Madhya Pradesh High Court
Lakhan Singh vs Harikishan (Died) Through Its Lrs. ... on 9 May, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 9 th OF MAY, 2024
WRIT PETITION No. 4775 of 2022
BETWEEN:-
LAKHAN SINGH S/O LATE SHRI BHAGIRATH
OCCUPATION: AGRICULTURIST VILLAGE FANDAKALA
TAHSIL HUZUR DISTRICT BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY MS. SMITA VERMA - ADVOCATE)
AND
1. HARIKISHAN (DIED) THROUGH ITS LRS.
GHISILAL S/O LATE SHRI HARKISHAN
OCCUPATION: NIL VILLAGE FANDAKALA TAHSIL
HUZUR DISTRICT BHOPAL (MADHYA PRADESH)
2. BABULAL S/O LATE SHRI HARKISHAN
OCCUPATION: NILL VILLAGE FANDAKALA
TAHSIL HUZUR DISTRICT BHOPAL (MADHYA
PRADESH)
3. BATASIBAI D/O LATE SHRI HARKISHAN
OCCUPATION: NILL VILLAGE FANDAKALA
TAHSIL HUZUR DISTRICT BHOPAL (MADHYA
PRADESH)
4. SORANBAI D/O LATE SHRI HARKISHAN
OCCUPATION: NILL VILLAGE FANDAKALA
TAHSIL HUZUR DISTRICT BHOPAL (MADHYA
PRADESH)
5. BHAGWATI W/O LATE SHRI HARKISHAN
OCCUPATION: NILL VILLAGE FANDAKALA
TAHSIL HUZUR DISTRICT BHOPAL (MADHYA
PRADESH)
6. UPPER COMMISSIONER BHOPAL DIVISION
BHOPAL (MADHYA PRADESH)
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 5/9/2024
6:23:31 PM
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7. SUB DIVISIONAL OFFICER TEHSIL HUZUR
DISTRICT- BHOPAL (MADHYA PRADESH)
8. TEHSILDAR TEHSIL HUZUR DISTRICT- BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AVINASH ZARGAR - ADVOCATE FOR THE RESPONDENT NO.1)
......................................................................................................................................
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition has been filed challenging the orders Annexures P-1,
P-2 and P-3 issued by the Additional Commissioner, Sub Divisional Officer and
Tahsildar respectively.
2. Learned counsel for the petitioner has submitted that by the order
Annexure P-3, the Additional Tahsildar has ordered the restoration of
possession of the respondent Nos.1 to 5 on land measuring 0.03 hectare stated
to be part of survey No.659. The said order Annexure P-3 has been confirmed
in appeal by the Sub Divisional Officer vide Annexure P-2 and the second
appeal has also been rejected by the Additional Commissioner, Bhopal Division
vide Annexure P-1 dated 23.08.2021. Learned counsel for the petitioner further
submits that the basis for holding that the present petitioner has improperly
dispossessed the present respondent Nos.1 to 5 is one demarcation report
dated 03.04.2010, wherein it has been found that on an area of 0.03 hectare in
survey No.659, there is unauthorized possession of the present petitioner. This
demarcation report has been placed on record by the respondent Nos.1 to 5
along with document No.13405/2023.
3 . The case of the petitioner is that the predecessor of the respondent
Nos.1 to 5 had filed civil suit based on the same demarcation report and the
said suit was dismissed vide judgment and decree dated 31.07.2012 (Annexure
P-4). In the said suit, relief of declaration, restoration of possession and
permanent injunction was sought. Restoration of possession on 0.03 hectare
was prayed on the basis of the demarcation report of 2010. However, the said
suit was dismissed by the Civil Court. Against the said dismissal, the
predecessor of respondent Nos.1 to 5 had filed appeal before the District
Court, which has been decided by judgment and decree dated 13.12.2013
(Annexure P-5). It is submitted that by this appellate decree, the relief of
declaration was given in respect of survey Nos.659 and 660 in favour of
predecessor of the petitioner, but the relief of restoration of possession and
permanent injunction in respect of 0.03 hectare land was refused by the
Appellate Court.
4. It is the case of the petitioner that the respondent Nos.1 to 5 have lost
for the same relief from the Civil Court and even if the said judgment and decree
passed by the Lower Appellate Court was not proper, then they could have
challenged the said decree by filing second appeal before the High Court in
terms of Section 100 of Code of Civil Procedure. However, it was not open for
the respondent Nos.1 to 5 to institute proceedings for eviction of the petitioner
on the basis of same demarcation report, which was relied by them in Civil Suit,
but they failed to get any relief in the suit.
5. Thus, it is the case of the petitioner that the revenue authorities have
ordered something, which is contrary to the decree of the Civil Court and the
respondent Nos.1 to 5 having lost before the Civil Court for the same relief
based on the same set of facts, could not have invoked the jurisdiction of
revenue authorities under Section 250 of M.P.L.R.C.
6. It is also argued that in terms of Section 250(1)(b) the limitation to
institute proceedings under Section 250 is two years, whereas looking to the
averments made before the Civil Court, the present petitioner is in possession at
least prior to 2010 even as per the demarcation report, though it is claimed that
the petitioner is actually in possession since last more than 40 years. Thus, after
having lost from the Civil Court, the respondent Nos.1 to 4 could not have
approached the Tahsildar under Section 250 in the year 2014.
7 . P er contra, it is contended by learned counsel for the respondent
Nos.1 to 5 that the Civil Court has granted declaration in favour of the
predecessor of the respondent Nos.1 to 5 in respect of survey Nos.659 and 660
and no part of the said two survey numbers has been found to be owned by the
petitioner. It is further submitted that as per demarcation report, the
encroachment of petitioner has been duly established and in view of the
declaration granted by the Civil Court, the revenue authorities have not erred in
passing order under Section 250. It is further contended by learned counsel for
the respondent Nos.1 to 5 that if the argument of the petitioner is accepted, then
the respondent Nos.1 to 5 would be remedy-less in the matter of illegal
possession of the petitioner on their land. Thus, it is prayed to dismiss the
present petition.
8. Heard learned counsel for the parties at length.
9. In the present case, it is not in dispute that relying on some
demarcation of the year 2010, the predecessor of respondent Nos.1 to 5 had
filed a civil suit for declaration, permanent injunction and recovery of
possession. The Appellate Court had granted declaration of title in respect of
Survey Nos.659 and 660, but refused to grant relief of restoration of possession
in respect of small portion of land, i.e. 0.03 hectare, which was alleged to be in
possession of the predecessor of respondent Nos.1 to 5. All the facts, which
have been placed before the Revenue Authorities were placed before the Civil
Court also as well as Lower Appellate Court. The Lower Appellate Court by
the judgment and decree Annexure P-5 has clearly held in para 21.1 that the
predecessor of respondent Nos.1 to 5 is not entitled to get restoration of
possession in respect of the land 0.03 hectare alleged to be in unauthorized
possession of the petitioner.
10. The argument of the petitioner is that even if, the said judgment and
decree was erroneous in refusing restoration of possession, then the respondent
Nos.1 to 5 could have filed Second Appeal before this Court challenging the
erroneous judgment and decree passed by the Lower Appellate Court.
However, the respondent Nos.1 to 5 chose to approach the revenue authorities
for the same relief and on the basis of same set of facts, which were agitated
before the Civil Court and relief was denied to them by the Civil Court.
11. Learned counsel for the petitioner has relied on the judgment of Full
Bench of this Court in the case of Ramgopal Kanhaiyalal vs. Chetu Batte,
AIR 1 9 7 6 MP 160, wherein it has been held by the Full Bench that the
Revenue Court do not have exclusive jurisdiction under Section 250 MPLRC
and the judgment and decree of the Civil Court would always be binding on the
Revenue Court. After detailed analysis of the effect of Sections 250 and 257(x)
of MPLRC, it has been held by the Full Bench as under :-
"17. We, therefore, hold that a Bhumiswami is not
bound to avail himself of the speedy remedy provided
in Section 250 of the Code. It is open to him to take
recourse to the summary remedy under Section 250, or
even without it straightway bring a suit in the Civil
Court for declaration of his title and possession. Even if
there has been a decision under Section 250 by a
revenue Court, the party aggrieved may institute a civil
suit to establish his title to the disputed land. We further
hold that Nathu v. Dilbande Hussain, AIR 1967 Madh
Pra 14 : 1964 Jab LJ 707 was correctly decided. The
Civil Court can take cognizance of a suit. This is our
answer to the questions referred to us."
12. Thus, it is clear that the judgment of the Civil Court was binding on
the Revenue Courts and the Revenue Courts could not have passed an order of
eviction of petitioner once the present respondent Nos.1 to 5 have lost for the
same relief from the Civil Court after having filed suit based on the same set of
the facts. The respondent Nos.1 to 5 chose not to challenge the judgment and
decree passed by lower appellate Court in Second Appeal
13. Further more, the petitioner seems to be in possession admittedly for
more than two years preceding the date of institution of proceedings under
Section 250 MPLRC before the Additional Tahsildar and for this reason also
the proceedings under Section 250 MPLRC seem to be barred by limitation.
The knowledge of alleged possession of the petitioner can at the most be said
to have occurred from the date of demarcation somewhere in the year 2010.
The proceedings under Section 250 have been instituted in the year 2014 which
seem to be barred by limitation.
14. Consequently, the orders Annexures P-1, P-2 and P-3 are set aside.
The petition stands allowed.
(VIVEK JAIN)
JUDGE
rj
