Madhya Pradesh High Court
Bheekam Singh vs The State Of Madhya Pradesh on 23 October, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.48862/2021
Bheekam Singh Vs. State of M.P.
Gwalior, Dated:23/10/2021
Shri Virendra Singh Pal, Advocate for applicant.
Shri C.P. Singh, Panel Lawyer for respondent/State.
Shri Sarvesh Sharma, Advocate for complainant. Case diary is available.
This first application under Section 439 of Cr.P.C. has been filed for grant of bail.
The applicant has been arrested on 16/9/2021 in connection with Crime No.490/2020 registered at Police Station Maharajpura, District Gwalior for offence under Sections 188, 420, 467, 468, 471 and 120-B of IPC.
It is submitted by the counsel for the applicant that according to the prosecution case, the complainant has filed a civil suit against the applicant and co-accused persons for declaration of title and permanent injunction in respect of several lands including the land in dispute, i.e.survey no.830 min 3 area 1.045 hectares. It is submitted by the counsel for the applicant that it is true that a temporary injunction order was passed against the applicant and other co- accused persons by the Trial Court by order dated 11/12/2014 passed in Civil Suit No.67A/2014, but a liberty was also granted to the parties to the suit to move an application for demarcation / partition and till then the defendants were directed to maintain status quo. 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. Accordingly, the applicant and the co-accused persons moved an application for sub-division of survey no.830 min-3 area 1.045 hectare (in fact partition of the property was sought) and the order dated 27/1/2016 was passed by the Naib Tahsildar, Bahodapur, Tahsil and District Gwalior in case No.3/14-15/A-3 and survey no.830 min- 3 area 1.045 hectare was sub-divided (in fact partitioned) amongst the applicant and co-accused persons. It is submitted that it is the case of the complainant that the order of Naib Tahsidar is a forged document. However, the complainant himself had filed an appeal against the order of Naib Tahsildar which has been allowed by SDO, Gwalior City, Gwalior by order dated 1/10/2019 passed in case No.25/Appeal/2018-19 and the order of Naib Tahsildar has been set aside. It is submitted that the order of SDO is sub-judice before the Appellate / Revisional Court. It is submitted that if the applicant had moved an application for sub-division/partition before the Naib Tahsildar, then it was in accordance with the liberty granted by the Trial Court and, therefore, it cannot be said that the applicant has committed any fraud or has created any false document.
Per contra, the application is vehemently opposed by the counsel for the State as well as the complainant. The complainant has filed an application (IA No.29582/2021) under Section 301 (2) of Cr.P.C. and also an application (IA No.29779/2021) for taking 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. documents on record. It is submitted by the counsel for the complainant that it is true that the Trial Court had granted liberty to the parties to move an application for partition, but the applicant and the co-accused persons filed such an application without impleading the complainant, even knowingfully well that the complainant is also the joint owner of the property in dispute and obtained an ex parte order. Even in the Fard report it was not mentioned that the complainant is the joint owner. It is further submitted that on the strength of the partition order, the property has been alienated.
Heard learned counsel for the parties.
Sections 70 and 178 of MPLRC read as under:-
"70. Power to renumber or sub-divide survey numbers.- (1) The Settlement Officer may either renumber or sub-divide survey numbers into as many sub-divisions as may be required in view of the acquisition of rights in land or for any other reason.
(2) The division of survey numbers into sub-divisions and the apportionment of the assessment of the survey number amongst the sub-
divisions shall be carried out in accordance with rules made under this Code and such rules may provide limits either of area or of land revenue or both, below which no sub-division shall be recognised;
Provided that the total amount of assessment of any survey number shall not be enhanced during the term of a settlement unless such assessment is liable to alteration under the provisions of this Code.
(3) Where a holding consists of several khasra numbers the Settlement Officer shall assess 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. the land revenue payable for each khasra number and record them as separate survey numbers.
(4) Whenever the survey numbers are renumbered, the Settlement Officer shall correct the entries in all records prepared or maintained under Chapter IX.
178. Partition of holding. - (1) If in any holding, which has been assessed for purpose of agriculture under Section 59, there are more than one Bhumiswami any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding:
[Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the civil court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code. [(3) x x x] [(4) x x x] [(5) x x x] Explanation I.-For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding.
Explanation II.-[ x x x] From the plain reading of Section 178 (2) of MPLRC, it is 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. clear that all the co-sharers should be made party to the proceedings. The copy of temporary injunction order dated 11/12/2014 passed in Civil Suit No.67A/2014 has been placed on record and in paragraph 2 of the said order, it is mentioned that undisputedly the properties which are the subject matter of civil suit including the property in dispute, i.e.830 min-3 area 1.045 hectares are joint property of plaintiff (complainant) and the defendants (applicant and co-accused persons). Paragraph 2 of the order of temporary injunction reads as under:-
2+- izdj.k esa ;g Lohd`r rF; gS fd Hkwfe losZ Øekad& 830 feu 1@d jdok 0- 105 gSDVs;j] losZ Øekad&830 feu 1@[k jdok 0- 104 gSDVs;j] losZ Øekad 830 feu 1@x jdok 0-105 gSDVs;j] losZ Øekad 830 feu 2 jdok 0-481 gSDVs;j] losZ Øekad 830 feu 3 jdok 1-045 gSDVs;j vkSj losZ Øekad 830 feu 4 jdok 0-481 gSDVs;j fLFkr xzke em] gYdk tykyiqj] o`Rr cgksM+kiqj] rglhy o ftyk Xokfy;j oknh ,oa izfroknh Øekad&1 yxk;r 10 ds la;qDr LoRo] LokfeRo o vkf/kiR; dh vfoHkkftr d`f"k Hkwfe gSA ;g Hkh Lohd`r gS fd oknh laLFkk }kjk t;sZ jftLVMZ foØ; i= fnukafdr 31-07-03 Hkwfe losZ Øekazd 830 ds Hkkx jdok 0-481 gSDVs;j dks Ø;
dj vkf/kiR; izkIr fd;k x;k gSA lqfo/kk dh n`f"V ls vkxkeh inksa esa oknh@vkosnd dks oknh vkSj [email protected] dks izfroknh ds uke ls lacksf/kr fd;k tk jgk gSA During the course of arguments, it was fairly conceded by the counsel for the applicant that the order of temporary injunction has not been challenged. Thus, it is clear that the order dated 11/12/2014 has attained finality.
At this stage, it is submitted by the counsel for the complainant that since the applicant and the co-accused persons have violated the 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. order of temporary injunction, therefore, the proceedings under Order XXXIX Rule 2 of Cr.P.C. are also pending.
Be that whatever it may.
Paragraph 15 of the temporary injunction order dated 11/12/2014 reads as under:-
15- bl izdkj mijksDr foospuk ls ;g fu"d"kZ fudyrk gS fd oknh fu"ks/kkKk laca/kh rhuksa fcUnqvksa dks vius i{k esa lkfcr djus esa lQy jgk gSaA vr% vkosnu vraxZr vkns'k 39 fu;e 1 o 2 lgifBr /kkjk 151 lh-ih-lh Lohdkj dj bl vk'k; dh vLFkkbZ fu"ks/kkKk tkjh dh tkrh gS fd izdj.k ds fujkdj.k gksus rd vFkok Hkwfe;ksa cVkadu@lhekadu gksdj i{kdkjksa ds vius fgLls ij dkfct gksus rd] buesa ls tks Hkh igys gks] izfroknh Øekad&1 yxk;r 10 ekSds ij ;FkkfLFkfr cuk;s j[ksaA From the plain reading of paragraphs 2 and 15 of temporary injunction order dated 11/12/2014, it is clear that it was directed that till the suit is decided or till the property in dispute are partitioned / demarcated and the parties to the suit are given possession of their share, whatever earlier it may be, the defendants (applicant and co-
accused) shall maintain status quo. Thus, it is clear that there was an order of status quo against the applicant and the co-accused and they could have obtained possession of their respective shares only after the property was partitioned.
Taking advantage of the liberty extended by the Trial Court, it appears that the applicant and the co-accused persons moved an application under Section 70 of MPLRC. The complainant was not made a party to the said proceedings in spite of the fact that it was 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. observed by the Trial Court that the complainant is undisputedly the co-owner of the property in dispute. It appears that a public notice was issued and it was directed that the same may be affixed on the notice board of the Tahsil Office and at some conspicuous place. Thereafter, by order dated 27/1/2016 Batankan / partition order was passed. The said order of the Naib Tahsildar was challenged by the complainant before the SDO, which was registered as Appeal No.25/ Appeal/2018-19 and the order of the Naib Tahsildar was set aside by order dated 1/10/2019 on the ground that not only the complainant was not made a party, but no share was given to the complainant. Further, a note was also appended in the Fard Batankan that no land is lying vacant on the spot and the complainant is also not in possession.
Be that whatever it may.
The SDO by his order dated 1.10.2019 found that the Naib Tahsildar has passed the order dated 27.1.2016 in contravention of the provisions of law and, accordingly, the Competent Authority was directed to initiate a departmental enquiry against the Revenue Inspector who had submitted Fard Batwara. Although it is submitted by the counsel for the applicant that the order of the SDO is sub judice but no document has been filed to substantiate the said submission.
8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. Be that whatever it may.
The crux of the matter is that the civil suit is pending and the property in dispute i.e. survey No.830 min 3 area 1.045 hectare is also the subject matter of the civil suit and there is a temporary injunction order against the applicant and the co-accused, which is to remain in existence till the suit is decided or the order of partition is issued. In the Civil Suit, it was not disputed by the applicant and the co-accused persons that the complainant is completely stranger to survey No.830 min 3 area 1.045 hectare. Thus in the light of the liberty granted by the Trial Court, it was incumbent upon the applicant and the co-accused to implead the complainant as a party in the proceedings under Section 70/178 of MPLR Code. Under Section 178(2) of MPLR Code it is incumbent upon the aspirant to implead all the co-sharers in the proceedings. The applicant and the co- accused deliberately did not implead the complainant in the proceedings initiated by them before the Court of Naib Tahsildar and obtained an ex parte order behind the back of the complainant thereby adversely effecting its interest. Further they alienated the disputed property also. The counsel for the applicant could not satisfy this Court as to why the complainant was not made a party in the proceedings under Section 70/178 of MPLR Code.
Under these circumstances, this Court is of the considered 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48862/2021 Bheekam Singh Vs. State of M.P. opinion that it cannot be said that no prima facie offence is made out against the applicant.
Accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.10.25 18:26:11 +05'30'