Oral Judgment

(SECOND APPEAL UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908)

1. Heard on admission.

2. This is plaintiffs second appeal under Section 100 of CPC against the judgment and decree dated 08.10.2008 passed by the Additional District Judge, Mungeli in Civil Appeal No. 13-A/2007, whereby and whereunder the plaintiffs appeal has been dismissed affirming the judgment and decree dated 03.04.2007 passed by Civil Judge Class-1, Mungeli in Civil Suit No. 46-A/2003.

3. Plaintiffs filed a suit for declaration of title and for permanent injunction claiming title over the suit tanks situated on land bearing Kh.No.294 area 1.48 acres and Kh.No.292 area 2.96 acres, which is Paithu.

4. According to the plaintiffs, the suit tanks were owned and possessed by their ancestors, who constructed the same 120 years ago for their own use and since then earlier their ancestors and presently they are in possession. The defendant/State is trying to dispossess them and to get mutated their name in revenue records.

5. Defendants did not file their written statement but filed documents Ex.D.1 to D-5. The trial Court framed the following issues:

LANGUAGE

6. The evidence of parties was recorded. The trial Court dismissed the plaintiffs suit finding inter alia, plaintiffs are not title holders of the suit tanks.

7. The plaintiffs preferred appeal thereagainst. The first appellate Court, vide impugned judgment and decree dated 08.10.2008, dismissed the plaintiffs appeal and affirmed the judgment and decree of the trial Court.

8. Shri Somnath Verma, learned counsel appearing for the appellants would submit: both the Courts below have erred in not considering the fact that defendants have failed to file their written statement, and on this count alone, the plaintiffs are entitled for decree in view of the provisions contained in Order 8 Rule 10 of CPC. He would further submit, once vide document Ex.P.1 and Ex.P.2 the plaintiffs have shown their ancestors title, then it was for the defendants to prove how and in what manner the defendants acquired title over the suit tanks. The defendants having not done so, both the Courts below should have granted decree in favour of the plaintiffs and the finding recorded by both the Courts below is perverse.

9. I have heard learned counsel for the appellants and perused the records of Courts below including impugned judgment and decrees.

10. The documents Ex.P.1 and Ex.P.2 (Khasra entries of 1927-28) only prove, at that time Ayodhya Kurmi was proprietor (Lumbardar) with regard to suit tanks. In Ex.P.1 and P.2, the suit tanks are recorded as Nistari tanks. The appellants/plaintiffs have also failed to produce any document showing their title (proprietary or non-proprietary) over the suit tanks.

11. The proprietary rights were abolished by the enactment of M.P. Abolition of Proprietary Rights Act, 1950 (for short `the Act of 1950). Section 3 of the Act of 1950 provided for vesting of proprietary rights in the State. As per Section 3 (1) of the Act of 1950, save as otherwise provided in this Act, all proprietary rights in an estate vested in the State. As per Section 4(1) of the Act of 1950, all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazaars and melas; 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 for purposes of the State free from all encumbrances.

12. However, sub-sections (e), (f) and (g) of Section 5 of the Act of 1950 carves out an exception and saves certain property to the ex-proprietors or other persons. Section 5 (f) is relevant for our purposes. As per Section 5 (f) of the Act of 1950, all tanks, belonging to or held by the outgoing proprietor which are situate on land other than village site or occupied land and in which no person other than such proprietor has any rights of irrigation, shall belong to or be held by such proprietor.

13. Phraseology of clause (f) clearly indicates that by virtue of Section 4(1)(a) read with Section 3 of the Act of 1950, proprietary rights in all tanks vest in the State. But what was saved by the Legislature in favour of ex-proprietors was the non-proprietary or, as we may call it, non-proprietary or possessory right in respect of such tanks in which no other person except the proprietor had any right of irrigation. In that event only, the tank would belong to and be held by such proprietor or other person.

14. Coming to the case in hand, the plaintiffs have not filed any document showing their non-proprietary rights over the suit tanks, at any point of time, before and after coming into force of the Act of 1950. From the very beginning, as per the documents filed by the plaintiffs, the tanks were used for Nistari. The other documents Ex.P.3 to P-5 filed by the plaintiffs also go to show that the suit tanks are Nistari tanks. P.W.6 Rameshwar has categorically admitted, the suit tanks are being used for Nistar by the villagers. P.W.1 Ramadhar and P.W.2 Itwari stated, the disputed tanks are public Nistari tanks.

15. The above facts when examined in the light of the Act of 1950, it is crystal clear, plaintiffs have utterly failed to establish that non-proprietary rights were saved under Section 5 (f) of the Act of 1950 in their ancestors favour. Further, the effect of Act of 1950 is that all proprietary rights stand vested in the State. It was for the plaintiffs to prove that non-proprietary rights of their ancestors were saved under Section 5 (f) of the Act of 1950, in which they utterly failed.

16. So far as the effect of non-filing of written statement by the defendants is concerned, in the absence of written statement, unless the applicability of order 8 Rule 10 of C.P.C. is attracted and the Court acts thereunder, the necessity of proof by the plaintiffs of their case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiffs is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order 14 of CPC and deliver the judgment on every issue as required by Order 20 Rule 5 of CPC. Yet the trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame `points for determination and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence, as observed by the Supreme Court in the case of Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350.

17. This Court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. The findings recorded by both the Courts below in the case are essentially finding of facts. Learned counsel appearing for the appellants failed to point out any substantial question of law which may arise for determination in the case. In the absence of any substantial question of law arises for determination of this Court, this Court has no option but to dismiss the appeal.

18. For the foregoing, since no substantial question of law arises for determination of the case, the appeal is dismissed.

19. No order as to costs.