MOHNI DEVI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) On behalf of the appellant/ plaintiff this appeal is preferred under Section 100 of CPC being aggrieved by the judgment and decree dated 30.1.2012 passed by 5th Additional District Judge, Bhopal in Civil Regular Appeal No.56/2011 affirming the judgment and decree dated 4.2.2011 passed by the 8th Civil Judge, Class-II, Bhopal in Civil Original Suit No.169-A/2009, whereby her suit filed for declaration and perpetual injunction with respect of the land in dispute describe in plaint has been dismissed.

(2.) The facts giving rise to this appeal in short are that the appellant/ plaintiff filed the impugned suit for declaration and perpetual injunction with respect of the land bearing survey No.428/1/2 area 0.37 acre out of total area 8.77 acres contending that she entered into an oral agreement in the year 1992 with Bhoomiswami Munshilal and Rajaram to purchase the aforesaid land and pursuant to it the possession of such land was also obtained by her. Subsequent to it the registered sale deed of this land was also executed in her favour by the aforesaid Bhoomiswami on 26.2.1994 and since then she is coming in possession of the land. It is further contended that she had also applied to Tahsildar, Circle Bairagarh, Bhopal for mutation of such land in her name but without conducting proper inquiry the same was dismissed holding that aforesaid land being not recorded in the name of the seller of the aforesaid sale deed, as such the same is recorded in the name of State of Madhya Pradesh could not be mutated in her name. It is also stated that possession of the disputed part of the land was never taken by the authorities of the respondent under the Urban Land Ceiling and Regulation Act 1976 (In short 'the Act') as such after declaring the aforesaid land to be the surplus under the Ceiling Act the same was recorded in the name of State of Madhya Pradesh illegally. In any case, its possession was never taken by the State authorities either from the appellant/ plaintiff or from its earlier owner/ Bhoomiswami. It is further stated that mere on account of non-recording the name of the plaintiff/ appellant over such land in the revenue record, it could not be said that she did not have the right and title over the land. With these pleadings the plaintiff/ appellant had filed the aforesaid suit to declare her to be the Bhoomiswami of such land with a further prayer to issue perpetual injunction to restrain the authorities of the respondent to interfere in her possession of such land in any manner.

(3.) In the written statement of the respondent / State, by denying the averments of the plaint, it is stated that the disputed part of the land is not in possession of the appellant/ plaintiff and her mutation application after carrying out proper inquiry was rightly dismissed. It is further stated that in respect of entire land of aforesaid Khasra No.428/1/2 area 8.77 acres under the provision of Urban Land (Ceiling and Regulation), Act, 1976 (In short "the Act") a ceiling case No.57/91-92 was registered against the then Bhoomiswami named above and in such proceeding out of the aforesaid land by deeming four acres land to be dry land and considering Munshilal and Rajaram to be one unit in this regard 0.37 acre land was left and remaining land was declared to be surplus and same was acquisitioned. In this regard in accordance with the procedure provided under Section 8(3) of the Act the proceeding was carried out and its intimation was also given to the Bhoomiswami/ land holder and thereafter by preparing a memorandum (Panchnama) the possession of such surplus land (including the disputed land) was taken over by the authorities of the revenue department on 12.2.2000. On filing the appeal against the order of competent Authority by the then Bhoomiswami/ land holder in the Court of Commissioner, the same was dismissed by appellate authority vide order dated 25.9.1995 and accordingly the surplus land was recorded in the name of the Sate of Madhya Pradesh. In the aforesaid ceiling case considering the statement (Vivarni) of the then Bhoomiswami/ the holder of the land, filed before the competent Authority under the Act, in which some other land was also described, aforesaid holder of the land were found to be entitled to keep 5.14 acres land including the 0.37 acre land for their one unit and remaining was held to be surplus land. Subsequent to such proceeding the aforesaid earlier recorded Bhoomiswami and the holder of the land had transferred such land left with them by way of sale to some other persons and thereafter, no land was remained in the name of earlier Bhoomiswami in the revenue record. In such premises, it is further stated that plaintiff/ appellant is trying to encroach the disputed land on the basis of forged and fabricated documents. In any case, if any sale transaction had taken place between aforesaid earlier holder of the land and the appellant either during pendency of the ceiling proceedings or subsequent to passing the order in such proceedings, then the same being ab-initio void and illegal could not be acted upon. The appellant herself has categorically stated in the plaint that at the time of aforesaid oral agreement/ transaction in the year 1992 and on execution of the sale deed in the year 1994, the aforesaid ceiling case was pending against the Munshilal and Rajaram and as per averments of aforesaid sale deed (Ann. P.1), such facts regarding pendency of ceiling case was within the knowledge of the appellant/ plaintiff also. In such premises, the impugned suit deserves to be dismissed on merits as well as barred by time also. It is further stated that under the provision of Section 257 of MPLRC, so also the provision of Ceiling Act the civil suit is barred. With these averments the prayer for dismissal of the suit is made.