RAMKUMAR DANI Vs. STATE

JUDGEMENT

(1.) THIS is a Letters Patent appeal from an order of Shrivastava J. dismissing an application under Article 226 of the Constitution filed by the appellants challenging the validity of the settlement of 0.20 acres of land with respondents Nos. 2 to 8 and claiming a declaration that they were entitled to the said land.

(2.) THE appellants' case briefly was that the land in question was a part of an embankment of a tank which they were entitled to hold under Section 5 (f) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (I of 1951). Before the appellants that tanks include "the pars around them." This contention Was accepted by the learned Single Judge, but he took the view that normally the pars would be of narrow width going round the tank or a part of it and in such cases they would certainly form part of the tank, but that in cases where the pars were of considerable width and armed not merely as 'pars' for the retention of the water in the tank but covered a space of cultivable land, they could not be considered a part of the tank. The learned Single judge proceeded to observe that in the latter type of cases it was usual to give separate khasra numbers to such pars and as in the present case the disputed 0. 20 acre forming a part of the pars had been built upon by the respondents, the appellants had no light to compel the State to settle that area with them.

(3.) LEARNED Government Advocate was unable to refer us to any statutory provision sanctioning the practice of giving separate khasra numbers to "pars of wide width" and recording them as grass land or waste land. In the absence of any such statutory provision, it cannot be held that pars or embankment "of considerable width" cannot be considered as part of the tank. In this case it is noteworthy that the appellants have been allowed to retain possession of a major portion of the embankment of the tank. Their claim in relation to 0.20 acre forming a part of the embankment was disallowed merely because that land had been built upon by the respondents Nos. 2 to 8. If the appellants have been allowed to retain a major portion of the pars on the basis that it forms a part of the embankment and thus of the tank itself, then there is no reason to think that the disputed land which is also a part of the pars is not a part of the tank. If the land is a part of the tank, then it does not cease to be so merely because the respondents have used it for their own purpose.