Whether the interpretation and application of the Zamindari Abolition Act in the context of certain land, recorded as "Bir land" or grassland. The central legal issue seems to revolve around ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7991 OF 2019
(ARISING OUT OF S.L.P. (C) NO.1854 OF 2016)
THE STATE OF MADHYA PRADESH …APPELLANT(S)
VERSUS
SABAL SINGH (DEAD) BY LRS. & ORS. …RESPONDENT(S)
J U D G M E N T
ARUN MISHRA, J.
1.The question involved in the appeal is whether the land recorded
in the revenue papers before the date of vesting as 'Grass’ land can be
treated as khudkasht land of ExZamindar.
2.The suit was filed by the plaintiffs/ respondents, as the
successor of the ExZamindar. At the time of the abolition of
Zamindari, it was recorded as 'Grass’ land, in the name of their
predecessor. They prayed for declaration of Bhumiswami rights and
permanent injunction, restraining the defendants from interfering in
their possession of the land comprised in Survey Nos.77, 83, 191, 195
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and 799 corresponding to new Survey Nos.37, 103 and 460 total area
83 Bighas 4 Biswas situated in village Enchada, Tehsil Nateran,
District Vidisha in the State of Madhya Pradesh. The defendant –
State of Madhya Pradesh treated plaintiffs/respondents as encroacher
of agricultural land, and they were threatened with dispossession on
1.5.1980 and 12.10.1980, whereas they have acquired the rights of
Bhumiswami under provisions contained in Madhya Pradesh Land
Revenue Code as they became Pacca tenant on the abolition of
Zamindari. The plaintiffs/ respondents claimed that the land was
Khudkasht land of their predecessors; Nirbhay Singh and Pratap
Singh who were Zamindars of Village Enchada.
3.The State Government in the written statement denied the plaint
averments. However, it was admitted that Nirbhay Singh and Pratap
Singh, the predecessors were the Zamindars of the village Enchada.
The land was not a Khudkasht land. It was recorded as 'Bir,' i.e.,
'Grass' land before coming into force of the M.B. Zamindari Abolition
Act.
4.The Trial Court dismissed the suit. The First Appellate Court
affirmed the same; however, the High Court allowed the second appeal
and decreed the suit filed by the plaintiffs. They have been declared to
be Bhumiswami of the land, and the permanent injunction has also
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been granted. Aggrieved thereby the appeal has been preferred by the
State of Madhya Pradesh.
5.It is submitted by the learned counsel appearing for the State
that land was not 'Khudkasht’ land. The High Court could not have
reversed the concurrent findings of fact recorded by the trial court and
the first appellate court in the second appeal. The judgment is based
on the misreading of the Khasra entries and provisions of Section 2(c),
and Section 4(2) of the Zamindari Abolition Act have not been correctly
interpreted.
6.Learned counsel appearing on behalf of the plaintiff/
respondents submitted that growing of Grass was also an agricultural
purpose. In Khasra for Survey No.77 for Samvat year 2007,
cultivation of crop of “Jwar” was mentioned, though in Col.5 thereof.
Thus, the said survey No.77 did not vest in the State. The remaining
land was Grassland under personal cultivation of Zamindars as such
it did not vest in the State. Nirbhay Singh and Pratap Singh became
pakka tenant of the disputed land and ultimately acquired the rights
of Bhumiswami.
7.The main question for consideration is whether the plaintiff
acquired the rights of Pakka tenant under the Zamindari Abolition Act
and that of Bhumiswami under the provisions of section 158 of
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Madhya Pradesh Land Revenue Code, 1959 (hereafter referred to as
“M.P. Land Revenue Code, 1959”).
8.The Zamindari system came to be abolished on 2.10.1951 in the
erstwhile State of Madhya Bharat. The Zamindari Abolition Act, had
been reserved under Article 31(4) of the Constitution of India for the
consideration of the Hon’ble President and received his assent in 1951
and was enforced with effect from 2.10.1951, resulting into the
abolition of intermediaries. The same was enacted for the public
purpose of the improvement of agriculture, and financial condition of
agriculturist by abolition and acquisition of rights of proprietors in the
village, muhals, chak or blocks settled on Zamindari system which
used to be a system of keeping an intermediary between the State and
the tenants.
9.Section 3 of the Zamindari Abolition Act provided for vesting of
proprietary rights in the State, and the rights of the proprietor shall
pass from such proprietor to such other person, to and vests in the
State free of all encumbrances. Section 4 provided for the consequence
of the vesting of an estate in the State. As per section 4(1)(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 bazaars and melagrounds and in all subsoil,
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including rights, if any, in mines and minerals, whether being worked
or not shall cease and be vested in the State free from all
encumbrances automatically. Section 4(2) contains saving in favour of
the proprietor to the extent that he shall continue to remain in
possession of his Khudkasht land so recorded in the annual village
papers on the date of vesting. Section 2(c) defines the 'Khudkasht” to
mean land personally cultivated by Zamindars or through employees
or hired labourers and includes sir land.
10.Section 2(c) and 4 of the Abolition Act are extracted hereunder:
“2. Definitions:
(c) "Khudkasht" means land cultivated by the Zamindar
himself or through employees or hired labourers and includes
sir land;
4. Consequence by the vesting of an estate in the State.
(1) Save as otherwise provided in this Act when the notification
under Section 3 in respect of any area has been published in
the Gazette, then, notwithstanding anything contained in any
contract, grant or document or in any other law for the time
being in force, the consequences as hereinafter set forth shall
from the beginning of the date specified in such notification
(hereinafter referred to as the dale 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 villagesites,
hats, and bazars and melagrounds and in all subsoil,
including rights, if any, in mines and minerals, whether
being worked or not shall cease and be vested in the
State free from all encumbrances;
….
(2) Notwithstanding anything contained in subsection (1), the
proprietor shall continue to remain in possession of his Khud
kasht land, so recorded in the annual village papers before the
date of vesting.
(3) Nothing contained in subsection (1) shall operate as a bar
to the recovery by the outgoing proprietor of any sum which
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becomes due to him before the date of vesting in virtue of his
proprietary rights."
(emphasis supplied)
It is apparent from the provisions contained in section 4(1) it
contained nonobstante clause and that all rights and interest of the
proprietor in the area of Zamindari including the land (cultivable,
barren or bir), etc. shall vest in the State automatically. What is saved
with the Zamindar was only the land which was under his Khud
kasht, i.e., under his personal cultivation and not the land which was
cultivable, barren or bir, i.e., grassland.
11.The requirement of section 4(2) of the Abolition Act is dual that
the land should not only be Khudkasht, but it should be so recorded
in the annual village papers before the date of vesting. As the date of
vesting was 2.10.1951, the agricultural year in the erstwhile Madhya
Bharat commenced from 1
st
July to 30
th
June of the succeeding
Gregorian calendar year, the only relevant entry was before the date of
vesting, i.e., of Samvat 2007. The land is required to be so recorded
as 'Khudkasht’ in the revenue papers before the date of vesting. As
2.10.1951 fell in the Samvat year 2008, thus the entry in record of
rights of Samvat 2007 assumes significance as that has been made
the basis for conferring of the rights on abolition of Zamindari.
12.The land to be saved from vesting was required to be under
personal cultivation i.e., Khudkasht, but besides it must have been so
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recorded as “Khudkasht” in the revenue paper before the date of
vesting, i.e., 2007. Thus, there are three requirements namely (i)
personal cultivation as defined in Section 2 (c); (ii) entry in the record
of right; and (iii) before the date of vesting, i.e., 2007. In case the land
was so recorded as Khudkasht, but was not personally cultivated by
the Zamindar as specified in section 2(c), such land shall vest in State.
13.With reference to Khudkasht land so recorded as per section
4(2) which was under personal cultivation as defined in section 2(c) of
the Abolition Act, such a Zamindar acquired rights of pakka tenancy,
in the land held by him, under the provisions of section 37 of the
Abolition Act. In case of tenant and subtenant, Conferral of pakka
tenancy rights is dealt with under section 38 of the Abolition Act,
2003. We are concerned here with the rights of the proprietor in
which the 'pakka tenancy’ rights were conferred under section 37(1) as
to land so recorded as KhudKasht. The same is extracted hereunder:
“37. Conferral of pacca tenancy rights on proprietor. (1)
Every proprietor who is divested of his proprietary rights in an
estate, chak, block or Muhal shall, with effect from this date of
vesting, be a pacca tenant of the khudkasht land in his
possession and the land revenue payable by him shall be
determined at the rate fixed by the current settlement for the
same kind of land.
(emphasis supplied)
14.The pakka tenant has been defined in section 54(vii), Part II of
the Madhya Bharat Land Revenue and Tenancy Act, (Samvat 2007)
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(Act No.66 of 1950). Besides that, the Zamindari Abolition Act
conferred right of pakka tenant on a proprietor concerning the
khudkasht land and so recorded in revenue papers before the date of
vesting. Section 54(vii) of Madhya Bharat Land Revenue and Tenancy
Act is extracted hereunder:
“54.(vii) Pakka tenant – means a tenant who has been or whose
predecessor in interest had been lawfully recorded in respect of his
holding as a “Ryot Pattedar”, “Mamuli Maurusi”, “Gair Maurusi”,
and “Pukhta Maurusi” when this Act comes into force or who may
in future be duly recognized as such by a competent authority.”
15.The pakka tenancy rights are conferred on a proprietor
concerning Khudkasht land in his possession.
16.M.P. Land Revenue Code, 1959 was enacted on the formation of
Madhya Pradesh and came into force w.e.f. 2.10.1959 to unify the law
concerning land. Section 158 of M.P. Land Revenue Code, 1959
provided classes/ categories which shall be called tenure holder, i.e.,
Bhumiswami. Section 158(1)(a) of M.P. Land Revenue Code, 1959
conferred Bhumiswami rights on a tenant or Muafidar, etc. Provisions
of section 158 (1)(b) provided that 'pakka tenant’ shall be called
Bhumiswami in M.P. Land Revenue Code, 1959, in case he was a
pakka tenant or a Maufidar, Inamdar or Concessional holder as
defined in Madhya Bharat Land Revenue and Tenancy Act, Samvat
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2007 (66 of 1950). The provisions of section 158 of the M.P. Land
Revenue Code, 1959, read as under:
158.[1] Every person who at the time of coming into force of this
Code, belongs to any of the following classes shall be called a
Bhumiswami and shall have all the rights and be subject to all
the liabilities conferred or imposed upon a Bhumiswami by or
under this Code, namely :
(a) every person in respect of land held by him in the
Mahakoshal region in Bhumisami or Bhumidhari rights in
accordance with the provisions of the Madhya Pradesh Land
Revenue Code, 1954 (II of 1955);
(b) every person in respect of land held by him in the
Madhya Bharat region as Pakka tenant or as a Muafidar,
Inamdar or Concessional holder, as defined in the Madhya
Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of
1950)
(c) every person in respect of land held by him in the Bhopal
region as an occupant as defined in the Bhopal State Land
Revenue Act, 1932 (IV of 1932);
(d) (i) every person in respect of land held by him in the
Vindhya Pradesh region as a pachapan paintalis tenant,
pattedar tenant, a grove holder or as a holder of tank as
defined in the Vindhya Pradesh Land Revenue and Tenancy
Act, 1953 (III of 1955)
(ii) every person in respect of land (other than land which is
a grove or tank or which has been acquired or which is
required for Government or public purposes) held by him in
the Vindhya Pradesh region as a gair haqdar tenant and in
respect of which he is entitled to a patta in accordance with
the provisions of subsection (4) of section 57 of the Rewa
State Land Revenue and Tenancy Code, 1935.
(iii) every person in respect of land held by him as a tenant
in the Vindhya Pradesh region and in respect of which he is
entitled to a patta in accordance with the provisions of
subsections (2) and (3) of section 151 of the Vindhya
Pradesh Land Revenue and Tenancy Act, 1953 (III) of 1955),
but has omitted to obtain such patta before the coming into
force of this Code,
(e) every person in respect of land held by him in Sironj
region as a Khatedar tenant or as a grove holder as defined
in the Rajasthan Tenancy Act, 1955 (3 of 1955)
[(2) A Ruler of an Indian State forming part of the State of
Madhya Pradesh who, at the time of coming into force of this
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Code, was holding land or was entitled to hold land as such Ruler
by virtue of the covenant or agreement entered into by him before
the commencement of the Constitution, shall, as from the date of
coming into force of this Code, be a Bhumiswami of such land
under the Code and shall be subject to all the rights and
liabilities conferred and imposed upon a Bhumiswami by or
under this Code.”
17.For conferral of Bhumiswami rights on subtenants, the process
of conferral of rights of occupancy tenant is provided under section
185 of M.P. Land Revenue Code, 1959 and the conferral of
Bhumiswami rights on such occupancy tenants is provided under
section 190 of M.P. Land Revenue Code, 1959.
18.Under section 185 of the M.P. Land Revenue Code, 1959 every
person who at the coming into force of the Code holds any 'Inam land’
as a tenant or as a subtenant or as an ordinary tenant or any land as
ryotwari sublessee as defined in the Madhya Bharat Ryotwari Sub
Lessees Protection Act, 1955, any Jagir land as defined in Madhya
Bharat Abolition of Jagirs Act, 1951 as a subtenant or as a tenant of a
subtenant, or any land of proprietor as defined in Madhya Bharat
Zamindari Abolition Act, 1951 as a subtenant or as a tenant of a
subtenant shall be called as “Occupancy Tenants”. Under section 189
of MPLRC, 1959 right was given to a Bhumiswami, whose land is held
by an occupancy tenant, to resume the land within one year of the
coming into force of this Code, if he was holding the area of land
under his cultivation below twentyfive acres of unirrigated land. The
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right was given to him to apply for the resumption of the land held by
his occupancy tenant for his cultivation and his failure to do so within
the specified period, Section 190 of the M.P. Land Revenue Code, 1959
conferred the rights on the occupancy tenant of the Bhumiswami.
Rights of Bhumiswami accrued to the occupancy tenant regarding the
land held by him on the expiry of the period fixed for resumption of
the land as specified in section 190(1).
19.In the present case the rights have been claimed under section
158 of the M.P. Land Revenue Code, 1959 on the ground that the
predecessors of the plaintiff were pakka tenants and acquired
Bhumiswami rights under section 158 of M.P. Land Revenue Code,
1959. Under section 37(1) of Madhya Pradesh Zamindari Abolition Act,
“pakka tenancy” rights were conferred upon only on such a proprietor
with respect to the land under his possession as Khudkasht land as
per section 2(c) read with section 4(2).
20.When we consider the entry of 2007 placed on record by the
learned counsel on behalf of the plaintiff, it is apparent that Survey
No.77, 191, 195 and 199 are recorded as “Bir land." Concerning
survey No.83 also finding recorded by the trial court and a first
appellate court is that the same was recorded as “Bir land," i.e.,
“grassland." Learned counsel appearing on behalf of the plaintiffs/
respondents has submitted that at least concerning Survey No.77,
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entry of cultivation of 'Jwar’ was recorded in Column No.5.Whereas in
Column No.21 and 22 there was the entry of the 'Bir.'
21.It is apparent from Khasra entries before the date of vesting; in
the relevant Samvat year 2007, the land is not recorded as Khud
kasht of the erstwhile zamindars, i.e., predecessor in interest of the
plaintiffs. The land not being so recorded as Khudkasht in the
revenue papers before the date of vesting, the mandatory requirement
of section 4(2) of the Abolition Act, is not fulfilled. Such land is not
saved from vesting under section 4(1) of the Abolition Act, 2003 as a
cultivable, barren or Bir land vested in the State automatically free
from all encumbrances. Thus, the grassland, i.e., 'bir’ land as per
section 4(1) of the Act vested in the State.
22.Apart from that requirement of section 2(c), there had to be
personal cultivation of the land by the Zamindar was not fulfilled. The
land was required to be personally cultivated either by Zamindars
himself or through employees or hired labourers. There was no
personal cultivation recorded in revenue papers of erstwhile
Zamindars and land was also not so recorded as Khudkasht land.
23.It is submitted that growing of Grass is an agricultural purpose
under section 55 of Madhya Bharat Land Revenue Tenancy Act, as
there was an entry of 'grass,' i.e., 'Bir' in the revenue paper of Samvat
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Year 2007 before the date of vesting, such grassland did not vest in
the State. Section 55 is extracted hereunder:
“55. Duties of a tenant – A tenant shall use his holding only for
agricultural purposes namely:
i) the growth of any crops, except such as may, from time to time,
be prohibited by the Government; or
ii) the growth of Grass or food for cattle; or
iii) the growth of trees; or
iv) the erection of a dwelling house for his domestic use; or
v) the erection of such buildings or other structures as he may
reasonably require for the purpose of his agriculture; or
iv) the construction and maintenance of any work of the kind
described in section 56.”
24.No doubt about it that a tenant was required to use his holding
for agricultural purposes. The growth of Grass or food for cattle inter
alia was one of the agricultural purposes. In our opinion, there is no
requirement for a tenant personally to cultivate the land as on the
date of abolition as such provision lends no help to a proprietor. The
rights of the proprietor are quite different. The rights of the proprietor
are limited to land cultivated personally and so recorded as required
under the provisions of the Abolition Act, instrumental for bringing the
agrarian reforms and conferred the rights on the actual tiller of the
land by removing the intermediaries.
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25.Bir land is vested in State under Section 4(1). The grass is
naturally grown without effort, and it cannot be said to be produced
by way of rendering one's labour or through employees or hired
labour. The land should have been under Khudkasht i.e., personal
cultivation and so recorded of the exproprietor to be saved from
vesting as statutorily mandated. There is a specific provision in
Section 4(1) of the Abolition Act that the grassland, i.e., 'Bir land,' held
by the proprietor automatically vested in the State free from all
encumbrances. In which case land lying fallow also vested in the
State.
26.Now we come to entry of Samvat year of 2007. There is
presumption of correctness of Khasra entries under section 52 of
Madhya Pradesh Land Revenue Tenancy Act unless the contrary is
proved. Section 52 is extracted hereunder:
“52. Presumption as to entries in Annual Village Papers – All
entries made under this Chapter in the Annual Village Papers shall
be presumed to be correct until the contrary is proved.”
27.The Khasra in the relevant year in Samvat year 2007 as to
Survey No.77 contains the entry of crop of 'Jwar’ in Column No.5
which is meant for recording the name of tenants, his father's name,
caste, and residence and the nature of his rights. The Columns to
record the cultivation of crop of Kharib and Rabi are Column Nos.10
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to 15. All these columns are empty in the Khasra concerning all the
disputed survey numbers, and when we come to the column
containing an entry for the land lying uncultivated, there was the
entry of 'bir’ land, which has been scored out. Thus, the entry makes
it clear that it was not so recorded as Khudkasht land and there was
no personal cultivation as such the land automatically vested in the
State under Section 4(1) of Abolition Act.
28.The tenancy can be proved by Khasras entries alone. The
revenue entries carry a statutory presumption of correctness under
the provisions of Section 52 and unless rebutted, the statutory
presumption of correctness attached to the entries is an inevitable
one. Unless such the presumption is rebutted, entries cannot be
discarded. The entry produced of 2007 is not as per the rules, it
contains an entry of 'Jwar’ in column No.5 which is not meant for
recording such cultivation and in the Khasra column 21 and 22 which
originally recorded 'Bir,' i.e., Grassland. Both entries are
irreconcilable with each other. The entries have been made of 'Jwar’
cultivation in a column not meant for recording cultivation, the entry
is exfacie spurious manipulated one, impermissible and inconceivable
and is against instructions contained in Kawayad patwariyan, as
such no presumption of it being correct can be drawn under the
provision of Section 52 of Madhya Bharat Land Revenue Tenancy
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ActThe entry which is on the face of it has been illegally made and is
contradicted by the original entries in Column Nos.21 and 22 in the
same Khasra. Even otherwise land is not recorded as Khudkasht
land.
29.About entries in revenue record Trial Court and First Appellate
Court, have recorded a concurrent finding of fact that the land was
not under personal cultivation. It was not open to the High Court to
interfere with the findings of fact, which was based on the proper
appreciation of evidence on record. Even the plaintiff was unable to
state whether there was any crop in the relevant year 2007 before
Zamindari abolition. Such finding of fact based on proper
appreciation of evidence could not have been interfered with by the
High Court within the ken of Section 100, CPC.
30.The decision of High Court of Madhya Pradesh in Bheron Singh
vs. Government of M.P., 1983 R.N. 243 has been relied upon, on behalf
of the plaintiffs/ respondents, in which the entry of “Bir” land, i.e.,
Grass Land came up for consideration, which was made in the column
of ‘Alavajot’ i.e., not under plough. The plaintiff in the said case was
erstwhile Zamindar of the suit land, and it was recorded as
'Khudkasht land.' We are unable to accept the proposition mentioned
above as the provision of section 4(1) of the Abolition Act, 2003 had
not been considered in Bheron Singh (supra). Where 'Bir’ land vests in
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the State and only the land under personal cultivation as defined in
section 2(c) and so recorded as KhudKasht as per section 4(2), was
saved from vesting. ‘Grass’ was recorded in Alavajot column i.e., in
area not under plough. The decision in Bhairon Singh (supra) cannot
be said to be laying down good law, as such it is overruled.
31.Resultantly, the judgment and decree passed by the High Court
deserves to be and are set aside. The judgment and decree passed by
the Trial Court are restored. The appeal is accordingly allowed. No
costs.
…………………………. J.
(ARUN MISHRA)
…………………………. J.
(M.R. SHAH)
OCTOBER 14, 2019;
NEW DELHI.
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