Chandrika Prasad Tiwari. Vs. the State of Madhya Pradesh. - Court Judgment

Excerpt:
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. this is the reasons why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the act would always remain first charge and shall be paid first out of the assets of the establishment notwithstanding anything contained in any other law for the time being in force. it is, therefore, reasonable to take the view that the statutory first charge created on the assets of the establishment by sub-section (2) of section 11 and priority given to the payment of any amount due from an employer will operate against all types of debts.in the instant case the sugar mill had pledged sugar bags with bank as security for repayment of loan. the attachment and sale of these sugar bags for realisation of p.f dues was challenged by the bank on ground that by virtue of the deeds of pledge executed by the sugar mills, the bank had become owner of the sugar bags and the same could not have been attached and sold for realisation of the amount due under the act.held, in the contract of pawn or pledges the pawnee/pledge has only a special property in the pledge but the general property remains with the pawner/pledgor and wholly reverts to him on discharge of debts. the right to property vests in the pledge only so far as necessary to secure his debt. therefore, the deeds of pledge executed by the management of the sugar mills as security for repayment of loan etc., did not have the effect of transferring of the ownership of the sugar bags to the bank and the recovery officer did not commit any illegality by attaching the same and the high courts was fully justified in directing payment of a portion of the sale price to the assistant commissioner for being appropriated towards the provident fund dues of the workers. section 11(2), 7-q & 14-b: provident fund dues priority in payment over all other debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of existing section 11 priority has been given to the amount due from an employer in relation to an establishment to which any scheme or fund is applicable including damages recoverable under section 14-b and accumulations required to be transferred under section 15 (2). the legislature was also aware that in case of delay the employer is statutorily responsible to pay interest in terms of section 17, therefore, there is no plausible reasons to give a restricted meaning to the expression any amount due form the employer and confine it to the amount determined under section 7-a or the contribution payable under section 8. if interest payable by the employer under section 7-q and damages leviable under section 14 are excluded from the ambit of expression any amount due from an employer, every employer will conveniently refrain from paying contribution to the fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in section 11 (2). it cannot be said that the amount of interest payable under section 7-q and damages leviable under section 14-b do not form part of the amount due from an employer for the purpose of section 11(2) of the act, and cannot, therefore, be treated as first charge on the assets of the establishment payable in priority to all other debts within the meaning of section 11 (2). 1. the appellant/plaintiff has directed this appeal under section 100 of the cpc being aggrieved by the judgment and decree dated 29.7.2008 passed by ivth additional district judge rewa, in regular civil appeal no.78-a/07 upholding the judgment and decree dated 30.4.07 passed by the ivth civil judge class-ii, rewa in civil original suit no. 172-a/2006, dismissing his suit for declaration and perpetual injunction filed against the respondent with respect of the revenue land bearing survey no.553 area 24 dismil situated in village chhijwar recorded in the name of respondent/state in the revenue record.2. the facts giving rise to this appeal in short are that the appellant herein filed the above mentioned suit against the respondent contending that some partition took place between his fore-father and and fore-father of ram prasad. in such partition, besides the other land, the aforesaid land bearing s.n.553 area 24 dismil (old no. 446) was given in the share of his fore-father. as per further averments after abolition of pavaidar rights vide dated 1.7.1954, such land was remained in cultivation of the appellant and on coming into force the m.p. land revenue code in 1959, by virtue of section 158 of the same, he has became the bhumi swami of such land but inspite giving notice to the respondent, his name was not recorded as bhumi swami in the record of rights, on which, he has filed the impugned civil suit for declaration and perpetual injunction with respect of such land.3. on behalf of the respondent, inspite the service of the notice neither appearance was given nor any written statement was filed, on which, an ex-parte evidence of the appellant was recorded in the matter. on appreciation of such evidence, the trial court after holding that mere on the basis of entries in the remark column of khasra showing the possession of the appellant over the disputed land, being made the same without any order of the competent revenue officer, it could not be inferred that the appellant has perfected any right or title of bhumi swami over such land, dismissed the suit.4. on challenging such judgment and decree of the trial court before the appellate court, on consideration, by affirming the same, the appeal has been dismissed, on which, the appellant has come forward to this court with this appeal.5. shri himanshu dwivedi,learned counsel for the appellant, after taking me through the pleadings of the plaint, evidence available on record and the exhibited papers, the khasra entries from ex.p/3 to ex.p/13 in which in the remark column possession of appellant is mentioned, argued that such material aspects have not been taken into consideration by the courts below with proper approach and his suit has been dismissed under wrong premises. according to him, he is coming in possession of the disputed land from the time of his fore- fathers and thereby he has perfected the title on it by adverse possession under the provision of the limitation act on completing the period of thirty years in possession of such land but both the courts have not examined the matter with this approach and, prayed for admission of this appeal on the proposed substantial questions of law mentioned in para 9(a) to 9(c ) of the appeal memo.6. having heard the counsel, i have carefully gone through the record of the courts below and also perused the impugned judgments. it is undisputed fact on record that the disputed land was ever recorded in the name of state of m.p and i have not found any document showing that at any point of time the disputed land was recorded in the name of the appellant or his fore-fathers. besides this, no other document is available on the record showing that at any point of time the possession of the land was given to the appellant or his fore-fathers by any pavaidar or any other competent authority. the entire argument of the appellant was based on exhibit p/3 to p/13 the khasra of the disputed land from the year between the period 1973-74 to 2001-2002 in which the land is recorded in the name of state of m.p. but in the column of remark, possession of the appellant is shown. as per the concurrent findings of the courts below based on appreciation of the evidence and the available circumstances such endorsement of possession in the column of remark of khasra are made without any order of the competent authority under the m.p. land revenue code and, therefore, mere on such entries in the remark column, no inference could be drawn in favour of the appellant for holding that he is in legal possession of such land and perfected his title by adverse possession or otherwise. in order to prove the adverse possession against the state, the plaintiff like the appellant was bound to prove the date of his entering in possession of land and also the date on which he or his fore- fathers have declared themselves to be the owner of such property in the knowledge of the respondent and its officials and remained in peaceful possession of such land under the hostile title of the respondent for thirty years without any interruption from the side of the respondent but as per concurrent findings of the courts below no such ingredients have been proved by the appellant in the present matter. on the contrary it appears from the impugned judgment that in order to obtain the patta of the aforesaid land by deeming the ownership of the respondent/state over such land, the appellant had initiated some proceedings before the revenue court and, when such patta was not granted in his name then the impugned suit was filed by him. so in such premises also the approach of the courts below holding that the appellant has not perfected his title over the land by adverse possession do not appear to be contrary to the record or the existing laws.7. apart the above, the courts below have given its findings against the appellant after taking into consideration the khasra entries including the entries made in the remark column of exhibit p/3 to p/13 and in view of the law laid down by the apex court in the matter of corporation of the city of bangalore v. m.pepalah and another- air 1989 sc 1809 , the concurrent findings of the courts below with respect of khasra entries, being findings of fact could not be interfered under section 100 of the cpc. so, in such premises also this appeal is not involving any substantial question of law on the basis of the available khasra exhibit p/3 to p/13 available on the record. 8. even otherwise, as per the concurrent findings of the courts below, the appellant has failed to prove the legal title and possession over the disputed land and, in the absence of any evidence showing the legal possession of the appellant over the disputed land or any right in that regard, in view of the law laid down by the apex court in the matter of gangu bai babiya chaudhary v. sitaram balchandra sukhtankar -air 1983 sc-742 which principle was also followed by this court in the matter of kamal singh v. jairam singh-1986(1) mpwn-116, the suit of the plaintiff could neither be decreed for declaration nor for issuing any interim injunction, as prayed by him.9. in view of the aforesaid discussion, i have not found any substance or circumstance in the matter giving rise to any substantial question of law requiring any consideration under section 100 of the cpc at this stage of the second appeal. consequently, this appeal being devoid of any such question, deserves to be and is hereby dismissed at the stage of motion hearing. there shall be no order as to the cost.

Judgment:
1. The appellant/plaintiff has directed this appeal under Section 100 of the CPC being aggrieved by the judgment and decree dated 29.7.2008 passed by IVth Additional District Judge Rewa, in regular civil appeal No.78-A/07 upholding the judgment and decree dated 30.4.07 passed by the IVth Civil Judge Class-II, Rewa in Civil Original suit No. 172-A/2006, dismissing his suit for declaration and perpetual injunction filed against the respondent with respect of the revenue land bearing Survey No.553 area 24 dismil situated in village Chhijwar recorded in the name of respondent/State in the revenue record.

2. The facts giving rise to this appeal in short are that the appellant herein filed the above mentioned suit against the respondent contending that some partition took place between his fore-father and and fore-father of Ram Prasad. In such partition, besides the other land, the aforesaid land bearing S.N.553 area 24 dismil (old No. 446) was given in the share of his fore-father. As per further averments after abolition of Pavaidar rights vide dated 1.7.1954, such land was remained in cultivation of the appellant and on coming into force the M.P. Land Revenue Code in 1959, by virtue of section 158 of the same, he has became the Bhumi Swami of such land but inspite giving notice to the respondent, his name was not recorded as Bhumi Swami in the record of rights, on which, he has filed the impugned civil suit for declaration and perpetual injunction with respect of such land.

3. On behalf of the respondent, inspite the service of the notice neither appearance was given nor any written statement was filed, on which, an ex-parte evidence of the appellant was recorded in the matter. On appreciation of such evidence, the trial court after holding that mere on the basis of entries in the remark column of Khasra showing the possession of the appellant over the disputed land, being made the same without any order of the competent revenue officer, it could not be inferred that the appellant has perfected any right or title of Bhumi Swami over such land, dismissed the suit.

4. On challenging such judgment and decree of the trial court before the appellate court, on consideration, by affirming the same, the appeal has been dismissed, on which, the appellant has come forward to this court with this appeal.

5. Shri Himanshu Dwivedi,learned counsel for the appellant, after taking me through the pleadings of the plaint, evidence available on record and the exhibited papers, the khasra entries from Ex.P/3 to Ex.P/13 in which in the remark column possession of appellant is mentioned, argued that such material aspects have not been taken into consideration by the courts below with proper approach and his suit has been dismissed under wrong premises. According to him, he is coming in possession of the disputed land from the time of his fore- fathers and thereby he has perfected the title on it by adverse possession under the provision of the Limitation Act on completing the period of thirty years in possession of such land but both the courts have not examined the matter with this approach and, prayed for admission of this appeal on the proposed substantial questions of law mentioned in para 9(a) to 9(c ) of the appeal memo.

6. Having heard the counsel, I have carefully gone through the record of the courts below and also perused the impugned judgments. It is undisputed fact on record that the disputed land was ever recorded in the name of State of M.P and I have not found any document showing that at any point of time the disputed land was recorded in the name of the appellant or his fore-fathers. Besides this, no other document is available on the record showing that at any point of time the possession of the land was given to the appellant or his fore-fathers by any Pavaidar or any other competent authority. The entire argument of the appellant was based on Exhibit P/3 to P/13 the khasra of the disputed land from the year between the period 1973-74 to 2001-2002 in which the land is recorded in the name of State of M.P. But in the column of remark, possession of the appellant is shown. As per the concurrent findings of the courts below based on appreciation of the evidence and the available circumstances such endorsement of possession in the column of remark of khasra are made without any order of the competent authority under the M.P. Land Revenue Code and, therefore, mere on such entries in the remark column, no inference could be drawn in favour of the appellant for holding that he is in legal possession of such land and perfected his title by adverse possession or otherwise. In order to prove the adverse possession against the State, the plaintiff like the appellant was bound to prove the date of his entering in possession of land and also the date on which he or his fore- fathers have declared themselves to be the owner of such property in the knowledge of the respondent and its officials and remained in peaceful possession of such land under the hostile title of the respondent for thirty years without any interruption from the side of the respondent but as per concurrent findings of the courts below no such ingredients have been proved by the appellant in the present matter. On the contrary it appears from the impugned judgment that in order to obtain the Patta of the aforesaid land by deeming the ownership of the respondent/state over such land, the appellant had initiated some proceedings before the revenue court and, when such Patta was not granted in his name then the impugned suit was filed by him. So in such premises also the approach of the courts below holding that the appellant has not perfected his title over the land by adverse possession do not appear to be contrary to the record or the existing laws.

7. Apart the above, the courts below have given its findings against the appellant after taking into consideration the khasra entries including the entries made in the remark column of exhibit P/3 to P/13 and in view of the law laid down by the Apex Court in the matter of Corporation of the City of Bangalore v. M.Pepalah and another- AIR 1989 SC 1809 , the concurrent findings of the courts below with respect of khasra entries, being findings of fact could not be interfered under section 100 of the CPC. So, in such premises also this appeal is not involving any substantial question of law on the basis of the available khasra exhibit P/3 to P/13 available on the record.

8. Even otherwise, as per the concurrent findings of the courts below, the appellant has failed to prove the legal title and possession over the disputed land and, in the absence of any evidence showing the legal possession of the appellant over the disputed land or any right in that regard, in view of the law laid down by the Apex Court in the matter of Gangu Bai Babiya Chaudhary v. Sitaram Balchandra Sukhtankar -AIR 1983 SC-742 which principle was also followed by this court in the matter of Kamal Singh v. Jairam Singh-1986(1) MPWN-116, the suit of the plaintiff could neither be decreed for declaration nor for issuing any interim injunction, as prayed by him.

9. In view of the aforesaid discussion, I have not found any substance or circumstance in the matter giving rise to any substantial question of law requiring any consideration under section 100 of the CPC at this stage of the second appeal. Consequently, this appeal being devoid of any such question, deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the cost.