Shiv Dayal, C.J.
1. The questions referred to this Full Bench are whether the Civil Court cannot take cognizance of a suit instituted by Bhumiswami on the basis of his title, against a trespasser; and whether the decision in Nathu v. Dilbande Hussain, AIR 1967 Madh Pra 14, is no longer good law.
2. Chetu brought the suit against Ramgopal on the averment that he is the Bhumiswami of survey No. 138/3 (area 5 Bighas 9 Biswas) of village Kulhar, Tahsil Basoda. On or about July 15, 1963, the defendant wrongfully took possession of the suit land. The plaintiff used to earn about Rs. 150/- per year from the yield of the suit land. The defendant's case was that the plaintiff had entered into a contract with him to sell the suit land to him for Rs. 900/- He paid Rs. 900/- to the plaintiff and the plaintiff delivered possession to him. The plaintiff promised to execute a deed of sale in his favour but later on refused to do so. The learned Civil Judge, Class II, Basoda, rejected the defendant's plea and held that he wrongfully dispossessed the plaintiff from the suit land. Accordingly, he passed a decree for possession in favour of the plaintiff against the defendant. The defendant's appeal was dismissed by the Additional District Judge, Vidisha.
3. The defendant preferred this second appeal. When it came up for hearing before a Single Judge, learned counsel for the appellant contended that the suit was barred by the provisions contained in Clause (x) of Section 257 of the M.P. Land Revenue Code, 1959 (hereinafter called the Revenue Code). He relied on their Lordships' decision in Hatti v. Sunder Singh, AIR 1971 SC 2320 and urged that the view taken in Nathu v. Dilbande Hussain, AIR 1967 MP 14 = (1964 Jab LJ 707) is no longer good law.
4. Section 250 of the Revenue Code, which enacts a remedy for reinstatement of a Bhumiswami, improperly dispossessed, reads thus:--
'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:--
'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.'
5. 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 (Supra), (AIR 1967 Madh Pra 14) 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.'
6. 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.
(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.
7. Nathu v. Dilbande Hussain (Supra) (AIR 1967 Madh Pra 14) 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, AIR 1971 SC 2320 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.
8. We are clearly of the view that the decision in Hatti v Sunder Singh (Supra) (AIR 1971 SC 2320) was rendered on the particular provisions o the Delhi Land Reforms Act (8 of 1954) and the application of that authority has to be confined to those provisions of that Act. The M.P. Land Revenue Code does not contain those provisions. Under the M.P. Code, a proceeding before the Revenue Court is much different in nature, character and scope.
Section 185 (1) of the Delhi Act provides as follows:--
'Except as provided by or under this Act, no Court other than a court mentioned in column 7 of Schedule I shall notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application or proceedings mentioned in column 3 thereof.'
Their Lordships considered the relevant entries Nos. 4, 19 and 39 in the First Schedule of that Act. Entry No. 4 mentions application for declaration of Bhumidhari rights. There is no period of limitation prescribed at all. Entry No. 19, which refers to Section 84 of that Act, relates to a suit for ejectment of a person occupying land without title or for damages. The period of limitation is three years, the starting point varying according to three categories of plaintiffs. Entry No. 28 refers to Section 104 and relates to a declaratory suit under that section.
'No period of limitation is prescribed for such a suit and the court of original jurisdiction is, again, the Revenue Assistant.' In that case, the High Court referred to Section 186 of the Act under which any question raised regarding the title of any party to the land, which is the subject-matter of a suit or proceeding under the First Schedule has to be referred by the Revenue Court to the competent civil court for decision after framing an issue on that question. From this, inference was sought to be drawn that the question of title could be competently agitated by a suit in the civil court, as the jurisdiction of the civil court was not barred. Their Lordships saw no justification for drawing such an inference. It was held:--
'Section 186 envisages that question of title will arise before the Revenue Courts in suits or proceedings under the First Schedule and only if such a question arises in a competent proceeding pending in a revenue court, an issue will be framed and referred to the Civil Court. Such a provision does not give jurisdiction to the civil court to entertain the suit itself on a question of title. The jurisdiction of the civil court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that if a question of title is raised in an application for declaration of Bhumidhari rights under item 4 of Schedule I of the Act, that question will then be referred by the Revenue Assistant to the Civil Court; but a party wanting to raise such a question of title in order to claim Bhumidhari right cannot directly approach the civil court.' Their Lordships have found:--
'The Act is a complete Code under which it is clear that any one, wanting a declaration of his right as a Bhumidar, or aggrieved by a declaration issued without notice to him in favour of another, can approach the Revenue Assistant under item 4 of the First Schedule and this he is allowed to do without any period of limitation .....' In conclusion, their Lordships found that all the reliefs claimed by the plaintiff in that suit were within the competent jurisdiction of the Revenue-Assistant and the Civil Court had no jurisdiction to entertain the suit.
9. In the Madhya Pradesh Land Revenue Code, the provisions are not analogous to those of the Delhi Act. The remedy provided in Section 250 of this Code can be resorted to by a Bhumiswami by an application to the Tahsildar. He has to show either (a) that he was dispossessed by the non-applicant otherwise than in due course of law, or (b) 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 remedy at the hands of the Tahsildar 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. (See Abdul Waheed Khan v. Bhawani, 1966 Jab LJ 1022 = (AIR 1966 SC 1718) under the Delhi Act if the question of title is raised, it is referred to the Civil Court for decision. There is no analogous provision in the Madhya Pradesh Code.
10. Determination of the question of title is the province of the Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the Civil Court cannot be assumed or implied, AIR 1966 SC 1718.
11. It was strenuously argued by Shri Mishra that 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).
12. The scheme of the Code consistently preserves the jurisdiction of the civil Court to decide questions of title and that jurisdiction is not excluded. For instance, in the Chapter relating to mutation and record of rights (Chapter IX), Section 111 enacts:--
'The Civil Court shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record-of-rights.'
Again, in a proceeding for partition, under Section 178, if any question of title is raised, the Tahsildar shall not make any partition until the question of title has been decided by the Civil Court.
13. If Shri Mishra's argument that in proceedings under Section 250 of the Revenue Code, the Tahsildar has jurisdiction to go into the question of title, is accepted it will lead to anomalous results.
14. 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.
15. Under the general law, a suit for possession based on title can be instituted in the Civil Court within 12 years from the date of dispossession. The principle that possession must follow title has received greater weight and sanctity when the distinction between the scope and effect of Article 142 and those of Article 144 of the Limitation Act, 1908, has been watered down and simpler provisions have been substituted in Articles 64 and 65 of the Limitation Act of 1963. It will be anomalous to read Section 250 as providing for a suit for possession based on title, which is to be instituted within two years only. It will entail a fantastic result that if a suit is not brought within two years under Section 250, the Bhumiswami's right will be extinguished, because, by virtue of Section 26 of the Limitation Act, if a suit for possession is not instituted within the period of limitation prescribed therefore, not only the remedy is barred but the right is also extinguished. Section 26 is an exception to the general rule that limitation bars the remedy but does not extinguish the right.
16. Even under the Delhi Reforms Act (supra), which was for consideration before their Lordships in Hatti v. Sunder Singh (supra), (AIR 1971 SC 2320) it is mark-worthy that the question of title has to be referred to the Civil Court and, moreover, there is no period of limitation prescribed. Thus, there is no deviation from the consistent policy of the law that the question of title relating to immovable property must be determined by the Civil Court. We do not see any deviation from that policy in any of the provisions of the M. P. Land Revenue Code either. On the other hand, Sections 111 and 178 are in concordance with that policy.
17. We, therefore, hold that a Bhumiswami is not bound to avail himself of the speedy remedy provided in Section 250 of the Code. It is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land. We further hold that Nathu v. Dilbande Hussain, AIR 1967 Madh Pra 14 = 1964 Jab LJ 707 was correctly decided. The Civil Court can take cognizance of a suit. This is our answer to the questions referred to us.