Madhya Pradesh High Court
Radheshyam vs Gotulal on 15 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADES
H
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 210 of 2024
BETWEEN:-
RADHESHYAM S/O BHAGIRATH DHAKAD, AGED
ABOUT 62 YEARS, OCCUPATION: AGRICULTURE 52,
DARWAZA, KASBA JAVAD, TEHSIL JAVAD, DISTRICT
NEEMUCH (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUNIL YADAV- ADVOCATE )
AND
1. GOTULAL S/O MANGILAL DHAKAD, AGED
ABOUT 70 YEARS, OCCUPATION: AGRICULTURE
52, DARWAZA, KASBA JAVAD, TEHSIL JAVAD,
DISTRICT NEEMUCH (MADHYA PRADESH)
2. AYUKT MAHODAY UJJAIN SAMBHAG UJJAIN
(MADHYA PRADESH)
3. S.D.O MAHODAY RAJASV UPKHAND JAWAD
DISTRICT NEEMUCH (MADHYA PRADESH)
4. TEHSILDAR TEHSIL JAWAD DISTRICT
NEEMUCH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI )
Reserved on : 29.01.2024
Pronounced on: 15.02.2024
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Feb-24
12:08:11 PM
2
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the court passed the following:
ORDER
This petition under Article 227 of the Constitution of India
has been preferred by the petitioner being aggrieved by the order
dated 28.08.2023 passed by the Additional Commissioner, Ujjain
Division, Ujjain reversing the order dated 31.12.2020 passed by the
Sub Divisional Officer (Revenue), Sub Division Javad, District -
Neemuch who in turn had set aside the order dated 17.12.2019 passed
by the Tehsildar, Tehsil Javad, whereby the application under Section
250 of the M.P. Land Revenue Code, 1959 (for short 'the Code')
preferred by respondent No.1 had been allowed.
2. The facts in brief are that respondent No.1 made an
application before the Tehsildar for demarcation of his land bearing
survey No.853 area 0.470 hectare and survey No.854 area 0.200
hectare total area 0.670 hectare, Gram Babaljuni, Tehsil Javad,
District - Neemuch. On the application demarcation was carried out
on 25.06.2018. There was some error in demarcation which was
corrected by order dated 16.07.2018. In the demarcation illegal
possession of the petitioner over the disputed land was found.
Respondent No.1 then requested the petitioner to deliver possession of
the said land to him but he refused to do so.
3. Thereafter, respondent No.1 filed an application under
Section 250 of the Code on 30.07.2018 before the Tehsildar which
was allowed by him by order dated 17.12.2019 on the basis of the
demarcation having been carried out earlier. The said order was set
aside in appeal preferred by petitioner by the Sub Division Officer on
the ground that the demarcation proceedings as carried out earlier are
erroneous and contrary to the provisions of Section 129 of the Code
hence on the basis of such demarcation report the prayer of
respondent No.1 under Section 250 of the Code cannot be allowed.
The said order has been set aside in appeal having been preferred by
respondent No.1 under Section 4(2) of the Code by the Additional
Commissioner by the impugned order holding that the legality of
proceedings under Section 129 of the Code cannot be examined in
proceedings under Section 250.
4. Learned counsel for the petitioner has submitted that the
demarcation proceedings which had been carried out by the Tehsildar
earlier were wholly illegal and erroneous. The demarcation had been
carried out in contravention to the provisions under Section 129 of the
Code and the rules made in that regards. On the basis of the said
demarcation the application preferred by respondent No.1 could not
be allowed. The possession of the petitioner over the disputed land is
not illegal and he is in its possession rightfully of which a partition
has been effected in the family. It is hence submitted that the
impugned order be set aside. Reliance has been placed on the decision
of this Court in Smt. Anubai v. State of M.P. and others, 2023 (2)
RN 194.
5. I have considered the submissions of learned counsel for the
petitioner and have perused the record.
6. In Murloidhar and another v. Board of Revenue M.P. and
others 2013(3) MPLJ 184, it has been categorically held by this Court
that in case the order under Section 129 of the Code is not challenged
by preferring appeal or revision under Section 44 or Section 50 of the
Code, the same becomes final and if on the basis of the same any
action is taken that cannot be interfered with. It has been held as
under:
"15. As far as the second ground is concerned,
the proceeding under Section 129 for demarcation
was conducted by the Tahsildar and had attained
finality. If the petitioners had any grievance with
regard to the said order they were required to
challenge the same in accordance to law by filing
an appeal or revision against the said order by
invoking the provisions of Section 44 or Section 50
of M.P. Land Revenue Code. If the petitioners felt
that the order passed under Section 129 is without
notice to them and without hearing them, they
should have challenged the said order in
accordance to law. Having not done so, the order
becomes a final order and based on the same if the
possession of the respondents are restored, no
error is committed by the Board of Revenue or the
Additional Commissioner. That apart, it is a case
of the petitioners that in the proceeding held under
Section 129 notice was not issued to them,
however, the finding recorded is contrary and it
shows that inspite of notice petitioner No.1 did not
appear and petitioner No.2 did not receive the
notice. Be it as it may be, once the order under
Section 129 had attained finality and based on the
same action is taken, I see no reason to interfere
into the matter."
7. In the present case also the proceeding under Section 129 of
the Code have not been challenged by the petitioner in accordance
with the provisions thereof. If the petitioner felt that the demarcation
proceedings are illegal, he ought to have applied before the Sub
Divisional Officer for challenging the same. If his challenge had been
negatived by the Sub Divisional Officer he could have challenged the
same further as provided under the law. However, it does not appear
that the demarcation proceedings carried out at the behest of
respondent No.1 were ever challenged by the petitioner. The same
hence attained finality. On strength of such demarcation, application
under Section 250 of the Code was filed by respondent No.1 before
the Tehsildar in which the legality of the proceedings of demarcation
could not have been entertained since they had already attained
finality. As held in Murloidhar and another (supra), it is not open for
the legality of demarcation proceeding which attained finality to be
questioned in a proceeding had instituted on strength of such
demarcation. Since the petitioner has not challenged the demarcation
proceedings the Sub Divisional Officer could not have entered into
the legality of the same and dismissed the application of respondent
No.1 which error has rightly been corrected by the Additional
Commissioner by the impugned order.
8. The judgment in the case of Smt. Anubai (supra) does not
help the petitioner in any manner since in that case the challenge had
been made to the proceeding under Section 129 of the Code itself and
the challenge was not only to proceedings instituted under Section
250 of the Code. It was not a case where the Section 250 proceedings
had been challenged by contending that the proceedings under Section
129 on strength of which the proceedings had been instituted were
illegal.
9. Thus, in view of the aforesaid, I do not find any error having
been committed by the Additional Commissioner while passing the
impugned order. The petition being devoid of merits is hereby
dismissed in limine.
(PRANAY VERMA)
JUDGE
jyoti
