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Madhya Pradesh High Court

Gopal vs The State Of Madhya Pradesh on 21 January, 2022

Author: Vivek Rusia

Bench: Vivek Rusia

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                                                            W.P. No. 2670/2021



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
     (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                         W.P. No. 2670 of 2021
Gopal s/o. Kaluji Choudhary, Aged 40 years, Occ. Agriculture, R/o. Near
Hanuman Mandir, Gram Pithakhedi, Tehsil Badnagar, District Ujjain.
                                                             ---Petitioner.
                                  Versus
1.    State of M.P. Through Commissioner, Division Ujjain, Ujjain.
2.    The Sub Divisional Officer, Badnagar, District Ujjain.
3.    The Tehsildar, Tehsil Badnagar, District Ujjain.
4.    Ajay Kumar S/o. Shivnarayan, Aged Adult, Occ. Agriculturist.
5.    Rajiv S/o. Shivnarayan, Aged Adult, Occ. Agriculturist.
      Both R-4 & R-5 resident of Gram Pithakhedi, Mangalnath Path,
      Badnagar.
                                                           ---Respondents.
Date: 21.01.2022 :
      Shri Sachin Parmar, learned counsel for the petitioner.
      Shri    Anubhav      Pandey,    learned       Panel   Advocate      for
respondent/State on advance copy.
      Heard on the question of admission.
                               ORDER

The petitioner has filed the present petition being aggrieved by order dated 28.9.2017 passed by Tehsildar, Badnagar; order dated 27.9.2018 passed by the Sub Divisional Officer, Revenue, Badnagar; and order dated 26.11.2020 passed by the Additional Commissioner, Ujjain.

2. Facts of the case, in short, are as under :

Respondents No.4 and 5 being owners of agricultural land bearing Survey No. 90 area 0.12 Hect. situated at Village Peethakhedi, Tehsil Badnagar approached the Court of Tehsildar u/s. 250 of the M.P. Land Revenue Code (MPLRC) alleging that the petitioner has illegally encroached over the said land. According to them, they are the joint owners of the aforesaid land. In Demarcation Case No.12/2015, vide order dated 28.5.2015 the demarcation was done over the said land in

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presence of petitioner and the respondents under the provisions of Section 129 of the MPLRC. The respondents reached to the spot and found that the petitioner has illegally encroached over the said land. The application u/s. 250 of the MPLRC was filed on 18.6.2015.

After notice, the present petitioner appeared before the Tehsildar and filed the reply denying the demarcation proceedings and submitted that he is in possession over the said land as an owner. In the pending proceedings, the petitioner also filed an application u/s. 32 of the MPLRC challenging the validity of the demarcation proceedings.

Vide order dated 28.9.2017, the Naib Tehsildar has found that as per demarcation report, the possession of the present petitioner on Survey No.90 was found illegal and hence directed for removal of the illegal encroachment.

Being aggrieved by the aforesaid order, the petitioner preferred an appeal before the Sub Divisional Officer u/s. 40 of the MPLRC. Vide order dated 27.9.2018 the Sub Divisional Officer has dismissed the appeal and affirmed the order of Tehsildar. While dismissing the appeal, the Sub Divisional Officer has observed that in the demarcation proceedings, vide order dated 24.5.2018 the Revenue Inspector, Runija had issued the notice to the present petitioner and in which his signature is there. He was not present in the demarcation proceedings despite service of notice, but he did not challenge the said proceedings by way of an appeal or revision. The proceedings before the Tehsildar remained pending for two years, hence the Sub Divisional Officer has upheld the order of Naib Tehsildar.

Being aggrieved by the aforesaid order, the petitioner approached the Additional Commissioner by way of second appeal. The Additional Commissioner has dismissed the appeal and upheld both the aforesaid orders. Hence, the present petition before this Court.

3. Learned counsel for the petitioner submits that in an application

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filed u/s. 250 of the MPLRC the respondents have claimed mesne profit @ Rs.5,000/- per year. The revenue authorities have no jurisdiction to grant mesne profit in a proceeding u/s. 250 of the MPLRC, hence it vitiates the entire proceedings undertaken u/s. 250 of the MPLRC. It is further submitted that in an application u/s. 250 of the MPLRC the respondents have not disclosed the date of their dispossession by the petitioner. The Tehsildar has passed the impugned order on the basis of demarcation proceedings which were undertaken in absence of the petitioner, hence, such proceedings are illegal and cannot be the basis for passing the impugned orders.

4. In the application u/s. 250 of the MPLRC the respondents have pleaded that they are owners of the land bearing Survey No.90 area 0.12 Hect. which has not been denied by the petitioner in his reply. The demarcation proceedings were undertaken and final order was passed. The Sub Divisional Officer has observed that the petitioner was served with the notice but he was not present in the proceedings. He did not challenge the demarcation proceedings by way of an appeal or revision. In the application filed on 18.6.2015 the respondents have specifically pleaded that after the order of demarcation when they went to their agricultural field to see the status of Soyabean crop, they found that the petitioner has illegally encroached over the said land. Both the appellate courts have held that the petitioner has delayed the proceedings before the Tehsildar for two years. The petitioner has not claimed that he is the owner and possession over the land in question by virtue of his title. The respondents have argued before the learned Additional Commissioner that the petitioner has already filed a civil suit in respect of the land in question and which has not been denied by the petitioner in this petition. All the three revenue authorities have concurrently held that the petitioner is in illegal possession over the said land belonging to the respondents. Therefore, in absence of any

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right and title, the petitioner has no authority to remain into possession. Even otherwise, the petitioner has not produced any order or date by which the appellate court granted stay of the execution of the order passed by the Tehsildar. No case is made out to interfere with the impugned orders.

Accordingly, this petition fails and is hereby dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

ALOK Digitally signed by ALOK GARGAV DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=eae18b7018e4245a54c74948bb27999d7e052526864065 b20b27a5804a3e1fea, GARGAV pseudonym=7CDEDE27CC58A5C0E24DE6046DC50DE017D631F3, serialNumber=9995A79B765CF420033A1CBAAFF5461F718D618B A2FDCA70E412F27FFE6E8CB0, cn=ALOK GARGAV Date: 2022.01.22 13:26:32 +05'30'