Madhya Pradesh High Court
Rajendra vs Mst. Jeeran Bai on 18 March, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 18TH OF MARCH, 2024
CIVIL REVISION No. 232 of 2020
BETWEEN:-
RAJENDRA S/O SHRI MOTILAL DESHMUKH, AGED
ABOUT 55 YEARS, OCCUPATION: CASTE PAWAR,
OCCUPATION MINING CONTRACTOR, R/O. GRAM
MIRAGPUR, TEHSIL KHAIR LANJI, DISTRICT
BALAGHAT (MADHYA PRADESH)
.....APPLICANT
(BY SHRI K.S.JHA - ADVOCATE)
AND
1. MST. JEERAN BAI W/O SHRI HARI, AGED ABOUT
70 YEARS, OCCUPATION: CASTE PAWAR R/O.
GRAM MIRAGPUR TEH KHAIR LANJI (MADHYA
PRADESH)
2. DEENDAYAL S/O SHRI HARI, AGED ABOUT 40
YEAR S, R/O GRAM MIRAGPUR TEHSIL KHAIR
LANJI, DISTRICT BALAGHAT (MADHYA
PRADESH)
3. GIRDHARI S/O SHRI HARI, AGED ABOUT 38
YE A R S , OCCUPATION: PAWAR, R/O GRAM
MIRAGPUR TEH KHAIR LANJI, DISTRICT
BALAGHAT (MADHYA PRADESH)
4. STATE OF M.P. THROUGH COLLECTOR DISTT.
BALAGHAT (MADHYA PRADESH)
5. PRESIDING OFFICER (OFFICER IN CHARGE)
MINING DEPARTMENT DISTRICT BALAGHAT
(MADHYA PRADESH)
6. SUB DIVISIONAL AUTHORITY (REVENUE)
WA R S EO N I DISTRICT BALAGHAT (MADHYA
PRADESH)
7. TEHSILDAR TEHSIL KHAIR LANJI DISTRICT
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 22-03-2024
21:00:42
2
BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 3 BY SHRI SANJAY SHARMA & MS.PRIYAL
RAHANGDALE - ADVOCATES)
(RESPONDENTS NO.4 TO 7 BY MS.SEEMA SAHU - PANEL LAWYER)
Reserved on: 18.12.2023
Pronounced on: 18.03.2024
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This revision having been heard and reserved for order, coming on
for pronouncement this day, JUSTICE HIRDESH passed the
following:-
ORDER
T h is revision under section 115 of the Code of Civil Procedure (hereinafter referred to as the "CPC") has been filed by the applicant/Defendant No . 1 against order dated 07.9.2020 passed by First Civil Judge Class-II, Waraseoni, District Balaghat in Civil Suit No.68-A/2020 [Mst.Jeeran Bai and others Vs. Rajendra and others], by which, the application filed by the applicant under Order 7 Rule 11 of CPC has been rejected.
2. Before the learned trial Court the respondents No.1 to 3 as plaintiffs filed aforesaid civil suit seeking relief of declaration and permanent injunction and contended that they are corded owners of Khasra No.237/4, admeasuring 0.049 hectares and Khasra No.237/5 area 0.068 hectares situated in village Miragpur, Tahsil Khair Lanji, District Balaghat. On the aforesaid land the plaintiffs 'house is constructed which is about 100 years old and there is open space where the plaintiff's keep their cattle. The applicant/defendant No.1 who is Mining Contractor has been granted mining lease of the lands adjoining to that of the plaintiffs and the defendant No.1 has dug the mining pit over the part of plaintiffs' land. The respondents/plaintiffs further contended that defendant Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 22-03-2024 21:00:42 3 No.1 has also illegally initiated proceedings under section 250 of the M.P. Land Revenue Code (for brevity "MPLRC") against the plaintiffs wherein they filed reply. On 06.8.2020 the plaintiffs were served a notice by the Sub Divisional Officer for determining compensation of the suit lands under section 247 of the MPLRC. The plaintiffs further submitted that applicant/defendant No.1 has illegally got the lands demarcated over which the plaintiffs have encroached upon the lands granted to defendant No.1 for carrying out mining activities. It was contended that plaintiffs came to know that Mining Department has granted mining lease of lands including the lands of plaintiffs i.e. Khara Nos.237/4 & 237/5 to the defendant No.1 for carrying out the mining activities over the same. Prior to granting of lease of the plaintiffs land, no consent from the plaintiffs was obtained and same has been granted for carrying out the mining activities. So, the plaintiffs filed civil suit seeking permanent injunction against the defendants in respect of disputed land.
3. The applicant/defendant No.1 filed an application under Order 7 Rule 11 CPC and contended that suit was barred under section 247 r/w section 257 of MPLRC as it was not maintainable. He further submitted that plaintiffs grievance is with respect to grant of mining lease to the applicant/Defendant No.1 on account of which their rights have been infringed, for which remedy is provided under section 247 of the Code and jurisdiction of civil court is barred.
It was also contended that plaintiffs have also challenged the demarcation proceeding under section 250 of the MPLRC.
4. The respondents/plaintiffs filed reply to the aforesaid application under Order 7 Rule 11 of CPC.
5. The trial Court observed at this stage it is not clear whether the Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 22-03-2024 21:00:42 4 plaintiffs' land has been acquired by the government for mining purpose or not, the same only be decided after recording of evidence and dismissed the application by impugned order dated 07.9.2020.
6. Being aggrieved by the aforesaid order the learned counsel for the applicant submitted that trial Court has committed an error in rejecting the application under Order 7 Rule 11 CPC for rejection of plaint as not maintainable under sections 247 & 257 of MPLRC. He further submitted that notice issued by the SDO for determination of compensation under the provisions of 247 of MPLRC. Thus, from the plaint averments it is manifest that the suit lands which have been given on mining lease to the defendant No.1 and for determining the compensation notices have been issued to the plaintiffs. So, prayer has been made to set aside the impugned order and reject the plaint of the respondents/plaintiffs. Learned counsel has placed reliance on the decision in the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by legal representatives, (2020) 16 SCC 601.
7. On the other hand, learned counsel for the respondent has opposed the contention of learned counsel for the applicant and prayed for dismissal of this revision. Learned counsel placed reliance on the decision in the case of Keshav Sood Vs. Kirti Pradeep Sood and others, [Civil Appeal No.5841/2023 decided on 12.9.2023], Salim D.Agbotwala and others Vs. Shamalji Oddhavji Thakkar and others [Civil Appeal No.5641/2021 decided on 17.9.2021] and Mr.A.Kanthamani Vs. mrs.Nasreeen Ahmed , 2017 SAR (Civil) 451.
8. Heard learned counsel for the parties and perused the record.
9. In this regard it would be worth referring to the provisions of section 57 and section 247 of MPLRC. Section 57 of MPLRC reads as Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 22-03-2024 21:00:42 5 under:-
"57. State ownership in all lands.- (1) All lands belong to the S t a t e 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 91) such dispute shall be decided by the State Government/Sub Divisional Officer."
Section 247 of MPLRC which relates to Government's title to minerals. The relevant extract of such provision contained under sub-sections (1) & (4) of section 247 read as under:-
"247. Government's title to minerals. - (1) Unless it is otherwise expressly provided by the terms of a grant made by the Government, the right to all minerals, mines and quarters shall vest in the State Government which shall have all powers necessary for the proper enjoyment of such rights.
(2) xxxxxx (3) xxxx (4) If, in the exercise of the right herein referred to over any land, the rights of any person are infringed by the occupation or disturbance of the surface of such land, the Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Sub Divisional Officer, or, if his award is not accepted, by the civil Court, as nearly as may be, in Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 22-03-2024 21:00:42 6 accordance with the provisions of the Land Acquisition Act, 1894."
10. Considering the aforesaid provisions and on perusal of the plaint filed by the respondents/plaintiffs it is found that the plaintiffs have challenged the order of SDO by which he granted mining lease to the applicant/defendant No.1 and they pleaded that they are not in possession of Khasra No.232/1 & 233and plaintiffs sought permanent injunction in respect of Khasra No.237/4 & 237/5.
11. In the case of Raghwendra Sharan Singh (supra), which has been placed reliance by applicant, the Apex Court has held that plaint liable to be rejected if on entire and meaningful (nor formal) reading of averments of plaint, it is found to be not disclosing a cause of action and clear right to sue or is found to be barred by law of limitation. Perusal of record, other documents and averments in written statement or contentions of defendant are immaterial.
12. In the case of of Mrs.A.Kanthamani (supra) the Supreme Court in paragraphs 37 & 38 held thus:-
"3 7 . Third, it is a well settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court.
38. It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here."
13. In the present case, considering the above citations and keeping Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 22-03-2024 21:00:42 7 in view the law laid down there and on perusal of the averments made in the plaint it is found that the plaintiffs filed suit for permanent injunction against the defendant in regard to Khasra No.237/4 & 237/5 and denied that he was in encroachment of Khasra No.232/1 & Khasra No.233.
14. So, in the considered opinion of this Court, the trial Court has n o t committed any error in rejecting the application filed by the applicant/defendant under Order 7 Rule 11 CPC. There is no illegality in the impugned order. The same is just and proper.
15. In the result, the revision stands dismissed.
(HIRDESH) JUDGE RM Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 22-03-2024 21:00:42