Judgment:
(Second appeal under Section 100 of the Code of Civil Procedure)
1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908, the appellants have challenged legality and propriety of the judgment and decree dated 8-10-92 passed by the 5th Additional District Judge, Durg in Civil Appeal No.5-A/92 affirming the judgment and decree dated 13-9-89 passed by the 6th Civil Judge Class-II, Durg in Civil Suit No.36-A/88, whereby the suit for declaration and permanent injunction filed on behalf of the appellants/plaintiffs has been dismissed.
2. Present second appeal has been admitted on the following substantial questions of law:-
1) Whether the Courts below were justified in holding that the lands in dispute were not the khudkast lands of the present appellants and their predecessors when the lands were so recorded in khasra year 1932-33 and there is presumption of the continuity of land use?
2) Whether on the facts and in the circumstances of the case could it be held that the plaintiff has failed to discharge the burden by not producing khasra entries when the originals are in possession of the State and State could have filed the same?
3. As per allegations made in the plaint, the plaintiffs were having khudkast land bearing part of Khasra No.217 area 1.14 acres and Khasra No.232 area 10.91 acres, total 12.5 acres, situate at Village Borigarka, P.C. No.108, Tahsil and District Durg. The plaintiffs were heirs of ex-proprietor of the village. Originally, the land was held by ex-proprietor Dheemar as khudkast land, thereafter by his three sons, thereafter by Jagatram and his sons, and thereafter by the plaintiffs of the case. At the time of the Abolition of Proprietary Rights Act, 1951 which came into force on 31-3-1951 the plaintiffs are in possession of 558.14 acres of land. After coming into force of the M.P. Land Revenue Code, 1959 and the Abolition of Proprietary Rights Act, 1951, the land was recorded as grass land erroneously and illegally by the revenue officer. The plaintiffs came to know that same was recorded as grass land on which they filed application under Section 57 (2) of the M.PL land Revenue Code, 1959, on 25-8-81 in which they have specifically claimed that they were in possession over the land since last sixty years. Finally, the application was dismissed whereupon the plaintiffs filed civil suit for declaration and injunction which was also dismissed and the appellate Court has also dismissed the appeal.
4. By filing written statement, the State/respondent denied the allegations made in the plaint and specifically pleaded that the plaintiffs or their predecessors-in-title were never in possession of the suit property, as a result of the Abolition of Proprietary Rights Act, 1951 compensation was granted in which predecessors-in-title of the plaintiffs were party to the compensation proceeding and possession over the property of the plaintiffs herein is illegal. The land was reserved as grass land. After following the procedure, the land has been recorded as nistar land, but after the Abolition of Proprietary Rights Act, 1951, the land was illegally encroached by Romnath and Khemlal, but it was never objected by the plaintiffs. The property is owned by the State. Therefore, the plaintiffs are not entitled for any relief.
5. After providing opportunity of hearing to the parties, learned Civil Judge Class-II dismissed the suit and the lower appellate Court has also dismissed the appeal.
6. I have heard learned counsel for the parties, perused judgment and decree of both the Courts below and records of both the Courts below.
7. Learned counsel for the appellants vehemently argued that originally, three ex-proprietors and their family members had filed civil suit of same nature relating to khudkast property, another ex-proprietor Derha filed Civil Suit No.167A/76 before the Court of 1st Civil Judge Class-II, Durg which was decreed, but the suit filed on behalf of the plaintiffs herein has been dismissed illegally. In missal bandobast of 1932-33 these lands have been shown as khudkast lands in the name of predecessors-in-title of the plaintiffs herein vide Exs.P-10 and P-11. In the year 1960-61 the land has been shown in illegal possession of Romnath, father of the plaintiffs vide Ex.P-12. Another khudkast land has been shown in possession of another ex-proprietor in khasra entry of 1963-64 vide Ex.P-13. The disputed land has been shown in illegal possession of Romnath, father of the plaintiffs and same has been shown in khasra entry of 1968-69 as Ex.P-14 and in Ex.P-15 till 1971, though Ex.D-1 reveals that aforesaid land i.e. Khasra Nos.217 and 232 have been declared grass land and same have been shown as grass land in Ex.D-1. Learned counsel submitted that by examining plaintiffs P.N. Gajpal (PW-1), Baniram (PW-2) and Chhabilal (PW-3), the plaintiffs have proved the fact that they are heirs and ex-proprietors, and that their lands have been recorded as khudkast lands in the name of their predecessors-in-title. They have specifically deposed that compensation has not been awarded to them. However, by examining Ramdayal (DW-1) - Patwari, the defendant has tried to show that it was recorded as grass land and thereafter it was declared as kabilkast. Ramdayal (DW-1) has specifically admitted that some portion of land of Khasra No.232 has been allotted to poor persons, but on the ground that the plaintiffs are ex-proprietors, they are not cultivating upon the land. Learned counsel further submitted that the plaintiffs have tried to obtain revenue record i.e. khasra entries from 1932-33 till 1956-57, but it was not possible for them on the ground that record has been destroyed. Learned counsel also submitted that the plaintiffs have applied for copy of khasra entries, but it was informed by the revenue officer vide Ex.P-6 that the khasra entries have been destroyed. In these circumstances, it was not possible for the plaintiffs to file such khasra entries.
8. Learned counsel for the appellants placed reliance in the matter of Umedi v. Jagatram1 in which the High Court of Madhya Pradesh has held that under Section 4 (2) of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, Malik-makbuza rights of ex-proprietor not lost if only he be not in possession on date of vesting. Learned counsel further placed reliance in the matter of Kasturchand and another v. Harbilash and others2 in which the Supreme Court has held that for claiming khudkasht land by ex-proprietor, he must show that he was in possession as khudkasht cultivator and that this fact was recorded in the khasra before the date of vesting.
9. On the other hand, learned State counsel appearing on behalf of the respondent opposed the appeal and submitted that the plaintiffs are required to prove their case by adducing cogent, ocular and documentary evidence, but the plaintiffs have flailed to prove their case and failed to discharge their burden as well as onus. Onus to disprove that the plaintiffs and their predecessors were not in possession has not been discharged by the plaintiffs and, therefore, onus was not shifted upon the defendants and the defendants were not under obligation to discharge any onus which was not shifted upon them. Learned State counsel further submitted that the land was declared as grass land at the time of the Abolition of Proprietary Rights Act, 1951 and vested in the State and thereafter, it was declared as khudkast land, but the plaintiffs have never objected and, therefore, they are estopped from claiming any right by the principles of estoppel.
10. In the present case, virtually, the defendant/respondent herein has not adduced any evidence in support of its pleading, although it was not required to prove its pleadings, but only required to disprove the pleadings of the plaintiffs. Documentary and oral evidence of the plaintiffs witnesses reveal that in the year 1932-33, the land was recorded as khudkast land in the name of ex-proprietor, thereafter at least since 1960 land has been recorded in the name of father of the plaintiffs as encroacher or illegal possession of father of the plaintiffs has been shown in the revenue record maintained by the State/respondent herein.
11. The State/respondent herein has not filed any revenue document showing that the plaintiffs are never in possession, inter alia, the plaintiffs have filed Ex.P-6, certified copy of application for certified copy of revenue record, which shows that khasra entries and entries relating to the aforesaid land for the year 1947-57 have been destroyed. In these circumstances, it was not possible for the plaintiffs to file such copies. Khasra entries and entries in revenue record of 1932-33 and 1960 onwards show that initially, the plaintiffs and their predecessors-in-title were having right over the property as khudkast and after the Abolition of Proprietary Rights Act, 1951, they continued in possession, may be as encroachers or by illegal possession, but it was never in possession of the persons other than the plaintiffs or their predecessors-in-title. Land shown as khudkast cannot be declared as grass land or kabilkast land that too by ex parte proceeding without noticing to the persons who were holding the land as khudkast or who were in possession of the suit property.
12. As held by the High Court of Madhya Pradesh in Umedi's case (supra), an ex-proprietor would not loose his malik-makbuza rights merely on the ground that he was not in actual physical possession on the date of vesting or in the relevant year.
13. In Kasturchand's case (supra), the Supreme Court has held that a proprietor claiming the right under Section 4 (2) of the M.B. Zamindari Abolition Act, 1951, must show that he was in possession as khudkasht cultivator and that this fact was recorded in the khasra before the date of vesting.
14. Documentary and oral evidence adduced on behalf of the plaintiffs are sufficient to prove the fact that originally, the suit property was khudkast land of ex-proprietor and on the date of filing of suit it was in possession of the plaintiffs who were heirs of ex-proprietor. These evidences are sufficient for grant of decree for declaration and permanent injunction without any evidence in rebuttal. The State/respondent herein has not rebutted the aforesaid evidence and facts.
15. In these circumstances, finding of the Court below that the plaintiffs were not holding the land as khudkast was not justified. Likewise, finding of the Court below that the plaintiffs have failed to discharge their burden by not producing khasra entries was also not justified.
16. Consequently, both the substantial questions of law formulated for the decision of this appeal are decided as negative.
17. On the basis of finding on substantial questions of law, the appeal deserves to be allowed and the suit deserves to be decreed.
18. In the result, the appeal is allowed. Judgments and decrees passed by both the Courts below are hereby set aside and the suit is decreed in following terms: -
(1) The plaintiffs are declared as owners/bhumi swamis of the land bearing part of Khasra No.217 area 1.14 acres and Khasra No.232 area 10.91 acres, total 12.5 acres, situate at Village Borigarka, P.C.No.108, Tahsil and District Durg.
(2) The defendant is restrained from interference in the disputed land.
19. Parties shall bear their own costs.
20. Advocate fees as per schedule.
21. Decree be drawn up accordingly.