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SA No.09/2015

HIGH COURT OF MADHYA PRADESH : AT JABALPUR

SECOND APPEAL No.09/2015

Vijay Kumar
S/o Shri Gendimal Sachdev,
aged about 45 years,
R/o Khaleswar, Umaria,
District Umaria (M.P.) Appellant/
Plaintiff

1. The State of Madhya Pradesh


through Collector Umaria,
District Umaria (M.P.)

2. Van-Mandal Adhikari, State


of Madhya Pradesh Umaria,
District Umaria (M.P.)
Respondents/
Defendants

…..............................................................................................................

Present:- Hon'ble Shri Justice C.V. Sirpurkar


..................................................................................................................
Shri Ashok Lalwani, counsel for the appellant.
Shri Devesh Jain, Government Advocate for the
respondent/State.
..................................................................................................................

JUDGMENT
(12-12-2017)

1. This second appeal is directed against the judgment dated


17.12.2014 passed by the Court of II Additional District Judge,
Umaria in Civil Appeal No.88-A/2014. By this judgment
learned ADJ, Umariya had set aside the judgment dated
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29.07.2008 passed by II Civil Judge Class-I, Umaria in Civil


Suit No.80-A/2006. By judgment dated 29.07.2008 Civil Suit of
the plaintiff/appellant for setting aside the order dated
17.07.2006 passed by Collector, Umaria, was allowed and
plaintiff/appellant was declared Bhumiswami in possession of
the disputed land and the defendants/respondents were
restrained from interfering with the possession of the
appellant/plaintiff of that land. Land survey no.1195
admeasuring 2.49 acres and survey no.1196 admeasuring 4.36
acres situated at village Chhattan Camp, Patwari Circle No.48
and Tehsil Bandhavgarh is disputed in this case.
2. As per plaintiff's case, disputed land earlier belonged to
the State of Madhya Pradesh. At the time of partition of the
country, Gedilal @ Gendimal, father of the plaintiff/appellant
Vijay Kumar (hereinafter referred to in this judgment as
'appellant') had come to Umaria from Sindh, Pakistan. Since, he
had no means of livelihood, he made an application to Naib
Tehsildar Bandhavgarh, District Umaria, for allotment of land.
Accordingly, by order dated 28.02.1961 passed by Naib
Tehsildar Umaria, disputed land was granted to him on lease.
The factum of aforesaid lease was recorded at serial no.95 of
the guard book. Gedimal was in possession of the disputed land
as Bhumiswami till his death in the year 1998. He constructed
8-10 feet high boundary wall around the disputed land in his life
time. No one ever objected to his possession or construction of
the boundary wall during his life time. After the death of his
father, the appellant has been in possession of the disputed land
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as Bhumiswami. Thus, the appellant and his father had been in


possession of the disputed land without any objection from any
quarter for a period of about 45 years. However, on complaint
made by Dhaniram Mehra, the Collector, Umaria took the order
dated 28.02.1961 in suo motu revision and issued a notice dated
13.10.2004 to the appellant wherein it was stated that the
disputed land comprised in reserved forest and no authority had
jurisdiction to allot it on lease. Therefore, the appellant was
directed to show cause as to why the mutation of aforesaid land
in his favour be not cancelled. The appellant replied to the
same; however, by impugned order dated 17.07.2006 in exercise
of powers under section 50 of the Madhya Pradesh Land
Revenue Code, the Collector, Umariya set aside the order dated
28.02.1961 passed by Naib Tehsildar, Bhandavgarh granting
lease to the appellant. Therefore; it was prayed by the plaintiff
that the order dated 17.7.2006, passed by Collector, Umariya be
set-aside and name of Gedimal, father of the plaintiff be
restored as Bhumiswami in the Government record.
3. The case of the respondent/defendant State before the trial
Court was that the disputed land has been recorded in the
revenue record as forest land. On 28.02.1961, no lease could
have been awarded to the appellant because in the year 1960-61
the Tehsildar was posted at Bhandavgarh. The entry made at
serial no.95 in the guard book on 28.02.1961 is in different ink
and different handwriting. The disputed land has large trees
growing upon it. Neither appellant's father nor appellant was
ever in possession of the aforesaid land. The land was
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transferred in the year 1976 by respondent no.2 District Forest


Officer, Umariya to Forest Development Corporation, Project
Circle Umaria, for the purpose of plantation. Accordingly,
Forest Development Corporation planted trees on the disputed
land. The land has been in possession of forest development
corporation ever since. Therefore, the Collector, Umaria, by
impugned order dated 17.07.2006, recorded a finding to the
effect that the entry in serial no.45 of the guard book was forged
and cancelled the lease on the ground that no land comprised in
reserved forest could have been given on lease on the basis of a
forged entry in the guard book. Therefore, the plaintiff has no
title in the disputed land. Even in the record of rights for the
year 53-54, 54-55 and 58-59, the disputed land has been
recorded as forest land. No revenue officer had jurisdiction to
grant such land on lease. There is no boundary wall upon the
disputed land.
4. After the trial, learned Civil Judge held that the appellant
was Bhumiswami in possession of the disputed land till the
year 1998 on the basis of the lease granted to his father on
28.02.1961 by Naib Tehsildar, Bhandavgarh. The plaintiff has
been in possession of the same as Bhumiswami since then. The
Collector had no jurisdiction to take up the order dated
28.02.1961 in suo motu revision after a lapse of 45 years. He
was not justified in setting aside the order dated 17.07.2006 in
spite of inquiry report of Sub-Divisional Officer, Bhandavgarh
to the effect that Dhaniram Mehra, on the basis of whose
complaint the matter was allegedly taken up in suo motu
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revision had never made such a complaint. The respondent/State


had failed to prove that the relevant entries in the guard book
were forged. The Sub-Divisional Officer had also found that in
the inquiry report dated 28.05.2005 that the disputed land was
not forest land. It was granted to appellant's father Gedimal on
lease. It did not belong to District Commercial and Industrial
Centres either. In the letters written by Circle Manager, Project
Circle, Forest Development Corporation, Umaria, to the
Collector, it has been stated that there is no record available
indicating that disputed land belonged to Madhya Pradesh State
Forest Development Corporation. Respondent no.3 Forest
Development Officer has also stated in his report that the
disputed land is outside the limits of reserved forest. The
Commissioner appointed by the Court had found that a part of
the disputed land was encircled by a boundary wall. In these
circumstances, the Collector, Umaria was not justified in setting
aside the order dated 28.02.1961 and cancelling the lease
granted to the appellant's father. Thus, the impugned order
dated 17.07.2006 passed by the Collector, Umaria was not
legally sustainable and was set aside. The trial Court passed a
decree for declaration of title and injunction in favour of the
appellant/plaintiff.
5. The respondents/defendants challenged the judgment and
decree dated 29.07.2008 in regular civil appeal no.88-A/2014.
The Appellate Court set aside the judgment and decree by
impugned judgment dated 17.12.2014 holding that in the years
1953-54, the land was recorded in the revenue records as being
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in possession of one Deen Mohammad Musalmaan of


Mohanpuri. Thus, it is not clear as to how the land could have
been leased out to appellant's father Gedimal. Likewise, the trial
Court was not justified in recording the finding that the land
was not comprised in reserved forest. The land comprised in
reserved forest could not have been granted on lease to
appellant's father. Therefore, its mutation in the name of
appellant's father Gedimal was void. It was also found that even
at present, the trees are standing on the disputed land. The
plaintiff had failed to prove his case. Consequently, the
judgment and decree dated 29.07.2008 passed by the trial Court
was set aside and the order of the Collector dated 17.07.2006
was restored.
6. The defendant/respondent/State has challenged the
appellate judgment and decree dated 17.12.2014 in this second
appeal, which was admitted by this Court by order dated
30.07.2015 on the following questions of law:-
"(i) Whether the judgment and decree dated
17.12.2014 passed by the first appellate Court is
non-est because the order impugned dated
17.07.2006 had been set aside by a competent
Tribunal on 31.10.2012 ?
(ii) Whether the respondents have failed in not
apprising the first appellate Court that the order
dated 17.07.2006 which was impugned in the suit,
has been set aside and it had rendered the first
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appeal infructuous and the first appellate Court has


passed the judgment in an infructuous appeal ?"
7. The sole ground that has been raised on behalf of the
appellant/plaintiff during arguments is that appellant Vijay
Kumar had challenged the order dated 17.07.2006 passed by the
Collector before Commissioner, Rewa Division in Case
No.681/revision/2005-06. The order passed by Additional
Commissioner, Rewa dated 16.10.2006 in aforesaid revision
petition was challenged by him before the Revenue Board,
Gwalior in Revision No.2072-(iii)/06. During the pendency of
regular civil appeal before the learned Additional District
Judge, aforesaid criminal revision no. No.2072-(iii)/06 was
allowed by the Revenue Board of Madhya Pradesh, Gwalior by
its order dated 31.10.2012 and order of Additional
Commissioner, Rewa Division dated 16.10.2006 and impugned
order dated 17.07.2006 passed by Collector, Umaria were set
aside. Thus, the regular civil appeal no.88A/2014 had become
infructuous on 31.10.2012. However, the
respondent/defendant/State did not bring aforesaid fact to the
notice of learned Additional District Judge; therefore, the
judgment and decree dated 17.12.2014 came to be passed by
learned Additional District Judge, in an infructuous appeal.
Therefore, it is non-est. In these circumstances, the impugned
judgment and decree dated 17.12.2014 passed by the first
appellate Court is liable to be set aside.
8. Learned Government Advocate for the respondent/State
on the other hand, has countered the arguments of learned
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counsel for the appellant mainly on the grounds that the relief
prayed in the plaint in the civil suit was for declaration of title
and injunction against interference in possession of the plaintiff
on disputed land. Only civil Court has jurisdiction to try such
suit. In these circumstances, a regular civil appeal could not
become infructuous simply because the order of the Collector
passed in the parallel revenue case, was set aside. Inviting
attention to paragraphs numbers 18, 19 and 20 of the judgment
of the first appellate Court, learned Government Advocate for
the respondent/State has contended that the Revenue Board
decide revision and set aside the order of the Collector, Umaria
on 31.10.2012. The first appellate Court decided the regular
civil appeal on 17.12.2014. Thus, the order of the Revenue
Board had been passed more than two years before the date of
the judgment of the appellate Court. It was plaintiff's suit and
his appeal; therefore, it was the duty of the plaintiff to have
brought to the notice of the first appellate Court that such an
order has been passed by the Revenue Board. However,
plaintiff/appellant failed to bring the order of Revenue Board to
the notice of the appellate Court.
9. Learned Government Advocate for the respondent/State
has invited attention of the Court to the judgment rendered by
Supreme Court in the case of Rohini Prasad and Others Vs.
Kasturchand and Another, (2000) 3 SCC 668, wherein, it has
been held that the determination of the question of title is the
province of the civil Court and unless there is any express
provision to the contrary, exclusion of the civil Court cannot be
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assumed or implied. In the proceedings under Section 250 of the


M.P. Land Revenue Code, the revenue authority has no
jurisdiction to go into the question of title. He has also placed
reliance upon the judgment of the Supreme Court in the case of
State of H.P. Vs. Keshav Ram and Others, (1996) 11 SCC
256 wherein, it has been held that entry in revenue records
recording somebody's name would not create or extinguish title
in favour of the person concerned. Learned counsel for the
respondent has also placed reliance upon the judgment rendered
by a co-ordinate Bench of this Court in the case of Shanti Bai
and Anothers Vs. Phooli Bai and Others, wherein, it has been
observed that a mutation entry does not confer title upon
anyone. Therefore, it has been prayed that this second appeal
be dismissed.
10. The appellant has moved an application in this second
appeal under Order 41 Rule 27 of the CPC (I.A.No.7345/2015)
for taking on record, copy of order dated 31.10.2012 passed by
the Revenue Board as additional evidence.
11. Learned Government advocated has opposed the
application on the ground that no reason has been assigned in
the application under Order 41 Rule 27 of the CPC, as to why
the appellant had failed to bring aforesaid order to the notice of
the appellate Court.
12. This Court shall first consider the application under order
41 rule 27 CPC.
13. The relief clause of the plaint has prayed for two
substantive relieves:
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(a) The order dated 17.07.2006 passed by the Collector,


Umaria in respect of land survey no. 1195 admeasuring 2.49
acres and survey no. 1196 admeasuring 4.36 acres situated in
village Chattan Camp, Tehsil-Bhandavgarh, District-Umaria be
declared null and void and the name of Gedimal, father of the
plaintiff be directed to be restored as Bhumiswami in
government record.
(b) A permanent injunction be issued against the
defendant/State not to demolish the boundary wall encircling
the disputed land and not to interfere with the possession of the
plaintiff theron.
14. Thus, the suit was not filed for declaration of the plaintiff
as Bhumiswami of the disputed land. It was filed specifically
for the purpose of declaring the order dated 17.07.2006 passed
by the Collector, Umaria as null and void. At any rate, cloud
over the title of the plaintiff for the disputed land arose only
after the notice dated 13.10.2004 was issued to the plaintiff
culminating in passing of the impugned order dated 17.07.2006.
In fact it was order dated 17.7.2006 that gave cause of action
for the suit.
15. Thus, it cannot be said that the judgment and decree of
declaration of title and injunction was independent of the fate of
order dated 17.07.2006 and had no bearing upon the decree of
the trial Court especially where in addition to the relief of
declaration of title and injunction, the trial Court has also
declared the order dated 17.07.2006 null and void. The relief of
declaration of title and injunction was granted consequent upon,
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to the declaration of the order dated 17.07.2006 null and void.


Thus, the order of the Revenue Board dated 31.10.2012 would
fall in the category of the document which this Court requires to
be produced to enable it to pronounce the judgment. Thus, by
virtue of sub-Rule 1 (b) of Rule 27 of Order 41, the application
under Order 41 Rule 27 of the CPC (I.A.No.7345/2015)
deserves to be allowed; notwithstanding the fact that the
appellant has failed to assign any reason for his failure to
produce it before the first appellate Court.
16. Consequently, application under Order 41 Rule 27 of the
CPC (I.A.No.7345/2015) is allowed and the copy of the order of
the Revenue Board (which is an undisputed document) setting
aside the order of the Collector dated 17.07.2006, is taken on
record on the cost of Rs. 5,000/- payable by the appellant to the
State.
17. As already observed herein above, the plaintiff had not
asked for the relief of injunction. Nevertheless, the trial Court
went ahead and declared the appellant as Bhumiswami in
possession of the disputed land. In the opinion of this Court the
trial Court exceeded its jurisdiction in doing so. Likewise, the
judgment of the first appellate Court was passed in ignorance of
the order the Revenue Board dated 31.10.2012, which had
rendered the appeal infructuous making the judgment of first
appellate Court non-est. The first appellate Court had also failed
to take not of the fact that the trial Court had exceeded its
jurisdiction by granting a decree for declaration of title. The
fact of the matter is that by pronouncement of the order of the
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Revenue Board 31.10.2012, cause of action for the suit had


vanished. As such, both questions of law framed by this Court
must be answered in affirmative.
18. Consequently, the judgment dated 29.07.2008 passed by
the Court of II Civil Judge Class-I, Umaria in Civil Suit No.80-
A/2006 and judgment dated 17.12.2014 passed by the Court of
II Additional District Judge, Umaria in Civil Appeal No.88-
A/2014, are set aside. The matter is remitted back to the trial
Court for fresh consideration in the light of the order of the
Revenue Board dated 31.10.2012 passed in Revision No.2072-
(iii)/2006.
19. The parties shall bear their own costs throughout.

(C.V. Sirpurkar)
Judge

b
Digitally signed by BIJU BABY
Date: 2017.12.14 23:15:56
-08'00'
HIGH COURT OF MADHYA PRADESH : AT JABALPUR

SECOND APPEAL No.09/2015

Vijay Kumar

Vs.

State of Madhya Pradesh and another

JUDGMENT

Post for : 12/12/2017

(C.V. Sirpurkar)
Judge