CHATTAR SINGH & ORSversusMADHO SINGH & ORS.

436                      [2019]REPORTS
               SUPREME COURT   3 S.C.R. 436                  [2019] 3 S.C.R.


A                          CHATTAR SINGH & ORS.
                                         v.
                            MADHO SINGH & ORS.
                         (Civil Appeal No. 8718 of 2012)
B                             FEBRUARY 06, 2019
                 [ARUN MISHRA AND NAVIN SINHA, JJ.]
             Madhya Bharat Zamindari Abolition Act, 1951 – s.4(1)(a),
      4(2) and 5(f) – Father of defendant nos.2 & 3 claimed that the land
      in question be granted to him as it was recorded in his name before
C
      the abolition of Zamindari Rights – Plaintiffs filed suit inter alia for
      declaration pleading that the suit land was recorded as ‘Charnoi’
      i.e. common land used for grazing cattle by the villagers and it was
      illegally given to the defendants – Trial Court decreed the suit –
      Appellate Court reversed the same holding that it was a grove and
D     saved from the vesting u/s.5(f) – High Court reversing the findings
      of the Appellate Court held that the land was recorded as Charnoi
      land and as such it vested in the State and it was not khud-kasht
      land of the ex-proprietor – Held: In order to save the land from
      vesting, s.4(2) requires land to be ‘personally cultivated’ by
      Zamindar or through employees or hired labourers and another
E
      sine qua non is that it should be so recorded in revenue papers as
      “khud-kasht”, otherwise all land vest in the State as provided in
      s.4(1)a) – Once the land is recorded as ‘Charnoi’, such common
      land clearly vests in the State as provided in s.4(1)(a) – s.5(f) did
      not confer any rights on Zamindars on such common land and did
F     not save the same from vesting, once it was recorded as ‘Charnoi’
      for public purpose before the date of vesting in the year, 1950-1951 –
      When land is primarily used for ‘Charnoi’ i.e. common grazing land
      for cattle of villagers, it would not fall into the category of ‘grove’
      and s.5(f) would not save such trees from vesting – It cannot be
      retained by Zamindar as he had no existing right on such land even
G
      before date of vesting, it being common land, it belonged to villagers
      – No individual can claim that such land belongs to him exclusively
      – Trial Court rightly decreed the suit in favour of villagers – No
      ground to interfere with the judgment of the High Court –
      M.P. Land Revenue Code, 1959.
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                                       436
     CHATTAR SINGH & ORS. v. MADHO SINGH & ORS.                           437


      Dismissing the appeal, the Court                                    A
      HELD: 1.1 Section 4, Madhya Bharat Zamindari Abolition
Act, 1951 makes it clear that all lands (cultivable, barren or bir),
forest, trees, village-sites, hats, bazars, mela-grounds shall vest
in the State automatically free from all encumbrances. Section
4(2) provides saving of only khud-kasht land, which is so recorded        B
in the Samvat year 2007 corresponding to the agricultural year
1950-51 before the date of vesting. The date of vesting is
2.10.1951. In order to save the land from vesting Section 4(2)
requires land to be ‘personally cultivated’ by Zamindar or through
employees or hired labourers and another sine qua non is that it
should be so recorded in revenue papers as “khud-kasht”,                  C
otherwise all land vest in the State as provided in Section 4(1)(a).
Once the land is recorded as ‘Charnoi’ i.e., common land reserved
for grazing of cattles of villagers, such common land clearly vests
in the State as provided in Section 4(1)(a) all the land, the forest,
trees, village-sites, pathways etc. vest in the State absolutely.         D
Since the land was ‘Charnoi’ i.e., common grazing land for cattle
of the villagers having huge area 72 bighas 18 biswa the fruit-
bearing trees of custard apple also vested in the State. The
provisions contained in Section 5(f) did not confer any rights on
Zamindars on such common land and did not save same from
vesting, once it was recorded as ‘Charnoi’ for public purpose             E
before the date of vesting in the year 1950-51 i.e., Samvat year
2007. [Paras 9-11] [443-B-G]
       1.2 For “grove” to be recognized as such should be of such
trees when fully grown preclude land on which they are standing
from being used for a purpose other than that of grove-land. When         F
land is used for ‘Charnoi’ i.e. common grazing land for cattle of
villagers, it would not fall into the category of ‘grove’ and provision
of Section 5(f) would not save such trees from vesting. The village
sites, comprise of common land reserved for villagers, vest in
State. It cannot be retained by Zamindar as he had no existing            G
right on such land even before date of vesting, it being common
land, it belonged to villagers. No individual can claim that such
land belongs to him exclusively. The fruit bearing trees
irrespective of numbers have also vested in the State under
Section 4(1)(a). No right can be claimed on trees on such common
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438            SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     land under Section 5(f) by a proprietor. The decision taken by
      the Additional Commissioner while holding that land being grazing
      land has vested in the State was in accordance with law. The
      Board of Revenue’s order to the contrary was perverse and illegal.
      [Para 12] [444-E-H]
B            1.3 The question as to title in view of the provisions under
      the M.P. Land Revenue Code, 1959 is the domain of civil court,
      the Trial Court was absolutely right in decreeing the suit in favour
      of villagers. Such common land could not have been settled at all
      in favour of the erstwhile proprietor or his legal representatives.
      The approach of the First Appellate Court holding it to be grove
C     was perverse. The First Appellate Court failed to understand
      the purport of ‘Charnoi’ which is a common land reserved for the
      public purpose and is not exclusively for grazing of cattle of
      Zamindar. Such village sites/common land clearly vests in the
      State automatically free from all encumbrances. There is
D     absolutely no ground to interfere with the impugned judgment of
      the High Court. [Paras 13, 15] [445-A-C, E]
            Shrimant Sardar Chandrojirao Angre v. State of Madhya
            Pradesh [1968] 1 SCR 761 – referred to.
                             Case Law Reference
E
            [1968] 1 SCR 761           referred to          Para 5


            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8718
      of 2012.
F
            From the Judgment and Order dated 17.04.2005 of the High Court
      of Madhya Pradesh, Bench at Indore in Second Appeal No. 302 of
      1982.
            Sushil Kumar Jain, Sr. Adv., Puneet Jain, Ms. Christi Jain,
G     Abhinav Gupta, Ms. Ankita Gupta, Ms. Pratibha Jain, Advs. for the
      Appellants.
           B. S. Banthia, B. K. Satija, Rajesh Kandari, Advs. for the
      Respondents.

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      CHATTAR SINGH & ORS. v. MADHO SINGH & ORS.                                439


       The following Judgment of the Court was delivered:                       A
                               JUDGMENT
       1. The issue in the present appeal is whether the land recorded as
‘Charnoi’ i.e. Common land for grazing of cattle of villagers vests in
State on abolition of intermediaries on 02.10.1951 or it was saved from
vesting in favour of proprietor being grove under section 5(f) of the           B
Madhya Bharat Abolition of Zamindari Act.
        2. The plaintiffs/respondents filed suit for declaration and
permanent injunction with respect to the suit land. They specifically
pleaded that the suit land was recorded as Charnoi and it had been used
for the purpose of grazing their cattle by the villagers and illegally it has   C
been given to the defendants. Kalu Singh, father of defendant Nos.2
and 3, who was the ex-zamindar filed an application before the Tehsildar
praying that the suit land be granted to him because it was recorded in
his name before the abolition of Zamindari Rights. The Tehsildar rejected
the application. Thereafter, he filed appeals before the Sub-Divisional         D
Officer and Additional Commissioner both the authorities dismissed the
appeals. Thereafter, the appeal was filed before the Board of Revenue
by Kalusingh. The Board of Revenue vide order dated 2.12.1959 set
aside the orders of Tehsildar and Sub Divisional Officer and Additional
Commissioner and held that Kalusingh is entitled to get the land in his
name as Bhumiswami, in view of Section 5(f) of the Madhya Bharat                E
Zamindari Abolition Act. On the basis of the aforesaid order the father
of defendant Nos.2 and 3, filed an application before the Collector and
Collector vide order dated 14.3.1968 granted the suit land in area 72
Bigas and 18 Biswas to the father of defendant Nos.2 and 3 as
Bhumiswami. After the death of their father, defendant Nos.2 and 3              F
filed an application before the Collector that their names be recorded as
Bhumiswami over the aforesaid land and that application has been allowed
by the Collector on 13.05.1968. As against the said orders, the plaintiffs
filed the suit.
        3. In the instant case, the entries prior to the date of abolition      G
clearly record the land to be Charnoi land and subsequent thereto also
the land had been recorded continuously as Charnoi land. Apart from
that, there was admission made by the defendant that villagers had been
grazing their cattle in the land in question up to 1967. Relying upon the
admission coupled with the khasra entries to which statutory presumption
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440            SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A     of correctness is attached. The Trial Court decreed the suit. However,
      the Appellate Court reversed the same holding that it was a grove and
      saved from the vesting under the provisions of Section 5(f) of the Madhya
      Bharat Zamindari Abolition Act, 1951, which came into force on
      2.10.1951.
B            4. The High Court has reversed the findings of the First Appellate
      Court. The High Court has considered and relied on the khasra entries
      to hold that it was recorded as Charnoi land as such vested in the State
      and it was not khud-kasht land of the ex-proprietor.
            5. Shri Sushil Kumar Jain learned senior counsel appearing for
C     the appellant(s) has vehemently argued at length. He relied upon a
      decision of this Court in Shrimant Sardar Chandrojirao Angre v. State
      of Madhya Pradesh, reported in (1968) 1 SCR 761, to contend that
      such groves are saved from vesting. He submits that there were more
      than one lac trees of sitafal (pumpkin) and that finding has not been
      reversed by the High Court. As such it should be treated as ‘grove’.
D
            6. Learned counsel appearing on behalf of the respondents has
      supported the judgment of the Trial Court and that of the High Court.
             7. The provision contained in Section 4 of the Madhya Bharat
      Zamindari Abolition Act deals with the consequences of vesting. Section
E     4 is extracted hereunder:
            “4. Consequence by the vesting of an estate in the State. - (1)
            Save as otherwise provided in this Act when the notification under
            Section 3 in respect of any area has been published in the Gazette,
            then, notwithstanding anything contained in any contract, grant or
F           document or in any other law for the time being in force, the
            consequences as hereinafter set forth shall from the beginning of
            the date specified in such notification (hereinafter referred to as
            the date of vesting) ensue, namely :-
            (a) all rights, title and interest of the proprietor in such area,
            including land (cultivable, barren or Bir), forest, trees, fisheries,
G
            wells (other than private wells), tanks, ponds, water channels,
            ferries, pathways village-sites, hats, and bazars and mela-grounds
            and in all sub-soil, including rights, if any, in mines and minerals,
            whether being worked or not shall cease and be vested in the
            State free from all encumbrances;
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CHATTAR SINGH & ORS. v. MADHO SINGH & ORS.                              441


(b) all grants and confirmation of the title of or to land in the       A
property so vesting or of or to any right or privilege in respect of
such property or land revenue in respect thereof shall whether
liable to presumption or not, determine;
(c) all rents and cesses in respect of any holding in the property
so vesting for any period after the date of vesting which, but for      B
such vesting would have been payable to the proprietor, shall vest
in the State and be payable to the Government and any payment
made in contravention of this clause shall not be a valid discharge
of the person liable to pay the same;
Explanation. - The word “Holding” shall for the purpose of this
clause be deemed to include also land given, on behalf of the           C
proprietor, to any person on rent for any purpose other than
cultivation;
(d) all arrears of revenue, cesses or other dues in respect of any
property so vesting and due by the proprietor for any period prior
to the date of vesting shall continue to be recoverable from such       D
proprietor and may, without prejudice to any other mode of
recovery, be realised by deducting the amount from the
compensation money payable to such proprietor under Chapter
V;
(e) the interest of the proprietor so acquired shall not be liable to   E
attachment or sale in execution of any decree or other process of
any Court, civil or revenue, and any attachment existing at the
date of vesting or any order for attachment passed before such
date shall, subject to the provisions of Section 73 of the Transfer
of Property Act, 1882, cease to be in force;
                                                                        F
(f) every mortgage with possession existing on the property so
vesting or part thereof on the date immediately preceding the date
of vesting shall, to the extent of the amount secured on such
property or part thereof be deemed without prejudice to the rights
of the State under Section 3, to have been substituted by a simple
mortgage.                                                               G
(2) Notwithstanding anything contained in sub-section (1), the
proprietor shall continue to remain in possession of his Khud-kasht
land, so recorded in the annual village papers before the date of
vesting.
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442            SUPREME COURT REPORTS                             [2019] 3 S.C.R.


A           (3) Nothing contained in sub-section (1) shall operate as bar to
            the recovery by the outgoing proprietor of any sum which becomes
            due to him before the date of vesting in virtue of his
            proprietary rights.”
             8. The provision contained in Section 5 of Madhya Bharat
B     Zamindari Abolition Act deals with private wells, trees, buildings, house
      sites, and enclosures. Section 5(f) deals with groves. Section 5 is
      extracted hereunder:
            “5. Private wells, trees, buildings, house sites, and enclosures.–
            (a) All open enclosures used for agricultural or domestic purposes
C           and in continuous possession (which includes possession of a
            former proprietor) for twelve years immediately before the 1st of
            January, 1951, all open house sites purchased for consideration,
            all buildings, places of worship, wells, situated in and trees standing
            on lands included in such enclosures of house-sites or land
            appertaining to such buildings or places of worships within the
D           limits of a village-site belonging to or held by the outgoing proprietor
            or any other person shall continue to belong to or be held by such
            proprietor or other person as the case may be, and the land thereof,
            with the areas appurtenant thereto, shall be settled with him by
            the Government on such terms and conditions as it may determine.
E           (b) All private wells and buildings on occupied land belonging to
            or held by the outgoing proprietor or any other person shall continue
            to belong to or be held by such proprietor or other person.
            (c) All trees standing on land comprised in a Khudkasht or
            homestead and belonging to or held by the outgoing proprietor or
F           any other person shall continue to belong to or be held by such
            proprietor or other person.
            (d) All trees standing on occupied land other than lands comprised
            in Khudkasht or home-stead and belonging to or held by a person
            other than the outgoing proprietor shall continue to belong to or be
G           held by such person.
            (e) All tanks situate on occupied land and belonging to or held by
            the outgoing proprietor or any other person shall continue to belong
            to or be held by such proprietor or other person.

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      CHATTAR SINGH & ORS. v. MADHO SINGH & ORS.                                 443


       (f) All groves wherever situate and recorded in village papers in         A
       the name of the outgoing proprietor or any other person shall
       continue to belong to or be held by such proprietor or such other
       person and the land under such grove shall be settled with such
       proprietor or such other person by the Government on such terms
       and conditions as it may determine.”
                                                                                 B
       9. Section 4 makes it clear that all lands (cultivable, barren or bir),
forest, trees, village-sites, hats, bazars, mela-grounds shall vest in the
State automatically free from all encumbrances. Section 4(2) provides
saving of only khud-kasht land, which is so recorded in the Samvat year
2007 corresponding to the agricultural year 1950-51 before the date of
vesting. The date of vesting is 2.10.1951. Khud-kasht has been defined           C
in Section 2(c) as under:
       “2(c) “Khud-kasht” means land cultivated by the Zamindar himself
       or through employees or hired labourers and includes sir land;”
       10. In order to save the land from vesting Section 4(2) requires          D
land to be ‘personally cultivated’ by Zamindar or through employees or
hired labourers and another sine qua non in that it should be so recorded
in revenue papers as “khud-kasht”, otherwise all land vest in the State
as provided in Section 4(1)(a). Once the land is recorded as ‘Charnoi’
i.e., common land reserved for grazing of cattles of villagers, such
common land clearly vests in the State as provided in Section 4(1)(a) all        E
the land, the forest, trees, village-sites, pathways etc. vest in the State
absolutely. Since the land was ‘Charnoi’ i.e., common grazing land for
cattle of the villagers having huge area 72 bighas 18 biswa the fruit-
bearing trees of custard apple also vested in the State.
       11. The provisions contained in Section 5(f) in Madhya Bharat             F
Zamindari Abolition Act did not confer any rights on Zamindars on such
common land and did not save same from vesting, once it was recorded
as ‘Charnoi’ for public purpose before the date of vesting in the year
1950-51 i.e., Samvat year 2007. Samvat year used to commence from
1st July, and ended on 30th June of next Gregorian calendar year. The            G
provision of Section 5(f) would not come into play to confer any right on
such common land.
      12. In Shrimant Sardar Chandrojirao Angre (supra), this Court
has observed as under:
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444             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A            “It would seem therefore that the word “grove” conveys
             compactness or at any rate substantial compactness to be
             recognized as a unit by itself which must consist of a group of
             trees in sufficient number to preclude the land on which they stand
             from being primarily used for a purpose, such as cultivation, other
             than as a grove-land. The language of Section 5(b)(iv) does not
B
             require however that the trees needs be fruit-bearing trees nor
             does it require that they should have been planted by human labour
             or agency. But they must be sufficient in number and so standing
             in a group as to give them the character of a grove and to retain
             that character the trees would or when fully grown preclude the
C            land on which they stand from being primarily used for a purpose
             other than that of a grove-land. Cultivation of a patch here and a
             patch there would have no significance to deprive it of its character
             as a grove. Therefore, trees standing in a file on the roadside
             intended to furnish shade to the road would not fulfil the
             requirements of a grove even as understood in ordinary parlance.
D
                                                              emphasis supplied”
             It is apparent from aforesaid observations that “grove” to be
      recognized as such should be of such trees when fully grown preclude
      land on which they are standing from being primarily used for a purpose
E     other than that of grove-land. This Court further observed that trees
      standing on the side of the road would not fulfil the requirement of a
      grove even as understood in the ordinary sense. Thus, when land is
      primarily used for ‘Charnoi’ i.e. common grazing land for cattle of villagers,
      it would not fall into the category of ‘grove’ and provision of Section 5(f)
      would not save such trees from vesting. The village sites, comprise of
F     common land reserved for villagers, vest in State. It cannot be retained
      by Zamindar as he had no existing right on such land even before date of
      vesting, it being common land, it belonged to villagers. No individual can
      claim that such land belongs to him exclusively. The fruit bearing trees
      irrespective of numbers have also vested in the State under Section
G     4(1)(a). No right can be claimed on trees on such common land under
      Section 5(f) by a proprietor. The decision taken by the Additional
      Commissioner while holding that land being grazing land has vested in
      the State was in accordance with law. The Board of Revenue’s order
      to the contrary was perverse and illegal.

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      CHATTAR SINGH & ORS. v. MADHO SINGH & ORS.                                445


       13. The question as to title in view of the provisions under the         A
M.P. Land Revenue Code, 1959 is the domain of civil court, the Trial
Court was absolutely right in decreeing the suit in favour of villagers.
Such common land could not have been settled at all in favour of the
erstwhile proprietor or his legal representatives. The approach of the
First Appellate Court holding it to be grove was perverse and contrary to
                                                                                B
the provisions and the law laid down by this Court in Shrimant Sardar
Chandrojirao Angre (supra). The First Appellate Court has failed to
understand the purport of ‘Charnoi’ which is a common land reserved
for the public purpose and is not exclusively for grazing of cattle of
Zamindar. Such village sites/common land clearly vests in the State
automatically free from all encumbrances.                                       C
       14. Thus, we have absolutely no hesitation to reject the submissions
raised by the learned senior counsel appearing on behalf of the appellant
and even the decision in Shrimant Sardar Chandrojirao Angre (supra)
does not support the cause espoused that said case did not relate to
“Charnoi” land. As such, decision is not at all applicable, even otherwise      D
decision negates submission raised on behalf of appellants that it was
“grove”.
       15. Thus, for the aforesaid reasons, we find absolutely no ground
to interfere with the impugned judgment of the High Court. The appeal,
being devoid of merits, is hereby dismissed. The parties are left to bear       E
their own costs.
      16. Pending application(s), if any, shall stand disposed of.


Divya Pandey                                                Appeal dismissed.
                                                                                F




                                                                                G




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