REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).8718 OF 2012

CHATTAR SINGH & ORS.                           APPELLANT(S)

VERSUS

MADHO SINGH (D) & ORS.                         RESPONDENT(S)

J U D G M E N T

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 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 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

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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 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 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 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 clearly record the land to be Charnoi land and

subsequent  thereto  also  the  land  had  been  recorded

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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  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.

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 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’.

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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  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 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,  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;

(b) all grants and confirmation of the title of or to land in the 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 such  vesting  would  have  been  payable  to  the proprietor,  shall  vest  in  the  State  and  be

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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 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  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 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) 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.

(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. (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.”

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8. The  provision  contained  in  Section  5  of  Madhya

Bharat 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 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  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.   (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 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 held by such person.

(e)  All  tanks  situate  on  occupied  land  and belonging to or held by the outgoing proprietor

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or any other person shall continue to belong to or be held by such proprietor or other person.

(f) All groves wherever situate and recorded in village  papers  in  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.”

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 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  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

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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.  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 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 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:

“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 require however that the trees needs

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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 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.

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 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

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

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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 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.   

13. 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 was perverse and contrary to 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.

14. Thus, we have absolutely no hesitation to reject

the submissions raised by the learned senior counsel

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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  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 their own costs.

16. Pending  application(s),  if  any,  shall  stand

disposed of.

..................J. [ARUN MISHRA]

..................J. [NAVIN SINHA]

NEW DELHI; FEBRUARY 06, 2019.

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