Madhya Pradesh High Court

Shrikant vs The State Of Madhya Pradesh on 22 March, 2021

Author: Gurpal Singh Ahluwalia

        THE HIGH COURT OF MADHYA PRADESH                    1
MP No.43/2021 (Alok vs. State of MP and Ors.), MP No. 42/2021
(Shashikant vs. State of MP and Ors.), MP No. 44/2021(Shrikant
vs. State of MP and Ors.) & MP No. 45/2021(Ramesh Chandra vs.
State of MP and Ors)

Gwalior, Dated :22/03/2021

      Shri NK Gupta, Senior Counsel with Shri SD Singh,

Bhadoriya, counsel for the petitioner in all petitions.

      Shri Abhishek Mishra, Panel Lawyer for the respondents

No.1 to 3/ State in all petitions.

Shri VK Sahu, Counsel for the Nagar Palika in all

petitions.

By this common order, MP 42/2021 (Shashikant vs. State

of MP and Ors.) MP 44/2021(Shrikant vs. State of MP and Ors.)

& MP 45/2021(Ramesh Chandra vs. State of MP and Ors) shall

also be disposed of.

For the convenience, the facts of MP No.43/2021 (Alok

vs. State of MP and Ors.) shall be considered.

This Miscellaneous Petition under Article 227 of the

Constitution of India has been filed against the order dated

18/12/2020 passed by District Judge, Ashok Nagar in

Miscellaneous Civil Appeal No.64/2020 and order dated

28/01/2020 passed by Third Additional Civil Judge to the Court

of First Civil Judge, Class-II, Guna, District Ashok Nagar in

Civil Suit No.5A/2020, by which the application filed by the

petitioner under Order 39 Rule 1 and 2 has been rejected.

MP No.43/2021 (Alok vs. State of MP and Ors.), MP No. 42/2021 (Shashikant vs. State of MP and Ors.), MP No. 44/2021(Shrikant vs. State of MP and Ors.) & MP No. 45/2021(Ramesh Chandra vs. State of MP and Ors)

The necessary facts for disposal of the present petition in

short are that the petitioner filed a suit for permanent injunction

on the ground that he is the owner and is in possession of house

situated in Ward No.7, Municipal Area Ashok Nagar, District

Ashok Nagar. The said house was marked as ''A,B,C,D'' in the

plaint map. It is the case of the petitioner that the father of the

petitioner along with his brothers had jointly purchased 1/4 th part

of survey no.963 from Ghasiya Gadariya by registered sale deed,

dated 12/08/1975 and the said plot is now registered in the

revenue records as Survey No.963/2. The said land has been

partitioned by the plaintiff and his brothers and they are in

possession of their respective shares after constructing their

houses. The father of the petitioner has expired and the

petitioner's name has been mutated in the revenue records. It is

his claim that the boundaries of the plot are as under:-

(a) Northern Side- Garden of Soniji and the persons of Patarkheda

(b) Southern Side:- Vidisha Road

(c) Western Side:- Plot of Daulatram & Kaluram Sahu

(d) Eastern Side :- Plot of Pyarelal

It was further claimed that the land in question was never a

Government land. Since the respondents were harassing the

father of the petitioner and his brothers, therefore, they preferred

MP No.43/2021 (Alok vs. State of MP and Ors.), MP No. 42/2021 (Shashikant vs. State of MP and Ors.), MP No. 44/2021(Shrikant vs. State of MP and Ors.) & MP No. 45/2021(Ramesh Chandra vs. State of MP and Ors)

a civil suit which was registered as Civil Suit No.2A/1988 and in

the said civil suit, a compromise was arrived at between the

plaintiffs and the defendants and by judgment and decree dated

02/09/1995 passed by Civil Judge, Class-I, Ashok Nagar, District

Guna in Civil Suit No.2A/1988, a compromise decree was

passed and it was declared that the plaintiffs are the owners of

the plot marked as ''A,B,C,D'' in the plaint map and the

respondents/defendants shall not interfere with their possession.

However, the rights of the respondents to carry out construction

on the remaining land would not be affected. It is submitted that

now, the proceeding under Section 248 of MPLR Code has been

initiated contrary to the decree, which has been passed by the

Court below.

By referring to the application filed under Order 23 Rule 3

of CPC, it is submitted by the learned Senior Counsel for the

petitioner that as a compromise was arrived at between the

parties to the effect that the respondents shall be free to carry out

the construction work after leaving 10 meters from the centre

line of the disputed house. It is further submitted that in the show

cause notice dated 03/12/2019 the respondents have not clarified

the survey number and have not clarified that on which part of

the land, the petitioner has encroached upon and accordingly, on

11/12/2019 the petitioner appeared before the respondent No.2

and requested that it may be clarified that on which piece of

land, he has encroached upon. However, the respondents have

not clarified the same. Again, on 06/01/2020 another notice

under Section 248 of MPLR Code has been issued directing the

petitioner to remove his encroachment failing which action

would be taken. Thus, it was claimed that the respondents are

trying to demolish the construction raised by the petitioner

without giving any opportunity of hearing.

The respondent No.2 filed his written statement and

denied the plaint averments. It was pleaded that the road in

question was constructed about 35 years back and when it was

being constructed, no body had raised any objection. As per the

Government records, the total width of the road is 130 feet and

according to the Government records, the width of the road is

being extended and thereafter, the footpath and drainage, etc. are

being constructed. It was further pleaded that the respondent

no.2 has filed the copy of the standard map and the documents

pertaining to the standard highway and has also produced the

map of the revenue department, whereas the petitioner has not

produced the map as well as NOCs issued by other Departments.

The Assistant Engineer, PWD, Sub-Block Ashok Nagar had

carried out the acquisition proceedings which are in the

knowledge of the petitioner.

The petitioner also filed an application under Order 39

Rule 1 and 2 of CPC, which was duly passed by the respondents.

The Trial Court by order dated 28/01/2020 passed in Civil

Suit No.5A/2020 rejected the application filed under Order 39

Rule 1 and 2 of CPC on the ground that the respondents are

carrying out the construction of road, which is in the interest of

general public and the NOC which was given to the plaintiff

with regard to the Railway Bridge approach road, has no

relevance because the respondents are constructing the road at

different place.

Being aggrieved by the order passed by the Trial Court,

the plaintiff preferred an appeal, which too has been dismissed

by the Appellate Court.

Challenging the order passed by the Court below, it is

submitted by the learned Senior Counsel for the petitioner that

since in the application which was filed under Order 23 Rule 3

of CPC, it was pleaded that the respondents shall be free to raise

any construction after the distance of 10 meters from the centre

line of the disputed house, therefore, any construction within the

range of 10 meters from the centre line of the house is in

violation of the compromise decree and accordingly, it is prayed

that the Court below should have granted temporary injunction.

Per contra, the petition is vehemently opposed by the

Counsel for the respondents.

Heard the learned Counsel for the parties.

Although the petitioner has relied upon the application

which was filed under Order 23 Rule 3 of CPC in Civil Suit

No.8A/1988, in which it was mentioned that the respondents

shall be free to proceed with the construction work which is

proposed at a distance of 10 meters from the central line of the

house of the plaintiff but in the compromise decree, no such

condition was imposed. The compromise decree dated

02/09/1995 passed in Civil Suit No.2A/1988 reads as under:-

v& ;g ?kksf"kr fd;k tkrk gS fd oknhx.k Hkwfe losZ dz- [email protected] jdok 0-050 gS0 tks okn uD'kk vuqyXu esa v-c-

l-n v{kjks ls nf'kZr fd;k gS dk HkqfeLokeh ?kksf"kr fd;k tkrk gS rFkk blesa mYysf[kr Hkou ,oa dkj[kkus esa izfroknhx.k dksbZ Hkh gLr{ksi ugha djsaxs fdUrq fookfnr vkjkth ds vfrfjDr vU; Hkwfe;ksa ij izfroknhx.k dk fuekZ.k dk;Z izHkkfor ugha gksxkA uD'kk vuqyXu fMdzh dk vk/kkj jgsaxkA c& mHk;i{k viuk&viuk okn O;; ogu djsaxsA

l& vf/koDrk 'kqYd izekf.kr gksus ij fu/kkZfjr Ldsy ds vuqlkj ns; gksxhA n& rnuqlkj t;i= dh jpuk dh tkosA

In the compromise decree, it was nowhere mentioned that

the respondents shall be free to raise construction after the

distance of 10 meters from the central line of the house in

dispute, which was marked as ''A,B,C,D'' in the plaint map. Thus,

the compromise application cannot be read over and above the

compromise decree. If the compromise decree was not drawn in

accordance with the compromise application, then the plaintiff

had a right to challenge the compromise decree but the same was

not done. Accordingly, it is held that according to the

compromise decree, the plaintiff therein was declared as a

''Bhoomiswami'' of the plot marked as ''A,B,C,D'' in the plaint

map and the respondents were restrained from interfering with

the said property in dispute and it was observed that the

construction work of the respondents on the remaining lands will

not be affected. There is no mention of strip of 10 meters from

the centre line of the house, in the compromise decree.

It is not the case of the petitioner that the respondents are

trying to demolish the house of the plaintiff, which is marked as

''A,B,C,D" in the plaint map.

Be that whatever it may.

The crux of the matter is as to whether the respondents can

raise any construction contrary to the compromise decree which

was drawn on 02/09/1995 in Civil Suit No.2A/1988 passed by

Civil Judge, Class-I, Ashok Nagar, District Guna or not ? This

dispute can be resolved by appointing a Commissioner for

demarcating the land in dispute in respect of which compromise

decree was passed in Civil Suit No.2A/1988. Accordingly,

liberty is granted to the petitioner to move an application under

Order 26 Rule 9 of CPC before the Trial Court and if such an

application is filed, then the demarcation of the property which

was the subject matter of compromise decree passed in Civil Suit

No.2A/1988 shall be carried out. If it is found that the

respondents are trying to encroach upon the property which was

subject matter of compromise decree in Civil Suit No.2A/1988,

then the petitioner shall be free to move a fresh application under

Order 39 Rule 1 and 2 of CPC which shall be decided afresh by

the Trial Court in accordance with law. However, it is made clear

that since there is no mention of strip of 10 meters from the

centre line of the house in the compromise decree, therefore the

plaintiffs cannot include the strip of 10 meters in demarcation

proceedings.

With aforesaid observations, this petition is finally

disposed of.

Consequently, MP No.42/2021 (Shashikant vs. State of MP

and Ors.) MP No. 44/2021 (Shrikant vs. State of MP and Ors.) & MP

No.45/2021 (Ramesh Chandra vs. State of MP and Ors) are

disposed of.

(G.S. Ahluwalia) Judge

MKB

MAHENDRA KUMAR BARIK 2021.03.24 19:14:17 +05'30'

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