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2005 DIGILAW 342 (CHH)

RAMCHANDRA SAO v. STATE OF M. P.

2005-11-16

DHIRENDRA MISHRA

body2005
( 1 ) THIS is the miscellaneous appeal under order 43, Rule 1 (r) of the Code of Civil Procedure as the application for temporary injunction preferred by the plaintiff/ appellant has been rejected by the learned trial Court by the impugned order 18-3-1993. (Parties hereinafter shall be described as per their description before the trial court.) ( 2 ) BRIEF facts necessary for adjudication of this appeal are that the plaintiff filed a civil suit for declaration and perpetual injunction against the defendant/state averring that the suit land situated at village-Kusumi, Tehsil-Samri, Distt. Surguja admeasuring 0. 020 hectare was allotted to him by the Tehsildar vide order dated 29-9-1984 passed in Revenue Case No. 141-A year 1983-88/a 19 (1) and since then he is doing his hotel business as Bhumiswami of the said plot. However, he was served with a notice dated 15-1-1993 by Sub Divisional officer, Public Works Department calling upon him to remove the encroachment within three days. The plaintiff also filed an application for temporary injunction. Along with plaint the plaintiff filed documents as per list. ( 3 ) IN reply to the application for temporary injunction, the defendants submitted that lease of the land in favour of the plaintiff is forged and the plaintiff is encroacher. Thereafter, proceedings under Section 248 of the Land Revenue Code (hereinafter referred to as 'the Code') was initiated against the plaintiff in the year 1986-87, 87-88 and in the said proceedings, the plaintiff admitted that he had encroached upon the land. The encroachment was being removed as per order of the Collector, Surguja who had directed to remove all the encroachment from the side of the main road and all the persons whose encroachments were being removed, they were being provided alternative accommodation for their business in the new Bus Stand and therefore no irreparable injury is likely to be caused to the plaintiff. ( 4 ) WHILE rejecting the application for temporary injunction, the learned Additional district Judge has relied upon the orders dated 2-6-1986 and 31-1-1989 by which the tehsildar in a proceedings under Section 248 of the Code had directed the plaintiff to remove the encroachment within 15 days and imposed a fine of Rs. 150/- and again directed the plaintiff to remove the encroachment and imposed a fine of Rs. 250/ -. 150/- and again directed the plaintiff to remove the encroachment and imposed a fine of Rs. 250/ -. The learned trial Court has also relied upon the statement on oath of the plaintiff before the tehsildar dated 31-1-1989 wherein he had admitted that he constructed his hutment over the Government land after encroaching. ( 5 ) LEARNED counsel for the appellant/ plaintiff submits that the Court below has ignored this fact that the plaintiff was granted lease by an order passed in a validly registered revenue case and that the conclusion of the trial Court that no lease was granted in favour of the plaintiff is contrary to law. He further argues that undisputedly the plaintiff is in possession of the suit land and he is doing his hotel business from there since long time and in case his possession is removed after demolishing his shop, he shall suffer irreparable loss. ( 6 ) IN support of his contention, learned counsel for the appellant relies upon the judgments of M. P. High Court delivered in the matter of Shankarlal Debiprasad rathore v. State of M. P. and others reported in 1978 MPLJ 419, State of Madhya Pradesh and another v. M/s. H. G. Industries and another reported in 1993 MPLJ 614 : AIR 1992 MP 286, State of M. P. and another v. Uttam Chand and others reported in 2000 (2) JLJ 143 : 2000 AIHC 1263 and in the matter of State of M. P. and others v. Balveer singh and others reported in 2001 (3) MPHT 255 : AIR 2001 MP 268 (FB ). ( 7 ) ON the other hand, learned counsel for the State supporting the impugned order submits that finding of the trial Court is based on earlier revenue records by which order of ejectment under Section 248 of the code has been passed on 2-6-1986 and 31-1-1989 on the basis of admission of the plaintiff that he is encroacher. He further submits that the Court below has arrived to a, right conclusion that the Patta on the basis of which the plaintiff is claiming possession, has been prima facie found to be forged as the plaintiff did not disclose that he was having lease of the disputed land during ejectment proceedings. He further submits that the Court below has arrived to a, right conclusion that the Patta on the basis of which the plaintiff is claiming possession, has been prima facie found to be forged as the plaintiff did not disclose that he was having lease of the disputed land during ejectment proceedings. He also submits that since the encroachment is beside the main road, it was in the public interest to remove the same and the plaintiff was to be allotted a suitable site for his business in the new bus Stand. ( 8 ) LEARNED counsel for the State places his reliance on the judgment of Division bench of M. P. High Court delivered in the matter of State of M. P. and another v. Jivanalal Chikotiya and another reported in 2005 (1) MPJR 165 : AIR 2005 MP 76. ( 9 ) I have heard learned counsel for the parties. ( 10 ) THE law for grant of temporary injunction is well settled as has been held in shankarlal Rathore's case (supra) and in the case of State of M. P. v. H. G. Industries (supra ). The principles for grant of injunctions are: (i) that the plaintiff is required to show that there is a serious question to be tried, (ii) that the balance of convenience to maintain status-quo is in favour of the plaintiff and the status-quo, if changed, shall cause irreparable injury to the plaintiff. In the instant case the learned Court below has rejected the application for temporary injunction by holding that the alleged Patta in favour of the plaintiff is prima facie suspicious and this finding is based on the ejectment proceedings initiated under Section 248 of the Code by which the plaintiff was directed to remove his encroachment from the disputed land. Even after grant of Patta orders were passed in the year 1986 and 1989 on the admission of the plaintiff and the plaintiff did not prefer any appeal against the above orders. Thus in the aforesaid circumstances, the conclusion of the trial Court that the plaintiff has failed to prove prima facie case, appears to be justified. Even otherwise the plaintiff though being encroacher has been offered by the State alternative place for running his business in the new bus Stand and thus injury, if any, likely to be caused to the plaintiff, has been taken care by the State. Even otherwise the plaintiff though being encroacher has been offered by the State alternative place for running his business in the new bus Stand and thus injury, if any, likely to be caused to the plaintiff, has been taken care by the State. ( 11 ) SO far as the reliance placed by the plaintiff in the matter of State of M. P. v. Uttam Chand (supra) is concerned, the law laid down in the above judgment is that a person, who is in settled possession of the property, cannot be dispossessed even by the owner except by due course of law. However, in the instant case order of ejectment has been passed under Section 248 of the code in due course of law and as such the above judgment is not applicable in the present set of facts. ( 12 ) AS far the contention of the plaintiff that the provisions of Section 248 of the code are not applicable to building, property etc. , a bare reading of Section 248 of the Code goes to show that any person who is in unauthorized occupation of any land which is the property of the Government, may be summarily ejected and any building or other works which he may have constructed thereon, if not removed by him. may be removed by the State at the expense of the encroacher. ( 13 ) SO far as the Full Bench judgment of the M. P. High Court in the matter of State of m. P. v. Balveer Singh (supra) is concerned, the same is regarding maintainability of the civil suit in relation to a dispute between the State and private citizen with respect to right of ownership of the land. However, as in the present case the only dispute is whether the Court below was justified in rejecting the application for temporary injunction, the above cited law has no application in the instant case. ( 14 ) THUS on the basis of aforesaid discussions, i am of the opinion that the impugned order passed by the learned A. D. J. is based on sound principles of law and the same has been passed on the basis of pleadings of the respective parties and material available on record, which does not call for interference. Accordingly, the appeal is liable to be rejected and it is rejected. Appeal dismissed. --- *** --- .