 of 1944) against the present respondents for possession of the suit land. This suit was dismissed on 30-11-1945. The respondents continued in possession of the suit land since then. In the year 1965 the present suit was filed by the respondents against the appellant for declaration that they have acquired rights of Bhumiswami by adverse possession and therefore were entitled to have their names mutated in place of the appellant as the Bhumiswami of the land. The appellant contested the suit and contended that the possession of the respondents over the suit land was permissive. The trial court held that the appellant's title to the suit land was extinguished and was acquired by the respondents by adverse possession. Consequently the plaintiff's suit was decreed. On appeal by the defendant appellant the finding of the trial court was maintained and the appeal was dismissed. The defendant preferred this second appeal against the decree of the lower appellate court. This appeal came up for hearing before Oza, J. At the hearing of the appeal the appellant placed reliance upon a decision of B. R. Dube, J. in Second Appeal No. 510 of 1965 (Bagadiram v. Onkar -- decided on 28-10-1975) wherein it was held that rights of a Bhumiswami cannot be acquired by adverse possession. Oza, J. who heard this appeal was of the opinion that the view taken by Dube, J. was not correct and requires reconsideration. He, therefore, referred the aforesaid questions of law for the opinion of a larger Bench. Initially the Chief Justice constituted a Division Bench to give opinion on the questions referred to. Before the Division Bench the former Advocate General who was noticed by the Division Bench contended that in this reference two Full Bench decisions of this court in Nahar v. Mst. Dukaihin (1974 MPLJ 257): (AIR 1974 Madh Pra 141) and Ramgopal v. Chetu Batte (AIR 1976 Madh Pra 160) will be required to be considered and that as conflicting views have been expressed in the aforesaid two Division Bench decisions the questions referred to the Division Bench may be referred to a larger Bench. Consequently the Division Bench was of the opinion that a larger Bench be constituted for giving an opinion on the questions referred. Therefore the Chief Justice has constituted this Full Bench and the matter has come up for hearing before us.

(3.) At the outset we may state that the learned Advocate General submitted before us that the two Full Bench decisions referred to above i.e. 1974 MPLJ 257 : (AIR 1974 Madh Pra 141) and AIR 1976 Madh Pra 160 have no bearing on the decision of the questions referred to us. It is, therefore, not necessary for us to consider whether there is any conflict between the views taken in the aforesaid two Full Bench decisions. The learned Advocate-General also submitted that the State Government has nothing to say in the matter and the Government is not concerned whether the questions referred to are decided one way or the other.