Case: Kedar Prasad Vs. Jagdish Prasad and Ors

1. The Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaran Ka Pradan Kiya Jana (Vishesh Upabandh) Adhiniyam, 1984 (for short the Adhiniyam) was enacted with the purpose of granting bhoomiswami rights to landless agricultural labour who were in possession of unoccupied land in the village. Section 3 of the Adhiniyam provides that an agricultural labour in possession of unoccupied land in a village as on 2nd October, 1984 would be granted such rights provided that he could not get rights for land exceeding two hectares; and that public land like burial ground, grazing land, skinning ground, bazaar land, etc. were exempted from this provisions. Sub-section (2) of Section 3 of the Adhiniyam makes it clear that the might can only be granted in the village in which the agricultural labourer resides. The Appellant herein filed an application before the competent authority, i.e., the Tehsildar praying that he is in possession of five bighas of land falling in Khasra No. 109/5 (kha) situated in Village Kheria Raiju, Tehsil Gohad, District Bhind, Madhya Pradesh, hereinafter referred to as the suit land and claimed bhoomiswami rights over the same. The Tehsildar vide order dated 2.3.1990 held that the Appellant is a landless labourer and granted him bhoomiswami rights over the suit land. 2. Respondent Nos. 1 and 2 filed an appeal before the SDO challenging the order of 2.3.1990. This appeal was dismissed on 13.10.1992. Thereafter, Respondent Nos. 1 and 2 filed revision petition before the Revenue Commissioner. When the revision petition was pending, Respondent Nos. 1 and 2 also filed a civil suit out of which the present proceedings arise in which they prayed for setting aside of the order dated 2.3.1990 granting bhoomiswami rights to the Appellant. They also claimed their title on the basis of adverse possession. 3. The Revenue Commissioner dismissed the revision petition on 17.3.1993 and upheld the bhoomiswami rights granted to the Appellant. 4. In the suit filed by Respondent Nos. 1 and 2, the Appellant filed counter claim claiming that he was in possession since more than 30 years. He claimed that his adverse possession had ripened to ownership. He also claimed bhoomiswami rights on basis of the order dated 2.3.1990. 5. The learned Trial Court dismissed the suit of the Plaintiffs and held that they had only proved the possession over the land only for 11 years from 1963 to 1973 and have failed to prove that they were in adverse possession. 6. As far as the case of the cross-objector (Appellant herein) is concerned, the Trial Court rejected the claim of adverse possession on merits and with regard to the order dated 2.3.1990 held that since the original order had not been placed on record, the Appellant would not claim title on the basis of the same. 7. Aggrieved by the judgment of the Trial Court, both sides filed appeals. The appeal filed by the Plaintiffs was dismissed, but the appeal filed by the cross-objector (Appellant herein) was allowed and it was held that he had bhoomiswami rights of the suit land pursuant to the order dated 2.3.1990. 8. It is pertinent to mention here that during the pendency of the appeal before the first Appellate Court, the Appellant had filed an application for leading additional evidence Under Order 41, Rule 27 of Code of Civil Procedure and had placed the order dated 2.3.1990 on record. 9. Aggrieved by the order of the lower Appellate Court, Respondent Nos. 1 and 2 filed second appeals before the High Court. The High Court has allowed these appeals basically on three grounds: (1) that the suit land is charnoi land (grazing land) and, therefore, was covered under the second proviso to Section 3 of the Adhiniyam and bhoomiswami rights over the same could not have been granted, (2) the High Court also observed that no opportunity had been given to the original Plaintiffs - Respondent Nos. 1 and 2 to rebut the evidence placed on record by the Appellant by way of additional evidence. (3) The High Court also held that Respondent Nos. 1 and 2 were at the most in possession of the suit land and, therefore, they could be evicted from the suit land by following the due procedure of law. 10. As far as the finding of possession is concerned, both the Trial Court and the first Appellate Court had found that the Plaintiffs were not in possession of the suit land. This was a pure finding of fact which could not have been set aside unless it is perverse or based on no evidence. The High Court without discussing any evidence has assumed that at best the Plaintiffs are in possession of the suit land. This presumption is not based on any material and, therefore, is liable to be set aside. 11. The second ground taken by the High Court is that the land is grazing land. In the plaint filed by Respondent Nos. 1 and 2, there is not even a single averment alleging that the land in question is grazing land. The Plaintiffs themselves were claiming bhoomiswami rights over this land. It appears that at some stage this land was entered as service land and, therefore, the High Court assumed that it was charnoi land. The High Court did not take into consideration the fact that the character of the land had been changed to Kabil Kasht which means cultivable land in the year 1986. Therefore, this finding of the High Court also cannot be upheld. 12. Lastly, the High Court has held that the Plaintiffs should have been given opportunity to rebut the additional evidence. We are afraid that this reasoning of the High Court is also erroneous. It is the Plaintiffs who had challenged the order dated 2.3.1990. It was their duty to place the order on record. If the order was not placed on record, adverse inference should have been drawn against the Plaintiffs. What can be the rebuttal to this document? It can only be the order of the higher authorities. Those two orders, i.e., the order of the SDO and the Revenue Commissioner have been placed on record. If there was any order of any higher authority, that should have been placed by Plaintiffs even during the course of these proceedings. This has not been done.

Decision:
1[ds]10. As far as the finding of possession is concerned, both the Trial Court and the first Appellate Court had found that the Plaintiffs were not in possession of the suit land. This was a pure finding of fact which could not have been set aside unless it is perverse or based on no evidence. The High Court without discussing any evidence has assumed that at best the Plaintiffs are in possession of the suit land. This presumption is not based on any material and, therefore, is liable to be set aside.11. The second ground taken by the High Court is that the land is grazing land. In the plaint filed by Respondent Nos. 1 and 2, there is not even a single averment alleging that the land in question is grazing land. The Plaintiffs themselves were claiming bhoomiswami rights over this land. It appears that at some stage this land was entered as service land and, therefore, the High Court assumed that it was charnoi land. The High Court did not take into consideration the fact that the character of the land had been changed to Kabil Kasht which means cultivable land in the year 1986. Therefore, this finding of the High Court also cannot be upheld.12. Lastly, the High Court has held that the Plaintiffs should have been given opportunity to rebut the additional evidence. We are afraid that this reasoning of the High Court is also erroneous. It is the Plaintiffs who had challenged the order dated 2.3.1990. It was their duty to place the order on record. If the order was not placed on record, adverse inference should have been drawn against the Plaintiffs. What can be the rebuttal to this document? It can only be the order of the higher authorities. Those two orders, i.e., the order of the SDO and the Revenue Commissioner have been placed on record. If there was any order of any higher authority, that should have been placed by Plaintiffs even during the course of these proceedings. This has not been done.