BAKHTIY AR HUSSAIN (DEAD) THR. LRS. v. HAFIZ KHAN AND ORS

Citation: [2007] 10 S.C.R. 266

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

BAKHTIY AR HUSSAIN (DEAD) THR. LRS. v. HAFIZ KHAN AND ORS.pdf

Judgment text

BAKHTIYAR HUSSAIN (DEAD) THR. LRS. ·/v. HAFIZ KHAN AND ORS. SEPTEMBER 24, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN, JJ. ] Code ofCivil Procedure, 1908-s. 100-Title suit-Defendants claiming to have perfected their title by adverse possession-Suit "' decreed on the finding that possession was permissible-Affirmed by First Appellate Court-Second appeal-Substantial question oflaw was formulated as to whether by virtue ofthe permission, defendants acquired Bhumiswami Right under Land Revenue Code-High Court setting aside the decree answering the substantial question oflaw in affirmative-On appeal, held : Substantial question of law was wronglyformulated, as the same did not arise out ofthe issue involved ).. ___. i. e. adverse possession-Second appeal is maintainable only when substantial question oflaw is involved-Matter remittedto High Court to consider whether any substantial question oflaw arose-Madhya Pradesh Land Revenue Code-ss. 168 and 169.

The suit ofthe appellant-plaintiffwas decreed and affirmed by First Appellate Court on the ground that defendants-respondents \vere in the permissible possession ofthe land in question and hence cannot be said to have perfected their title by adverse possession. In Second Appeal, substantial question of law was interalia formulated as to whether the defendants had acquired Bhumiswami rights u/s 168 of Madhya Pradesh Land Revenue Code. High Court held that the defendants had acquired the right ofoccupancy tenant and, therefore, no decree for eviction could be passed. In appeal to this Court appellant contended that High Court could not have decided the case relying on rights u/s 168 ofthe Code as no issue had been formulated in that regard. Partly allowing the appeal and remitting the matter to High BAKHTIYAR HUSSAIN (DEAD) THR. LRS. v. HAFIZ 267 Court, the Court -}- HELD: 1. It was nobody's case that the position related to possession ofthe defendants byway oflease or otherwise.

The basic issue related to adverse possession. There was no issue even relating to any lease having being executed. The High Court held that once it is concluded that the suit lands were cultivated with the permission of the Bhumiswami then considering the language of Section 168 ofthe Madhya Pradesh Land Revenue Code, that lease means transfer of right to enjoy any land made for a certain time, the question has to be considered accordingly. Section 169 of the Code has different parameters as compared to Section 168. There was no material evidence led in that regard. However, the substantial question oflaw formulated did not arise out ofthe orders ofthe courts below. In the circumstances, the impugned judgment cannot be maintained. [Paras 6, 7 and 8] (269-B, E, F; 271-E-F] 2. An appeal under Section 100 CPC is maintainable only if substantial question oflaw is involved. High Court to re-hear the ,..

\ matter and consider whether any substantial question oflaw arises which needs adjudication and thereafter to decide the appeal in accordance with law. [Para 8] (271-F-G] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 497- 498of2001. From the Judgment and Order dated 1. 7. 1999 of the High Court of Madhya Pradesh, Bench at Gwalior in Second Appeal No. 180 of >- 1993. B. S. Banthia for the Appellant. S. S. Khanduja for the Respondents. The Judgment ofthe Court was delivered by -~ DR. ARIJIT PASAYAT, J. 1. Challenge in these appeals is to the judgment ofa learned Single Judge ofthe Madhya Pradesh High Court in Second Appeal No. 180of1993. The appellant-plaintiff filed a suit for declaration ofhis title and permanent injunction in respect ofthe lands. The plaintiff claimed to be bhumiswami ofthe land. According to him, -. /deceased Nannu Khan and his son Hafiz Khan-respondent No. I forcibly secured the possession ofthe land on 1. 7. 1970 and deprived him ofhis rights over the lands.

According to him, the defendants had no right or interest to continue their possession over the suit lands. Therefore, the suit was filed. The defendants filed a joint statement and denied title of the plaintiffand pleaded that the plaintiffs right over the suit land had extinguished as they had perfected their title by adverse possession. Plaintiffused to reside in Bhopal for more than 20 years and the defendants are in possession ofthe suit lands openly to the knowledge ofthe plaintiff from 1962. Since their possession over the land was for more than 12 years, the suit is barred by limitation. The trial Court held that the possession ofthe defendants is not adverse but they are in permissible possession of the suit lands. Therefore, it was held that the plaintiff is entitled for a decree ofpossession. The first Appellate Court found that the defendants are in possession ofthe suit lands with the permission of the plaintiff.

It was also held that the defendants have failed to prove their adverse possession. Accordingly, the judgment and decree ofthe trial Court were affirmed. 2. Respondents filed Second Appeal in terms ofSection 100 ofthe Code of Civil Procedure, 1908 (in short the 'CPC'). The following question stated to be a substantial question of law was formulated for adjudication: "Whether the finding that the defendants were cultivating the lands p with the permission ofthe plaintiffs for more than six years from the date of filing of the suit, the defendants have acquired any Bhumiswami rights under Section 168 ofthe M. P. Land Revenue Code? " 3. According to the· High Court the only question which remained in the case was whether the possession ofthe defendants was by way of lease or otherwise. Analyzing the evidence on record it was held that the defendants had acquired the right ofoccupancy tenant and, therefore, no decree for eviction can be passed. 4.

According to learned counsel for the appellant no issue relating to any use ofrights or any rights under Section 168 ofthe M. P. Land -). - Revenue Code (in short the 'Code') was formulated. 5. An entirely new case has been made out in the Court. Learned counsel for the respondent submitted that in view ofthe findings recorded, the conclusions ofthe High Court cannot be faulted. 6. It is to be noted that the High Court has come to a conclusion that respondent No. I was son of the deceased and, therefore, was Bhumiswami under Section 169 ofthe Code. But, it is to be noted that it was nobody's case that the position related to possession of the defendants by way of lease or otherwise. The issues framed were as follows: 1. Whether the plaintiffhas title on the suit lands. 2. Whether the defendants have dis-possessed the plaintiff on 1. 7. 1970 and have taken illegal possession. 3. Whether the plaintiffis entitled to claim compensation and if so, what rate. ....... ~ 4.

Whether the defendants on the basis ofthe principle ofadverse possession have acquired title ofthe suit lands. 5. Reliefand costs. 7. As would be seen from the above the basic issue was Issue No. 4 which relates to adverse possession. There was no issue even relating to any lease having been executed. The High Court held that once it is concluded that the suit lands were cultivated with the permission ofthe Bhumiswami then considering the language ofSection 168 ofthe Code, that lease means transfer ofright to enjoy any land made for a certain time, the question has to be considered accordingly.

Sections 168 and 169 ofthe Code are read as follows: "Lease- Except in cases provided for in sub-section (2), no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period ofthree years: Provided that nothing in this sub-section shall apply to the lease ofany land- (i) made by Bhumiswan1i who is a member ofa registered Co- operative Fanning Society to such Society; (ii) held by a Bhumiswami for non-agricultural purposes. Explanation. -.

"For the purposes ofthis section- (a) "lease" means a transfer ofa right to enjoy any land, made for a certain time, expressed or implied in consideration ofprice paid or promised or ofmoney or any other thing ofvalue to be given periodically to the transferer by the transferee who accepts the transfer on such terms; (b} any arrangement whereby a person cultivates any land ofa Bhumiswami with bullocks belonging to or procured by such giving a specified share ofthe produce ofthe land to the Bhumiswami shall be deemed to be a lease; (c) the grant ofa right merely to cut grass or to graze cattle or to grow 'Singhara' or to propagate or collect lac, pluck or collect tendu leaves shall not be deemed to be a lease ofthe land.

(2) A Bhumiswami who is- (i) a widow ; or (ii) an unmarried woman ; or (iii) a married woman who has been deserted by her husband ; or (iv) a minor; or (v) a person subject to physical ormental disability due to old age or otherwise ; or (vi) a person detained or imprisoned under any process oflaw; or (vii) a person in the service of Armed Forces ofthe Union; or (viii) a public, charitable or religious institution; )- (ix} a local authority or a Co-operative Society; may lease the whole or any part ofhis holding: Provided that where a holding is held jointly by more than one person the provisions of this sub-section shall not be applicable unless all such persons belong to any one or more ofthe classes aforesaid: Provided further that any lease made in pursuance ofthis subsection shall cease to be in force after one year ofthe determination · ofthe disability by death or otherwise. (3) xx xx xx .

(4) Where a lease is granted in pursuance ofsub-section (2) the lessee shall hold the land on such terms and conditions as may be agreed upon between him and the Bhumiswami and may be ejected by an order of a Sub-Divisional Officer on the application ofthe Bhumiswami on the ground ofcontravention ofany material term or condition ofthe lease or on the lease ceasing to be in force. (5) Where on the coming into force ofhis Code any land is held on lease from a Bhumiswami who belongs to any one or more of D the classes mentioned in sub-section (2), such lease shall, on the coming into force ofthis Code be deemed to be a lease granted in pursuance ofsub-section (2). 169. Unauthorised Lessees. -If a Bhumiswami leases out for any period whatsoever any land comprised in his holding in contravention ofsection 168, the rights ofan occupancy tenant shall thereupon accrue to the lessee in such land. " 8. Section 169 has different parameters as compared to Section 168.

There was no material evidence led in that regard. However, the substantial question of law formulated did not arise out ofthe orders ofthe courts below. In the circumstances, the impugnedjudgment cannot be maintained and is set aside. We request the High Court to re-hear the matter and consider whether any substantial question of law arises which needs adjudication and thereafter to decide the appeal in accordance with law. Needless to say an appeal under Section 100 ofCPC is maintainable only ifsubstantial question oflaw is involved. 9. The appeals are allowed to the aforesaid extent with no order as to costs. K. K. T. Appeals partly allowed.