Criminal Appeal No. 768 OF 2007 (Arising out of SLP (Crl.) No.2371 of
Dr. Arijit Pasayat, J
1. Challenge in this appeal is to the order passed by a learned
Single Judge of the Madhya Pradesh High Court dismissing the civil
appeal filed by the appellant under Section 100 of the Code of Civil
Procedure, 1908 (in short the 'CPC' ). The appeal was dismissed
summarily at the admission stage holding that no substantial question of
law is involved.
2. Learned counsel for the appellant
submitted that several questions of law are involved.
3. Learned counsel for the
respondent on the other hand submitted that there is no substantial
question of law involved.
4. Background facts in a nutshell
as projected by appellant are as follows:
5. The present case relates to a land measuring 3.23 acres belonging to
the ancestors of Rao NihaI Karan Jamindara Bada Ravala of Indore and
later on was a part of a religious and educational trust. The appellants
are its trustees. The land in dispute is an important place where the
appellant trust is carrying out annual Dussehra Puja even prior to
independence. The Zamindar family used to perform puja from generation
to generation. There was no dispute whatsoever raised about the said
land upto 1969. The respondent was merely a vegetable seller who used to
collect vegetables and fruits from the land on contract from the trust.
6. In 1969, Government issued a
notice for ejectment under Section 248 of the M.P. Land Revenue Code (in
short 'the Code') claiming the land to be a land of the Government and
the appellant was dispossessed.
7. The Panchnama dated 12.6.1975
shows that the land in dispute was handed over to the Government by none
else than the father of the respondents herein i.e. the original
8. An application for adjudication
of right and title of the appellant was made before the Sub Divisional
Officer, Indore, who was a competent authority under Section 57 of the
9. Section 57 of the M.P. Land
Revenue Code reads as under:
"57. State ownership in all lands. - (1) All lands belong to the State
Government and it is hereby declared that all such lands, including
standing and flowing water, mines, quarries, minerals and forests
reserved or not, and all right in the sub-soil of any land are the
property of the State Government:Provided that nothing in this section
shall, save as otherwise provided in this Code, be deemed to affect any
rights of any person subsisting at the time of coming into force of this
Code in any such property.
(2) Where a dispute arises between
the State Government and any person in respect of any right under
sub-section (1) such dispute shall he decided by the Sub-divisional
(3) Any person aggrieved by any
order passed under sub-section (2) may institute a civil suit to Contest
the validity of the order within a period of one year from the date of
3-a) (a) Notwithstanding anything
in the Code of Civil Procedure, 1908 (V of 1908) no Civil Court shall,
in a civil suit instituted under sub section (3) on or after 24th
October, 1983, by order of temporary injunction disturb the person to
whom possession is restored under section 250 if such person furnishes a
reliable surety to recompensate the aggrieved party against any loss in
case the Civil Court grants a decree in favour of the aggrieved
:Provided that no surety shall he required to be furnished by a member
of a tribe declared to be an aboriginal tribe under sub-section (6) of
(h) Where a Civil Court by an order
temporary injunction disturbed the person referred to in clause (a) on
or after 24th October, 1983 but before the publication of Revenue
Department's Notification No.1-70-VII-N-2-83, dated 4th January, 1984
such order shall abate on such publication and the Tehsildar shall
restore possession to a person who is disturbed by such order.
(4) Where a civil suit has been
instituted under sub-section
(3) against any order, such order
shall not be subject to appeals or revision."
10. The Sub-divisional Officer decided the title and declared the
appellant as Bhumiswami of the land in dispute and also held that the
land was being used for Dussehra Puja by the appellant
11. In pursuance of the application
for restoration of possession in view of the aforesaid order dated
19.9.1974, the Tehsildar ordered restoration of possession to the
appellant. In pursuance of the said order of the Tehsildar, the Patwari
went to the spot and made a report that the place was in possession of
the plaintiff/respondent's father Shri Siddhanath. The appellant,
therefore, applied for an order before the Tehsildar. The Tehsildar on
the one hand passed an order seeking clarification from the Board of
Revenue about the area of the land and at the same time served a copy of
the appellant's application to Sri Siddhanath, father of the Respondent.
12. Siddhanath filed an appeal
challenging the order dated 19.9.1974 which was dismissed.
13. Aggrieved by the order of the
Collector, Siddhnath, father of the respondent filed a revision before
the Commissioner (Land Revenue) which was also dismissed on the ground
14. Aggrieved by the order of the
Commissioner, Siddhanath, father of respondent filed revision before the
Board of Revenue.
15. The Board of Revenue, vide it
order dated 26.8.1982 also dismissed the said revision filed by the
father of the respondent.
16. Siddhnath, father of the
respondent, in the meanwhile filed a civil suit No.259A/1981 for
declaration of title and for injunction against the appellant and Rao
Nihal Karan much after the expiry of one year from the date of order of
Sub-Divisional officer dated 19.9.1974. The suit was thus barred under
Section 57(3) of the M.P. Land Revenue Act, 1959 (in short the 'Act').
However, in the said suit the appellant filed an application for
discovery of documents. The father of the respondent did not file the
said documents and the said suit was dismissed on 17.8.1983 under Order
X1 Rule 21 CPC. Order XI Rule 21 CPC reads as under:
"Order XI. discovery and
Inspection.Rule 21. No-compliance with order for discovery - (1) Where
any party fails to comply with any order to answer interrogatories, or
for discovery or inspection of documents, he shall, if a plaintiff, be
liable to have his suit dismissed for want of prosecution, and, if a
defendant, to have his defence, if any, struck out, and to be placed in
the same position as if he had not defended, and the party interrogating
or seeking discovery or inspection may apply to the Court for an order
to that effect and an order may be made on such application accordingly,
after notice to the parties and after giving them a reasonable
opportunity of being heard.
(2) Where an order is made under
sub-rule(1) dismissing any suit, the plaintiff shall be precluded from
bringing a fresh suit on the same cause of action."
17. No further appeal or revision or
any other proceedings against the said order were opted and thus this
decision became final under Section 57 of the Act.
18. Siddhnath, father of the
respondent, not deterred by previous orders, filed present suit without
making the appellant or Rao Nihal Karan as a party to the said suit. In
the said suit Siddhnath claimed adverse possession against the State of
M.P. as will be evident from para 8 of the plaint. Respondent concealed
the institution of his previous suit dated 21.12.1981 as well as the
order of its dismissal dated 17.8.83.
19. Appellant herein who was not
made a party, applied for being made a party which was allowed and the
appellant was arrayed as Defendant No.3.
20. The State authorities in collusion with the respondent filed written
statement and admitted that the respondent was in possession since 1950.
21. As the appellant is a religious
and charitable trust, the trustees could not collect the relevant
documents of the ancestors of Zamindara Bada Ravala nor could timely
lead the evidence. However, the appellant filed some documents and memo
of appeal presented by Siddhnath which was allowed to be taken on
22. Thereafter the appellant filed
an application under Order XIII Rule 10 for proving the Memo of Appeals
filed against the order dated 19.9.1974 in which the respondent
specifically took the plea that he was in possession on behalf of the
23. The trial Court rejected the
24. The appellant also filed an
application under Order VI Rule 17 for amendment of the written
statement for inserting very important facts including the fact that the
dismissal order dated 17.8.83 of the previous suit make the present suit
as not maintainable. The same was also rejected.
25. The trial Court vide judgment
and order decreed the said suit on 31.1.1997.
26. Aggrieved by the judgment of the
trial Court, the appellant herein filed first appeal before the
Additional District Judge, being First Appeal No.3 of 1997.
27. The IIIrd Additional District
Judge, Indore vide its order dismissed the first appeal on 30.1 1999.
28. Second appeal was filed which as
noted above was dismissed.
29. In the Memorandum of appeal
following questions were formulated by the appellant:
(i) Whether the learned Courts below
have not erred in decreeing plaintiff-respondent's suit?
(ii) Whether the plaintiff's claim could be decreed without there being
any challenge to the decision of the Revenue Authorities for restoration
of possession to the appellant?
(iii) Whether the learned Courts below are right in accepting the
plaintiff's claim of possession in his own right or adverse possession?
(iv) Whether the learned First Appellate Court was right in rejecting
the applications, I.A. 5 and I.A. 6?
(v) Whether the decisions are rendered by wrongly placing burden of
proof on the appellant?
(vi) Whether the suit of the plaintiff was maintainable in view of the
dismissal under Order XI Rule 21 of his earlier Suit No. 359/81?
30. In our considered view the
questions (ii), (iii) and (vi) are prima facie substantial questions of
law which need to be
adjudicated. Accordingly we set aside the order of the High Court and
remit the matter to it for hearing the second appeal on the questions
(ii), (iii) and (vi) as quoted above. We make it clear that though prima
facie there appears to be substantial questions of law, the High Court
shall be free to decide the matter in accordance with law.
31. Appeal is allowed without any
orders as to costs.
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