Chattar Singh vs Madho Singh(D)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).8718 OF 2012

CHATTAR SINGH & ORS. APPELLANT(S)

VERSUS

MADHO SINGH (D) & ORS. RESPONDENT(S)

J U D G M E N T

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 in State on abolition of

intermediaries on 02.10.1951 or it was saved from

vesting in favour of proprietor being grove under

section 5(f) of the Madhya Bharat Abolition of Zamindari

Act.

2. The plaintiffs/respondents filed suit for

declaration and permanent injunction with respect to the

suit land. They specifically pleaded that the suit land

was recorded as Charnoi and it had been used for the

purpose of grazing their cattle by the villagers and

illegally it has been given to the defendants. Kalu Signature Not Verified Digitally signed by Singh, father of defendant Nos.2 and 3, who was the ex- NARENDRA PRASAD Date: 2019.07.31 10:56:52 IST Reason: zamindar filed an application before the Tehsildar

1 praying that the suit land be granted to him because it

was recorded in his name before the abolition of

Zamindari Rights. The Tehsildar rejected the

application. Thereafter, he filed appeals before the

Sub-Divisional Officer and Additional Commissioner both

the authorities dismissed the appeals. Thereafter, the

appeal was filed before the Board of Revenue by

Kalusingh. The Board of Revenue vide order dated

2.12.1959 set aside the orders of Tehsildar and Sub

Divisional Officer and Additional Commissioner and held

that Kalusingh is entitled to get the land in his name

as Bhumiswami, in view of Section 5(f) of the Madhya

Bharat Zamindari Abolition Act. On the basis of the

aforesaid order the father of defendant Nos.2 and 3,

filed an application before the Collector and Collector

vide order dated 14.3.1968 granted the suit land in area

72 Bigas and 18 Biswas to the father of defendant Nos.2

and 3 as Bhumiswami. After the death of their father,

defendant Nos.2 and 3 filed an application before the

Collector that their names be recorded as Bhumiswami

over the aforesaid land and that application has been

allowed by the Collector on 13.05.1968. As against the

said orders, the plaintiffs filed the suit.

3. In the instant case, the entries prior to the date of

abolition clearly record the land to be Charnoi land and

subsequent thereto also the land had been recorded

2 continuously as Charnoi land. Apart from that, there

was admission made by the defendant that villagers had

been grazing their cattle in the land in question up to

1967. Relying upon the admission coupled with the

khasra entries to which statutory presumption of

correctness is attached. The Trial Court decreed the

suit. However, the Appellate Court reversed the same

holding that it was a grove and saved from the vesting

under the provisions of Section 5(f) of the Madhya

Bharat Zamindari Abolition Act, 1951, which came into

force on 2.10.1951.

4. The High Court has reversed the findings of the

First Appellate Court. The High Court has considered

and relied on the khasra entries to hold that it was

recorded as Charnoi land as such vested in the State and

it was not khud-kasht land of the ex-proprietor.

5. Shri Sushil Kumar Jain learned senior counsel

appearing for the appellant(s) has vehemently argued at

length. He relied upon a decision of this Court in

Shrimant Sardar Chandrojirao Angre v. State of Madhya

Pradesh, reported in (1968) 1 SCR 761, to contend that

such groves are saved from vesting. He submits that

there were more than one lac trees of sitafal (pumpkin)

and that finding has not been reversed by the High

Court. As such it should be treated as ‘grove’. 3

6. Learned counsel appearing on behalf of the

respondents has supported the judgment of the Trial

Court and that of the High Court.

7. The provision contained in Section 4 of the Madhya

Bharat Zamindari Abolition Act deals with the

consequences of vesting. Section 4 is extracted

hereunder:

“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 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-

grounds and in all sub-soil, 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;

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

(c) all rents and cesses in respect of any holding in the property so vesting for any period after the date of vesting which, but for such vesting would have been payable to the proprietor, shall vest in the State and be

4 payable to the Government and any payment made in contravention of this clause shall not be a valid discharge of the person liable to pay the same;

Explanation. - The word "Holding" shall for the purpose of this clause be deemed to include also land given, on behalf of the proprietor, to any person on rent for any purpose other than cultivation;

(d) all arrears of revenue, cesses or other dues in respect of any property so vesting and due by the proprietor for any period prior to the date of vesting shall continue to be recoverable from such proprietor and may, without prejudice to any other mode of recovery, be realised by deducting the amount from the compensation money payable to such proprietor under Chapter V;

(e) the interest of the proprietor so acquired shall not be liable to attachment or sale in execution of any decree or other process of any Court, civil or revenue, and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of Section 73 of the Transfer of Property Act, 1882, cease to be in force;

(f) every mortgage with possession existing on the property so vesting or part thereof on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such property or part thereof be deemed without prejudice to the rights of the State under Section 3, to have been substituted by a simple mortgage.

(2) Notwithstanding anything contained in sub- section (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 sub-section (1) shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights.”

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8. The provision contained in Section 5 of Madhya

Bharat Zamindari Abolition Act deals with private wells,

trees, buildings, house sites, and enclosures. Section

5(f) deals with groves. Section 5 is extracted

hereunder:

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

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

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

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

(e) All tanks situate on occupied land and belonging to or held by the outgoing proprietor

6 or any other person shall continue to belong to or be held by such proprietor or other person.

(f) All groves wherever situate and recorded in village papers in the name of the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or such other person and the land under such grove shall be settled with such proprietor or such other person by the Government on such terms and 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 the

State automatically free from all encumbrances. Section

4(2) provides saving of only khud-kasht land, which is

so recorded in the Samvat year 2007 corresponding to the

agricultural year 1950-51 before the date of vesting.

The date of vesting is 2.10.1951. Khud-kasht has been

defined in Section 2(c) as under:

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

10. In order to save the land from vesting Section

4(2) requires land to be ‘personally cultivated’ by

Zamindar or through employees or hired labourers and

another sine qua non in that it should 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 reserved

7 for grazing of cattles of villagers, such common land

clearly vests in 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 cattle

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

Bharat Zamindari Abolition Act did not confer any rights

on Zamindars on such common land and did not save same

from vesting, once it was recorded as ‘Charnoi’ for

public purpose before the date of vesting in the year

1950-51 i.e., Samvat year 2007. Samvat year used to

commence from 1st July, and ended on 30th June of next

Gregorian calendar year. The provision of Section 5(f)

would not come into play to confer any right on such

common land.

12. In Shrimant Sardar Chandrojirao Angre (supra),

this Court has observed as under:

“It would seem therefore that the word “grove” conveys compactness or at any rate substantial compactness to be recognized as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5(b)(iv) does not require however that the trees needs

8 be fruit-bearing trees nor does it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a grove-land. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the roadside intended to furnish shade to the road would not fulfil the requirements of a grove even as understood in ordinary parlance.

emphasis supplied”

It is apparent from aforesaid observations that

“grove” to be recognized as such should be of such trees

when fully grown preclude land on which they are

standing from being primarily used for a purpose other

than that of grove-land. This Court further observed

that trees standing on the side of the road would not

fulfil the requirement of a grove even as understood in

the ordinary sense. Thus, when land is primarily 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 of

common land reserved for villagers, vest in State. It

cannot be retained by Zamindar as he had no existing

right on such land even before date of vesting, it being

common land, it belonged to villagers. No individual can

claim that such land belongs to him exclusively. The

9 fruit bearing trees irrespective of numbers have also

vested in the State under Section 4(1)(a). No right can

be claimed on trees on such common land under Section

5(f) by a proprietor. The decision taken by the

Additional Commissioner while holding that land being

grazing land has vested in the State was in accordance

with law. The Board of Revenue’s order to the contrary

was perverse and illegal.

13. The question as to title in view of the provisions

under the M.P. Land Revenue Code, 1959 is the domain of

civil court, the Trial Court was absolutely right in

decreeing the suit in favour of villagers. Such common

land could not have been settled at all in favour of the

erstwhile proprietor or his legal representatives. The

approach of the First Appellate Court holding it to be

grove was perverse and contrary to the provisions and

the law laid down by this Court in Shrimant Sardar

Chandrojirao Angre (supra). The First Appellate Court

has failed to understand the purport of ‘Charnoi' which

is a common land reserved for the public purpose and is

not exclusively for grazing of cattle of Zamindar. Such

village sites/common land clearly vests in the State

automatically free from all encumbrances.

14. Thus, we have absolutely no hesitation to reject

the submissions raised by the learned senior counsel

10 appearing on behalf of the appellant and 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 otherwise decision negates

submission raised on behalf of appellants that it was

“grove”.

15. Thus, for the aforesaid reasons, we find

absolutely no ground to interfere with the impugned

judgment of the High Court. The appeal, being devoid of

merits, is hereby dismissed. The parties are left to

bear their own costs.

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

disposed of.

..................J. [ARUN MISHRA]

..................J. [NAVIN SINHA] NEW DELHI;

FEBRUARY 06, 2019.

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