Balchand vs The State Of Madhya Pradesh
2021 Latest Caselaw 6700 MP

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           HIGH COURT OF M.P. : BENCH AT INDORE
                           M.P. No.2867/2021
     Balchand S/o Bhanwarlal Kirar vs. State of M.P. and others
Indore : 23/10/2021 :-
       Shri Nitin Singh Bhati, learned counsel for the petitioner.
       Shri   Siddharth    Jain,   learned   Panel    Lawyer    for   the
respondents/State.

Heard on the question of admission.

1. By this petition preferred under Article 227 of Constitution of India the petitioner has challenged the order dated 30/07/2021 (Annexure-P/1) passed by Commissioner, Bhopal Division, Bhopal affirming the order dated 16/03/2021 (Annexure-P/3) passed by Sub Divisional Officer, Sarangpur, District-Rajgarh, Bioara affirming the order dated 11/11/2019 passed by Naib Tahsildar, Tappa Sandawta, Tehsil-Sarangpur, District-Rajgarh whereby application under Section 250 of the M.P. Land Revenue Code, 1959 (which shall be referred hereinafter as "the Code 1959") filed by respondent No.4 had been allowed.

2. The facts of the case reveal that as per letter dated 12/06/2018 of Collector, District-Rajgarh illegal encroachment of one Amar Singh S/o Mangu over the disputed land bearing Khasra No.130/3 area 0.253 hectare, Gram-Nipaniyabika, Tahsil-Sarangpur, District-Rajgarh which is Patta land of respondent No.4 was found. The Patta of aforesaid land was given to respondent No.4 in the year 2001. On receipt of aforesaid letter from the Collector, District-Rajgarh proceedings under Section 250 of the Code, 1959 were initiated against Amar Singh and notice was issued to him. In those proceedings possession of Bhanwarlal, father of the present petitioner over the disputed land was found but he did not produce any document in support of his title. He was advised to get the land demarcated under the provisions of Section 129 of the Code, 1959. Subsequently direction was issued to Revenue Inspector, Sarangpur to carry-out the demarcation.

3. As directed Revenue Inspector carried-out the demarcation on 02/11/2018 and submitted his report in which possession of father of petitioner was found. Eventually by order dated 11/11/2019 the Naib Tahsildar allowed the application under Section 250 of the Code, 1959 filed by the respondent No.4 and directed for delivery of possession to him. Being aggrieved by the said the order petitioner preferred an appeal under Section 44(1) of the Code, 1959 before Sub Divisional Officer which was dismissed by him by order dated 16/03/2021 by observing that in the demarcation carried-out by Naib Tahsildar on 02/11/2018 illegal possession of father of the petitioner was found who did not appear in the proceedings despite service of notice of the same upon him. No documents of title of Bhanwarlal have been produced and if he was aggrieved by the demarcation then he had a legal remedy available to him but the same has not been resorted to.

4. Being aggrieved by aforesaid order the petitioner preferred Second Appeal under Section 44(2) of the Code, 1959 before the Commissioner, Bhopal Division, Bhopal which has also been dismissed by him by the impugned order dated 30/07/2021 by observing that Patta of the land in dispute was allotted to respondent No.4, that no Patta was granted to the petitioner and that he has encroached over the land of respondent No.4 illegally hence no fault can be found with the orders passed by Authorities below.

5. Learned counsel for the petitioner has submitted that demarcation which had been carried-out by the Revenue Inspector of the disputed land was illegal and against the Rules made in that regard. The petitioner is in possession of the land as owner of the same hence could not have been termed to be an encroacher there upon. His possession is over Khasra No.76 and not on Khasra No.130/3. The location of lands of the parties have not been properly considered by the Authorities below in view of which their orders are vitiated.

6. I have heard learned counsel for the petitioner and have perused the record.

7. Admittedly Patta of Khasra No.130/3 was granted in favour of respondent No.4. The petitioner's father or the petitioner have not produced any document before the authorities below to show their title to the disputed land. In demarcation having been carried-out by Revenue Inspector as per direction of Naib Tahsildar possession of father of the petitioner over the disputed land was found. Since the petitioner and his father failed to adduce any material to show their title to the land in dispute, orders have rightly been passed by authorities below and also direction for removal of possession of father of petitioner has rightly been issued.

8. So far as contention of learned counsel for the petitioner as regards the demarcation being illegal and petitioner being in possession of Khasra No.76 and not Khasra No.130/3 is concerned, it is seen that the petitioner or his father have never challenged the demarcation proceedings having been carried out by Revenue Inspector under Section 129 of Code, 1959. Those proceedings were carried-out as per direction of Naib Tahsildar in which it was recorded that father of petitioner was served with notice of proceedings but has not appeared despite service. Those demarcation proceedings not having ever been challenged by the petitioner, it is now not open for him to challenge the legality of those proceedings in present proceedings which are under Section 250 of Code, 1959. The petitioner and his father had opportunity to challenge those proceedings but have not chosen to do so till now.

9. This Court in Murlidhar and another vs. Board of Revenue, M.P. and others 2013 (3) MPLJ 185 had held that it an order under Section 129 of the Code, 1959 is not challenged then the same becomes final and based on the same if possession is restored, no error can be found in the same. Though the aforesaid case was arising out of proceedings under Section 248 of the Code, 1959, but the principles laid down therein shall be fully applicable also in proceedings under Section 250 of the Code, 1959. Para 15 of the aforesaid judgment

being relevant is as under :-

"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 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."

10. In this view of the matter, prayer of learned counsel for the petitioner for remanding the case back to the Naib Tahsildar with direction for conducting a fresh demarcation of the land in dispute cannot be accepted.

11. Thus, the orders passed by authorities below are just and legal and no illegality in the same has been shown. The petition is hence devoid of merits and is hereby dismissed.

(Pranay Verma) Judge Aiyer*

Digitally signed by JAGDISHAN AIYER Date: 2021.10.28 18:19:58 +05'30'