GABDOO MANNOO Vs. DEOSINGH CHAITU

JUDGEMENT

(1.) THIS order will also govern Review Application No. 10/I -A -13/56. The two applications for review arise out of a common order passed by Shri B.L. Pandey, ex -Member, Board of Revenue, in Appeals Nos. 299/I -A -13/53 and 537/I -A -13/55 both preferred by the representative villagers of Tillage Timri, tahsil Patan, district Jabalpur. The Respondents, in these appeals, were Gabdoo and others -the ex -proprietors of the village.

(2.) THE facts of the case are very elaborately given in the order under review. Briefly speaking, the bone of contention between the parties is khasra No. 63, area 12.30 acres, which is recorded as malik -makbuza of non -applicants Gabdoo etc. In the wajib -ul -arz, khasra No. 63 is recorded as 'Bag Bafa -e -am' and it was contended by the villagers that this Bag was not only intended to be but was, in fact, used by the villagers for a very long time in the past for general Nistar of the villagers such as Gothan, Khaliyan, grazing and, for the passage of carts. The opposite party, however, contended that the land was originally a muafi but since 1950 -51 they were paying rent thereof and as such they were entitled to bring the land under their own cultivation and, in exercise of their rights, were justified in obstructing the villagers from using the land for Nistar purposes. The dispute between the parties gave rise to proceedings under Section 219 of the Land Revenue Act and the Additional Deputy Commissioner Shri D.H. Deshmukh held that the villagers were not entitled to general Nistar in khasra No. 63 and there had been no breach of the wajib -ul -arz. Later, in 1955, the Additional Deputy Commissioner -cum -Nistar Officer (Shri K.S. Bela -purkar) took up the matter under Section 78 read with Section 106 of the C.P. Land Revenue Act and decided, on the basis of his inquiry, that one acre of land each for Gothan, Khaliyan should be allowed on this land as also a passage of 20 links for the purpose of cart -track. Not satisfied with the orders of Shri Deshmukh and Shri Belapurkar the villagers went up to the Board of Revenue in one appeal against the order of Shri Deshmukh (Appeal No. 299 -53) and in another against Shri Belapurkar (Appeal No. 537 -55). Both the appeals were heard together and it was held by Shri B.L. Pandey that although the entry 'Bag Bafa -e -am' in the wajib -ul -arz was not very clear in its connotation, he was inclined to agree with the views of the Additional Deputy Commissioner that it did not convey the meaning that the disputed land was subject to all kinds of Nistar of the villagers. He, however, found that, even apart from the entry in the wajib -ul -arz, certain easements had come to be created and must be recognised under Section 225 of the M.P. Land Revenue Code. Finally, Shri Pandey set aside the order of the Additional Deputy Commissioner and confirmed the order of Shri Belapurkar with the modification that 2 acres each, out of khasra No. 63, instead of one acre, should be fixed for Gothan and Khaliyan. It is this order of Shri Pandey that both the parties, the villagers and the ex -proprietor Gabdoo and Ors. have sought to be reviewed. The main contention of the villagers (Review No. 10 -56) is that the learned Member, Board of Revenue, omitted to reserve land for 'grazing' which was done for the last 30 or 35 years on the disputed land. It is further urged that the Nistar rights were spread over the whole area of khasra No. 63 and it was not competent for the Board to have restricted such rights over four acres only.

(3.) THE contention of the ex -proprietor (Review No. 9 -56) is that Shri Belapurkar was not vested with powers to act under Sections 78 and 106 of the C.P. Land Revenue Act. Nor could he pass an order under Section 225 of the Land Revenue Code as on the date he passed the order (28 -3 -55) the Code had not come into force. The order of Shri Belapurkar could at best be regarded as mere recommendation against which no appeal could lie to the Board of Revenue. Another contention raised is that even if Section 225 of the M.P. Code was applicable, Gothan and Khaliyan were not 'easements' within the meaning of Section 225 and the learned Member, Board of Revenue, therefore, acted beyond his jurisdiction in ordering entries in the wajib -ul -arz for Gothan and Khaliyan. I will take up the contention of the ex -proprietor (Review No. 9 -56) first. It appears that the entire argument of the Learned Counsel is based on a misconception. A copy of the order appointing Shri Belapurkar as Additional Deputy Commissioner was obtained from the Deputy Commissioner's office and it was found that vide Revenue Department's Notification No. 3827 -XII, dated 25 -6 -53, Shri Belapurkar was appointed Additional Deputy Commissioner in Patan tahsil in accordance with the provisions of Sub -section (1) of Section 9 -A of the C.P Land Revenue Act, 1917. It was, therefore, clear that Shri Belapurkar had all the powers of the Deputy Commissioner under the Land Revenue Act and was within his jurisdiction to act under Section 78 read with Section 106 ibid. It was, therefore, perfectly competent for Shri Pandey to take up the appeal against Shri Belapurkar's order. The Learned Counsel for the ex -proprietor vehemently argued that the proceedings for the preparation of the Nistar Patrak and the wajib -ul -arz could be started only after 1 -10 -55 when the M.P. Code came into force. As such the inquiries and orders, if made under Section 225, were without jurisdiction: I am afraid, this view is wholly unsupportable. It is apparent from the record that Shri Belapurkar initiated proceedings under Section 78 read with Section 106 of the C.P. Land Revenue Act which had nothing to do with the preparation of Nistar Patrak, a term which, no doubt, came into legal existence on the enforcement of the M.P. Land Revenue Code. As stated already, Shri Belapurkar had powers to act under Section 78 etc. and the Board had similarly the appellate jurisdiction. It seems that the mention of Section 225 of the M.P. Code, in the impugned order of the Board, gave the Learned Counsel an impression that Section 225 could not be made use of unless the lower Court had acted under the same section. As a matter of fact, the Board could have passed the order which it did even if Section 225 of the M.P. Land Revenue Act had not been in existence. The proceeding having been started under the Land Revenue Act, an appeal would, subject to admissibility and limitation, continue to lie to the Board under the same Act, irrespective of the fact that the Land Revenue Act was repealed on 1 -10 -55 on the enforcement of the M.P. Land Revenue Code. An appeal is a continuation of the Lis and the abrogation of an Act, permitting an appeal, would not take away the jurisdiction of appellate Court unless there is anything to show that the repeal was expressly made retrospective in its effect. There is nothing in Section 238 of the M.P. Code to show that the C.P. Land Revenue Act was repealed with retrospective effect. On the other hand, Section 239 of the M.P. Code read with Section 5 of the General Clauses Act would make it clear that the impugned order of the Board could as well have been passed without any reference to Section 225 of the M.P. Code. As it is, however, there was no mistake on the part of Shri Pandey in referring to Section 225 for on the date of his order Section 225, which is in essence a repetition of the provisions of the old C.P. Land Revenue Act, had come into existence. Any future action regarding entries in the wajib -ul -arz should have obviously been referable to Section 225. I, therefore, see no mistake or error apparent on the face of the record to entitle me to interfere with the impugned order on this score.