STATE OF M P Vs. RADHIKA PRASAD

JUDGEMENT

(1.) Feeling aggrieved by the judgment and decree dated 9-8-1997 passed by learned First Additional Judge, Mundwara to the Court of District Judge, Mundwara in Civil Suit No. 21-A/1993 decreeing the suit of the plaintiffs, the State of Madhya Pradesh has preferred this appeal under section 96 of the Civil Procedure Code. The facts, in brief, for the purposes of disposal of this appeal lie in a narrow compass. Suffice it to say that a suit for declaration of Bhumiswami right in respect to the immovable property the description whereof has been mentioned in the plaint and which is the subject-matter of the suit has been filed by the plaintiffs on 24-6-1993 with a further relief that the State of Madhya Pradesh and its functionaries be restrained from interfering in their possession. According to the plaintiffs, they are the owners in 'Bhumiswami right in respect to the suit property and also the various superstructures built thereupon. First plaintiff, Radhika Prasad Katare bought the suit property in Malik Makbooja right vide sale deed dated 24-5-1948 from its previous owner, viz. Church of England Zenana Mission Society (hereinafter referred to as "the Society") a Charitable Trust which was in occupation since the time immemorial to carry on its religious activities like running of school and orphanage etc. Further it has been pleaded by plaintiffs that originally the suit property belonged to one Miss. Elizabeth Branch, Spinster residing at Pachmarhi in Malik Makbooja rights who vide registered transfer/sale deed dated 21-3-1906 sold out the suit property in favour of the abovesaid Society in Malik Makbooja right including the superstructure built thereupon and various buildings in the nature of hostel, orphanage, houses, messauges, tenements and well etc. After having purchased the suit property by first plaintiff he in some portion installed an Oil Mill, namely, Shankar Oil Mill and also raised various constructions from time to time with due permission of Municipal Corporation, Katni and rented out some of them to various tenants, who are in all 28 in number. In para-7 and 8 of the plaint it has been pleaded that land revenue was fixed and enhanced from time to time by the erstwhile Government. In para-10 it has been pleaded that after a period of 37 years first plaintiff Radhika Prasad all of a sudden received a notice on 24-6-1991 from Naib Tehsildar, Nazul, Katni to the effect that he was in possession of the Nazul land on 30 years' permanent lease from the Government on annual rent of Rs. 126.56 paise vide order passed in Revenue Case No. 17/VII/5/51-52 which had expired long back and he should take immediate steps else legal action would be taken against him for its eviction etc. According to the plaint averments made in para-11 of the plaint, first plaintiff Radhika Prasad Katare is an ordinary old business man who is not acquainted with the law and above case of 1952 was also not within his memory nor the findings given in that case. Believing the above notice of Naib Tehsildar to be correct he was advised to make an application for renewal of the lease immediately without wasting any time so as to save his immovable property (the disputed property) of huge valuation, but, although he moved such an application it was not pressed and the same was dismissed.

(2.) Further it has been pleaded by the plaintiffs that since the suit land was declared abadi to be used as building sites, according to section 219 of the Central Provinces Land Revenue Act, 1917 (for short "the Revenue Act of 1917") every old occupations were validated and the sites were allowed to be retained as owner thereof and these sites were made heritable and transferable by the Government. Further it has been pleaded that according to the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (in short "the Abolition of Proprietary Rights Act") all the abadi sites were required to be settled with the occupants thereof and by the enforcement of the M.P. Land Revenue Code, 1954 (in short "the Revenue Code of 1954") confirmed those persons to be the Bhumiswami of the holdings. Since the State of Madhya Pradesh and its functionaries (defendant) were creating hindrance in the enjoyment of the suit property, hence, the present suit has been filed.

(3.) The defendant refuted the plaint averments by filing written-statement. The stand of the State Government is that plaintiff No. 1 Radhika Prasad Katare is a Government lessee and the lease was for 30 years which expired in the year 1984 and since the lease has not been renewed the plaintiffs are the trespassers. The State of Madhya Pradesh is treating the plaintiff No. 1 Radhika Prasad Katare as its lessee although it has been specifically pleaded in para 1 (Ga) that there is no Patta (lease deed) in writing. Further the stand of the defendant is that under section 106 of the Transfer of Property Act, 1882 since the conditions of the Patta had been violated for which the plaintiffs are not having any authority and further because the status of the plaintiffs is that of trespasser, therefore, they have no locus standi and the suit be dismissed. In para (f) it has also been pleaded by the defendant that the civil suit for declaration and injunction is not at all maintainable for the simple reason that same is barred under section 57(2) of the M.P. Land Revenue Code, 1959 (in short "the Code"). On the basis of these pleadings it has been prayed that the suit of plaintiffs be dismissed.