STATE OF MADHYA PRADESH Vs. KAUSHLESH BANSHIDHAR DWIVEDI

JUDGEMENT

(1.) THIS first appeal by the defendants is directed against the impugned judgment and decree of the Court below, declaring the plaintiff to have become Bhumiswami of the suit land and injuncting the defendants from interfering with his alleged possession over the suit land.

(2.) THE respondent claimed that 60' x 40' land forming part of Survey No. 474 situated at village Teothar, district Rewa (in short, the "suit land") was gifted to his father Banshidhar Dwivedi by the then Pattedar in 1955. In 1955 the land came in Abadi. In 1978-79 he constructed 2 rooms over 30' x 15' of land and took actual physical possession of the entire suit land. His father could not get the land mutated in his name during his life time and by mistake the land was recorded as Government land. By notice dated 2-1-1986 the appellant No. 4 Tahsildar asked him to stop construction over the suit land, although the construction was made long before the date of notice. It was further alleged that on 17-1-1986 the appellant No. 2, Additional Collector, Rewa, came on the spot and gave oral directions to the appellants 3 and 4, i. e. , Sub-Divisional Officer and the Tahsildar, to demolish the construction by 22-1-1986. It was asserted that the aforesaid notice and order for evicting the respondent from the suit land was illegal because by virtue of the provisions contained in M. P. Gramo Me Ki Dakhalrahit Bhoomi (Vishesh Upabandh) Adhiniyam, 1970 (in short, the "act") he had acquired the right of a Bhumiswami over the suit land. Accordingly, a declaration was sought and consequential relief of injunction restraining the appellants from interfering with his alleged possession over the suit land was claimed. The suit was resisted by the appellants on the ground that the construction was subsequent to 23-6-1980 and that the land was reserved for construction of certain Government quarters and, therefore, it could not be settled with the respondent in accordance with the provisions of the said Act. By its impugned judgment and decree, the Court below was pleased to hold that the respondent failed to prove the alleged oral gift to his father, but decreed the suit by holding that the construction was made by the respondent prior to 23-6-1980 and, therefore, by virtue of Section 3 of the Act, he had acquired the status of a Bhumiswami. Being aggrieved, the defendants have preferred this first appeal.

(3.) HAVING heard the learned counsel for the parties, I am of the view that the impugned judgment and decree of the trial Court are ex facie bad in law and, therefore, liable to be set aside. Section 3 of the Act makes a provision for allotment and settlement of. unoccupied land in certain circumstances. "unoccupied land" has not been defined in Section 2 of the Act, but clause (c) of Section 2 says that the words and expressions used in this Act but not defined shall have the meaning assigned to them in the M. P. Land Revenue Code, 1959 (in short, the "code" ). Section 2 (z-3) of the Code defines unoccupied land as follows :