REINSTATEMENT OF BHUMISWAMI IMPROPERLY DISPOSSESSED

Submitted to: Ms. Sonal Das Faculty, Land Laws Submitted by: Viplav Baranwal Roll No 144 Semester VIII, Section-A B. A., LL. B (Hons.) Submitted on: 27th February, 2014

Hidayatullah National Law University Raipur, Chhattisgarh

TABLE OF CONTENTS
S. NO. PARTICULARS PAGE NO (s).

_______________________________________________________________________

1.

Acknowledgment

2.

Research Methodology

4.

Introduction

5.

Tenure Holder

6.

Bhumiswami Rights

7.

Reinstatement of Bhumiswami Improperly Dispossessed

13

8.

Ambit and Scope of Section 250 of MPLRC

20

9.

Conclusion

21

10.

Bibliography

22

ACKNOWLEDGEMENT
I feel highly elated to work on the topic. The practical realization of this project has obligated the assistance of many persons. I express my deepest regard and gratitude for our Faculty of Land Law. Their consistent supervision, constant inspiration and invaluable guidance have been of immense help in understanding and carrying out the nuances of the project report. I take this opportunity to also thank the University for providing extensive database resources in the Library and through Internet.

Viplav Baranwal Semester-VIII

RESEARCH METHODOLOGY
This project is based on Doctrinal Research Books and other reference have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been referred.

INTRODUCTION
Before Going to the Term Bhumiswami, its importrant for us to understand the term tenant. "Tenant" means a persons holding land from a Bhumiswami as an occupancy tenant under Chapter XlV.1 The definition of the word 'tenant' in this clause is exhaustive. The first condition for a person to be tenant under this clause is that he should hold land from Bhoomiswami. Further, it is provided that the person holding land from a Bhoomiswami , should hold it as an occupancy tenant under Chapter XIV .of this-Code.2 A tenant is by the definition a person who holds land as an occupancy tenant from a Bhumiswami; but the status of a Bhumiswami is recognized for the first time by the Code and an occupancy tenant from a Bhumiswami would mean only a person belonging to that class who acquires rights of occupancy tenant after the Code comes into force. The position of a tenant prior to the date on which the Code was brought into force does not appear to have been dealt within this definition. The definition which is specially devised for the purpose of the Code throws no light on the nature of the right which invests the holder of land with the status of an occupancy tenant at the commencement of the Code. "Tenure-holder" means a person who holds land from the State Government and who is or is deemed to be Bhumiswami under the provisions of this Code.3

1 2 3

See, S. 2 (l) (y), LAND REVENUE CODE, 1959 See, Chapter XIV, LAND REVENUE CODE,1959 See, S. 2 (l) (z), LAND REVENUE CODE, 1959

TENURE HOLDER
The definition of tenure holder under the clause is very simple. A person is called Bhoomiswami' who holds land from the State Government and is either Bhoomiswami or deemed to be Bhoomiswami under this Code. For a person who is called 'Bhoomiswami', provisions of Chapter XII should be looked into. Section 157 says that there will be only one class of tenure holder and the name given to him is Bhoomiswami. Class of Tenure There shall be only one class of tenure holders of lands held from the state to be known as Bhumaswami. By enacting Section 157 of the Code, the Legislature has declared that ownership in all lands etc. belong to the State Government. But it is not necessary that all such lands are held by the State Government. This section for the first time says that from the State Government, all person holding land as tenure holders shall be called bhumiswami, meaning thereby owner of the land.4 Although absolute ownership does not vest in such persons, still leaving aside the State Government, such persons are owners against everyone else. They are neither tenants nor Government lessees who are dealt with separately. 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.5 For the first time, the M.P Land Revenue Code, 1959, vide section 157, has called certain classes of persons 'Bhoomiswami' and has declared that such Bhoomiswamis shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhoomiswami by or under this Code. The provisions of the Code do not apply to evacuee property vested in the Central Government under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.6

4 5 6

See, s. 157, LAND REVENUE CODE, 1959 See, s. 158, LAND REVENUE CODE, 1959 See, Atmasingh v. Bhagwandas, 1995 RN 311 (HC).

BHUMISWAMI RIGHTS Claim of acquiring Bhumiswami rights The plaintiff claimed that he was an occupancy tenant and became Bhumiswami on coming into force of the M.P.Land Revenue Code, 1959. But he could not establish that he was an occupancy tenant. A person in order to be an occupancy tenant has to be a sub- tenant of a Khatedar tenant or a grove holder or a sub-tenant or a tenant of Khatedar. Not only this, it was also found that the land was a 'service' land and it could not be given on lease for a period exceeding one year. It was held that the plaintiff was not entitled to the benefit of S.158 of the Code.7 Bhumiswami rights accrue only in cases of limited category and only on specified grounds. Accrual of Bhumiswami rights by adverse possession is not contemplated under the Code.8A person, who was neither Muafidar, nor Inamdar nor concessional holder under the Madhya Bharat Act, cannot be mutated as Bhumiswami under the Code.9 Status of Pattedar tenant accruing under Rewa Act. Acquisition of Bhoomiswami rights to such tenant is automatic. It does not depend on mutation entries.10 Incident of impartibility and special mode of succession of primogeniture of Jagir lands extinguished. Holders acquired Bhoomiswami rights.11 Land situated in a princely State which merged in Vindhya Pradesh region. Gairhaqdar tenant continued in possession. He became entitled to pattedarl rights under the Vindhya Ptadesh Act of 1953 and ultimately became Bhoomiswami.12 The plaintiff's and their predecessor in title were in possession of the land for over 12 years and the defendant State in paragraph 3 of the written statement has clearly admitted that Raghunathsingh and others who were the predecessor in title of the plaintiffs were Maurusi Kashtkar. After the abolition of .Jamindari, the plaintiffs became Pacca tenant and under Madhya Pradesh Land Revenue Code they became Bhumiswami of the said land by virtue of provisions contained in Clause (b) of sub- section (1) of section 158 thereof.13

7 8 9

See, Hanumant Singh v. Shafique Ahmed Khan, 1997 (2) MPW 441. See, State of MP v. Balveer Singh, AIR 2001 MP 268 See, Ramlal v. Mangal Singh, 2000 RN 30 (HC). See, Kesharbai v. Ramkhilawan, 1993 RN 194(HC) See, Dattatray v. Krishnarao. 1991 RN 408 (SC). Raghuwansh Kumar v. State of M.P., 1991 RN 215 (HC). See, Ramsingh v. State of M.P., 1988 RN 187 (HC).

10 11 12 13

Bhoomiswami rights A Bhumiswami pays land revenue to the Government under section 159. The interest of a Bhumiswami is heritable and passes on his death by inheritance, survivorship or bequest, as the case may be. This is so provided in section 164. Subject to certain restrictions contained in section 165 & 168, a Bhumiswami may transfer any interest in his land. A Bhumiswami can also lease his land but the restriction is that normally he cannot lease any land for more than one year during any consecutive period of three years. There is no restriction for grant of leases in respect of certain categories of Bhumiswami, such as widow, unmarried woman and persons suffering from social, physical or mental disabilities. This is provided in section 168(2). It is important to notice that there is no provision in the Act for ejectment of a Bhumiswami at the instance of the Government. These features clearly show, as held by Dube, J.14 that there is no relationship of landlord and tenant between the Government and the Bhumiswami. A Bhumiswami is called a tenure holder but he is not a holder of tenancy rights. The Bhumiswami in these circumstances can well be described as the owner of the land or more correctly owner of the rights in the land which he holds under the State.15

14 15

See, Nahar v. Dukalhin 1974 JLJ 250 at p. 275 See, Sardar Virendra Singh v. Additional Property Tax Commissioner, 1981(II) MPWN 58

(DB).

REINSTATEMENT OF BHUMISWAMI IMPROPERLY DISPOSSESSED Section 250 of the Revenue Code, which enacts a remedy for reinstatement of a Bhumiswami, improperly dispossessed, reads thus:-SEC. 250- Reinstatement of Bhumiswami improperly dispossessed. 1. If a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Bhumiswami to the use of which such person has ceased to be entitled under any provisions of this code, the Bhumiswami or his successor-in-interest may apply to the Tahsildar for restoration of the possession within two years from the date of dispossession or from the date on which the possession of such person becomes unauthorised, as the case may be. 2. The Tahsildar shall, after making an enquiry into the respective claims of the parties, decide the application and when he orders the restoration of the possession to the Bhumiswami put him in possession of the land. 3. The Tahsildar may at any stage of the enquiry pass under Sub-section (2) an interim order for handing over the possession of the land to the applicant, if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application under this section. In such a case the opposite party shall, if necessary, be ejected under orders of the Tahsildar. 4. When an interim order has been passed under Sub-section (3) the opposite party may be required by the Tahsildar to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of land until the final order is passed by the Tahsildar. 5. If the person executing a bond is found to have entered on into or taken possession of the land in contravention of the bond, the Tahsildar may forfeit the bond in whole or in part and may recover such amount as an arrear of land revenue. 6. If the order passed under Sub-section (2) is in favour of the applicant, the Tahsildar shall also award a reasonable compensation to be paid to the applicant by the opposite party; Provided that the amount of compensation shall not exceed ten times the revenue of the land for each year's occupation.

7. The compensation awarded under this section shall be recoverable as an arrear of land revenue. 8. When an order has been passed under Sub-section (2) for the restoration of the possession to the Bhumiswami the Tahsildar may require the opposite party to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of the land in contravention of the order. 9. Where an order has been passed under Sub-section (2) for the restoration of the possession to the Bhumiswami, the opposite party shall also be liable to a fine which may extend to five thousand rupees; Provided that it shall not be competent to the Tahsildar to impose a fine of amount exceeding one thousand five hundred rupees, but if in any case he considers that circumstances of the case warrant imposition of a higher fine, he may refer the case to the sub-divisional officer who shall after giving the party concerned an opportunity of being heard, pass such orders in respect of fine as he may deem fit." Then Section 257 of the same Code provides for exclusive jurisdiction of Revenue authorities as follows:-"SEC. 257. Except as otherwise provided in this code, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the board, or any Revenue officer is, by this code empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no civil court shall exercise jurisdiction over any of the following matters:-(x) any decision regarding reinstatement of a Bhumiswami improperly dispossessed under Section 250."

THE AMBIT AND SCOPE OF SECTION 250 The ambit and scope of Section 250 and the effect of Clause (x) of Section 257 of the Revenue Code were considered by a Division Bench of this court in Nathu v. Dilbande Hussain,16 where it was held:-"By Sub-section (2) of Section 250, it is no doubt provided that the Tahsildar shall decide the application of the Bhumiswami for possession after making an enquiry into the respective claims of the parties. The enquiry that is contemplated is of a summary nature. In disposing of an application under Section 250 the Tahsildar has no doubt to decide whether the person complaining of dispossession or of continued unauthorised possession on the part of some one is or is not a Bhumiswami and whether the has been dispossessed or whether there has been unauthorised and illegal continuation of possession of the land by the person complained against. But the questions, both as regards title of the Bhumiswami to the land and of possession, are not finally decided by the Tahsildar. Even after the revenue court makes an order under Section 250, the aggrieved party has the remedy of filing a civil suit for establishing his title to the land and for obtaining possession of the same. The decision of the revenue court cannot operate as res judicata in the civil suit; nor can Section 257 (x) of the Code stand in the way of institution of a suit for possession of a land founded on title. What is excluded from the cognizance of a civil court under Clause (x) of Section 257 is a suit of the type of one under Section 9 of the Specific Relief Act for restoring possession of land to a dispossessed Bhumiswami." The above dictum may be analysed thus:-1. Section 250 (2) confers jurisdiction on the Tahsildar to decide a Bhumiswami's application for restoration of possession. 2. The Tahsildar has to make an enquiry into the respective claims of the parties. 3. The enquiry, which is contemplated, is of a summary nature. 4. The Tahsildar has to decide whether the person complaining of dispossession is or is not a Bhumiswami and whether he has been dispossessed or there has been unauthorised and illegal continuance of possession by the person complained against.

16

(AIR 1967 Madh Pra 14)

5. But both the questions, (a) as regards title of the Bhumiswami, and (b) of possession, are not finally decided by the Tahsildar. The party aggrieved by an order under Section 250 has a remedy to file a civil suit for establishing his title to the land and for obtaining possession of the same. 6. Section 257 (x) of the Code does not bar such a civil suit, i. e. a suit for possession of land founded on title. It is only a suit of the type of one under Section 9 of the Specific Relief Act for restoration of possession of land, which is barred by Section 257 (x) of the Code. 7. The decision of the Revenue Court will not operate as res judicata in such a civil suit.

Nathu v. Dilbande Hussain

17

held the ground all these years and numerous cases have been

decided on its basis. However, in the present case. Shri Mishra learned counsel for the defendant, urged before the Single Judge that this decision must be held to be pro tanto overruled by their Lordships' decision in Hatti v. Sunder Singh,18 in which it has been held that the civil court has no jurisdiction in view of Section 185 (1) of the Delhi Land Reforms Act (8 of 1954), to entertain a suit in which the plaintiff, alleging that he is the proprietor of the suit land, asks for a declaration that he is entitled to Bhumidhari rights in respect of that land. Shri Mishra however argued before us that if no suit is brought in the Revenue Court within two years of dispossession, a civil suit is not barred having regard to the provisions of the Land Revenue Code. In Rohini Prasad vs Kasturchand19 The Full Bench then went to hold : "The remedy provided in section 250 of this code can be resorted to by a Bhumiswami by an application to the Tehsildar. He has to show either (1) that he was dispossessed by the nonapplicant otherwise than in due course of law, or (2) that he was dispossessed within two years from the date on which the possession of such person became unauthorised (although initially the possession of that person may be authorised). Thus, clearly enough, this section provides for a
17 18 19

(Supra) AIR 1971 SC 2320 2000 AIR (SC) 1283

remedy at the hands of the Tehsildar for restoration of possession, when a Bhumiswami is improperly dispossessed, that is, without due process of law. Clause (x) of Section 257 excludes the jurisdiction of the Civil Court to challenge "any decision regarding reinstatement of a Bhumiswami, improperly dispossessed under section 250". In both these provisions the subject matter of enquiry is possession not title.

CONCLUSION
It must be remembered that a Bhumiswami has a title though he is not the "Swami" of the "Bhumi" which he holds, in the sense of absolute ownership, because as declared in Section 257 of the Revenue Code, ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and, he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation. since remedy under Section 250 is available to a Bhumiswami, the applicant has necessarily to prove that he is a Bhumiswami, which means that the Tahsildar can go into the question of title in order to determine whether the applicant is or is not a Bhumiswami, and on that basis it is argued that since the Tahsildar is empowered under the Revenue Code, his decision will be within the mischief of Clause (x) of Section 257, or the general provision contained in the opening part of Section 257. We are clearly of the view that having regard to the language of Section 250 and the scheme of the Land Re-venue Code, the question before the Tahsildar whether the applicant is Bhumiswami will be merely ancillary and incidental, which will be decided on the basis of the revenue record. If the entry in the revenue record is not correct, the person aggrieved has the right under Section 111 of the Code to get the entry corrected and in that case also, if a dispute as to title arises, it can be decided by the Civil Court, (AIR 1966 SC 1718).

BIBLIOGRAPHY
BOOKS M.L. Jindal, M.P. Land Revenue Code, 1959 (4th edition), Rajkamal Publication

INTERNET www.indiankanoon.com www.spotlaw.com www.scconline.com