Lakshminarayan vs Satish Choudhary
2021 Latest Caselaw 2953 MP

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     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
        (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
                           M.P. No.2739/2020
( Lakshminnarayan and another V/s. Satish Choudhary and another)
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        Shri Sandeep Mehta, learned counsel for the Petitioner.
        Shri Koustubh Pathak, learned counsel for the Respondent
No.1.
        Shri Akash Sharma, learned counsel for the Respondent No.2.
                                  ORDER:

05/07/2021 Petitioners have filed the present petition being aggrieved by the order dated 11.08.2020 passed by Additional Collector, Ujjain in case No.105/Revision/19-20 whereby the order passed by Sub Divisional Officer dated 18.12.2019 has been set aside and order passed by Nayab Tehsildar dated 25.10.2029 has been affirmed.

Facts of the case in short are as under:

2. The respondent No.2 Ramratan approached before the Nayab Tehsildar by way of an application under Section 131 of M.P. Land Revenue Code, 1959 against the present petitioners alleging that he being an owner of land survey No.123 area 0.720 hect., survey No.127 hect. Area 0.340 hect., survey No.128 area 0.260 hect., 129 area 0.090 hect. and survey no.130 area 0.360 hect. in total 1.770 hect. situated at Gram Tankariya Panth Tehsil & District Ujjain has blocked his customary way to approach his land survey No.123. According to the respondent No.2 he had a way from the government survey No.131 to survey number of petitioners 124, 125, 126 followed through Medh of Survey No.122 and 117. The people of the other villagers are also using the same way since last so many years. He is using the same way to bring his agriculture equipment and tractors to his land. According to him, the present petitioners are

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owner of survey No.122,124, 125 and 126 and they have illegally encroached over the government survey No.131 by constructing the house, which has blocked the way of survey No.123. They have also removed the medh of survey No.123, 124, 125 and 126 and included the area of medh in the land and not permitting him to use the way. In alternate he has submitted that he is having another way from survey No.122, 126 and 127 belonging to petitioners. He has further pleaded he is ready to use another way from survey No.121, 122, 120 and 119, which belongs to Satish Choudhary i.e. respondent No.1 in which also the medh has been removed by these petitioners and he is unable to use the same.

3. The present petitioners appeared before the Tehsildar and filed the reply by denying customary way from their land. Vide order dated 25.10.2019, the Nayab Tehsildar has allowed the application by providing a way to the respondent No.2 Ramratan from the west side of survey No.127, 126/1 and med of 124 and 122 belonging to petitioners .

4. Being aggrieved by the aforesaid order, passed by Nayab Tehsildar, the petitioners preferred an appeal under Section 44 of MPLRC before the Sub Divisional Officer (Revenue). Vide order dated 18.12.2019, the Sub Divisional Officer (Revenue) has set aside the order passed by the Nayab Tehsildar and provided a new way from survey No.121, 122 and survey 119 and 120. Since the survey No.119 and 120 belonging to respondent No.1/Satish Choudhary, therefore, he preferred a revision before the Additional Collector. The Additional Collector found that the SDO (Revenue) has passed the order in respect of land belonging to Satish Choudhary without giving any opportunity of hearing to him therefore, there is violation of natural justice, hence, revisional authority has set aside the order of Sub Divisional Officer(R) and maintained the order of Nayab

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Tehsildar. Since the order of Nayab Tehsildar is against the present petitioners, therefore, they have filed present petition.

I have heard learned counsel for the parties and perused the record.

5. Petitioners have raised an objection about the maintainability of the revision filed by the Satish Choudhary before the Additional Collector. According to him under Section 46-B no second appeal lies against the order passed by Tehsildar under Section 131 of MPLRC and remedy of revision is confined to the party to the lis. Since, Satish Choudhary was not a party before the Tehsildar as well as before the SDO (Revenue), therefore, he had no right to prefer a revision before the Additional Collector.

6. It is correct under section 46-B of M.P. Land Revenue Code, 1959 , the second appeal does not lie against order passed under section 131 of MPLRC but by virtue of Section 50 (1) (iii) the revision is maintainable before revisional authority. The right of filing revision has been given to the party. The meaning of word " party'' cannot be restricted to the applicant, non-applicant, appellant and respondent before the subordinate authority etc., the party means a person who is affected by judgment, hence he/she can challenge the order by way of the revision. In the present case though Satish Choudhary was not made party before the Nayab Tehsildar as well as SDO (Revenue) but order has been passed in respect of his land, therefore, indirectly he has become party fictionally to the dispute. Hence, revisional court has rightly been entertained the revision filed by respondent No.1 . The word "party" is not defined in the MPLRC, even otherwise it is settled law that person, who is affected by any decision can challenge by way of appeal or revision, even he was not arrayed as non-applicant/respondent. Therefore, revision preferred by Satish Choudhary is maintainable.

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7. On merit, it is correct that the by way of second option respondent No. 2 Ramratan has submitted that he is having alternate way from the land survey No.120 and 199 belonging to Satish Choudhary, then he ought to have impleaded Satish Choudhary as non-applicant No. 3 along with petitioners in the proceeding of under Section 131 of MPLRC. The Nayab Tehsildar vide order dated 25.10.2019 passed the order against the petitioners, which they challenged before the appellate authority submitting that they have no objection if the way is provided from survey No.119 and 120, then they ought to have impleaded respondent No.1: Satish Choudhary as respondent, therefore, the Additional Collector has not committed any error while setting aside the order passed by SDO (Revenue). Since Sub Divisional Officer has set aside the order dated 18.12.2019 passed by Nayab Tehsildar in which he has only considered the way available to Ramratan from the land of present petitioners and did not consider the way available from the land of Satish Choudhary, then the Additional Collector ought to have set aside the order of Nayab Tehsildar also and remanded the case back to court for deciding afresh after impleading the Satish Choudhary as party.

8. Learned counsel for the petitioners submits that when the spot inspection was carried out, respondent No. 1: Satish Choudhary was present on the spot, therefore, he was having knowledge. Mere knowledge is not sufficient, the affected party ought to have been impleaded in the litigation. Hence, the order dated 11.08.2020 passed by Additional Collector is also set aside. Proceedings initiated by respondent No.2 under section 131 M.P. Land Revenue Code, 1959 is restored with a direction to the Nayab Tehsildar to decide afresh by impleading Satish Choudhary as non-applicant . All the parties are directed to appear before the Nayab Tehsildar on 14.07.2021.

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9. Learned counsel for the petitioners submits that this court has stayed the operation of impugned order passed by Additional Collector on 09.10.2020 hence same may kindly be continue till conclusion of 131 proceedings.

10. The order of temporary injunction is liable to be passed on a touch stone of irreparable loss, balance of convenience and prima facie case. Nayab Tehsildar and SDO (Revenue) both have found that respondent No. 2: Ramratan was having customary way to approach his land, if Ramratan is restrained to approach his land to cultivate then he would suffer the irreparable loss rather than the present petitioners, if petitioners succeeds before the revenue authority they may obstruct the way at any point of time but they would not suffer any irreparable loss by removing the obstruction, hence, the balance of convenience is in favour of respondent No. 2:Ramratan, thus no case staying the order of Additional Collector is made out.

With the aforesaid, the petition is disposed of, no order as to cost.

( VIVEK RUSIA ) JUDGE praveen/-

Digitally signed by PRAVEEN NAYAK Date: 2021.07.07 17:33:32 +05'30'