SMT. SOORAJ AND ORS.

S.D.O. AND ORS.

NOVEMBER 22, 1994

[K. RAMASWAMY AND K.S. PARIPOORNAN, H.]

Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960- Sections 2(gg) and 46-Determination of holding of agricultural lands- Validity of-Civil Suit-Whether maintainable-Held, NO-Definition of family-Bhoomiswami rights-Claim of major daughters-Applicability of Hindu Succession Act.

One R who was the Bhoomidar of a total land of 41.49 ac;.es, died in 1960. The Sub-Divisional Officer, a competent authority under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 while fixing ceiling on the holding of the agricultural lands, determined that the widow of the deceased was entitled to only 10.38 acres of land and the rest of the land was declared to be 'surplus'. The appellants, the major daughters of the deceased challenged the validity of that order by filing a civil suit for declaration. They claimed their shares by operation of Hindu Succession Act.

The trial court dismissed the suit but, on appeal, it was allowed and the suit was decreed. In the second appeal, the High Court reversed the decree and confirmed the finding of the trial court.

In this appeal, the appellants contended that Bhoomiswami right being inheritable its devolution was governed by Section 164 of the Madhya Pradesh Land Revenue Code, but it should be subject to the operation of the provision of the Hindu Succession Act; that by operations of sub-section (2) of Section 4 of the Act, only the tenancy rights had been excluded from the operation and Bhoomiswami rights were not tenancy rights and, as such, Section 4(2) had become inapplicable; and that the appellants were entitled to succeed to the estate of their father by operation of Section 8 of the Hindu Successi'ln Act.

Dismissing the appeal, this Court

HELD: 1.1. The appellants in this case squarely come within 3rd A Clause of sub-section (2) of Section 4 of the Hindu Succession Act, namely, when the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 seeks to determine the holding of the agricultural lands by operation of sub-section (2) of Section 4.

The applicability of the Act shall stand excluded and should have no B effect on the operation of the Agricultural Holding Act, 1960. (689 D)

1.2. Under the provisions of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960, the surplus land shall stand vested in the State. The State has not been impleaded eo nvmine as a partydefendant to the suit nor notice under Section 80 of C.P.C. was issued C to the State. The Sub Divisional Officer, who passed the order is only a statutory authority under the Ceiling Act. Therefore, without impleading the State Government or the Collector and without issuing the notice to the Government as enjoined under Section 80, the suit itself is not maintainable and is liable to be dismissed on this ground.

(689 E, F) D

1.3. Even otherwise also, section 2 (gg) of the Act defines "family" means 'husband, wife and their minor children, if any". Admittedly, the appellants are major daughters and that, therefore, the only person who satisfies the definition of "family" is the widow of the Bhoomidar.

Accordingly, that determination of the holding as prescribed under the E Act has been made by a competent authority. Thereby, the appellants cannot get any right de hors the provisions under the Madhyll Pradesh Ceiling Act by operation of sub-section (2) of Section 4 of the Hindu Succession Act. (689 G, H)

2. Section 46 of the Ceiling Act, 1960 creates a bar to maintain any F civil suit to impugn any question settled or decision made or inatter dealt with by the Competent Authority under the Act. Though none of these questions have been raised nor dealt with by the courts below since they are pure questions of law untramelled by any question of facts this Court has adverted to and found that the suit is not maintainable. (690 A, C) G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1180 of 1984.

From the Judgment and Order dated 3.9.81 .of the Madhya Pradesh High Court in S.A.No. 354 of 1979.

. H

A Ranjit Kumar for the Appellants.

S.S. Khanduja for the Respondents.

The following Order of the Court was delivered:

This appeal by special leave arises from the judgment and decree of the High Court of Madhya Pradesh at Jabalpur in Second Appeal No. 354/79 dated 3.9.1981. The appellants are the plaintiffs. They are the major daughters of one Ratan Singh who was the Bhoomidar of the lands in Khasra Nos. 36, 54, 146, 151, 165, 258 and the respective Rakwas mentioned therein of a total of 41.49 acres. Ratan Singh died in 1960. The Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 had come into force which provides for fixation of ceiling on the holding of the agricultural lands. The first defendant, Sub-Divisional Officer, Rahli, Tehsil Rahli, determined that the widow ofRatan Singh was entitled to only 10.38 acres of land and the rest of the land was declared to be 'surplus' vide his proceedings dated 1.3.1976. The appellants challenged the validity of that order in Civil Suit No. 34A/76. The declaration sought therein was that "the plaintiffs pray that the suit of the plaintiff for declaration be decree and be declared that in the lands mentioned in paragraph 1, plaintiffs have 3/4th share and defendant No. 1 (the mother) has 114 share and the order dated 1.3.1976 passed by the S.D.O., defendant No. 1, is unlawful and illegal." The trial court dismissed the suit but, on appeal, the Second Additional District Judge, Sagar, allowed and decreed the suit. In the second appeal, the High Court reversed the decree and confirmed that of the trial court.

The High Court had followed the judgment of the Full Bench of the High Court in Nahar Hirasingh and Ors. v. Mst, Duka/hin and Ors., AIR

(1974) MP 141.

Sri Ranjit Kumar, learned counsel for the appellant contends that the Bhoomiswami right is inheritable and its devolution is governed by Section

164 of the Madhya Pradesh Land Revenue Code, but it should be subject to the operation of the provisions of the Hindu Succession Act; 1956. By operation of sub-sc:ction (2) of Section 4 of the Act, only the tenancy rights G have been excluded from the operation and Bhoomiswami rights are not tenancy rights but the one devolved by succession of ownership of the lands and, as such, Section 4 (2) has become inapplicable. Thereby the appellants are entitled to succeed to the estate of their father by operation of Section 8 - of the Hindu Succession Act. He places reliance on the decision of this Court in Bajaya V. Gopikabai and Anr., [1978] 2 sec 542 and Anant Kibe H and Ors. v. Purushottam Rao and Ors., [1984] Suppl. SCC 175.

In the view we take, !t is not necessary to consider the effect of the A above two decisions of this Court. Sub-section (2) of Section 4 of the Hindu Succession A"t reads thus:-

"(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing B for the prevention of fragmentation of agricultural holdings or for the fu:ation of ceilings or for the devolution of tenancy rights in respect of such holdings."

(emphasis supplied) c The appellant squarely comes within 3rd Clause of subsection (2) of Section 4, namely, when the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 seeks to determine the holding of the agricultural lands by operation of sub-section (2) of Section 4. The applicability of the Act shall stand excluded and should have no effect on the D operation of the Madhy Pradesh Ceiling on Agricultural Holdings Act, 1960. The question then is whether the suit as such is maintainable. It is seen that under the provisions of the Madhya Pradesh Ceiling on Agricultural Hold!ngs Act, 1960, the surplus land shall stand vested in the State. The State has not been impleaded eo nomine as a party- E defendant to the suit nor notice under Section 80 of C.P.C. was issued to the State. The first defendant is only a statutory authority under the Ceiling Act. Therefore, without impleading the State Government or the Collector and without issuing the notice to the Government as enjoined under Section 80, the suit itself is not maintainable p and is liable to be dismissed on this ground. Even otherwise also, Section 2 (gg) of the Act defines "family" means "husband, wife and their minor children, if any".

Admittedly, the appellants are major daughter and that, therefore, the only person who satisfies the definition of "family" is the widow of Ratan Singh. Accordingly, that G determination of the holding as prescribed under the Act has been made by a Competent Authority, namely, the first defendant. Thereby, the appellants cannot get any right de hors the provisions under the Madhy Pradesh Ceiling on Agricultural Holdings Act, 1960 by operation of subsection (2) of Section 4 of the Hindu Succession Act.

A Section 46 of the Madhya Pradesh Ceiling on Agricultural Holdings Act creates a bar to maintain anhy civil suit which reads thus:

"Save as expressly provided in this Act, no civil court shall have any jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, B decided or dealt with by the competent authority.''

Thereby, the legislative intention is that the proceedings initiated under the provisions of Madhya Pradesh Ceiling on Agricultural Holdings Act,

1960 shall be pursued only in the manner provided thereunder, namely, right of appeal and right of revision, and the jurisdiction of Civil Court has C been barred to impugn any question settled or decision made or matter dealt with by the Competent Authority under the Act. Thereby the civil suit also has been barred by operation of Section 46. Though none of these questions have been raised nor dealt with by the courts below since they are pure questions of law untrammelled by any questions of facts we have adverted to and found that the suit is not maintainable for these reasons.

D The appeal is accordingly dismissed but, in the circumstances, without costs.

A.G.

Appeal dismissed.