1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 68 of 2003 1 - Shyam Rao(Dead) Through His Legal Heirs As Per Hon'ble Court Order Dated 29-06-2022 And 25-07-2022. 1.1 - Smt. Fulbai Wd/o Late Shyam Rao Aged About 50 Years R/o Naya Sarkanda, Krishna Mandir, Bilaspur (C.G.) 1.2 - Vishent Rao Dighrashkar S/o Late Shyam Rao Aged About 34 Years R/o Naya Sarkanda, Krishna Mandir, Bilaspur (C.G.) 1.3 - Dinesh Rao Dighrashkar S/o Late Shyam Rao Aged About 28 Years R/o Naya Sarkanda, Krishna Mandir, Bilaspur (C.G.) 1.4 - Vinod Rao Dighrashkar S/o Late Shyam Rao Aged About 26 Years R/o Naya Sarkanda, Krishna Mandir, Bilaspur (C.G.) 1.5 - Durgesh Rao Dighrashkar S/o Late Shyam Rao Aged About 19 Years R/o Naya Sarkanda, Krishna Mandir, Bilaspur (C.G.) 1.6 - Manoj Rao Dighrashkar S/o Late Shyam Rao Aged About 18 Years R/o Naya Sarkanda, Krishna Mandir, Bilaspur (C.G.) 2 - Ramarao S/o Late Shri Anand Rao Dighrashkar Aged About 59 Years Through- Sarvarakar Shyamrao Dighrashkar, R/o Main Road Naya Sarkanda Bilaspur Tehsil And District Bilaspur (C.G.) 3 - Radhakrishna Mandir Through- Sarvarakar Shyamrao Dighrashkar, R/o Main Road Naya Sarkanda Bilaspur Tehsil And District Bilaspur (C.G.) ... Appellants/Plaintiffs versus 1 - State Of Chhattisgarh Through Jilaadhyaksh, Bilaspur (C.G.) 2 - Anuvibhagiya Adhikari Bilaspur, Tehsil And District Bilaspur (C.G.) -2- ---- Respondents/Defendants (Cause-title taken from Case Information System) For Appellants/Plaintiffs : Mr. Goutam Khetrapal, Advocate For Respondents/Defendants : Mr. Rajkumar Gupta, Additional Advocate General Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board 11.08.2025 Heard. 1. This second appeal is admitted on the following substantial questions of law:- “(i) Whether the learned First appellate Court is justified in reversing the finding recorded by the learned trial Court and thus, the impugned judgment is perverse. (ii) Whether Ex P/1, whereby Sukho Bai was declared as an occupancy tenant of the suit land, is a valid document or not? 2. The appellants/plaintiffs have challenged the judgment and decree passed by the learned District Judge, Bilaspur, in Civil Appeal No.1A/2002, dated 03.01.2003, whereby the appeal preferred by the State/defendants was decreed and the judgment and decree passed by the learned Trial Court was set aside. 3. The appellants/plaintiffs filed a civil suit for declaration of title over Survey No.717/1 admeasuring 0.02 acres, 1108/7 admeasuring 0.05 acres, and 1127/1 admeasuring 0.02 acres, total admeasuring 0.09 acres situated at Village Sarkanda, Tehsil and District Bilaspur, interalia 3 on the ground that initially, properties were recorded in the name of Lambardar Maalguzar Patti No.5 Ramdulare and 37 x 14 sq.ft. of land was given to Smt. Sukhu Bai, Wd/o Vithoba, as she was the wife of the priest of Radhakrishna Temple, which was constructed in the year 1945- 46. She raised the construction of residential quarters, a well, a hand- pump, and toilets adjacent to the temple. Late Sukhu Bai was holding the suit property as an occupancy tenant, and the revenue was fixed as 14 aana. The revenue entries were made by the Settlement Commissioner in the year 1945-46, wherein all three survey numbers were shown as grassland and road. The total area of land was 3139 sq ft., and the possession holder was Maalguzar Ramdulare. Further, the possession of Radhakrishna temple has been shown as a maurusi ¼ekS:lh½ and the name of Sukhu Bai is mentioned as the occupancy tenant. The revenue rent was fixed to the tune of Rs 120/- per annum. It is further pleaded that on 10.06.1960, Sukhu Bai died issue-less. Her sister Saru Bai was taking care of the temple and property. During her lifetime, she paid municipal taxes and rent. Narmada Bai was her daughter, and the plaintiffs are issues from Narmada Bai. 4. It is also pleaded that in the year 1992, the plaintiffs moved an application for mutation before the Tehsildar, and vide order dated 29.08.1996, the matter was referred to the Sub-Divisional Officer for diversion. The Sub-Divisional Officer vide order dated 26.09.1997 forwarded the matter to the Collector to take a decision with regard to the appointment of Sarvarakar. Against the said order, the plaintiffs filed a civil suit claiming therein the right over the property on the ground that their ancestors remained in possession of the property for a considerable -4- period, and the name of Sukhu Bai was shown as a tenant. 5. The defendants/State filed their written statement and denied the plaint averments. It was stated that the property is Government land recorded as grass land and the road in the revenue records of 1945-46. It is also pleaded that the plaintiffs have no right over the property as there is no document to establish their title. It is also pleaded that as the temple was constructed in the year 1945-46 and Sukhu Bai was serving as Sarvarakar, the temple may be declared as a public trust. 6. Learned Trial Court framed issues; parties led evidence. The learned Trial Court held that the suit property was given to Sukhu Bai as the occupancy tenant; she was the owner and in possession of the property as her private property; the order passed by the Sub-Divisional Officer for creation of the trust is illegal and plaintiff No.1 is the legal representative of Sukhu Bai and thus, the suit was decreed. 7. The defendants/State preferred a first appeal, which was allowed on the ground that the plaintiffs failed to prove their right over the property in the absence of any valid document. It is also held by the learned Appellate Court that the plaintiffs have not pleaded the fact that they are the legal representatives of the late Sukhu Bai. The Learned Appellate Court also recorded a finding that the suit land is Government land which was reserved for grassland and road. The Appellate Court held that, as the plaintiffs failed to prove their title over the property, the Sub-Divisional Officer rightly referred the matter to the Collector to take a decision with regard to the creation of the trust and the appointment of Sarvarakar. 8. Mr. Khetrapal, the learned counsel appearing for the 5 appellants/plaintiffs, would submit that the suit property was recorded as Government land, but it was in possession of one Ramdulare, who was the then Maalguzar, and he was also in possession. The name of Sukhu Bai was recorded as an occupancy tenant, and a rent of Rs. 120/- was fixed by the Settlement Commissioner in the year 1945-46. He would further submit that since 1945-46, Sukhu Bai remained in possession; she constructed residential quarters, well, hand-pump and toilets etc. He would also submit that Sukhu Bai died on 10.06.1960, and after her death, her sister Saru Bai was maintaining the property, and thereafter, her daughter Narmada Bai got the possession of the property. He would contend that after the death of Narmada Bai, the plaintiffs are taking care of the property, and they are in possession. He would further contend that, according to the provisions of Section 169 of the Madhya Pradesh Land Revenue Code, 1954 (for short ‘the Code of 1954’), Sukhu Bai had acquired the title of the property. He would also contend that Section 147 of the Code of 1954 deals with ‘Bhumidhari and according to the provisions of sub-section (a) every person in respect of the land held by him as an occupancy tenant in the Mahakoshal Region excluding the merged territories would be called a Bhumidhari and such persons shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhari. He would refer to Section 158 of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code of 1959’), which defines ‘Bhumiswami’ and sub-section (a) states that every person in respect of the land held by him in the Mahakoshal region as bhumiswami or bhumidhari rights in accordance with the provisions of the Chhattisgarh Land Revenue Code, 1954, shall be called Bhumiswami and shall have all the rights. He would argue that Sukhu -6- Bai had acquired the right of Bhumidhari and later on, after the coming into force of the Code of 1959, Bhumiswami. He would further argue that the defendants have not adduced any documents to rebut the documents placed on record by the plaintiffs. It is also argued that before 1992, no objection was raised by the defendants with regard to the rights conferred to Sukhu Bai or the plaintiffs. He would state that the findings recorded by the learned Appellate Court are perverse as the plaintiffs have categorically stated that Sukhu Bai died issueless and the plaintiffs are the legal representatives of Narmada Bai, the daughter of Saru Bai. He would also state that the learned First Appellate Court committed an error of law in reversing the findings recorded by the learned Trial Court. 9. With regard to substantial question of law No.2, he would contend that Ex.P/1 proves the right of late Sukhu Bai and the document transferred valid title in her favour. He would pray to allow the second appeal. 10. On the other hand, Mr. Gupta, learned Additional Advocate General appearing for the State/respondents/defendants, would oppose the submissions made by Mr. Khetrapal. He would submit that Ex.P/1 is not a document of title or right, either in favor of Sukhu Bai or the plaintiffs. He would further submit that Ex.P/1 clearly reflects that the suit property was recorded as grass land and reserved for road. He would also submit that the plaintiffs could not prove title over the property by adducing any clinching documentary evidence, and in the absence of such evidence, the learned Appellate Court rightly recorded a finding that the plaintiffs could not prove their case. He would contend that the learned Trial Court recorded findings perverse to the pleadings made in 7 the plaint. He would further contend that the provisions of Sections 147 & 169 of the Code of 1954 would not attract, as the name of Sukhu Bai was not recorded as an occupancy tenant. He would also contend that the suit land was recorded in the name of the Radhakrishna temple; therefore, the plaintiffs have the right to serve the temple as Sarvarakar, and the Sub-Divisional Officer rightly referred the matter to the Collector to decide the issue with regard to the appointment of Sarvarakar. He would submit that the appeal deserves to be dismissed. 11. I have heard learned counsel appearing for the parties and perused the record. 12. Learned Appellate Court failed to consider the provisions of Sections 147 & 169 of the Code of 1954, which define the occupancy tenants and their rights. 13. It is true that the suit property was not recorded in the name of the ancestors of Sukhu Bai. According to Ex.P/1, the suit property was recorded as grass land and reserved for road, but the possession holder of the property was one Ramdulare, who was the then Maalguzar. The name of Sukhu Bai was recorded as an occupancy tenant. The rent of the property was also settled by the Settlement Commissioner in the year 1945-46 to the tune of Rs.120/- per annum. Section 169 of the Code of 1954 deals with certain rights in cases of habitual sublease. 14. Section 169 (1) & (2) of the Code of 1954, which are relevant in this case, are reproduced herein below: “169. Certain rights in cases of habitual sub lease- (1) Every person, who, before the coming into force of this Code, has been declared an occupancy tenant of a Malik-makbuza, shail be -8- called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code. (2) Subject to rules made under this Code, the Collector] may, on an application made by an ordinary tenant in [Manakashal Region] declare such tenant to be an occupancy tenant of such land on the ground that the land is habitually leased and fix the rent payable for such land and upon such declaration being made such person shall hold land as an occupancy tenant of the tenure-holder.” 15. A bare reading of this provision would make it clear that a person who has been declared as an occupancy tenant of a Malik-Makbuza would be called an occupancy tenant. It further says that the Collector or Deputy Commissioner may on an application made by an ordinary tenant, declare such a tenant to be an occupancy tenant and may fix the rent payable for such land. 16. Section 147 deals with ‘Bhumidhari’, which states that every person who, at the coming into force of this Code, belongs to any category mentioned in the section would be called a Bhumidhari, and sub-section (a) says that every person in respect of the land held by him as an occupancy tenant in the Mahakoshal Region excluding merged territories, would be a Bhumidhari. Section 147(a) is reproduced herein below:- “147. Bhumidhari- Every person who at the coming into force of this Code belongs to any of the following classes shall be called a Bhumidhari and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhari by or under this Code, namely. (a) every person in respect of land held by him as an occupancy tenant in the (Mahakoshal Region excluding merged territories).” 9 A conjoint reading of Sections 147 and 169 of the Code of 1954 would make it clear that if any person is in possession of a land as an occupancy tenant on the basis of the lease and the rent has been fixed by the competent authority, he would be called Bhumidhari. 17. Thus, it can safely be held that Sukhu Bai was declared as a Bhumidhari according to the provisions of Sections 147 and 169 of the Code of 1954, and such entries were not challenged by the State before the competent Court. 18. Section 158 of the Code of 1959 defines ‘Bhumiswami’. As per sub-section (a), every person in respect of the land held by him in the Mahakoshal region in Bhumiswami or Bhumidhari rights shall be called a Bhumiswami and shall have all the rights. Section 158(a) of the Code of 1959 is reproduced herein below:- “158. Bhumiswami.-(1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely :- (a) every person in respect of land held by him in the Mahakoshal region in Bhumiswami or Bhumidhari rights in accordance with the provisions of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955)” 19. Thus, the findings recorded by the learned Appellate Court with regard to the rights of Sukhu Bai and the plaintiffs appear to be erroneous. 20. Learned Appellate Court has further held that there is no pleading to the effect that Sukhu Bai died issue-less and the plaintiffs are her legal representatives. -10- 21. A bare reading of paras 3, 4 & 5 of the plaint would make it clear that the plaintiffs have categorically stated the fact that Sukhu Bai died issueless on 10.06.1960. After her death, Radhkrishna temple was being maintained by her sister Saru Bai. Narmada Bai was the daughter of Saru Bai, and the plaintiffs are the sons of Narmada Bai, and they have the right over the suit property. Thus, the findings recorded by the learned Appellant Court in this regard are perverse 22. In para 12 of the judgment dated 03.01.2003, the learned Appellate Court has held that tax receipts deposited by the plaintiffs would not confer any right in their favour. The right had accrued in favour of Sukhu Bai by virtue of provisions of Sections 147 and 169 of the Code of 1954 and Section 158(1)(a) of the Code of 1959; therefore, such a finding is erroneous. 23. The defendants/State failed to adduce documentary evidence before the learned Trial Court to prove the fact that the suit property was recorded as Government Land and Late Sukhu Bai had no right over it. The plaintiffs succeeded to prove their right over the suit property by adducing documentary as well as oral evidence. 24. Considering the above-discussed facts, the substantial question of law No.1 is answered in the affirmative in favour of the appellants/plaintiffs. 25. With regard to substantial question of law No.2, from the facts and the provisions of Sections 147 & 169 of the Code of 1954 and further, considering the provisions of Section 158(1)(a) of the Code of 1959, it has already been discussed and held that Sukhu Bai attained the status of an occupancy tenant and she had the right over the suit property. 11 Accordingly, the substantial question of law No.2 is also decided in the affirmative in favour of the appellants/plaintiffs. 26. Accordingly, the appeal is allowed and the judgment and decree passed by the learned First appellate Court dated 03.01.2003 in Civil Appeal No.1-A/2002 is hereby set aside and the order passed by the learned Trial Court dated 21.08.2001 in Civil Suit No.337-A/1998 is hereby restored. 27. A decree be drawn accordingly. No order as to cost(s). Sd/- (Rakesh Mohan Pandey) Judge Rekha