Holding

The High Court was justified in interfering where the lower appellate court misread the evidence, and civil courts have jurisdiction to try possession suits based on title; the appeal is dismissed.

Summary

The dispute concerned agricultural land in Madhya Pradesh where the original bhumiswami sold the land to the respondent but had earlier granted a one‑year lease to the appellant. The appellant claimed the lease was renewed for a second year, thereby acquiring bhumiswami rights under the Madhya Pradesh Land Revenue Code. The trial court decreed the suit for possession in favour of the respondent; the first appellate court reversed, allowing the appellant; the High Court on second appeal set aside that reversal and reinstated the trial court decree. The Supreme Court held that the High Court was justified in interfering on a second appeal where the lower appellate court misread the evidence, leading to a miscarriage of justice, and affirmed that civil courts have jurisdiction to try possession suits based on title despite provisions of the Land Revenue Code. Consequently, the appeal was dismissed.

Issues considered

Whether a High Court may interfere with findings of fact on a second appeal where the lower appellate court misread the evidence.
Whether a civil court has jurisdiction to entertain a suit for possession of agricultural land based on title under the Madhya Pradesh Land Revenue Code.
Whether the appellant acquired bhumiswami rights under Sections 168, 169 and 190 of the Madhya Pradesh Land Revenue Code.

Legislation cited

Code of Civil Procedure, 1908s. 100
Madhya Pradesh Land Revenue Code, 1959s. 168, s. 169, s. 190, s. 250, s. 257

Subjects

possession suitcivil court jurisdictionBhumiswami rightslease renewalsecond appealmisreading of evidenceMadhya Pradesh Land Revenue Codetitle determination

Judgment

A ROHINI PRASAD AND ORS.
v.
KASTURCHAND AND ANR.

MARCH 3, 2000

B [S. SAGHIR AHMAD AND D.P. WADHWA, JJ.]

Civil Procedure Code, 1908-Section JOO-Second Appeal-Interfer-
ence by High Court-On facts, trial court decreed respondents suit for
possession of agricultural land-Appeal filed by the appellants was allowed
c dismissing the suit-Respondents went in second appeal-High Court af-
firmed the decree passed by trial court holding that there was no evidence
on tecord that appellant was in possession of the land in continuation or
renewal of the lease after its expi1y-Held, High Court is justified in
interfering in second appeal where misreading of evidence by the appellate
court would lead to miscarriage of justice or its finding is perverse-Madhya
D Pradesh Land Revenue Code, 1959-Sections 168 and 169.

Section 9-Jurisdiction of civil court-Question of title-Rights of
Bhumiswami-Held, determination of question of title is triable by civil court.

Precedents-Law laid down by the High Court for a State by interpret-
E
ing the code-Held, it is not desirable for this court to give different interpre-
tation merely because another interpretation is possible.

The land in dispute is agricultural land governed by the provisions of
the Madhya Pradesh Land Revenue Code, 1959. The original Bhumiswami
F of the land sold it to respondents by sale deed. Prior to this sale, they had
granted lease in respect of this land to the appellants for the agricultural
year 1975-76. The appellants contended that the lease granted extended
for a further year and he had acquired Bhumiswami rights under section
169 of the code. Respondents filed a suit for possession of agricultural
land. The trial court decreed the suit. The appellants went in appeal. The
G
first Appellate Court allowed the appeal holding that the original
Bhumiswami had admittedly granted lease of the land for year 1975-76
and a year further. Aggrieved, respondents filed second appeal. High
Court affirmed the decree passed by the trial court.

H In appeal to this Court it was contended by the appellants that the
88
ROHINI PRASAD v. KASTURCHAND [D.P. WADHWA, J.] 89
High Court cannot upset the finding of fact in the second appeal that no A
substantial question of law had arisen and that civil court had no jurisdic-
tion to try the suit.

Dismissing the appeal, this Court

HELD : 1.1. The High Court is justified in interfering in second B
appeal where misreading of evidence by the appellant court would lead to
miscarriage of justice or its finding,is perverse. Further, there was no
evidence to come to the conclusion that the appellants were in possession of
the agricultural land in continuation or renewal of the lease after its
expiry. (96-B] c
1.2. Civil Court has jurisdiction in suit f?I" possession based on title.
There have been consistent decisions of the Madhya Pr'adesh High Court
holding that the determination of the question of title is the province of
Civil Court and unless there is any express provision to the contrary,
exclusion of Civil Court cannot be assumed or implied. (94-D-E]
D

Ramgopal v. Chetu, (1976) RN 146, referred to.

1.3. The civil suit for possession based on title is triable by the Civil
Court. That being the law laid by the High Court of Madhya Pradesh E
while interpreting the Code which applies to the Stat~ of Madhya Pradesh
and held the field for all these years, it is not desirable for this Court to
give a different interpretation and upset the settled law. Merely because a
different view is possible and on that ground the decision of the decision of
the High Court is erroneous should not be a ground to interfere.
F
[95-G-H; 96-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 447 of 1989.

From the Judgment and Order dated 19.10.87 of the Madhya Pradesh
High Court in S.A. No. 77/83. G

S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Appellants.

R~jesh and Raj Kumar Gupta for the Respondents.

The Judgment of the Court was delivered by H
90 SUPREME COURT REPORTS [2000] Z S.C.R.
A D.P. WADHWA, J. Appellant, Rohini Prasad, is aggrieved by the
judgment dated October 19, 1987 of the Madhya Pradesh High Court at
Jabalpur delivered in Second Appeal. High Court had set aside the findings
of the first Appellate Court that appellant had acquired Bhumiswami rights
under the Madhya Pradesh Land Revenue Code, 1959 (for short, the 'Sgde').
Appellant was defendant in civil suit filed by the respondent-plaintiff for
B
possession of agricultural land and for mesne profits. Trial Court decreed the
suit for possession but did not grant relief for mesne profits. On appeal· filed
by the defendant (who is now appellant before us), it was allowed and the
suit of the plaintiff (now respondent before us) was dismissed. Plaintiff
brought the matter to the High Court in second appeal which was allowed.
c High Court affirmed the decree passed by the trial court and directed 'the
defendant to hand over vacant possession of the suit land within two months
from the date of the ju~gment and on his failure to do so, the plaintiff would
be entitled to mesne profits @ Rs.1,000 per year.
(
t

The disputed land is agricultural land governed under the provisions of
D the Code. Maqsood Ali and Abid Ali were Bhumiswami of the land. They
sold the same to the respondent (Kasturchand) by sale deed dated September
12, 1977. Earlier, they had granted lease for one year of this land for the
agricultural year 1975-76 to the appellant (Rohini Prasad). High Court)las
noticed that agricultural year is from 1.7.1975 to 30.7.1976. Rohini Prasad
E had contended that lease which was granted for the year 1975-76 was
extended for a further year 1976-77. If his contention is correct, he becomes
Bhumiswami in view of Section 168 of the Code. This Section, in relevant
....
part, we reproduce as under :

"168. Leases.-(1) Except in cases provided for in sub-section (2) no
F Bhumiswarni shall lease any land comprised in his holding for more
than one year during any consecutive period of three years.

Provided that ...

(2) ...
G 0
(3) Omitted.

(4) Where a lease is granted in pursuance of sub-section ( 1), the lessee
shall hold the land on such terms and conditions as may be agreed
upon between him and the Bhumiswami and may be ejected by an
H order of a Sub-Divisional Officer on the application of the Bhumiswami
ROHINI PRASAD v. KASTURCHAND [D.P. WADHW A, J.] 91

on the ground of contravention of any material term or condition of A
the lease- or on the lease ceasing to be in force.

(5) ..."

Rohini Prasad, it appears, approached the Naib Tehsildar for declaration
of his right as Bhumiswarni in view of Section 169 of the Code who held in B
his favour and by order dated March 7, 1979 conferred Bhumiswami rights
on him under Section 190 of the Act. That order of the Naib Tehsildar is not
on record but can be inferred from the appellate order of the Sub-Divisional
Officer in appeal filed by Kasturchand against that order under the Code.
Sections 169 and 190, in relevant parts, are as under :
c
"169. Unauthorised lease etc. - If a Bhumiswami-

(i) leases out for any period any land comprised in his holding in
contravention of Section 168; or

(ii) by an arrangement which is not a lease under sub-section (1) D
of Section 168 allows any person to cultivate and land com-
prised in his holding otherwise than as his hired labour and
under that arrangement such person is allowed to be in posses-
sion of such land for a period exceeding two years the right of
an occupancy tenant shall- E

(a) in the case of (i) above, thereupon accrue to the lessee in such
land; and

(b) in the case of (ii) above, on the expiration of a period of two
years from the date of possession, accrue to such person in that F
land:

Provided that..."

"190. Conferral of Bhumiswami rights on occupancy tenants.-(1)
Where a Bhumiswarni whose land is held by an occupancy tenant G
belonging to any of the categories specified in sub-section (1) of
Section 185 except in ite~s (a) and (b) of clause (i) thereof fails to
make an application under sub-section (1) of Section 189 within the
period laid down therein, the rights of a Bhumiswarni shall accrue to
the occupancy tenant in respect of the land held by him from such
Bhumiswami with effect from the commencement of the agricultural H
r

92 SUPREME COURT REPORTS [2000) 2 S.C.R.
A year next following the expiry of the aforesaid period.

(2) ... "

The order of the Sub-Divisional Officer is dated July 16, 1979.
Resp9ndents therein aie Rohini Prasad, the lessee and Maqsood Ali and Abid
B Ali recorded Bhumiswamis. Sub-Divisional Officer affirmed the order of the
Naib Tehsildar and held that Rohini Prasad was the tenant of Maqsood Ali
and Abid Ali and he continued to be so for two successive years and since
the Bhumiswamis failed to apply for resumption of the land leased out there
was thus contravention of sub-section (1) of Section 168 of the Code. In
proceedings before the Naib Tehsildar, Kasturchand was not made a party but
c his contention that he was interested party and that notice should have been
issued to him was repelled by the Sub- Divisional Officer. Kasturchand then
went in second appeal under sub-section (2) of Section 44 of the Code to the
Commissioner. By order dated 27.5.1987, the Additional Commissioner,
Jabalpur, dismissed -the appeal. He, however, took note of the fact that
D Kasnirchand had filed a civil suit for possession of the disputed land which
though decreed was dismissed in appeal filed by Rohini Prasad and second
appeal against that filed by Kasturchand was pending in the High Court. He,
therefore, did not decide the appeal before him on merit.

In the civil suit filed by Kasturchand, one of the issues raised was
E whether the suit was maintainable in a civil court. This issue was decided in
favour of Kasturchand. In the civil suit, Maqsood Ali and Abid Ali, whdwere
the recorded Bhumiswamis, were not made parties. First Appellate Court, on
appeal filed by Rohini Prasad, did not comment on this issue and rather held
that Maqsood Ali and Abid Ali had admittedly granted lease of the land to
F Rohini Prasad for the year 1975-76 and that it was continued for another year
1976-77. That would bring the case of Rohini Prasad under Section 168 of
the Code. High Court, in appeal filed by Kasturchand, also did not go into
the question if the civil court had jurisdiction to try the suit. It reversed the
finding of the first Appellate Court that lease was continued for the year
1976-77. High Court observed that it was misreading of the evidence by the
G first Appellate Court that lease was continued for the year 1976-77 as well.
It said that conclusion arrived at by the first Appellate Court was perverse.
It appears to us that the High Court interfered in the second appeal ·not
because that appreciation of evidence by the first Appellate Court was not
correct but on account of the fact that the first Appellate Court misread the
H evidence which lead to miscarriage of justice.
ROHINI PRASAD v. KASTURCHAND [D.P. WADHWA, J.] 93
Before us, Mr. Khanduja in support of this appeal has raised two A
principal contentions : (1) High Court could not upset the finding of fact in
second appeal and that no substantial question of law had arisen and that (2)
Civil Court had no jurisdiction to try the suit.

The fact that Kasturchand purchased the land from Maqsood Ali and
B
Abid Ali by registered sale deed is not disputed. It is also not disputed that
Maqsood Ali and Abid Ali gave the land on lease for the year 1975-76 to
Rohini Prasad. Now, either Rohini Prasad has continued in possession of the
land on account of continuation of lease or renewal of the lease by Maqsood
Ali and Abid Ali for the year 1976-77 or he is in unauthorised possession
of the land after expiry of his lease for the year 1975-76. Under Section 250
·c
of theCode, if a Bhurniswarni is dispossessed of the land or if any person
unauthorisedly continues in possession of the land of the Bhurniswarni to use
of which such person has no right under the Code, he may apply to the
Tehsildar for restoration of the possession. Sub-sections (1) and (2) of
-~ Section 250 which are relevant may be quoted : D

"250. Rei~tatement of bhumiswami improperly dispossessed. - (1) If
a Bhurniswami is dispossessed of the land otherwise than in due
course of law or if any person unauthorisedly continues in possession
of any land of the Bhurniswami to the use of which such person has E.
ceased to be entitled under any provision of this Code may apply to
the Tehsildar for restoration of the possession :-

(a) ...

(b) ...
F

(2) The Tehsildar shall, after making an enquiry into the respective
claims of the parties, decide the application and when he orders the
restoration of the possession to the Bhurniswami, put him in posses-
sion of the land." G

Now, Maqsood Ali and Abid Ali have not asserted their right by filing
any application under Section 250 of the Code before the Tehsildar. After
selling the land, they appear to have become uninterested persons. Under
Section 257 of the Code, jurisdiction of Civil Court is barred in the matter H
r

94 SUPREME COURT REPORTS [2000] 2 S.C.R.
A of ejectment of lessee or a Bhumiswami under sub-section (4) of Section 168
[clause (k)] or in claims by occupancy tenants for conferral of the rights of
Bhumiswami on him under Section 190 [clause (o)] or in any decision
regarding re-instatement of a Bhumiswami improperly dispossessed under
Section 250 [clause (x)]. By approaching the. revenue courts, Rohini Prasad
B has sought conferring of right of Bhumiswami under Section 190 of the
Code. Certainly, there have been two parallel proceedings one under the
Code before the Revenue Court and the other under ordinary law before the
Civil Court. Mr. Khanduja did contend that the Civil Court had no jurisdic-
tion to try the suit. The question of jurisdiction was raised before the Trial
Court in civil proceedings and an jssue raised which was decided as a
c preliminary issue. It was held that the Civil Court had jurisdiction in the
matter. This finding of the Civil Court had not been challenged in appeal
either before the lower Appellate Court or before the High Court. Even in
the grounds of appeal in this Court, there is no challenge to the finding of
the Trial Court that the Civil Court has jurisdiction in the matter. We fmd
... D there have been consistent decisions of the Madhya Pradesh High Court
__ holding that the determination of the question of title is the province of Civil
Court and unless there is any express provision to the contrary, exclusion of
Civil Court cannot be assumed or implied. A Full Bench of the Madhya
Pradesh High Court in Ramgopal v. Chetu, 1976 RN 146 was considering
E the question whether the Civil Court cannot take cognizance of a suit
instituted by Bhumiswami on the basis of his title against the trespassers. The
Full Bench repelled the argument that in proceedings under Section 250 of
the Code, since the Reve~ue Authority has no jurisdiction to go into the
question of title, it would lead to anomalous results if again it is held that
p the Civil Court has jurisdiction to decide any question relating to the title.
The Full Bench observed :

"Under the general law, a suit for possession based on title can be
instituted in the Civil Court within 12 years from the date of
dispossession. The principle that possession must follow title has
G received greater weight and sanctity when the distinction between
the scope and effect of Article 142 ·and those of article 144 of the
Limitation Act, 1908, has been watered down and simpler provisions
have been substituted in Articles 64 and 65 of the Limitation Act of
1963. It will be anomalous to read section 250 as providing for a suit
H for possession based on title, which is to be instituted within two years
ROHINI PRASAD v. KASTURCHAND [D.P. WADHWA, J.] 95
only. It will entail 'a fantastic result that if a suit is not brought within A
two years under section 250, the Bhumiswami's right will be extin-
guished, because by virtue of section 26 of the. Limitation Act, if a
suit for possession is not instituted within the period of limitation
prescribed therefor, not only the remedy is barred but the right is also
extinguished. Section 26 is an exception to the general rule that B
limitation bars the remedy but does not extinguish the right."

- ·The Full Bench then went to hold :

"The remedy provided in section 250 of this Code can be resorted to
by a Bhumiswami by an application to the Tehsildar. He has to show C
either (1) that he was dispossessed by the non-applicant otherwise
than in due course of law, or (2) that he was dispossessed within two
years from the date on which the possession of such person became
unauthorised (although initially the possession of that person may be
authorised). Thus, clearly enough, this section provides for a remedy D
at the hands of the Tehsildar for restoration of possession, when a
Bhumiswami is improperly dispossessed, that is, without due process
of law. Clause (x) of section 257 excludes the jurisdiction of the Civil
Court to challenge "any decision regarding reinstatement of a
Bhumiswami, improperly dispossessed under section 250". In both
these provisions the subject matter of enquiry is possession not title. E

Determination of the question of title is the province of the civil
Court and unless there is any express provision to the contrary,
exclusion of the jurisdiction of the civil court cannot be assumed or
implied." F

In three different appeals coming to the Madhya Pradesh, Hon'ble Judges
sitting singly have consistently held that the civil suit of possession based on
title is triable by the Civil Court. That being the law laid by the High Court
of Madhya Pradesh while interpreting the Code which applies to the State of
Madhya Pradesh and held the field for all these years, it is not desirable for G
the Supreme Court to give a different interpretation and to upset the settled
law. Merely because a different view is possible and that on that ground the
decision of the High Court is erroneous, in our view, should not be a ground
to interfere. Law should be certain and parties should know where they stand.
We have already said that the finding of the First Appellate Court on reading H
96 SUPREME COURT REPORTS [2000] 2 S.C.R.
A of the evidence was perverse and the High Court rightly interferes to upset
the same. As a matter of fact there was no evidence to come to the conclusion
that Rohini Prasad was in possession of the land in continuation or renewal
1
of the lease after expiry of the year 1975-76.

Accordingly we do not fmd any merit in the appeal. It is dismissed with
B costs.

N.J. Appeals dismissed.