Suryabhan Singh Tiwari vs Jamuna Prasad Bra
2023 Latest Caselaw 279 MP

                                                      1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                           ON THE 5 th OF JANUARY, 2023
                                          SECOND APPEAL No. 2724 of 2018

                          BETWEEN:-
                          1.    SURYABHAN SINGH TIWARI S/O MATHURA
                                SINGH TIWARI, AGED ABOUT 68 YEARS,
                                OCCUPATION: AGRICULTURIST VILL. CHORMARI
                                TEH. RAMPUR BAGHELAN DISTT. SATNA
                                (MADHYA PRADESH)

                          2.    CHETMANI TIWARI S/O SURYABHAN SINGH
                                TIWARI, AGED ABOUT 441 YEARS, VILLAGE
                                CHORMARI PS. TAH. RAMPUR BAGHELAN
                                (MADHYA PRADESH)

                          3.    GYANMANI SINGH S/O SURYABHAN SINGH
                                TIWARI, AGED ABOUT 35 YEARS, VILLAGE
                                CHORMARI PS. TAH. RAMPUR BAGHELAN
                                (MADHYA PRADESH)

                          4.    KRISHNMANI TIWARI S/O SURYABHAN SINGH
                                TIWARI, AGED ABOUT 34 YEARS, VILLAGE
                                CHORMARI PS. TAH. RAMPUR BAGHELAN
                                (MADHYA PRADESH)

                                                                            .....APPELLANT
                          (BY SHRI NARENDRA KUMAR SHARMA - ADVOCATE)

                          AND
                          1.    JAMUNA PRASAD BRAHMIN, S/O RAMKRAPAL
                                BRAHMIN, AGED ABOUT 81 YEARS, OCCUPATION:
                                NOT KNOW VILL. CHORMARI TEH. RAMPUR
                                BAGHELAN DISTT. SATNA (MADHYA PRADESH)

                          2.    ROOPWATI W/O LATE JAMUNA PRASAD, AGED
                                ABOUT 80 YEARS, OCCUPATION: HOUSE WORK
                                VIILAGE CHORMARI TAH. RAMPUR BAGHELAN
                                (MADHYA PRADESH)

                          3.    SHANKAR DAYAL SHARMA S/O LATE JAMUNA
                                PRASAD, AGED ABOUT 40 YEARS, OCCUPATION:
Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 12-Jan-23
6:05:44 PM
                                                     2
                                SERVICE VIILAGE CHORMARI TAH. RAMPUR
                                BAGHELAN (MADHYA PRADESH)

                          4.    ASHOK KUMAR TRIPARHI S/O LATE JAMUNA
                                PRASAD, AGED ABOUT 38 YEARS, OCCUPATION:
                                BUSINESS R/O VILLAGE CHORMARI TAH.
                                RAMPUR (MADHYA PRADESH)

                          5.    STATE OF M.P. THROUGH COLLECTOR RAMPUR
                                BAGHELAN (MADHYA PRADESH)

                          6.    TEHSILDAR RAMPUR    BAGHELAN, DISTRICT
                                SATNA (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (RESPONDENTS/STATE BY MS.SHANTI TIWARI - PANEL LAWYER)

                                This appeal coming on for admission this day, th e court passed the

                          following:
                                                              ORDER

This second appeal under section 100 CPC has been filed against the judgment and decree dated 16.8.2018 passed by Addl. District Judge, Link Court, Rampurbaghelan, District Satna, in R.C.A.No.300013/2016 arising out of judgment and decree dated 16.2.2016 passed by Civil Judge Class II, Rampurbaghelan, District Satna in Civil Suit No.14-A/2014 passed.

Facts necessary for disposal of the present appeal in short, are that the respondent no.1 preferred an application under section 250 M.P.L.R.Code seeking a relief that the plaintiffs have encroached upon a part of Araji No.1593 situated in village Chormari and, therefore, the said encroachment be removed and possession thereof be handed over to the original plaintiff. Accordingly, an order under section 250 of the M.P.L.R.Code was passed and it was directed that the plaintiff be evicted from the land ad measuring 15x8 sqft. and the vacant possession be handed over to the original defendant no.1. Accordingly, the plaintiff preferred a suit for permanent injunction on the ground that the land in Signature Not Verified Signed by: HEMANT SARAF Signing time: 12-Jan-23 6:05:44 PM

dispute mentioned in Schedule A attached with the plaint is jointly recorded in the name of the plaintiff along with other Bhumiswamis. The aforesaid land is the ancestral property of the parties and all the co-sharers are in possession of their respective shares and they have constructed a house and are using the remaining piece of land for 'nistar' purposes. The plaintiff no.1 had given some part of his land as well as the house to plaintiffs no.2 to 4 as per their family settlement and accordingly the plaintiff no.1 as well as plaintiff no.2 to 4 are residing in the said house alongwith their children.

It was the case of the plaintiff that the property in dispute is the joint Hindu family property and a house was constructed by the father of the plaintiff/appellant Mathura Prasad Tiwari. It was further pleaded that the plaintiffs are in possession of the land in dispute. Since the predecessor of defendant no.1 were harassing the plaintiff and were extending a threat to evict him. Accordingly, an application under section 250 of the Code was filed by the original defendant on the false ground and without giving proper opportunity of hearing the respondent no.3 passed an order dated 24.7.2012 and accordingly, the suit was filed.

The defendant no.1 filed his written statement and stated that the suit has been filed on vague averments. The plaintiff has not clarified the names of the co-sharers and the extent of their shares. Even the co-sharers have also not

been impleaded as a party and, therefore, the suit is liable to be dismissed on the ground of non-joinder of necessary party. It was further pleaded that the plaintiff had forcibly encroached upon 15x8 sqft. forming part of Khasra No.1593 and accordingly an application under section 250 of the M.P.L.R. Code was filed. The said application was allowed and an order under section 250 of the M.P.L.R. Code was passed. Thus, it is submitted that this suit has Signature Not Verified Signed by: HEMANT SARAF Signing time: 12-Jan-23 6:05:44 PM

been filed on incorrect facts.

The trial court after framing the issues and recording the evidence of the parties dismissed the suit. It was specifically held that the revenue authorities before passing an order under section 250 of the Code have given opportunity of hearing and the order under section 250 of the Code was passed on the basis of demarcation proceedings. It was further held that the plaintiff should have challenged the order of Tahsildar before the revenue authorities, but it was not done.

Being aggrieved by the judgment and decree passed by the trial court the appellant preferred an appeal, which too has been dismissed by judgment and decree dated 16.8.2016.

Challenging the judgment and decree passed by the courts below, it is submitted by counsel for the plaintiff that the courts below have failed to see that the order under section 250 of the M.P.L.R.Code was passed dehors the provisions of law, therefore, the trial court had jurisdiction to entertain the suit and the court below should have held that the property in dispute is the ancestral property of the appellant and the Tahsildar has no jurisdiction to pass the impugned order.

Heard learned counsel for the parties.

Present appeal has been filed on the following proposed substantial question of law :-

"Whether the learned court below has erred in passing the impugned judgment and decree and dismissed the suit of the present plaintiff ?

ii) Whether the courts below has erred in not holding that the disputed property is the ancestral property of the appellant and the learned

Signature Not Verified Signed by: HEMANT SARAF Signing time: 12-Jan-23 6:05:44 PM

Tahsildar has no jurisdiction to pass the impugned order and decide the question of ownership ?

iii) Whether the courts below can solve the dispute in due of the judgment of the Apex court because the area is very small 15x8 sqft. and solve the dispute by way of adequate compensation ?

iv) Whether the courts below erred in holding that it is the revenue dispute and dismissed the suit of the plaintiff, stating that agaisnt the appeal should be filed, however, the defendant no.3 has decide the question of ownership ?

v) Whether the learned courts below has erred in not consideration of the fact that the present plaintiff are in possession since their life of forefather ?"

Supreme Court in the case of Dhulabhai Vs. State of M.P. , reported in AIR 1968 SC 78 has held as under :

32. This brings us to the last case on the subject. That is the Kamla Mills case. That case was barred by a special Bench of Judges and is of more binding value than the others. Kamla Mills Ltd., was assessed to certain sales effected between 26 January 1950 and 31 March 1951 which the taxing authorities treated as "inside sales" and the Company claimed to be "outside sales" as determined under the Bengal Immunity Co. Ltd. v. State of Bihar [(1955) 2 SCR 603] . The judgment in the last cited case was delivered on September 6, 1955. The period for invoking remedies under the Bombay Sales Tax Act, 1946 under which the assessment was made had expired. A suit was, therefore, filed to claim refund. The Bombay Act contained Section 20 which read "20. Save as is provided in Section 23, no assessment made and no order passed under this Act or the Rules made thereunder by the Commissioner or any person appointed under Section 3 to assist him shall be called into question in any civil court, and save as it provided in Sections 21 and 22, no appeal or application for revision shall lie against any such assessment or order.

The suit was dismissed on the preliminary point arising from this bar.

A Letters Patent Appeal in the High Court of Bombay also failed. The Signature Not Verified case came before this Court on a Certificate. It was referred to a Signed by: HEMANT SARAF Signing time: 12-Jan-23 6:05:44 PM

Special Bench because Section 20 was challenged as unconstitutional because it barred a suit even where the assessment was unconstitutional. This Court held that as there was adequate remedy to raise the question before the authorities by asking for rectification of the assessment, the section could not be said to deprive him of remedy in such a way as to render the section itself unconstitutional as was hinted in Raleigh Investment Co. case about Section 67 of the Indian Income Tax Act. We are not concerned with that question. Thus, if the facts of the present case are considered in the light of the law laid down in the case of Dhulabai (supra), it is clear that the appellant has right to assail the order of Tahsildar by filing an appeal before the revenue authorities. However, the said remedy was not availed and the appellant preferred a suit on the ground that the order under section 250 of the M.P.L.R.Code was passed in utter violation of the principles of natural justice. However, he could not succeed to hold that order by revenue authority was passed in violation of principle of natural justice. Although it was claimed by the appellant that the property in dispute is an ancestral property; but, Suryabhan, PW1 has primarily filed his affidavit under Order 18 Rule 4 C.P.C. stating inter

alia that the order dated 24.7.2012 passed by the Tahsildar is contrary to law. In the cross examination he fairly admitted that he does not know the name of co-sharer. He also admitted that all the co-sharers have not been impleaded as a party. Appellant Suryabhan, PW1 has admitted that the defendant no.1 is the owner of Araji No.1593. Thereafter, he further admitted that the construction which was being carried out by appellant was on Araji No.1593. Thereafter, he claimed that he was not carrying out any construction on Araji No.1593. Thus, it is clear that appellant no.1 Suryabhan, PW1 has failed to prove that the land in dispute is an ancestral property, but admitted that Araji No.1593 (disputed property) belongs to defendant no.1. The land in dispute in respect of which the order under section 250 of the M.P.L.R.Code was passed was an ancestral Signature Not Verified Signed by: HEMANT SARAF Signing time: 12-Jan-23 6:05:44 PM

property.

Under these circumstances, this court is of the considered opinion that instead of filing a suit for permanent injunction, the appellant could have challenged the order passed by the Tahsildar. Both the courts below have dismissed the suit filed by the appellant. The findings of fact as well as the law recorded by the courts below cannot be said to be perverse or vitiated.

Accordingly, no proposed substantial question of law arises in the present appeal.

The judgment and decree dated 16.8.2018 passed by Addl. District Judge, Link Court, Rampurbaghelan, District Satna, in R.C.A.No.300013/2016 so also judgment and decree dated 16.2.2016 passed by Civil Judge Class II, Rampurbaghelan, District Satna in Civil Suit No.14-A/2014 passed are hereby affirmed.

Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE HS

Signature Not Verified Signed by: HEMANT SARAF Signing time: 12-Jan-23 6:05:44 PM