M.C.C. No.2109/2008
05.10.2009 :
This is an application for review of our order dated
22.08.2008 passed in W.P. No.4434/2003.
The facts briefly are that the applicant, who has filed the
review application, filed a writ petition W.P. No.4434/2003 before
this Court as Public Interest Litigation stating therein that he is a
resident of Balaghat city and alleging that a tank known as 'Devi
Talab' is situated in Khasra No.319 of Balaghat city in an area of
16.14 acres and is a religious place and many temples have been
constructed on the bank of the tank which was being used by the
general public for drinking water, Singhara crop and irrigation, but
by an order passed by the Tahsildar, Balaghat on 25.04.1985, the
Tank has now been recorded in the revenue records in the name
of some private persons and the private persons have transferred
a part of the tank land in favour of M/s Rishabh Developers and
Builders, Balabhat in 1998. The Court entertained the writ petition
but by the orders passed on 22.08.2008, dismissed the writ
petition after finding that Second Appeal No.120/1974 filed by one
Umrao Bi & others, from whom respondent No.6 has purchased
the tank land, had been decreed in favour of Umrao Bi and
against the judgment and decree dated 17.11.1980 passed by the
learned Single Judge in Second Appeal No.120/1974, the State of
Madhya Pradesh filed a Special Leave Petition to Appeal (Civil)
No.9899/1981, but by order dated 09.12.1993 the Supreme Court
has dismissed the Special Leave Petition. In the said order dated
22.08.2008, however, this Court observed that if the case of the
petitioner is that the decree was void for any reason whatsoever,
the remedy of the petitioner is not the writ petition but appropriate
proceedings for declaring the judgment and decree to be void.
The ground taken in the review application is that Umrao Bi
and others, who had filed original suit No.28-A/1971 in the Court
of II Civil Judge, Class-II, Balaghat, never claimed title to the
entire 16.14 acres of tank land situated in Khasra No.319 in
Balaghat town and this will be clear from a copy of the original
plaint in the civil suit annexed to the review application as
Document-B. More specifically, the ground urged by the review
applicant in this review application is that only 0.01decimal out of
Khasra No.319 in Balaghat town was claimed by Umrao Bi and
others in the aforesaid suit and, therefore, the judgment and
decree passed by the learned Single Judge in Second Appeal
No.120/1974 declares at best the title of Umrao Bi to the land
measuring 0.01 decimal out of 16.14 acres of tank land in Khasra
No.319 in Balaghat town.
In view of the aforesaid ground taken in the review
application, by our order dated 10.09.2009 we directed that this
review application be listed along with the records of Second
Appeal Nos.119/1974 and 120/1974 and accordingly, the records
of the two second appeals have been placed before us. Second
Appeal No.120/1974 was filed by Umrao Bi against the State of
Madhya Pradesh and by judgment dated 17.11.1980, a learned
Single Judge of this Court has allowed the appeal and set aside
the judgments and decrees of the trial and first appellate courts
and decreed the plaintiff’s suit with costs for the reasons given in
the judgment delivered by him in Second Appeal No.119/1974.
On a perusal of the records of Second Appeal No.119/1974, we
find that the said second appeal was filed by Narayan Singh, who
had obtained a licence in his favour from Umrao Bi under Exhibit
P-1 in the year 1953 and by the licence he was permitted to build
upon the land in dispute and a building stands on that land. We
further find from the judgment of the learned Single Judge in
Second Appeal No.119/1974 that in para 5 of the judgment the
learned Single Judge has found that under Exhibit P-3, which is
the list prepared under Section 5(g) of the Abolition Act, the land
in Khasra No.319 was settled with the ex-proprietor (Umrao Bi) in
occupancy rights and land revenue was also fixed against this
khasra number and it appears from Exhibit P-3 that the tank was
treated as having been vested in the State and then resettled in
terms of Section 5(g) of the Act with the ex-proprietor Umrao Bi.
The learned Single Judge has held that these being the facts, the
case was squarely covered by the decision of the Supreme Court
in Sub Divisional Officer, Mandla vs. Pirma Gond, 1969
M.P.L.J. 713 S.C. The learned Single Judge further held that
since there was no material on record to reach a finding that the
tank in question was situate on unoccupied land, the decision of
this Court in Raghubar Singh vs. State of M.P., 1971 M.P.L.J.
594 was not applicable for want of necessary data.
Considering the aforesaid findings given by the learned
Single Judge in second appeals, we do not think that we should
reopen the matter and grant the review prayed for in the
application but as is observed in the order dated 22.08.2008 in
W.P. No.4434/2003, in case the applicant is of the view that the
decree was void for any reason whatsoever, the remedy of the
applicant is not writ petition but appropriate proceedings for
declaring the judgment and decree to be void. It is only in such a
suit that the area of land under Khasra No.319 and the nature of
land and all other relevant facts can be ascertained by the Court
on oral and documentary evidence and the High Court in a writ
petition cannot entertain these questions to decide the claim of
the applicant.
We make it clear that in W.P. No.4434/2003 and in this
review application, we have not decided the title of Umrao Bi or
Narayan Singh or any other party claiming either under Umrao Bi
or Narayan Singh. Hence it is for the trial Court before whom a
suit is filed, if any, to decide the matter in accordance with law.
For the aforesaid reasons, the application is dismissed.
(A.K. Patnaik) (Ajit Singh)
Chief Justice Judge
Skc