Piyushh Bhai Patel and Ors. Vs State Of Chhattisgarh and Ors.

This is plaintiffs second appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging the legality and sustainability of the impugned judgment and decree dated 05.09.2014 passed by learned 4^th Additional Judge, Bilaspur, of 1^st Additional District Judge, District Bilaspur, C.G. in Civil Appeal No. 57-A of 2014, arising out of judgment and decree dated 09.08.2012 passed by learned Civil Judge (Class-II), Kota, Bilaspur in Civil Suit No. 56-A/2007 whereby learned first appellate court dismissed the appeal affirming the judgment and decree passed by learned Trial Court.

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For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit No. 56-A/2007 before the trial court.

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Facts of the plaintiffs’ case as projected in the plaint are that land bearing P.H. No. 14, Khasra No. 85 (Paithu), admeasuring 0.352 hectares, situated at Village Kota, R.N.M., Tehsil Kota, was originally purchased by their ancestors under a registered sale deed dated 23.09.1932, along with other parcels of land. The said land was recorded in the name of Dayabhai Patel, the grandfather of plaintiffs Nos. 1 and 2, in the revenue records of the year 1955–56, as part of the firm “Dayabhai Khushalbhai”. Upon dissolution of the said firm, all movable and immovable assets situated within Tehsil Kota, including the disputed land, devolved upon Raojibhai, one of the partners, who continued in peaceful possession till his death on 03.11.1999. After his demise, the plaintiffs, being his legal heirs, claim to have inherited and remained in continuous possession and ownership of the said land. On 25.09.2006, Defendant No. 3 (Tehsildar) published a public notice in a local newspaper inviting objections regarding the proposed allotment of the disputed land to the Sahu Samaj, Kota. Upon inquiry, the plaintiffs came to know that the disputed land was erroneously recorded as Government Nazul land. Thereafter, the plaintiffs filed an application under Sections 115 and 116 of the Chhattisgarh Land Revenue Code before Tehsildar, Kota, seeking correction of the revenue entry. In Case No. 5A–6A/2006–07, Tehsildar passed an order dated 09.05.2007, directing correction of the records in favour of the plaintiffs. No appeal or revision was filed against the said order, which thus attained finality. The plaintiffs, therefore, instituted the civil suit seeking a declaration of title over the disputed land and permanent injunction restraining the defendants from interfering with their possession.

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The defendants, in their written statement, vehemently denied the plaintiffs’ claim and contended that the sale deed dated 23.09.1932 does not relate to the disputed land. It is stated that the said deed

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shows Natwarlal alias Lakshmi Prasad and Lalbhai as purchasers, whereas the revenue records of 1927–28 mention Shiv Prasad and others as landowners. Hence, the plaintiffs’ assertion that the land is ancestral property is false and misconceived. The defendants further pleaded that the revenue records of the year 1955–56 clearly show the disputed land as Government property, situated on the bank of Amrit Sagar Pond, whose water is utilized for irrigation. The plaintiffs, taking advantage of the vacant government land, have falsely claimed ownership and possession on the basis of a forged sale deed and a fabricated power of attorney. It is further pleaded that the order dated 09.05.2007, passed by the Tehsildar, Kota, is void ab initio, since the Tehsildar was not having jurisdiction to decide matters pertaining to correction of revenue entries of Government Nazul land, which falls within the authority of the Sub-Divisional Officer (Nazul Officer). The defendants also stated that the land in question was duly declared Government Nazul land in the year 1975, and has been continuously recorded as such for over three decades. Accordingly, the plaintiffs have no title or possession over the disputed land.

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Learned Trial Court on the basis of pleadings made therein, reply filed by the defendants, framed as many as three issues for consideration, recorded evidence of the parties and after considering the same, dismissed the civil suit filed by the plaintiffs holding therein tha t the plaintiffs failed to prove their title and ownership over the suit land. The judgment and decree passed by the Trial Court was challenged before the first appellate court, which also came to be dismissed affirming the judgment and decree of trial court. Hence, this second appeal.

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Learned counsel for appellants-plaintiffs would submit that both the courts below erred in recording a finding that the land, subject matter of the suit, bearing Khasra No. 85 measuring 0.352 hectares (Paithu) is a

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government land and further holding that the plaintiff could not able to prove his title over the suit land. Referring to Ext. P4-C, it is argued that the land, subject matter of the suit bearing Khasra No. 85 (Paithu) was purchased by the ancestors of plaintiffs from one Natwarlal vide registered sale deed dated 23.09.1932, since then plaintiffs are in possession through their ancestors continuously till the filing of the suit. Referring to the revenue records as filed along with plaint marked as exhibit, it is submitted that in the Khasra panchshala dated 31.08.1943, Ext. P-3, name of ancestor of plaintiffs Dayabhai Patel is mentioned as possessor of land bearing Khasra No. 84, 85 as also 87. Revenue entries made in the Missal of the year 1927-28 also name of seller Natwarlal is shown to be possessor of land bearing Khasra No. 85 (Paithu) of pond which was not considered and appreciated by the learned courts below in appropriate manner. When the plaintiffs came to know through paper publication that the land owned and recorded in the name of plaintiffs is going to be allotted to Sahu Samaj, plaintiffs have moved an application before the Tahsildar for correcting the revenue entries and after considering the ground raised therein and hearing the plaintiffs, Tahsildar passed an order for correction of revenue record of Khasra No. 85 situated at village Kota in the name of plaintiffs vide order dated 09.05.2007, Ext. P-1. He also referred to documents which is in the form of order of Tahsildar to submit that the Tahsildar thereafter has initiated the proceeding seeking permission to review of order Ext. P-1 of the Tahsildar, however, on the date of recording of proceedings of seeking permission, SDO(R) granted permission to Tahsildar for review without noticing plaintiffs, and accordingly the order Ext. P-1 passed by Tahsildar was reviewed. Copy of notesheet/ ordersheet of Tahsildar is filed as Ext. D-6. He contended that permission of review has been sought by other Tahsidar who joined subsequently. He lastly submits

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that the plaintiffs in the plaint have sought declaration of the order of Dy. Collector declaring the land bearing Khasra No. 85 to be Najul Land to be null and void as it was ordered without giving opportunity of hearing to the plaintiffs. He submits that before declaring the land as Najul land, plaintiffs or their ancestors who are possessor and title holder in the registered sale ought to have been given notice in this regard. Very important aspect escaped consideration of both the courts below. He contended that when title of plaintiffs is being challenged by the State government, the burden lies upon the defendant-State to proof it by placing admissible evidence in this regard which is missing.

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Learned State counsel opposes the submission of learned counsel for plaintiffs and would submit that both the courts below have recorded concurrent findings that the plaintiffs could not able to prove their title over the land, subject matter of the sale deed bearing Khasra No. 85, situated at village Kota, recorded as Paithu. He contended that in the written statement filed by the State Government, there is clear mention that on the date of execution of the alleged sale deed Natwarlal @ Laxmi Parsad was not owner of the subject land but it was recorded in the name of Shiv Prasad and others. Name of Natwarlal is shown only to be a person in possession of the suit property as per revenue records. He also contended that no admissible evidence is brought on record that the plaintiffs are legal representatives of the recorded owner Dayabhai Patel by placing any document or family tree. In Adhikar Abhilekh/ records of rights of the year 1955-56, disputed land is shown to be the land under water measuring 0.87 acres. It is not recorded in the name of Dayabhai as owner of the property/land. He also submits that the land, subject matter of the dispute is part of pond as it is being used for storing of water from other sources. The pond which is recorded in revenue record on the date of filing of written statement was

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also filled with water. He submits that as Natwarlal who executed the sale deed was not having any right or title over the land, he cannot transfer better title than he possessed. In support of his contention, he referred the provision of Section 55 of the Transfer of Property Act, 1882. Lastly he contended that the suit is filed for declaration of title over the land recorded as government land in revenue record (Najul land) and therefore the remedy available to the said person or plaintiffs in the case is before the State Government in terms of provisions of Section 57(2) of the Chhattisgarh Land Revenue Code, 1959.

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I have heard learned counsel for the parties and also perused the record of trial court as well as appellate court.

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This appeal was admitted on the following substantial questions of law.

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(i) Whether, the learned Courts below failed to take into consideration the sale deed Ext. P-4 & Ext. P-10 to hold that the plaintiffs through their predecessor were not the owner?

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(ii) Whether, both the Courts below misdirected itself to consider the document Ext. D-1 to hold the subject land is of State?

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Perusal of plaint as filed by the plaintiffs would show that it is filed for declaration of title and further declaration that it is the property in possession of plaintiffs bearing Khasra No. 85 measuring 0.352 hect. and further declaration was sought that the order of declaration of the land to be a government land/ Najul land to be null and void. In the relief clause, plaintiffs have not sought any relief of passing of an order by the Tahsildar in exercise of review jurisdiction whereby he set aside of his own order of correction of revenue entries for the reasons as mentioned therein. The order of Tahsildar under review is filed as Ext. D-6, perusal of which would show that he revealed that the order of correction of

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entries which he passed was of land recorded as Najul Land and for which he is having no jurisdiction to pass an order to correct revenue entries in name of private person and have sought permission from SDO(R) to review it. The SDO(R) granted permission to the Tahsildar for exercising his jurisdiction of review and accordingly on 30.07.2007 the Tahsidlar has passed an order setting aside its earlier order dated 09.05.2007. This order of Tahsildar was not put to challenge by the plaintiffs any further as provided under the Chhattisgarh Land Revenue Code, 1959 under Section 44 and 50 which are provisions of appeal and revision.

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Pleading made in the plaint is that the ancestors of plaintiffs Dayabhai has purchased the land vide registered sale deed dated 23.09.1932. Registered sale deed is Ext. P4-C. Perusal of contents of sale deed would show that it was executed by Natwarlal, it mentioned that he was acting as power of attorney holder and he was granted the power to sale the immovable property owned by owner of the land. However, name of executant of the power of attorney holder or the owner of the land is not mentioned in the sale deed, neither the power of attorney said to be executed in favour of Natwarlal is forming part of the record.

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The revenue record which is available is of the year 1927-28, it clearly records as the land bearing Khasra No. 85 is a land under water and under the column of ownership, name is mentioned as Shiv Prasad and others (Lambardar) (Ext. P-6). From the revenue document, which is filed by the plaintiffs as Ext. P-6 as also filed by defendants as Ext. D-1 & Ext. D-2, the land bearing Khasra No. 85 is shown to be under water (Paithu).

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Plaintiffs in support of their pleadings have examined Piyush Bhai as PW-1, Babulal Solanki as PW-2. In examination-in-chief which is filed in the form of affidavit under Order 18 Rule 4 CPC, he stated that his

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ancestors purchased the land in the year 1932 (23.09.1932) and thereafter it is recorded in his name. He stated that Dayabhai was his great grandfather. In cross-examination, in para 15, he admitted that in registry Ext. P4-C, there is no description of land of Khasra No. 85 specifically. However, he stated that in the body of the sale deed it is mentioned as Paithu. It is an open land, no construction was made over it. However, he further stated that it is being used as garbage pit. In para 19, he stated that the land subject matter of the suit is a pit which is filled by water in rainy season. He also admitted that he has not submitted any document of the firm of Dayabhai. In para 25, he admitted that the land Paithu is being used for animals for their drinking water and their bathing. It is also used for irrigation purpose. He also admitted that it is being used for irrigation for all twelve months. He has not made any application before the SDO(R) or Collector with regard to the land, subject matter of the suit. In para 33, he also admitted that he did not pay land revenue at any point of time. He has not got the land demarcated.

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Witness PW-2, Babulal Solanki, working as Munim in the firm of Raojibhai, in cross-examination stated that he could not able to mentioned about boundaries of the disputed land. He was aware that the name of plaintiffs entered in the revenue record, however, he has not seen the revenue record. He also stated that he is not aware about who has purchased the land prior to plaintiffs.

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The suit was filed for declaration of title by the plaintiffs based on the registered sale deed Ext. P4-C. It is not executed by recorded owner of the land but by one Natwarlal showing himself to be power of attorney holder of the original owner. Name of original owner is not mentioned in the sale deed to be owner of the said property, nor the power of attorney if any executed in favour of Natwarlal based upon which he executed

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the sale deed is produced before the Court as evidence. In absence of document showing that the Natwarlal was authorized to execute the sale deed being a power of attorney holder, it cannot be presumed that Natwarlal who was said to be executor of sale deed in favour of Dayabhai Patel was having any authority under law to execute the sale deed of the land bearing Khasra No. 85 situated at village Kota. As the plaintiffs failed to prove that Natwarlal was having any authority under law to execute the sale deed of the suit land to be recorded in the name of some other person and further considering the documents ie., Adhikar Abhilekh, Ext. D-1, Khasra Panchshala 1952-1957, Ext. D-2, Missal Jamabandi of the year 1928-29, Ext. D-7 and record of rights (Adhikar Abhilekh of the year 1959), Ext. D-8, in the opinion of this Court, learned Courts below have not committed any error of law in recording a finding that plaintiffs failed to prove their title over the suit land. It is settled law that a person cannot transfer any better title then he possess. The title or right of Natwarlal over the said land to execute the sale deed is not proved and therefore he was not having any right or title to execute the sale deed on the date of its execution. In above facts of the case, no title is transferred in favour of Dayabhai.

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Admittedly the land is recorded as ‘under water’ which continued in revenue record till 1955-56 and thereafter. The document Ext. P-3, Khasra Panchshala dated 31.08.1943, which is placed in record, from its face appears to be suspicious to be a record of Khasra panchshala. Perusal of Ext. P-3 would show that it is written in a small piece of paper, it bears signature of Mohanlal mentioning Patwari dated 31.08.1943. Khasra Panchshala of the year 1932-33 and 1933-34 is also placed in record by the plaintiffs as Ext. P-10. It is in the prescribed formate mentioning different columns of different headings. From perusal of Ext. P-10, it is appearing that during that time also prescribed

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formate/ form for giving the copy of Khasra panchshala to the person applied for or recorded owner, if he asked for the same, was to be provided. Ext. P-3 is neither in a form nor a certified copy.

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Section 57 of the Chhattisgarh Land Revenue Code, 1959 talks of State Government ownership in all lands. It is extracted below for ready reference.

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“ 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 rights 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 coming into force of this Code in any such property.

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(2) Where a disputes arises between the State Government and any person in respect of any right under sub-section (1) such dispute shall be decided by the [Collector]¹ .

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Sub-section 2 of Section 57, as extracted above, specifies that if dispute arises between the State Government and any person in respect of any right under sub-section 1 such dispute shall be decided by the State Government /Collector.

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From the relief as claimed by the plaintiffs in their plaint, it is appearing that the plaintiffs are raising a dispute of the revenue entries made pursuant to the order of Dy. Collector declaring the land bearing Khasra No. 85 to be Najul Land.

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In the aforementioned facts also, the nature of dispute which was raised by the plaintiffs is against the State Government. Section 257 of the Chhattisgarh Land Revenue Code, 1959 exclude the jurisdiction of the civil courts from entertaining any suit instituted or application made to obtain a decision/ order on any matter of which the State Government, the Board or any Revenue Officer is by this Code,

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1 Substituted by C.G. Act No. 32 of 2013, w.e.f. 19-8-2013.

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empowered to determine, decide or dispose of, an in particular and without prejudice to the generality of this provision. Section 257(f) provides for “any claim against the State Government to have any entry made in any land records or to have any such entry omitted or amended.” The nature of dispute which is raised in the suit by the plaintiffs covers under Clause (f) of Section 257 of the Code.

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In the aforementioned facts of the case and in view of the above settled legal proposition, both the substantial question of law No. 1 & 2 are decided in negative.

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For the foregoing discussion, I do not find any merit in this second appeal. Accordingly, the impugned judgment and decree dated 05.09.2014 passed by learned 4^th Additional Judge, Bilaspur, of 1^st Additional District Judge, District Bilaspur, C.G. in Civil Appeal No. 57-A of 2014 are affirmed.

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Consequently, this Second Appeal fails and is hereby dismissed accordingly.

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Decree be drawn up accordingly.

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Sd/-

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(Parth Prateem Sahu) JUDGE

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pwn

Piyushh Bhai Patel and Ors. v. State Of Chhattisgarh and Ors.

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Piyushh Bhai Patel and Ors. v. State Of Chhattisgarh and Ors.

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