S.K. Dubey, J.
1. This is a plaintiffs second appeal against concurrent findings of the two Courts below dismissing the suit of the plaintiff for declaration of title, possession and mesne profits claimed at the rate of Rs. 1,000/- per year, in respect of the land situated at Survey Nos. 278 and 279 (new survey No. 216), area 16 'Bigha' 12 'Biswa', in village Amkheda, Tahsil Chachoda, District Guna.
2. The appeal was admitted on 12-7-1991 for hearing on the following substantial questions of law : --
'1. Whether the plaintiff had acquired the rights of a Bhumiswami?
2. Whether the order directing the prosecution of the plaintiff is in accordance with law?
3. Whether the defendants had a right to take over possession of the land in dispute after the abolition of Zamindari?
4. Had the defendants become 'Pakka' tenant as claimed?'
3. The facts in brief are thus:
According to the plaintiff the land in dispute was given to him on Patta' (ExtP/1) dated 2-8-1943 by Kishorilal, the ex-Zamindar; the plaintiff was recorded as a tenant in the Khasras of Samvat 2007 and 2008; after the enforcement of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (for short, the 'Act') the plaintiff became 'Pakka' tenant as defined under Section 54(vii) of the Act, and after the enforcement of the M.P. Land Revenue Code, 1959 (for short, the 'Code') on 2-10-1959, he became Bhumiswami under Section190 of the Code. It was alleged that the heirs of deceased Kishorilal illegally initiated proceedings under Section 91 of the Act and obtained possession on 6-5-1956. The orders of the Revenue authorities including that of the Board of Revenue are illegal and void; therefore, the delivery of possession to the defendants was illegal; the defendants are in illegal possession from whom the plaintiff is entitled to claim the possession on the basis of his title which he acquired by operation of law.
3A. The defendants contested the suit and contended that no 'Patta' was ever given to the plaintiff either by Kishorilal or his brother Ramkishan; Kishorilal died before 1950 and Ramkishan, who had no issues, pre-deceased him; on the death of Kishorilal, his son Rajaram became Zamindar; the land was mortgaged with possession by Kishorilal as a security for re-payment of a loan; Kishorilal was the manager of the family; therefore, execution of the Patta (Ext.P/1), allegedly by Ramkishan, the brother of Kishorilal, was without any authority, which did not grant any right to the plaintiff of a tenant or of a sub-tenant nor any right of Pakka' Krishak' accrued to him; proceedings under Section 319 of the Qanoon Mal, Gwalior State, Samvat 1983 (for short, the 'Qanoon Mal') were initiated, wherein the Tahsil Court held that the land was given as a security for repayment of loan, which would be evident from columns Nos. 5 and 6 of the Khasra entry of Samvat 2007 (1950-51) (Ext.P/8), which respectively speak 'BANKATLAL S/O JAINARAYAN, CASTE MAHESHWARI, R/O KUMBHARAJ, GARECH MU. 8 SAL BARUYE BASHRAT SADAR; BI. LA KARJA PATTA BILL 840 KARJA.' The plaintiff did not acquire any right under Section 247 of the Qanoon Mal, of 'Haq Maurusi' or 'Dakhilkar' as he did not cultivate the land personally nor remained in possession for a period of 12 years; the defendants' servants cultivated the land and gave a certain quantity of crop in lieu of loan. The proceedings under Section 319, Qanoon Mal (numbered as Case No. 48/1950) culminated on 22-5-1950, a compromise was arrived at between the parties, according to which the plaintiff agreed to hand over the possession in Samvat 2010, but as the plaintiff did not do so, proceedings under Section 91 of the Act were initiated for restoration of possession. The Tahsildar in case No. 15/55X3/4, by order dated 304-1956, copy of which is Ext.D/1, directed restoration of possession, holding that the Madhya Bharat Zamindari Abolition Act, Samvat 2008 (for short, the 'Zamindari Abolition Act') had no retrospective effect on the agreement or contract entered into between the ex-proprietor and the money lender, as the land was not given on 'Patta' but was mortgaged as a security in lieu of loan, which remained in 'Khudkasht' of the ex-proprietor and was being cultivated by the defendants' servants. In execution of the aforesaid order the possession was restored on 6-5-1956. The matter went up to the Board of Revenue, but the plaintiff having failed in obtaining the possession, instituted the suit.
4. The trial Court dismissed the suit, holding that the land was not given on lease; but it was a transaction of mortgage in the shape of formal Tatta'; in view of the compromise arrived by the parties in proceedings under Section 319, Qanoon Mal, the plaintiff was required to hand over the possession, but as the plaintiff did not hand over the possession, the order of restoration of possession was rightly passed; the plaintiff never went to the land; he was a money lender and was getting a share of the crop in lieu of ban. As the plaintiff was not cultivating the land personally as defined in Section 54(xvii) of the Act, and the Patta was merely a security for securing amount of the debt, the plaintiff did not acquire any right of a 'Pakka' tenant under Section 54(vii). Moreover, after the enforcement of the Zamindari Abolition Act, the plaintiff as tenant did not apply under Section 38 for conferral of 'Pacca' tenancy right; Ramkishan and Kishorilal died before the Zamindari Abolition Act came into force; defendant No. 1 Mathuralal being minor and defendant No. 2 Jugatibai being the widow of Rajaram, were 'disabled' persons; therefore, for this disability also, the plaintiff did not acquire any 'Pakka' tenancy rights; the defendants being in possession in pursuance of the order passed under Section 91 of the Act, cannot be said to be holding the land illegally. Before parting with the case, in para 33 of the judgment the trial Court observed that the plaintiff has given false evidence and has used a forged document, i.e., Ext. P/l, by interpolation and fabricating the entries therein and, therefore, ordered to prosecute the appellant under Sections 467 and 471, Indian Penal Code, and for that a separate proceeding was ordered to be initiated under Section 479A, Criminal Procedure Code. In appeal, the decree was confirmed. Hence, this second appeal.
5. This Court by order dated 6-10-1977 stayed operation of the impugned judgment so far as it relates to the prosecution of the appellant.
6. Shri Arun Mishra. counsel for the appellant; Shri R. K. Dixit, counsel for the respondents Nos. 1 to 3, and Shri D. R. Sihare, panel lawyer for the State, were heard.
7. Shri Arun Mishra contended that though the of the Patta' (Ext.P/1) is not found proved, of the suit land, as the plaintiff was recorded in the Revenue records of the relevant years as a sub-tenant, on the date of coming into force of the Zamindari Abolition Act, such sub-tenant (or tenant) became a Pakka Krishak' to whom the rights of an occupancy tenant accrued, who after the enforcement of the Code became a Bhumiswami under Section 185(1) and Section 190 by operation of law. To support this, counsel placed reliance on decisions of this Court in : Bharatsingh v. Gyansingh, 1970 RN 426; Kasturibai v. State of M. P.. 1983 RN 445 and Vaikunthibai v. State of M. P., 1987 RN 264. It was then contended that as the plaintiff being in possession, acquired title of a Bhumiswami by operation of law, which is proved by Khasra entries, he was entitled to get a declaration as owner of the land and also restoration of possession from the defendants who were not in lawful possession with a direction to the defendants not to interfere with his possession : reliance was placed on Somnath Berman v. Dr. S. P. Raju, AIR 1970 SC 846 and Pannalal v. Bhaiyalal AIR 1937 Nag. 281. It was also contended placing reliance on a decision of the apex Court in Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230, that as the land was not recorded as Khudkasht' of the ex-proprietor, the decree passed under Section 319, Qanoon Mal. on compromise as well as the decree for restoration of possession under Section 91 of the Act, was a nullity, as the defendants were having no right to dispossess the appellant/plaintiff/judgment-debtor, because they lost their proprietary rights and the appellant acquired 'Pakka' tenancy rights under the Zamindari Abolition Act.
8. After hearing counsel and perusing the record I am of opinion that this appeal has no merit.
9. On the facts which emerge out and having been found proved by the two Courts below, it is clear that no 'Patta' was executed, as is evident from Khasra entry of Samvat 2007 (Ext.P/8), col. 6 of which clearly shows 'Patta Bil Karja.' The Khasra entry of Samvat 2008 (Ext. P/9) shows (in col. 3) 'Milkiyat Sarkar' and col. 5 shows the plaintiff as 'KRISHAK GAIR DAKHILKAR MUDDAT 9 SAL.' As both Kishorilal and Ramkishan died prior to the enforcement of the Zamindari Abolition Act, i.e. 2-10-1951. instead of showing them as 'Krishak', an entry was made of 'Milkiyat Sarkar' and in the column meant for showing the name of Krishak' plaintiffs name appeared for the first time. The plaintiff did not place any material to show how the entry of 'GAIR DAKHILKAR' was made when the plaintiff was not in possession. Therefore, this entry cannot be placed reliance in the absence of a legal and valid Patta'. Having known of this entry, Rajaram served a notice of eviction on the plaintiff and, thereafter, initiated proceedings under Section 319, Qanoon Mal, wherein the plaintiff entered into a compromise that he will relinquish the possession in Samvat 2010, but that was not done; hence, proceedings under Section 91 of the Act were initiated, as after the expiry of the period of mortgage, the plaintiff was having no right, title or interest in the property.
10. Even if the land belonging to Zamindar is in possession of mortgagee, on enforcement of the Zamindari Abolition Act, the land vests in the State, as Section 4 speaks of consequences of the vesting of an estate in the State, of the land held by Zamindars specified in Section 2(a). Section 4(1)(f) speaks that notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, every mortgage with possession existing on the property so vesting or part thereof on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such property or part thereof be deemed without prejudice to the rights of the State under Section 3, to have been substituted by a simple mortgage. Therefore, the mortgage of the land became a simple mortgage, and to that extent if any amount was due under the mortgage, the plaintiff was only entitled to that with interest and nothing more; hence, under Section 38 of the Zamindari Abolition Act, the rights of a 'Pacca' Krishak could not have been conferred on the plaintiff.
11. The question came up for consideration before the Apex Court in case of Meharban Singh v. Bhagwantsingh. AIR 1980 SC 696 = 1980 JLJ293. Their Lordships after considering the effect of Sections 3, 4(1)(f) and 4(2) of the Zamindari Abolition Act, observed in para 5 thus :
'5. The consequences of the vesting of an estate under Section 3 have been stated in Section 4. We are not concerned with Sub section (3) of that section, and it will be sufficient to refer to Clauses (a) and (f) of Sub-section (1) and Sub-section (2) of Section 4. Clause (a) of Sub section (1) of Section 4 provides that save as otherwise provided in the Act, the following consequences shall ensue notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, --
'(a) all rights, title and interest of the proprietor in such area, including land (cultivable, barren or Bir), forest, trees, fisheries, wells (other than private wells), tanks, ponds, water channels, ferries, pathways, village-sites, hats, and bazars and me la-grounds and in all sub-soil, including rights, if any, in mines and minerals, whether being worked or not shall cease and be vested in the State free from all encumbrances;' This provisions therefore had the effect of terminating the proprietary rights of a proprietor in his estate and in vesting them in the State free from all encumbrances. The Legislature has taken care to deal with the fate of mortgages, in Clause (f) of Sub-section (1) of Section 4, which reads as follows -
'(f) every mortgage with possession existing on the property so vesting or part thereof on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such property or part thereof be deemed without prejudice to the rights of the State under Section 3, to have been substituted by a simple mortgage.' So a mortgage with possession, which existed on the date immediately preceding the date of vesting of the property, was deemed to have been substituted by a simple mortgage. That was to be so without prejudice to the rights of the State under Section 3. A mortgagee who was in possession of lands under a deed of mortgage, i.e. a usufructuary mortgagee thus lost possession of the lands by operation of the law, and his mortgage became nothing more than a simple mortgage from the date of the vesting of the lands in the State. In other words, he lost possession of the lands which were once mortgaged with him with possession, and was left only with the normal right of a simple mortgagee to realise the mortgage-money.'
12. In para 6 the Apex Court observed that the fate of the mortgagor, who was once the proprietor of the lands, was worse than that of a mortgagee under the Zamindari Abolition Act, for he lost his proprietary rights in lands because of their vesting in the State under Section 3 and had nonetheless to fulfil his obligation as a mortgagor to the extent of the amount secured under the mortgage. It appears that the Legislature therefore thought of alleviating the lot of those to such proprietors whose cases fell under Sub-section (2) of Section 4, i.e., notwithstanding anything contained in Sub section (1), the proprietor shall continue to remain in possession of his 'Khudkasht' land, so recorded, in the annual village papers before the date of vesting. 'Khudkasht' is defined under Section 2(c) of the Zamindari Abolition Act to mean land cultivated by the Zamindar himself or through employees or hired labourers and includes 'sir' land. Clause (o) of Section 2 states that the words and expressions used in the Zamindari Abolition Act, but not defined therein, shall have the same meaning as assigned to them in Qanoon Mal, Gwalior State, Samvat 1983. 'Zamindar' has been defined in Section 2(13) of the Qanoon Mal, to mean a person who has a right, mentioned in the section.
13. Indisputably, the defendants were Zamindars. If a Zamindar cultivates the land himself or through employees or hired labourers, the land would be his 'Khudkasht' land within the meaning of Section 2(c), if the land is so recorded in the annual village papers before the date of vesting. The proved facts show that after the execution of the document (Ext.P/1), the plaintiff never went to the field, nor he got the land cultivated through his labourers but it was the Zamindars whose hired labourers were cultivating the land throughout, and in lieu of the loan, a share in the crop was given to the plaintiff. Therefore, even after the enforcement of the Zamindari Abolition Act, if the plaintiff was in possession, his position was that of a simple mortgagee who was entitled to the money, if any due, with interest; therefore, there was no occasion of accrual or conferral of 'Pacca' tenancy rights on the plaintiff.
14. In a recent decision in Nanda v. Chhotekhan, 1992 RN 90, a learned Judge of this Court has taken the view that no rights accrued to a person who remains in possession of the land in lieu of interest over loan, as there remains a relationship of creditor and debtor and not lessor and lessee. Therefore, to such a person Bhumiswami rights do not accrue.
15. Admittedly, the plaintiff was not in possession on 2-10-1959; there is no revenue entry also from 1956 to 1959 to that effect. Therefore also, the plaintiff did not acquire any Bhumiswami rights under Section 190 of the Code, as he was not an occupancy tenant under Section 185(1).
16. As the defendants proved that the land remained their 'Khudkasht' land, they were entitled to remain in possession in terms of Section 4(2) of the Zamindari Abolition Act. True, the land was not recorded as 'Khudkasht' in the revenue papers, but for that the plaintiff would not be entitled to get any benefit, as it is a dispute inter se between the defendants and the State whether the land vested in the State or not and, if vested, whether the State is entitled to take possession from the defendants or not.
17. At this stage, Shri D. R. Sihare, panel lawyer for the State, who was impleaded as party-respondent under Order 1, Rule 3-B, Civil Procedure Code, by order dated 11-9-1987, relying on Section 2(c) read with Section 4(2) of the Zamindari Abolition Act and a Division Bench decision of this Court in Khumansingh v. Dhansingh. 1971 MPLJ 750 - 1971 JLJ 577, contended that as the land was not recorded in the annual village papers as 'Khudkasht' land of the proprietor on the date of vesting, the land vested in the State; therefore, the State is entitled to get back the possession. For that I need not and cannot express any opinion in this appeal. The State, if so advised, may take appropriate action under law, if available to them.
18. Now, the question remains to be considered whether the appellant has to be prosecuted or not for fabricating the entries in Patta (Ext.P/1) and producing the said document in evidence in the suit, which are offences punishable under Sections 467 and 471, Indian Penal Code. For taking cognizance of these offences, committed in relation to the document (Ext.P/1), a complaint has to be filed in writing by the presiding officer of the said Court under Section 195(1)(b)(ii), Criminal Procedure Code. True, the trial Court while delivering its final judgment in para 33 has observed that the plaintiff Bankatlal has given false evidence and has forged and used Patta (Ext.P/1); therefore, it appears expedient to prosecute him for offences punishable in this behalf under Sections 467, 471, and Ors., of the Indian Penal Code, to eradicate the evils of perjury and fabrication of false evidence in the interests of justice. This judgment was delivered in 1973 in the suit instituted in 1968, but the operation of the order relating to prosecution remained stayed.
19. Every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interests of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the Court should direct prosecution. The approach of the lower appellate Court in determining the question of expediency seems somewhat mechanical and superficial; it does not reflect the requisite judicial deliberation, as the Court simply confirmed the order of the trial Court. Moreover, there is also the question of long lapse of time of more than 24 years since the filing of the document (Ext. P/1) which is the subject matter of the charge. In view of the nature of the alleged fabrication of false evidence and perjury, this long delay also militates against expediency of prosecution. Therefore, the circumstances and the long delay demand, at this stage, that it would not be expedient to order prosecution in the interests of administration of justice. Further, the inquiry for taking cognizance of the offences and the subsequent trial will take another inning. The appellant/plaintiff, now aged about 76 years, has suffered the agony of launching of the prosecution since 1973 till date. Hence in the opinion of this Court, initiation of the proceedings for prosecution of the appellant under Sections 467 and 471, Indian Penal Code, deserves to be dropped and is hereby dropped.
20. In the result, the appeal is dismissed with costs. Counsel's fee Rs. 500/-, if already certified.