Full Judgment
P.C. Agarwal, J.
1. This is a plaintiffs second appeal against the reversing judgment of District Judge, Seoni.
2. Khadak Singh (appellant) has been Bhumiswami of Khasra No. 15/1, area 1.86 hectares of Village Imaliya (to be called as suit land). As per plaint, Khadak Singh (appellant) is an old and physically infirm person. He was in need of money hence he gave the suit land on Theka to Hulkar Singh (the respondent) for the years 1988-89 and 1989-90 on yearly premium of Rs. 4.000/-. It is claimed that Khadak Singh (the appellant) is illiterate person whose signatures were taken on some paper by Hulkar Singh (the respondent). It is claimed that despite Khadak Singh's demand Hulkar Singh (the respondent) did not return back possession of the suit land to him; hence Khadak Singh (the appellant) applied to the Naib-Tehsildar who dismissed the application, hence this civil suit for possession.
3. Hulkar Singh (the respondent) claimed that in July 80 Khadak Singh (the appellant) had agreed to sell thesuit land for Rs. 11,500/- and had handed over possession of the same and Hulkar Singh (the respondent) is continuing in peaceful open possession of the same. The suit land was not given on Theka. Any how on 11 -5-84 Khadak Singh (the appellant) had executed an Ikrarnama after receiving Rs. 8,000/-. Later remaining amount of Rs. 3,500/- has also been paid. Khadak Singh (the appellant) is neither old or physically infirm person. He has contracted a second marriage with Kamlabai and has 4 offsprings from her, the youngest being born in year 1990. It was claimed that on pleadings of Khadak Singh (the appellant) himself, Hulkar Singh (the respondent) has become Bhumiswami of the suit land under Section 168 read with Section 190 of the M.P. Land Revenue Code, 1959 (to be called as 'Code' only). In the alternative, it was claimed that Hulkar Singh (the respondent) has perfected his title by long possession. A counter-claim for execution of sale-deed of the suit land in specific performance of contract was also preferred in which a claim for return of Rs. 11,500/- with interest was also put. Such a counter-claim was contested by Khadak Singh on the ground that Hulkar Singh (the respondent) has prepared a forged receipt taking advantage of his inability and illiteracy.
4. The Trial Court held that Khadak Singh (the appellant) had let out the suit land for two years on premium of Rs. 8,000/- . However, theory of agreement to sell or counter-claim for execution of sale-deed on that basis or on ground of adverse possession was negatived and the civil suit was decreed and Hulkar Singh (the respondent) was ordered to hand over the possession of the suit land to Khadak Singh (the appellant).
5. In appeal, District Judge, Seoni held that on pleadings of Khadak Singh (the appellant) himself Hulkar Singh (respondent) had acquired rightsof Bhumiswami under Sections 168 and 190 of the Code and thus the civil suit was dismissed.
6. On 24-6-98 this Court admitted this second appeal on following substantial question of law:--
'Whether non-consideration of the effect of Section 168 (2) of the M.P. Land Revenue Code vitiates the judgment and decree of the Lower Appellate Court ?'
7. I have heard advocates of both the parties and have perused the records and judgments of both the Courts below and proceed to decide the question framed.
8. Suit of Khadak Singh was mainly based on these two pleas:
(1) that he has given the land on Theka on annual premium of Rs. 4,000/- for the years 1988-89 and 1989-90 and thereafter despite demand by him Hulkar Singh did not restore his possession; and
(2) Khadak Singh is old and physically infirm person.
As already seen, Hulkar Singh had counter-claimed that Khadak Singh (appellant) agreed to sell the suit land in year 1980 for Rs, 11,500/- and had executed an Ikramama on 11-5-84 after receiving Rs. 8,000/- which story has exploded and none of the Courts below had relied upon it and such concurrent finding of fact cannot be challenged in this second appeal as the same is based on appreciation of evidence on record. Thus, it is established that Khadak Singh had given the land on Theka for two years 1988-89-and 1989-90 and Hulkar Singh (the respondent) continued in possession of suit land even after expiry of such period. Khadak Singh (the appellant) applied for his reinstatement on 9-2-94 vide Exs. D-2 and D-6. Such application was contested by Hulkar Singh (the respondent) vide Ex. D-7 and Naib-Tehsildar rejected such application on 23-9-94 vide order Ex. D-8.
8. The second proposition that Khadak Singh (the appellant) was old and infirm person was contested by Hulkar Singh (the respondent) who had claimed that Khadak Singh had married second time and had four children from second wife youngest of whom was born in year 1990. It is noteworthy that not a single word was uttered by Khadak Singh (P.W. 1) in his statement on oath that he was either old or infirm or suffered physical or mental disability and thus was entitled to let out his land under Section 168 (2) of the Code. Under that provision, a Bhumiswami who is :--
'(v) a person subject to physical or mental disability due to old age or otherwise;
may lease the whole or part of his holding :'
Thus, proof of physical or mental disability was necessary. Question of disability is a finding of fact Saligram v. Vijay Singh (1985 RN 80). The same cannot be interfered in second appeal. Gopilal v. Bajranga (1982 MPLJ 589)was a case of a Bhumiswami suffering from disability rendering him incapable of walking fast or running. Hon'ble G.L. Ojha, J. (as he then was) observed :
'This provision only talks of a person subject to physical or mental disability due to old age or otherwise. Otherwise there is a wider phrase which indicates that disability may be either due to ailment, disease or by birth, but it has not been stated as to what should be the extent of the disability and it has not been provided that the disability should be such which will prevent the person from cultivating personally as 'cultivating personally' which is defined in this Code, even goes to the extent of cultivating through servants. Under these circumstances, therefore, when the Legislature, in their wisdom, chose not to incorporate this further restriction in Sub-clause (v), it is difficult to understand how this Court, while interpreting the provision, could further put a rider which the Legislature, in their wisdom, chose not to put.'
9. In Indhan Singh v. Gangabai (1992 RN 226) Hon'ble Justice R.C. Lahoti (as he then was) has held :--
'A Bhumiswami who is a person subject to physical or mental disability due to old age or otherwise may lease the whole or the part of his holding. It is an irrelevant consideration if the Bhumiswami can have the land cultivated by a member of his family or by his servant under his supervision. The test is physical or mental disability of Bhumiswami and nothing more.'
In the instant case, though Khadak Singh (P.W. 1) has appeared as a witness on 22-7-95, his apparent age is shown to be 65 years. However, he did not utter a word about his physical or mental disability to cultivate. No medical certificate is filed. The land was let out in years 1988-89,1989-90, i.e., about 7 years before record of his evidence. Obviously, in absence of clear evidence, it could not be assumed that Khadak Singh was 'a person subject to physical or mental disability due to old age or otherwise'. Obviously, burden to prove that Khadak Singh (appellant) was so disabled lay heavily on him.
10. Section 168 (1) of the Code reads as follows :--
'168 (1). Expect in cases provided for in Sub-section (2), no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years :'
Sections 168 (4) and (5) of the Code read as follows :--
'(4) Where a lease is granted in pursuance of Sub-section (2), the lessee shall hold the land on such terms and conditions as may be agreed upon between him and the Bhumiswami and may be ejected by an order of a Sub-Divisional Officer on the application of the Bhumiswami on the ground of contravention of any material term or condition of the lease or on the lease ceasing to be in force.
(5) Where on the coming into force of this Code any land is held on lease from a Bhumiswami who belongs to any one or more of the classes mentioned in Sub-section (2), such lease shall, on the coming into force of this Code be deemed to be a lease granted in pursuance of Sub-section (2).'
A Bhumiswami has further remedy under Section 250 of the Code, if a person unauthorisedly continues in possession of his land, for restoration of his possession by applying to the Tehsildar. Obviously, no such application has been filed by Khadak Singh (appellant) before 9-2-94. Thus, Khadak Singh (appellant) has allowed Hulkar Singh (respondent) to continue in possession since 1988-89 to February, 1994 without approaching the authorities. Clear consequence of the same has been that rights of Bhumiswami are conferred upon Hulkar Singh (respondent). Please see Bhawar Singh v. Shriram (1981 RN 184), Pooran Singh v. Mangolia (1987 RN 216) and Nathu Prasad v. Habbu (1977 RN 196). Hon'ble Dr. T.N. Singh, J. in Pooran Singh (supra) on page 220 held :--
'The Legislature, in my opinion, wanted to make it clear that if for consecutive three years any person other than the Bhumiswami had been in possession of the land either under a lease or an 'arrangement' and if the landlord had not resumed the land for cultivating himself personally, the right of an 'occupancy tenant' would accrue to such a person, Indeed, something more is also done to enlarge the corpus of the right and interest of such an 'occupancy tenant' making provision in Section 190 to confer upon him the right of 'Bhumiswami'. Indeed, this is done by extinguishing the, right of ownership of erstwhile Bhumiswami giving the latter only ' compensation for extinction of his right, as per Sub-section (3) of Section 190 of the Code. The Code confers the right of a Bhumiswami on the occupancy tenant, to whom such a right accrued in virtue of Section 169 according to Sub-section (2- A) of Section 190. And, the new Bhumiswami is saddled under Sub-section (3) with a liability to pay compensation to the old Bhumiswami for statutory transfer to him of latter's right.'
11. In view of the above discussion, the learned First Appellate Court below has not been at fault in holding that Hulkar Singh (the respondent) has become Bhumiswami as Khadak Singh (appellant) had unauthorisedly let out the suit land for two years and allowed Hulkar Singh (the respondent) to continue in possession of the suit land even after expiry of period of lease. The question is answered accordingly.
12. There has been no force in this appeal. Hence the same is dismissed with costs. Advocate's fee as per schedule.