Lajjagiri and ors. Vs. State of Madhya Pradesh and ors. - Court Judgment

Excerpt:
civil - mutation - sections 3,4 and 13 of madhya pradesh zamindari abolition act samvat, 2008 - respondent no.3 applied for mutation of his name in revenue record before sdo - opposed by legal heirs of respondent no.3 before collector in appeal - dismissed - second appeal -dismissed - revision before board of revenue - directed sdo to mutate name of respondent no. 3 in revenue record - order impugned by 12 villagers in present petition as public interest litigation - held, in view of sections 3 and 4 of act, except khudkasht land all land shall vest in government - therefore, it was not necessary for any officer to pass any order thereon when land was in shape of pond, it would automatically be vested in government - when it was not in possession of respondents, it was also not being used by them either for agricultural purposes or for any other purposes, it was not necessary for government to pass any order - if jagirdar or zamindar was having any lawful right in land, he was free to file application under section 13 of act, but nothing was done - therefore findings recorded by board of revenue is contrary to law and is liable to be set aside - petition allowed - - here in this case the dispute is not about the well but is about the tank and in the definition of occupied land the tank has been connected with any tank appurtenant to such dwelling house. 13. it is very interesting in this case that after vesting of the land in the state the respondent filed an application in the year of 1990 for mutation of their name.ordera.k. gohil, j.1. by order dated 8-10-2003 passed by division bench of this high court this petition has been registered as public interest litigation.2. respondent no. 3 has filed an application before the sub-divisional officer, morena claiming that his name be mutated in the revenue records in survey number 280 and 281 situated at village badokhar, morena, which were originally held by his father. he contended that the patwari without any opportunity has deleted the name of his father and recorded the land in the name of the state. the enquiry was held by sdo, morena, who rejected the application filed by respondent no. 3. sdo morena elaborately held that the matter was investigated by tehsildar, morena and held an enquiry, in which he found that the land is recorded as 'bhumi pokhar nistar' and nobody has made encroachment thereon as on the spot it is in the shape of a pond filled with water. s.d.o. found that both the khasra numbers were recorded in the name of ramsingh and others from samvat 1996 to 2007 and from khasra samvat 2008 the land has been recorded in the name of 'milkiyat sarkar' and in other columns 'pokhar nistar' has been mentioned. it was also found that the land was not in possession of anybody and nobody was using the same as an agricultural land. respondent ramsingh claimed ownership right over the aforesaid land but he had not produced any document regarding his ownership right. therefore, the sdo found that on the abolition of zagirdari and after enforcement of the madhya pradesh zamindari abolition act samvat, 2008 (act no. 13 of 1951) (hereinafter shall be referred to as the 'act of samvat, 2008'), the land not being khudkasht land and being a pond came to be vested in the state and, therefore, the name of the state was entered in the relevant khasra entries and since then the land is being treated as a government land and after 40 years the respondents have filed application for mutation which cannot be accepted and in the absence of any proof of ownership of respondent no. 3 rejected the application on 28-12-98, against which the legal heirs of phool singh son of ramsingh filed appeal before collector.3. the collector in appeal vide order dated 29-5-93 affirming the finding recorded by sdo dismissed the appeal. the collector has also observed that why respondent no. 3 has not filed application for correcting the entries for a period of forty years, no reason has been assigned. it is not a case of encroachment over the land. against the order of collector, second appeal was filed before the additional commissioner chambal division gwalior. the additional commissioner also found that there is no evidence on record and no proof that the land belongs to the respondents and affirmed the findings of the sdo and collector and dismissed the appeal. against which the respondent filed a revision before the board of revenue. vide order dated 28-12-94 on the strength of the khasra entries from samvat 1996 to 2007 since the name of one ramsingh was recorded the board of revenue has not considered the provision of the act of samvat 2008 and merely saying that how the name of the government was recorded in the khasra entries, allowed the revision, set aside the orders passed by the three courts below and directed the sdo morena to mutate the name of the applicant in the revenue record. against which this writ petition has been filed by as many as 12 villagers.4. the learned writ court vide order dated 27-3-96 set aside the order passed by the board of revenue, dated 28-12-1994 (annexure p-9) but in the letters patent appeal the division bench has observed that why the state has not challenged the aforesaid order passed by the board of revenue. though the division bench vide order dated 8-10-2003 set aside the order passed by learned single judge as without jurisdiction but directed that the petition be treated as public interest litigation petition and be listed for hearing on merits, that is how the petition has been registered as public interest litigation.5. in this pil, respondent no. 1-state and legal representatives of respondent no. 3 phool singh have filed their separate reply. the state has supported the order passed by sdo, collector and additional commissioner and same is the stand of the state government in the reply. in the reply the state has also objected that in the documents placed before the court nowhere it has been mentioned that ramsingh, who was the father of phool singh, was the then jagirdar or zamindar. even in the khasra entries the status of ramsingh as jagirdar/zamindar has not been mentioned. nothing has been mentioned about the status of shyamlal whether he was son of ramsingh or he was also having the status of jagirdar or zamindar. further contention of the state government in nutshell is that the aforesaid khasra numbers are recorded as pond and it was never the land of khudkasht. even if he was zamindar or jagirdar, it was not the land of khudkasht as has been defined under the provisions of the act of samvat 2008.6. the private respondent no. 2 to legal representatives of deceased respondent no. 3 have also filed their return. in the return the stand of the respondent is that jhinguriya (deceased) was zamindar of village badokhar, district morena and the land bearing survey nos. 280 and 281 was the self cultivated land of jhinguriya, but the respondents have not produced any proof on record that jhinguriya was the zamindar of badokhar village or ram singh and phool singh are the same persons those who belong to the family of jhinguriya, who was the zamindar. therefore, it is stated that the order passed by board of revenue is justified and no case is made out to interfere in the order passed by board of revenue.7. we have heard the learned counsel for the parties. shri brijesh sharma, learned govt. advocate drew our attention on the application filed by phool singh for mutation on 14-6-1990. in the application nowhere it has been mentioned that ram singh was his father and he was jagirdar or zamindar of village badokhar nor it was mentioned that the land was being used by their ancestors as khudkasht land or that the same was in their possession, therefore, bhumiswami rights be conferred on him and it be mutated accordingly in his name in the revenue record. in fact, if he was claiming any right under the zagirdari abolition act of samvat 2008, as per the provisions even for khudkasht land he had to file an application as per section 13 of the act of samvat 2008. the application was to be filed by the persons those who were claiming property right in any property within a period of two months and they were also entitled to file civil suit for establishing their rights but admittedly from samvat 2008 (right from 1951) till 14-6-1990 they had not filed any application for claiming any right under the act of samvat 2008, therefore, certainly any party cannot wake up after 40 years and a fine morning may say that the land belongs to him and bhumiswami rights be conferred on him.8. it was argued by shri d.p. singh, advocate on behalf of the respondents that the board of revenue was justified in considering the case of the respondents in a proper perspective and the government's name was mutated abruptly without there being any occasion, whereas before samvat 2008 the land was recorded in the name of ram singh. he further submitted that all tanks and wells on occupied land belong to jagirdar but as per the definition of 'occupied land' in the act of samvat 2008 it was not the land in dispute which was in the nature of occupied land.9. first of all we have perused the application filed by the respondent phool singh (dead) which was filed on 14-6-90. there is no dispute that the aforesaid application was filed after 40 years. in the revenue record government's name was mentioned in samvat 2008 (1951) but this application was filed on 14-6-90. it is also admitted position on record that in the application for mutation in the land nothing has been mentioned that ram singh was his father or he was zamindar/jagirdar or it was khudkasht land or their ancestors were using the same or cultivating it as khudkasht land. before the sub-divisional officer, the statement of phool singh was recorded on 9-7-1991. in his statement he has admitted that the land is recorded now as 'shashkiya pokhar'. therefore, patta of that land be granted to him, as he is in possession over the land and he is willing to pay the rent or fees as per the government rate. the same statement was given by basudev and rambau. therefore, from the application of respondents it is clear that he had not claimed bhumiswami rights or mutation in the land on the basis of the 'khudkasht land' under the abolition of jagirdari act, but they have claimed bhumiswami rights on the basis of possession which was not found proved in their favour, as the land was found in the shape of a pond and it was also found that it was not a cultivated land.10. in the khasra entries status of jhinguriya as zamindar has also not been mentioned and the admitted position from the khasra entries is that in all the khasras which have been produced on behalf of the respondents the status of the aforesaid two survey nos. 280 and 281 has been mentioned as 'pokhar'. more so, in the khasra entries it has not been mentioned that it was the land being used as khudkasht and details of any crop or agricultural operations have also not been mentioned. therefore, from the perusal of the aforesaid documents it is clear that in those documents nowhere it has been mentioned that it was the land of jagirdar or it was a khudkasht land or even if it was in the nature of pokhar (pond), it was involved in some kind of agricultural operations therein.11. now in the arguments the respondents have made alternative claim before this court. initially he has submitted that it was khudkasht land and subsequently he submitted that the tanks and wells situated in occupied land belong to jagirdar. in section 5 of the act of samvat 2008 the private wells have been mentioned but tanks have not been mentioned. here in this case the dispute is not about the well but is about the tank and in the definition of occupied land the tank has been connected with any tank appurtenant to such dwelling house. therefore, on this ground the respondents are not entitled for any benefit in this case.12. with a view to consider the case of the respondents, which they have now developed as a new case, at this stage in the petition, we have considered the various provisions of the act of samvat 2008. sub-section (c) of section 2 of the act of samvat 2008 defines 'khudkasht' as under:(c) 'khudkasht' means land cultivated by the zamindar himself or through employees or hired labourers and includes sir land.sections 3 and 4 of the act of samvat 2008 read as under:section 3. vesting of proprietary rights in the state.-- (1) save as otherwise provided in this act and subject to the provisions of section 8, on and from a date to be specified by a notification by the government in this behalf (hereinafter referred to as the date of vesting) all proprietary rights in a village, muhal, land, chak or block in madhya bharat vesting in a proprietor of such village, muhal, land, chak or block as the case may be, or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor of such other person, to and vest in the state free of all encumbrances.(2) after issue of a notification under sub-section (1) no right shall be acquired in or over the land to which the said notification relates except by succession or under a decree or order of a court or under a grant of contract in writing made or entered into by or on behalf of the government; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the government in this behalf.(3) the government may by notification published in the gazette vary the date specified under sub-section (1) at any time before such date.section 4. consequence by the vesting of an estate in the state. (1) save as otherwise provided in this act when the notification under section 3 in respect of any area has been published in the gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, the consequences as hereinafter set forth shall from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensue, namely:(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 melagrounds 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;(b) all grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall, whether liable to presumption or not, determine;(c) all rents and cesses in respect of any holding in the property so vesting for any period after the date of vesting which, but for such vesting would have been payable to the proprietor, shall vest in the state and be payable to the government and pay payment made in contravention of this clause shall not be a valid discharge of the person liable to pay the same.explanation:-- the word 'holding' shall for the purpose of this clause be deemed to include also land give, on behalf of the proprietor, to any person on rent for any purpose other than cultivation.(d) all arrears of revenue, cesses or other dues in respect of any property so vesting and due by the proprietor for any period prior to the date of vesting shall continue to be recoverable from such proprietor and may, without prejudice to any other mode of recovery, be realised by deducting the amount from the compensation money payable to such proprietor under chapter v;(e) the interest of the proprietor so acquired shall not be liable to attachment or sale in execution of any decree or other process of any court, civil or revenue, and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of section 73 of the transfer of property act, 1882, ceases to be in force;(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.(2) 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.(3) nothing contained in sub-section (1) shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights.from bare reading of the aforesaid two provisions it is clear that except the khudkasht land other lands were vested in the state, therefore, as a natural consequences of the enforcement of the act of samvat 2008 the land of pond, which was not the land of khudkasht, will vest in the government and that is why in the khasra entries name of the state 'milkiyat sarkar raiyatwari' and 'pokhar nistar' has been mentioned. from these entries mentioned in the copies of khasra entries, which have been placed on record, it is clear that after the enforcement of the aforesaid act w.e.f. 2-10-1951 (initially from 25-6-1951) the rights of jagirdar or zamindar in the pond land came to an end and admittedly it became the land vested in the government. section 4 of the act of samvat 2008 has clarified this position more elaborately that all rights, title and interest of the proprietor in such area, including land of forest, trees, fisheries, wells (other than private wells), tanks, ponds, water channels, ferries, pathways village-sites, hats, and bazars and melagrounds shall cease to be the proprietory land and be vested in the government free from all encumbrances. therefore, obviously in this case on the enforcement of the aforesaid act, as the land was not of khudkasht land and it was the land of pond, the same has been vested in the government.13. it is very interesting in this case that after vesting of the land in the state the respondent filed an application in the year of 1990 for mutation of their name. the sdo morena vide order dated 28-12-1991 has elaborately discussed the case of the respondents and has rejected their application. in appeal the collector vide order dated 29-5-1993 while dismissing the appeal has also discussed the case of the respondents and thereafter additional commissioner in second appeal vide order dated 23-4-1994 has affirmed the orders passed by sdo and collector and dismissed the appeal holding therein that the land was the govt. land and was reserved for pond nistar purposes. it was also considered that even the names of the respondents have not been mentioned as encroachers and it was found that in any manner the respondents were not in a position to use the said land for their purposes as it was filled with water and was in the shape of a pond. therefore, it is clear that the case of the respondents was examined from every corner and it was held concurrently, that they were not having any rights in the land.14. we have also considered the order passed by the board of revenue, in which the member of board of revenue has not considered the impact of the operation of the provisions of the act of samvat 2008 and he was misled by the fact that suddenly the names of the respondents were deleted from the khasra entries and the name of the government was recorded and for that no order was passed by any competent officer. in our considered opinion, in view of the clear cut provisions of sections 3 and 4 of the act of samvat 2008 as a consequence, except the khudkasht land all land shall vest in the government. therefore, it was not necessary for any officer to pass any order thereon when the land was in the shape of a pond, it would automatically be vested in the government. when it was not in possession of the respondents, it was also not being used by them either for agricultural purposes or for any other purposes, it was not necessary for the government to pass any order. if the jagirdar or zamindar was having any lawful right in the land, he was free to file application under section 13 of the act of samvat 2008, but nothing was done. therefore the finding recorded by the member of board of revenue is contrary to law and is liable to be set aside, as the board of revenue has not considered the provisions of the act of samvat 2008 while deciding the revision. no law point was also involved in the revision, therefore, there was no legal occasion for the board to interfere in the concurrent finding of fact.15. thus, considering the legal position, as aforesaid, we do not find any force in the submissions made by learned counsel for the respondents that their name was recorded as jagirdar or zamindar between samvat 1996 to samvat 2007 and it was abruptly changed by the patwari without any lawful orders.16. considering the totality of the facts and circumstances of the case, this petition is allowed. the order passed by the board of revenue in revision no. rn-4-2/r/448/94 on 28-12-1994 is set aside and the orders passed by sdo, collector and additional commissioner are restored and it is held that it is the land recorded in the name of the government and reserved for the use as pond for the nistar of the villagers. however, in the facts and circumstances of the case, parties are directed to bear their own costs.

Judgment:
ORDER

A.K. Gohil, J.

1. By order dated 8-10-2003 passed by Division Bench of this High Court this petition has been registered as Public Interest Litigation.

2. Respondent No. 3 has filed an application before the Sub-Divisional Officer, Morena claiming that his name be mutated in the revenue records in survey number 280 and 281 situated at Village Badokhar, Morena, which were originally held by his father. He contended that the Patwari without any opportunity has deleted the name of his father and recorded the land in the name of the State. The enquiry was held by SDO, Morena, who rejected the application filed by respondent No. 3. SDO Morena elaborately held that the matter was investigated by Tehsildar, Morena and held an enquiry, in which he found that the land is recorded as 'Bhumi Pokhar Nistar' and nobody has made encroachment thereon as on the spot it is in the shape of a pond filled with water. S.D.O. found that both the khasra numbers were recorded in the name of Ramsingh and others from Samvat 1996 to 2007 and from khasra Samvat 2008 the land has been recorded in the name of 'Milkiyat Sarkar' and in other columns 'Pokhar Nistar' has been mentioned. It was also found that the land was not in possession of anybody and nobody was using the same as an agricultural land. Respondent Ramsingh claimed ownership right over the aforesaid land but he had not produced any document regarding his ownership right. Therefore, the SDO found that on the abolition of Zagirdari and after enforcement of the Madhya Pradesh Zamindari Abolition Act Samvat, 2008 (Act No. 13 of 1951) (hereinafter shall be referred to as the 'Act of Samvat, 2008'), the land not being Khudkasht land and being a pond came to be vested in the State and, therefore, the name of the State was entered in the relevant Khasra entries and since then the land is being treated as a Government land and after 40 years the respondents have filed application for mutation which cannot be accepted and in the absence of any proof of ownership of respondent No. 3 rejected the application on 28-12-98, against which the legal heirs of Phool Singh son of Ramsingh filed appeal before Collector.

3. The Collector in appeal vide order dated 29-5-93 affirming the finding recorded by SDO dismissed the appeal. The Collector has also observed that why respondent No. 3 has not filed application for correcting the entries for a period of forty years, no reason has been assigned. It is not a case of encroachment over the land. Against the order of Collector, Second Appeal was filed before the Additional Commissioner Chambal Division Gwalior. The Additional Commissioner also found that there is no evidence on record and no proof that the land belongs to the respondents and affirmed the findings of the SDO and Collector and dismissed the appeal. Against which the respondent filed a revision before the Board of Revenue. Vide order dated 28-12-94 on the strength of the Khasra entries from Samvat 1996 to 2007 since the name of one Ramsingh was recorded the Board of Revenue has not considered the provision of the Act of Samvat 2008 and merely saying that how the name of the Government was recorded in the Khasra entries, allowed the revision, set aside the orders passed by the three Courts below and directed the SDO Morena to mutate the name of the applicant in the revenue record. Against which this writ petition has been filed by as many as 12 villagers.

4. The learned Writ Court vide order dated 27-3-96 set aside the order passed by the Board of Revenue, dated 28-12-1994 (Annexure P-9) but in the Letters Patent Appeal the Division Bench has observed that why the State has not challenged the aforesaid order passed by the Board of Revenue. Though the Division Bench vide order dated 8-10-2003 set aside the order passed by learned Single Judge as without jurisdiction but directed that the petition be treated as Public Interest Litigation petition and be listed for hearing on merits, that is how the petition has been registered as Public Interest Litigation.

5. In this PIL, respondent No. 1-State and legal representatives of respondent No. 3 Phool Singh have filed their separate reply. The State has supported the order passed by SDO, Collector and Additional Commissioner and same is the stand of the State Government in the reply. In the reply the State has also objected that in the documents placed before the Court nowhere it has been mentioned that Ramsingh, who was the father of Phool Singh, was the then Jagirdar or Zamindar. Even in the Khasra entries the status of Ramsingh as Jagirdar/Zamindar has not been mentioned. Nothing has been mentioned about the status of Shyamlal whether he was son of Ramsingh or he was also having the status of Jagirdar or Zamindar. Further contention of the State Government in nutshell is that the aforesaid Khasra numbers are recorded as Pond and it was never the land of Khudkasht. Even if he was Zamindar or Jagirdar, it was not the land of Khudkasht as has been defined under the provisions of the Act of Samvat 2008.

6. The private respondent No. 2 to legal representatives of deceased respondent No. 3 have also filed their return. In the return the stand of the respondent is that Jhinguriya (deceased) was Zamindar of Village Badokhar, District Morena and the land bearing survey Nos. 280 and 281 was the self cultivated land of Jhinguriya, but the respondents have not produced any proof on record that Jhinguriya was the Zamindar of Badokhar village or Ram Singh and Phool Singh are the same persons those who belong to the family of Jhinguriya, who was the Zamindar. Therefore, it is stated that the order passed by Board of Revenue is justified and no case is made out to interfere in the order passed by Board of Revenue.

7. We have heard the learned Counsel for the parties. Shri Brijesh Sharma, learned Govt. Advocate drew our attention on the application filed by Phool Singh for mutation on 14-6-1990. In the application nowhere it has been mentioned that Ram Singh was his father and he was Jagirdar or Zamindar of Village Badokhar nor it was mentioned that the land was being used by their ancestors as Khudkasht land or that the same was in their possession, therefore, Bhumiswami rights be conferred on him and it be mutated accordingly in his name in the revenue record. In fact, if he was claiming any right under the Zagirdari Abolition Act of Samvat 2008, as per the provisions even for Khudkasht land he had to file an application as per Section 13 of the Act of Samvat 2008. The application was to be filed by the persons those who were claiming property right in any property within a period of two months and they were also entitled to file Civil Suit for establishing their rights but admittedly from Samvat 2008 (right from 1951) till 14-6-1990 they had not filed any application for claiming any right under the Act of Samvat 2008, therefore, certainly any party cannot wake up after 40 years and a fine morning may say that the land belongs to him and Bhumiswami rights be conferred on him.

8. It was argued by Shri D.P. Singh, Advocate on behalf of the respondents that the Board of Revenue was justified in considering the case of the respondents in a proper perspective and the Government's name was mutated abruptly without there being any occasion, whereas before Samvat 2008 the land was recorded in the name of Ram Singh. He further submitted that all tanks and wells on occupied land belong to Jagirdar but as per the definition of 'Occupied Land' in the Act of Samvat 2008 it was not the land in dispute which was in the nature of occupied land.

9. First of all we have perused the application filed by the respondent Phool Singh (dead) which was filed on 14-6-90. There is no dispute that the aforesaid application was filed after 40 years. In the revenue record Government's name was mentioned in Samvat 2008 (1951) but this application was filed on 14-6-90. It is also admitted position on record that in the application for mutation in the land nothing has been mentioned that Ram Singh was his father or he was Zamindar/Jagirdar or it was Khudkasht land or their ancestors were using the same or cultivating it as Khudkasht land. Before the Sub-Divisional Officer, the statement of Phool Singh was recorded on 9-7-1991. In his statement he has admitted that the land is recorded now as 'Shashkiya Pokhar'. Therefore, Patta of that land be granted to him, as he is in possession over the land and he is willing to pay the rent or fees as per the Government rate. The same statement was given by Basudev and Rambau. Therefore, from the application of respondents it is clear that he had not claimed Bhumiswami rights or mutation in the land on the basis of the 'Khudkasht land' under the Abolition of Jagirdari Act, but they have claimed Bhumiswami rights on the basis of possession which was not found proved in their favour, as the land was found in the shape of a pond and it was also found that it was not a cultivated land.

10. In the Khasra entries status of Jhinguriya as Zamindar has also not been mentioned and the admitted position from the khasra entries is that in all the khasras which have been produced on behalf of the respondents the status of the aforesaid two survey Nos. 280 and 281 has been mentioned as 'Pokhar'. More so, in the khasra entries it has not been mentioned that it was the land being used as Khudkasht and details of any crop or agricultural operations have also not been mentioned. Therefore, from the perusal of the aforesaid documents it is clear that in those documents nowhere it has been mentioned that it was the land of Jagirdar or it was a Khudkasht land or even if it was in the nature of Pokhar (Pond), it was involved in some kind of agricultural operations therein.

11. Now in the arguments the respondents have made alternative claim before this Court. Initially he has submitted that it was Khudkasht land and subsequently he submitted that the tanks and wells situated in occupied land belong to Jagirdar. In Section 5 of the Act of Samvat 2008 the private wells have been mentioned but tanks have not been mentioned. Here in this case the dispute is not about the well but is about the tank and in the definition of occupied land the tank has been connected with any tank appurtenant to such dwelling house. Therefore, on this ground the respondents are not entitled for any benefit in this case.

12. With a view to consider the case of the respondents, which they have now developed as a new case, at this stage in the petition, we have considered the various provisions of the Act of Samvat 2008. Sub-section (c) of Section 2 of the Act of Samvat 2008 defines 'Khudkasht' as under:

(c) 'Khudkasht' means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land.

Sections 3 and 4 of the Act of Samvat 2008 read as under:

Section 3. Vesting of proprietary rights in the State.-- (1) Save as otherwise provided in this Act and subject to the provisions of Section 8, on and from a date to be specified by a notification by the Government in this behalf (hereinafter referred to as the date of vesting) all proprietary rights in a village, muhal, land, chak or block in Madhya Bharat vesting in a proprietor of such village, muhal, land, chak or block as the case may be, or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor of such other person, to and vest in the State free of all encumbrances.

(2) After issue of a notification under Sub-section (1) no right shall be acquired in or over the land to which the said notification relates except by succession or under a decree or order of a Court or under a grant of contract in writing made or entered into by or on behalf of the Government; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the Government in this behalf.

(3) The Government may by notification published in the Gazette vary the date specified under Sub-section (1) at any time before such date.

Section 4. Consequence by the vesting of an estate in the State.

(1) Save as otherwise provided in this Act when the notification under Section 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, the consequences as hereinafter set forth shall from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensue, namely:

(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 melagrounds 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;

(b) all grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall, whether liable to presumption or not, determine;

(c) all rents and cesses in respect of any holding in the property so vesting for any period after the date of vesting which, but for such vesting would have been payable to the proprietor, shall vest in the State and be payable to the Government and pay payment made in contravention of this clause shall not be a valid discharge of the person liable to pay the same.

Explanation:-- The word 'Holding' shall for the purpose of this clause be deemed to include also land give, on behalf of the proprietor, to any person on rent for any purpose other than cultivation.

(d) all arrears of revenue, cesses or other dues in respect of any property so vesting and due by the proprietor for any period prior to the date of vesting shall continue to be recoverable from such proprietor and may, without prejudice to any other mode of recovery, be realised by deducting the amount from the compensation money payable to such proprietor under Chapter V;

(e) the interest of the proprietor so acquired shall not be liable to attachment or sale in execution of any decree or other process of any Court, Civil or Revenue, and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of Section 73 of the Transfer of Property Act, 1882, ceases to be in force;

(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.

(2) 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.

(3) Nothing contained in Sub-section (1) shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights.

From bare reading of the aforesaid two provisions it is clear that except the Khudkasht land other lands were vested in the State, therefore, as a natural consequences of the enforcement of the Act of Samvat 2008 the land of Pond, which was not the land of Khudkasht, will vest in the Government and that is why in the Khasra entries name of the State 'Milkiyat Sarkar Raiyatwari' and 'Pokhar Nistar' has been mentioned. From these entries mentioned in the copies of khasra entries, which have been placed on record, it is clear that after the enforcement of the aforesaid Act w.e.f. 2-10-1951 (initially from 25-6-1951) the rights of Jagirdar or Zamindar in the pond land came to an end and admittedly it became the land vested in the Government. Section 4 of the Act of Samvat 2008 has clarified this position more elaborately that all rights, title and interest of the proprietor in such area, including land of forest, trees, fisheries, wells (other than private wells), tanks, ponds, water channels, ferries, pathways village-sites, hats, and bazars and melagrounds shall cease to be the proprietory land and be vested in the Government free from all encumbrances. Therefore, obviously in this case on the enforcement of the aforesaid Act, as the land was not of Khudkasht land and it was the land of pond, the same has been vested in the Government.

13. It is very interesting in this case that after vesting of the land in the State the respondent filed an application in the year of 1990 for mutation of their name. The SDO Morena vide order dated 28-12-1991 has elaborately discussed the case of the respondents and has rejected their application. In appeal the Collector vide order dated 29-5-1993 while dismissing the appeal has also discussed the case of the respondents and thereafter Additional Commissioner in Second Appeal vide order dated 23-4-1994 has affirmed the orders passed by SDO and Collector and dismissed the appeal holding therein that the land was the Govt. land and was reserved for Pond Nistar purposes. It was also considered that even the names of the respondents have not been mentioned as encroachers and it was found that in any manner the respondents were not in a position to use the said land for their purposes as it was filled with water and was in the shape of a pond. Therefore, it is clear that the case of the respondents was examined from every corner and it was held concurrently, that they were not having any rights in the land.

14. We have also considered the order passed by the Board of Revenue, in which the member of Board of Revenue has not considered the impact of the operation of the provisions of the Act of Samvat 2008 and he was misled by the fact that suddenly the names of the respondents were deleted from the khasra entries and the name of the Government was recorded and for that no order was passed by any Competent Officer. In our considered opinion, in view of the clear cut provisions of Sections 3 and 4 of the Act of Samvat 2008 as a consequence, except the Khudkasht land all land shall vest in the Government. Therefore, it was not necessary for any officer to pass any order thereon when the land was in the shape of a pond, it would automatically be vested in the Government. When it was not in possession of the respondents, it was also not being used by them either for agricultural purposes or for any other purposes, it was not necessary for the Government to pass any order. If the Jagirdar or Zamindar was having any lawful right in the land, he was free to file application under Section 13 of the Act of Samvat 2008, but nothing was done. Therefore the finding recorded by the Member of Board of Revenue is contrary to law and is liable to be set aside, as the Board of Revenue has not considered the provisions of the Act of Samvat 2008 while deciding the revision. No law point was also involved in the revision, therefore, there was no legal occasion for the Board to interfere in the concurrent finding of fact.

15. Thus, considering the legal position, as aforesaid, we do not find any force in the submissions made by learned Counsel for the respondents that their name was recorded as Jagirdar or Zamindar between Samvat 1996 to Samvat 2007 and it was abruptly changed by the Patwari without any lawful orders.

16. Considering the totality of the facts and circumstances of the case, this petition is allowed. The order passed by the Board of Revenue in Revision No. RN-4-2/R/448/94 on 28-12-1994 is set aside and the orders passed by SDO, Collector and Additional Commissioner are restored and it is held that it is the land recorded in the name of the Government and reserved for the use as pond for the Nistar of the villagers. However, in the facts and circumstances of the case, parties are directed to bear their own costs.