GAJRAJ SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) This second appeal has been filed under Sec. 100 Civil Procedure Code arising out of the judgment and decree dated 27.9.2010 passed by the learned District Judge, Vidisha, in Civil Appeal No.25-A/2010, whereby the judgment and decree dated 29.3.2010 passed by the IV Civil Judge, Class II, Vidisha, in civil suit No.75-A/2009 has been affirmed.

(2.) According to the appellant, his forefathers had obtained ownership rights in relation to the land contained in survey No.47 measuring 2.257 hectares situated in village Mehdon, Tahsil Gyaraspur Distt. Vidisha and as such his grandfather Tarwar Singh was declared to be Bhumiswami by an order dated 21.2.1969 by the Sub Divisional Officer, Vidisha, therefore, notification declaring the said land as reserved forest land could not have effect of affecting the title which has already vested in the plaintiff/appellant. According to the learned counsel for the appellant, since his grand-father was a Pakka Krishak at the time of enactment of Zamindari Abolition Act, 1951 as defined in Sec. 2(e) of the said Act, therefore, Bhumiswami rights conferred on the appellant have been arbitrarily disturbed in the light of the notification dated July 25th 1986 declaring the said land as reserved forest. It is also submitted that the notification does not mention name of his village correctly, and therefore, such notification is not binding on the appellant. It is further submitted that in terms of the provisions contained in Sec. 36 of the Indian Forest Act, 1927, service of notice was required to be effected personally on the plaintiff and in absence of such service, findings recorded by the Courts below are perverse. Learned counsel for the appellant has also submitted that the first appellate Court has not adverted to the merits of the case and has rejected the first appeal on the ground of non-maintainability of the civil suit in terms of the provisions contained in Sec. 20 of the Indian Forest Act, 1927.

(3.) In support of the contention that appellant had become Bhumiswami, appellant has placed reliance on the judgment rendered by this Court in the case of Devi Singh and Ors. Vs. State of M.P. and Ors., as reported in 2007 RN 107 wherein it is held that in terms of Sec. 2 (c) of the Zamindari Abolition Act, 1951 'Khudkasht land of Zamindar recorded as Beed is to be treated as Khudkasht and not Beed. Similarly, reliance has been placed on the judgment in the case of Gordhan Das Vs. Phirkan and others as reported in 2002 RN 1 (SC) wherein the Supreme Court has held that defendant's possession since before commencement of the Zamindari Abolition Act if proved, then such defendant acquires the status of Pakka tenant. Appellant has also placed reliance on the judgment of the Supreme Court in the case of Gorabai (Smt.) and others Vs. Ummed Singh (Dead) by LRs. and others as reported in 2004 RN 201 (SC) wherein land recorded as Khudkast in 1942 when it was given to tenant for 8 years, period of lease expired before the date of vesting, land in possession of the tenant as trespasser on the date of vesting, ex proprietor taking action for restoration of possession, he is entitled to have the possession as ex proprietor and becomes tenant of government. By placing reliance on these judgments, learned counsel for the appellant has tried to bring home the issue that since his grand-father was a Pakka Krishak, therefore, he by virtue of possession, had become Bhumiswami and no interference could have been made in the Bhumiswami rights which had already materialized in favour of the plaintiff by operation of notification dated 25th July, 1986.