1 S.A. No. 170/2004 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 170/2004 ......... Appellants : 1. The State of Madhya Pradesh Defendants through Collector, Bhopal, (M.P.) 2. Additional Collector/Competent Authority, Urban Land Ceiling, Bhopal 3. Assistant Settlement Officer, Bhopal Versus ........ Respondents : 1. Sarju Bai W/o Imratlal Plaintiffs 2. Phool Singh S/o Imratlal 3. Arjun Singh S/o Imratlal 4. Govind Prasad S/o Imratlal 5. Balaram S/o Imratlal R/o Gram Amravad Khurd, Tehsil Huzur, District Bhopal ................................................................................................ Appellants - Smt. Sheetal Dubey, Government Advocate Respondents - Shri Vinod Kumar Mishra, Advocate ............................................................................................... J U D G M E N T (20/04/2011) 2 S.A. No. 170/2004 1. The State of M.P. and its functionaries have assailed the judgment and decree passed by learned two Courts below decreeing the suit of the plaintiffs for declaration and injunction in respect of certain land, description whereof has been mentioned in the plaint and which is the subject matter of the suit. According to the plaintiffs/respondents, the suit property was owned by one Imratlal whose sons are plaintiff no.2 to 5 while plaintiff no.1 Smt. Sarju Bai is her widow. The suit was filed on 01.05.2000. 2. According to the plaintiffs, after the death of Imratlal, they are possessing the suit property as owner. Further, it has been pleaded in the plaint that late Imratlal during his life time submitted Return under Section 6 of Urban Land (Ceiling and Regulation) Act, 1976 (for brevity “Act of 1976”) in Case No. 172/1989-90. The competent authority under the said Act on 5.6.1991 declared 2.33 acres to be a surplus land. Thereafter, objections were submitted by Imratlal and by deciding those objections, the competent authority passed an order declaring 1.59 acres land to be surplus land. In the master plan, the disputed land is shown to be an agricultural land. Further it has been pleaded that Imratlal in the year 1992 seriously fell ill and was also admitted in 3 S.A. No. 170/2004 the Hospital and ultimately he breathed his last on 24.6.1993. After the death of Imratlal, no notices were sent to the plaintiffs and they were not aware of the proceedings which were pending before the competent authority under the Act of 1976. 3. Further it has been pleaded in the plaint that while the suit property is in their possession as owner, the competent authority in ex parte directed to issue possession warrant against the deceased Imratlal and illegally without obtaining any possession prepared a document Exhibit D-2 mentioning that the possession of the suit property has been obtained on 14.2.2000 from Imratlal although the possession was never obtained and indeed the said document ex facie is illegal since in the year 1993 Imratlal had already died. 4. The defendants/appellants resisted the suit by filing written statement. 5. The learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit. The Appeal which was filed by the State of M.P and its functionaries has also been dismissed by the impugned judgment and decree. 4 S.A. No. 170/2004 6. In this manner, this second appeal has been filed by the State of M.P. and its functionaries/appellants. 7. This Court on 27.01.2005 has admitted this Second Appeal on the following substantial questions of law:- (i) “Whether, the Court below has mis-read the principal of law laid down in the case of Chandra Shekhar Vs. State of M.P. i.e. 2000(2) M.P.W.N. 96 ?” (ii) Whether the suit as framed was maintainable?” 8. The contention of Smt Sheetal Dubey, learned Government Advocate for the appellants is that Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter called as Repealing Act) came into force on 17.2.2000 and earlier to the date of its enforcement, possession on the disputed land was already taken by the appellants on 14.2.2000 and hence the learned two Courts below erred in substantial error of law in decreeing the suit of plaintiffs. Learned Government Advocate has further contended that suit itself is not maintainable as the same is barred under the Act of 1976. 5 S.A. No. 170/2004 9. On the other hand, Shri Mishra, learned counsel appearing for the plaintiffs/respondents argued in support of the impugned judgment and submitted that the suit was filed on 01.5.2000 viz. after repealing of the Act of 1976 and when the Repealing Act, 1999 came into force and if that would be the position there is no bar in bringing the suit of declaration and injunction by the plaintiffs if State of M.P. and its functionaries are jeopardizing their rights. Learned counsel further submits that looking to the findings rendered by the learned two Courts below holding that predecessor of plaintiffs Imratlal had died in the year 1993, the question of taking possession from him on 14.2.2000 does not arise and ex facie the document of taking possession from Imratlal is a concocted document. Hence, it has been submitted that this appeal be dismissed. 10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law No.1 11. I have gone through the decision of this Court in Chandra Shekhar (supra) and I am of the view that this judgment will not come in the way of the plaintiffs in decreeing their suit. This judgment simply says that on 6 S.A. No. 170/2004 account of coming into force of the Repealing Act of 1999, if the possession of the land which was declared surplus was not taken by the competent authority under the Act of 1976, the proceedings shall stand abated and the possession thereafter cannot be obtained. Thus, the crucial question for determination is that on which date the holder of the disputed land Imratlal had died. There is specific pleading of plaintiffs in para 7 of the plaint that he had died on 24.6.93. Although this fact has been denied by the defendants in the written statement but overwhelming evidence has been placed on record that in the year 1993 Imratlal had died. Even if this Court do not pay any heed to the evidence of plaintiff no.1 Smt. Sarju Bai and plaintiff No.4 Govind Prasad who are the wife and son of Imratlal respectively in respect to the date of death of Imratlal, the evidence of Ram Singh who is a village Chowkidar is very much important. Indeed, this witness has been examined on behalf of plaintiff but being a Village Chowkidar he owes a duty to keep the record of the inhabitants who had died in the Village. Specifically this Village Chowkidar had stated in para 3 that Imratlal had died 7 to 8 years ago (the statement of this witness was recorded on 31.1.01) which 7 S.A. No. 170/2004 would mean that somewhere in the year 1993-94, Imratlal had died. 12. The burden of proof was on the shoulders of the plaintiffs to prove that Imratlal had died in the year in the year 1993 and by placing overwhelming evidence of two plaintiffs as well as the evidence of Village Chowkidar they have proved that Imratlal had died in the year 1993 and thus onus shifted on the defendants to prove that Imratlal did not die in the year 1993 but died after 14.2.2000 when the possession was obtained from him (Imratlal) vide Exhibit D-2 on this date. But no cogent evidence has been placed on record in this regard by rebutting the plaintiffs' evidence that Imratlal had died in the year 1993. 13. Apart from this, in the present case, the defendants are the State of M.P. and its functionaries and they are possessing the entire record of the death and birth of the inhabitants of the Village and they cannot be permitted to take the defence on the basis of the abstract doctrine of onus of proof that it was for the plaintiffs to prove that Imratlal had died in the year 1993. Hence, it was for them to place those material documents on record in order to demonstrate that Imratlal had died after 14.2.2000 and not 8 S.A. No. 170/2004 in the year 1993. In this context, I may profitably place reliance on the decisions of the Supreme Court in Hiralal and others Vs. Badkulal and others AIR 1953 SC 225, Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others AIR 1968 SC 1413 and a decision of Privy Council T.S. Murugesam Pillai Vs. M.D. Gnana Sambandha Pandara Sannadhi and others AIR 1917 P.C. 6. These three decisions have been placed reliance by the Supreme Court in a later decision Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd. and Others AIR 2006 SC 3626. In para 51, the Apex Court while placing reliance on these three decisions has held that, a party is having best evidence in his possession should place before the Court irrespective of the fact that the burden of proof of that fact was not on him. It would be condign to quote para 51 of the said decision which reads thus:- “51. In Hiralal's case (supra), this court reiterated the observations of the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi where the Privy Council laid down the general rule of procedure that instead of relying on the abstract doctrine of onus of proof a party to the suit "desiring to rely upon a certain state of facts" ought not to withhold from the 9 S.A. No. 170/2004 court the written evidence in his possession. In Gopal Krishnaji Ketkar's case (supra) the observation in Murugesam Pillai (supra) was reiterated and it was observed: "Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof." S. P. Chengalvaraya Naidu (supra), was a situation of a fraudulent litigant basing his case on falsehood and withholding vital documents. Citibank (supra) merely relies on the observations made in Murugesam Pillai (supra) and Gopal Krishnaji Ketkar (supra), both of which say that it is not a sound practice for those "desiring to rely upon a certain state of facts to withhold from the court" the best evidence which is in their possession.” 14. The learned two Courts below after appreciating and marshalling the evidence have arrived to a conclusion that holder of the land Imratlal from whom it is stated that possession was taken on 14.2.2000, indeed had died in the 10 S.A. No. 170/2004 year 1993. This finding is a pure finding of fact which cannot be interfered with in this second appeal. 15. Hence, it is hereby held that holder of the land Imratlal had died in the year 1993 and the document Exhibit D-2 of taking possession by the defendants/State of M.P. from Imratlal on 14.2.2000 is a concocted document. At this juncture, this Court would like to state that in the present case it appears that the competent authority under the Act of 1976 has acted worst than a private litigant in order to grab the land of the plaintiffs defeating the provisions of Repealing Act of 1999. Needless to say, under Section 4 of the Repealing Act of 1999, the legal proceedings shall stand abated which were pending immediately before the commencement of the Act of 1976, before any court, tribunal or other authority. According to the proviso to this section, Section 4 would not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Act of 1976 insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority. Needless to say, the holder of the land Imratlal had died in 11 S.A. No. 170/2004 the year 1993 and, therefore, it cannot be said that from a dead person on 14.2.2000 the possession of land in question was obtained by the State of M.P. and its functionaries. Ex facie the said document Exhibit D-2 of taking possession from deceased Imratlal has been prepared in order to defeat the provisions so that plaintiffs may not take the advantage of Repealing Act of 1999. 16. Article 300A of the Constitution of India provides that no person can be deprived of property save by authority of law. Although right to hold property is not a fundamental right but protection has been given by the Constitution to the citizens that their property shall be protected and no citizen would be deprived of his property except by the authority of law. The Supreme Court in S.R. Ejaz Vs. T.N. Handloom Weavers' Cooperative Society Ltd. (2002) 3 SCC 137 has held that a citizen had a right to protect his property. In the case of S. .R. Ejaz (supra), a suit for eviction was filed by the landlord against the tenant and he took forcible possession of the tenanted premises. The tenant filed a criminal compliant on the same day but no action was taken and despite a representation made to the higher authorities, as the police had not taken any action, 12 S.A. No. 170/2004 the tenant filed a writ petition before the High Court at Madras. The High Court directed CB/CID to investigate the case. Thereafter, a charge sheet was submitted but later on the Government withdrew the criminal proceedings. In the meantime, the tenant also filed a suit within six months from the date of dispossession for restoration of possession under Section 6 of the Specific Relief Act. The Supreme Court decreed the suit for possession by holding that the Court accords legitimacy and legality only to take possession in due course of law and if forcibly the possession is taken, fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. In the present case also, since on paper only the possession has been shown to be taken from Imratlal on 14.2.2000 when he was already dead and, therefore, the action of the respondents who is the State of M.P. and its functionaries is apparently contrary to the protection given to every citizen to hold property under Article 300A of the Constitution of India. This Court had already held that document Exhibit D/2 dated 30.11.2001 by which it is said that possession has been obtained on 13 S.A. No. 170/2004 14.2.2000 from Imratlal is a concocted document because Imratlal had already died in the year 1993. The Chief Secretary of the State of M.P. is hereby directed to look after the matter and may proceed against the erring officer/ employees in this regard in accordance with law. 17. The Substantial Question of Law no.1 is thus answered in favour of the plaintiffs/respondents and it is hereby held that learned First Appellate Court did not err in construing the law laid down in the case of Chandra Shekhar (supra). Regarding Substantial Question of Law No.2 18. The Constitution of India under Article 300A has guaranteed every citizen that they shall not be deprived from the property save by authority of law. Admittedly, the civil suit was filed on 01.05.2000 viz. after the enforcement of the Repealing Act of 1999, for declaration and injunction because the State of M.P. and its functionaries (defendants) were trying to take possession of the disputed property from the plaintiffs jeopardizing their rights. Under Section 9 of the Civil Procedure Code also, the Civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly 14 S.A. No. 170/2004 or impliedly barred. Since the civil suit was filed on 01.05.2000 viz. after the commencement of the Repealing Act of 1999 repealing the Act of 1976 and because the rights of the plaintiffs were trying to be jeopardized by the defendants/appellants, hence, the civil suit as framed by the plaintiffs/respondents is maintainable. 19. The Substantial Question of Law No.2 is thus answered in favour of the plaintiffs/respondents and against the appellants/defendants. 20. Resultantly this appeal fails and is hereby dismissed with costs. Counsel fee Rs.5000/-, if pre-certified. Plaintiffs/respondents are also entitled to exemplary cost of Rs.10,000/- since unnecessarily they have been dragged to file the civil suit. 21. The Principal Registrar (Judicial) is hereby directed to send a copy of this judgment to the Chief Secretary, State of M.P. for taking appropriate action against the erring officer(s)/employees(s) in accordance to the law. (A.K. SHRIVASTAVA) JUDGE rao 15 S.A. No. 170/2004 Second Appeal No. 170/2004 20.04.2011 Smt. Sheetal Dubey, learned Government Advocate for the appellants. Shri Vinod Kumar Mishra, learned counsel for the respondents. They are heard on I.A. No. 12397/2010 which is an application to hear this appeal at an early date. Looking to the averments made in the application, the same is hereby allowed. At this juncture, learned counsel for the parties submit that the point involved is short, therefore, appeal itself be heard finally. Prayer is accepted. Order dictated. Signed and dated separately. (A.K. SHRIVASTAVA) JUDGE rao