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State Of M.P. And Ors. vs Shiv Prasad And Ors. on 7 July, 2003

Madhya Pradesh High Court
State Of M.P. And Ors. vs Shiv Prasad And Ors. on 7 July, 2003
Equivalent citations: 2004 (2) MPHT 202
Author: S Pande
Bench: S Pande


JUDGMENT

S.K. Pande, J.

1. Being aggrieved by the judgment/decree dated 12-8-88, passed by District Judge, Shahdol in C.A. No. 84- A/81, reversing the judgment/decree, dated 19-8-81, passed by Civil Judge Class I, Shahdol in C.S. No. 2-A/76, defendant/appellant has preferred this appeal under Section 100, CPC.

2. The appeal has been admitted on the following substantial questions of law:–

” (1) Whether the Lower Appellate Court was right in construing the provision under Section 6 of the M.P. Ceiling on Agricultural Holdings Act ?

(2) Whether the suit was filed within time ?”

3. Facts in brief are, plaintiffs/respondents Beni Prasad, Ramkishore respectively are sons of plaintiff/respondent Shiv Prasad. Shiv Prasad is recorded Bhumiswami of 77.46 acres of land. The Competent Authority under the M.P. Ceiling on Agricultural Holdings Act (hereinafter called “Act”) started proceedings for determining the surplus land and held that 23.46 acres of land was surplus as such liable to vest with the State. Order dated 13-12-75 (Exhibit P-19) accordingly was passed in Rev. Case No. 260-A-90 (3)/74-75. While determining 23.46 acres of land as surplus the Competent Authority overruled the objection that plaintiffs/respondents Shiv Prasad constituted a Joint Hindu Family alongwith his major sons Beni Prasad, Ram Kishore, who being co-parceners were entitled to share in the ancestral land 77.46 acres. Accordingly, plaintiffs/respondents instituted C.S. No. 2-A/76 in the Court of Civil Judge Class I, Shahdol, challenging the order dated 13-12-75 (Exhibit P-19) on the ground that the Competent Authority had not calculated the entitlement of the holders correctly. Order declaring 23.46 acres of land as surplus be declared as void. Defendant/appellants contested the suit and stated that there was a partition between plaintiff/respondent and sons then they have been living separately. Plaintiff/respondent Shiv Prasad alone is the recorded Bhumiswami of the suit land 77.47 acres. Therefore, order dated 13-12-75 declaring 23.46 acres of land as surplus is valid. The suit filed by plaintiffs/respondents is time barred. The Civil Judge vide judgment dated 19-8-81 in C.S. No. 2-A/76 held that plaintiffs/respondents are not members of Joint Hindu Family held plaintiff/respondent Shiv Prasad alone is the Bhumiswami of the suit land 77.46 acres. The suit has been filed within prescribed period of limitation. The order dated 13-12-75 passed by Competent Authority as to the entitlement of holder plaintiff/respondent Shiv Prasad was correctly ascertained. Consequently, C.S. No. 2-A/76 was dismissed. The First Appellate Court dealt with the points aforesaid and in judgment Paras 7, 8 and 13 respectively has held :–

“7. Section 2 (h) of the Act defines ‘holder’ to mean a tenure holder or an occupancy tenant or a Government lessee of land within the State and the expression to hold land or “holding land” shall be construed accordingly. “Family” is defined in Section 2 (gg) of the Act to mean, husband, wife and their minor children. (See also Krishna Kumar v. State of M.P., 1982 MPLJ 332; Sarjubai v. State of M.P., 1983 Revenue Nirnay 161 (HC); Soorat Singh v. State of M.P., 1984 JLJ 165). It is well settled that the meaning of the word “family” that is to be assigned in Section 7 (1) of the Act is the one given in the definition of ‘family’ in Section 2 (gg) of the Act. [Soorat Singh v. State of M.P. (supra)]. It has also been held in the case of Soorat Singh (supra) that Sections 6 and 7 of the Act have to be construed harmoniously and ultimately to determine the ceiling area which a holder is entitled to hold under Section 7 of the Act. These two sections are harmoniously construed in this manner that after the notional partition under Section 6 (ii) of the Act, the persons falling within the purview of the definition ‘family’ shall be treated to one unit. The extent of the fiction provided in Section 6 (ii) ibid is, thus controlled by Section 7 of the Act. It may be remarked here that the ‘family’ that has been recognised as a unit for the purpose of determining the ceiling of agricultural holdings under the Act is the ‘family’ as defined under the Act and not the Joint Hindu Family as contemplated under the Hindu Law, though the Act takes notice of the existence of a Joint Hindu Family and it being a holder of agricultural lands. Section 7 of the Act has made provisions for the extent of the area of land that could be retained by its members entitled to a share in the agricultural holding of the family.

8. It has also been held in Sarjuhai v. State of M.P. (supra) that the definition of the ‘family’ as used in Section 2 (gg) of the Act when read with Section 6 (ii) and Proviso to Section 7 would permit clubbing together of all the lands held by any member of the ‘family’ for the purpose of ascertaining the area to be left by the family in accordance with the law laid down in Section 7 (i) of the Act. The aforesaid proposition of law has also been approved by the Supreme Court in Ramendrasingh v. State of M.P., 1984 Revenue Nirnay 156 (SC).

13. In the instant case, the order of the Competent Authority (Ex. P-19) clearly shows that after receipt of the objections from the holder of the land (plaintiff No. 1), no such enquiry was made by the Competent Authority with regard to the family members and their entitlement under the Act. The inevitable result which flows from the definition of the term ‘family’ as used in Section 2 (gg) read alongwith the Proviso Section 7 of the Act is that the entire land held by any member of the family has to be clubbed together for determining the ceiling area in terms of Section 7 (1) of the Act. The order (Ex. P49) further shows that the entire land held by the plaintiffs has not been clubbed together for the purpose of ascertaining the area to be left with the family in accordance with the rules laid down in Section 7 (1) of the Act. In the instant case, by operation of the fiction provided by Section 6 (ii) of the Act, there would be a notional partition on the appointed day, that is, the 7th March, 1974, between the plaintiffs and each of them would be entitled to equal share in the lands in question. In the instant case, the family of the plaintiff No. 1, that is, himself, his wife and minor son, if any, are entitled to hold 54 acres of dry land under Section 7 (1) (b) of the Act and the remaining surplus land of 23.46 acres shall be passed to his major sons (plaintiff Nos. 2 and 3) subject to their entitlement under Section 7 (1) of the Act. Consequently, I have no hesitation in coming to the conclusion that the Competent Authority has not calculated the entitlement of the plaintiffs in accordance with the rules laid down in Section 7 (1) of the Act and, therefore, the order of the Competent Authority (Ex. P-19) is invalid and ineffective.”

4. Shiv Prasad (P.W. 1) has stated that the suit land 77.46 acres are held by Joint Hindu Family consisting of himself and two sons Beni Prasad, Ramkishore. Among other members of Joint Hindu Family, there had been a registered partition dated 31-12-76 (Exhibit P-18). Same are the statement of Beni Prasad (P.W. 2), Ram Kishore (P.W. 3). These statements are supported by Bhagwan Saran (P.W. 5). As against these statements, no evidence has been adduced by the defendant/appellant State of M.P. Exhibits D-1, D-2 Khasra entries have been filed. The Civil Judge in the judgment dated 19-8-81 has dealt with this aspect of Joint Hindu Family vis-a-vis partition in Paras 6, 7, 8 and 9 of the judgment. Much emphasis has been made in respect of Khasra entries of different lands. Members of Joint Hindu Fami’y may hold land separately. Therefore, the First Appellate Court on appreciation rightly concluded that there was a Joint Hindu Family consisting of plaintiffs/respondents Shiv Prasad, Beni Prasad, Ramkishore and suit land 77.46 acres was hold by the Joint Hindu Family, although it was recorded in the name of plaintiff/respondent Shiv Prasad only.

5. Sections 6 and 7 of the Act have to be construed harmoniously and ultimately to determine the ceiling area which a holder is entitled to hold under Section 7 of the Act. After notional partition under Section 6 (ii) of the Act, the persons falling within the purview of the definition ‘family’ shall be treated to one unit. Section 6 (ii) is, thus controlled by Section 7 of the Act.

6. Provisions under Section 6 of the M.P. Ceiling on Agricultural Holdings Act was rightly appreciated by the First Appellate Court with reference to Section 7 of the Act. Accordingly, on appreciation, it was rightly held that order dated 13-12-75 declaring 23.46 acres of land as surplus, vested in the State as passed by the Competent Authority was not valid.

7. Order declaring 23.46 acres of land as surplus was passed on 13-12-75 (Exhibit P-19). Plaintiff/respondents seeking relief of declaration in respect of this order, filed C.S. No. 2-A/76 on 12-3-76. Therefore, the Civil Judge rightly held that under Section 11 (5), the suit as filed was within time. This finding of fact arrived at was upheld by the First Appellate Court.

8. In the circumstances, the First Appellate Court rightly allowed the appeal reversing the judgment/decree dated 19-8-81 passed by Civil Judge Class I, Shahdol. C.S. No, 2-A/96 was rightly decreed. Consequently, the appeal fails and is dismissed.

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