Decided on March 17,1967

SHIVRAM Respondents


- (1.) THIS is a second appeal by the plaintiff from the dissident judgment of the first appellate Court setting aside the decree in his favour allowing his suit for vacant possession by ejectment of the defendants tenants from certain agricultural lands. The questions for decision are the following : on jurisdiction, whether section 168 (4) of the Madhya Pradesh Land Revenue code gives exclusive jurisdiction to the Sub-Divisional Officer in the manner set out in section 257 of the Code, or whether this provision notwithstanding, the landlord claiming the benefit of one of the headings in section 168 (2) can sue in the civil Courts for the ejectment of the occupant; secondly, whether the defendants are prevented from getting occupancy rights under section 185 by the operation of section 168 (2) ; and thirdly, whether in view of section 189 (1)the landlord is now debarred from going to any Court after the lapse of one year from the commencement of the Code.
(2.) THE facts of the case are broadly speaking common ground. The plaintiff-appellant is an Inamdar holding certain lands in Inam. Actually there seems to have been some disputes between him and his co-shares-Inamdars which went up to the Courts. Ultimately it was decided that the lands in suit should be taken away from the co-sharer and given to the plaintiff. A delivery of possession was also ordered by the revenue Courts. At this stage a complication arose. The land was not vacant or in the cultivation of the co-sharer Inamdar, but was occupied by the defendants who had all the time been cultivating and paying rent to the co-sharer Inamdar. While the plaintiff wanted vacant possession of these lands the position taken by the defendant was that he was entitled only to what is called symbolic or constructive possession ; in other words, the right to receive the rent and not to take physical possession. At the first instance the revenue authorities concerned tried to give vacant possession; but later on, on a reference to the Inam Commissioner the tehsildar was advised that what was meant by the order for possession was that the plaintiff should get constructive possession that is only the right to receive rent and not actual physical possession. Accordingly the defendants were put into possession and the plaintiff came to the civil Court. While the original litigation was between the co-sharer Inamdars, the present one between the successful co-sharer and the tenants on the land is of a very narrow scope, namely, whether in view of section 185 of the Revenue Code which came into force during the pendency of the litigation the defendants had become occupancy tenants. The next stage would be that the occupancy tenant becomes the Bhumiswami after certain payments and formalities but that apparently has not yet been reached. The trial Court held that the defendants had not become the occupancy tenants and accordingly decreed the suit. It also held that the civil Courts were competent to hear a case of this kind. The appellate Court on the contrary was not prepared on the merits to find that section 168 (2) did in the instant case prevent the accrual of occupancy rights. The plaintiff landlord was no doubt blind and in that sense disabled. But that disability in the opinion of the appellate Court did not prevent him from cultivating the land. More than this the appellate Court held that the only forum which a landlord in the position of the plaintiff could approach is the Sub-Divisional Officer. Accordingly he dismissed the suit.
(3.) THE general picture is clear enough. For many years this land has been in the cultivating possession of the defendants but apparently it was the plaintiff's co-sharers that had inducted them. There also seems to have been some litigation between these co-sharers and the present defendants all of which has no direct bearing on the controversy before us, namely, whether or not the defendants have acquired occupancy rights by the operation of section 185 of the Land Revenue Code. This question as such was not even the subject-matter of the previous litigation for the obvious reason that it was before the commencement of the Code. Before the revenue authorities themselves this question came up indirectly when the Tehsildar sought a clarification from the inam Commissioner who in his turn advised that only symbolic possession, that is to say, the right to receive rent should be given to the plaintiff. Therefore, the previous litigation whatever its effect does not conclude this question.;

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