caselaws.org
Supreme Court of India
Harwansh Kaur vs Special Area Development … on 22 October, 2021Author: Uday Umesh Lalit
Bench: Uday Umesh Lalit, S. Ravindra Bhat
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6424 OF 2021
(Arising out of SLP (Civil) No.21294 of 2019)
HARWANSH KAUR & ANR. Appellants
VERSUS
SPECIAL AREA DEVELOPMENT AUTHORITY
(COUNTER MAGNET), GWALIOR & ORS. Respondents
O R D E R
Leave granted.
This appeal challenges the order dated 03.06.2019 passed
by the High Court of Madhya Pradesh at Gwalior in Review
Petition No.450 of 2013 filed by respondent no.1 herein.
The appellants-legal representatives of one Dilip Singh
had filed Case No.38-A/2005 in the Court of Second Civil
Judge, Class-II, Gwalior, submitting inter alia that the lands
in question were under title and possession of the appellants;
that the ownership was initially that of Late Dilip Singh who
all through his life remained in possession of the land and
was doing agricultural operations; and, that the Gram
Panchayat was threatening to utilize the land for construction
Signature Not Verified
Digitally signed by Dr.
Mukesh Nasa
Date: 2021.10.29
09:49:54 IST
of
Reason:
school and playground. The suit therefore claimed
declaration of ownership as well as for permanent injunction
2
restraining defendants no.1 and 2, the Government of Madhya
Pradesh and the Gram Panchayat Milawali respectively from
interfering with the possession of the appellants.
The stand taken by the defendants no.1 and 2 in their
written statement was as under:
“3. Defendant No. 1 has denied the pleadings of the
plaintiff and has stated that the disputed land is
the government land and this has been mentioned in
the Khasara of 20032004 and Late Dilip Singh had
never been the owner of the disputed land nor the
plaintiffs had done agricultural work on the disputed
land as owner. There is wheat crop on the disputed
land of plaintiffs. He has not tendered any
threatening to the plaintiffs. Plaintiffs does not
have cause of action against him. Therefore, prayer
has been made for rejection of the plaint of
plaintiff with special cost.
4. Defendant No.2 in its separate written statement
has denied the pleadings of the plaintiff and has
stated that the disputed land neither was under the
ownership and title of Late Dilip Singh nor is under
the ownership of the plaintiffs nor they are in
possession and are doing agricultural work, instead,
the said land is government land and being the land
of village Milawali is the land of Gram Panchayat.
Since this is government land therefore, no ·one has
any right to get his name mutated. There is proposal
of Gram Sabha Milawali for construction of playground
on disputed land and which has been forwarded to the
Tehsildar for appropriate proceeding. On that basis
the said proposal was passed and has been sent to the
Collector. Since the disputed land is government land
therefore, proposal of Gram Panchayat to reserve the
same for public use has been forwarded and this is
for public purpose. They have never threatened the
plaintiffs. Late Dilip Singh has got the forged entry
done in Khasara and therefore, he does not get any
title or right over the disputed land. On the
aforesaid basis the suit of the plaintiffs may be
3
dismissed while granting special compensation to the
defendant.”
The Trial Court framed the following Issues:
“(1) Whether plaintiffs are the owners and
possession holders over the disputed land in
Survey No.11 area 7 Bigha 9 Biswa and land in
Survey No.12 area 2 Bigha 14 Biswa situated in
village Milawali? Proved.
(2) Whether defendants are trying to have unlawful
possession thereon by constructing School on the
said disputed land? Proved.
(3) Whether Plaintiffs are entitled for relief of
again mutation of name of Shri Dilip Singh in
column No.3 of Khasra? Proved.
(4) Whether plaintiff has lawfully evaluated the suit
and has paid the proper court fee? Proved.
(5) Whether plaintiff has filed this suit to cause
hindrances in public work, if yes then whether
defendant is entitled to recover a sum of Rs.
5000/- towards special damages from plaintiff7
Not proved.
(6) Relief and Cost? Defendants will bear the cost of
plaintiff.”
After considering the material on record, the relevant
Issues were considered by the Trial Court as under:
“8. Now it has to see as to whether the plaintiffs
are lawful and valid owners of the disputed land then
in this regard it is clear that by way of Ext. P 1
and 2 the competent officer had transferred the title
of disputed land in favour of Dilip Singh as owner of
the disputed land. As far as the Ext. D 1 filed by
the defendant is concerned then the said document is
in possession of defendant himself wherein the
defendant can do any change at any time. But on
4
behalf of the defendants no such record has been
produced from which it would be clear that against
the order of Ext. Pl and 2 it has filed any appeal
and had got the said order set aside. Therefore,
under the aforesaid facts and circumstances, it is
clear that the order dated 7.12.60 had attained
finality. In aforesaid reference the Section
158(3)(1) of the M.P. Land Revenue Code has been
perused, herein it has been provided that each person
who is holding the land under his land ownership
right on the basis allotment by the State Government
or allotment officer on start of Land Revenue Code
1992 or prior to that on the basis of lease approved
prior to that. From such date of start with regard to
such land he will be presumed to be land owner and he
will have every right and responsibility. Which is
granted to any land owner by this code or has been
imposed thereon. But such any person will not
transfer such land within the period of 10 years of
lease or allotment. On perusal of this provision it
is clear that the plaintiff has not transferred the
said land. Plaintiffs have pleaded that at present
also they are doing farming on disputed land. This
fact is not being denied by any evidence produced on
behalf of the defendants. Therefore, it becomes clear
that under Section 18(3)(1) of the aforesaid Act,
husband of the plaintiff no.1 and father of the
plaintiff no. 2 had become owner of the disputed by
operation of law and after death of Dilip Singh,
plaintiffs who are his legal heirs, have become owner
of the said disputed land. Therefore, on the basis of
aforesaid analysis it becomes proved that the
plaintiffs are the valid owner and possession holder
of the disputed land.”
In the backdrop of this analysis, the conclusions arrived
at by the Trial Court were as under:
“13 (1) Plaintiffs are the legal and valid owner
and possession of the disputed land in Survey No.18/
1 New No.11 area 7 Bigha 9 Biswa, Survey No.19 new
No.12 area 2 Bigha 14 Biswa total area 10 Bigha 3
Biswa situated in village Milawali, Patwari Halqa
No.33 Tehsil District Gwalior.
5
(2) Defendants should not dispossess the plaintiffs
from disputed land without following the due process
of law nor should raise construction thereon nor get
the same done and should not cause any loss to the
crop of plaintiffs standing thereon.”
The suit was thus allowed by the Trial Court vide its
judgment and order dated 17.11.2005.
The determination by the Trial Court was not specifically
put in challenge by filing any appeal. However, Case No.27A/09
E.D. was filed on behalf of the respondent no.1 herein in the
Court of 14th Additional District Judge, Gwalior, Madhya
Pradesh against the present appellants as well as the
Government of Madhya Pradesh and Gram Panchayat Milawali.
It was stated on behalf of respondent no.1 that the lands
in question were allotted to it by way of a permanent lease by
the Collector, District Gwalior vide Document dated 31.08.2001
which was well before the decision was rendered on 17.11.2005
in the case instituted by the appellants.
The suit therefore claimed that the decree passed by the
Trial Court in said Case No.38-A/2005 be declared void and
inoperative.
6
The aforesaid suit was dismissed by the Trial Court vide
its judgment and order dated 25.10.2010.
The stand taken by the present appellants was set-out in
paragraph 4 as under:
“4. Defendant Nos.1 and 2 have denied the claim of
the plaintiff and have stated that the disputed land
has never been under the title and possession of the
defendant no.3. Instead the disputed land was the
land under title and possession of Dilip $ingh
husband of the defendant no.1 and father of defendant
no.2. After death of Dilip Singh the defendant nos.1
and 2 have become owner of this land. As far as the
question of grant of said disputed land on Lease to
the plaintiff by the Defendant No.3 on 31.08.2001 is
concerned, no such document has been produced by the
Plaintiff Organization and when disputed land is not
under the title of defendant no.3 then the defendant
no.3 does not have any right to allot the same on
lease. Defendant No. 3 has not mentioned this fact in
its written statement in Case No.38A/05 that it has
given the disputed land on lease to the plaintiff.
Order dated 31.08.2001 passed by the Collector does
not confer any title on the Plaintiff therefore suit
of the plaintiff may be dismissed.”
After considering material on record and the rival
submissions, the Trial Court found as under:
“l3. In this case, first of all this is an important
point as to whether is the land under title and
ownership of the Government of Madhya Pradesh? In
this regard the defendant witness no.1 Gurudayal
Singh has stated in his statement that the disputed
land $urvey No.11 and 12 situated in village Milawali
is under its title and possession. Earlier this land
was of Government of Madhya Pradesh. On behalf of the
Government of Madhya Pradesh the Add!. Nayab
Tehsildar, Gwalior vide the Order dated 7.12.60
passed in Case No.56/162 had given the said land to
7
Dilip Singh. Dilip Singh is his father. Order of
Tehsildar is Ext.D2. Original of the said Ext.D2 is
enclosed in Case No.38A/05, Smt. Harvansh Kaur Versus
Government of Madhya Pradesh in the the court of 2nd
Civil Judge Class 2, Gwalior. If this document is
perused then as per this document the Government of
Madhya Pradesh transferred ownership title of the
disputed land in favour of Dilip Singh and in
compliance thereof Dilip Singh deposited the revenue
vide Ext.D3.
16 Therefore, from the aforesaid analysis and
perusal of evidence of plaintiff and defendant it is
found that even though the disputed land was recorded
in the name of Government of Madhya Pradesh in
revenue records but the said land was given to Dilip
Singh by the Government and Dilip Singh during his
life time remain in possession of the land and after
his death the legal heirs of Dilip Singh filed suit
against the government and got their title declared
on the said land. In the written statement of
government of Madhya Pradesh in Case No.38A/05 in the
court of Second Civil Judge Class 2 also this fact
has not been mentioned that it has allotted the said
land to SADA. In the High Court written statement of
Government of Madhya Pradesh is Ext.D8. From this it
is also evident that during that period government
had not allotted the land to SADA as per law.
17. From the aforesaid analysis it is found that the
disputed land is not under the title and ownership of
Government of Madhya Pradesh, therefore, the issue
no.2 is hereby decided in negative.
18. As far as the issue no.3 is concerned, since from
the conclusion of issue no.2 it is proved that the
disputed land was not the land under the title and
ownership of Government of Madhya Pradesh. Therefore,
when disputed land does not belong to Government of
Madhya Pradesh then the government does not have
right to transfer this because government does not
have title over property and cannot transfer this to
any one, therefore” this allotment is found to be
baseless and this issue is hereby decided that the
government did not have right to give disputed land
to plaintiff on lease.
8
The conclusions arrived at by the Trial Court in its
judgment dated 25.10.2010 were:
“21. From aforesaid analysis it is found that the
disputed land had not been under the title and
ownership of Government of Madhya Pradesh,
therefore, had no right to transfer the suit land to
plaintiff on lease. Under such circumstances the
Lease issued by the Government on 31.8.2001 in
favour of plaintiff and from this plaintiff does not
get any title. Therefore, plaintiff is not entitled
to get the relief of injunction as sought.
Therefore, the issue no.5 is hereby decided in No.
Therefore, it is found that the suit of plaintiff is
not fit to be accepted and therefore is dismissed
and the following decree is passed:
l. Suit of the Plaintiff is hereby rejected.
2. Both parties will bear their own respective costs.”
Respondent no.1 being aggrieved filed First Appeal No.227
of 2011, which was dismissed by the Division Bench of the High
Court by its judgment and order dated 18.07.2013. The
observations made by the High Court on the concerned issues
were:
“From perusal of the record, it appears that in the
earlier suit which was numbered as C.S.No.38A/2005,
written statement was filed by the respondents No.3
and 4. In the said suit respondents No.1 and 2 filed
documents which are Ex.P.1 to Ex. P.12 which included
the order of Naib Tehsildar dated 07/12/1960, whereby
land was allotted to predecessor in title of
respondents No.1 and 2 and lease was also granted
which is Ex.112, to prove this document, respondents
No.1 and 2 have examined Gurdayal Singh as PW.l and
Sukhdev Singh as PW.2. Both the witnesses were cross
examined by Shri Kamal Jain, Government Advocate
9
thoroughly. Thereafter respondents No.3 and 4 also
examined Ashok Kumar Singh Rajpoot, Patwari of the
village. Neither. any evidence was adduced nor any
cross examination has been made that the land was
transferred to the appellant vide order dated
31/08/2001. In the revenue record of the year 2003-
04, the name of the Government is mentioned. Against
the judgment and decree no appeal has been preferred
by the respondents No.3 and 4. In the subsequent suit
which is filed by the appellant, number of documents
have been filed to demonstrate that the land in
question has been transferred to the appellant.
Ex.P.3 is the order dated 31/08/2001 whereby it is
alleged that the land has been transferred to the
appellant. As per condition No.2 of the said order,
the agreement was required to be executed amongst
appellant and respondents No.3 and 4, no such
agreement is produced, on the contrary it is admitted
in cross examination by the appellant that no such
agreement was ever executed.
In the facts and circumstances, this Court finds
that earned Courts below committed no error in
dismissing the suit filed by the appellant.”
On 04.10.2013, Review Petition No.450 of 2013 was filed
by the respondent no.1 submitting inter alia that certain
important documents could not be placed on record. Those
documents, according to the respondent no.1, were:
1. The allocation of land vide communication dated
16/23.07.2001 in favour of respondent no.1.
2. Agreement dated 09.08.2001 for transfer of land
in favour of respondent no.1.
3. Grant dated 31.08.2001 made by the Collector,
District Gwalior in favour of respondent no.1.
10
Allowing the Review Petition, the Division Bench of the
High Court held that there were errors apparent on record
justifying interference in the review jurisdiction. The order
dated 18.07.2013 was, therefore, recalled and the appeal was
restored to its file to be disposed of on merits. During the
course of its decision the High Court observed that the
procedure in terms of which the land was stated to have been
transferred in favour of Dilip Singh was not in conformity
with the settled procedure and that the initial entry of the
name of Dilip Singh was only for a period of two years and his
name was deleted from the revenue record after the period of
two years.
In this appeal challenging the decision of the High Court
allowing the Review Petition, we heard Ms. Prerna Mehta,
Advocate for the appellants and Mr. Prabuddha Singh, Advocate
for Respondent No.1.
The record clearly indicates that the issue concerning
the right, title and interest of the present appellants was
initially gone into the suit filed by the appellants. By its
judgment and order dated 17.11.2005, the Trial Court accepted
the claim and decreed the suit. It is pertinent to note that
the stand taken by the Government of Madhya Pradesh was quite
11
clear and specific and yet the submission made on its behalf
stood negatived. Furthermore, while considering the present
suit, the issues were again gone into by the Trial Court and
the assessment made by the Trial Court was affirmed by the
High Court while dismissing the First Appeal.
The documents which were the fulcrum for maintaining the
review petition were purely in the nature of grant or
allocation in favour of the respondents no.1 and 2. Those
documents did not in any way have any bearing on the
controversy which was gone into by the Trial Court on the
first occasion and again by the Trial Court and the High Court
in the second suit. The basic issue was whether the Government
of Madhya Pradesh could be said to be having title so as to
pass the same in favour of respondent no.1. The documents
annexed to the review petition were not, therefore, of any
relevance so as to entertain review petition.
In our view, the exercise undertaken by the High Court in
the present matter clearly amounted to reopening the issues on
merits, which exercise the High Court could not have
undertaken in its review jurisdiction.
12
We, therefore, allow this appeal and set-aside the order
dated 03.06.2019 passed by the High Court, without any order
as to costs.
……………………J.
(UDAY UMESH LALIT)
……………………J.
(S. RAVINDRA BHAT)
New Delhi,
October 22, 2021.
Comments