1 S.A. No. 129/1995 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 129/1995 ......... Appellant : State of Madhya Pradesh through Collector, Sehore (M.P.) Versus ........ Respondents : 1. Ram Charan, S/o Shri Hameer Singh, aged about 78 years, 2. Prem Narayan, S/o Shri Ram Charan, aged about 38 years, 1 3. Radhey Shyam, S/o Shri Ram Charan, aged about 36 years, 4. Banwari, S/o Shri Ram Charan, aged about 30 years, 5. Lakhan, S/o Shri Ram Charan, aged about 32 years 6. Motilal, S/o Shri Kanhayalal Khati Respondents no.1 to 5 are residing at Village Ichchawar, Tahsil Ichchawar, District Sehore and Respondent no.6 residing at Village Chitawalia Lakha, Tahsil Ichchawar, District Sehore (M.P.) ................................................................................................ Appellant - Shri N.K. Agrawal, learned Government Advocate. Respondents - Shri Divesh Jain, Avocate. ............................................................................................... 2 S.A. No. 129/1995 Date of hearing : 05.07.2011 Date of judgment: . 07.2011 J U D G M E N T ( /07/2011) 1. This second appeal has been filed at the instance of defendant/State against the reversing judgment passed by the learned First Appellate Court decreeing the suit of plaintiffs/respondents. 2. Plaintiffs No.2 to 5 are the sons of Plaintiff No.1 Ram Charan, son of Hameer Singh. The case of the plaintiffs is that on the suit property which is agricultural land and the description whereof has been mentioned in the plaint is being possessed by them for the last 40 years from the date of the filing of the suit. Earlier the father of the plaintiff no.1 Ram Charan was possessing the suit property. In order to get the names of plaintiffs recorded in the revenue record, defendant no.2 Motilal executed a registered sale deed on 09.09.1971 in favour of plaintiffs but the Collector/Competent authority by holding that the transaction was in between 01.01.1971 and 07.03.1974 held the same to be illegal and void and was in contravention of the provisions of the M.P. Ceiling on Agricultural Holdings Act, 1960 (in short, the Act). The order of Collector was 3 S.A. No. 129/1995 assailed before the Commissioner who vide its order dated 15.6.1976 remanded the matter to the competent authority to compute the land in excess in accordance with the choice of holder. The Collector/competent authority again decided the matter by passing the same order which was passed by him earlier against which again an appeal was filed on 21.4.1982 before Commissioner which was dismissed against which the plaintiffs filed revision application before the Board of Revenue and the same was dismissed in default on 9.3.1983. 3. It is the further case of the plaintiffs that the holder of the land (defendant no.2-Motilal) alienated the suit property prior to coming into force of the amended Act and the alienation was not in contravention to the provisions which were prevailing on the date of the alienation i.e. 9.9.1971. Under the un-amended Act which was in force during the period of alienation, the holder was entitled to retain 75 acres of land and at that juncture the holder (defendant no.2-Motilal) was having only 63 acres of land and, therefore, it was not necessary for the Collector to declare the suit land as surplus. 4 S.A. No. 129/1995 4. Further, it has been pleaded by the plaintiffs that the entitlement of the family members of the holder (defendant no.2-Motilal) which has been computed by the Collector/competent authority has been wrongly computed in contravention to Section 7 of th Act and held that second wife of the holder-Motilal as well as his mother were not entitled to hold separate land although both of them were entitled under the said provision. 5. By amending the plaint, it has been specifically pleaded by the plaintiffs that the plaintiffs were possessing the suit property in their independent right of Bhumiswami. According to the plaintiffs, without holding any enquiry under Section 4(1) of the Act, the competent authority had passed the order on 8.12.1975. The order of the competent authority is null and void and is also contrary to the provisions of the Act. Hence on these pleadings, it has been prayed by the plaintiffs that the order of competent authority dated 8.12.1975 and 11.7.1977 be declared null and void and it be further declared that the plaintiffs are the Bhumiswamis having possession on the suit property and defendants be restrained from interfering in their possession. 5 S.A. No. 129/1995 6. The State Government who was arrayed as defendant no.1 filed the written statement denying the plaint averments by pleading that the impugned transaction of sale dated 09.09.1971 has been made in order to defeat the provisions of the Act and the impugned transaction is in contravention to Section 5 of the Act. 7. Despite the plaintiffs amended their plaint by raising legal objection that the order of the Collector is null and void since it is in contravention to Section 7 and 4(1) of the Act because the entitlement of the mother of the holder and his second wife was not taken into account, the written statement was not amended and these averments were not denied. 8. Learned Trial Court framed necessary issues and after recording evidence of the parties dismissed the suit of the plaintiffs. The plaintiffs assailed the judgment and decree of the learned Trial Court by filing First Appeal which has been allowed by the impugned judgment and decree by decreeing the plaintiffs’ suit. While allowing the appeal, the learned First Appellate Court found and gave findings as under:- 6 S.A. No. 129/1995 (1) The plaintiffs are in possession of the suit property since the time of their fore fathers for last 40 years and this has been found proved on the basis of umpteen documents filed by the plaintiffs which are un-rebutted and in this regard after marshalling the evidence from para 9 onwards to para 16. In para 15 the learned First Appellate Court further held that plaintiffs acquired Bhumiswami rights on the suit property against the holder of the land Motilal-defendant no.2 by adverse possession also. On the basis of umpteen documents including the receipt of payment of land revenue for last 40 years, it was held by the learned First Appellate Court that plaintiffs are in possession of the suit property for the last 40 years and they are also paying land revenue since then. The land revenue receipts have been filed which are collectively marked as Exhibit P/1; (2) in para 17 of the impugned judgment, learned First Appellate Court has held that impugned transaction of sale cannot be said to be in contravention of the Act or defeating any of the provisions of that Act. On the other hand, it was held that bonafidely the suit property was sold by defendant no.2-Motilal in favour of plaintiffs although they have already acquired Bhumiswami rights on it by adverse possession; (3) The learned First Appellate Court after considering various authorities of this Court from para 17 onwards and by considering the various provisions of the Act further held that the impugned transaction of sale was not in contravention of the Act or to defeat any of the provisions of the Act and; (4) from para 20 onwards it has been held by the learned First Appellate Court 7 S.A. No. 129/1995 that the suit of plaintiffs is not time barred. 9. Thus, the learned First Appellate Court by allowing the appeal of plaintiffs decreed their suit by setting aside the judgment and decree of learned Trial Court dismissing the suit. 10. It is pertinent to mention here that no substantial questions of law have been framed in respect of the findings rendered in the impugned judgment passed by the learned First Appellate Court on point no.1, 2 and 3 and thus those findings rendered by the learned First Appellate Court became final since this appeal has not been admitted on those points. 11. This Court on 2.2.2000 admitted the appeal on the following substantial questions of law:- (i) “Whether the suit filed by the respondents is barred by time?” (ii) “Whether the Civil Court had jurisdiction at the time the plaint was filed under the provisions of Section 46 of the M.P. Ceiling on Agricultural Holdings Act, 1960?” (iii) “Whether the subsequent amendment in Section 46 of the aforesaid Act, if any, 8 S.A. No. 129/1995 takes away the right of the respondents to file a suit?” 12. Respondent no.1 and 6 namely Ram Charan and Motilal have died during the pendency of this appeal and this was so expressed by learned counsel appearing for the respondents on 5.5.2009. Although learned State counsel took time on that day to file appropriate application to bring the legal heirs on record but till today no such application has been filed. However, the appeal does not abate for simple reason that legal heirs of respondent no.1 Ram Charan who are the respondents no.2 to 5 are already on record and respondent no.6 Motilal who was defendant no.2 appears to be formal defendant since the relief has been claimed in the plaint against the State Government- Defendant no.1 13. The contention of learned Government Advocate is that under Section 11(5) of the Act which was prevailing at the time of institution of the suit viz. 4.9.1984, the suit should have been filed within three months from the date of the order of the competent authority. Learned Government Advocate submits that the order of the competent authority was assailed by the plaintiffs/respondents by filing an 9 S.A. No. 129/1995 appeal before the Commissioner which was dismissed on 21.4.1982 against which they filed revision application before Board of Revenue which was also dismissed in default on 9.3.1983 (Exhibit P/9) and, therefore, the suit should have been filed within three months from this date 9.3.1983 under Section 11(5) of the said Act and since it has been filed on 4.9.1984, the same is ex-facie time barred and therefore, the suit be dismissed. 14. By addressing substantial questions of law no.1 and 2, learned Government Advocate further submits that looking to the bar under Section 46 of the Act which was prevailing on the date of filing of the suit, the Civil Court was not having any jurisdiction. However, learned Government Advocate frankly submitted while addressing substantial question of law no.3 that the amendment in Section 46 which took place in Section 46 on 1.11.1988 is not applicable in the present case since the suit was filed much earlier to the commencement of the amended Act as it was filed on 4.9.1984. Hence it has been prayed that by allowing this appeal, the suit of plaintiffs be dismissed. 15. On the other hand, Shri Divesh Jain, learned counsel appearing for the respondent-plaintiffs argued in support of 10 S.A. No. 129/1995 the impugned judgment and prayed that as per own showing of the defendant-State Government, the plaintiffs were not the party in the ceiling proceedings although they filed certain objections which were rejected and, therefore, the period of limitation of three months as envisaged under Section 11(5) of the un-amended Act would not be applicable on the plaintiffs because that provision provides for filing of the suit by any of party to the said proceedings and, therefore, by considering the various provisions of the Act as well as the law laid down by this Court in different case laws, the learned First Appellate Court rightly held that the suit is not time barred. 16. By replying the argument of learned Government Advocate on substantial question No.2 it has been submitted that under Section 46 of the un-amended Act, there is no absolute bar in filing the civil suit on the date when the plaint was presented by the plaintiffs and, therefore, there is no need to interfere in the impugned judgment and decree passed by the learned First Appellate Court and hence this appeal be dismissed. 17. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. 11 S.A. No. 129/1995 18. Before answering to substantial questions of law which were framed by this Court on 2.2.2000 which I have quoted herein above in para 11 of this judgment, I would like to mention here that while admitting the appeal, no substantial questions of law in respect of the findings rendered by the learned First Appellate Court in the impugned judgment in respect of point no.1 to 3 have been framed and thus those findings have become final. Regarding Substantial Question of Law No.1 19. On going through the record of the learned Trial Court and particularly the order of the competent authority (Exhibit P/19(c), this Court finds that before the competent authority the plaintiffs were not the party and the ceiling proceedings were initiated only against the holder of the land Motilal (Defendant No.2). True, certain objections were filed by the plaintiffs which were not accepted by the competent authority but they were not party to the ceiling proceedings. Since the plaintiffs were not party in the ceiling proceedings, the period of limitation of three months for filing the suit as envisaged under Section 11(5) of the un-amended Act which was prevailing on the date of filing of the suit was not applicable upon the plaintiffs because this provision enables 12 S.A. No. 129/1995 any party before the competent authority to file civil suit within three months from the date of the order to set aside the decision of the competent authority. For ready reference, it would be condign to quote sub-section (5) of Section 11 of the un-amended Act which was prevailing on the date of filing of the suit and which reads as under:- “11(5) The order of the competent authority under sub-section (4) shall not be subject to appeal or revision, but any party, may, within three months from the date of such order institute a suit in the civil Court to have the order set aside, and the decision of such Court shall be binding on the competent authority, but subject to the result of such suit if any, the order to the competent authority shall be final and conclusive”. 20. The plaintiffs were not the party to the ceiling proceedings before the competent authority under Sections 9 and 10 of the Act nor any notice was served on them as contemplated under sub-section 3 of Section 11 of the Act which pertains to publication of the draft statement. The plaintiffs were in possession since long (40 years prior to the date of filing of the suit at the time of their predecessors) and, therefore, it was incumbent upon the competent authority to serve notice on them and the proceedings 13 S.A. No. 129/1995 should be initiated against them also but they were not impleaded as a party to the proceedings. 21. The Single Bench of this Court in Jagat Singh Vs. State of M.P. (presided over by Hon'ble Shri Justice G.L. Oza as His Lordship then was) 1982 RN 373 has held that the period of limitation of three months contemplated under Section 11(5) would be applicable only to the parties to the ceiling proceedings before the competent authority and, therefore, the suit was held to be within limitation and by allowing the appeal of the plaintiffs of that case, the suit was decreed. In that case also certain objections were filed by the plaintiffs although they were rejected by the competent authority and even in that situation this Court held that merely the objections were filed by the plaintiffs which were rejected would not dis-entitle them to file the civil suit and the period of three months of filing suit was not applicable on the plaintiffs of that case. In the instant case also, the objections were filed by the plaintiffs which were rejected and, therefore, it was not incumbent upon them to file civil suit within three months as envisaged under Section 11(5) of the Act. This decision is squarely applicable in the present case because, in the present case also, the 14 S.A. No. 129/1995 plaintiffs were not the party and no notice was served on them, therefore, Section 11(5) of the Act enabling a party to file civil suit within three months is not applicable on the plaintiffs. 22. Earlier to the decision of Jagat Singh (supra) in an another decision Smt. Gulabrani Vs. State of M.P. 1973 M.P.L.J. SN 29, the Single Bench of this Court has held the same proposition of law that Section 11(5) of the Act would be applicable to the party to the proceedings only and it will not apply to a person to whom the notice of proceedings was not served. The same view was taken in a later decision of this Court in State of M.P. and another Vs. Lilabai and Others, 1998 RN 116. Thus, according to me, the plaintiffs were not bound to file civil suit within three months as envisaged under Section 11(5) of the Act. The order of Commissioner dismissing the appeal of plaintiffs is dated 21.4.1982 and that of Board of Revenue dismissing the revision in default is dated 9.3.1983 and within three years,on 4.9.1984 the civil suit has been filed. Thus, according to me, the suit is not time barred. 23. In a very casual manner without indicating as to how and in what manner the suit is barred by prescribed period 15 S.A. No. 129/1995 of limitation, the defendant-State Government in para 6 has pleaded that the suit is barred by time. 24. The substantial question of law No.1 is thus answered against the appellant and it is hereby held that the suit filed by the respondents was not barred by time. Regarding Substantial Question of Law No.2 25. On bare perusal of Section 46 of the Act which was prevailing on the date of filing of the suit, it is luminously clear like noon day that there was no absolute bar in filing the suit. In the instant case particularly when the plaintiffs were not the party in the ceiling proceedings they were competent to file the civil suit for a declaration that the order passed by the competent authority be declared null and void and the Civil Court had jurisdiction at the time of filing of the plaint i.e. 4.9.1984. For ready reference, it would be relevant to quote Section 46 which reads thus:- “46. Bar of jurisdiction of Civil Courts- Save as expressly provided in this Act, no Civil Court shall have any jurisdiction- (i) to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the competent authority; and 16 S.A. No. 129/1995 (ii) to grant stay in any case under this Act”. Thus on the date of filing of the plaint, the Civil Court was having jurisdiction. 26. The Substantial Question of Law No.2 is thus answered in affirmative against the appellant and in favour of the respondents/ plaintiffs. Regarding Substantial Question of Law No.3 27. Learned Government Advocate correctly submitted that the amended provisions of Section 46 which came into force with effect from 1.11.1988 is not applicable in the present case because the suit was filed much earlier to it, on 4.9.1984 and this provision is not having any retrospective effect. Hence, the amendment to this Section does not take away the right of the respondents to file the suit. 28. Substantial Question of Law No.3 is thus answered against the appellant and in favour of the respondents/plaintiffs. 29. For the reasons stated herein above, this appeal fails and is hereby dismissed. The impugned judgment and 17 S.A. No. 129/1995 decree passed by the learned First Appellate Court is hereby affirmed with no order as to costs. (A.K. SHRIVASTAVA) Judge rao