Madhya Pradesh High Court
Abdul Rashid Khan vs Gangaram Joshi on 25 June, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1 SA-128-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
SA No. 128 of 2008
(ABDUL RASHID KHAN AND OTHERS Vs GANGARAM JOSHI AND OTHERS )
Dated : 25-06-2025
Shri V.K.Jain - Senior Advocate with Shri Vaibhav Jain, learned
counsel for the appellants.
Shri Piyush Shrivastava - Advocate for the respondent no.1.
Heard on I.A. No. 57/2025, which is an application for recalling of the
order dated 01.07.2016 filed by the respondent no.1.
2. Learned counsel for the respondent no.1 in addition to the facts
and grounds stated in the application submits that the appellants had filed an
interlocutory application vide I.A. No. 3556/2016 praying for direction to
raise fence or boundary wall on the land except the land in dispute in the
present matter. After hearing the parties, a coordinate Bench of this Court
passed the order dated 01.07.2016 and permitted the appellants to fence the
land under his title except the open land admeasuring 20x40 ft and four
rooms, which are part of the judgment and decree. As per the judgment and
decree of the trial Court as well as the first Appellate Court, the disputed
property comprises 04 rooms and an Ausari(Veranda) as well as adjoining
open land admeasuring 25x40ft, whereas the order dated 01.07.2016 only
mentions four rooms and open land admeasuring 20x40ft. Taking advantage
of wrong description of the disputed property, the appellants moved an
application for demarcation of land and initiated proceedings before the
Revenue Authorities to dispossess the respondents. The Tehsildar relying
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upon the order dated 01.07.2016, without considering the actual description
of the disputed property passed the order dated 05.10.2018 under Section 250
of M.P. Land Revenue Code (for short referred to as ' MPLRC' hereinafter)
and directed to remove the construction of respondent no.1. The respondent
no.1 is seriously prejudiced by the wrong description of the disputed property
in the impugned order dated 01.07.2016. Therefore, the order deserves to be
recalled.
3. Per contra, learned Senior Advocate for the appellants opposes the
application and contends that the order dated 01.07.2016 has attained finality.
It was referred to in multiple subsequent proceedings in the last 08 years. But
the respondents have never challenged the legality of the impugned order in
any of the proceeding. The demarcation proceedings were conducted in
furtherance of the impugned order. An inquiry report to verify the violation
of status-quo order was also called from the District Judge, Dewas. But the
respondent never assailed the description of the property as mentioned by
this Court in the impugned order dated 01.07.2016. Learned counsel referred
para 4, 10 and 11 of the inquiry report submitted by the District Judge,
Dewas, to contend that the description of disputed property, as demarcated
by the revenue authorities, is in consonance with the impugned order dated
01.07.2016. Learned counsel further submits that the impugned judgment of
the trial Court and the first Appellate Court are under challenge before this
Court. Therefore, the Court on consideration of the material has determined
the description of the property as 04 rooms and adjoining open land of
20x40ft. No case is made out to recall the order dated 01.07.2016. Learned
3 SA-128-2008
counsel further referred the criminal antecedents of the respondents to show
that due to their constant interference, the demarcation proceedings were
delayed and this Court had to pass multiple orders for demarcation of the
disputed property. Having failed to restrain the demarcation, the respondents
resorted to recall of the order which was basis for demarcation and removal
of encroachment on the disputed property.
4. In reply, learned counsel for the respondent submits that the
respondent have assailed the description of the property mentioned in the
impugned order dated 01.07.2016 in proceedings before the revenue
authorities. But the revenue authorities declined to consider the contentions
and proceeded with the description of the property stated in the impugned
order. There was no occasion to challenge the impugned order earlier as the
rights of the respondents were not affected. However, after the proceedings
u/Sec. 250 of the MPLRC, when the Revenue Officer directed for removal of
construction on the disputed property, the respondents had approached this
Court for recalling of the impugned order.
5. Heard, both the parties and perused the record.
6. Abdul Rashid, Mehmood Khan, Nasima and Pakeeza had filed a
suit for eviction, arrears of rent and vacant possession of 04 rooms of a house
situated at A.B. Road, Village Rasulpur against Gangaram Joshi on the
ground that these rooms were given on rent to Gangaram Joshi. Gangaram
Joshi filed a counter-claim for declaration of title and permanent injunction
against the plaintiff for 04 rooms and Ausari(Veranada) i.e. total 05 rooms
and adjoining open land admeasuring 25ft x40ft near Nagdhamman river
4 SA-128-2008
situated on A.B. Road, Village Rasulpur. The trial Court vide judgment
dated 30.06.2005 passed in Civil Suit No. 12A/2004 rejected the civil suit
and allowed the counter-claim and granted permanent injunction in favour of
the defendant Gangaram Joshi with respect to the disputed property of 04
rooms and open land admeasuring 25ft x 40ft situated on A.B. Road, Village
Rasulpur. The judgment of the trial Court was assailed in Regular Civil
Appeal before the Additional District Judge, Dewas wherein, the Additional
District Judge vide judgment and decree dated 20.11.2007 passed in Civil
Appeal No. 13A/2007 rejected the appeal of Abdul Rasheed and allowed the
counter appeal of Gangaram Joshi and passed the decree declaring the title of
Gangaram Joshi on the disputed property adjacent to Nagdhamman river
comprising 04 rooms and adjacent Ausari(Veranda) and open land of 25ft x
40ft situated at A.B. Road, Village Rasulpur. Thus, the trial Court and the
first Appellate Court have concurrently decided the possession of defendant
Gangaram Joshi on above stated property and later, the First Appellate Court
declared the title of the defendant Gangaram Joshi on the disputed property.
7. This Court while considering the I.A. No. 3556/2016 passed the
impugned order dated 01.07.2016, which is as under:
"In the present case, earlier Mr. Ajit Chhabra, Advocate was engaged as counsel for
respondent No.1. For the reasons best known to the respondent, later on Mr. Manish
Gadkar, Advocate was engaged as a counsel. Today, a third counsel Mr. Piyush
Shrivastava, is arguing the matter. Mr. Piyush Shrivastava has informed this Court
that Mr. Manish Gadkar, Advocate is working with him.
In the present case, as per the judgment and decree passed by the trial Court, the land
admeasuring 25x40' along with four rooms is subject matter of dispute and
contention of the learned counsel for the appellant is that he should be permitted to
fence the remaining land leaving 20x40' as well as four rooms.
After hearing learned counsel for the parties, this Court is of the considered opinion
that the prayer of the appellant appears to be genuine prayer as he is not touching the
land which is subject matter of dispute.
5 SA-128-2008
Resultantly I.A. No. 3556/2016 is allowed. The appellant is directed to fence the land
over which he is having title, except 20x40' and four rooms which are part of the
judgment and decree."
8. Apparently, the Court mentioned wrong description of the
disputed property in the impugned order dated 01.07.2016. The impugned
order does not show that any arguments were advanced for changing
description of the property in dispute. No reason was assigned in the order
for curtailing the area of open land from 25ft x 40ft to 20ft x 40ft and also
non-mentioning of Ausari(veranda), which was part of the disputed property
in the relief granted by the trial Court as well as the first appellate Court.
Therefore, the impugned order suffers from mis-description of the disputed
property and the subsequent proceedings have been conducted taking into
consideration the wrong description of the property mentioned in the
impugned order. The respondent has manifestly suffered prejudice due to
such mis-description. Therefore, the error apparent on the face of record
needs to be rectified.
9. Considering the above discussion, I.A. No. 57/2025 is allowed and
the impugned order dated 01.07.2016 is amended to the extent of the
description of the property as under:
" गत ववा दत थल थत रसूलपुर ए.बी. रोड पर बने नाले के आगे खंडहरनुमा मकान म से 4 कमरे
बंधे हुए तथा उसके आगे ओसार मकान उ र-पिशचम मुखी पूव म नागध मन नद का भाग तथा ितवाद को
दया गया भू-खंड तथा प म म दया गया मकान का शेष भाग, उ र म ए.बी. रोड,द ण म खुली भूिम एवं नाला
एवं भूखंड का ववरण आकार 25x40 फ ट जो मकान से नागध मन नद क ओर है पूव म रा ते के बाद द पक
वूलन फे ट वाल का भूखंड, प म म ितवाद को हबा कया मकान एवं उ र को ए.बी.रोड एवं पुिलया, द ण
म खुले भाग का नाला है ''
6 SA-128-2008
10. Rest of the order dated 01.07.2016 shall remain intact with these
description of property.
11. Matter has already been admitted for final hearing. Both the
parties are directed to address final arguments. All other pending
applications will be considered at the time of final hearing.
List the matter for final hearing in due course.
(SANJEEV S KALGAONKAR)
JUDGE
sh
