Madhya Pradesh High Court
Suresh @ Kallu vs Dy. Commissioner on 31 October, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 31 st OF OCTOBER, 2023
MISC. PETITION No. 2276 of 2020
BETWEEN:-
SURESH @ KALLU S/O KOMAL SINGH YADAV, AGED
ABOUT 43 YEARS, KHILLIKHEDA, TEH.GOHARGANJ
DISTrict RAISEN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI HITENDRA VISHWAKARMA - ADVOCATE)
AND
1. DY. COMMISSIONER COMMISSIONER
KHILLIKHEDA, TEH.GOHARGANJ DISTT.RAISEN
(MADHYA PRADESH)
2. LALIT YADAV S/O SUBHASH CHANDRA YADAV
KHILIKHEDA TEH. GOHARGANJ, DISTRICT
RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SACHIN SINGH YADAV - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition filed by the petitioner assailing the order dated 02.03.20220 (Annexure P/6) passed by the Additional Commissioner, Division Bhopal, by which, an appeal preferred by the respondent No.2 under Section 44 (2) of Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as "MPLRC, 1959") has been allowed.
2. Learned counsel for the petitioner contends that the respondent No.2 Signature Not Verified Signed by: SAVITRI PATEL Signing time: 11/3/2023 4:58:12 PM 2 herein moved an application under Section 250 of MPLRC, 1959 before the Tahsildar, Tahsil Goharganj, District Raisen which is contained in Annexure P/1. The said application was filed on the ground that a demarcation of property was carried out on 11.11.2016 (Annexure P/3) and as per the demarcation report, the petitioner herein (Suresh @ Kallu) has been found to be in unauthorized possession of the property to the extent of 1.50 Acres. The application filed by the respondent No.2 was dismissed by the Tahsildar, vide an order dated 23.01.2018 (Annexure P/4). The Tahsildar, concluded in the order that the property is owned by joint undivided family and the parties are in possession of their respective shares in terms of the partition took place in past.
The Tahsildar further concluded that as the possession of the petitioner for a prolong period, therefore, respondent No.2 herein had failed to prove that in terms of Section 250 of MPLRC, 1959, there was dispossession from the property. The order passed by Tahsildar, dated 23.01.2018 (Annexure P/4) was then assailed by the respondent No.2 by filling a First Appeal before the Sub- Divisional Officer, Goharganj, District Raisen. The Sub-Divisional Officer, Goharganj also vide order dated 22.07.2019 (Annexure P/5) dismissed the said appeal. Later on, a Second Appeal was preferred by the respondent No.2 herein before the Additional Commissioner, Division Bhopal. The Additional Commissioner, Division Bhopal vide order dated 02.03.2020 (Annexure P/6) has allowed the appeal preferred by the respondent No.2.
3. It is contended by the counsel for the petitioner that the Additional Commissioner, Division Bhopal has taken cognizance of the facts which were not even pleaded by the respondent No.2 in his original application filed under Section 250 of the MPLRC, 1959. Counsel for the petitioner while taking this Court to paragraph 1 of the said application submits that it was submitted by Signature Not Verified Signed by: SAVITRI PATEL Signing time: 11/3/2023 4:58:12 PM 3 the respondent No.2 in the said application that he is owner and in possession of the land situate at Village Khillikheda, Patwari Halka No. 8/25, Tahsil Goharganj in Khasra No.297/2/2, 297/3, 298/1, 299/2, total ad-measuring Area 2.670 Hectares whereas before the Sub-Divisional Officer, an attempt was made to change the stand which is evident from perusal of paragraph 2 of the order passed by the Sub-Divisional Officer, Goharganj dated 22.07.2019 (Annexure P/5). It is contended by the counsel that the Sub-Divisional Officer, Goharganj while appreciating the fact that the property was owned by a joint family, therefore, it was not a case under Section 250 of MPLRC, 1959, rightly dismissed the appeal preferred by the respondent No.2 herein. However, the Additional Commissioner, Division Bhopal solely on relying the order of demarcation dated 11.11.2016, has proceeded to allow the appeal preferred by the respondent No.2 herein vide order dated 02.03.2020 (Annexure P/6) and has issued direction for dispossession of present petitioner from the property in question. Therefore, counsel submits that the impugned order dated 02.03.2020 (Annexure P/6) passed by the Additional Commissioner, Division Bhopal deserves to be set aside.
4. Per contra, learned counsel for the respondent No.2 contends that the impugned order dated 02.03.2020 (Annexure P/6) requires no interference inasmuch as, the factum of the partition has not been disputed by the petitioner.
There is a conclusive and final demarcation report which has already attained the finality in absence of any challenge in terms of Section 129 (5) of MPLRC, 1959. Therefore, counsel submits that in terms of demarcation, the Additional Commissioner, Division Bhopal, has rightly passed the impugned order dated 02.03.2020 (Annexure P/6), which requires no interference. It is contended by Signature Not Verified Signed by: SAVITRI PATEL Signing time: 11/3/2023 4:58:12 PM 4 the counsel that the application filed under Section 250 of MPLRC, 1959 was within limitation as the demarcation had taken place on 11.11.2016 and only upon demarcation, the factum of encroachment by the petitioner herein came to the notice of the respondent No.2. In support of his contention, counsel for the respondent No.2 has placed reliance on the decision of this Court in the case of Babulal Tiwari vs. Rampal Tiwari passed in W.P.No.8252/2019 dated 20.04.2023.
5. No other point is argued or pressed by the parties.
6. Heard the rival submissions of both the parties and perused the record.
7. It is first germane to take into consideration the original application filed by the respondent under Section 250 of MPLRC, 1959. Paragraphs no. 1 and 7 of the said application are reproduced hereinasunder:-
"1.;g fd vkosnd dh futh d`f"k Hkwfe fLFkr xzke f[kYyh[ksMk ia-g-ua- 8@25 rg0 xkSgjxat ftyk jk;lsu ds [kljk dza0 297@2@2] 297@3] 298@1] 299@2] dqy jdck 2--670 gsDVs;j Hkwfe gSA ftlds og ekfyd o Lokeh gSA * * *
7. ;g fd vkosnd }kjk vukosnd ls mDr vukf/kd`r dCts dh Hkwfe 1-50 ,dM dks NksMus dks dgk rks vukosnd us mDr Hkwfe dk dCtk vkt fnukad rd ugha NksMk vkSj vukosndx.k mDr vukf/kd`r Hkwfe ls Qly ysdj ykHk dek jgs gS ftlls vkosndx.k dks yxHkx 80 gtkj :i;s dk vkfFkZd uqdlku gqvk gSA tks vukf/kd`r Hkwfe ds dCts ds lkFk&lkFk vkosndx.k izkIr djus dh vf/kdkjh gSA vkSj blh dkj.k vkosndx.k dks ;g vkosnu izLrqr djuk vko';d gqvk gSA"
8. A perusal of the aforesaid paragraphs reflect that the respondent No.2 herein approached the Tahsildar while projecting himself to be owner and possession of the property, described in paragraph 1 of the application filed under Section 250 of MPLRC, 1959 (Annexure P/1). In the entire application there are no averments to the effect that the property was owned by an undivided family and there was some partition and as a result of said partition, the property in question fell in share of the respondent No.2. The entire application is unequivocally silent as regards the aforesaid averments.
Signature Not Verified Signed by: SAVITRI PATEL Signing time: 11/3/2023 4:58:12 PM 59. It is further evident from taking into consideration the paragraph 1 of the reply filed by the present petitioner herein to the said application. In the said paragraph, it was stated by the present petitioner that the property was belonging to joint family and there was a partition of the property in question in past. The said fact so asserted by the present petitioner was not disputed by the respondent No.2 which is also evident from perusal of second paragraph of the order of the Sub-Divisional Officer, Goharganj dated 22.07.2019 (Annexure P/5). The Sub-Divisional Officer, Goharganj also while appreciating the said aspect of the matter, declined to entertain the appeal preferred by the respondent No.2 and found that the order dated 23.01.2018 (Annexure P/4) passed by Tahsildar, Obedullaganj, District Raisen was just and proper.
1 0 . The said findings so arrived at by the Tahsildar, Obedullganj and Sub-Divisional Officer, Goharganj as regards the property to be a property of the joint family, was an important issue which was required to be dealt with by Additional Commissioner, Division Bhopal. The Additional Commissioner, Division Bhopal in paragraph 5 of the order concluded that as there was a demarcation report, thus, the application under Section 250 of MPLRC, 1959 ought to have been allowed. The Additional Commissioner, Division Bhopal in the impugned order further observed that it cannot be said that the parties are in possession of the property in question for a prolong period and the said findings of the Additional Commissioner so arrived at in paragraph 5 of the impugned order, in the considered view of this Court requires reconsideration particularly taking into consideration the averments made in the application under Section 250 of MPLRC, 1959. Thus, it would be expedient and proper that the Additional Commissioner, Division Bhopal takes a decision on the Signature Not Verified appeal preferred by the respondent No.2 herein afresh.
Signed by: SAVITRI PATEL Signing time: 11/3/2023 4:58:12 PM 611. In view of the aforesaid, the impugned order dated 02.03.2020 (Annexure P/6) passed by the Additional Commissioner, Division Bhopal stands set aside and the matter is remitted back to the Additional Commissioner, Division Bhopal with a direction to take a decision on appeal preferred by the respondent No.2 afresh while taking into consideration the original application filed by the respondent under Section 250 of the MPLRC, 1959.
12. Let a decision on the appeal preferred by the respondent be taken within a period of 90 days from the date of production of certified copy of the order passed today.
13. Accordingly, the present petition stands allowed to the extent indicated hereinabove.
(MANINDER S. BHATTI) JUDGE sp Signature Not Verified Signed by: SAVITRI PATEL Signing time: 11/3/2023 4:58:12 PM