Virendra Ahirwar vs M.P. Housing Board Division Sagar
2023 Latest Caselaw 7390 MP

                                1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                      BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 8th OF MAY, 2023
                  FIRST APPEAL No. 186 of 2000

BETWEEN:-

   1. VRINDAVAN, AGED ABOUT 40 YEARS, SON
      OF SHRI KURAMATE AHIRWAR, EX-M.L.A.
      RESIDENT OF RORAIYA MOHALLA,
      DISTRICT    TIKAMGARH,     (MADHYA
      PRADESH)

   2. VIMLA RANI, AGED ABOUT 35 YEARS,
      WIFE  OF    SHRI   VRINDAVAN   LAL
      AHIRWAR,   RESIDENT   OF RORAIYA
      MOHALLA, DISTRICT TIKAMGARH, M.P.
                                                  .....APPELLANTS
(BY SHRI MANISH KUMAR VERMA - ADVOCATE)

AND

   1. M.P. HOUSING BOARD, DIVISION SAGAR
      THROUGH THE OFFICER INCHARGE SHRI
      N.K.PATHAK, ASSISTANT ENGINEER, M.P.
      HOUSING    BOARD,    SUB   DIVISION
      TIKAMGARH, (MADHYA PRADESH)

   2. STATE OF MADHYA PRADESH THROUGH
      THE COLLECTOR, TIKAMGARH, M.P.
                                                 .....RESPONDENTS
  (NONE)

"Reserved on : 19.04.2023"
"Pronounced on : 08.05.2023".
                                2


       This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
                             JUDGMENT

1. This First Appeal under Section 96 of CPC has been filed against the Judgment and Decree dated 28-9-1999 passed by District Judge, Tikamgarh, in Civil Suit No. 34-A/1995.

2. The respondent no.1 filed a suit for declaration of title, mandatory and permanent injunction against the Appellant.

3. The case of the respondent no.1 was that it is a State Government Undertaking. Its duty is to acquire/purchase the land and construct and sell the houses on the said land. By order dated 4-6-1970, Collector Teekamgarh, allotted Khasra No.s 651, 655, 656, 653, and 648 total area 30030 Sq. Ft. to the respondent no.1 and accordingly, possession was also handed over. From the said date, the respondent on.1 is in peaceful possession of the same. Total 24 rental quarters have already been constructed and there is an open land on the western side of the same on which various projects of the respondent no.1 are under proposal. There is a 50 wide ft. land on the southern side of the allotted land which is reserved by the State Government for widening of road, plantation, Nistar purposes etc. Construction on the said reserved Govt. Land is also prohibited. The defendant no.1 is an Ex. MLA is an influential person. His wife is President, Zila Panchayat. Taking advantage of their position, the defendants no. 1 and 2 started digging earth for laying down foundation at A,B,C,D shown in plaint map. The plaintiff stopped them, but they continued with the construction work. The defendants no.1 and 2 have raised construction

over 3418.10 sq. ft. of land belonging to the plaintiff. Police complaint was made by the plaintiff. The defendants no.1 and 2 have also encroached upon 795.6 sq. ft. of land which was left open for nistar purposes. The construction is being done without obtaining any prior permission from Municipal Council, Nazul Department etc. The defendants no.1 and 2 donot have any title over the land in dispute. The construction which is being raised is illegal. Earlier the defendant no.2 had obtained a lease in respect of 2400 sq. ft. of land forming part of Kh. No. 656. The lease was granted by Collector by order dated 8-5- 1986. But they could not get the possession. Since, the lease was granted in an illegal manner, therefore, the Commissioner by order dated 28-12-1988 had found that the procedure adopted by Collector was erroneous, and accordingly it was cancelled. The matter was remanded back with a direction to give opportunity to all the interested parties. However, no information was given by the Collector, to the plaintiff. It was pleaded that if any lease has been sanctioned in respect of Kh. No. 656, then the same shall not have any adverse on the rights of the plaintiff, for the reason that the said land was already allotted to the plaintiff and possession was already given. Accordingly, the suit was filed for declaration of title and permanent injunction.

4. The defendants no. 1 and 2 filed their written statement and claimed that they are raising construction over their land. The property in dispute is not in the ownership of the plaintiff. Kh. No. 656 area 40x60 i.e., 2400 sq. ft. has been allotted by the State Govt on lease and in compliance of order dated 16-11-1995 passed by Collector, possession

of the same was handed over to the defendants no. 1 and 2 by Nazul Officer and Revenue Inspector on 27-11-1995. The State Govt. has jurisdiction to grant lease.

5. The defendant no.3 also filed its separate written statement and claimed that proceedings are pending before the State Govt. for correction of Kh. No. of the Lease. By order dated 6-1-1995/29-1- 1995 lease of 2400 sq. ft. of land forming part of Kh. No. 650 has been sanctioned. On the application filed by the defendant no.2, a proposal has been sent for correction of Kh. No. 650 to Kh. No. 656.

6. The Trial Court by the impugned Judgment and Decree has decreed the suit and it has been declared that the plaintiff is the owner of area shown as ABCD in plaint map and the defendants no.1 and 2 have illegally encroached upon the land in dispute and therefore, the plaintiff is entitled for possession of area shown as A,B,Ga,Ch shown in the plaint map. The defendants no.1 and 2 were also permanently restrained from interfering with the peaceful possession of plaintiff over A,B,Ga, and Ch.

7. Challenging the Judgment and Decree passed by the Court below, it is submitted by the Counsel for the Appellant, that lease in respect of 2400 sq. ft. of land was granted by the State Govt, which forms part of Kh. No. 656. The State Govt. had allotted land to the plaintiff, and therefore, the State Govt. can cancel the allotment also. Grant of lease in favour of defendant no.2 would certainly mean that the allotment of said land to the plaintiff was impliedly cancelled by the State Govt. It is submitted that in fact the defendants no.1 and 2 had applied for grant of lease of 2400 sq. ft. of land forming part of Kh. No. 656, but by

mistake Kh. No. 650 was mentioned in the lease order, therefore a corrigendum was issued by the State Govt. and the Kh. No. of the leased plot was corrected from 650 to 656. It is submitted that the plaintiff has failed to prove that entire Kh. No. 656 was allotted to it. The Court below failed to see that the dispute could have been resolved by appointing Commissioner.

8. None appeared for the respondents.

9. Heard the learned Counsel for the Appellants.

10. Vide order dated 4-6-1970, Ex. P.1, Kh. No. 651,655,656,653,648 were allotted to the Plaintiff and the possession of the same was also given on the same day. The land allotted to the plaintiff is shown as ABCD in map, Ex. P.5. The boundaries are also mentioned in the said order according to which, agricultural land is situated on the Northern side whereas Jail road is situated on Southern side., On the Eastern side, Govt. Building is situated whereas on the Western side, land belonging to Jail Department is situated.

11. Thus, it is clear that the land which was allotted to the plaintiff was clearly earmarked and total 30030 Sq. Ft. of land was allotted. Whereas State Govt. by order dated 29-8-1985, Ex. D.1, 2400 Sq. Ft. of land forming part of Kh. No. 650, allotted to the defendant no.2. In this order, there is no description of the leased land. Further more, this order was passed in relation to Kh. No. 650. Thereafter, by order dated 1-3-1996, Ex. D.2, the State Govt. modified the order dated 29-8-1995, Ex. D.1 and directed that in place of Kh. No. 650, Kh. No. 656 be read. Even in this order, there is no description of boundaries. Thus, the order of lease granted to the defendant no. 2 was completely vague and

it was not possible for any one to identify the land. Even then, the Nazul Officer, allegedly granted possession of 2400 Sq. Ft. of land forming part of Kh. No. 656 on 27-11-1995, whereas by that time, no lease was granted in respect of Kh. No. 656 and the lease was granted in respect of Kh. No. 650. Thus, the plaintiff is right in pleading that the defendants no.1 and 2 were misusing their position to grab the land of the plaintiff.

12. It is not out of place to mention here that lease, Ex. D1 was granted to Smt. Vimlarani/defendant no.2, but She didnot enter the witness box, and merely Vrindavan/defendant no1, entered in the witness box. He specifically admitted that by order dated 29-8-1995, Ex. D.1 lease of 2400 sq. ft. of land was granted. Since, the defendant no.2 took possession of land forming part of Kh. No. 656, therefore, on 19-12- 1995, the plaintiff filed the present suit. Vrindavan (D.W.1) has admitted in para 8 of his cross-examination, that only after the institution of suit, he applied for modification of Kh. No. in order dated 19-8-1995, Ex. D.1 which was done by order dated 1-3-1996, Ex. D.2, it was directed that in place of Kh. No. 650, Kh. No. 656 be read in order dated 29-8-1995, Ex. D.1. The defendant no.1 has also proved the report dated 27-5-1993, Ex. D.4 of Nazul Officer, from which it is clear that the plaintiff was not heard and comments from P.W.D. and Chief Municipal Officer was called. Similarly, Collector, Teekamgah wrote letter dated 14-3-1994, Ex. D.5 to the State Govt. pointing out that there is no scheme for allotting land to the Members of Legislative Assembly, therefore, referred the matter to the State Govt. as it was not

possible to grant lease to either of the defendants, without putting the same for public auction.

13. Vrindavan Ahirwar (D.W.1) also admitted in his evidence that the Collector had granted permission to grant lease of land forming part of Kh. No. 556, but it was replied by Vridavan Ahirwar (D.W.1) that he had demanded lease of Kh. No. 656. Thus, it is clear that initially permission was granted for lease of plot forming part of Kh. No. 556. Accordingly, lease of plot forming part of Kh. No. 556 was granted, and the said order was set aside by the Commissioner by its order dated 28-12-1988 Ex. P.10. However, Vrindavan Ahirwar (D.W.1) gave an evasive reply and submitted that he has no knowledge about that. However, lateron he admitted that because there were some procedural lapses, therefore, the matter was remanded back. He admitted that in the revision before the Commissioner, the plaintiff was heard. Thereafter, he expressed his ignorance as to whether Collector, heard the plaintiff or not, but lateron explained that since, the powers of the Collector were withdrawn therefore, no hearing was done by the Collector. He also could not clarify as to whether State Govt. gave an opportunity of hearing to the plaintiff or not? He admitted that on the date of getting possession of Kh. No. 656, there was no order of lease in his favour in respect of Kh. No. 656. A specific question was put to this witness as to whether any map was prepared in respect of land allotted to him or not, but he replied, that it was not necessary. He admitted that in possession panchnama, Ex. D.3, the boundaries etc. have not been mentioned. He claimed that the details of allotted land is not required to be given in the lease order, therefore, the details of

allotted/leased land are not mentioned in Ex. D.1. He claimed that plaintiff was given 30000 sq. ft. of land and he has given the possession of land which is other than allotted to the plaintiff. However, he could not disclose the total area of Kh. No. 656. He expressed his ignorance of the fact that the land allotted to his wife, was already allotted to the plaintiff. He again expressed his ignorance that the land allotted to his wife was already in possession of some one else and 50 sq. ft wide land between the land of plaintiff and Jail road was left for widening of road and for plantation purposes.

14. Thus, it is clear that initially lease of plot forming part of Kh. No. 556 was granted, thereafter, lease of plot forming part of Kh. No. 650 was granted. Although no lease of plot forming part of Kh. No. 656 was granted to the appellant, still the possession of plot forming part of Kh. No. 656 was granted. After the filing of suit, Vrindavan Ahirwar (D.W.1) got the order dated 29-8-1995, Ex. D.1 modified and Kh. No. 650 was changed to Kh. No. 656. No boundaries were mentioned in order of lease, Ex. D.1. There are no identification marks of the allotted land. Further, Kh. No. 656 was already allotted to the plaintiff, and the possession of the same was with plaintiff, but still the plaintiff was not heard before modification of order dated 1-3-1996. Ex. D.2.

15. Further, the lease order 29-8-1995, Ex. D.1 and modification order dated 1-3-1996, Ex. D.2 were passed in favour of Smt. Vimlarani, but She didnot enter the witness box. Although the defendants have relied upon the lease orders dated 29-8-1995, Ex. D.1 and 1-3-1996, Ex. D.2, but no lease deed was executed in favour of Smt. Vimlarani.

16. Thus, it is clear that the State Govt. had no authority to allot land admeasuring 2400 sq. ft. of land which was already allotted to the plaintiff and thereafter a strip of 50 sq. ft. in between the land allotted to the plaintiff and the jail road for widening of road and plantation purposes.

17. It is submitted by the Counsel for the Appellant that since, it was boundary dispute, therefore, the local Commissioner should have been appointed.

18. Considered the submissions made by the Counsel for the Appellant.

19. First of all, the Appellant didnot file any application for appointment of Local Commissioner for demarcation purposes. However, in absence of any identification mark or boundaries in the order dated 29-8-1995, Ex. D.1 and order dated 1-3-1996, Ex. D.2, it was not possible to identify the land allotted to the defendant no.2 and in absence of any identification, no demarcation could have been done.

20. It is submitted by the Counsel for the Appellant that I.A. No. 3372 of 2000 has been filed under Order 41 Rule 27 CPC and filed a copy of demarcation done by Nazul Officer dated 20-10-1997. Although I.A. NO. 3372/2000 doesnot fulfil the ingredients of Order 41 Rule 27 CPC, but even then it is clear from the demarcation report dated 20-10- 1997 that Smt. Vimlarani has encroached upon 1634 Sq. Ft. of land forming part of Kh. No. 656. It was also mentioned that two persons namely Smt. Saroj Rajput and Shri Sunil Kumar have purchased the houses from the plaintiff have encroached upon some part of Govt. land but has specifically mentioned that the plaintiff has not made any encroachment. It is also mentioned that road shown in lay out has not

been constructed. Thus, the encroachment by the defendant no.2 has also been accepted by the defendants. Further more, except the encroachment by the defendants, no other land of the defendants has been shown in the demarcation report. Thus, it is clear that the defendants have constructed their house after encroaching upon the land.

21. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion, that the lease order dated 29-8- 1995, Ex. D.1 and modification order dated 1-3-1996, Ex. D.2 was completely vague and didnot specify the boundaries of land leased out to the defendant no.2. The defendant no.2 didnot enter the witness box. The plaintiff was not heard by the Nazul Officer, Collector and even by State Govt. before passing the lease order dated 29-8-1995, Ex. D.1 or 1-3-1996, Ex. D.2.

22. Thus, the Trial Court didnot commit any mistake by decreeing the suit filed by the plaintiff.

23. Ex-consequenti, the Judgment and Decree dated 28-9-1999 passed by District Judge, Tikamgarh, in Civil Suit No. 34-A/1995 is hereby Affirmed.

24. The Appeal fails and is hereby Dismissed.

25. Decree be drawn accordingly.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.05.10 18:29:26 +05'30'

HS