Madhya Pradesh High Court
Devesh vs Ratibai on 5 October, 2023
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 5TH OF OCTOBER, 2023
MISCELLANEOUS APPEAL NO.2907 OF 2022
BETWEEN:-
DEVESH S/O JAGANNATH, AGED
ABOUT22 YEARS,KHEDLI (BAINSDEHI)
TEHSIL AND DISTRICT- BETUL,
MADHYA PRADESH
.....APPELLANT
(BYSHRI JAIDEEP SIRPURKAR AND SHRI YASH
NASERI - ADVOCATES )
AND
1. RATIBAI W/O CHANDRABHAN, AGED
ABOUT 60 YEARS,
2. JAGDISH S/O CHANDRABHAN, AGED
ABOUT 45 YEARS
3. OMPRAKASH S/O CHANDRABHAN, AGED
ABOUT 42 YEARS,
4. SUBHADRA S/O CHANDRABHAN, AGED
ABOUT 20 YEARS,
5. RAMBAI S/O CHANDRABHAN, AGED
ABOUT 20 YEARS
6. SUBHASH S/O CHANDRABHAN, AGED
ABOUT 61 YEARS,
ALL 1 TO 6 R/O VILLAGE UMRI, TAHSIL
AND DISTRICT BETUL (M.P.)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 10/9/2023
10:32:02 AM
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7. STATE OF MADHYA PRADESH
THROUGH COLLECTOR BETUL
DISTRICT- BETUL, M.P
....RESPONDENTS
(SHRI D.K. TRIPATHI ADVOCATE FOR THE RESPONDENTS 1-6
AND SHRI SATISH PATERIYA -PANEL LAWYER FOR STATE)
.......................................................................................
This petition coming on for admission this day, the Court
passed the following:
ORDER
This misc. appeal has been preferred by the
appellant/defendant 1 challenging the judgment of remand dated
08.06.2022 passed by Additional Judge to the Court of first Additional
District Judge, Betul in regular civil appeal no.400038/2016 reversing the
judgment and decree dated 03.03.2016 passed by 3rd Additional Civil
Judge to the Court of 1st Civil Judge Class-II, Betul in civil suit no.17-
A/15 whereby, learned trial Court dismissed the suit, which in appeal has
been remanded to trial Court for decision of civil suit afresh, after calling
the demarcation report in respect of the land in question.
2. Learned counsel for the appellant concedes and submits that there is
no dispute of title over the land in question but the appellant was given
possession in pursuance of the order passed by Tahsildar under Section
250 of the M.P. Land Revenue Code, 1959 (in short 'the Code') and
although the plaintiffs have challenged the proceeding of Section 250 of
the Code in the civil suit but have not sought any declaration in respect of
their title of land in question, therefore, civil suit itself is not maintainable
and this question was raised before the first appellate Court but it has not
considered the same and the matter has been remanded to trial Court as a
whole with the direction of getting the disputed land demarcated owned
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 10/9/2023
10:32:02 AM
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by the plaintiffs as well as by the defendant 1. He further submits that if
the first appellate Court was of the opinion that the demarcation is
necessary, then also first appellate Court itself should have decided the
appeal after issuing a commission for local inspection of the land in
dispute but for that purpose remand was not permissible. With the
aforesaid submissions, he prays for allowing the misc. appeal.
3. Learned counsel for the respondents 1-6/plaintiffs supports the
impugned judgment of remand and submits that there is no illegality in
the judgment of remand whereby considering the requirement of settled
law, the matter has been remanded to trial Court for decision of suit
afresh, after calling the demarcation report, however, he submits that he
has no objection in deciding the appeal by first appellate Court itself after
getting the land in question demarcated through some revenue officer.
4. Heard learned counsel for the parties and perused the record.
5. Perusal of the record shows that there is no dispute of title in respect
of the land of the ownership of plaintiffs i.e. survey no. 170/3, 170/1 and
170/2 and the defendant 1 claims himself to be owner and in possession
of the land survey no.169/3. As such, in the present case the main dispute
is about demarcation of land in question which was given in possession
of the defendant 1 in the proceedings under section 250 of the Code.
6. It is well settled that the dispute of boundaries, survey numbers and
location of land/property cannot be decided on the basis of oral evidence
and without demarcation of the land by some competent revenue officer.
As such in my considered opinion, learned first appellate Court has not
committed any illegality in directing demarcation of the land in question
but for that purpose only, matter is not required to be remanded for
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 10/9/2023
10:32:02 AM
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deciding the suit afresh. Pl. see 2014 SCC OnLine MP 4685 (Satish &
ors. v. Hanumant Singh and another).
7. As such, in view of the settled legal position and with the consent
of both the parties, the impugned judgment of remand is set aside with the
direction to first appellate Court that it shall itself decide the appeal after
issuing a commission for local inspection of the land in dispute with a
view to ascertain its exact location and number and necessary details. The
Commissioner must be directed to prepare a correct map of the spot and
to submit the same along with his report. After such report along with the
map is obtained and after considering the objections of the parties to the
same, if any, in accordance with law, the first appellate Court will decide
the appeal on the basis of the entire record including the report of
Commissioner.
8. With the aforesaid, the impugned judgement of remand is set aside
and misc. appeal is allowed and disposed off.
9. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
pb
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 10/9/2023
10:32:02 AM
