F.A. No.112/1991 1 HIGH COURT OF MADHYA PRADESH, JABALPUR Single Bench: HON'BLE SHRI JUSTICE A.K. SHRIVASTAVA First Appeal No.112/1991 (Date of filing of Civil Suit :
11. 03.1976) APPELLANTS:
1. State of Madhya Pradesh through Defendant No.4 the Collector, Hoshangabad. Defendant No.1 2. Competent Authority, M.P. Ceiling Agricultural Holdings Act, Harda. Versus RESPONDENTS 1 Mohan Sugar Mills Limited Plaintiff No.1 Registered Office, Harda. Plaintiff No.2 2. The Central Trading Company Private Ltd., Registered Office, Harda. Defendant No.2 3. Seth Vallabh Das Modi (since deceased) not by LRs:- (i) Smt. Pushpa Devi wd/o Seth Vallabh Das Modi, (ii) Krishna Das s/o Seth Vallabh Das Modi (iii) Brijesh Das s/o Seth Vallabh Das Modi All R/o 145, Garhi Pura, Harda (iv) Smt. Chandawali w/o Ramnarayan, R/o Somani Mohalla, Chittorgarh, Rajasthan (v) Yamuna Devi w/o Mahesh Kumar Dalni, R/o Agrawal Colony, 499, Jabalpur. (vi) Smt. Mridula Vyas w/o Narendra Kumar Vyas, R/o 860, Mahaveer Nagar, II Kota, Rajasthan. F.A. No.112/1991 2 Defendant No.3 4. Smt. Nanhi Bai (since deceased) by L.R Jamna Prasad s/o Moolchand Jasani (since deceased) not by L.Rs:- (I) Smt. Durgesh wd/o Late Jamna Prasad Jesani, (ii) Kranti Kumar s/o Late Jamna Prasad Jesani (iii) Shanti Kumar Jesani s/o Late Jamna Prasad Jesani (iv) Ku. Kirti Jesani d/o Late Jamna Prasad Jesani, All R/o Jesani Chowk, Harda, District Harda (M.P.) --------------------------------------------------------------------------------- Shri R.D. Jain, Advocate General with Shri Santosh Yadav, Panel Lawyer for the appellants-State. Shri Ravish Agarwal, Senior Advocate with Shri Amit Sahni, Advocate for the respondents 1 and 2. Shri Ashish Shroti, Advocate for the L.Rs of respondent No.3. Shri A.K. Choubey and Shri Jagtendra Prasad, Advocate for the L.Rs of deceased-respondent No.4. --------------------------------------------------------------------------------- Date of Hearing:
18. 07/2013 Date of Judgment:
16. 08/2013
JUDGMENT(Delivered on 16thAugust, 2013) The judgment passed in this appeal shall also govern the disposal of connected First Appeal No.110/1991 (State of Madhya Pradesh and another v. Mohan Sugar Mills Limited and others), F.A. No.154/1991 (Smt. Nanhi Bai (dead) F.A. No.112/1991 3 by L.Rs Smt. Durgesh Jesani and others v. Mohan Sugar Mill Limited and others) and F.A. No.155/1991 (Smt. Nanhi Bai (dead) by L.Rs Smt. Durgesh Jesani and others v. Mohan Sugar Mill Limited and others), since they are arising from the common judgment and decree passed by learned Trial Court.
2. Feeling aggrieved by the judgment and decree dated 30.1.1991 passed by learned Additional Judge to the Court of District judge, Hoshangabad in Civil Suit No.2- A/1976 and in other Civil Suit No.3-A/1976 decreeing the suit of plaintiffs/respondents 1 and 2, this first appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the first and fourth defendants, namely, the Competent Authority (under M.P. Ceiling on Agriculture Holding Act), Harda and the State of Madhya Pradesh respectively.
3. Today is the august day of this August month because two Civil Suit Nos.2-A/1976 and 3-A/1976 which were filed more than 37 years ago and the aforesaid appeals which were filed more than 21 years ago are being decided today. Case of the Plaintiffs Two plaintiffs, namely, Shree Mohan Sugar Mill Limited, Harda and the Central Trading Company, Harda filed civil suit F.A. No.112/1991 4 under unamended Section 11(5) of the M.P. Ceiling on Agricultural Holdings Act, 1960 (in short “the Act of 1960”., however, wherever unamended provisions of the Act of 1960 are considered, they will be specified as “unamended Act of 1960”.) for setting aside order of the Competent Authority (first defendant) dated 29.12.1975. One Rai Saheb Harishankarji was having sir-land in the village mentioned in para 1(C) of the plaint. In order to establish a sugar factory in the locality he gave his sir-land on long lease with the active help, consent and approval of the then State Government and entered into agreements dated 16.1.1948, 7.4.1951 and 26.3.1952 and in pursuance of the same, ultimately, said Rai Saheb Seth Harishankarji along with his adopted son, Seth Vallabh Das (second defendant) executed a registered lease deed for 30 years from 29.11.1952 to 31.05.1982 in favour of second plaintiff, the Central Trading Company, Harda, but, put the lessee in possession of the lands with effect from 01.05.1947. The suit land, the description whereof is given in the plaint, was given for starting various kinds of industries mentioned in the lease especially sugar manufacture, saw mills, oil mills, foundries, alcohol factories, straw board and paper manufacture and for starting other industrial concerns etc. with a stipulation that the lessee will be entitled to transfer the lease hold rights to first plaintiff, namely, Shree F.A. No.112/1991 5 Mohan Sugar Mills Ltd., Harda or to any one else as they may like. The second plaintiff and thereafter the first plaintiff incurred huge investments towards machineries, especially engines for irrigation purposes and invested money also for purchasing other necessary articles and materials for starting sugarcane cultivation with a view of finally testing the feasibility of success of sugar factory and other allied industries such as straw board and alcohol etc.
4. The sugarcane was sown for sugar manufacturing etc. and jaggery was also produced and it was ultimately found that 1000 ton sugar factory should be established as early as possible. From this point of view, the first plaintiff (Public Company) decided to open sugar factory. It was expected that the said sugar factory which will be established, would take a long time to come up as a full-fledged sugar factory and eventually, several facilities were allowed by the lessors to be incorporated in the lease deed, such as giving a long period lease for actually starting a sugar factory and in the meantime, to carry on the agriculture to produce the sugarcane which will be the source of the sugar in the leased out lands. But, it became impossible for the first plaintiff to open a big sugar factory even upto the end of 1960. In the meantime, the unamended Act of 1960 came into force. The assent of the President for the enactment of this Act was F.A. No.112/1991 6 published in the M.P. Gazette Extraordinary dated 1st October, 1960 but Sub-section (3) of Section 1, deferred the enforcement of the Act to the date which may be appointed by the State Government. Thereafter, by Notification No.3467- XXXVIII-61 published in M.P. Rajpatra dated 10 th November, 1961 this Act was enforced with effect from 15th November, 1961.
5. The lessor Rai Saheb Seth Harishankar expired somewhere in January 1962 and third defendant Smt. Nanhi Bai is her widow while second defendant is his adopted son. After the death of Rai Saheb Seth Harishankar dispute arose between second and third defendants since each of them were claiming their own right to be the owner of the half share in the disputed property by devolution. The Competent Authority under the Act of 1960 held that the settlement arrived at between second and third defendant is mala fide and fraudulent and meant to defeat the provisions of the unamended Act of 1960 and eventually the said authority wrongly assumed the partition or settlement without proper and legal allegation or evidence before him and this has led him to pass wrong order in the ceiling case No.601 SH.A/90- B(3) of Dhanwada, P.C.62 S.No.204, Tahsil Harda of year 1963-64 and Revenue Case No.602 SH.A/90-B(3) of Dhanwada P.C. 62, S.No.204, Tahsil Harda of year 1963-64. F.A. No.112/199”
6. According to the plaintiffs, it was necessary for the competent authority to presume in absence of any lawful evidence that the second and third defendants are the owners each having half property held by them jointly and without any devision and therefore, these defendants were also arrayed as defendants in the civil suit. According to the plaintiffs, in pursuance to the arrangement referred in para-2(A) and (B) of the plaint, the second plaintiff out of the land which came into his possession in pursuance to the lease deed dated 29.11.1952 went on assigning by virtue of registered assignments deeds, right, title and interest in the land as mentioned in Schedule-I annexed to the plaint. Thus, the first plaintiff is in possession of most of the disputed lands. It is pleaded in para 5(B) of the plaint that only a small portion remained unassigned by second plaintiff to first plaintiff and the same is mentioned in schedule-II annexed to the plaint, but, the said portion of land having area 51.66 Acres is in possession of second plaintiff by way of trustee for the reasons mentioned in para-2(A) and (B) of the plaint and therefore, the right, title and interest in that, belonged to first plaintiff as transferee. The second defendant, namely, Seth Vallabh Das, however, forcibly took possession on or about 40 Acres of land of mouza Dhanwada, though second defendant has suppressed this fact in his return filed by him F.A. No.112/1991 8 before the Competent Authority (first defendant) and this area is shown in schedule-III annexed to the plaint. This land is recorded jointly in the names of second and third defendant. The plaintiffs are in possession of the lands the description whereof has been given in schedule-I and II of the plaint.
7. In para 7(A) of the plaint it has been pleaded by the plaintiffs that after the death of Rai Saheb Seth Harishankar in January, 1962, the second and third defendants ought to have filed only one joint return under Section 9 of the unamended Act of 1960 but they filed two separate return on 2.11.1964 and they were tried as Revenue Case Nos.602 and 601 respectively, but, practically they were tried as one case only. There is very specific pleading of the plaintiffs that the lands were given by the lease deed dated 29.11.1952 for sowing sugarcane for sugar factory and as such they are exempted under the provisions of the unamended Act of 1960. But, the Competent Authority proceeded with the case and in the draft statement dated 17.11.1965 proposed the land of the registered lease deed dated 29.11.1952 to be vested in the State. A very specific pleading has been averred in para 7(C) of the plaint that soon thereafter, third defendant, namely, Smt. Nanhi Bai filed a written objection to the draft statement under Section 11(3) of the Act of 1960 and brought to the notice of the competent F.A. No.112/1991 9 authority (first defendant) that the plaintiffs are in possession of the land of the lease deed for growing sugarcane for the establishment of the sugar factory and as such they should also be noticed and also averred that in any case, the draft statement is neither clear not complete, therefore, it was challenged and prayed that a clear and revised draft statement may be prepared before the cases are proceeded further under the Act of 1960.
8. Vide amendment dated 24.10.1980 it has been pleaded that since the land was given for agriculture to produce sugarcane and firstly they became the occupancy tenant and then as Bhumiswami on coming into force of the M.P. Land Revenue Code, 1959 (in short “the Code”.). In very specific words it has been pleaded by the plaintiffs that the Competent Authority (first defendant) did not take any step to revise and complete the draft statement or to issue any notice to either plaintiff and proceeded with the case, which is completely in violation to Section 11(3) of the unamended Act of 1960 and the Rules framed thereunder. It is further pleaded in para 7(D) of the plaint that it was the duty of the competent authority to have issued notice to the plaintiffs with the draft statement as he was fully aware of the fact that the plaintiffs are in possession of the land by virtue of the registered lease deed executed long back on 29.11.1952 and as such it was F.A. No.112/1991 10 mandatory on his part and he was obliged to issue notices by serving copies of the draft statement to the plaintiffs before proceeding further in the ceiling cases. Further it has been pleaded in para 7 (F) of the plaint that had they been noticed under Section 11(3) of the unamended Act of 1960, they would have been in position to draw the attention of the competent authority that lands given under lease were neither 'land' as defined under the Act of 1960 not the lessors are “holders”. with reference to the leased out lands. The suit land is not a 'holding' at all under the unamended Act of 1960. The lessors were neither tenure holder or occupancy tenants at the time of registration of the lease deed dated 29.11.1952 and the plaintiffs in their own right as lessee of the sir-land are in possession of these lands and therefore, the competent authority was obliged to start a separate proceedings under the unamended Act of 1960 against the plaintiffs calling upon them to file their return before him so that the advantages under the Act and inquiry about the minimum area to be retained by them under the unamended Act of 1960 and would have been able to demonstrate their preference also and claim exemption in respect of orchards of mango trees etc. Further it has been pleaded that had they been noticed under Section 11(3) of the Act of 1960, they could have very well demonstrated that their case does not come within the F.A. No.112/1991 11 purview of the unamended Act of 1960 and the provisions of the said Act are not applicable upon the lands which are in their possession.
9. In para 7(H) of the plaint, the competency of the competent authority and jurisdiction to challenge the transfer in 1952 has also been pleaded. According to the plaintiffs, since the lease was for industrial and commercial purposes and hence, it was exempted from the purview of the unamended Act of 1960. Further the competent authority passed its order on 29.12.1975 without issuing notice to the plaintiffs under Section 11(3) of the Act of 1960 by serving copy of the draft statement and by providing opportunity to adduce evidence. Hence, the order is void.
10. During the pendency of the suit, the State of Madhya Pradesh made amendment in Order I Rule 3(B) CPC vide Section 5 of M.P. Act No.29 of 1984, which came into force with effect from 14th August, 1984 and thus, plaintiffs impleaded the State of Madhya Pradesh as fourth defendant in the suit.
11. On the basis of aforesaid pleadings it has been prayed by the plaintiffs that the order dated 29.12.1975 passed by the Competent Authority (first defendant) in aforesaid two revenue cases against the third defendant be F.A. No.112/1991 12 declared to be wrong and prayed it to be set aside. Case of Competent Authority (first defendant) and State of Madhya Pradesh (fourth defendant) 12. The first defendant (competent authority) filed the written-statement on 13.10.1976 and when the State of M.P. was joined as fourth defendant by virtue of the M.P. Amendment Act in Order I Rule 3(B) CPC, an amendment was sought that in the written-statement the name of fourth defendant State of M.P. be permitted to be added and the written-statement which was filed on behalf of the fourth defendant be also deemed to be written-statement on behalf of the State of M.P. on full force. Accordingly, the land Civil Court permitted the amendment on 12.1.1988 and the written- statement was accordingly amended. Thus, the written- statement which is on record is of Competent Authority under the Act of 1960 as well as on behalf of the State. In this manner, the written-statement has been filed on behalf of the competent authority as well as the fourth defendant – State of M.P. In the written-statement filed by these defendants it has been pleaded that Rai Saheb Seth Harishankarji on his own sweet will did not execute the registered lease deed but by giving illegal inducement that if a sugar factory is established it would fetch handsome income and the financial condition of Rai Saheb would become more strong. The factum of giving F.A. No.112/1991 13 possession of the land to the plaintiffs by Seth Rai Saheb and second defendant by virtue of the registered lease deed has been denied. The averment of the plaintiffs that the order of the competent authority dated 29.12.1975 is illegal is also denied. According to defendant Nos.1 and 4, the heirs of Rai Saheb are second defendant and his widow (third defendant). The partition took place between second and third defendant has also been denied. The factum of not giving notice under Section 11(3) of the Act of 1960 by serving copies of the draft statement has been denied by these defendants in para 24 of the written-statement. In para-49 of the written-statement it is also pleaded by the first and fourth defendants that in pursuance to the order of the competent authority dated 29.12.1975 the surplus land would be merged in the State Government and therefore, the State of M.P. is a necessary party and without impleading it, the suit is not maintainable. Thus, on the basis of the aforesaid pleadings it is prayed by the first and the fourth defendants that the suit be dismissed. Case of defendant No.2 13. The second and third defendants, Seth Vallabh Das and Smt. Nanhi Bai filed their separate written-statement on 21.6.1976 and 19.11.1976 respectively. However, later on the Court proceeded ex parte against second defendant since F.A. No.112/1991 14 he was not appearing in the suit and judgment was passed in ex parte against him. In the written-statement filed by second defendant except the allegations of plaintiffs made against him, rest of the averments were admitted including not giving notices to the plaintiffs under Section 11(3) of the unamended Act of 1960. No specific prayer to dismiss the suit has been made in the written-statement although it is pleaded that in case the suit is decreed the second defendant cannot be saddled with the cost. Case of defendant No.3 14. The third defendant in her written-statement denied the averments of the plaintiffs that after the death of Seth Rai Saheb Harishankarji the settlement/partition etc. which was arrived at, is fraudulent. In her written-statement it has been pleaded that the competent authority in its order dated 29.12.1975 rightly held that the plaintiffs are in possession of the suit property but the second and third defendants are the Bhumiswami of the disputed lands. By replying the pleadings of plaintiffs in para-7 and its sub-paras, it has been denied that on coming into force of the Code, the plaintiffs became Bhumiswami. So far as sending the notices to the plaintiffs under Section 11(3) of the unamended Act of 1960 is concerned, it has been pleaded that it is a matter of F.A. No.112/1991 15 record. However, it has been admitted that the sugar factory could not be established. The third defendant prayed that the suit be dismissed. Issues 15. The learned Trial Court on the basis of the pleadings of the parties framed the necessary issues, which are being reproduced hereunder:- 1A Whether the lease dated 29.11.52 was got executed through Seth Harishanker under a false inducement?. 1”.B”. If so, whether the said lease deed dated 29.11.52 was not executed by Seth Harishanker on his own free will?. 1 “C”. Further whether the said lease dated 29.11.52 is inoperative thereby and conveys no interest to the plaintiffs?.
2. Whether the lease dated 29.11.52 was executed with the consent and approval of the State Government and as such if it should be deemed to be sanctioned by the State of Madhya Pradesh?. 3 “A”. Whether on 29.11.52 Seth Harishanker possessed any sir lands?. 3 “B”. Whether the lease deed dated 29.11.52 has been executed pertaining to be the sir lands of villages Dhanwada, Bamhangaon, Bichpuri and Bichpuri Chowki?. 3-C If not, whether the said lease deed is operative and legal?. 4A Whether there was any partition or family settlement between the defet. No.2 & 3 after the death of Seth F.A. No.112/1991 16 Harishanker?. 4B If so, whether the said partition and settlement was fraudulent, mala fide and meant to defeat the provisions of the Ceiling on Agricultural Holding Act of 1960 (hereinafter referred to as “the Act”.)?. 4C Whether as such the deft no.1 should have presumed that all the lands in all of the four relevant villages were held by the deft. no.2 and 3 having half interest each in the said land?. 5A Whether the pltff.no.2 by virtue of lease deed dated 29.11.52 went on assigning the right, title and interest in the lands (detailed in schedule no.1 attached with the plaint) by virtue of registered assignment deed in favour of plaintiff no.1?. 5B Whether by virtue of the said assignments, the plaintiff no.1 has been in possession of the lands detailed in schedule 2 except the lands detailed in schedule no.3 attached with the plaint?. Issue no.6 deleted 7A Whether the deft. no.1 acted in clear violation of sec.11(3) of the Act and rules thereunder in the relevant proceedings?. 7B Whether it was the duty of the Competent Authority (deft.no.1) to have issued notices to the plft's regarding the draft statement before proceeding any further?. 8A Whether the lessors were not holders and the suit lands were not holdings within the meaning of the provisions of the Act?. F.A. No.112/199”
8. Whether the lessors were neither the tenure holders not occupancy tenants at the time of execution and registration of the lease deed dated 29.11.52?. 8C Whether as such the deft. no.1 should have had started a separate proceedings against the plaintiffs calling upon them to file their returns before him so that all the advantages under the Act could have been availed of by the plaintiffs?. 9A Whether the deft. no.1 had no jurisdiction to challenge the transfer of the year 1952?. 9B Whether the said lease was clearly intended for industrial and commercial purpose and therefore was exempted from the purview of the Act?. 9C Whether the said lease deed though might have had been intended for the industrial and commercial purpose yet since the same was never utilized for the said purpose and had always been used for agricultural purposes, the relevant land is not exempted from the provisions of the Act?. 10A Whether the long pendency of the relevant cases before the Competent Authority (deft. no.1) was responsible for not giving effect to the purpose and object for which the lease deed dated 29.11.52 was executed?. 10B Therefore the question whether there was actually a sugar factory operating or not could not have been taken into consideration while passing the order dated 29.12.75?. 10C Whether viewed from any angle, actual establishment of a factory was not at all a material consideration, as, F.A. No.112/1991 18 exemption pertaining to the said matter does not at all can not be based on any such interpretation of law?. 11 Whether the finding of the Competent Authority that the deft. no.2 and 3 and the tenure holders and that the plaintiffs have no right, or title in the said lands is erroneous?. 12 Whether the order of the Competent Authority dated 29.12.75 is wrong and is liable to be set aside?. 13 Relief and costs Name of witnesses examined by the parties.
16. On behalf of the plaintiffs, Ganesh Prasad Jalkhare (PW-1), Harishankar Upadhyay (PW-2) and Gajodhar Prasad (PW-3) were examined. However, State of M.P. did not adduce any evidence. I have mentioned hereinabove that although the second defendant filed written-statement but he was proceeded ex parte since he did not appear. However, third defendant examined one witness, namely, Jamna Prasad as DW-1.
17. The first and fourth defendants, however, did not examine even a single witness. Documentary Evidence 18. In the Trial Court umpteen certified copies of the revenue records, Khasra and Khatoni etc. from the year 1953-54 to 1967-68 are filed by the plaintiffs. The following F.A. No.112/1991 19 are the documents which are proved and exhibited, they are:- (i) Registered assignment deed in favour of Shri Mohan Sugar Mill Ltd. Harda (first plaintiff) executed by the Central Trading Company (Harda) Pvt. Ltd. (second plaintiff) dated 4th November, 1960 (Ex.P-1); (ii) registered assignment deed in favour of Shri Mohan Sugar Mills Ltd. (first plaintiff) has been executed by the Central Trading Company (Harda) Pvt. Ltd. through its Chairman Rai Saheb Seth Harishankar (second plaintiff) dated 22.9.1959 (Ex.P-2); (iii) registered lease deed dated 29.11.1952 executed by Rai Saheb Seth Harishankar and Seth Ballabh Das s/o Rai Saheb Seth Harishankar members of Joint Hindu family with R.S. Seth Harishankar as Manager/ Malik Makbuja (land holders) in favour of Central Trading Co. Ltd, Harda through its Managing Director (Ex.P-3); (iv) registered sale deed dated 12.2.1970 (vendor the Central Trading Co. (Harda) Pvt. Ltd. (second plaintiff) in favour of vendee Shri Mohan Sugar Mills Ltd. Harda (first plaintiff) (Ex.P-4); (v) impugned order of the Competent Authority, Harda dated 29.12.1975 (Ex.P-5); (vi) Government of Central Provinces and Barar Revenue Department memorandum No.3797-5292 (XII) dated Nagpur, the 11th December, 1947 addressed to the Commissioner, Jubbolpur Division, Jubbolpur (Ex.D-1); (vii) Government of Central Provinces and F.A. No.112/1991 20 Barar Revenue Department Notification dated Nagpur, the 11th December, 1947 (Ex.D-2); (viii) Letter No.4181.(vii) sent by K.N. Nagarkutti, Secretary, Government of Central Provinces and Barar addressed to the Managing Directors, the Central Trading Co. Ltd. Harda, dated Nagpur, the 25th June, 1947 (Ex.D-3); (ix) Certified copy of the judgment passed by Civil Judge, Class-II, Harda in Civil Suit No.127-A/1971 dated 14.12.1972 filed by Smt. Nanhi Bai against Jodhsingh and others (Ex.D-4); (x) Certified copy of the decree passed in aforesaid suit (Ex.D-5).
19. Out of these documents, apart from registered assignment deeds Ex.P-1 and P-2, a very important document and which is the foundation stone of the case, is the registered lease deed dated 29.11.1952 (Ex.P-3) executed by Rai Saheb Seth Harishankar and Ballabhdas (second defendant) in favour of second plaintiff-the Central Trading Company, Harda. The impugned order of the competent authority (first defendant) dated 29.12.1975 is Ex.P-5. The other important documents are Ex.D-1 which is the memorandum of the Government of Central Provinces, Revenue Department dated 11.12.1947 (Ex.D-1) addressed to the Commissioner, Jubbolpur Division, Jubbolpur (earlier the name of Jabalpur town was Jubbolpur) informing the said authority that the Government has approved all the proposals F.A. No.112/1991 21 to exempt the plots from the operation of Section 41 of the Central Provinces Tenancy Act, 1920 (“hereinafter referred to as “the Act of 1920”.) for the establishment of the sugar factory. The other important documents are the Notification of the Government of Central Provinces Revenue Department dated 11.12.1947 exempting the suit land from the provision of Section 41 of the Act of 1920 to establish the sugar factory (Ex.D-2) and sanction of the then Government of the Central Provinces and Barar, Commerce and Industries Department by sanctioning the establishment of the sugar factory dated 25.6.1947 (Ex.D-3). Two suits were consolidated 20. Two suits were filed by the plaintiffs, Civil Suit Nos.2-A/1976 and 3-A/1976. Both the suits were consolidated and the evidence was recorded in Civil Suit No.2-A/1976. Judgment of the Trial Court 21. The learned Trial Court after considering the pleadings of the parties, oral and documentary evidence placed on record found that the plaintiffs are entitled for the decree and eventually quashed the order dated 29.12.1975 (Ex.P-5) passed by the competent authority under the unamended Act of 1960. In this manner, this first appeal and connected appeals are filed by the State as well as by third defendant. F.A. No.112/1991 22 Argument of learned Advocate General / Senior Advocate for appellants-State 22. The contention of Shri R.D. Jain, learned Advocate General for the appellants-State is that the suit which has been labelled and filed under Section 11(5) of the unamended Act of 1960 could not be filed for declaration and title between two contenders. The prayer to set aside the order on the ground of non-service of notice under Section 11(3) is barred under Section 46 of the unamended Act of 1960 as well as under the amended Act of 1960. In this regard learned senior counsel has placed heavy reliance upon the decision of Supreme Court Sooraj (Smt.) and others vs. S.D.O. Rehli and others, 1995 Revenue Nirnaya 121 and Single Bench decision of this Court Datar Singh vs. State of M.P. and others, 1997(2) MPLJ 393 The further contention of learned Advocate General is that if the relief sought in the plaint is seen, one can easily say that the suit is barred under Section 46 of the Act of 1960. Learned Advocate General has also placed reliance upon the decision of this Court Chhagan Singh v. State of M.P. and another, 2000 Revenue Nirnaya 122.
23. It has been then propounded by learned Advocate General that the suit could not proceed without impleading the State as a party. He further submits that although the State F.A. No.112/1991 23 Government (fourth defendant) has been impleaded later on 10.11.1986 but for the limited purpose under Order I Rule 3(B) CPC (M.P. Amendment). The pleadings of the plaintiffs that the land does not fall under the unamended Act of 1960 and is exempted under the said Act is against the interest of the State, therefore, the State of M.P. should be arrayed as contesting defendant and not the formal defendant for the limited purpose of the Order I Rule 3(B) CPC (M.P. Amendment). Further it has been contended by him that in a suit where the interest of the State is likely to be affected in the proceeding without impleading it as party to the suit, it cannot proceed because the parties may inter se collude in order to jeopardise the right and interest of the State Government and this objection has been taken in para 49 of the written-statement. Because the judgment of the Civil Court will bind the State at the stage of the preparation of the final draft statement, therefore, from this angle also the State is a necessary party. In support of his contention learned senior counsel has placed heavy reliance upon the decision of this Court Baldeo Singh and others v. Narbada Prasad and others, 2006 (4) MPLJ 374
24. Further it has been put forth by learned Advocate General that if the suit is filed under general law, notice under Section 80 CPC is mandatory and in this regard learned F.A. No.112/1991 24 Advocate General has placed reliance upon the decision of Supreme Court Sooraj (Smt.) (supra) and Single Bench decision of this Court State of M.P. and others v. Fakir Mohammad and others, 2003 Revenue Nirnaya 271. Since a preliminary objection was raised by the learned senior counsel for the plaintiffs/respondents 1 and 2 that the State cannot file any appeal in a suit filed under Section 11(3) of the unamended Act of 1960, it has been submitted by learned Advocate General that any person who is aggrieved by the judgment may file appeal and has submitted that since certainly after publication of the final draft statement the land would vest in the State, therefore, the State of M.P. is an aggrieved person and has rightly filed the appeal. In this context, learned Advocate General has placed reliance upon the decision of Supreme Court Maharaj Singh v. State of Uttar Pradesh and others, AIR 197.SC 2602.He has also placed reliance upon the decision of this Court Umesh v. Hemraj and another, 1996 Revenue Nirnaya 199.
25. Strongly it has been submitted by learned Advocate General that the objection of non-service of notice under Section 11(3) of the Ceiling Act, if it was not taken before the competent authority it is waived. In this regard he has placed reliance upon the decision of Supreme Court Dhirendra Nath Gorai and another v. Sudhir Chandra F.A. No.112/1991 25 Ghosh and others, AIR 196.SC 130.(para-8), Auto Trade and Transport Corporation v. National Insurance Company Ltd., 1997 (2) MPLJ 67 and Lucky Forwarding Agency v. Smt. Binder Devi and others, AIR 200.MP 261.Learned senior counsel submits that the position would have been different if the order (Ex. P-5) passed by the competent authority dated 29.12.1975 would have been challenged in appeal or revision and in this regard my attention has been drawn to Single Bench decision of this Court Bala w/o Lakhanlal Dubey v. State of M.P. and others, 2012 (4) MPLJ 667
26. On merits, learned Advocate General submits that only occupancy tenancy right is claimed but it cannot be allowed, looking to the purpose of the lease (para-1 of Ex.P-3). Learned senior counsel has also invited my attention to para 3(A) and 3(B) of the plaint in this regard. By inviting my attention to para 7(K) of the plaint it has been contended that because right of occupancy tenant has been claimed, therefore, sending of notice under Section 80 CPC was mandatory.
27. Learned Advocate General by inviting my attention to the lease deed submitted that the exemption of the land from the ambit and scope of the unamended Act of 1960 will F.A. No.112/1991 26 be governed by the said Act, but, the land was never used for commercial purpose because sugar industry or any other industries were never established and simply it was being used for agriculture purpose, therefore, the benefit of exemption does not arise. It has also been put forth by him that no suit has been filed by the third defendant under Section 11(5) of the unamended Act of 1960 and therefore, the plaintiffs have no locus standi to file a suit and that too seeking relief that the order Ex.P-5 dated 29.12.1975 passed in favour of Smt. Nanhi Bai be set aside. On these grounds it has been prayed that both the suits be dismissed. Argument of learned Senior Advocate on behalf of the plaintiffs.
28. Shri Agrawal, learned senior counsel for the plaintiffs/respondents 1 and 2 has argued that the jurisdiction of the competent authority is not permissible for the transfer which occurred prior to the publication of the unamended Act of 1960, and in this regard my attention has been drawn to the decision of this Court State of M.P. v. Babulal s/o Mangilal and others, 1989 MPLJ 722 By placing reliance upon the Full Bench decision of this Court Vijaya Singh v. Competent Authority (Sub-Divisional Officer) Tarana, 1977 MPLJ 614 it has been submitted that the competent authority cannot decide the question of title conclusively. F.A. No.112/1991 27 Learned senior counsel further submits that what is the meaning of transfer’’, it is defined under the unamended Act of 1960. By placing reliance upon Single Bench decision of this Court, Jagdish s/o Ramcharan v. State of M.P. and others, 1993 MPLJ 42 and also upon the Division Bench decision of this Court Dhanbai d/o Late Shri Cowasji v. State of M.P. and others, 1978 MPLJ 71 it has been submitted by learned senior counsel that the plaintiffs claiming their share in the disputed land and had also filed objections before the competent authority and therefore, the suit filed by them for declaration and title is maintainable under Section 11(5) of the unamended Act of 1960. It has also been put forth by him that if a suit is filed under Section 11(5) of the Act the notice under Section 80 CPC is not required to be given and in this regard my attention has been drawn to the Division bench decision of this Court Dhanbai (supra). By placing reliance upon the Single Bench decision of this Court, Saadat Mohammad Khan and others v. State of M.P. and others, 2004 Revenue Nirnaya 81 and State of M.P. v. Ram Charan s/o Hameer Singh and others, 2011 (3) MPLJ 38 it has been contended that sending notice under Section 11(3) of the unamended Act of 1960 was mandatory on the part of first defendant-competent authority and in all fairness it should have been given to the person F.A. No.112/1991 28 who is interested in the land which is going to be declared as surplus. By inviting my attention to the Rule 6(3) of the M.P. Ceiling and Agricultural Holdings Rules 1963 (hereinafter referred to as “the Rules 1963”.) it has been argued that the draft statement should be served even to the interested person in the land along with Form D on the holder or holders concerned; the creditors; and all other persons interested in the land. Learned senior counsel submits that since no notice under Section 11(3) of the unamended Act of 1960 was served upon the plaintiffs along with draft statement the order of the competent authority dated 29.12.1975 (Ex.P-5) is bad in law.
29. Learned senior counsel for the plaintiffs then argued that the exemption under Section 2(g) read with Section 3(h) of the unamended Act of 1960 would be applicable and in this regard Rules 5 to 10 of the Rules of 1963 are quite relevant. By placing reliance upon the Division Bench decision of this Court, Mahadeo and others v. State of M.P. and others, 1980 JLJ 79.it has been argued by learned senior counsel that draft statement cannot be issued prior to deciding matters under Section 4(1) and 5(1) of the unamended Act of 1960, as they relate to transfers or partitions made after the publication of the bill but before the commencement of this Act and restrictions on transfers or F.A. No.112/1991 29 sub-divisions of land and consequences of transfer or sub- division made in contravention thereof respectively.
30. By placing reliance upon the Division Bench decision of this Court Dhan Bai (supra) learned senior counsel submits that plaintiffs are claiming share in the land and have filed objections, in that situation if the competent authority by rejecting the objections had decided the case against the plaintiffs, a suit for declaration of title filed by them is maintainable under Section 11(5) of the unamended Act of 1960 and it is not necessary to claim any other relief. By placing reliance upon the decision of this Court Saadat Mohammad (supra) and that of Ram Charan (supra) it has been submitted that since the plaintiffs are in possession of the suit land, certainly they are interested persons and therefore, they would come under the ambit and scope of Section 11(3) of the unamended Act of 1960. Hence, it was mandatory on the part of the competent authority to issue notice to them under the said provisions. By placing reliance upon the decision of this Court Bhopal Sugar Industries Ltd. Sehore (M.P.) and another v. State of Madhya Pradesh and others, 1984 MPLJ 4 it has been submitted that person includes Company or association and in this regard my attention has been drawn to Section 2(f) of the unamended Act of 1960. It is submitted by him that the words F.A. No.112/1991 30 and expression used but not defined in the Act 1960 and defined in the Code shall have the same meaning respectively assigned to them in that Code and has, thus, contended that the plaintiffs would come as a person interested.
31. Lastly it has been propounded by learned senior counsel for the plaintiffs that the condition No.2(h) in the lease deed (Ex.P-3) that the company will not claim any occupancy or other rights runs contrary to the dictum laid down by the Supreme Court, Bahadur Singh and others v. Shangara Singh and others, (1995) 1 SCC 23.and has submitted that no estoppel will be applicable against the plaintiffs even such a condition is mentioned in the lease deed. On these premised submissions it has been argued that this appeal be dismissed. Argument of learned counsel for defendant No.2 32. Shri Ashish Shroti, learned counsel appearing for the legal representatives of the defendant No.2/respondent No.3 has borrowed the arguments of learned senior counsel for the plaintiffs and has submitted that State has no locus standi to file appeal and in this regard my attention has been drawn to Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others, (2010) 7 SCC 417.F.A. No.112/1991 31 Argument of learned counsel for defendant No.3 33. Shri A.K. Choubey, learned counsel for the L.Rs of defendant No.3/respondent No.4 submits that when admittedly no industrial or commercial operation has been carried out on the disputed land, the plaintiffs/respondents 1 and 2 cannot claim any exemption under the Ceiling Act and they were not even the holders of the land and as such they cannot seek any exemption under the unamended Act of 1960. Learned counsel submits that under Section 189 and 190 of the Act, no occupancy tenancy right could accrue in the plaintiffs and eventually the plaintiffs cannot claim Bhumiswami right over the suit land and thus, submitted that by allowing his appeal, the suit of the plaintiffs be dismissed. However, learned counsel for third defendant during the course of argument did not dispute that the husband of third defendant, Rai Saheb Seth Harishankar executed registered lease deed (Ex.P-3) on 29.11.1952.
34. Having heard learned counsel for the parties I am of the view that this appeal and the connected appeals deserves to be dismissed.
35. On the basis of arguments placed before me in this appeal the following questions emerges which are to be decided by this Court:- F.A. No.112/1991 32 (I) Whether Section 4 of the unamended Act of 1960 would be applicable for the transfer of the land which was made prior to the enactment of the Act of 1960?. If not, whether the competent authority under the unamended Act of 1960 was having any jurisdiction to initiate the proceedings and to pass the order dated 29.12.1975 (Ex.P-5)?. (ii) Whether the suit land which was obtained for industrial purpose was exempted under Section 3(f) of the unamended Act of 1960?. If yes, the result?. (iii) Whether the plaintiffs were the parties in the ceiling proceedings?. If not, whether notice under Section 11(3) of the unamended Act of 1960 was sent to them along with the draft statement?. (iv) Whether the present suits fall under Section 11(5) of the unamended Act of 1960 or under the general law?. (v) If the suit is under the general law, whether notice under Section 80 CPC was mandatory?. (vi) Whether the suit can proceed without impleading the State as party?. (vii) Whether the State can file appeal?. (viii) Whether the reliefs claimed by the plaintiffs in the plaint can be granted?. If not, whether the suit was maintainable?. (ix) Whether on the basis of argument of learned counsel for the third defendants, her First Appeal No.154/1991 and 155/1991 should be allowed by holding that because no F.A. No.112/1991 33 sugar factory has been established, the plaintiffs cannot claim any exemption under the unamended Act of 1960 and learned Trial Court contrary to the law has held that the plaintiffs have become the Bhumiswami?.
36. Before considering the rival contentions of learned counsel for the parties I think it proper to mention and quote certain provisions of the unamended Act of 1960. A bare perusal of Section 1(3) of Chapter-I of the Act of 1960 shows that the said Act will come into force on such date as the State Government may, by notification, appoint. Under the unamended Act of 1960 the appointed date was 15 th November, 1963 since it was inserted by way of amendment in Clause (b) of Section 2 of Act of 1960. Presently in the amended Act it is 7th March, 1974. The term “exempted land”. has been defined under Section 2(g) of the Act according to which “exempted land”. means land exempted form the provisions of this Act under section 3. The term “holder”. which has been defined under Section 2(h) means a tenure holder or an occupancy tenant of land within the State and the expressions “to hold land”. or “holding land”. shall be construed accordingly. Chapter-II of the Act of 1960 pertains to exemptions and restrictions on transfer of land. Under this chapter, Section 3 has been enacted which speaks about “exempted lands”.. If we go through Section 3(f) of the F.A. No.112/1991 34 unamended Act of 1960 it is gathered that the lands falling under this clause would be exempted from the Act of 1960. For ready reference it would be germane to quote Section 3(f) of the unamended Act of 1960, which reads as under:-
“3. Exempted lands. - The following lands shall be exempted from the provisions of this Act, that is to say,- (a) ... .. ... (b) ... .. ... (c) ... .. ... (d) ... .. ... (e) ... .. ... (f) land held by an industrial or commercial undertaking (other than a co- operative society) which in the opinion of the State Government bona fide carries on any industrial or commercial operation and which is approved by the State Government;”. Thus, the land held by industrial or commercial undertaking which is approved by the State Government shall be exempted from the provisions of the Act of 1960. Regarding Question No.(i) 37. In order to answer the aforesaid question, certain important documents may be seen. The registered lease deed (Ex.P-3) is dated 29th November, 1952 executed by Rai Saheb Seth Harishankar and his adopted son Vallabh Das (second defendant) for 30 years of the area comprising of 1021.62 Acres of land and thus, the lease deed was in force F.A. No.112/1991 35 upto 28th November, 1982. The terms and conditions of the lease deed (Ex.P-3) contemplates that it was obtained to start a sugar mill and to do all allied activities including farming and in this regard para 1(i), (iii), (A), (I) and (L) of the lease deed (Ex.P-3) may be seen. This lease deed in para-2 also refers to Notification No.3796-5292 (XIII) dated 12.12.1947 under Section 41(3) of the Act of 1920 and the said Notification has also been placed on record as Ex.D-2 where the Revenue Department of the then Government of Central Provinces and Barar Government notified whereby the Government was pleased to declare that no declaration shall be made under Section 41 of the Act of 1920 in respect of the land belonging to Rai Saheb Seth Harishankar which has been leased out to Mohan Sugar Mills Ltd. for the establishment of the sugar factory. The factum of delivery of possession has also been mentioned to Central Trading Company Ltd. (second plaintiff). The details of the land are given in Schedule (A) and (B) annexed to the lease deed (see Ex.P-3 para E). The transferable right and interest are also mentioned in para L(iii).
38. It would be germane to quote Section 4 which pertains to transfer or partition made after the publication of the Bill and before the commencement of the unamended Act of 1960, which reads, thus:- F.A. No.112/1991 36 "4. Transfers or partitions made after the publication of the Bill but before the commencement of this Act.- (1) Notwithstanding anything contained in any law for the time being in force, where after the date of publication of the Madhya Pradesh Ceiling on Agricultural Holdings Bill, 1959 (36 of 1959), in the Gazette, but before the commencement of this Act, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of and to defeat the provisions of this Act. (2) Nothing in this section shall apply to- (a) a transfer made by a holder who does not hold land in excess of the ceiling area on the date of the transfer; (b) a transfer by way of sale to any person specified in categories (i) to (v) of sub-section (1) of Section 35 or to a holder holding land less than five standard acres on the date of the transfer. (3) Any person aggrieved by an order of the competent authority under this section may prefer an appeal against such order to the Board of Revenue. The decision of the Board and subject to the decision of the Board in appeal the decision of the competent authority shall be final."
39. Admittedly, the registered lease deed (Ex.P-3) was executed much prior to the publication of the Bill as well as the date when the unamended Act of 1960 came into force since it was executed on 29th November, 1952. Admittedly, the competent authority initiated the proceedings under the F.A. No.112/1991 37 unamended Act of 1960 on the basis of these transfers. The genuineness of the registered lease deed (Ex.P-3) cannot be questioned and indeed the execution of the said document has also been found to be proved by the learned Trial Court. Thereafter, the mutation was also taken place in favour of plaintiffs and the certified copies of the revenue record from 1953-54 to 1967-68 have been filed by the plaintiffs. Undoubtedly, Section 4 of the unamended Act of 1960 is having overriding effect upon any other enactment contrary to Section 4 but still the transfer would be bad in law if it is made after the publication of the Bill and before the commencement of the unamended Act of 1960. On 19 th September, 1959 the Bill was published in the official gazette and from 15 th November, 1963 the unamended Act of 1960 came into force. Thereafter, on 15th November, 1963 the definition of “appointed day”. was added by adding Clause (b) to Section 2 of the unamended Act of 1960 since earlier it was not there in the said Act of 1960. According to me, it is beyond imagination that on 29.11.1952 the lessors Rai Saheb Seth Harishankarji and second defendant Vallabhdas would have thought that after eight years of the lease deed, the unamended Act of 1960 would come and therefore, they should transfer the land in favour of the second plaintiff so that the disputed property would be saved form the clutches F.A. No.112/1991 38 of the Act of 1960. Hence, when the transfer of the disputed land already took place long back eight years ago before the enforcement of the Bill and enactment of the Act of 1960 and further before the appointed day 15 th November, 1963, I do not have any scintilla of doubt in my mind to hold that the transfer of the suit land was not in order to defeat the provisions of the unamended Act of 1960 or even the Act of 1960. No decision is required on this point but I may profitably place reliance on the Single Bench decision of this Court Babulal (supra) on this point. Thus, I am of the view that because the transfer of the disputed land was made long back in 1952, the Section 4 of the unamended Act of 1960 would not be applicable and in consequence thereof no proceeding could be initiated under the unamended Act of 1960 by the competent authority. Voluminous revenue record (certified copies) are on record in order to show that in the year 1953-54 the name of the plaintiffs were mutated in pursuant to the aforesaid registered lease deed and therefore, the competent authority was well aware that the transfer of the suit land had already taken effect much before the commencement of the unamended Act of 1960 and the revenue records were also amended and corrected accordingly. According to me, the clutches of the unamended Act of 1960 and even under the Act of 1960 would be F.A. No.112/1991 39 applicable only to those transfer or partition which was made after publication of the Bill but before the commencement of the unamended Act, 1960 or appointed day.
40. The first question is, thus, answered that Section 4 of the unamended Act of 1960 would not be applicable to those transfers which were made prior to the publication of the Bill and enforcement of the unamended Act of 1960 on the appointed day and therefore, the competent authority under the Act of 1960 was not having any jurisdiction to initiate any proceeding under the said Act. Regarding Question No.(ii) 41. According to Section 3 of the unamended Act of 1960, which I have quoted hereinabove speaks for itself and if Clause (f) of this section is taken into consideration in proper perspective it would reveal that the land held by the industrial or commercial undertaking (other than cooperative society) would be exempted if the State Government is of the view that bona fidely the land it is taken to carry out the industrial or commercial operation, which is approved by the State Government. The registered lease deed (Ex.P-3) was executed to establish and start sugar mill and to do all allied activities including farming and several paras are mentioned in this regard in the registered lease deed (Ex.P-3). The F.A. No.112/1991 40 plaintiffs have taken pains by proving very important documents I.e. Notification dated 11.12.1947 (Ex.D-2) whereby the then Government of the Central Provinces and Barar (Revenue Department) exempted the disputed lands from declaration under Section 41 of the Act of 1920. The other very important document is Ex.D-1 dated 11.12.1947 of the then Government of the Central Provinces and Barar (Revenue Department) bearing No.3797-5292.XII addressed to the Commissioner, Jubbolpur, Division Jubbolpur (the name of town Jabalpur at that point of time was Jubbolpur) directed to exempt the suit land from the operation of Section 41 of the Act of 1920 because it is to be leased out for sugar factory in Hoshangabad district. The third important document is Ex.D-3 dated 25.6.1947 which was issued to the Managing Director of the Central Trading Company Ltd. Harda (second plaintiff) for the establishment of the factory at Dhanwada, Tahsil Harda, District Hoshangabad. The reference of these documents also finds place in the registered lease deed (Ex.P-3). Hence, admittedly, the land in question was leased out for the establishment of sugar factory and was for industrial purpose.
42. The learned Trial Court while deciding issue No.9- B and 10-A from para 18 onwards has categorically recorded a finding on the basis of the oral and documentary evidence F.A. No.112/1991 41 placed on record that the land was obtained for industrial and commercial purposes and it was exempted from the purview of the Act of 1960 and further because long pendency of the revenue case pending before the competent authority (defendant No.1) the factory could not be established. In the present case, the order of the competent authority dated 29.12.1975 (Ex.P-5) indicates that the draft statement was issued on 30.7.1965 and 17.8.1965 and the second and third defendants submitted objections on 28.9.1965. In between the plaintiff Company was indulged in certain dispute with the State Government which culminated into a prolong litigation under the unamended Act of 1960 and therefore, the factory could not be established. The findings so recorded by learned Trial Court particularly in para 18 and 24 may be seen and I am fully concurring with the view taken by the learned Trial Court in that regard.
43. When there were disputes and prolong litigation in the proceedings under the Ceiling Act, naturally the Company would not establish the factory by investing hard money and therefore, the factory could not be established. Hence, the document which I have mentioned hereinabove prove that the land was obtained in order to establish the sugar factory and was for industrial purpose and therefore, section 3(f) of the unamended Act of 1960 would be applicable. Even if the F.A. No.112/1991 42 factory could not be established it was for the lessor to cancel the lease deed because the purpose for which the land was leased out was not being fulfilled. Rai Saheb Seth Harishankarji died in the year 1962 neither he not second defendant who was also the co-lessor of lease deed (Ex.P-3) did not issue any notice to determine the lease because sugar factory has not been established. Even defendant No.3 Nanhi Bai (widow of Rai Saheb) did not terminate the lease.
44. The question No.(ii) is thus answered that the suit land was exempted under Section 3(f) of the unamended Act of 1960 and on account of such exemption the result would be that the proceedings under the Act of 1960 could not be initiated by the competent authority (defendant No.1). Regarding Question No.(iii) 45. In para-7(C) of the plaint the plaintiffs have specifically pleaded that they are in possession of the land pursuant to the registered lease deed (Ex.P-3). They are also growing sugarcane which is a raw material to manufacture sugar. Voluminous revenue record certified copies of Khasras etc. from 1953-54 to 1967-68 have been filed by the plaintiffs wherein reference of crop of sugarcane has been mentioned and the possession of plaintiffs is also manifest. Needless to say that copies of the Khasra and Khatoni are revenue record F.A. No.112/1991 43 and are the public documents and hence, admissible in evidence under Section 77 of the Evidence Act by its mere production. Thus, it was well in the knowledge of the competent authority that the land in question is in possession of the plaintiffs, but, ceiling case was not initiated against them. I have already quoted hereinabove that two ceiling cases were initiated; one against second defendant Vallabhdas and another against third defendant Nanhibai. In all fairness the case should also have been registered against the present plaintiffs but it was not instituted and therefore, they were not the parties in the ceiling proceedings.
46. In plaint para 7(G) it has been pleaded by the plaintiffs that the plaintiffs were heard only one day before passing of the impugned order by the competent authority dated 29.11.1975 (Ex.P-5) although long back on 28.9.1965 the defendants 2 and 3 in their reply to the draft statement/ objections brought into notice by competent authority (defendant No.1) that the plaintiffs are in possession of the property some of the plots as lessee in pursuance to the registered lease deed dated 29.11.1952 (Ex.P-3). In the written-statement of defendants 1 and 4 para-26 simply a vague denial is there and only this much has been written which I am translating in English, “The contents of para 6(G) are denied”.. To me, such a vague or evasive denial would F.A. No.112/1991 44 amount to admission as envisaged under Order 8 Rule 3 and 5 CPC and this has also been so held by the Division Bench of this Court in Dhanbai (supra). It would be pertinent to mention here that the said decision was passed in the first appeal which was filed against the judgment and decree of the learned Trial Court in the suit filed under Section 11(5) of the unamended Act of 1960. Thus, the averment made in para 7(G) of the plaint that only one day prior to passing of the impugned order (Ex.P-5) by the competent authority the plaintiffs were only heard are deemed to be admitted by first and fourth defendants.
47. Admittedly, the plaintiffs were not party in the ceiling proceedings. not only once but repeatedly in several paragraphs the plaintiffs have pleaded that no notice under Section 11(3) of the unamended Act of 1960 was sent to them. There is overwhelming material on record that the plaintiffs are in possession of the suit property and it was in the knowledge of the competent authority also. Hence, it was mandatory on the part of the competent authority (defendant No.1) to have issued notice under Section 11(3) of the Act of 1960 to the plaintiffs. At this juncture only it would be condign to quote the entire Section 11 of the unamended Act of 1960, which reads, thus:- F.A. No.112/1991 45
"1. Preparation of statement of land held in excess of the ceiling area. - (1) On the basis of information given in the return under Section 9 or the information obtained by the competent authority under Section 10, the said authority shall after making such enquiry as it may deem fit, prepare a separate draft statement in respect of each person holding land in excess of the ceiling area, containing the following particulars:-- (i) the name and address of the holder; (ii) full particulars of land held by him within the State and the total area of such land; (iii) the total area of land which the holder is entitled to hold in accordance with the provisions of this Act; (iv) the description of land which he desires to retain; (v) the description of the land which the competent authority proposes to declare surplus; and (vi) such other particulars as may be prescribed: Provided that if the holder fails to specify the portion of land which he wishes to retain, the competent authority shall as far as possible include the encumbered and improved land in the land to be retained by the holder : Provided further that a joint statement may be prepared in respect of holders who are members of a joint Hindu family or who hold land jointly or as tenants-in-common. (2) The transferor shall, for the purpose of this Act, be deemed to be the holder of land the transfer of which- (i) has been declared to be void under Sub- section (1) of Section 4; or F.A. No.112/1991 46 (ii) has been found by the competent authority, on such enquiry as may be prescribed to be in contravention of the provisions of Sub-section (1) of Section 5. (3) The draft statement shall be published at such place and in such manner as may be prescribed and a copy thereof shall be served on the holder or holders concerned, the creditors and all other persons interested in the land to which it relates. Any objection to the draft statement received within thirty days of the publication thereof shall be duly considered by the competent authority who after giving the objector an opportunity of being heard shall pass such order as it deems fit. (4) If while considering the objections received under Sub-section (3) or otherwise, the competent authority finds that any question has arisen regarding the title of a particular holder and such question has not already been determined by a court of competent jurisdiction, the competent authority shall proceed to enquire summarily into the merits of such question and pass such orders as it thinks fit: Provided that if such question is already pending for decision before a competent court, the competent authority shall await the decision of the court. (5) The order of the competent authority under Sub-section (4) shall not be subject to appeal or revision, but any party may, within three months from the date of such order institute a suit in the civil Court to have the order set aside, and the decision of such Court shall be binding on the competent authority but subject to the result of such suit, if any, the order of the competent authority shall be final and conclusive. (6) After all such objections, pending proceedings and the suit, if any, filed under F.A. No.112/1991 47 Sub-section (5) have been disposed of, the competent authority shall, subject to the provisions of the Act and the rules made thereunder make necessary alterations in the draft statement in accordance with the orders passed on objections, the decision of the competent Court and the decision of the civil suit as the case may be and shall declare the surplus land held by each holder. The competent authority shall, thereafter publish a final statement specifying therein the entire land held by the holder, the land to be retained by him and the land declared to be surplus and send a copy thereof to the holder concerned. Such a statement shall be published in such manner as may be prescribed and shall be conclusive evidence of the facts stated therein. (7) Notwithstanding anything contained in Sub-sections (4), (5) and (6), where the competent authority finds that a person holds land, other than the land in respect of which a question of title has arisen or is pending before a competent Court, in excess of the ceiling area, it may proceed to declare such land to be surplus forthwith. The land so declared surplus shall be incorporated in the final statement published under Sub-section (6). (8) Notwithstanding anything contained in Section 7, if the land in excess of the ceiling area consists of a small strip of land, which cannot be cultivated economically having regard to the efficient use thereof for agricultural purposes, the holder of the land may be permitted to retain the said strip of land subject to a maximum of one standard acre in excess of the ceiling area."
{Emphasis supplied} By paying heed to Sub-section (3) of Section 11 of the unamended Act, 1960 it is luminously clear that copy of the F.A. No.112/1991 48 draft statement shall be served not only to the holder or holders concerned but also to the creditors and all other persons interested in the land to which it relates. Since the plaintiffs are admittedly in possession of the suit property which is also in knowledge of Competent Authority (first defendant), I have no scintilla of doubt to hold that they would come within the ambit and sweep of “persons interested”.. Sub-section (3) further says that the objections shall be invited against draft statement by giving time of 30 days. I have already held hereinabove that only one day prior to the passing of the impugned order dated 29.12.1975 (Ex.P-5) the plaintiffs were heard.
48. Although in the written-statement filed on behalf of first and fourth defendants this fact has been denied that notice under Section 11(3) of the unamended Act, 1960 was not given to the plaintiffs and their stand in the written- statement is that notice was given to the plaintiffs, but the said notice of Section 11(3) has not been filed and proved in evidence by the State. At this juncture I would like to mention that although on account of denial of the pleadings of the plaintiffs by first and fourth defendants that notice was not given, the burden of proof was upon the plaintiffs. But, one cannot forget that the parties having possession of the documents which would throw sufficient light to the F.A. No.112/1991 49 controversy of the matter should produce them and therefore, the defendants cannot take advantage of abstract doctrine of proof that it was for the plaintiffs to prove this burden. Hence, it was incumbent upon the first and fourth defendants to file the documents proving that notice under Section 11(3) of the unamended Act of 1960 was given to the plaintiffs. In this regard, I may profitably place reliance upon the two decisions of Supreme Court they are Hiralal and others v. Badkulal and others, AIR 195.SC 22.and Gopal Krishnaj Ketkar v. Mohamed Haji Latif and others, AIR 196.SC 1413.In the decision of Gopal Krishnaj (supra), the Supreme Court has placed reliance upon the old decision of Privy Council T.S. Murugesam Pillai v. M.D. Gnana Sambandha Pandara Sannadhi and others, AIR 191.P.C. 6, holding that the practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof and failing, accordingly, to furnish to the Courts the best material for its decision and this type of practice was deprecated. Further it has been held by Their Lordships of the Privy Council that where the question was whether certain debts contracted by defendants' predecessors in office were contracted for necessary purposes so as to bind the defendants and the defendants failed to bring into court the F.A. No.112/1991 50 account books which would have been of great help in deciding the question, the failure of defendants to produce them justified an inference adverse to the defendants. In the present case also the entire ceiling record is in power and possession of first and fourth defendants and therefore, when specific issues 7A and 7B were framed in regard to the notice under Section 11(3) of the unamended Act of 1960, the controversy of the suit could be solved if the notice under Section 11(3) of the said Act said to have been given to the plaintiffs, would have been filed and proved by the defendants and since they had failed to do so, I am drawing adverse inference against them.
49. According to me, it was mandatory on the part of the competent authority (first defendant) to send the notice under Section 11(3) of the unamended Act of 1960 along with draft statement to the plaintiffs. Thus, even if they have filed some objections one day prior to the passing of the impugned order (Ex.P-5) by the competent authority ipso facto will not take place of proof of sending notice, even those objections have been dismissed by the competent authority in the said order. In this regard, I may profitably place reliance upon the decision of this Court in Jagatsingh Barelal v. State of M.P. through Collector, Vidisha, 1982 MPLJ 57 (passed by Hon'ble Shri Justice G.L. Oza, as His Lordship then was). In F.A. No.112/1991 51 that decision also the plaintiffs of that suit filed certain objections before the competent authority which were rejected by the said authority and it was held by this Court that merely because objections of plaintiffs were rejected by the competent authority would not debar them in filing suit under Section 11(5) of the unamended Act of 1960. This decision has been later on relied by this Court in Ram Charan (supra) and in another decision of this Court Saadat Mohammad Khan (supra) wherein it has been categorically held that the person who is entitled to a notice under Section 11(3) but has not been served with the said notice, the land held by them will not be affected by any order of the competent authority and no proceedings are binding upon him. In the decision of Saadat Mohammad Khan (supra) also the decision of Jagatsingh Barelal (supra) was relied upon. Similarly the said decision was also relied upon in another decision of this Court Bala w/o Lakhanlal Dubey (supra). Thus, the mandatory notice under Section 11(3) was not given to the plaintiffs and therefore, the entire proceedings of competent authority (Ex.P-5) are vitiated and the order of the competent authority (first defendant) is not binding upon the plaintiffs.
50. I do not find any merit in the contention of learned Advocate General for the appellants-State that since the objection of not sending the notice under Section 11(3) of the F.A. No.112/1991 52 unamended Act of 1960 was not taken before the competent authority by the plaintiffs, it is waived by them. To me, because one day earlier to the passing of the impugned order dated 29.12.1975 (Ex.P-5) by completing the bare formality plaintiffs were heard it cannot be said that they waived the notice. I may further add that the competent authority was fully aware about the legal provision. Hence, in all fairness, notice under Section 11(3) should have been sent to plaintiffs and the objections which were submitted by them and which were taken into account in the impugned order dated 29.12.1975 (Ex.P-5) they should not have been rejected. According to me, if the competent authority decides any question of title without following the procedure contemplated under Section 11(3) of the unamended Act of 1960, its order loses the finality attached to it by sub-Section (5) of Section 11 of the unamended Act of 1960. In these circumstances, the decisions of Supreme Court placed reliance by learned Advocate General, Dhirendra Nath Gorai (supra,) Auto Trade and Transport Corporation (supra) and Lucky Forwarding Agency (supra) are quite distinguishable and they are also not the decisions on the Act of 1960.
51. Further, I do not find any merit in the contention of learned Advocate General for the appellants-State that the plaintiffs ought to have filed the appeal or revision and in this F.A. No.112/1991 53 regard reliance has been placed upon Single Bench decision of this Court Bala w/o Lakhanlal Dubey (supra) by the learned Advocate General. The said decision is not in favour of the State because in that decision it was never held by this Court that against the order passed under Section 11(5) of the unamended Act of 1960 the aggrieved party should file appeal or revision. That apart, if an appeal or revision is filed, what will be attacked, is No.“an order on merits”. but the mode of passing of the order of the competent authority. This type of challenge in appeal or revision cannot be deemed to be a bar under Sub-section (5) of Section 11 of the unamended Act of 1960.
52. At this juncture, I would like to go through Section 41 of the Act of 1960 which speaks about appeal and Section 42 which pertains to revision. The opening sentence of Section 41 is that “except where the provisions of this Act provide otherwise, against every order of Revenue Officer or competent authority under this Act or the rules made thereunder, an appeal shall lie”.. Thus, the rider of ‘exception’ is very much there in this provision and because under Section 11(5) of the unamended Act of 1960 the provision is otherwise, giving a right to file civil suit within three months against the order passed by the competent authority under sub-section (4) of Section 11(5) of the unamended Act of F.A. No.112/199”
1960. hence, appeal or revision could not be filed. That apart, this section should be read in juxtaposition to Sub-section (5) of the unamended Act of 1960 wherein the opening sentence of this provision is that “the order of the competent authority under Sub-section (4) shall not be subject to appeal or revision”.. Thus, at that point of time when unamended Act of 1960 was in force the aggrieved party could not file appeal or revision before the Board of Revenue under Section 42 of the said Act and there was an express bar. It is well settled in law that a person cannot be a remedy-less and since filing of appeal and revision against the order of the competent authority passed under sub-section (4) to Section 11 was specifically barred, therefore, the legislature itself gave remedy to file civil suit under Section 11(5) of the unamended Act of 1960. Hence, this contention of learned Advocate General for the State cannot be accepted.
53. Thus, the answer to question No.(iii) is that the plaintiffs were not the parties in the ceiling proceedings and therefore, the order (Ex.P-5) of the competent authority is not binding upon them and further under Section 11(3) of the unamended Act of 1960 it was mandatory on the part of the competent authority to send the notice to plaintiffs along with draft statement. F.A. No.112/1991 55 Regarding Question No.(iv) and (v) 54. I have already held hereinabove that mandatory requirement and procedure of sending notice along with draft statement to plaintiffs was not followed by the competent authority as envisaged under Section 11(3) of the unamended Act of 1960. If by not following the mandatory requirement an order is passed by the said authority under sub-section (4) of Section 11 of the said Act of 1960, the consequences are given in sub-section (5) of Section 11 itself. While deciding question No.(iii) I have already held that against the order passed under sub-section (4) of Section 11 appeal or revision could not be filed since there was express bar and therefore, only remedy provided to the party was to file civil suit within three months under sub-section (5) of the unamended Act of 1960. Hon’ble Shri Justice G.L. Oza (as His Lordship then was) in the case of Jagatsingh Barelal (supra) categorically held that objector who comes within the purview of Section 11(3) of the unamended Act can also file suit. His Lordship has further held that the ceiling of the limitation of three months to file suit is applicable only to the parties to the proceedings under the Act of 1960, but, filing of suit within three months is not applicable to the objectors (plaintiffs in the present case) whose objections have been rejected by the competent authority since he cannot be said to be a party in F.A. No.112/1991 56 the ceiling proceedings. Admittedly, two ceiling cases were instituted by the competent authority, first case was against Nanhibai (defendant No.3) and second against defendant No.2 Vallabhdas. Admittedly, no ceiling case was instituted against the present plaintiffs. The limitation to file suit is three months and is applicable only to the party to the ceiling proceedings and not to the other persons who were not party. Although the plaintiffs were not the parties to the ceiling proceedings but they had filed suit within three months from the date of the order of the Competent Authority which is 29.12.1975 since both the suits were filed on 11.3.1976. The same view has been taken by this court in Ram Charan (supra). If a suit is filed under Section 11(5) of the unamended Act of 1960 the notice under Section 80 CPC is not required to be given. This has also been so held by Hon’ble Shri Justice G.L. Oza (as His Lordship then was) in Jagatsingh Barelal (supra) in para-7 of the said judgment. The said law has been laid down on the basis of the earlier Division Bench decision of this Court Kishanlal Baldevji and others v. Collector, Indore, 1975 MPLJ 766 This Division Bench was also presided by Hon’ble Shri Justice G.L. Oza (as His Lordship then was) and decision was passed in letters patent appeal. In that decision also the civil suit under Section 11(5) of the unamended Act of 1960 was filed. The Division Bench F.A. No.112/1991 57 by considering the different decisions ultimately came to hold in para-11 that notice under Section 80 CPC was not necessary and judgment and decree passed by learned Trial Court was set aside by which it was held that the suit is not maintainable on account of want of notice under Section 80 CPC.
55. Apart from above-said two Division Bench decisions and other decisions of single Bench, there is a Full Bench decision of this Court Vijaya Singh (supra). The Full Bench while considering the scope of sub-section (4) and sub-section (5) of the unamended Act of 1960 has categorically held that if the competent authority decides the question of title under sub-section (4) of Section 11 of the unamended Act of 1960 a civil court will have jurisdiction in the suit under Section 11(5) of the said Act of 1960 even to decide the title because the inquiry of title which is made by the competent authority is only a summary enquiry.
56. According to the stand of the State, sending notice under Section 80 CPC was mandatory and in this regard learned Advocate General has placed heavy reliance upon the decision of Supreme Court Sooraj (Smt.) (supra). However, in that decision the provisions of sub-section (3) and sub-section (5) of the unamended Act of 1960 were not F.A. No.112/1991 58 the point in issues for the decision, therefore, the said decision is quite distinguishable and on the same line the single Bench decision of this Court Fakir Mohammad (supra) is also distinguishable. Further, I do not find any merit in the contention of learned Advocate General for the State that only challenge which can be made in civil suit is of title. To me, in a suit under Section 11(5) of the unamended Act of 1960 not only the title could be determined, but, validity of the order of the competent authority passed under Section 11(4) of the said Act of 1960 could also be challenged and therefore, apart from title the civil Court also could see whether on account of not compliance of sub-section (3) of Section 11 of the unamended Act of 1960 the order of the competent authority is bad in law.
57. Hence, the question No.(iv) is answered that plaintiffs’ suit falls under Section 11(5) of the unamended Act of 1960 and not under the general law. The question No.(v) is answered that because the suit has not been filed under the general law, therefore, notice under Section 80 CPC was not necessary. The reliance on the decisions wherein it was held that section 80 CPC notice is necessary if suit is filed under general law are not applicable here because the instant suit has been filed under Section 11(5) of the unamended Act of 1960. F.A. No.112/1991 59 Regarding Questions No.(vi) and (vii) 58. Looking to the scope of the suit filed under Section 11(5) of the unamended Act of 1960 it is not necessary to implead the State as party. However, on 8.8.1987 an application under Order VI Rule 17 read with Section 151 CPC (IA No.27) was filed by the first and fourth defendants seeking amendment in the written-statement. In para-3 of the application it has been specifically averred by these defendants that the interest of the first and fourth defendants are common and on their behalf Additional Government Pleader, Harda is pleading the case. In para-4 of the said application it is averred that the first defendant had already filed the written-statement and the fourth defendant would also like to file the written-statement in like manner and hence, it was prayed that in the cause title of the written- statement after defendant No.1 “and 4”. be permitted to be added. Needless to say that this amendment application was allowed and the written-statement was accordingly amended on 12.1.1988. I may further add that throughout the Additional Government Pleader fought the case on behalf of the first and fourth defendants. According to me, because the competent authority and State of M.P. have been arrayed as first and fourth defendants and the relief has also been claimed for the quashment of the order of the competent authority, therefore, F.A. No.112/1991 60 the State of M.P. has a right to file appeal.
59. The question No.(vi) and (vii) are thus answered that the suit can proceed without impleading the State as party but if the competent authority has been arrayed as party, an appeal can be filed by the said authority. Regarding Question No.(viii) 60. The contention of learned Advocate General is that looking to the reliefs which have been claimed by the plaintiffs and particularly para (14)(A) that the order of the Competent Authority (first defendant) in Revenue Case No.601 SH.A/90- B(3) of 1963-64 against defendant No.3 be declared to be wrong and it be set aside, cannot be granted because such a relief could be granted in favour of third defendant only if she would have been the plaintiff. However, I do not find any merit in this contention. On bare perusal of the impugned order of the Competent Authority dated 29.12.1975 (Ex.P-5) this Court finds that despite the disputed lands which were already transferred by executing registered lease deed (Ex.P-3) by Seth Rai Saheb and also by second defendant in favour of second plaintiff (Central Trading Company) the Competent Authority had passed the order that Nanhi Bai (third defendant) is the holder of the land in question and the objections of the plaintiffs were dismissed. According to me, F.A. No.112/1991 61 since the third defendant has been found to be the holder of the land in question in the ceiling proceedings (although she could not be the holder because suit lands were already transferred to second plaintiff by virtue of the registered lease deed), therefore, since under the garb of the said order without declaring the disputed land to be the surplus land under sub-section (6) of Section 11 of the unamended Act of 1960 a final statement has been directed to be prepared by the Competent Authority, as a matter of fact the said order is against plaintiffs.
61. Indeed, in all fairness, after making necessary alterations in the draft statement in terms of the orders passed on objections, and the decision of the competent Court and also the decision of civil suit as the case may be, the Competent Authority thereafter should have declared the land surplus land held by each holder and only thereafter the Competent Authority could publish the final statement. But, without declaring the disputed land to be surplus under sub- section (6) of Section 11 after completing all the formalities, straightway by impugned order dated 29.11.1975 (Ex.P-5) the Competent Authority has directed to prepare the final statement. Thus, under the garb of this order, the rights of the plaintiffs are being jeopardised and therefore, since erroneously and contrary to the law the third defendant has F.A. No.112/1991 62 been held to be the tenure holder of the suit lands and de- hors to the plaintiffs’ rights, the said order has been passed, therefore, the plaintiffs can pray reliefs which they have claimed. If such a relief would not have been prayed by them then certainly the lands of the plaintiffs would have been taken on the preparation of the final statement. That apart, the main grievance of the plaintiffs in the plaint is that on account of failure of not giving any notice under Section 11(3) of the unamended Act of 1960, the entire proceedings of the competent authority and its order is bad in law and therefore, if in the relief clause somehow specifically it could not have been mentioned that the order of the Competent Authority be set aside on account of not giving notice to the plaintiffs, it will not somersault the entire case of the plaintiffs and such a relief can be granted under Order VII Rule 7 CPC by the Court. I have already held hereinabove that notice under Section 11(3) of the unamended Act of 1960 along with draft statement was never given to the plaintiffs.
62. The question No.(viii) is thus, answered that the relief claimed by the plaintiffs can be granted and the suit of the plaintiffs is maintainable. Regarding Question No.(ix) 63. So far as the exemption of the suit land from the clutches of the unamended Act of 1960 is concerned, much F.A. No.112/1991 63 has been said by me while deciding the question No.(ii) wherein I have already held that how and in what manner the disputed lands would be exempted and would be far away from the ambit and scope of the Act of 1960, since they come within the purview of Section 3(f) of the unamended Act of 1960. Hence, those reasonings are not being reproduced here.
64. So far as the argument of learned counsel for the third defendant (who is dead and whose LRs have been brought on record) that the learned Trial Court has erred in holding that occupancy right had been accrued in plaintiffs under Section 189-190 of the Act and eventually the plaintiffs cannot claim that they become Bhumiswami over the suit land is concerned, suffice it to say that nowhere the learned Trial Court has held that firstly the plaintiffs became occupancy tenant and then became Bhumiswami. On bare perusal of para-20 onwards and by paying heed to para-13 of the impugned judgment, this Court finds that neither the first defendant not any other party had any ground to say that said Harishankar was not the Bhumiswami or was not the holder. Hence, the argument of learned counsel for the third defendant cannot be accepted.
65. The answer to the question No.(ix) is that the F.A. No.112/1991 64 plaintiffs can claim exemption under the unamended Act of 1960 since the land was taken by them for industrial purpose; and learned Trial Court did not held that the plaintiffs have become occupancy tenant and thereafter they have become Bhumiswami. On the contrary, the finding is that Rai Saheb Seth Harishankarji who died in the year 1962 on coming into force of the Code, became Bhumiswami by virtue of law.
66. For the reasons stated hereinabove, this appeal and the connected appeals are hereby dismissed. No order as to costs. Let a copy of this judgment be also kept in the record of connected first appeals. (A.K. SHRIVASTAVA) Judge 16/08/2013 Sach