Madhya Pradesh High Court
Shaukat Shah vs The State Of Madhya Pradesh on 18 July, 2024
Author: Anil Verma
Bench: Anil Verma
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE JUSTICE ANIL VERMA
ON THE 18th OF JULY, 2024
MISC. PETITION No. 6667 of 2019
SHAUKAT SHAH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
PETITIONER BY SHRI M.K. VIJAYWARGIYA.
RESPONDENT BY SHRI M.A. MANSOORI.
ORDER
Both the parties heard finally.
02. This miscellaneous petition has been preferred under Article 227 of the Constitution of India being aggrieved by the impugned order dated 06.12.2019 passed by the Additional Commissioner Ujjain, whereby appeal under Section 44(2) of M.P. Land Revenue Code, 1959 (hereinafter referred as "MPLRC") has been dismissed and order dated 14.08.2019 passed by the Sub Divisional Officer (Revenue), Shujalpur, District Shajapur, whereby appeal under Section 44(1) of MPLRC has been dismissed.
03. Brief facts of the case are that the respondent Nos.3 to 5 filed an application under Section 250 of MPLRC before the Tehsildar Shujalpur for reinstating them as a Bhumiswami and obtaining possession of the land bearing survey No.446/1 area 0.102 hectare and survey No.446/1/Min 2 area 0.003 hectare. Petitioner raised an objection, Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 19-07-2024 14:44:14 -2- therefore, the Tehsildar Shujalpur vide order dated 04.02.2017 rejected the said application. Being aggrieved by the aforesaid order, respondent Nos.3 to 5 preferred an appeal under Section 44(1) of MPLRC before the respondent No.2 which has been allowed by order dated 14.08.2019 then, petitioner preferred a second appeal before the respondent No.1 but same has been dismissed vide order dated 06.12.2019. Thereafter, petitioner has preferred this petition before this Court.
04. Learned counsel for the petitioner contended that impugned orders passed by the respondent Nos.1 and 2 are illegal, arbitrary and contrary to the law. The Tehsildar Shujalpur has rightly dismissed the application under Section 250 of MPLRC. An application under Section 250 of MPLRC can only be filed within two years from the date of dispossession. Revenue Authorities are not competent to entertain such application after lapse of two years. Therefore, the impugned orders passed by the respondent Nos.1 and 2 are without jurisdiction. The petitioner is in possession of the said land since 1977 i.e. for more than 42 years. After the judgment dated 19.05.2011 passed by the High Court in Second Appeal No.71 of 2002, respondent Nos.3 to 5 have purchased the aforesaid land from Ramlal. Respondent Nos.3 to 5 were not in possession on the date of execution of sale deed on 06.06.2011, therefore, the proceedings under Section 250 of MPLRC is not maintainable and both the impugned orders passed by the revenue authorities be set aside.
05. Learned counsel for the respondent has placed reliance on the judgment passed by Coordinate Bench of this Court in case of Smt. Sunita V/s State of M.P. and others in M.P. No.5156 of 2019.
06. Both the parties heard at length and perused all the relevant documents filed by them.
07. From perusal of the judgment dated 19.05.2011 passed in Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 19-07-2024 14:44:14 -3- Second Appeal No.71 of 2002 it has been held by the Coordinate Bench of this Court that appellant is entitled for limited degree of injunction as the appellant Shaukat Ali is in settled possession, to the effect that the respondent Nos.1 to 5 shall not take possession of the suit land forcibly without following the due process of law. Therefore, it is proved that the petitioner Shaukat Ali is in possession of the suit land since 1997.
Section 257 of the Code bars the jurisdiction of a civil Court to entertain any suit in respect of re-instatement of a Bhumiswami improperly dispossessed, which is cognizable by a revenue Court under section 250 of the Code. Section 250(1) of the Code says-
"If a Bhumiswami is dispossessed of the land otherwise than in due course of law......the Bhumis wami.......may apply to the Tahsildar for restoration...... "
The expression 'land' is defined in section 2(k) of the Code saying- "In this Code, unless there is anything repugnant to the subject or context-
" 'land' means a portion of the earth's surface whether or not under water; and, where land is referred to in this Code, it shall be deemed to include all things attached to or permanently fastened to anything attached to such land."
4. Now, the purpose of the Code is to provide a speedy and summary remedy to a Bhumiswami dispossessed of his land. No doubt, the land is fictionally meant to include even buildings on land; but it is clearly not the intent of the Code to provide a speedy and summary remedy under the Code to a Bhumiswami dispossessed of his immovable property. The use of the word 'Bhu- miswami' in connection with the land of which he is dispossessed and of which he may claim restoration of possession in section 250 of the Code clearly shows that the speedy and summary remedy provided by the Code is to be resorted to when a person, who is a Bhumiswami, is dispossessed of land which he holds in Bhumiswami rights and when the restoration of possession of such land is the dominant purpose.
08. From perusal of Section 250(B) of MPLRC it is provided that in a case of Bhumiswami not covered by the clause (a) within two years from the date of dispossession or from the date of which possession of such person became unauthorised, as the case may be, the Tehsildar shall proceed in the matter under Section 250 of MPLRC but in the Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 19-07-2024 14:44:14 -4- instant case petitioner is in possession over the said land since 1977 and respondent Nos.3 to 5 did not file application within the period of two years from dispossession from the suit land. Terefore, Tehsildar has no jurisdiction to entertain application under Section 250 of MPLRC. Hence, the order passed by the Tehsildar is maintainable which has been duly set aside by the SDO (Revenue) and later on Additional Commissioner Ujjain.
09. Apart from the above, it is also mentioned in the impugned order dated 06.12.2019 passed by the Additional Welfare Commissioner Ujjain, the house has been constructed over the suit land. In the case of Krishnakumardas and another V/s Balramdas and another, 1971 JLJ 827 it has been held that:
4. When the restoration of possession of such land is the dominant purpose. But, when the land is an appurtenance to the building and the dominant purpose of the plaintiff is to get restoration of possession of his building of which he alleges forcible dispossession, section 6 of the Speci- fic Relief Act would be his appropriate remedy which provides that 'if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. I may also add that buildings standing on land are fictionally made to mean land in the Code (see section 2(k) of the Code), provided there is nothing in the subject or the context, and that consequently, when the dominant purpose of a person who also happens to a Bhumiswami is to recover possession of his house of which he has been illegally dispossessed, his house cannot come within the fictional definition of the word 'land' as defined in the Code to give jurisdiction to a Tahsildar to restore him to its possession under section 250 of the Code.
10. In view of the aforesaid, this Court is of the considered opinion that the respondent Nos.3 to 5 did not file any application under Section 250 of MPLRC within the period of two years from their dispossession or from where the possession of the petitioner became unauthorised.Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 19-07-2024 14:44:14 -5-
Therefore, Tehsildar has no jurisdiction under Section 250 of MPLRC to restore the possession in favour of the respondent Nos.3 to 5 and respondent Nos.3 to 5 have opportunity to proceed under Section 6 of Specific Relief Act before the civil Court having competent jurisdiction.
11. In light of the aforesaid, no patent illegality has been committed by the below revenue authorities and the order passed by the respondent Nos.1 to 2 does not suffer from any jurisdictional error. This Court does not find any reason to interfere in both the impugned orders.
12. With the aforesaid, this Miscellaneous Petition sans merit and is hereby dismissed.
(ANIL VERMA) JUDGE Divyansh Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 19-07-2024 14:44:14