Shri William Prasad vs Santosh Maseeh
2023 Latest Caselaw 18745 MP

                           1


 IN THE HIGH COURT OF MADHYA PRADESH
             AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 7th OF NOVEMBER, 2023
                MISC. PETITION No. 49 of 2020

BETWEEN:-

1.    SHRI WILLIAM PRASAD S/O SAKKA
      PRASAD, AGED ABOUT 80 YEARS, VILLAGE
      MAKODIA POST HIRANKHEDA TEHSIL
      SEONI MALWA DIST HOSHANGABAD
      (MADHYA PRADESH)
2.    SHRI JONSON PRASAD S/O SHRI WILLIAM
      PRASAD, AGED ABOUT 55 YEARS, VILLAGE
      MAKODIA POST HIRANKHEDA TEHSIL
      SEONI MALWA DIST HOSHANGABAD
      (MADHYA PRADESH)
3.    SHIR NELSON PRASAD S/O SHRI WILLIAM
      PRASAD, AGED ABOUT 50 YEARS, VILLAGE
      MAKODIA POST HIRANKHEDA TEHSIL
      SEONI MALWA DIST HOSHANGABAD
      (MADHYA PRADESH)
                                                 .....PETITIONERS
(BY SHRI SANJAY SETH - ADVOCATE)

AND

1.    SANTOSH MASEEH S/O ANAND MASEEH,
      AGED ABOUT 60 YEARS, VILLAGE
      MAKODIA POST HIRANKHEDA TEHSIL
      SEONI MALWA DIST HOSHANGABAD
      (MADHYA PRADESH)

2.    SMT. SHAKUN W/O SHRI RAMESH TELI
      VILLAGE BANDRI TEH. ITARSI (MADHYA
      PRADESH)
                                                .....RESPONDENTS
                                    2


   (BY SHRI PRIYANK KHANDELWAL - ADVOCATE)

         This petition coming on for admission this day, the court passed the
   following:
                                   ORDER

1. This petition under Article 227 of the Constitution of India has been filed against the order dated 5.12.2019 passed by the Commissioner, Narmadapuram Division, Narmadapuram in Case No.107/appeal/2019- 20 as well as the order dated 30.10.2014 passed by the Commissioner, Narmadapuram Division, Hoshangabad in Case No.159/A/2011-12.

2. The present petition appears to be a case of misjoinder of two different cause of action but instead of non-suiting the petitioners in respect of one cause of action, this Court thought it proper to hear the case on merits.

3. It appears that the petitioners had filed the civil suit for declaration of title and permanent injunction in respect of Khasra No.215/1, 215/2, 215/4, 215/6, 215/7, 215/8, 215/9, 215/10 and 215/11 total area 39.86 acres situated in Mouja Makodiya, Tahsil Seoni Malwa, District Hoshangabad. The said civil suit was decreed and it was decreed that the petitioner is the owner and in possession of the aforementioned 39.66 acres of land. It is the case of the respondents that in fact, the petitioners were in possession of an additional land by taking advantage of mistake in the map committed during the settlement proceedings, accordingly an application was filed for correction of map. The said application was allowed by the S.D.O. Seoni Malwa by order dated 10.5.2010 passed in Case No.41-B-121/08-09 village Makodiya.

4. Being aggrieved by the said order, the petitioners preferred an appeal before the Addl. Commissioner Hoshangabad which was registered as Revenue Case No.57-B/121/2009-10 which was dismissed by order dated 9.12.2010. Being aggrieved by the said order, the petitioners preferred S.A. before the Commissioner, Narmadapuram Division Narmadapuram. The said appeal came up for hearing on 30.10.2014. As already pointed out, the judgment in a case instituted by the petitioners was already passed and it was held that the petitioners are owner and in possession of 39.66 acres of land only, accordingly, the Commissioner, Narmadapuram Division, Narmadapuram held that since the civil suit has already been decided, therefore, the revenue authorities must act in accordance with the decree passed by the civil court and accordingly the appeal filed by the petitioners was dismissed.

5. Thereafter, the respondents filed an application under section 250 of the M.P.L.R.Code. The said application was dismissed by the Tahsildar which was challenged before the S.D.O. The appeal was allowed by the S.D.O. Being aggrieved by the order passed by the S.D.O. Seoni Malwa, the petitioners preferred an appeal before the Commissioner, Narmadapuram Division, Hoshangabad which was registered as case No.107/appeal/19-20 and the appeal filed by the petitioners has also been dismissed by order dated 5.12.2019.

6. Challenging the order dated 30.10.2014 passed by the Commissioner, Narmadapuram Division, Narmadapuram, it is submitted by counsel for the petitioner that since an application for correction of map was maintainable before the Collector and the same was decided by the

S.D.O., therefore, the order for correction of map was without jurisdiction.

7. It is further submitted that the application filed under section 250 of the M.P.L.R.Code was barred by time because as per the provisions of section 250(1-a)(b) of the M.P.L.R.Code, the period of limitation is two years. The application was filed in the year 2014 whereas the petitioners were in possession of the land in dispute for the last several years and thus the application should have been rejected on this ground of limitation.

8. Per contra, counsel for the respondents has supported the findings recorded by the authorities below.

9. Heard the learned counsel for the parties. Petition against the order dated 5.12.2019.

10. Section 250 of M.P.L.R. Code as it was prior to amendment of 2018 reads as under:

"250. Reinstatement of Bhumiswami improperly dispossessed.-(1) For the purpose of this section and section 250-A Bhumiswami shall include occupancy tenant and Government lessee.

(1-a)if a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Nhumiswami to the use of which such person has ceased to be entitled under any provision of this Code, the Bhumiswami or his successor in interest may apply to the Tehsildar for restoration of the possession, --

(a) in case of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165,--

(i) before the 1st July, 1978 in cases of unauthorised dispossession prior to the 1st July, 1976; and

(ii) in any other cases within five years from the date of dispossession or from the date on which the possession of such person becomes unauthorised, as the case may be;

(b) in case of a Bhumiswami not covered by clause (a), within two years from the date of dispossession or from the date on which possession of such person becomes unauthorised, as the case may be.

(1-b)The Tahsildar shall on coming to know that a Bhumiswami has been dispossessed of his land otherwise than in due course of law, suo motu start proceedings under this section.

(2) The Tahsildar shall, after making an enquiry into the respective claims of the parties, decide the application and when he orders the restoration of the possession to the Bhumiswami, put him in possession of the land.

(2-a) The proceedings started under this section shall after receipt of reply from the other party, continue from day to day unless of reasons to be recorded in writing a longer adjournment is considered necessary and that case a copy of the order sheet containing the reasons for such adjournment shall be sent to the Collector.

(3) The Tahsildar may at any stage of the enquiry pass an interim order for handing over the possession of the land to the Bhumiswami, occupancy tenant or Government lessee, as the case may be, if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application or commencement of suo motu proceedings under this section. In such case the opposite party shall, if necessary, be ejected under orders of the Tahsildar.

(4) When an interim order has been passed under sub-section (3) the opposite party may be required by the Tahsildar to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of land until the final order is passed by the Tahsildar. (5) If the person executing a bond is found to have entered into or taken possession of the land in contravention of the bond, the Tahsildar may forfeit the bond in whole or in part and may recover such amount as an arrear of land revenue.

(6) If the order passed under sub-section (2) is in favour of the applicant the Tahsildar shall also award compensation to be paid to the applicant by the opposite party which shall be at the prorata rate of two thousand rupees per hectare per year.

(7) The compensation awarded under this section shall be recoverable as an arrear of land revenue.

(8) when an order has been passed under sub-

section (2) for the restoration of the possession to the Bhumiswami the Tahsildar may require

the opposite party to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of the land in contravention of the order.

(9) Where an order has been passed under sub-

section (2) for the restoration of the possession of the Bhmiswami, the opposite party shall also be liable to fine which may extend to twenty per centum of the market value of such land."

11. From plain reading of Section 250(1-a)(b) of the M.P.L.R.Code, it is clear that a Bhumiswami, who is not covered by clause (a) can maintain an application within two years from the date of dispossession or from the date on which possession of such person becomes unauthorized, as the case may be.

12. Although it is the case of petitioners that petitioners are in possession of the land in dispute right from the date of settlement and therefore, application filed under Section 250 of the M.P.L.R. Code was barred but the said contention has no legs to stand. Petitioners had filed a civil suit which was decided by judgment and decree dated 02.02.2012. Application filed by respondents for correction of map was ultimately decided by Commissioner, Narmadapuram Division, Hoshangabad on 30.10.2014. Undisputedly, application under Section 250 of M.P.L.R. Code was filed in the year 2014. Thus, it is clear that possession of petitioners became unauthorized on the date when judgment and decree was passed by Trial Court and the date on which proceedings for correction of map were finally decided i.e. 30.10.2014.

13. Under these circumstances, it cannot be said application filed by respondents under Section 250 of M.P.L.R. Code was barred by time.

Accordingly, petition against order dated 05.12.2019 is hereby dismissed.

Petition against order dated 30.10.2014

14. Commissioner, Narmadapuram Division, Hoshangabad has held that judgment passed by Civil Court will prevail over the revenue authorities.

15. Counsel for petitioners could not point out any discrepancy in the said finding.

16. It is the case of respondents that apart from 39.66 acres of land situated in Mouja Makodiya, Tehsil Seoni Malwa, District Hoshangabad, petitioners are in possession of 4.6 acres of land. Even the petitioners have not claimed any title over the additional land i.e. 4.60 acres. The rights of parties are always adjudicated by Civil Court. Therefore, if Commissioner, Narmadapuram Division, Hoshangabad has held that title of the petitioners has already been decided by Civil Court, therefore, all the proceedings shall be governed by said judgment cannot be said to be erroneous.

17. Accordingly, no case is made out warranting interference in order dated 30.10.2014.

18. Accordingly, petition filed against order dated 30.10.2014 is also hereby dismissed.

19. As a consequence thereof, the petition is dismissed in toto.

(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.11.09 18:33:31 +05'30'

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