Shri Bhillu Thatiya vs Shivlal Gond
2023 Latest Caselaw 7197 MP

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                                              MP No.1756/2020


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 3rd OF MAY, 2023
              MISC. PETITION No. 1756 of 2020
BETWEEN:-

1.   SHRI BHILLU THATIYA S/O SHRI JOGA
     THATIYA,    AGED   ABOUT    50  YEARS,
     OCCUPATION: AGRICULTURIST R/O VILLAGE
     SERA, POST KESIYA, TEHSIL SHAHPUR,
     DISTRICT BETUL (MADHYA PRADESH)



2.   SMT. KARO W/O JOGA THATIYA, AGED ABOUT
     60 YEARS, OCCUPATION: HOUSEWIFE R/O
     VILLAGE SERA, POST KESIYA, TEHSIL
     SHAHPUR,   DISTRICT   BETUL    (MADHYA
     PRADESH)



3.   SHRI SUKHDEO S/O SAMMU THATIYA, AGED
     ABOUT     50     YEARS,    OCCUPATION:
     AGRICULTURIST R/O VILLAGE SERA, POST
     KESIYA, TEHSIL SHAHPUR, DISTRICT BETUL
     (MADHYA PRADESH)



4.   RINGO D/O JOGA THATIYA, AGED ABOUT 40
     YEARS,   OCCUPATION  HOUSEWIFE,   R/O
     VILLAGE SERA, POST KESIYA, TEHSIL
     SHAHPUR,   DISTRICT  BETUL   (MADHYA
     PRADESH)



5.   JHINGO S/O JOGA THATIYA, AGED ABOUT 35
     YEARS, OCCUPATION: AGRICULTURIST R/O
     VILLAGE SERA, POST KESIYA, TEHSIL
     SHAHPUR,    DISTRICT  BETUL   (MADHYA
     PRADESH)
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                                                               MP No.1756/2020


                                                           .....PETITIONERS
(BY SHRI RAM LAKHAN ARIHA - ADVOCATE)

AND

SHIVLAL GOND S/O SHRI FAGNU GOND R/O VILLAE
DHOLYA DHANA, POST KESIYA, TEHSIL SHAHPUR,
DISTRICT BETUL (MADHYA PRADESH)


                                                           .....RESPONDENT
(BY SHRI PRAKASH KUMAR GUPTA)
      This petition coming on for hearing this day, the court passed the
following:
                                    ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 27.02.2020 passed by Commissioner, Narmadapuram Division, Hoshangabad in Case No.0113/Appeal/2019- 20, order dated 29.06.2019 passed by Sub-Divisional Officer, Shahpur, District Betul in Revenue Case No.0049/Appeal/2018-19 and order dated 13.02.2018 passed by Tehsildar, Sahpur in Case No.0008/A- 70/2017-18.

2. It is the case of the petitioners that the petitioners filed a Civil Suit No.52-A/2016 against the respondents and others for declaration of title and injunction in respect of the disputed land. The said suit was dismissed by judgment and decree dated 18.05.2017. The First Appeal No.67-A/2017 has also been dismissed by judgment and decree dated 14.12.2019. Second appeal No.515/2019 is also pending before the High Court. The copy of memo of appeal has been filed as Annexure P/4 and it is pleaded by the petitioners that notices have been issued to the respondents by order dated 20.02.2019, Annexure P/5. (However, no

MP No.1756/2020

notices in Second Appeal No.515/2019 have been issued so far and on 20.02.2019 the case was adjourned at the request of the counsel for the appellants. Thus, a false statement has been made in the petition "that notices have been received to the respondents"). The respondents filed an application under Section 250 of M.P.L.R. Code for restoration of possession treating the status of petitioners to be of the encroachers. The Tehsildar, Shahpur, District Betul allowed the said application despite the oral objection that second appeal is pending in the High Court. The first appeal filed by the petitioners was dismissed by the S.D.O. by order dated 29.06.2019 and the second appeal has also been dismissed by the Commissioner, Narmadapuram Division, Hoshangabad by order dated 27.02.2020.

3. Challenging the orders passed under Section 250 of M.P.L.R. Code, it is submitted by the counsel for the petitioners that the authorities below failed to see that Second Appeal No.515/2019 is pending and therefore, the application under Section 250 of M.P.L.R. Code should not have been entertained. As per the pre-amended provision of Section 250 of M.P.L.R. Code, the application could have been entertained only if a person is legally dispossessed within two years from the date of filing of the said application. Since the petitioners are in continuous possession, therefore, the application filed by the respondents under Section 250 of M.P.L.R. Code was barred by time.

4. Heard the learned counsel for the petitioners.

5. The contention of the petitioners that the authorities below should not have entertained an application under Section 250 of M.P.L.R. Code in view of the pendency of Second Appeal No.515/2019 is concerned, the same is misconceived. Order 41 Rule 5 of CPC clearly provides that

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filing of appeal would not operate as a stay. Furthermore, in the light of the judgment passed by the Supreme Court in the case of Raghavendra Swamy Mutt vs Uttaradi Mutt reported in (2016) 11 SCC 235, the High Court cannot grant an interim order in the second appeal unless and until the substantial questions of law are formulated. It is clear from the order sheet dated 20.02.2019 passed in Second Appeal No.515/2019 that the case was adjourned at the request of the appellants. If the High Court cannot pass an interim order unless and until the substantial questions of law are formulated, then it is incorrect on the part of the appellants to suggest that the revenue authority should have stayed their hands in view of the pendency of Second Appeal No.515/2019. What cannot be done by the High Court can also not done by the Tribunals below. In view of the judgment passed in the case Raghavendra Swamy Mutt (supra), it is held that the authorities did not commit any mistake by entertaining the application under Section 250 of M.P.L.R. Code.

6. The next submission made by the counsel for the petitioners is that the application filed by the respondents under Section 250 of M.P.L.R. Code was barred by time.

7. An amendment was incorporated in the year 2018 thereby deleting the bar of 2 years. Thus, it is clear that at present there is no period of limitation for filing an application under Section 250 of M.P.L.R. Code. The application filed by the respondents was decided by the Tehsildar on 13.02.2018. It is true that on the date of filing of the application under Section 250 of M.P.L.R. Code, the pre-amended provision of Section 250 was in force. However, during the pendency of the appeal, the provision of Section 250 of M.P.L.R. Code was amended

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and the period of limitation of two years was deleted. Period of Limitation is a procedural law which will have a retrospective effect unless and until it is made prospective.

8. The Supreme Court in the case of Thirumalai Chemicals Limited Vs. Union of India & Ors., passed in Civil Appeal Nos.3191- 3194 of 2011 on 11.04.2011 has held as under:

"14. Substantive law refers to body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute prospective unless it is expressly or by necessary implication made to have retrospective operation. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act.

15. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to few of those decisions. This Court in Garikapati Veeraya vs. N. Subbiah Choudhry & Ors. AIR 1957 SC 540, New India Insurance Company Limited Vs. Smt. Shanti Mishra (1975) 2 SCC 840, Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar & Ors. (1999) 8 SCC 16; Shyam Sundar & Ors. vs. Ram Kumar & Anr.

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(2001) 8 SCC 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This court has held the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature."

9. Under these circumstances, this Court is of the considered opinion that the subsequent amendment in Section 250 of M.P.L.R. Code during the pendency of appeal before the SDO will take care of objection raised by the petitioners with regard to maintainability of application under Section 250 of M.P.L.R. Code on the ground of limitation. Further, the petitioners have already lost their case from the Civil Court. Second Appeal No.515/2019 has not been admitted so far. After having failed in establishing their title before the Civil Court of competent jurisdiction, the petitioners could not point out any right to claim that they are not the encroachers or they are in legal possession of the property in dispute.

10. No other argument is advance by the counsel for the petitioners.

11. No case is made out warranting interference. Accordingly, the order dated 27.02.2020 passed by Commissioner, Narmadapuram Division, Hoshangabad in Case No.0113/Appeal/2019-20, order dated 29.06.2019 passed by Sub-Divisional Officer, Shahpur, District Betul in Revenue Case No.0049/Appeal/2018-19 and order dated 13.02.2018 passed by Tehsildar, Sahpur in Case No.0008/A-70/2017-18 are hereby affirmed.

12. The petition fails and is hereby dismissed.

13. However, it is made clear that in case if the second appeal is allowed, the petitioners may file an application before the competent

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authority for restoration of their possession.

(G.S. AHLUWALIA) JUDGE vc Digitally signed by VARSHA

VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,

CHOUR 2.5.4.20=f460d4685ef5a4622238f0b59b 78c2407fd3ee2f619d9ce8e428c224c23e c8ac, pseudonym=4898159F2B2CE66588391B 16E9CF8981F5D6A897,

ASIYA serialNumber=A0506346908D8FDC4A2 DA9968A85B01E1D95EF7D1630553560 798626817C4267, cn=VARSHA CHOURASIYA Date: 2023.05.05 12:24:02 +05'30'