ORDER
S.L. Jain, J.
1. Being aggrieved by the order dated 31-10-2000 passed by the learned Single Judge in Writ Petition No. 533/1984, appellants have filed this appeal under Clause 10 of the Letters Patent.
2. A brief resume of the facts required to be stated for the disposal of the appeal is that the appellants are the legal representatives of Bheekam Singh. This Bheekam Singh was a grand son of Halke Singh who was a Malguzar of Village Baroda, Tehsil Sihora, District Jabalpur. The land in question, i.e., Khasra Nos. 240/1 and 240/2 admeasuring 20 acres was under the personal cultivation of Malguzar Halke Singh as kudh kast land. After death of Halke Singh his widow Smt. Chaina Bai came in possession of the land in dispute. In the year 1948-49 the land was under the control and occupation of Bheekam Singh and his grand mother Smt. Chaina Bai. A large number of Palash and Chhewla trees were standing on the land. The owners of the land used to collect lac from these trees. Thus, according to the appellants the land was under cultivation.
3. It is put forth by the appellants that after coming into force of M.P. Abolition of Proprietary Rights (Estates Mahals, Allienated Lands) Act, 1950, (hereinafter referred to as the 'Act'), the land in question was declared to have been vested with the State Government without giving any opportunity of being heard to the proprietor. However, the land in dispute continued to be in physical possession of Bheekam Singh who after the coming into force of the Act converted the same into agricultural land, and started growing Rabi and Kharif crops. The appellants developed and improved the land by taking the loan from Bhumi Vikas Bank.
4. When Bheekam Singh learnt that the land has been recorded as Milkiyat Sarkar, he made an application under Section 57 (2) of the Madhya Pradesh Land Revenue Code (hereinafter referred to as the 'Code') to the Sub-Divisional Officer, Sihora. Appellants being unsuccessful, contested the case upto the Additional Commissioner, Jabalpur Division. Being aggrieved by the order of the Additional Commissioner, Bheekam Singh preferred a revision before the Board of Revenue. The Board of Revenue by its order dated 19-9-73 set aside the orders passed by the Lower Revenue Courts and directed fresh enquiry into the matter. After the remand of the case, Sub-Divisional Officer, Sihora conducted a full dressed enquiry and after considering the documentary and oral evidence adduced by the appellants gave a finding that the appellants used to take the crop of lac.
5. It is also put forth by the appellants that being aggrieved by the order of Sub-Divisional Officer, Sihora, respondent Nos. 6 to 18 who are the residents of Village Baroda, and had no locus standi, preferred a revision petition before the Additional Commissioner, Jabalpur Division. The Additional Commissioner without considering the legal aspect of the case laid down that the agriculture does not include collection of lac and set aside the order of the Sub-Divisional Officer. The appellants preferred a revision before the Board of Revenue against the order of Additional Commissioner but the same was dismissed. The appellants assailed the order of the Additional Commissioner and Board of Revenue by filing Writ Petition No. 533/1984.
6. The learned Single Judge found that the collection of lac does not amount to cultivation, therefore, the land in question was not brought under cultivation by the proprietor after the agricultural year 1948-49 and it cannot be deemed to have been settled with the proprietor, hence it stood vested in the State Government.
7. Undaunted by unsuccess before the learned Single Judge, the appellants who are the legal representatives of Bheekam Singh have filed this appeal. Notice was issued to the respondents to show cause why the appeal be not admitted for hearing. On this notice, Shri P.D. Gupta, Deputy Advocate General appeared on behalf of the respondent Nos. 1 to 5.
8. We have heard Smt. Amrit Ruprah, learned Counsel for appellants and Shri P.D. Gupta, learned Deputy Advocate General for respondent Nos. 1 to 5.
9. It is contended by Smt. Ruprah that land in question was brought under cultivation by the proprietor and the land continued to be in the possession of the proprietor therefore, the land shall be deemed to have been settled with him by the State Government under the provisions of Section 40 of the Act. In order to appreciate the contention of learned Counsel for appellants, we consider it apposite to refer Section 40 of the Act which read as under:--
'40. Rights of proprietor as lessee in certain lands.-- Any land not included in home-farm but brought under cultivation by the proprietor after the agriculture year 1948-49 shall continue in the possession of such proprietor and shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.'
A bare perusal of this section would reveal that for attracting this Section, following conditions should be satisfied:--
(1) The land not included in the home farm of the land of the proprietor.
(2) The land was brought under cultivation by the proprietor after the agricultural year 1948-49 but before the date of vesting and continued in the possession of such proprietor.
10. An essential ingredient of Section 40 (supra) is that the land must be under cultivation. The contention of learned Counsel for appellants is that the collection of lac amounts to cultivation.
11. The import of term 'agriculture' has been stated by Their Lordships of the Supreme Court in Income Tax Commissioner v. Benoy Kumar (AIR 1957 SC 768) in which it is held that ''agriculture' in its primary sense means ager-a-field and cultura-cultivation, i.e., cultivation of a field, which, as Their Lordships have put it. Of course implies expenditure of human skill and labour upon it. This is the basic condition of agriculture, and, if it is absent, subsequent operations will not amount to agriculture. Unless it is grown by means of exercising skill or labour self grown forest trees are not result of agriculture. For cultivation there must be agricultural operation. Thus, lac is not cultivated. It deposits on the trees. It is a resinous substance secreted by the lac insect scientifically known as Kerria lacca/laccifer lacca on the young branches of certain trees. Females insert their long proboscises in the bark of branches drawing their foodstuff from the sap. They exude a secretion that accrues and coalesces. Forming hard, resinous layers that completely cover their bodies. Thus lac is natural resin and is a secretion of insect and thus it is not outcome of cultivation.
12. On evidence it has been found by the Revenue Courts that there was no cultivation of crops on the land. Admittedly the case of the appellants is that they were collecting lac and not performing any agricultural operations, therefore, provisions of Section 40 of the Act are not attracted and the Additional Commissioner, Board of Revenue and the learned Single Judge were absolutely right in holding that the provisions of Section 40 of the Act are not attracted and the land cannot be deemed to have been settled with the proprietor by the State Government. Here we consider apposite to mention that Section 40 of the Act has been omitted by Act No. II of 1955. The application was filed by the appellants before the Sub Divisional Officer in the year 1966. At the time of filing of this application, Section 40 of the Act was not on the statute book.
13. Learned Counsel appearing for the appellants lastly submitted that if the respondents were aggrieved by the order of the Sub Divisional Officer passed under Section 57 (3) of the Code, remedy available to them was filing a civil suit to contest the order within a period of one year from the date of such order. It is true that under Section 57 of the Code, the original jurisdiction has been vested in the Sub Divisional Officer, therefore, Collector, Commissioner or revenue authorities cannot exercise such jurisdiction but if the matter goes to them in appeal or revision they are not debarred from deciding the question.
14. Even otherwise, Sub-section (3) of Section 57 of the Code provides that any person aggrieved by the order passed by the Sub-Divisional Officer may institute a civil suit to contest the validity of the order within a period of one year from the date of such suit. This means that the filing of the civil suit is not mandatory. Person aggrieved has an option of either filing the civil suit or filing an appeal or revision. The only restriction is that the civil suit against the State Government cannot be directly brought in Civil court and should be brought and decided first by the forum provided under Sub-section (2) of Section 57, i.e., Sub Divisional Officer. Where the dispute is decided by the Sub Divisional Officer under Sub-section (3) of Section 57 of the Code an aggrieved person has a remedy either to file a civil suit under Sub-section (3) of the Code or to file an appeal or revision. Sub-section (4) of Section 57 of the Code makes a special provision to the effect that remedy of appeal or revision under provisions of this Code shall not be available to a person who files a civil suit under Sub-section (3) but it is certainly available to a person who does not file the civil suit. If any decision on this point is required we may cite a Division Bench decision of this Court, State of Madhya Pradesh and Anr. v. Gyasiram and Ors., reported in (AIR 1993 MP 155). Relevant portion reads thus :--
'......... dispute has to be raised before the Sub Divisional Officer. Thereafter aggrieved party may institute a suit to challenge the validity of the order or may prefer an appeal of revision under Section 44 or Section 50 of the Code as the case may be.'
15. Further this question was not raised before the Revenue Courts or learned Single Judge and it cannot be allowed to be raised for the first time in this appeal.
16. Even otherwise there is a definite finding that the proprietor did not cultivate the land and only collected shellac (lac) and the land was recorded as grass land and there is no evidence that there was production of grass through the process of cultivation, order of Sub Divisional Officer cannot be said to be a valid order and it cannot be allowed to be restored by allowing the writ petition.
17. No other question was raised before us.
18. For the reasons stated above, the appeal is devoid of merit and the same is dismissed in limine.