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Sec. 158 and 250 of Revenue code and Sec.35 M.P. Ceiling on Agricultural Land Holdings Act, 1960 – allotment of land with Bhumiswami Rights to the appellant who sold the same with in 2 years to the respondent – on application after 3 years of sale – collector order for re allotment of the same to the appellant and Thasildar order for restoration of land – respondent filed a civil suit – which was dismissed – first appeal was also dismissed – High court allowed the second appeal – Apex court held that we find that in the instant case the land, which was declared surplus land, was allotted by the State in purported exercise of power under Section 35 of the said Act giving Bhumiswami right to the appellants. The said allotment was made in the year 1973. Within two years from the date of the said allotment, the land was purchased by the respondent by sale deed dated 4.7.1975, which, according to the appellants, was without consideration and the respondent in connivance with the other persons managed to keep the appellants out of possession. Prima facie, therefore, the sale deed alleged to have been executed by the appellants in favour of the respondent on 4.7.1975 is null and void and the same does not confer any right, title or interest in favour of the respondent-Sattar Khan.The trial court and the first appellate court, therefore, correctly recorded a finding that the sale deed, said to have been executed by the appellants in favour of the respondent, is null and void and is without consideration. The High Court while reversing the judgment has not considered these provisions contained in the M.P. Revenue Code. We, therefore, allow this appeal and set aside the judgment and order passed by the High Court and restore the judgment of the trial court. = CIVIL APPEAL NO.(s). 6471 OF 2014 (Arising out of Special Leave Petition (Civil) No.7039 of 2006) Tolya etc. ………Appellants Versus State of M.P. & Another etc. ……..Respondents = 2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41840

    Sec. 158 and 250 of Revenue code and Sec.35 M.P. Ceiling on Agricultural Land Holdings Act, 1960 – allotment of land with Bhumiswami Rights to the appellant who sold the same with in 2 years to the respondent – on application after 3 years of sale – collector order for re allotment of the same to the appellant and Thasildar order for restoration of land – respondent filed a civil suit – which was dismissed – first appeal was also dismissed – High court allowed the second appeal – Apex court held that we find that in the  instant case the land, which was declared surplus land, was allotted  by  the  State in purported exercise of power under Section  35  of  the  said  Act  giving Bhumiswami right to the appellants.  The said  allotment  was  made  in  the year 1973.  

Within two years from the date of the said allotment,  the  land was purchased  by  the  respondent  by  sale  deed  dated  4.7.1975,  which, according to the appellants, was without consideration  and  the  respondent in connivance with the other persons managed to keep the appellants  out  of possession.  Prima facie, therefore, the sale  deed  alleged  to  have  been

executed by the appellants in favour of the respondent on 4.7.1975  is  null and void and the same does not  confer  any  right,  title  or  interest  in favour of the respondent-Sattar Khan.The trial court and the first appellate  court,  therefore,  correctly recorded a finding that the sale deed, said to have  been  executed  by  the appellants in favour of the respondent, is null  and  void  and  is  without consideration.  The  High  Court  while  reversing  the  judgment  has   not

considered these  provisions  contained  in  the  M.P.  Revenue  Code.   We, therefore, allow this appeal and set aside the judgment and order passed  by the High Court and restore the judgment of the trial  court.  =

 

The land in dispute is  an  agricultural  land,  originally  owned  by

Jagannath Singh. 

In a land ceiling proceedings initiated  against  Jagannath

Singh, under M.P. Ceiling on Agricultural Land Holdings Act, 1960,  land  in

question was declared as surplus  land.   

Consequently,  it  vested  in  the

State Government, who in turn allotted the land to the  defendant-appellants

some times in the year 1973, under the Bhumiswami  Right,  purported  to  be

under Section 35 of the said Act.

4.    The appellants sold the said land allotted to them by sale deed  dated

4.7.1975 in favour of respondent No.2.  

It appears  that  sometimes  in  the

year 1979 on a complaint, the Collector Shajapur, proceeded  to  revise  the

allotment and action was contemplated to re-allot the land according to  the

Rules.  

The  respondent  filed  a  revision  against  the  decision  of  the

Collector before the Board of  Revenue,  where  the  allotment  of  land  in

favour of the appellants and subsequent  transfer  to  respondent  No.2  was

upheld.

5.    It further appears from the record that proceedings under Section  250

of the Land  Revenue  Code,  1959  was  initiated  for  restoration  of  the

property in favour of the appellants, who was illegally dispossessed  and  a

notice to that effect was issued to the  respondent  for  directing  him  to

hand over the land to the appellants, failing which the allotment  shall  be

cancelled.  

The respondent then moved the Civil Court by  filing  suits  for

declaration  of  ownership  in  respect  of  the  said  property  which  was

dismissed by judgment dated 19.11.1998.= Appeal was also dismissed but High court reversed the same =

 We have perused the impugned order passed by the  High  Court.   

Prima

facie we are of the view that the High Court has not  correctly  appreciated

the law in this regard.

10.   Before we consider the contention made by the  counsel  appearing  for

the parties, 

we would like to refer Sections 35 and 36 of the  M.P.  Ceiling

on Agricultural Holdings Act, 1960.  

The said section reads as under:-

“Section 35 – Allotment of surplus land  vesting  in  the  State  Government

under this Act-

(1) Subject to the provisions of this Act and the  rules  framed  thereunder

surplus land vesting in the State under section  12  shall  be  allotted  in

Bhumiswami rights to  the  persons  mentioned  hereunder  in  the  order  of

priority as indicated therein on payment of  a  premium  equivalent  to  the

compensation payable in respect of such land —

(i) agricultural labourers,

(a) belonging to Scheduled Castes and Scheduled tribes; and

(b) others;

(ii)  joint  farming  society,  the  members  of  which   are   agricultural

labourers, or landless persons  whose  main  occupation  is  cultivation  or

manual labour on land, or a combination of such persons;

(iii)  better  farming  society,  the  members  of  which  are  agricultural

labourers, or landless persons  whose  main  occupation  is  cultivation  or

manual labour on land, or a combination of such persons;

(iv) freedom fighters;

(v) displaced tenants subject to  the  provisions  of  section  202  of  the

Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959);

(vi) holders holding contiguous land;

(vii) joint farming society of agriculturists;

(viii) better farming society of agriculturists;

(ix) any other co-operative farming society subject to  the  condition  that

land (including the land as owner or tenant individually by  members)  shall

not exceed the area equal  to  the  number  of  members  multiplied  by  the

ceiling area;

(x) an agriculturist holding land less than the ceiling area :

Provided that unless the State Government  otherwise  directs  surplus  land

consisting of compact area shall be either reserved for Government  farm  or

allotted to co-operative societies or any other public purpose.

Explanation I — For the purpose of clause (iv), “freedom fighter”  means  a

person who by reason of  his  taking  part  in  any  national  movement  for

independence prior to the 15th August, 1947–

(i) had been awarded capital punishment; or

(ii) had to suffer imprisonment or detention  for  a  period  exceeding  six

months; or

(iii) had been permanently incapacitated on  account  of  injuries  infected

upon his person in firing or lathi charge; or

(iv) had to suffer loss of property, whether wholly or  partly  or  loss  of

employment or loss of his means of livelihood, and  includes  his  principal

heir where such person —

(a) was hanged in execution of the capital punishment; or

(b) died during the course of imprisonment or detention.

Explanation II — For the purpose of Explanation I, “principal  heir”  means

the eldest son of the deceased or, if there is no son of  the  deceased  or,

if there is no son surviving, such  other  heir  of  the  deceased,  as  the

Collector may declare to be the principal heir.

(2) The premium payable under sub-section (1) may be paid  by  the  allottee

either in  a  lump  sum  within  six  months  of  the  commencement  of  the

agricultural year next following the date of allotment or  in  twenty  equal

instalments, the first instalment being payable on the commencement  of  the

agricultural year next following the date of allotment. If  the  premium  is

paid in instalments the unpaid balance of such premium shall carry  interest

at the rate of 3 per centum per annum with effect from  the  date  on  which

the first instalment falls due.

(3) Where the land allotted under Sub-section (1) is an orchard  other  than

banana gardens and vine yards,  the  allottee  shall  maintain  the  orchard

intact.

Section 36 – Recovery of premium in case of transfer of allotted land:

Where land allotted under section 35 is transferred, the amount  of  premium

remaining unpaid in respect of such land shall be  a  first  charge  thereon

and shall be recoverable from the  transferee  in  the  same  manner  as  an

arrear of land revenue.”

11.   From a bare reading of  the  aforesaid  provision,  it  is  manifestly

clear that Section 35 makes  a  provision  for  allotment  of  surplus  land

declared under the Ceiling Act after vesting of  the  surplus  land  in  the

State.  According to this provision, the State shall allot the surplus  land

under “Bhumiswami right” to the persons mentioned thereunder  in  the  order

of priority.  First, the surplus land  shall  be  allotted  to  agricultural

labourers belonging to SC & ST and, thereafter, to other persons.

12.   “Bhumiswami Right” has not been defined  in  the  Ceiling  Act,  1960.

Section 158 of the M.P. Land Revenue Code 1959  defines  classes  of  tenure

and Bhumiswami.  Section 158 reads as under :-

158.  Bhumiswami – 

(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 –

……………..

……………..

……………..

……………..

……………..

(3)         Every person –

Who is holding land in Bhoomiswami right by virtue of  a  lease  granted  to

him by the State Government or the Collector or the Allotment Officer on  or

before the commencement of the Madhya Pradesh Land Revenue code  (Amendment)

Act, 1992 from the date of such commencement, and;

To whom land is allotted in Bhumiswami right by the State Government or  the

Collector or the Allotment Officer after  the  commencement  of  the  Madhya

Pradesh Land Revenue Code (Amendment)  Act,  1992  from  the  date  of  such

allotment,

shall be deemed to be a Bhumiswami  in respect of such  land  and  shall  be

subject to all the rights and  liabilities  conferred  and  imposed  upon  a

Bhumiswami  or under this Code;

      Provided that no such person shall transfer such land within a  period

of ten years from the date of lease or allotment.

      Explanation- In this Section the expression      “Ruler”  and  ‘Indian

State” shall have the same meanings as are assigned to these expressions  in

clauses (22) and (15) respectively by article 366  of  the  Constitution  of

India.”

13.    Sub-section (3) of Section 158 clearly provides  that  land  allotted

by the State to any person giving ‘Bhumiswami right’ shall  have  all  right

to deal with the property.  However, proviso mandates that  such  Bhumiswami

shall not transfer land so allotted to him within  a  period  of  ten  years

from the date of lease or allotment.

14.   Section 250 of the Code is also worth to be quoted hereunder:-

“250. Reinstatement of Bhumiswami improperly dispossessed-

For the purpose of this Section and Section 250-A, Bhumiswami shall  include

occupancy tenant and Government lessee.

(1-a)  If a Bhumiswami  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 Bhumiswami to the use  of  such  person  has  ceased  to  be

entitled under any provision of this Code, the Bhumiswami or  his  successor

in interest apply to the Tehsildar for restoration of the possession –

……………

……………

(2)………………

(3)………………

(4)……………….

(5)……………….

(6)……………….

(7)……………….

(8)………………

(9)………………..”

15.   In the light of the aforesaid provisions, 

we find that in the  instant

case the land, which was declared surplus land, was allotted  by  the  State

in purported exercise of power under Section  35  of  the  said  Act  giving

Bhumiswami right to the appellants.  

The said  allotment  was  made  in  the year 1973.  

Within two years from the date of the said allotment,  the  land

was purchased  by  the  respondent  by  sale  deed  dated  4.7.1975,  which,

according to the appellants, was without consideration  and  the  respondent

in connivance with the other persons managed to keep the appellants  out  of

possession.  

Prima facie, therefore, the sale  deed  alleged  to  have  been

executed by the appellants in favour of the respondent on 4.7.1975  is  null

and void and the same does not  confer  any  right,  title  or  interest  in

favour of the respondent-Sattar Khan.

16.   The trial court and the first appellate  court,  therefore,  correctly

recorded a finding that the sale deed, said to have  been  executed  by  the

appellants in favour of the respondent, is null  and  void  and  is  without

consideration.  

The  High  Court  while  reversing  the  judgment  has   not

considered these  provisions  contained  in  the  M.P.  Revenue  Code.   

We,

therefore, allow this appeal and set aside the judgment and order passed  by

the High Court and restore the judgment of the trial  court.  

 Consequently,

the  suit  filed  by  the  respondent  is  dismissed.   Appeal  is   allowed

accordingly with no order as to costs.

2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41840

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.(s). 6471 OF 2014
(Arising out of Special Leave Petition (Civil) No.7039 of 2006)

Tolya etc. ………Appellants

Versus

State of M.P. & Another etc. ……..Respondents

J U D G M E N T

M.Y. EQBAL, J.

1. This appeal is directed against the order dated 5.8.2004 passed by
the High Court of Madhya Pradesh, Bench at Indore, in Second Appeal No.165-
166 of 1999, whereby the Second Appeal was allowed, the judgment and order
passed by the Courts below have been set aside.

2. The facts of the case, which are common, lie in a narrow compass.
3. The land in dispute is an agricultural land, originally owned by
Jagannath Singh. In a land ceiling proceedings initiated against Jagannath
Singh, under M.P. Ceiling on Agricultural Land Holdings Act, 1960, land in
question was declared as surplus land. Consequently, it vested in the
State Government, who in turn allotted the land to the defendant-appellants
some times in the year 1973, under the Bhumiswami Right, purported to be
under Section 35 of the said Act.

4. The appellants sold the said land allotted to them by sale deed dated
4.7.1975 in favour of respondent No.2. It appears that sometimes in the
year 1979 on a complaint, the Collector Shajapur, proceeded to revise the
allotment and action was contemplated to re-allot the land according to the
Rules. The respondent filed a revision against the decision of the
Collector before the Board of Revenue, where the allotment of land in
favour of the appellants and subsequent transfer to respondent No.2 was
upheld.
5. It further appears from the record that proceedings under Section 250
of the Land Revenue Code, 1959 was initiated for restoration of the
property in favour of the appellants, who was illegally dispossessed and a
notice to that effect was issued to the respondent for directing him to
hand over the land to the appellants, failing which the allotment shall be
cancelled. The respondent then moved the Civil Court by filing suits for
declaration of ownership in respect of the said property which was
dismissed by judgment dated 19.11.1998.

6. Appeal filed by the respondent against the said judgment was stood
dismissed on 17.3.1999. The respondent then filed Second Appeal before
the High Court which was eventually allowed in terms of judgment and order
dated 5.8.2004 and the Judgment and Orders passed by the trial court and
the appellate court were set aside.

7. The High Court while reversing the judgment of the trial court as
also the appellate court has taken the view that the land was allotted to
the appellants under Section 35 of the M.P. Ceiling on Agricultural
Holdings Act, 1960 (for short “Ceiling Act of 1960”) and there is no
provision under the Act for resumption of land in case such land is
allotted to any person not entitled to such allotment. The High Court also
proceeded on the basis that neither the State nor any Revenue officer has
taken any proceeding for cancellation of allotment in favour of the
appellants. On the contrary, the Board of Revenue has allowed the revision
filed by the respondent and has upheld the allotment and directed not to
proceed for resumption of land since the premium has already been paid.
The High Court further held that the Ceiling Act does not provide for
cancellation of patta of surplus land under Section 35 or for resumption of
land of the State in case the land had been allotted to any person not
entitled to such allotment. On these legal provisions, the High Court held
that the judgment passed by the trial court and the appellate court are
contrary to law.

8. We have heard learned counsel appearing for the parties.

9. We have perused the impugned order passed by the High Court. Prima
facie we are of the view that the High Court has not correctly appreciated
the law in this regard.

10. Before we consider the contention made by the counsel appearing for
the parties, we would like to refer Sections 35 and 36 of the M.P. Ceiling
on Agricultural Holdings Act, 1960. The said section reads as under:-
“Section 35 – Allotment of surplus land vesting in the State Government
under this Act-
(1) Subject to the provisions of this Act and the rules framed thereunder
surplus land vesting in the State under section 12 shall be allotted in
Bhumiswami rights to the persons mentioned hereunder in the order of
priority as indicated therein on payment of a premium equivalent to the
compensation payable in respect of such land —
(i) agricultural labourers,
(a) belonging to Scheduled Castes and Scheduled tribes; and
(b) others;
(ii) joint farming society, the members of which are agricultural
labourers, or landless persons whose main occupation is cultivation or
manual labour on land, or a combination of such persons;
(iii) better farming society, the members of which are agricultural
labourers, or landless persons whose main occupation is cultivation or
manual labour on land, or a combination of such persons;
(iv) freedom fighters;
(v) displaced tenants subject to the provisions of section 202 of the
Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959);
(vi) holders holding contiguous land;
(vii) joint farming society of agriculturists;
(viii) better farming society of agriculturists;
(ix) any other co-operative farming society subject to the condition that
land (including the land as owner or tenant individually by members) shall
not exceed the area equal to the number of members multiplied by the
ceiling area;
(x) an agriculturist holding land less than the ceiling area :

Provided that unless the State Government otherwise directs surplus land
consisting of compact area shall be either reserved for Government farm or
allotted to co-operative societies or any other public purpose.

Explanation I — For the purpose of clause (iv), “freedom fighter” means a
person who by reason of his taking part in any national movement for
independence prior to the 15th August, 1947–
(i) had been awarded capital punishment; or
(ii) had to suffer imprisonment or detention for a period exceeding six
months; or
(iii) had been permanently incapacitated on account of injuries infected
upon his person in firing or lathi charge; or
(iv) had to suffer loss of property, whether wholly or partly or loss of
employment or loss of his means of livelihood, and includes his principal
heir where such person —
(a) was hanged in execution of the capital punishment; or
(b) died during the course of imprisonment or detention.

Explanation II — For the purpose of Explanation I, “principal heir” means
the eldest son of the deceased or, if there is no son of the deceased or,
if there is no son surviving, such other heir of the deceased, as the
Collector may declare to be the principal heir.
(2) The premium payable under sub-section (1) may be paid by the allottee
either in a lump sum within six months of the commencement of the
agricultural year next following the date of allotment or in twenty equal
instalments, the first instalment being payable on the commencement of the
agricultural year next following the date of allotment. If the premium is
paid in instalments the unpaid balance of such premium shall carry interest
at the rate of 3 per centum per annum with effect from the date on which
the first instalment falls due.
(3) Where the land allotted under Sub-section (1) is an orchard other than
banana gardens and vine yards, the allottee shall maintain the orchard
intact.

Section 36 – Recovery of premium in case of transfer of allotted land:-
Where land allotted under section 35 is transferred, the amount of premium
remaining unpaid in respect of such land shall be a first charge thereon
and shall be recoverable from the transferee in the same manner as an
arrear of land revenue.”

11. From a bare reading of the aforesaid provision, it is manifestly
clear that Section 35 makes a provision for allotment of surplus land
declared under the Ceiling Act after vesting of the surplus land in the
State. According to this provision, the State shall allot the surplus land
under “Bhumiswami right” to the persons mentioned thereunder in the order
of priority. First, the surplus land shall be allotted to agricultural
labourers belonging to SC & ST and, thereafter, to other persons.

12. “Bhumiswami Right” has not been defined in the Ceiling Act, 1960.
Section 158 of the M.P. Land Revenue Code 1959 defines classes of tenure
and Bhumiswami. Section 158 reads as under :-
158. Bhumiswami – (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 –

……………..
……………..
……………..
……………..
……………..

(3) Every person –

Who is holding land in Bhoomiswami right by virtue of a lease granted to
him by the State Government or the Collector or the Allotment Officer on or
before the commencement of the Madhya Pradesh Land Revenue code (Amendment)
Act, 1992 from the date of such commencement, and;

To whom land is allotted in Bhumiswami right by the State Government or the
Collector or the Allotment Officer after the commencement of the Madhya
Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such
allotment,

shall be deemed to be a Bhumiswami in respect of such land and shall be
subject to all the rights and liabilities conferred and imposed upon a
Bhumiswami or under this Code;

Provided that no such person shall transfer such land within a period
of ten years from the date of lease or allotment.

Explanation- In this Section the expression “Ruler” and ‘Indian
State” shall have the same meanings as are assigned to these expressions in
clauses (22) and (15) respectively by article 366 of the Constitution of
India.”

13. Sub-section (3) of Section 158 clearly provides that land allotted
by the State to any person giving ‘Bhumiswami right’ shall have all right
to deal with the property. However, proviso mandates that such Bhumiswami
shall not transfer land so allotted to him within a period of ten years
from the date of lease or allotment.

14. Section 250 of the Code is also worth to be quoted hereunder:-

“250. Reinstatement of Bhumiswami improperly dispossessed-

For the purpose of this Section and Section 250-A, Bhumiswami shall include
occupancy tenant and Government lessee.

(1-a) If a Bhumiswami 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 Bhumiswami to the use of such person has ceased to be
entitled under any provision of this Code, the Bhumiswami or his successor
in interest apply to the Tehsildar for restoration of the possession –

……………

……………

(2)………………

(3)………………

(4)……………….

(5)……………….

(6)……………….

(7)……………….

(8)………………

(9)………………..”

15. In the light of the aforesaid provisions, we find that in the instant
case the land, which was declared surplus land, was allotted by the State
in purported exercise of power under Section 35 of the said Act giving
Bhumiswami right to the appellants. The said allotment was made in the
year 1973. Within two years from the date of the said allotment, the land
was purchased by the respondent by sale deed dated 4.7.1975, which,
according to the appellants, was without consideration and the respondent
in connivance with the other persons managed to keep the appellants out of
possession. Prima facie, therefore, the sale deed alleged to have been
executed by the appellants in favour of the respondent on 4.7.1975 is null
and void and the same does not confer any right, title or interest in
favour of the respondent-Sattar Khan.

16. The trial court and the first appellate court, therefore, correctly
recorded a finding that the sale deed, said to have been executed by the
appellants in favour of the respondent, is null and void and is without
consideration. The High Court while reversing the judgment has not
considered these provisions contained in the M.P. Revenue Code. We,
therefore, allow this appeal and set aside the judgment and order passed by
the High Court and restore the judgment of the trial court. Consequently,
the suit filed by the respondent is dismissed. Appeal is allowed
accordingly with no order as to costs.

…………………………………….J.
(Ranjan Gogoi)

…………………………………….J.
(M.Y.Eqbal)

New Delhi
August 22, 2014

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