Smt. Rashida Husain vs The State Of Madhya Pradesh
2023 Latest Caselaw 9082 MP

                                                            1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                ON THE 19 th OF JUNE, 2023
                                              MISC. APPEAL No. 2125 of 2015

                          BETWEEN:-
                          SMT. RASHIDA HUSAIN W/O SHRI ZAHID HUSAIN,
                          AGED ABOUT 41 YEARS, VILLAGE KARONDIYA TAH-
                          BERASIA DISTRICT BHOPAL (MADHYA PRADESH)

                                                                                        .....PETITIONER
                          (BY SHRI IMTAIZ HUSAIN - SENIOR ADVOCATE ASSISTED BY SHRI
                          MOHD. KASIM - ADVOCATE )

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                THE COLLECTOR BHOPAL (MADHYA PRADESH)

                          2.    SAHAYAK SANCHALAK, AMRAPALI ROPNI (A
                                GOVERNMENT UNDERTAKEN) UDYAN, BHOPAL
                                (MADHYA PRADESH)

                          3.    NAIB TAHSILDAR CIRCLE HARRAKHEDA TAHSIL
                                BERASIA BHOPAL (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                          (BY SHRI N.S. LODHI - PANEL LAWYER)

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

This miscellaneous appeal has been preferred by the plaintiff challenging the judgment and decree of remand dated 14.09.2015 passed by 13th Additional District Judge, Bhopal Link Court Berasia, District Bhopal, in regular civil appeal no.28/2015, whereby judgment and decree dated 11.12.2014 passed by Additional Civil Judge Class-I, Berasia, District Bhopal in civil suit no.19- Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 6/20/2023 7:33:04 PM

A/2014 has been set aside and the matter has been remanded to learned trial Court for decision of civil suit afresh after getting the land of the plaintiff and defendants demarcated as mentioned in para 19 of the impugned judgment and decree of remand.

2. Learned Senior counsel for the appellant/plaintiff submits that the land of plaintiff bearing Khasra no.414 area 0.400 Hectare only is in dispute, which has been declared of the ownership of the plaintiff. In presence of demarcation report available on record and there being dispute in respect of Khasra no.414 only, direction issued by learned first appellate Court in respect of demarcation of the other lands i.e. Khasra nos. 409, 411, 414, 406, 436,128 and 131

including other lands, would not serve any fruitful purpose. Accordingly, he prays for setting aside the judgment and decree of remand.

3. Shri Narendra Singh Lodhi - Panel Lawyer appearing on behalf of the respondents/defendants/State supports the impugned judgment and decree of remand and prays for dismissal of the appeal.

4. Heard learned counsel for the parties and perused the impugned judgment and decree of remand.

5. From the registered sale deed dated 27.02.2007 (Ex.P/2) it is clear that the plaintiff has purchased the land Khasra no.409, 411 and 414 with the recital in the sale deed regarding handing over of possession to the plaintiff, but the demarcation report/panchnama dated 01.06.2011 (Ex.P/4) shows that the land survey no.414 is in possession of the defendants since the year 1990 over which Guava trees are standing, meaning thereby the plaintiff was not given possession of the land survey no.414 on date of sale deed dated 27.02.2007. Apparently, the demarcation only of Khasra no.414 has been done by the revenue Officer.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 6/20/2023 7:33:04 PM

6. The defendants by filing written statement have raised the dispute to the effect that there is no existence of land Khasra no.414 nearby the land of the defendants and the plaintiff and other persons have made encroachment on the land of the defendants.

7. Learned first appellate Court from para 13 to 19 has considered the case of both the parties and plaintiff's denial/refusal of demarcation of Khasra no.436 has created doubt in the mind of learned appellate Court. Resultantly, first appellate Court has after taking into consideration the case of rival parties and dispute involved thought fit to order for demarcation of all the numbers as has been mentioned in para 19 of the impugned judgment passed by learned appellate Court.

8. After hearing learned counsel for the parties and after perusal of the entire material available on record, this Court does not find any illegality in the impugned judgment and decree of remand passed by first appellate Court.

9. Resultantly, miscellaneous appeal being devoid of merit, deserves to be and is hereby dismissed.

10. Interim application(s), if any, shall stand dismissed.

11. Registry is directed to send back the record of Courts below immediately for further action.

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 6/20/2023 7:33:04 PM