Madhya Pradesh High Court
Rewaram vs Dr. Harnath on 6 May, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 6 th OF MAY, 2024
MISC. APPEAL No. 3329 of 2016
BETWEEN:-
1. REWARAM S/O RAMGOPAL, AGED ABOUT 69
YEARS, R/O VILLAGE NAUSAR, TEHSIL TIMARNI,
HARDA (MADHYA PRADESH)
2. RAMSHANKAR ALIAS SHANKAR S/O REWARAM
JAAT, AGED ABOUT 39 YEARS, VILLAGE NAUSAR
TEH. TIMARNI (MADHYA PRADESH)
3. PRAHALAD S/O REWARAM JAAT, AGED ABOUT 36
Y E A R S , VILLAGE NAUSAR TEH. TIMARNI
(MADHYA PRADESH)
4. RAMBHAROS S/O MOUJIRAM JAAT, AGED
ABOUT 59 YEARS, VILLAGE NAUSAR TEH.
TIMARNI (MADHYA PRADESH)
5. RAMVILAS S/O HARIRAM RAADU JAAT, AGED
ABOUT 64 YEARS, VILLGE GONDAGAONKALA
TEH. TIMARNI (MADHYA PRADESH)
6. SMT. BINDU W/O HARISHANKAR AGRAWAL,
AGED ABOUT 59 YEARS, VILLAGE NAUSAR TEH.
TIMARNI (MADHYA PRADESH)
7. HARISHANKAR S/O JUGRAJPRASA AGRAWAL,
AGED ABOUT 64 YEARS, VILLAGE NAUSAR TEH.
TIMARNI (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI K.S. JHA - ADVOCATE )
AND
1. DR. HARNATH S/O PRATAPJI JAAT PATEL, AGED
ABOUT 66 YEARS, R/O KARTANA TEHSIL
TIMARNI (MADHYA PRADESH)
2. SMT. SUMANBAI W/O GANESH PATEL, AGED
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 5/7/2024
1:15:03 PM
2
ABOUT 43 YEARS, OCCUPATION: AGRICULTURIST
KARTANA TEH. TIMARNI (MADHYA PRADESH)
3. SMT. DEOBAI W/O HARISHANKAR JAAT, AGED
ABOUT 70 YEARS, KARTANA TEH. TIMARNI
(MADHYA PRADESH)
4. COLLECTOR HARDA THE STATE OF MADHYA
PRADESH DISTT. HARDA (MADHYA PRADESH)
.....RESPONDENTS
(BY SMT. MAMTA MISHRA - PANEL LAWYER FOR THE STATE )
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This appeal was admitted for final hearing on 06.01.2017 and is heard
finally today with the consent of learned counsel for the appellants.
2. This misc. appeal has been preferred by the appellants/defendants 1-7
challenging the judgment of remand dated 06.10.2016 passed by 1st Addl.
District Judge, Harda, in regular civil appeal no.02-A/2016 reversing judgment
and decree dated 27.01.2015 passed by Addl. Civil Judge Class-I, Harda, in
civil suit no.39A/13 whereby trial Court dismissed plaintiffs' suit filed
simplicitor for permanent injunction and decreed counter claim of the
defendants 1-7 filed for declaration and permanent injunction, which in appeal
has been set aside and matter has been remanded to trial Court for decision of
civil suit and counter claim, afresh.
3. Learned counsel for the appellants/defendants 1-7 submits that due to
obstruction of existing customary way of the defendants by the plaintiffs, an
application under Section 131 of M.P. Land Revenue Code, 1959 (in short 'the
Code') was filed by the defendants 1-7 and at the same time, the plaintiffs also
filed a civil suit for permanent injunction in respect of the same property, in
which the defendants 1-7 also filed counter claim for declaration of easementary
rights and permanent injunction. He submits that after having considered entire
material available on record including the orders passed by Tahsildar and SDO
in the proceedings under Section 131 of the Code on 09.11.2011 and
07.12.2011 and after holding that there is no other way available for the
appellants/defendants for access to the Government way, trial Court rightly
dismissed the civil suit and decreed the counter claim, but first appellate Court
only upon consideration of application under Order 41 Rule 27 CPC annexing
certified copy of order dated 22.01.2015 passed by Addl. Commissioner,
Narmadapuram division, Hoshangabad, whereby the orders passed by
Tahsildar and SDO have been set aside, has remanded the matter to trial Court
for decision of civil suit and counter claim afresh. Learned counsel submits that
although the orders passed by Tahsildar and SDO have been set aside by Addl.
Commissioner, but while passing the judgment and decree dated 27.01.2015,
trial Court has not only relied upon the orders passed by Tahsildar and SDO
but also considered the other evidence including the admissions of the plaintiffs,
therefore, even upon setting aside the orders by Tahsildar and SDO by the
Addl. Commissioner, there was no valid reason for remanding the matter to
trial Court for decision of civil suit and counter claim afresh. He has also
pointed out that order passed by Addl. Commissioner is under challenge before
Board of Revenue, Gwalior in the pending revision. With these submissions,
learned counsel prays for allowing the misc. appeal.
4. None is appearing for the respondents 1-3 although served and
represented.
5. Heard learned counsel for the appellants/defendants 1-7 and perused the
impugned judgment of remand and the record available.
6. Perusal of judgment and decree dated 27.01.2015 passed by trial Court
shows that during pendency of proceedings under Section 131 of the Code
before Tahsildar, the plaintiffs instituted the suit simplicitor for permanent
injunction in which the defendants filed counter claim for declaration of
easementry right and permanent injunction. Originally the application under
Section 131 of the Code filed by the defendants was dismissed by Tahsildar
and SDO both but upon remand the application was allowed vide order dated
09.11.2011 (Ex.D/1) passed by Tahsildar and in appeal filed by the plaintiffs the
order was affirmed vide order dated 07.12.2011 (Ex.D/2), which were under
challenge before Addl. Commissioner in the second appeal filed by the
plaintiffs/respondents.
7. Judgment and decree was passed by trial Court on 27.01.2015 and the
orders passed by Tahsildar and SDO were set aside by Addl. Commissioner
vide its order dated 22.01.2015. Meaning thereby the order dated 22.01.2015
came in existence just before 4-5 days of passing of judgment and decree
passed by trial Court, which in the regular civil appeal filed by the plaintiffs was
brought on record by way of filing application under Order 41 Rule 27 CPC.
8. Upon consideration of the aforesaid subsequent events and taking into
consideration several other aspects of the matter, first appellate Court has
thought fit to remand the matter to trial Court for decision of civil suit and
counter claim afresh.
9. In view of the aforesaid discussion, in my considered opinion, first
appellate Court does not appear to have committed any illegality in taking the
order passed by Addl. Commissioner on record and in remanding the matter to
trial Court for decision afresh.
10. Resultantly, misc. appeal fails and is hereby dismissed.
11. Misc. application(s), pending if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
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