CHATTAR SINGH & ORS versus MADHO SINGH & ORS. on 6 February 2019

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[2019] 3 S.C.R.

CHATTAR SINGH & ORS.

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v.

MADHO SINGH & ORS.

(Civil Appeal No. 8718 of 2012)

BFEBRUARY 06, 2019

[ARUN MISHRA AND NAVIN SINHA, JJ.]

Madhya Bharat Zamindari Abolition Act, 1951 – s.4(1)(a),4(2) and 5(f) – Father of defendant nos.2 & 3 claimed that the landin question be granted to him as it was recorded in his name beforeCthe abolition of Zamindari Rights – Plaintiffs filed suit inter alia fordeclaration pleading that the suit land was recorded as ‘Charnoi’i.e. common land used for grazing cattle by the villagers and it wasillegally given to the defendants – Trial Court decreed the suit –Appellate Court reversed the same holding that it was a grove andDsaved from the vesting u/s.5(f) – High Court reversing the findingsof the Appellate Court held that the land was recorded as Charnoiland and as such it vested in the State and it was not khud-kashtland of the ex-proprietor – Held: In order to save the land fromvesting, s.4(2) requires land to be ‘personally cultivated’ byZamindar or through employees or hired labourers and anotherEsine qua non is that it should be so recorded in revenue papers as“khud-kasht”, otherwise all land vest in the State as provided ins.4(1)a) – Once the land is recorded as ‘Charnoi’, such commonland clearly vests in the State as provided in s.4(1)(a) – s.5(f) didnot confer any rights on Zamindars on such common land and didFnot save the same from vesting, once it was recorded as ‘Charnoi’for public purpose before the date of vesting in the year, 1950-1951 –When land is primarily used for ‘Charnoi’ i.e. common grazing landfor cattle of villagers, it would not fall into the category of ‘grove’and s.5(f) would not save such trees from vesting – It cannot beretained by Zamindar as he had no existing right on such land evenGbefore date of vesting, it being common land, it belonged to villagers– No individual can claim that such land belongs to him exclusively– Trial Court rightly decreed the suit in favour of villagers – Noground to interfere with the judgment of the High Court –M.P. Land Revenue Code, 1959.H

Dismissing the appeal, the Court

HELD: 1.1 Section 4, Madhya Bharat Zamindari AbolitionAct, 1951 makes it clear that all lands (cultivable, barren or bir),forest, trees, village-sites, hats, bazars, mela-grounds shall vestin the State automatically free from all encumbrances. Section4(2) provides saving of only khud-kasht land, which is so recordedin the Samvat year 2007 corresponding to the agricultural year1950-51 before the date of vesting. The date of vesting is2.10.1951. In order to save the land from vesting Section 4(2)requires land to be ‘personally cultivated’ by Zamindar or throughemployees or hired labourers and another sine qua non is that itshould be so recorded in revenue papers as “khud-kasht”,otherwise all land vest in the State as provided in Section 4(1)(a).Once the land is recorded as ‘Charnoi’ i.e., common land reservedfor grazing of cattles of villagers, such common land clearly vestsin the State as provided in Section 4(1)(a) all the land, the forest,trees, village-sites, pathways etc. vest in the State absolutely.Since the land was ‘Charnoi’ i.e., common grazing land for cattleof the villagers having huge area 72 bighas 18 biswa the fruit-bearing trees of custard apple also vested in the State. Theprovisions contained in Section 5(f) did not confer any rights onZamindars on such common land and did not save same fromvesting, once it was recorded as ‘Charnoi’ for public purposebefore the date of vesting in the year 1950-51 i.e., Samvat year2007. [Paras 9-11] [443-B-G]

1.2 For “grove” to be recognized as such should be of suchtrees when fully grown preclude land on which they are standingfrom being used for a purpose other than that of grove-land. Whenland is used for ‘Charnoi’ i.e. common grazing land for cattle ofvillagers, it would not fall into the category of ‘grove’ and provisionof Section 5(f) would not save such trees from vesting. The villagesites, comprise of common land reserved for villagers, vest inState. It cannot be retained by Zamindar as he had no existingright on such land even before date of vesting, it being commonland, it belonged to villagers. No individual can claim that suchland belongs to him exclusively. The fruit bearing treesirrespective of numbers have also vested in the State underSection 4(1)(a). No right can be claimed on trees on such common A

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[2019] 3 S.C.R.

Aland under Section 5(f) by a proprietor. The decision taken bythe Additional Commissioner while holding that land being grazingland has vested in the State was in accordance with law. TheBoard of Revenue’s order to the contrary was perverse and illegal.[Para 12] [444-E-H]

B1.3 The question as to title in view of the provisions underthe M.P. Land Revenue Code, 1959 is the domain of civil court,the Trial Court was absolutely right in decreeing the suit in favourof villagers. Such common land could not have been settled at allin favour of the erstwhile proprietor or his legal representatives.The approach of the First Appellate Court holding it to be groveCwas perverse. The First Appellate Court failed to understandthe purport of ‘Charnoi’ which is a common land reserved for thepublic purpose and is not exclusively for grazing of cattle ofZamindar. Such village sites/common land clearly vests in theState automatically free from all encumbrances. There is Dabsolutely no ground to interfere with the impugned judgment ofthe High Court. [Paras 13, 15] [445-A-C, E]

Shrimant Sardar Chandrojirao Angre v. State of MadhyaPradesh[1968] 1 SCR 761 – referred to.

Case Law Reference

E[1968] 1 SCR 761 referred to

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8718of 2012.F

From the Judgment and Order dated 17.04.2005 of the High Courtof Madhya Pradesh, Bench at Indore in Second Appeal No. 302 of1982.

Sushil Kumar Jain, Sr. Adv., Puneet Jain, Ms. Christi Jain,GAbhinav Gupta, Ms. Ankita Gupta, Ms. Pratibha Jain, Advs. for theAppellants.

B. S. Banthia, B. K. Satija, Rajesh Kandari, Advs. for theRespondents.

The following Judgment of the Court was delivered:

JUDGMENT

1. The issue in the present appeal is whether the land recorded as‘Charnoi’ i.e. Common land for grazing of cattle of villagers vests inState on abolition of intermediaries on 02.10.1951 or it was saved fromvesting in favour of proprietor being grove under section 5(f) of theMadhya Bharat Abolition of Zamindari Act.

2. The plaintiffs/respondents filed suit for declaration andpermanent injunction with respect to the suit land. They specificallypleaded that the suit land was recorded as Charnoi and it had been usedfor the purpose of grazing their cattle by the villagers and illegally it hasbeen given to the defendants. Kalu Singh, father of defendant Nos.2and 3, who was the ex-zamindar filed an application before the Tehsildarpraying that the suit land be granted to him because it was recorded inhis name before the abolition of Zamindari Rights. The Tehsildar rejectedthe application. Thereafter, he filed appeals before the Sub-DivisionalOfficer and Additional Commissioner both the authorities dismissed theappeals. Thereafter, the appeal was filed before the Board of Revenueby Kalusingh. The Board of Revenue vide order dated 2.12.1959 setaside the orders of Tehsildar and Sub Divisional Officer and AdditionalCommissioner and held that Kalusingh is entitled to get the land in hisname as Bhumiswami, in view of Section 5(f) of the Madhya BharatZamindari Abolition Act. On the basis of the aforesaid order the fatherof defendant Nos.2 and 3, filed an application before the Collector andCollector vide order dated 14.3.1968 granted the suit land in area 72Bigas and 18 Biswas to the father of defendant Nos.2 and 3 asBhumiswami. After the death of their father, defendant Nos.2 and 3filed an application before the Collector that their names be recorded asBhumiswami over the aforesaid land and that application has been allowedby the Collector on 13.05.1968. As against the said orders, the plaintiffsfiled the suit.

3. In the instant case, the entries prior to the date of abolitionclearly record the land to be Charnoi land and subsequent thereto alsothe land had been recorded continuously as Charnoi land. Apart fromthat, there was admission made by the defendant that villagers had beengrazing their cattle in the land in question up to 1967. Relying upon theadmission coupled with the khasra entries to which statutory presumption B

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Aof correctness is attached. The Trial Court decreed the suit. However,the Appellate Court reversed the same holding that it was a grove andsaved from the vesting under the provisions of Section 5(f) of the MadhyaBharat Zamindari Abolition Act, 1951, which came into force on2.10.1951.

4. The High Court has reversed the findings of the First AppellateCourt. The High Court has considered and relied on the khasra entriesto hold that it was recorded as Charnoi land as such vested in the Stateand it was not khud-kasht land of the ex-proprietor.

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5. Shri Sushil Kumar Jain learned senior counsel appearing forCthe appellant(s) has vehemently argued at length. He relied upon adecision of this Court in Shrimant Sardar Chandrojirao Angre v. Stateof Madhya Pradesh, reported in (1968) 1 SCR 761, to contend thatsuch groves are saved from vesting. He submits that there were morethan one lac trees of sitafal (pumpkin) and that finding has not beenreversed by the High Court. As such it should be treated as ‘grove’.D

6. Learned counsel appearing on behalf of the respondents hassupported the judgment of the Trial Court and that of the High Court.

7. The provision contained in Section 4 of the Madhya BharatZamindari Abolition Act deals with the consequences of vesting. Section4 is extracted hereunder:E

“4. Consequence by the vesting of an estate in the State. - (1)Save as otherwise provided in this Act when the notification underSection 3 in respect of any area has been published in the Gazette,then, notwithstanding anything contained in any contract, grant orFdocument or in any other law for the time being in force, theconsequences as hereinafter set forth shall from the beginning ofthe date specified in such notification (hereinafter referred to asthe date of vesting) ensue, namely :- (a) all rights, title and interest of the proprietor in such area,including land (cultivable, barren or Bir), forest, trees, fisheries,wells (other than private wells), tanks, ponds, water channels,ferries, pathways village-sites, hats, and bazars and mela-groundsand in all sub-soil, including rights, if any, in mines and minerals,whether being worked or not shall cease and be vested in theState free from all encumbrances; G

(b) all grants and confirmation of the title of or to land in theproperty so vesting or of or to any right or privilege in respect ofsuch property or land revenue in respect thereof shall whetherliable to presumption or not, determine;

(c) all rents and cesses in respect of any holding in the propertyso vesting for any period after the date of vesting which, but forsuch vesting would have been payable to the proprietor, shall vestin the State and be payable to the Government and any paymentmade in contravention of this clause shall not be a valid dischargeof the person liable to pay the same; Explanation. - The word “Holding” shall for the purpose of thisclause be deemed to include also land given, on behalf of theproprietor, to any person on rent for any purpose other thancultivation; (d) all arrears of revenue, cesses or other dues in respect of anyproperty so vesting and due by the proprietor for any period priorto the date of vesting shall continue to be recoverable from suchproprietor and may, without prejudice to any other mode ofrecovery, be realised by deducting the amount from thecompensation money payable to such proprietor under ChapterV; (e) the interest of the proprietor so acquired shall not be liable toattachment or sale in execution of any decree or other process ofany Court, civil or revenue, and any attachment existing at thedate of vesting or any order for attachment passed before suchdate shall, subject to the provisions of Section 73 of the Transferof Property Act, 1882, cease to be in force; (f) every mortgage with possession existing on the property sovesting or part thereof on the date immediately preceding the dateof vesting shall, to the extent of the amount secured on suchproperty or part thereof be deemed without prejudice to the rightsof the State under Section 3, to have been substituted by a simplemortgage.

(2) Notwithstanding anything contained in sub-section (1), theproprietor shall continue to remain in possession of his Khud-kashtland, so recorded in the annual village papers before the date ofvesting.

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(3) Nothing contained in sub-section (1) shall operate as bar tothe recovery by the outgoing proprietor of any sum which becomesdue to him before the date of vesting in virtue of hisproprietary rights.”

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8. The provision contained in Section 5 of Madhya BharatBZamindari Abolition Act deals with private wells, trees, buildings, housesites, and enclosures. Section 5(f) deals with groves. Section 5 isextracted hereunder:

“5. Private wells, trees, buildings, house sites, and enclosures.–(a) All open enclosures used for agricultural or domestic purposesCand in continuous possession (which includes possession of aformer proprietor) for twelve years immediately before the 1st ofJanuary, 1951, all open house sites purchased for consideration,all buildings, places of worship, wells, situated in and trees standingon lands included in such enclosures of house-sites or landappertaining to such buildings or places of worships within theDlimits of a village-site belonging to or held by the outgoing proprietoror any other person shall continue to belong to or be held by suchproprietor or other person as the case may be, and the land thereof,with the areas appurtenant thereto, shall be settled with him bythe Government on such terms and conditions as it may determine.

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(b) All private wells and buildings on occupied land belonging toor held by the outgoing proprietor or any other person shall continueto belong to or be held by such proprietor or other person.

(c) All trees standing on land comprised in a Khudkasht orhomestead and belonging to or held by the outgoing proprietor orFany other person shall continue to belong to or be held by suchproprietor or other person.

(d) All trees standing on occupied land other than lands comprisedin Khudkasht or home-stead and belonging to or held by a personother than the outgoing proprietor shall continue to belong to or beGheld by such person.

(e) All tanks situate on occupied land and belonging to or held bythe outgoing proprietor or any other person shall continue to belongto or be held by such proprietor or other person.

(f) All groves wherever situate and recorded in village papers inthe name of the outgoing proprietor or any other person shallcontinue to belong to or be held by such proprietor or such otherperson and the land under such grove shall be settled with suchproprietor or such other person by the Government on such termsand conditions as it may determine.”

9. Section 4 makes it clear that all lands (cultivable, barren or bir),forest, trees, village-sites, hats, bazars, mela-grounds shall vest in theState automatically free from all encumbrances. Section 4(2) providessaving of only khud-kasht land, which is so recorded in the Samvat year2007 corresponding to the agricultural year 1950-51 before the date ofvesting. The date of vesting is 2.10.1951. Khud-kasht has been definedin Section 2(c) as under:

“2(c) “Khud-kasht” means land cultivated by the Zamindar himselfor through employees or hired labourers and includes sir land;”

10. In order to save the land from vesting Section 4(2) requiresland to be ‘personally cultivated’ by Zamindar or through employees orhired labourers and another sine qua non in that it should be so recordedin revenue papers as “khud-kasht”, otherwise all land vest in the Stateas provided in Section 4(1)(a). Once the land is recorded as ‘Charnoi’i.e., common land reserved for grazing of cattles of villagers, suchcommon land clearly vests in the State as provided in Section 4(1)(a) allthe land, the forest, trees, village-sites, pathways etc. vest in the Stateabsolutely. Since the land was ‘Charnoi’ i.e., common grazing land forcattle of the villagers having huge area 72 bighas 18 biswa the fruit-bearing trees of custard apple also vested in the State.

11. The provisions contained in Section 5(f) in Madhya BharatZamindari Abolition Act did not confer any rights on Zamindars on suchcommon land and did not save same from vesting, once it was recordedas ‘Charnoi’ for public purpose before the date of vesting in the year1950-51 i.e., Samvat year 2007. Samvat year used to commence from1[st] July, and ended on 30[th] June of next Gregorian calendar year. Theprovision of Section 5(f) would not come into play to confer any right onsuch common land.

12. In Shrimant Sardar Chandrojirao Angre (supra), this Courthas observed as under:

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“It would seem therefore that the word “grove” conveyscompactness or at any rate substantial compactness to berecognized as a unit by itself which must consist of a group oftrees in sufficient number to preclude the land on which they standfrom being primarily used for a purpose, such as cultivation, otherthan as a grove-land. The language of Section 5(b)(iv) does notrequire however that the trees needs be fruit-bearing trees nordoes it require that they should have been planted by human labouror agency. But they must be sufficient in number and so standingin a group as to give them the character of a grove and to retainthat character the trees would or when fully grown preclude theland on which they stand from being primarily used for a purposeother than that of a grove-land. Cultivation of a patch here and apatch there would have no significance to deprive it of its characteras a grove. Therefore, trees standing in a file on the roadsideintended to furnish shade to the road would not fulfil therequirements of a grove even as understood in ordinary parlance.

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emphasis supplied”

It is apparent from aforesaid observations that “grove” to berecognized as such should be of such trees when fully grown precludeland on which they are standing from being primarily used for a purposeEother than that of grove-land. This Court further observed that treesstanding on the side of the road would not fulfil the requirement of agrove even as understood in the ordinary sense. Thus, when land isprimarily used for ‘Charnoi’ i.e. common grazing land for cattle of villagers,it would not fall into the category of ‘grove’ and provision of Section 5(f)would not save such trees from vesting. The village sites, comprise ofFcommon land reserved for villagers, vest in State. It cannot be retainedby Zamindar as he had no existing right on such land even before date ofvesting, it being common land, it belonged to villagers. No individual canclaim that such land belongs to him exclusively. The fruit bearing treesirrespective of numbers have also vested in the State under SectionG4(1)(a). No right can be claimed on trees on such common land underSection 5(f) by a proprietor. The decision taken by the AdditionalCommissioner while holding that land being grazing land has vested inthe State was in accordance with law. The Board of Revenue’s orderto the contrary was perverse and illegal.

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13. The question as to title in view of the provisions under theM.P. Land Revenue Code, 1959 is the domain of civil court, the TrialCourt was absolutely right in decreeing the suit in favour of villagers.Such common land could not have been settled at all in favour of theerstwhile proprietor or his legal representatives. The approach of theFirst Appellate Court holding it to be grove was perverse and contrary tothe provisions and the law laid down by this Court in Shrimant SardarChandrojirao Angre (supra). The First Appellate Court has failed tounderstand the purport of ‘Charnoi’ which is a common land reservedfor the public purpose and is not exclusively for grazing of cattle ofZamindar. Such village sites/common land clearly vests in the Stateautomatically free from all encumbrances.

14. Thus, we have absolutely no hesitation to reject the submissionsraised by the learned senior counsel appearing on behalf of the appellantand even the decision in Shrimant Sardar Chandrojirao Angre (supra)does not support the cause espoused that said case did not relate to“Charnoi” land. As such, decision is not at all applicable, even otherwisedecision negates submission raised on behalf of appellants that it was“grove”.

15. Thus, for the aforesaid reasons, we find absolutely no groundto interfere with the impugned judgment of the High Court. The appeal,being devoid of merits, is hereby dismissed. The parties are left to beartheir own costs.

16. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeal dismissed.

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