MADHU JANIYANI Vs. STATE OF M P

JUDGEMENT

(1.) This Appeal is directed by the appellant-plaintiff being aggrieved by the judgment and decree dated 18.5.2012 passed by the Additional District Judge to the Court of Ist Additional District Judge, Bhopal in Regular Civil Appeal No. 76-A/11 affirming the judgment and decree dated 4.2.2011 passed by XII Civil Judge Class-I Bhopal in Civil Original Suit No. 149-A/09 dismissing her suit filed against the respondent-authority for declaration and perpetual injunction with respect of the land bearing survey No. 234/2 area 0.27 acer situated at village Laukhedi, Tahsil Huzur, District Bhopal. The facts giving rise to this appeal in short are that the appellant herein filed a suit against the respondent contending that the land in dispute bearing Khasra No. 234/2 area 0.27 acre situated at village Laukhedi, Tahsil Huzur, District Bhopal was the land of Late Hajari Lal S/o. Hira Lal r/o Laukhedi along with some other land described in the plaint. The same was recorded in his name on the appointed date notified under the Urban Land (Ceiling and Regulation) Act, 1976 (in short 'the Act). As per further pleadings, aforesaid Hajari Lal had filed a return under section 6 of the Act before the competent authority constituted under the Act, on which, a Case No. 195/1988-89 was registered and on consideration, vide order dated 11.1.1990 (Annexure P-1), the entire land of Late Hajari Lal, by holding that the same is not urban land, was released from the purview of the aforesaid Act. In view of such order of releasing the land from the purview of the Act, the appellant had purchased the land in dispute area 0.27 acre from the aforesaid Bhumiswami Late Hajari Lal through registered sale deed dated 29.3.1990 and on the strength of the same she got mutated her name as Bhumiswami in the revenue records. Subsequent to mutation, she had applied before the SDO Huzur for diversion of such land, on which, a Case No. 93-A-2/90-91 was registered and on consideration, vide order dated 1.2.1991, the purpose of land was diverted and accordingly since the date of the registered sale deed, the appellant is coming in possession of the land in dispute as Bhumiswami. It is further stated that Late Hajari Lal, besides the appellant also sold his such other land in different part to 13-14 different persons through registered sale-deed and on the strength of such sale-deeds they are also coming in peaceful possession of their respective parts of such lands. It is further stated that on 17.5.2009, the appellant and aforesaid other purchasers of the land from Late Hajari Lal, decided to sell the same jointly and approached the revenue authorities for obtaining the copies of the revenue record in this regard, on which, they came to know that such land, after declaring to be the surplus land under the Act, has been recorded in the name of the respondent-state as Bhumiswami. It is further stated that the Repealing Act of 1999, whereby aforesaid Act of 1976 was repealed, has come into force with effect from 17.2.2000 and according to the provision of aforesaid Repealing Act of 1999, after publication of the notification under section 10(3) of the Act if the possession of surplus land has already been taken over by the authority before coming into force the Repealing Act then such land shall be deemed to be "Government land" and if such notification is not issued or in case after issuing the notification the possession of the land was not taken before coming into force the Repealing Act, 1999 then such land shall be deemed to be the "released land" from the aforesaid Ceiling Act and no steps to take the possession of the same could be taken by the authority. It is also stated that vide order dated 11.1.1990 the disputed land was released from the purview of the Ceiling Act by the authority and even after declaring the same to be the surplus land under section 10(3) of the Act, such land was neither notified nor the possession of the same was taken-over till coming into force the aforesaid Repealing Act. Inspite that the name of the State was recorded in the revenue record as ceiling land. With these pleadings, the suit is filed declaring the appellant to be the Bhumiswami of such land with a consequential prayer for issuing ad interim injunction restraining the respondents from interfering in her possession of the disputed land.

(2.) In the written statement of the respondent, it is stated that subsequent to coming into force the aforesaid Urban Ceiling Act, in the light of the notified appointed day under such Act, the then Bhumiswami Late Hajari Lal had filed his return under section 6(1) of the Act in the year 1979 before the competent authority constituted under such Act. Such return was filed by Late Hajari Lal on behalf of his family. Considering such return, in accordance with the provisions of the aforesaid Ceiling Act, along with the other land, including the disputed land, was declared to be surplus and, pursuant to it, under section 10(1) of the Act, a notification dated 8.4.1985 was issued and the notice to this effect under section 10(3) of the Act was also served on Late Hajari Lal and the Tahsildar Nazul, Bhopal was directed to take possession of such land, including the disputed land, on 26.2.1992 under section 10(5) of the Act. In such premises, from the date of notification of surplus land including the disputed land had become the "State land" and has also come in possession of the State. It is further stated that subsequent to the appointed day, if the recorded Bhumiswami had transferred such land in favor of the other persons like the appellant then such transfer, by virtue of section 5 of the Act being ab initio void, did not confer any right or title to the appellant in the disputed land and, in such premises, it is stated that by virtue of aforesaid sale-deed dated 29.3.1990 or of some other date subsequent to the appointed day, had not given any right or title to the appellant and, in such premises, the sale-deed is not binding in any manner against the respondents. It is further stated that if Late Hajari Lal after filing the return again under section 6(1) of the Act before the competent authority, after passing the aforesaid order by the competent authority in that regard in earlier proceeding and has got the order dated 11.1.1990 in Case No. 195/1988-89 releasing the land from the purview of the Ceiling Act then such order being obtained by practicing the fraud and concealing the earlier order of the competent authority had not conferred any right or title in favour of Hajari Lal with respect of the disputed land along with the other land and such subsequent order is not binding against the respondents because long before vide dated 8.4.1985 such land was already declared to be the surplus land by the competent authority in the earlier case and, pursuant to such earlier order, the possession was also taken in accordance with the procedure in the year 1992 as stated above and, in such premises, when Late Hajari Lal from whom the appellant had purchased the land, did not have any right as Bhumiswami to sell the land then the appellant also did not acquire any right or title in such land. After vesting the land and taking over the possession by the State, it was the only authority to allot the land to any one in accordance with the procedure prescribed under the Act. Besides this, the prayer to dismiss the suit being barred by limitation is also made in the written statement.

(3.) In view of the aforesaid pleadings of the parties, the issues were framed and their evidence was recorded. On appreciation of the same, the trial Court dismissed the suit by holding that the appellant-plaintiff has neither acquired the title nor in possession of the disputed land. On challenging such judgment and decree by the appellant before the appellate Court, on consideration, by affirming such judgment and decree of the trial Court, the same was dismissed, on which, appellant has come to this Court with this appeal.