MOTILAL AND ANR.versusNIYAZUDDIN (DEAD) BY LRS. AND ORS.

                            MOTILAL AND ANR.                                        A
                                       v.
                 NIY AZUDDIN (DEAD) BY LRS. AND ORS.

                                JULY 21, 2003

         [SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.]                            B


      Land Laws:

      Madhya Pradesh land Revenue Code, 1959; S. 158(l}(b}!Madhya Bharat
Land Revenue and Tenancy Act, Samvat 2007: Lands of the appellant taken             C
over by the State under Nigrani (supervision) for recovery of outstanding
loan-State handed over lands to a cultivator-Respondent entered upon lands
as tenant to the cultivator-Possession restored to owner after recovery-
Opposed by the respondent on grounds of possession of the lands for a long
period and acquiring status of Pakka tenant thereon-Title suit filed by the         D
owner-Decreed by the Court-Affirmed by the First Appellate Court-
Reversed by the High Court-Title of the suit lands-Relationship between
owner of the lands and the cultivator inducted by the State-Held: State by
transferring possession of the lands to a cultivator for recovery of outstanding
loan could not create any inter se relationship between owner and cultivator!
tenant under provisions of laW-Such act of the State amounting to a coercive        E
action against the owner and not an act on his own volition-Cultivator!
tenant had lost all rights to continue possession of lands after recovery of loan
by the State.

       'Bhumiswami'-Meaning of in the context of Madhya Pradesh Land
Revenue Code, 1959. 'Nigrani ', 'Shikmi tenant' and 'Pakka tenant '-Menaing         F
of in the context of Madhya Bharat Land Revenue and Tenancy Act, Samvat
2007.

       The State had taken over certain lands of the appellant under
'Nigrani' (supervision) for recovery of loan outstanding against him. The           G
lands were given to a cultivator for realizing loan amount. In the
meanwhile, cultivator had given the lands to respondent-tenant. After
recovery of the outstanding loan by the State possession was restored tn the
appellant. Respondent No.1 allegedly dispossessed him forcibly. Appellant filed
a title suit which was decreed in his favour. On appeal, affirmed by the First
                                      617                                           H
    618                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A Appellate Court, however, reversed by the High Court in the second appeal.
    Hence the present appeal.

          Allowing the appeal, the Court

           HELD: I.I. The lands were taken in Nigrani by the government only
B   for the limited purpose of recovery of its outstanding loan advanced to the
    plaintiffs. This arrangement for recovery of loan through the supervision and
    management of lands by the government did not create any inter se relationship
    between the recorded owner and the person to whom the possession was given
    for cultivation. The High Court, therefore, was clearly wrong in coming to a
C   conclusion that the delivery of possession of the suit lands by the government
    to a cultivator and through him to defendant for recovery of loan was an act
    'for and on behalr of the recorded owner. (622-D-E(

           1.2. The defendant having obtained cultivating possession from a
    cultivator to whom government had given possession during Nigrani for
D   recovery of loan, does not fall in the definition of' Pakka tenant', 'Ordinary
    tenant' or 'Sub-tenant'. High Court was prima facie wrong in assuming
    relationship of tenancy between the recorded owners and defendant no. I. The
    handing over of land by the State to a cultivator for recovery of its loan was
    coercive action against the land owner and not an act on his own volition. Such
    action on the part of the State can create no relationship inter se of tenancy
E   between land owner and the cultivator who has been inducted by the State.
    Neither the provisions of Madhya Pradesh Land Revenue and Tenancy Act
    nor the Madhya Pradesh Land Revenue Code confer any status of 'tenant' or
    'Bhumiswami' on such a person who enters upon lands for cultivation during
    Nigrani period of the government. The conclusion drawn by the High Court
F   in favour of defendant No.I that he acquired right of 'tenant' is unsustainable
    in law. (623-H; 624-A-D)
           1.3. The Appellant also deserve to succeed on the basis of their title
    and right to claim possession from the contesting defendant who had lost
    all rights to continue in possession of the lands after the period ofNigrani
G   was over and the loan had been satisfied. Hence, the judgment of the trial
    Court and the First Appellate Court stand restored. [624-E-F(

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2231 of 1996.

       From the Judgment and Order dated 26.7.1994 of the Madhya Pradesh
H High Court in C.S.A. No. 2 of 1981.
              MOTi LAL v. NIY AZUDDIN [DHARMADHIKARL .1.)                 619

      A.K. Chitale and Niraj Sharma for the Appellants.                           A
      Rohit Singh and Satish K. Agnihotri for the Respondents.

      The Judgment of the Court was delivered by

       DHARMADHIKARI, J. The High Court of Madhya Pradesh vide its                B
impugned judgment dated 26.7.1994 passed in Civil Second Appeal No. 2 of
1981 interfered with the concurrent findings of the Court below and dismissed
plaintiffs suit both on facts and law. The plaintiffs are, therefore, in appeal
before this court.

       The fact not in dispute are that the suit lands in two villages of the     C
erstwhile State of Madhya Bharat which now form part of the new State of
Madhya Pradesh were recorded in the revenue papers in the ownefship of the
petitioners. It is also not in dispute that sometimes between the year 1949 to
1952 in the erstwhile Gwalior State which later became part of the erstwhile
State of Madhya Bharat and now State of Madhya Pradesh, the suit land were        D
taken under 'Nigrani' meaning 'supervision and management of the State for
recovery of loan obtained by the plaintiffs. The suit lands were given by the
State for cultivation to one Ramji for the limited purpose of recovery of loan
outstanding against the plaintiffs.

       In the year 1954, the plaintiffs made an application to the Collector, E
Devas [MP], seeking restoration of possession of the lands on the ground
that the outstanding loan stood recovered. According to the plaintiffs' s case
on 30.3.1954, Collector, Devas made an order in favour of the plaintiffs
directing restoration of the land and pursuant thereto, formal possession of
the lands was taken by plaintiffs under Paochnama dated 30.3.1954 [Ex. P-
l]. The further case of plaintiffs is that within a period of five days of F
restoration of possession of the lands to them, the defendant no. I. Niyazuddin/
respondent no. I [who died pending this appeal and his estate is represented
by his LRs] forcible dispossessed the plaintiffs on 15.6. I 959. the plaintiffs,
therefore, filed a suit in the year 1962 for declaration that on passing of the
Madhya Pradesh Land Revenue code, 1959 [for short 'the Code'] they acquired G
status of 'Bhumiswami' under Section 158(1) (b) of the said code and delivery
of possession of the lands from the deceased/ respondents no. I.

      The State of Madhya Pradesh (respondents no.2) did not dispute the
plaintiffs' claim. Respondents no. 3 - Manakbai (dead) was also one of the
recorded owners on the suit land but as she did not join as plaintiff, she was H
    620                     SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A formally made as defendant to the suit and has been impleaded as respondent
    no. 3 in this appeal. On her death, her legal representatives have been brought
    on record.

        The only contesting defendant was the deceased/Niyazuddin
  [respondent no. I] whos'! legal representatives have also been brought on
B record. The suit was resisted by the contesting defendant on the ground that
  he was put in possession of the suit lands by Ramji as Shikmi tenant and he
  having continued in cultivating possession of the lands for a long period of
  30 years has acquired status of 'Pakka tenant' under the provision of Madhya
  Bharat Land Revenue and Tenancy Act, Sam vat 2007 [hereinafter referred to
C as Act no. 66 of 1950]. The contesting defendant also denied the case of the
  plaintiffs that possession of the land was restored to them on the orders of
  the Collector and they were subsequently dispossessed. It was also pointed
  out that the order of the Collector, Devas (M.P.] directing restoration of lands
  was set aside in appeal by the Board of Revenue.

D         After hearing learned senior counsel Shri A.K. Chitale appearing on
    behalf of the petitioners, we have formed an opinion that there was justification
    neither on facts nor in law for the High Court to upset the concurrent findings
    recorded by the courts below and allow the appeal.

          The State of Madhya Pradesh represented before us by the learned
E counsel appearing for it does not dispute the title and possession of the lands
    claimed by the plaintiffs. The legal representatives of the sole contesting
    respondent no. I [defendant no. I] have been duly served with a notice of
    this appeal but they have not taken care to arrange for their representation
    personally or through any counsel. We have, therefore, ourselves looked into
F   the whole record. After hearing arguments advanced on behalf of the petitioners
    and on perusal of the impulined judgment passed by the High Court in
    Second Appeal. We find that the learned Judge has devoted more attention
    to decide the issue of restoration of possession and subsequent dispossession
    of the plaintiffs as raised by the plaintiffs. By describing the concurrent
    findings of the courts below in favour of the plaintiffs as 'perverse' the High
G   Court has interfered with the same and re-appreciated the evidence to come
    to a conclusion against the plaintiffs.

        The main issue based on claim of tile by the contesting parties was
  treated to be without any merit by High Court describing it as "a legal storm
  in Tea cup". In our opinion, the main question to which the High Court to
H have addressed itself was whether plaintiffs have proved their title to the suit
              MOTILAL v. NIY AZUDDIN [DHARMADlllKARI. .I.]                 621

 lands and were entitled to the relief of grant of decree of declaration of their" A
title and possession of the lands. On the issue of title, the High Court in
second appeal came to the conclusion in favour of the contesting defendant
that the lands of which possession was given to him for cultivation during
the period ofNigrani for the recovery of loan, conferred on him tenancy right
under Madhya Bharat Zamindari Abolition Act, Samvat 2003 [hereinafter B
referred to as Act no . 13 of 1951] an Madhya Pradesh Land Revenue Code,
1959. Surprisingly, the learned Judge deciding the Second Appeal recorded
a conclusion that the lands given for cultivation to Ramji and through him
to the contesting defendant during the period of 'Nigrani' by the government
were so given 'for and on behalf of the recorded land owners. Such a
conclusion was wholly unwarranted in law and for it there, was no foundation C
laid in the written statement or in evidence led by the contesting defendant.

      We consider it necessary to reproduce the impugned part of the judgment
of the High Court on the question of title of the lands to demonstrate the legal
flaws in it :-
                                                                                   D
        "It may briefly be mentioned that to my mind it will not make much
       of a difference except raising a legal storm in a tea cup by contesting
       that the appellant did not hold the lands directly from the holders of
       the lands namely the plaintiffs/respondents but that he held the lands
       from government officials as the lands were under Nigrani for recovery
       of debts on government dues. The simple legal position appears to be E
       that Nigrani was nothing but supervision or management of the
       lands for and on behalf of the landlords on account of their default
       to repay the debt and consequently the supervisor and manager
       stepped into shoes of defaulting landlords who would be certainly
       open to exposure of the ex-proprietary legislation vis-a-vis the rights F
       of cultivating tenant even from the supervisor or the manager' of the
       lands Nigrani held for and on behalf of the landlords. The basic
       theme of the ex-proprietary legislation is 'land to the tiller' unless the
       exceptions are clearly established to deprive of their rights of
       enlargement. Consequently, it does not lie in the mouth of the
       plaintiffs/respondents to say that because the land was not managed G
       by themselves but was managed through their agents, (in this case
       the government agency by taking the land in Nigrani) the cultivating
       tenants would not be entitled to enlargement of their rights under
       the ex-proprietary legislation.

       As a result of the finding that the appellant was in cultivating H
    622                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A           possession of the suit lands much before from 1954 and the case of
            the plaintiffs of dispossession of the appellant of the lands of Kamlapur
            in 1954 and of the lands of village Khusai in 1961 having failed, it
            follows as a legal consequence that the appellant/cultivator can certainly
            successfully resist the claim of the plaintiffs for possession on the
            ground of the appellant/cultivator having a acquired Bhum iswami
B           rights under the present Code of 1959. His defence to that effect in
            answer to the claim in suit succeeds ."

                                           [Italics for inviting pointed attention}

          It is not disputed that the contesting defendant came in possession of
C the suit lands during the 'Nigrani' period through the government. The land
    was taken in nigrani by the government only for the purpose of recovery of
    its outstanding loan advanced to the plaintiffs. This arrangement for recovery
    of loan thwugh the supervision and management of lands by the government
    did not create any inter se relationship between the recorde,d owner and the
D   person to whom the possession was given for cultivation. It is not disputed
    that during Nigrani, possession was given to one Ramji Defendant no. I
    claimed to have obtained Shikmi rights from Ramji. There was no direct
    relationship of recorded owner and the contesting defendant no. I. who was
    inducted in cultivating possession of the suit lands by Ramji. The High Court,
    therefore, was clearly wrong in coming to a conclusion that the delivery of
E   possession of the suit lands by the government to Ramji and though him to
    defendant for recovery of loan was an act 'for and on behalf of the recorded
    owner.

           The next issue that appears to have been answered wrongly in favour
    of contesting defendant no. I is that under the Madhay Bharat Zamindary
F   Abolition Act, 1951 and Madhya Pradesh land Revenue Code 1959, the
    defendant no. I who came in possession of the suit lands for cultivation
    during the Nigrani period though the government had acquired status of
    Bhumisawmi. It is pointed out to us by the learned counsel appearing for the
    petitioners that prior to coming into force of the M.P Land Revenue Code
G   1959, the provision of Madhya Bharat Land Revenue and Tenancy Act,
    Samvat 2007 [Act No. 66 of 1950] regulated the relationship of the parties with
    regard to the land in suit. Section 54 in Part- I I of Chapter IV of the Act of
    1950 contains definitions of various categories of tenants and sub-tenants.
    Learned counsel submits that in the revenue papers the plaintiffs were recorded
    as 'Ryot Pattedar' on the lands. They therefore, fall in the definition of 'Pakka
H   Tenant' defined in Section 54(vii) as under :-
                 MOTILAL v. NIY AZUDDIN [DHARMADHIKARI. .I.)               623

       "54 (vii) Pakka tenant-means a tenant who has been or whose predess         A
       or in interest had been lawfully recorded in respect of his holding a
       "Ryot Pattedar", 'Mamuli Maurusi,' Gair Maurusi, and Pukhta Maurusi
       when this Act comes into force or who may in future be duly recognised
       as such by a competent authority.'

      Sub-clause (viii) & (ix) of Section 54 of the Act of 1950 define 'ordinary   B
tenant' and 'sub tenant' as under :-

       "54 (viii). Ordinary tenant - means a tenant other than a Pakka tenant
       and shall not include a sun-tenant."

        54(xi) Sub-tenant - means a person who holds land from a Pakka or          C
        an ordinary tenant or from a holder of a service holding or form a
        concessional holder as defined in sub-clause (x).

     All land owners recorded as 'Pakka tenant' in accordance with Madhya
Bharat Land Revenue and Tenancy Act, Samvat 2007 [Act No. 1950] have
been conferred with status of Bhumiswami under Section 158 (I) (b) of D
Madhya Pradesh Land Revenue code, 1959 which reads thus :-

        "158. Bhumiswami - (I) 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 imposed upon a Bhumiswami by or under        E
        this code, namely :-

        (a) .......... ..

        (b) every person in respect of land held by him in the madhya
        bharat region as a Pakka Tenant or as a Muafidar, lnamdar, or              F
        Concessional holder, as defined in the Madhya Bharat Land Tenancy
        Act, Samvat 2007 (66 of 1950)

        (c) ........

      The contesting defendant having obtained cultivating possession from G
Ramji to.whom government had given possession during Nigrani for recovery
of loan, does not fall in the definition of 'Pakka Tenant', 'Ordinary tenant' or
'Sub tenant'. As we have held above, the High Court was prima facie wrong
in assuming relationship of tenancy between the recorded owners and
defendant no. 1. The lands were handed over during 'Nigrani' by the
government to a cultivator/Ramji for the limited purpose of recovery of H
    624                    SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A outstanding loan. This delivery of possession during Nigrani by the
    government to a cultivator cannot create any direct or indirect relationship
    between the recorded owner of the land and the cultivator concerned. The
    handing over of land by the State to a cultivator for recovery of its loan was
    a coercive action against the land owner and not an act on his own volition.
    Such action on the part of the State can create no relationship inter se of
B   tenancy between land owner and the cultivator who has been indicted by the
    State. Neither the p;ovisions of Madhya Bharat Land Revenue and Tenancy
    Act, 1950 not the Madhya Pradesh Land Revenue Code, 1959 confer any
    status of 'tenant' or Bhumiswami on such a person who enters upon lands
    for cultivation during Nigrani period of the government. The reference to the
C   provisions of Madhya Bharat Zamindary Abolition Act No. 13 of 1951 was
    wholly in appropriate as it was nobody's case that the plaintim were proprietors
    or Zamindars and any rights were acquired by the defendant 1mder the said
    Act.

           The conclusion, therefore, drawn by the High Court in favour of
D defendant no. I that he acquired right of 'tenant' is unsustainable in law.
          No plea of limitation was raised by the defendant. In our opinion, even
    if the plaintiff's case of their having been restored to possession and
    subsequently dispossessed is held to be a make-believe story and hence
    unreliable, the plaintiffs deserve to succeed on the basis of their title and
E   right to claim possession from the contesting defendant who had lost all
    rights to continue in possession of the land after the period of Nigrani was
    over and the loan had been satisfied.

           Consequently, we allow this appeal and set aside the impugned judgment
F   of the High Court Passed in Second Appeal. In consequence, the judgement
    of the trial court and the First Appellate Court shall stand restored. Since the
    contesting defendant [legal representatives of respondents no. I) were not
    represented before us, we would leave the parties to beat their own costs in
    th is appeal.

G S.K.S.                                                          Appeal allowed.