Tarasingh Chouhan vs The State Of Madhya Pradesh
2021 Latest Caselaw 647 MP

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            HIGH COURT OF MADHYA PRADESH
                   WRIT APPEAL NO.266/2021
            Tarasingh Chouhan Vs. State of M.P. & Ors.


Indore, Dated:12.03.2021

      Shri.A.S.Garg, learned Sr.Counsel with Ms.Poonam Mahajan,
learned counsel for appellant.

      Shri Vivek Dalal, learned A.A.G for respondents/State.

      Heard on admission.

                             ORDER

Per: Sujoy Paul,J:-

Learned Sr.Counsel submits that the trial court in Civil Suit No. 3-A/1999 (Annexure P/1) decreed the suit in favour of the plaintiffs. This judgment and decree was not disturbed by any higher forum. Thus title of present appellant cannot be doubted. The singular and simple prayer of appellant was that the respondents be directed to complete the demarcation proceedings in relation to appellant's land bearing Survey No.862, 869, 881 and 882 situated at village Tarana, District Ujjain. Learned Sr.counsel further submits that till demarcation is made, the respondents be restrained from constructing the road on the lands in question. Shri Garg, learned Sr.counsel urged that learned Single Judge has committed an error in dismissing the petition by holding that there exists disputed questions of fact. The right of appellant's to enjoy the property is flowing from Article 300- A of the Constitution and this right cannot be infringed or taken away by the respondents.

[2] Shri Vivek Dalal, learned A.A.G by taking this Court to the judgment and decree aforesaid urged that it does not include and contain khasra No.862. There were several plaintiffs before the trial

court. There exists no material to show that any partition of property and earmarking of portion had taken place. The title alone does not show the location etc. These are disputed questions of fact which were rightly not entertained in writ petition.

[3] No other point is pressed by the parties.

[4] The learned Single Judge opined as under:-

"(8) The petitioner has filed the present petition claiming himself to be the owner of land survey No.862, 869, 881 and 882 by virtue of judgment and decree dated 24.12.1999. In the said decree the petitioner was not the plaintiff whereas his father Bapu Singh was one of the plaintiffs. In the said suit there are as many as 13 plaintiffs had claimed their joint ownership of the land survey No.862, 869,881 and 882 . It is not the case of the petitioner that after passing of the Judgment & Decree partition has been taken place between all the 13 plaintiffs. Meaning thereby after the expiry of 20 years from the date of passing of the judgment the plaintiffs have not partitioned the land between themselves. The petitioner has not disclosed as to when his father expired and after that name of all the legal heirs have been brought on record or he is the only legal heirs of Bapu Singh. Whether the petitioner alone has inherited the property of his father Bapu Singh is not clear from the pleading of this writ petition.

(9) Vide Annexure-P/8 all the villager made a complaint to the Sub-Divisional Officer PWD that 104 feet road is being constructed on the west side of the land without removing the encroachment of east side of the road hence prayed that 52 feet road on both sides from the centre be constructed. The petitioner made the complaint to the Sub-Divisional Officer on 24.09.2019 alleging that his land 25 to30 feet of survey no.868, 869 is being taken for construction of the road. The respondents have filed a letter dated 14.10.2019 written by the revenue inspector to the Tehsildar that as per the revenue records868, 869, 881 and 882 are recorded in the name of Ram Bahadur Dev Kumar Father of Kasthur Chand and no construction has been made by the PWD after dated 27.05.2019. A panchnama is also filed along with the aforesaid letter. The respondents have filed the map duly certified by the sub-engineer of PWD that they are maintaining the centre

and constructing the road of 43.5 feet on each side. The respondents are constructing on survey no.701, 702, 703, 704, 862,869, 881, 882 which is recorded in the name of the government in the revenue records.

(10) That disputed questions of facts are involved in this petition question which cannot be decided without recording evidence. The issue of encroachment is always a disputed question of fact. As on today, the petitioner has not filed any title document of the land in question except the judgment and decree which is in the name of his father Bapu Singh. Whether the petitioner is the sole legal heir or not is not pleaded in this petition. After the death of Bapu Singh the petitioner has not applied for mutation of his name so far. There areas many as 13 joint owners of land bearing Survey No.862, 869, 881and 882 and which part of the survey came into the share of the petitioner is also not ascertain, therefore, he cannot allege at this stage that his land has been acquired or encroached by the PWD for construction of the road. All these issues cannot be decided in this petition for which the petitioner is required to get the record corrected or he is required to get a declaration that he is the absolute owner of the land which has been acquired/allegedly encroached by the respondents.

(11) The petitioner has applied for demarcation on 29.05.2019 but thereafter, he did not pursue the same for the last 2 years. As per own submission of the petitioner and as per the revenue record the land bearing survey no.881, 882 is recorded in the name of Ravi Ratan and Mangilal as per and as per the return filed by the State the land is recorded in the name of Ravi Ratan and Mangilal therefore unless all these disputed questions of fact are answered by the revenue authorities the construction work of the road in the public interest cannot remain in abeyance for indefinite period especially when 95%of the road has already been constructed. Upon ascertaining the title of the petitioner and it is found that some part of the land belonging to the petitioner has been used for the construction of the road the compensation can be assessed and paid to the petitioner.

(12) The petitioner is required to approach the revenue authority forgetting the record corrected/updated if he wants a declaration of the title coupled with the injunction against the Government then he is required to approach civil court. In the said suit also he can challenge the issue of encroachment by the defendant because the

same is liable to decide after recording the evidence. After all, the respondents are specifically disputing that they have not encroached on the land of the petitioner and the entire road has been constructed on government land. Therefore, in view of the above, the petition is accordingly dismissed."

(emphasis supplied)

[5] It is noteworthy that there exists no description of Khasra 862 in the judgment and decree. This fact pointed out by Shri Dalal was not refuted by Shri Garg, learned Sr.Counsel during the course of argument. The learned Single Judge opined that the judgment and decree was passed in favour of 13 plaintiffs on 24/12/1999. The plaintiff has not established as to whether any partition of property had taken place and whether he got any particular portion of the property based on any such partition. It is also strange that for decades appellant has not taken any steps to got his name mutated in the revenue record. The revenue record still shows these to be lands of government. In our opinion, the learned Single Judge has rightly opined that which part of Survey Number came into the share of appellant was not ascertained and established. Thus, in a writ petition, it is not possible to ascertain as to whether appellant's land was acquired or encroached. The learned Single Judge has taken a plausible view which, in our opinion, does not require any interference.

[6] The appeal fails and is hereby dismissed.

 (SUJOY PAUL)                               (SHAILENDRA SHUKLA)
    Judge                                           Judge



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Digitally signed by Varghese
Mathew
Date: 2021.03.16 04:31:13 -07'00'