Allowed

Bhogi Lal v. Kirtichand (Dead) LRs

Chhattisgarh HC14 Jan 2021SA/282/2010

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed a second appeal, holding that a Kotwar cannot acquire Bhumiswami rights over service land. Consequently, the respondent-defendant has no title, and the first appellate court erred in dismissing the plaintiff's claim for permanent injunction against dispossession.

What did the court decide?

The second appeal is allowed; the plaintiff is restrained from disposssession except by law; the defendant's legal representatives are restrained from interfering with the plaintiff's possession.

Bhogi Lal Vs Kirtichand (Dead) LRs — Partition | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.282 of 2010

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Judgment Reserved on :05.01.2021

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Judgment Delivered on:14.01.2021

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Bhogi Lal S/o Dirjodeep Chouhan, aged 45 years,
Occupation Cultivation, R/o Village Dongripali,
Tehsil Sarangarh, District Raigarh (CG)

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---- Appellant/Plaintiff

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Versus

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1. Kirtichand (Dead) through LR's

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(a) Budni Bai (died and deleted)

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(b) Suphal S/o Late Kirtichand, aged 50 years,

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(c) Gokul S/o Late Kirtichand, aged 45 years,

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All by Caste Ganda, R/o Village Dongripal P.S.
Baramkela, Tehsil Sarangarh, District Raigarh (CG)

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(d) Phul D/o Late Kirtichand (Wife of Bhagvatiya)
aged 52 years, Caste Ganda, R/o Jhikipali, Police
OutpostDongripali,P.S.Baramkela,Tehsil
Sarangarh, District Raigarh (CG)

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2. State of Chhattisgarh Through Collector Raigarh (CG)

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---- Respondents/Defendants

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For Appellant/Plaintiff : Mr.S.N.Nande, Advocate
For Res.No.1(b), (c) and (d): Mr.Roop Naik, Advocate
For Respondent No.2/State : Mr.Ravi Bhagat, Dy.G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Judgment

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1. The substantial questions of law involved,

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formulated and to be answered in this second appeal

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preferred by the appellant/plaintiff are as under:-

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“1. Whether in view of the finding recorded
by the first appellate Court in para 5 of

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the judgment regarding long, continuance,
uninterrupted possession of the plaintiff on
the suit land, the plaintiff is entitled to
a decree for permanent injunction?

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2.Whether the Courts below are justified in
non-suiting the plaintiff even after holding
that the construction of house on the
subject land is more than 70 years old and
the plaintiff is in settled possession of
the suit land/house since long?”

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[For the sake of convenience, the parties would
be referred hereinafter as per their status shown
in the suit before the trial Court].

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2. The plaintiff herein filed the suit for declaration of title and permanent injunction with regard to the suit land bearing Khasra No.111 admeasuring area

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0.069 hectare having a house structure situated
therein mentioned in Schedule 'A' appended with
plaint stating inter-alia that the plaintiff's
grandfather and the defendant's grandfather were
related to each other and in family settlement, the
plaintiff has occupied the suit land to construct
the house therein. However, the defendant's ancestor
working as village Kotwar (village servant) occupied
rest of the land at their Village Dongripali, Tahsil
and District Raigarh and since the suit land was
given to him by village Malgujar, family settlement
has been taken place between the plaintiff ancestors

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and the defendant ancestors, whereby the suit land
was given in possession of the plaintiff's ancestors
for constructing house on it, as such, the plaintiff
is staying in such house after construction along
with his family, though the plaintiff was entitled
for bhumiswami rights, but it has not been granted
to him, as such, the plaintiff claimed decree for
declaration of title on the basis of adverse
possession and also claimed decree for permanent
injunction.

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3. The defendant filed his written statement and denied the averments made in the plaint stating inter-alia that he has been granted bhumiswami rights being kotwar of the village and the plaintiff has no right and title over the suit land and possession, if any, is permissive and as such, the suit deserves to be dismissed.

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4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 21.01.2009, dismissed the suit holding that the plaintiff has failed to prove title over the suit land, therefore, he is neither entitled for declaration of title nor for permanent injunction. On appeal being preferred by the plaintiff, the first appellate Court by the impugned

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judgment and decree, partly interfered with the
judgment and decree of the trial Court and reversed
the finding of the trial on issue No.2 and held that
the plaintiff is in settled possession of the suit
land since lifetime of his grandfather and
constructed house, but possession of the plaintiff
is permissive, therefore, he is not entitled for
decree of declaration of title based on adverse
possession. Questioning the judgment and decree of
the first appellate Court, this second appeal under

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Section 100 of the CPC has been filed by the
appellant/plaintiff, in which two substantial
questions of law have been formulated by this Court,
which have been set-out in opening paragraph of this
judgment for sake of completeness.

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5. Mr.S.N.Nande, learned counsel for the

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appellant/plaintiff, would submit that the first

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appellate Court having held that the plaintiff is in
settled possession of the suit land and having
constructed house therein ought to have granted

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decree for permanent injunction if not the
declaration of title, as such, dismissal of entire
appeal after having reversed the finding of the
trial Court on issue No.2, the first appellate Court
clearly went wrong in not granting decree for

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permanent injunction in favour of the plaintiff, as
such, the appeal deserves to be allowed and decree
for permanent injunction in favour of the plaintiff
and against the defendant be granted.

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6. ON the other hand, Mr.Roop Naik, learned counsel for respondents No.1 (b), (c) and (d)/defendants would submit that the defendant has already been granted bhumiswami rights by competent revenue authority vide order dated 28.5.2004 (Ex.P-2) pursuant to order of this Court, as such, the first appellate Court is absolutely justified in holding that the plaintiff is neither entitled for decree of declaration of title nor for permanent injunction and the second appeal deserves to be dismissed.

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7. I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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8. The suit land is part of Khasra No.111 area 0.069 hectare on which the plaintiff is in settled possession by constructing house therein. The aforesaid finding recorded by the first appellate Court has become final as this finding is not under challenge. The plaintiff/appellant has preferred this second appeal stating inter-alia that despite

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the above finding recorded that the plaintiff is in
settled possession over the suit land by
constructing house therein for more than 60-70 years

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decree for permanent injunction ought to have been
granted in his favour.

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9. The suit land bearing Khasra No.111 area 0.069

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hectare is admittedly service land, which was given

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to Narsingh grandfather of original defendant
Kirtichand by the then Malguzar in lieu of service
rendered by him as Kotwar (village servant) and
since the defendant's grandfather Narsingh and the
plaintiff's grandfather Kirtan were brothers and
said Narsingh has allowed the plaintiff's
grandfather to occupy the suit land and to construct
house therein for his own use, which he has
constructed and after his death, the plaintiff is
now in possession of the suit land and continued in
possession. Defendant No.1 was Kotwar of village
Dongripali at the time of institution of suit and he
was in possession over the service land given by
ex-maljuzar.

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10.This Court in W.P. Nos.2632 of 2000 and 2064 of
2000 directed that bhumiswami right be granted to
Kotwars, who are in possession of service land and
accordingly, defendant No.1, who is in possession of

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other government land mentioned in the order dated
28.5.2004 (Ex.P-2) applied for grant of bhumiswami
right as per order of this Court, which was
ultimately granted to him by order dated 28.5.2004
and name of the Government was directed to be
deleted and name of defendant No.1 was directed to
be recorded as the suit land was service land and
defendant No.1 was Kotwar of village Dongripali on
that very date and thereafter, the dispute arose
between the parties leading to filing of the suit
for declaration of title as the defendant claimed
that it is service land and bhumiswami right was
conferred to him and therefore, the plaintiff has no
right and title over the suit land.

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11. It is appropriate to mention here that correctness of order passed in W.P. No.2632 of 2000 dated 30.10.2001 and in W.P. No.2064 of 2000 dated 3.5.2001 was referred to the larger Bench by doubting the correctness of it in the matter of Gambhir Das Panika v. Chairman, Board of Revenue, Chhattisgarh, Raipur (C.G.) and Ors. 1 and ultimately the Division Bench of this Court in Gambhir Das Panika (supra) held that bhumiswami right cannot be conferred on person holding service land as Kotwar through proprietor or Malguzar free of land revenue.

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1 AIR 2019 Chhattisgarh 1

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InGambhir Das Panika

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(supra), the following

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question was formulated:-

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“1. Whether a Kotwar (village servant)
holding service land under Section 183(1)
of the Chhattisgarh Land Revenue Code,
1959 can be granted bhumiswami right over
such service land in view of the provision
contained in Section 183(2) of the Code as
held in Chhabil Das W.P. No.2632 of 2000
(decided on 30-10-2001) (supra) and
Tikaram W.P.No.2064 of 2000 (decided on
3-5-2001 (supra)?”

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The Division Bench of this Court by answering the
question so formulated clearly held that the finding
that lands held by Ex-Kotwars as a grant from
malguzar would be saved to them as bhumiswami land

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is erroneous. It was observed as under:-

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“41. A conjoint reading of the provisions
contained in Sections 145 to 150 of the
MPLRC, 1954 makes it apparent that a person
holding service land as a Kotwar through the
proprietor or malguzar free of land revenue
can never become a bhumidhari, as he never
held the land as occupancy tenant in the
Mahakushal Region or as raiyat or raiyat
sarkar or a tenant either in the Mahakushal
Region or merged territories, therefore, the
status of Kotwar vis-à-vis the service land
remain a grant from the proprietor in lieu
of services rendered to the malguzar or
village.

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42. If the petitioners’ forefathers became
bhumidhari under the MPLRC, 1954 there is
absolutely no reason why their forefathers
or after their demise the present
petitioners did not move application for
conferral of bhumiswami rights under Section
150 of the MPLRC, 1954 or the CGLRC, 1959
for last about seven decades. There is no
proof that the petitioners or their
forefathers had ever paid the land revenue

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under Section 148 of the MPLRC, 1954. As a
matter of fact, this provision by itself
exposes the fallacy in the petitioners’
argument because a bhumidhari is required to
pay the same land revenue, which he was
paying in respect of lands held by him and
the same rent if he was paying rent in
respect of lands held by him. It is the
petitioners’ own case and it is the case of
all Kotwars who were enjoying service land
before coming into force the CGLRC, 1959
that they were exempted from payment of land
revenue.

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43. For all the above stated reasons, we are
of the considered view that Lalla Singh
Chouhan (ILR 2018 Chh 626) (supra) has not
laid down the correct law and the finding
that lands held by Ex-Kotwars as a grant
from malguzar would be saved to them as
bhumiswami land is erroneous particularly in
view of the provisions of Section 3 of the
Abolition Act, 1950 read with Sections 147,
148 and 150 of the MPLRC, 1954. Resultantly,
the orders/ judgments in the matters of
Chhabil Das (supra), Tikaram (supra) and
LallaSinghChouhan(supra)stand
overruled.”

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12. As such, the Division Bench of this Court in Gambhir Das Panika (supra) has clearly held that bhumiswami rights cannot be conferred on person holding service land as a Kotwar through proprietor or Malguzar free of land revenue. However, the Additional Tahsildar, Baramkela vide order dated 28.5.2004 (Ex.P-2) conferred defendant No.1 as bhumiswami.

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13. Since the decision on the basis of which bhumiswami rights were conferred to defendant No.1

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has already been overruled, defendant No.1 cannot be
held to be bhumiswami of the suit land/service land
and service land would go to the succeeding Kotwar
by the provisions of the Chhattisgarh Land Revenue
Code, 1959, therefore, defendant No.1 has no right
and title over the suit land on the basis of order
of the Additional Tahsildar, Baramkela dated
28.5.2004 (Ex.P-2) conferring bhumiswami rights to
him on the basis of order passed by this Court in
W.P. Nos.2632 of 2000 and 2064 of 2000.

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14.Since, defendant No.1 has no right and title
over the suit land and the first appellate Court has
clearly recorded the finding that earlier the
plaintiff's forefathers were in possession and
thereafter the plaintiff is in possession over the
suit land for last 70 years, particularly in view
of the fact that defendant No.1 has no right and
title over the suit land, he cannot interfere with
the possession of the plaintiff as the suit land is
no longer the land of defendant No.1, as such, the
plaintiff cannot be dispossessed from the suit
land/premises except in accordance with law.

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15.Accordingly, the impugned judgment and decree

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passed by the first appellate Court is partly
modified and it is held that legal representatives

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of defendant No.1 are restrained from interfering
with possession of the plaintiff and the plaintiff
would not be dispossessed from the suit
land/premises i.e. Khasra No.111 area 0.069 hectare
mentioned in Schedule 'A” annexed with plaint except
in accordance with law. Schedule 'A' annexed with
plaint be made part of decree. The substantial
questions of law are answered accordingly.

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16.The second appeal is allowed to the extent
indicated hereinabove leaving the parties to bear
their own cost(s).

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17.Appellate decree be drawn-up accordingly.

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Sd/-

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B/-

Bhogi Lal v. Kirtichand (Dead) LRs

Case brief

What is this about?

What did the court decide?

Bhogi Lal v. Kirtichand (Dead) LRs

Case brief

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What did the court decide?

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