Baboolal vs Salim Khan and Others

Dr. T.N. Singh, J.

Plaintiffs are appellants. Their suit for declaration of title and possession has been dismissed.

It is a very unfortunate case and that is conceded at the Bar. The mountaineous record belie the short question crucial to disposal of this appeal I: is unfortunate because plaintiffs have been chasing a mirage and they have been entertaining false hopes for the last 30 years. It is submitted by Shri Lahoti, who appears for defendant-respondents, in this case, that initially plaintiffs had gone before the Civil Judge, Class II, on 4-5-1960 and later on plaint being returned, the fresh suit was instituted on 16-10-1969 in the Court of District Judge at Guna The impugned order was passed on 25-4-1930 (sic) the long travail which the parties have undergone unnecessarily and I would say that the plaintiffs ought to have been advised properly in respect of their legal entitlement at the threshold.

It is not disputed that all the four plaintiffs-appellants are successors of the right title and interest as of Harvirsingh and Shambhndayal Singh in the suit land. The question is if then predecessors in-interest had anything which could be passed on to them. About their bonafide purchase, no doubt can be entertained The case of the plaintiffs is that u/s 62 of M B Land Revenue and Tenancy Act, Samvat 2007 Patta was granted by the Tahsildar to Harvirsing and Shambhudayal Singh. The admitted position established on facts and that is not comtested, is that prior to that Harvirsingh and Shambudayal Singh bad no right title and interest of any manner in the suit land However, against grant of that Patta one Bismillabhai preferred objection and eventually that proceeding terminated in a compromise, Ex. P. made on 14-7-1953. Be it noted however, Sub-Divisional Officer had, in the meantime, cancelled the Patta of Harvirsingh and Shambudayal Singh and an appeal was pending before the Commissioner at that time. Thus, the compromise was filed before the Commissioner and on that he passed order, Ex. P 5, on 14-9-1953. True, in the instant case in the trial Court a large number of issues have been framed and the trial has taken a circutatious course with the enough labour spen uselessly on the validity of the compromise and many other things. I am clearly of the opinion. However, that those qaestions are not at all germane for final disposal of this appeal and were not even germane for disposal ot the suit. Whether the compromise was lawful or not and whether that was validly executed an duly proved or not are questions which, in my view, are neither chancing nor crucial foe disposal of the snit. I do not, therefore, like to traverse the enure giant of pleadings and evidence to reappreciate the conclusion or findings in regard to the other questions.

However, I must like to put on record my sincere appreciation of the very clear judgment passed by the trial Court in this matter by appreciating correctly the legal position and taking into consideration the material facts necessary for decision to be rendered legally on the main question I am happy to conform the finding and conclusion of the trial Court that under the compromise no title could be created in favour of any party. The legal position also is shat were recording in Khasras of anybody''s name as a bhumiswami would not vest title in him. Law also is that mutation entry merely is a prima facie evidence of possession and when a suit is instituted for declaration of tittle, and for possession on that basis, the plaintiff is required to establish title alliunde.

The question that had to be determined in the Court below has also in this Court in appeal is whether the Para which was originally granted to Harvirsingh and Shambhudayal Singh by Tahsildar has infact been duly restored in a legal manner in accordance with provisions of Act to them after that was cancelled by the Sub Divisional Officer That question has, been vey precisely and correctly decided by the trial Court Parties by their act cannot create a lost para which ceased to be valid when that was cancelled by the Sub-Divisional Officer. It was only the Commissioner, who has jurisdiction to restore that. But that he did not do Shri R.D. Jain, appearing for the appellants, has submitted and complained lamentably that the Commissioner acted illegally in passing the order dated 14.9.1953 without, in express terms, giving the relief which was due to the appellant. However, that question cannot be agitated in this appeal and that could not even be agitated in the trial Court That could be done only before the Board of Revenue The order, Ex P 5 merely records the compromise and it states that the application for recording compromise and the compromise petition shall form part of the order. The appeal was disposed of in those terms only. Nothing else was said. Even if erroneously, therefore any subordinate Revenue authority under any misconception of law did any act not warranted by the order, benefit of that would not accrue to the plaintiffs Under the Act paramount title in the land and power to grant patta vested in the state. Title could pass to the grantee when that power has duly and validly exercised.

It is submitted by Shri Jain that he cannot dispute the legal position but that the fact also is that if Harvir Singh and Shaumbhudayal Singh did not get anything or for that matter their successor in-interest, the plaintiffs did not get anything how under the impugned order, Bismillabai could not be benefitted by that order or by the compromise He has submitted that the defendants, who are purchasers from Bismillabai, and are in possession of the different places of land sold to them, feetwise; and that they would be trespassers. What''s of that ? On that ground the plaintiffs gain nothing. They must stand on the strength of their own title. Unfortunately, neither plaintiffs nor their predecessor-in-interent had been, at any time, in physical possession of the land to claim decree for permanent injuction to maintain their physical possession. Had that been the case, it would have been necessary for me to examine if the defendants had better right and title and if not, they were to make room for the plaintiffs. That exercise, unfortunately for the appellants, is wholly redundant.

Counsel has placed reliance on Apex Court''s decisions, with which I must deal. Sailendra Naravant Bhanja Devo1 is an authority for the proposition that a consent decree is binding on the parties and there may be a judgement by estoppel, with that proposition there can be no quarrel. The facts in that case were entirely different in a such as the parties litigating had duly acquired valid right or title in the suit land and had set up rival cases and rival entitlemants. In the instant case, the position is made clear above that neither party has been able to establish in law of having acquired validly any subsisting right, title or interest in the suit land. Shankr Sitaram3 is another case which Shri Jain has cited and that is also on consent decree and the effect of that on a partition suit. Indeed, that question is also not germane for decision of this appeal.

For the aforesaid reasons, this appeal merits dismissal but merits also no order as to costs.