M. R. Shah, J. - (1.) Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 29.10.2010 passed by the High Court of Madhya Pradesh, Bench at Indore in Second Appeal No.580 of 2003 by which the High Court has allowed the said appeal preferred by the respondent-original plaintiff Dungaji (now represented by his legal representatives) and consequently has decreed the suit declaring that the marriage between Dungaji (original plaintiff) and his wife Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (hereinafter referred to as 'the Act') and that the property inherited by Kaveribai from her mother, after divorce, cannot be treated to be a family property of Dungaji for the purposes of determination of surplus area under the Act and the High Court has also held that the Competent Authority had not followed the mandatory provisions of law before passing the order dated 18.05.1976 and consequently has declared the same order as null and void, the State of Madhya Pradesh and another have preferred the present appeal.
(2.) The facts leading to the present appeal in nutshell are as under: That, Kaveribai, wife of Dungaji, in the year 1966 inherited 19.89 hectares of land (land in dispute) after the death of her mother. That the said Kaveribai said to have sold the land in dispute through a Sale Deed dated 18.11.1971. That the proceedings were initiated before the Competent Authority under the Act regarding determination of surplus land. That the Competent Authority by its order dated 18.05.1976 treated Kaveribai as a member of the family of Dungaji and included 19.89 hectares of land inherited by her from her mother as the land held by the family of Dungaji for the purpose of determination of surplus area.2.1 That Dungaji instituted a suit before the learned Civil Court, Ujjain challenging the order dated 18.05.1976 passed by the Competent Authority under the Act, 1960. That the learned Trial Court by its Judgment and Decree dated 27.04.1988 dismissed the suit and upheld the order dated 18.05.1976 passed by the Competent Authority. That being aggrieved by Judgment and Decree dated 27.04.1988 passed by the learned Civil Judge, Ujjain, Dungaji preferred First Appeal No. 26-A/1989 before the First Appellate Court. The said appeal came to be allowed. The learned First Appellate Court remanded the matter back to the learned Civil Judge for fresh consideration after giving an opportunity of hearing to Dungaji. That thereafter Dungaji instituted a Civil Suit No.48-A/2002 before the learned Civil Judge, Ujjain against State of Madhya Pradesh and Kaveribai for declaration that the Order dated 18.05.1976 passed by the Competent Authority under the Act is illegal and null & void and also for a declaration of divorce between the plaintiff and Kaveribai and also for declaration that the plaintiff (Dungaji) does not have excess land under the provisions of the Act, 1960.2.2 That, it was the case on behalf of the original plaintiffDungaji that he had three wives Kaveribai, Kashibai and Nanibai. That after he had married Kashibai and Nanibai, his first wife Kaveribai started quarrelling with him and consequently, being fed up with the daily quarrel in the family, he had divorced Kaveribai 17 years prior to the filing of the suit as per the custom prevalent in the community. According to the plaintiff after the said divorce he and Kaveribai had been living separately and there had been no relationship of husband and wife between them. According to the plaintiff, after the aforesaid divorce, Kaveribai started living with her mother Amritabai. Amritabai had died and as such Kaveribai had inherited the land owned by her mother-Amrita Bai and the same land had been even mutated in the name of Kaveribai. The plaintiff pleaded that he had no concern with the aforesaid land owned by Kaveribai and therefore the same cannot be included in the holdings of the family of Dungaji. According to the plaintiff, Kaveribai is wrongly being treated as member of the family of plaintiff even after the divorce. According to the plaintiff, Order dated 18.05.1976 was null and void and not binding upon the rights of the plaintiff. The plaintiff also pleaded that proper procedure had not been followed by the Competent Authority while passing the order dated 18.05.1976.2.3 Kaveribai as original defendant no.3 filed a written statement and admitted that she had been divorced from the plaintiff-Dungaji. She also admitted that she had inherited a land measuring 19.89 hectares from her mother-Amritabai. The original defendant nos.1 and 2-the State of Madhya Pradesh and another (appellants herein) opposed the suit by filing a separate written statement. Defendant nos.1 and 2 denied that Dungaji had ever been divorced with Kaveribai and the land inherited by her from her mother was not to be included in the land held by the family of Dungaji. The Trial Court framed the requisite issues. The parties led their evidence. On appreciation of evidence, the learned Trial Court dismissed the suit by Judgment and Decree dated 22.10.2002. The learned Trial Court specifically observed and held that the plaintiff has failed to prove that there is any customary divorce which has taken place between the plaintiff and Kaveribai. The Judgment and Decree passed by the learned Trial Court came to be confirmed by the First Appellate Court. The original plaintiff carried the matter to the High Court by way of Second Appeal No.580 of 2003. The High Court framed the following substantial questions of law :"1. Had the findings recorded by both the Courts below that the customary divorce between late Dungaji and late Smt. Kaveribai had not been proved, been perverse and arbitrary, disregarding the oral evidence which had support of the documents and affidavits of both late Dungaji and late Smt. Kaveribai, though, there had been no cross-examination on the point and no rebuttal was led evidence on mere surmises or suspicion that theory of such divorce was put to defeat the provision of the Ceiling Act?2. Could the property inherited by Smt. Kaveribai from her mother form part of family property of late Dungaji and thus be declared surplus?3. Could the competent authority dismiss the objections of late Dungaji without holding any enquiry which was mandatory under the Provisions of the Ceiling Act?" 2.4 That by the impugned Judgment and Order, the High Court has allowed the said appeal and has quashed and set aside the Judgment and Decree passed by the First Appellate Court as well as the learned Trial Court, dismissing the suit and consequently has decreed the suit and has held that the marriage between Dungaji and Kaveribai has been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act, 1960 and also that the property, inherited by Kaveribai from her mother, after divorce, cannot be treated to be family property of Dungaji for the purposes of determination of surplus area. By the impugned Judgment and Order, the High Court has also held that the Competent Authority had not followed the mandatory provisions of law before passing order dated 18.05.1976 and consequently has held the order dated 18.05.1976 as null and void.2.5 Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court in Second Appeal No.580 of 2003, original defendant nos.1 and 2-the State of Madhya Pradesh and another, have preferred the present appeal.
(3.) Ms. Prachi Mishra, learned Counsel has appeared on behalf of the appellant-State and Mr. Guru Krishna Kumar, learned Senior Counsel has appeared on behalf of the respondents.;