S.S. Jha, J.
1. This appeal is admitted on the following substantial questions of law :--
(i) "Whether the suit filed by the plaintiffs/appellants was barred under the provisions of Section 57 (2) of the M.P. Land Revenue Code, 1959 ?"
(ii) "Whether it was mandatory upon the plaintiffs to deposit the amount for acquiring pucca tenancy rights under Section 38 (2) of the Madhya Bharat Zamindari Abolition Act ?"
2. For appreciating the dispute, Section 57 of M.P. Land Revenue Code (Hereinafter, referred to as 'Code') is reproduced below :--
"57. State ownership in all lands :--
(1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government :
Provided that nothing in this Section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person, subsisting at the coming into force of this Code in any such property.
(2) Where a dispute arises between the State Government and any person in respect of any right under Sub-section (1) such dispute shall be decided by the Sub-Divisional Officer.
(3) Any person aggrieved by any order passed under Sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order.
(3-a) (a) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1980) no civil Court shall, in a civil suit instituted under Sub-section (3) on or after 24th October, 1983, by order of temporary injunction disturb the person to whom possession is restored under Section 250 if such person furnishes a reliable surety to recompensate the aggrieved party against any loss in case the Civil Court grants a decree in favour of the aggrieved party :
Provided that no surety shall be required to be furnished by a member of a tribe declared to be an aboriginal tribe under Sub-section (6) of Section 165,
(b) Where a civil Court by an order of temporary injunction disturbed the person referred to in Clause (a) on or after 24th October, 1983, but before the publication of Revenue Department's Notification No. 1--70-VII-N-2-83, dated 4th January, 1984 such order shall abate on such publication and the Tehsildar shall restore possession to a person who is disturbed by such order. (4) Where a civil suit has been instituted under Sub-section (3) against any order such order shall not be subject to appeal or revision."
3. Learned counsel for the appellants raised following contentions :--
(a) In a case where there is no dispute as to ownership between the State and plaintiff, bar of suit under Section 57 (2) of the Code is not attracted.
(b) When a declaration that all the lands in the State are owned by the State Government, then no claim for right of ownership against State can be made.
(c) Plaintiffs are claiming rights of 'Bhumiswami' against the State, therefore in the absence of claim as to ownership against the State suit is not barred under Section 57 (2) of the Code.
(d) Proviso to Section 57 (1) of the Code provides that rights subsisting at the time of enforcement of the Code are saved.
(e) Since Bhumiswami is only one class of holder of land under Section 158 of the Code, the claims of Bhumiswami rights against the State are maintainable.
4. Learned counsel for the appellants placed reliance upon the following judgments in the cases of State of M.P. v. Gyasiram (1993 RN 113), Ramsahai v. State of M.P. (1996 RN 195), Ram Veer Singh v. State of M.P. (1997 RN 375), Sheela Devi v. State of M.P. (1994 RN 157), Gajraj v. Jagat Singh (1970 RN 133) and Her Highness Mehr Taj Nawab of Bhopal v. State of M.P. (1977 JLJ 337).
5. Learned counsel for the appellants submitted that Division Bench of this Court in the case of State of M.P. v. Gyasiram (supra) has considered this question in length. Learned counsel strongly relied upon the conclusions drawn by Chawla, J. in para 26 of the judgment. Para 26 of the judgment is reproduced below :--
"26. My conclusions may be summed up as follows :
(1) A dispute about ownership of land between the State Government and any person has first to be (carried for decision to the Sub-Divisional Officer. A suit involving such dispute cannot be directly brought in a civil Court.
(2) A dispute about rights short of ownership in any land, said to have been saved on the date of the coming into force of the Revenue Code arising between the State Government and any person should also be first carried for decision to the sub-Divisional Officer. A suit involving such a dispute cannot be directly brought in a civil Court.
(3) A dispute about rights short of ownership said to have been acquired by any person in any land, after the commencement of the Revenue Code, arising between the State Government and any such person, falls outside the ambit of Section 57 (1) and cannot therefore, be decided by the Sub-Divisional Officer under Section 57 (2) of the Revenue Code. A suit, for instance, raising a dispute that the plaintiff had acquired Bhumiswami rights over any piece of land after the commencement of the Revenue Code, may be directly brought against the State Government in a civil Court."
Interpreting the conclusions drawn in para 26 of the judgment, this Court has held that suits claiming rights of Bhumiswami against State are maintainable. Learned counsel for the appellants placed reliance on the cases of Ramsahai (supra) and Ramveer Singh (supra) and submitted that now it is settled that suit claiming Bhumiswami rights are maintainable and question of law deserves to be answered that suit is maintainable.
6. The question involved in this case is whether claiming right of Bhumiswami against State amounts to claim of ownership. The word 'ownership' used in Section 57 (1) of the Code includes Bhumiswami rights. In Section 57 (1) after it is declared that all lands belong to the State Government and are the properties of the State Government therefore, the ownership rights have vested in the State, the proviso to the Code provides that rights subsisting on the date of commencement of the Code shall not be affected save otherwise provided in the Code. Thus the rights existing have converted into the rights conferred under this Code. Section 158 of the Code has conferred rights of 'Bhumiswami' to the holders of lands mentioned in Sub-sections (a) to (e) of Section 158 (1). Therefore, the words "any right subsisting on the date of coming into force of this Code" shall include Bhumiswami rights, therefore, on harmonious construction of Section 57 (2) of the Code word "any right" would include Bhumiswami rights. Sub-rule (2) of Section 57 provides that any dispute arising between the State Government and any person in respect of any right under Sub-section (1) shall be decided by the Sub-Divisional Officer.
7. On plain reading of Section 57 (1) of the Code with proviso and Section 158 of the Code, it is clear that any rights would include rights in the land, other than ownership.'
8. Rights of Bhumiswami are considered by Full Bench of this Court in the case of Ram Gopal v. Chetu (1976 JLJ 278). The Full Bench held in para 14 as under :
"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 57 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 curtained except by legislation."
Thus rights of Bhumiswami though he is not the owner of the land which he holds, in the sense absolute ownership because as declared in Section 57 of the Code that ownership vests in the State, yet, he is a Bhumiswami. His rights are higher and superior and akin to those of proprietor in the sense that they are transferable and heritable. He cannot be dispossessed except by process of law under the statutory provisions.
9. The observations made by learned Chawla, J. in the judgment in the case of State of M.P. v. Gyasi Ram (supra) are obiter dictum. The majority view is recorded in para 17 of the judgment. Para 17 of the judgment is reproduced below :--
"From the Scheme of the provision and its intendment, it is clear that the dispute in respect of 'any right' as against the State is barred by Section 57 (2) of the Code, and a civil suit can only be instituted under Section 57 (3) of the Code to challenge the validity of the order. The provision thus excludes the jurisdiction of the civil Courts and even a case of declaration of rights or title relating to ownership of the land as against the State cannot be instituted. Therefore, it cannot be contended that the provision is enabling and concurrent or alternate".
10. Full Bench of this Court in the case of Ram Gopal (supra) has clarified that the rights of Bhumiswami, as held by the Full Bench the word 'any right' in Section 57 (2) of the Code includes all the rights in the land other than ownership rights. After declaration in Section 57 (1) of the Code that all lands belong to the State, therefore, the word 'any right' occuring in Section 57 (2) of the Code would mean rights other than Bhumiswami rights. When the legislature has prescribed procedure for institution of suits after adjudication of rights under Section 57 (2) of the Code, then suit will be maintainable under Section 57 (3) of the Code. Under Section 57 (3), suit can be filed within one year from the date of adjudication of rights under Section 57 (2) of the Code.
11. In the light of the aforesaid discussions and as held by Division Bench in the case of State of M.P. v. Gyasi Ram (supra), the judgments delivered in the cases of Ramsahai and Ramveer Singh (supra) are per in-curiam.
12. Since the plaintiffs are claiming Bhumiswami rights against the State, therefore, suit is not maintainable unless dispute is adjudicated under Section 57 (2) of the Code. In the present case, though an application under Section 57 (2) of the Code was filed, but the application was withdrawn. Thus the suit as filed without adjudication under Section 57 (2) of the Code is not maintainable.
13. Substantial question of law No. (i) is answered accordingly.
14. Question of law No. (ii) does not arise in this case. If the plaintiffs had acquired any rights over the land by compliance or non-compliance of Section 38 (2) of Madhya Bharat Zamindari Abolition Act, it can only be examined in an application under Section 57 (2) of the Code. Since the suit itself is not maintainable, this question of law does not arise in the appeal.
15. In the result, the appeal fails and is dismissed with costs throughout, Counsel's fee as per schedule.