SHUBARATI Vs. STATE OF M.P.

JUDGEMENT

(1.) THE Plaintiff/Appellant has preferred this second appeal against the judgment and decree passed on 15th March 1974 by Additional District Judge, Shivpuri, in Civil Appeal No. 41 -A/1972, preferred against the judgment and decree dated 11 -8 -1972, passed by Civil Judge, Class II, Karera, whereby the suit of the Plaintiff for declaration wad dismissed.

(2.) THE material facts leading to this appeal are. The suit land bearing Survey No. 205/247, Area 13 bigha 1 biswa situated in Village Urwaha, Pargana Karera, District Shivpuri, was a Zamindari land of Zamindar Riyaz Ahmad; the suit land was given on lease to the Plaintiff's father Ramjani by the then Zamindar Riyaz Ahmad in Samvat 1980 Ramjani planted fruit bearing trees of mango, 'Khinni' and Jamun' (rose -apple) and continued to cultivate the land as a tenant. In Samvat 1992 (13 -3 -1936) a Patta (Ext. P -1) was executed by the Zamindar in favour of Ramjani, Plaintiff's father, for the period till the next settlement on the condition that yearly the Thekedar will give 3000 mangoes and half of the product of Khinnis; the mango fruits come lesser in any year, the figure shall be reduced proportionately and the land revenue was fixed at Rs 100/ - silver coins yearly. The Plaintiff's father remained in continuous possession of the suit land after the enforcement of the M. B. Zamindari Abolition Act, Samvat 2008 (Act 13 of 1951) (for short, 'MBZA Act') on the date of vesting, i. e. 2 -10 -1951, the Zamindar was not in possession of the suil -land as Khud -Kasht but the Appellant's father was possessing the land as a tenant, after vesting the land was settled in Samvat 2008 in favour of the Plaintiff's father in accordance with the provisions of Section 5 (a) of the MBZA Act, and Ramjani continued to deposit land revenue in Tahsil as determined in accordance with S. 5 (f) of the MBZA Act. At the trial the Plaintiff produced Kisani Pavti Book (Exts P -7 to P -10) for Samvat 2011 to Samvat 2024; because of malafide action of the concerned Patwari Plaintiff's father's named was not recorded in the Khasra of Samvat 2007 and onwards, in the year 1959 the Plaintiff came to know that the suit land of his possession is being auctioned by the Collector, he objected to the auction and initiated proceedings under Section 5 (f) of MBZA Act, ultimately by an order dated 30 -10 -1967 passed in Revision No 68 -III/87. the Appellant lost his case, wherein the Board of Revenue held that the ex -Zamindar did not give the suit -land to the Appellant's father on lease, but it was a licence for collecting fruits and flowers from the grove of the ex -Zamindar; though the Khasra entry in Samvat 2014 shows the Plaintiff's father in possession of the Bag (Bagicha), as there is no entry recorded in Samvat 2007, the land could not have been settled under Section 5 (f), nor the Plaintiff's father applied within six months from the date of vesting, for a new lease from the Government under Section 101 (1) of the M. B. Land Revenue and Tenancy Act, Samvat 2007 (for short, the 'Tenancy Act') for non -agricultural purposes. After the order of the Board of Revenue, the Appellant instituted the suit on 1 -5 -1969 for declaration that in view of the definitions of 'Kashtkar' in Section 2 (27) and 'Lagan' in Section 2 (33) of the Quanoon Mal, Gwalior, Samvat 1983 (for short, 'Quanoon Mal') and the Plaintiff's continuous possession as Kashtkar in which Thekedar is also included, the Plaintiff acquired rights of Haq Maurusi under Section 247 of the Quanoon Mal, and after the enforcement of the MBZA Act, Pakka tenancy rights were conferred on the tenant/Plaintiff under Section 38, by operation of law, the Plaintiff applied under Section 39 of MBZA Act for grant of a fresh lease under Section 101 (1) of the Tenancy Act, but that was in a mistaken apprehension, because the land never vested in the State, and after the date of vesting under Section 6 of MBZA Act, the Collector did not take charge of the suit land, according to Section 54 (vii) of the Tenancy Act, the Plaintiff became a Pakka tenant, as according to the definition of Pakka tenant, a "Pukhta Maurusi" includes "Haq Sakitul Mil -kiyat" tenant as defined under Section 2 (28) of the Quanoon Mal, which the Plaintiff was. On the siad averments, the Plaintiff sought the declaration. The State in its defence contended that the ex -Zamindar did not grant any lease to the Plaintiff's father, but it was a licence of the grove for plucking and collecting of fruits and flowers, it was averred that the land was not 'Khud -Kasht' of the ex -Zamindar on the date of vesting, the land vested in State. A plea of limitation that the suit for declaration, having not been filed within 3 years from the date of accrual of the cause of action, i. e. from the date of auction in the year 1959, was barred by time, was also raised. The Defendant No. 2, the son of the ex -Zamindar, also denied the claim of the Plaintiff and contended that as there is no cause against Defendant No. 2 nor any relief has been claimed against him, a prayer for dismissal of the suit was made with compensatory costs.

(3.) AT the trial, the Plaintiff, besides the documents referred to above, also filed a certified copy of the judgment (ext. P -11), passed by Tahsildar, Karera, in a case between the ex -Zamindar and the father of the Plaintiff, in that the suit of the ex -Zamindar against Ramjani was dismissed for violation of the conditions of the lease. Certain applications were also filed by the Plaintiff to show deposit of land revenue by him in the Tahsii Court. A certified copy of statement of ex -Zamindar recorded in case No. 8/1962 Appeal -Mal, under S 5 (f) of MBZA Act was also filed, wherein the ex -Zamindar admitted the lease and possession of the Plaintiff's father as a tenant. The State filed certified copies of Khasra entries from Samvat 2006 to Samvat 2009 (Exts. D -1 to D -4) and two Panchsala. Khasras from Samvat 2010 to 2014 and 2015 to 2019 (Exts. D -5 and D -6), wherein the name of the Plaintiff was not recorded in any capacity.