Madhya Pradesh High Court
Murloidhar vs Board Of Revenue on 29 January, 2013
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 18150 Of 2012
Murlidhar & Another
V/s
Board of Revenue, M.P. & Others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Ravish Agrawal, learned Senior Advocate with Shri Pranay Verma,
learned counsel for the petitioners.
Shri A. Usmani, learned counsel for respondent Nos.5, 6 & 7.
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ORDER
29.1.2013 Challenging orders Annexure P-19 dated 23.8.2012 passed by the Board of Revenue, Annexure P-18 dated 28.2.2012 passed by the Commissioner, Narmadapuram Division, Hoshangabad and the order Annexure P-16 dated 31.8.2009 passed by the Tehsildar (Revenue) Harda in a proceedings held before him under Section 250 of the M.P. Land Revenue Code, this writ petition has been filed.
2. Respondent Nos.5 to 7 initiated the proceedings against the present petitioners before the Tehsildar (Revenue) Harda under Section 250 of the M.P. Land Revenue Code for restoration of their possession on the ground that they are Bhumi-Swami of the land and have been illegally dispossessed. It was the case of respondent Nos.5 to 7 that respondent No.5 Poonam Chand is owner of land bearing Khasra No.138/3, respondent No.7 Smt. Malka Bai is owner of land bearing Khasra No.140/1 and 2 respondent No.6 Shri Raju is owner of land bearing Khasra No.142, all situated in village Domanau, Tehsil and District Harda. It was the case of all these persons that towards the eastern side of their property/land, as indicated hereinabove, is situated a land bearing Khasra No.143/4 which is recorded in the name of present petitioner Shri Murlidhar and petitioner NO.2 Shri Ramkishore is in joint possession with Shri Murlidhar. It is stated that petitioner No.1 appears to have given land to petitioner No.2 by way of partition.
3. In the proceedings held under Section 250 of the M.P. Land Revenue Code, respondent Nos.5 to 7 came out with a case that in the year 2006 they were given to understand that part of the land situated in the eastern side which belongs to they is under encroachment and, therefore, one of their family member Smt Leela Bai filed an application before the Tehsildar (Revenue) in the year 2006-2007 for demarcation under Section 129 and it was contended by her that in the land belonging to family on the eastern side some encroachment have been done by the petitioners. The Tehsildar (Revenue) Harda registered this case for demarcation of land bearing Khasra No.136/2 and 137/2, spot inspection was undertaken, a map was prepared and a report was submitted in which it was found that petitioner No.1 is in illegal possession of an area measuing 0.88 acres in Khasra No.138/3, 0.36 acres in Khasra No.140/1 and 0.38 acres in Khasra No.142. The aforesaid report was submitted by the Tehsildar vide Annexure P-3 and based on the aforesaid report of demarcation submitted vide Annexure P-3 it is seen that the proceedings were initiated by the respondent Nos. 5 to 7 under Section 250 of the M.P. Land Revenue Code. The report of demarcation Annexure P-3 is dated 6.9.2007 and the application for restoration of possession under Section 250 was filed on 3.10.2007.
4. Be that as it may be, proceedings under Section 250 was held and based on the report of demarcation, the Tehsildar vide his order Annexure P-16 dated 31.8.2009 came to the conclusion that petitioners are 3 encroaching on certain area of land held by respondents family and, therefore, directed for restoration of possession exercising powers under Section 260. The Tehsildar accepted the demarcation proceedings and recorded the finding by holding that the proceedings under Section 250 has been initiated within the time prescribed under law.
5. Challenging the aforesaid order Annexure P-16 passed by the Tehsildar First Appeal was filed by the petitioners before the Sub Divisional Officer and vide order Annexure P-17 dated 21.6.2010 the Sub Divisional Officer Harda reversed the findings of the Tehsildar and set aside the order of demarcation and ordered for restoration of possession mainly on the ground that there are various irregularity in the order passed by the Tehsildar vide Annexure P-3 and, therefore, based on the demarcation the action taken under Section 250 is unsustainable. It was also found that notice to the petitioner No.2 was not issued in the proceedings held under Section 129. Further findings recorded was that there is no change of boundaries of the disputed area for a long period of time of 30-40 years, the boundaries of land has not been altered for a long period of time and, therefore, findings of dispossession within 2 years was not found to be established. Being aggrieved by this order passed by the S.D.O., Harda, Second Appeal was filed under Section 44(2) before the Commissioner Narmadapuram Division Harda and the Commissioner vide order Annexure P-18 dated 28.2.2012 set aside the order of S.D.O. and restore the order of Tehsildar. Revision under Section 15 filed before the Board of Revenue Harda also being dismissed on 23.8.2012 vide Annexure P-19, petitioners are before this Court challenging the impugned action.
6. Shri Ravish Agrawal, learned Senior Counsel appearing for petitioner took me thorough the provision of Section 250(1)(a), Sub-section
(b) of the M.P Land Revenue Code and argued that the proceedings under Section 250 for restoration of possession has to be initated within a period of two years from the date of dis-possession or from the date on which possession became unauthorized. By referring to the submission of various 4 witnesses examined during the proceedings held, particularly that of Shri Poonam Chand, Shri Sohan Lal and Shri Sita Ram, so also referring to the findings recorded by the S.D.O., as contained in para 5 of the order Annexure P-17 dated 21.6.2010 Shri Ravish Agrawal, learned Senior Advocate emphasized that the application under Section 250 of M.P. Land Revenue Code was not maintainable, as it was not filed or initiated within the statutory period of limitation prescribed under Section 250(1)(a) sub Section (b). thereafter it was submitted by him that in the proceedings held under Section 129, no notice was given to the petitioner, particularly petitioner No.2 and, therefore, the said proceedings is an illegal proceedings which could not be relied upon by the Additional Commissioner of the Board of Revenue in deciding the matter. Accordingly contending that the Board of Revenue and Additional Commissioner have interfered into the matter in an illegal manner without looking into the requirement of Section 250, as contended, learned Senior Advocate prays for interference into the matter.
7. Shri Usmani, learned counsel appearing for respondent Nos.5, 6 & 7 refuted the aforesaid and submitted that in the proceedings held under Section 129 notice was issued to the petitioner and record shows that when the Kotwar went to serve the notice, petitioner No.2 refused acceptance of notice and as petitioner No.1 did not appear, inspite of notice, it is submitted that proceedings under Section 129 was correct. That apart, Shri Usmani argued that, even if the proceedings under Section 129 were held in an illegal manner, as contended, petitioner should have challenged the said proceedings in accordance to law by filing an appeal or revision. The said proceedings having attained the finality, encroachment having being established on the disputed area, petitioner without getting the order passed under Section 129 quashed in a proper judicial proceedings or legal proceedings cannot seek for ignorance of the aforesaid order. Accordingly the main objection of Shri Usmani is that the 5 proceedings under Section 129 having attained finality in a proceedings held under Section 250 the same cannot be challenged.
8. So far as the limitation under Section 250 (1)(a)(b) is concerned, Shri Usmani argued that the period of limitation commence from the date when possession was found to be unauthorized, i.e. the date on which the demarcation report under Section 129 was passed and as proceedings under Section 250 has been initiated within a period of 2 years from the said date the proceedings under Section 250 was maintainable. Accordingly, contending that the submission made by learned Senior Counsel are unsustainable, Shri Usmani prays for dismissal of this writ petition.
9. Having heard learned counsel for the parties at length and on a perusal of the material available on record, it is clear that the directions for restoration of possession under Section 250 of the M.P. Land Revenue Code was passed by the Tahsildar in his order Annexure P/16 mainly on the ground that encroachment and dispossession of the Bhumi Swami, namely the respondents is established from the demarcation report. That being so, the two moot questions warranting consideration in this writ petition are :
First, as to what is the starting point for considering the period of limitation as contemplated under Section 250 (1)(a)(b) of the M.P. Land Revenue Code, 1959 and whether in the present case the proceedings under Section 250 was initiated within time. The second question would be as to what is the effect of the order passed by the Tahsildar under Section 129 vide Annexure R/3 in the year 2007.
10. As far as the first question is concerned, for considering the same the provisions of Section 250(1)(a) and sub clause (b) thereof may be taken note of which reads as under :-
6"250(1)(a) If a Bhoomiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Bhoomiswami to the use of which such person has ceased to be entitled under any provision of this Code, the Bhoomiswami or his successor in interest may apply to the Tahsildar for restoration of the possession, - ..
(b) in case of a Bhoomiswami not covered by clause
(a), within two years from the date of dispossession or from the date on which possession of such person becomes unauthorised, as the case may be ]."
11. The aforesaid provisions contemplates that if the Bhoomiswami is dispossessed of the land otherwise than in accordance to due course of law he can seek restoration of possession by applying to the Tahsildar and the application has to be made within the time stipulated under sub section (a) and (b). Sub section (a) relates to a Bhoomiswami who is a tribal and therefore, for the present the said section is not relevant. Sub section (b) relates to other Bhoomiswami and two parameters are indicated for assessing the starting point of limitation. The first parameter is that the Bhoomiswami should initiate the proceeding within two years from the date of dispossession.
12. According to Shri Ravish Agrawal, learned Senior Counsel as the petitioners are shown to be in possession for more than 30 to 40 years and as there is no change in the disputed area, it is stated that sub clause (b) will not be applicable. However, the second part of this Section relied upon by Shri Usmani is more relevant. It contemplates the starting point to be the date on which possession of such a person becomes unauthorized. Therefore, as per this second parameter the starting point of limitation would be the date when the possession is found to be unauthorized.
713. Admittedly, it is the case of respondents No.5, 6 and 7 that they were not aware of the unauthorized possession by the petitioners till one of their family member Smt. Leela Bai initiated the proceedings before the Tahsildar in the year 2007 which culminated in passing of the order under Section 129 sometimes in the year July, 2007. I see much force in this submission. The evidence relied upon by Shri Ravish Agrawal, learned Senior Counsel does show that for a period of more than 30 to 40 years the possession of the parties continued and the boundaries of their respective property did not change. However, when Smt. Leela Bai pointed out the possibility of there being encroachment into her property then in the proceeding held under Section 129 demarcation was ordered and the report submitted vide Annexure P/3 on 6th September 2007, which established the encroachment and dispossession. Therefore the date on which the petitioners were found to be on unauthorized possession is the date of the order passed under Section 129 and as the application for restoration of possession under Section 250 is filed within the period of two years from the said date, the requirement of the second part of sub section
(b) of Section 250(1)(a) is complied with. A perusal of the provisions of sub section (b) of Section 250 (1)(a) as reproduced herein above clearly shows that the limitation prescribed in this Section to a Bhoomiswami for seeking restoration of his possession would commence either from the date he is dispossessed or from the date it is established that the possession of any person is unauthorized. In the present case, the possession of the petitioners was found to be unauthorized only when the proceedings were held under Section 129 when the demarcation conducted established that they are encroachers into certain area and therefore, unauthorizedly holding possession of certain area belonging to the original Bhoomiswami. Accordingly, it has to be held that the starting period of limitation for initiating a proceeding under Section 250 8 would be two years, to be calculated from the date of actual dispossession or if the date of actual dispossession is not available then the period of two years is to be calculated from the date the possession of a person is found to be unauthorized and if the possession is found to be unauthorized in a proceeding held under Section 129 or any other statutory or legal proceeding the date on which the findings of unauthorized possession is recorded in the said proceedings. That being so, I have to hold that in the present case the possession of the petitioners was found to be unauthorized on the date when the order was passed in the proceeding under Section 129 and therefore, the starting point for calculating the period of two years would be the said date and accordingly I am unable to agree with the submissions made by Shri Ravish Agrawal, learned Senior Counsel and hold that the Additional Commissioner and Board of Revenue have not committed any error in holding that the application under Section 250 was filed within the statutory period of limitation.
14. The submissions made by Shri Ravish Agrawal, learned Senior Counsel with reference to the order passed by the Sub Divisional Officer and the findings recorded by the said authority in the matter of no change in possession or boundary for a period of 30 to 40 years is of no consequence as this aspect of the matter is only relevant with regard to the first part of sub section (b) but in a case which is covered by second part of sub section (b) the evidence and finding recorded by the Sub Divisional Officer cannot be applied. Accordingly on the first question this Court finds that the application filed under Section 250 was within time and was rightly entertained by the authorities.
15. As far as the second ground is concerned, the proceeding under Section 129 for demarcation was conducted by the Tahsildar and had attained finality. If the petitioners had any grievance with 9 regard to the said order they were required to challenge the same in accordance to law by filing an appeal or revision against the said order by invoking the provisions of Section 44 or Section 50 of M.P. Land Revenue Code. If the petitioners felt that the order passed under Section 129 is without notice to them and without hearing them, they should have challenged the said order in accordance to law. Having not done so, the order becomes a final order and based on the same if the possession of the respondents are restored, no error is committed by the Board of Revenue or the Additional Commissioner. That apart, it is a case of the petitioners that in the proceeding held under Section 129 notice was not issued to them, however, the finding recorded is contrary and it shows that inspite of notice petitioner No.1 did not appear and petitioner No.2 did not receive the notice. Be it as it may be, once the order under Section 129 had attained finality and based on the same action is taken, I see no reason to interfere into the matter.
16. Accordingly, in the facts and circumstances of the case, I find no error in the order passed by the Board of Revenue and the Additional Commissioner warranting interference.
17. Petition is therefore dismissed, no order as to costs.
(Rajendra Menon) Judge ss/- Mrs. Mishra