BHAGWAN DAS AND ANR.versusSARDAR ATMA SINGH

                     BHAGWAN DAS AND ANR.                                       A
                              v.
                      SARDAR ATMA SINGH

                          NOVEMBER 23, 1995

            (K. RAMASWAMY AND B.L. HANSARIA, JJ.]                               B

       Madhya Pradesh Land Revenue Code, 1959: Sections 190, 260 and
264.

       Displaced Persons (Compensation and Rehabilitation) Act, 1954.           C
       Evacuee property-Land allotment:-Tempora1y sana~Subsequently
made pennanent-Held sanad relates back retrospectively-Allottee clothed
with Bhumiswami right-Lessee of such land held Bhumiswami-Successor-
in-interest of such a lessee having continuous possession-Held, entitled to
retain possession.                                                          D

       Civil Procedure Code, 1908        Section 11-Explanation VIII- Ap-
plicability of

       The Agricultural land, which is the subject matter of this appeal, was   E
allotted to A under the provisions of the Displaced Persons (Compensation
and Rehabilitation) Act, 1954 by a temporary sanad on 27.4.1954 which
was made permanent on 10.8.1965. As the father of appellant No. 1 was
lessee of the land the appellants enjoyed possession of the same. However,
after purchasing the land in question from A on 9.11.1966 the respondents
unsuccessfully initiated proceedings under section 250 of the Madhya            F
Pradesh Land Revenue Code, 1959 seeking delivery of possession. In
second round of litigation also the suit filed by respondents claiming
possession was dismissed. But in second appeal the High Court held that
appellants had not acquired the Bhumiswami right and accordingly
directed that delivery of possession be given to respondents.                   G
      In appeal to this Court on the questions whether (i) the appellants
acquired Bhumiswami rights under the Code; and (ii) Section 264 could
be pressed into service by the respondent :

       Allowing the appeal, this Court                                          H
                                    607
    608                    SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A         HELD : The ground given by the High Court to defeat the claim of
    the appellants is not sustainable. The contention that though A was given
    permanent sanad in 1965, yet it has to relate back to 1954 when temporary
    sanad had been given and there being continuity of possession, A for all
    purposes must be deemed to have become Bhumiswami in 1954 is well
    founded. If under the law A had become Bhumiswami, the appellants have
B   to be conceded that status under section 190 of the Code. Therefore, the
    respondent could not have sought for possession. Thus the land should
    remain 'in the possession of the appellants, who are tillers of the land.
    Social justice itself would have required so. [609-G-H; 610-F; 611-A]

c           Sulochana Amma v. Narayanan Nair, [1994] 2 SCC 14, cited.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11068 of
    1995.

            From the Judgment and Order dated 4.5.95 of the Madhya Pradesh
D High Court in S.A. No. 463 of 1986.
            A. Subba Rao and A.D.N. Rao for the Appellants.

         G.L. Sanghi, Ms. Yogmaya Agnihotri and S.K. Agnihotri for the
    Respondents.
E
            The Judgment of the Court was delivered by

            HANSARIA, J. Leave granted.

            2. Appellants are tillers of the land. They are pitched against the
F respondent (a retired Garrison Engineer), who is an absentee landlord.
  Their grievance is that the land, which is the subject- matter of this appeal,
  which has been in their possession for long, has been ordered to be
  delivered wrongfully to the respondent on his seeking the same by filling
  the present suit, after he had lost to get possession in a proceeding under
G the Madhya Pradesh Land Revenue Code, 1959 (hereinafter 'the Code').

        3. The case of the respondent is that the agricultural land in question
  was provisionally allotted to one Idnani under the provisions of the Dis-
  placed Persons (Compensation and Rehabilitation) Act, 1954 by issuing a
  temporary sanad on 27.4.1954. Admitted case of the parties is that father
H of appellant No. 1, Ramnath was put into possession of the land by Idnani.
           BHAGWAN DAS v. ATMA SINGH [HANSARIA, J.]                   609

According to the respondent, this had been so done because Ramnath was A
employed as a servant by Idnani, whereas the case of the appellant is that
Ramnath was a lessee. There is no dispute that on 10.8.1965, Idnani was
given permanent sanad under the aforesaid Act. There is also no dispute
that the land was sold to the respondent by Idnani on 9.11.1966. It is after
the purchase that the respondent invoked section 250 of the Code seeking B
delivery of possession, which petition came to be allowed by Naib Tahsil-
dar. The appeal by the first appellant's mother was allowed by Sub-
Divisional Officer. The respondent appealed against that order to
Additional Commissioner, but unsuccessfully. Revision to the Board of
Revenue by the respondent was ·also dismissed; so too the review. This led
the respondent to invoke the writ jurisdiction of the High Court which C
came to be dismissed. This is the end of the first round of litigation.

      4. The second bout begins by filing the suit by the respondent
claiming possession, which came to be dismissed by the Civil Judge. The
appeal against this order was also dismissed. It is in the second appeal by D
the respondent that the appellants lose because of the view of the High
Court that the appellant had not acquired the Bhurniswami right which he
had claimed in the suit on the strength of certain provisions of the Code,
as section 264 of the Code states : "Nothing contained in this Code shall
apply to a person who holds land from the Central Government." Feeling E
aggrieved with the order of the High Court, this appeal has been filed by
the appellant under Article 136 of the Constitution.

      5. Two questions call for our decision. The first is whether section
264 could be pressed into service by the respondent? Secondly, whether
the appellants acquied Bhumiswami right under the Code?                      F

      6. Both the Questions are inter-related. It may be pointed out that
the Code came into force in 1959, whereas Idnani had been given sanad,
to start with temporary, in 1954, which sanad admittedly was made per-
manent subsequently in 1965. Now, if under the law Idnani had become G
Bhumiswami, appellants have to be conceded that status because of what
has been stated in section 190 of the Code, as there is no dispute that the
ingredients of this section are satisfied. And if the appellants had come to
be clothed with Bhumiswami rights, there is again no dispute that the
respondent could not have sought for possession.                             H
     610                  SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A         7. Shri Sanghi, appearing for the respondent, has submitted that
    Idnani could not have become Bhumiswami because of what has been
    stated in section 264 of the Code. According to the learned counsel, the
    land which was allotted to Idnani being an evacuee property l;tad vested in
    the Central Government and it is because of this that section 264 would
 B not permit application of any provision of the Code to the land in question.
    But then if Idnani had acquired Bhumiswami right, the land had ceased to
    belong to the Central Government. Shri Sanghi urges that as permanent
    sanad was given to Idnani in 1965 and as the Code had come into force
    by 1959, Idnani could not have acquired Bhumiswami right under the Code,
    because of what has been stated in section 260. Shri Subba Rao, appearing
  C for the appellants, joins issue with Shri Sanghi and contended that though
    Idnani was given permanent sanad in 1965, that has to relate back to 1954
    when temporary sanad had been given. There being continuity of posses-
    sion and of right, it is urged that Idnani for all purposes must be deemed
    to have become Bhumiswami in 1954. We find this submission well
. D founded.

           8. Finding the ground slipping under the feet, Shri Sanghi submits
     that though Code had come into force in 1959, its predecessor statute,
     namely Madhya Pradesh Land Revenue Code was in existence in 1954.
 E   That Code, however, having received assent of the President on 5.2.1955
     was also not in operation when temporary sanad had been given to Idnani
     on 7.4.1954.

         9. The aforesaid legal and factual spectrum would permit us, indeed
  require us, to accept the case of the appellants. We, therefore, hold that
F possession of the land could not have been demanded by the respondent,
  because the first appellant's father Ramnath had been accepted as a lessee,
  and not an employee, in the first round of litigation noted above. As to the
  finding in that proceeding, the submission of Shri Sanghi is that that cannot
  operate as res judicata, to which the reply of Shri Subba Rao is that would
  so operate, in view what has been held 'by this Court in Suloc~ana Amnia
G v. Narayanan Nair, [1994] 2 sec 14, at page 18 on which it has been
  observed that Explanation VIII to section 11 of C.P.C. would apply to the
  findings of Code of either limited pecuniary jurisdiction or of special
  jurisdiction like Revenue Tribunal.

 H         10. The result of the aforesaid discussion is that the ground given by
                     BHAGWAN DAS v. ATMA SINGH [HANSARIA, J.]                    611

..
•        the High Court to defeat the claim of the appellants is not sustainable. So,   A
         the land would remain in the possession of the appellants, who are tillers
         of the land. Social justice itself would have required so.

              11. The appeal, therefore, stands allowed with cost by setting aside
         the order of the High Court and by stating that the suit filed by the
         respondent shall stand dismissed. We quantify the cost at Rs. 10,000.          B

         T.N.A.                                                     Appeal allowed.

    •.