Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 653 (MP)

Abdul Hamid v. Daudi Bohra Jamat

2008-05-06

N.K.MODY

body2008
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the judgment and decree dated 21-09-04 passed by Ilnd Additional District Judge, Dewas in Civil Suit No. 3-A/03, whereby the suit filed by the appellant for compensation of Rs. 2,50,000/- was dismissed, the present appeal has been filed. 2. Short facts of the case are that the appellant filed a suit for realisation of Rs. 2,50,000/- as compensation on 10-05-01 alleging that respondent is recorded Bhumi Swami of the land bearing various survey numbers measuring 1.589 hectors situated at Tehsil and District Dewas. It was alleged that respondent filed a petition under Section 168 of MP. Land Revenue Code, which shall be referred hereinafter as MPLRC, in the Court of SDM, Dewas alleging that appellant is in occupation of the land as lessee. It was alleged that the said petition filed by the respondent was registered as case No. 232/B-121/98-99 and was allowed vide order dated 31-07-2000. It was alleged that against the order dated 31-07-2000 passed by SDM, Dewas, whereby appellant was directed to handover the possession of the agricultural property mentioned herein above, appellant filed an appeal alongwith an application for staying the operation of the order before Collector, Dewas. It was alleged that the appeal filed by the appellant was transferred to ADM, Dewas, wherein it was directed to call the record from the Court of SDM, Dewas. It was alleged that the record was not sent by SDM, Dewas. Further case of the appellant was that in the order dated 31-07-2000 it was directed that notice be issued to the appellant under Section 38 of MPLRC for handing over the possession of the suit property within a period of 24 hours, failing which action be taken under Section 38 for removal of the possession of the appellant. It was alleged that the notice was never served on the appellant, however it was served on one Kallu, brother of the appellant, who was not the member of the family of the appellant. It was alleged that without following the procedure laid down under Section 38 possession of the land in dispute alongwith the house and the standing crops was taken by the respondent. It was alleged that the house, which was constructed by the appellant was demolished by the respondent and the standing crops were also cut down by the respondent. 3. It was alleged that without following the procedure laid down under Section 38 possession of the land in dispute alongwith the house and the standing crops was taken by the respondent. It was alleged that the house, which was constructed by the appellant was demolished by the respondent and the standing crops were also cut down by the respondent. 3. Further case of the appellant was that appellant constructed the house of RCC, which was containing six bedrooms measuring 25 feet x 40 feet, valuing Rs. 90,000/-. It was alleged that there was a cattle shade, which was also demolished by the respondent. In the suit appellant claimed a sum of Rs. 2,50,000/-, breakup of which is as under: Rs. 90,000/- Towards demolition of house. Rs. 10,000/- Towards demolition of cattle shade. Rs. 50,000/- Towards costs of the crops. Rs. 1,00,000/- Towards loss of standing crops. 4. It was alleged that cause of action has accrued to the appellant with effect from 04-08-2000, when the possession was taken by the respondent. 5. The suit filed by the appellant was contested by the respondent by filing written statement, wherein the plaint allegations were denied. However it was admitted that the petition was filed by the respondent under Section 168 of MPLRC was allowed holding that the land in dispute belongs to the respondent and the land use of the suit property is graveyard i.e., other than agricultural purpose, upon which agriculture was not permitted and appellant is using the land for agricultural purposes as encroacher, without any prior permission of the respondent. In the written statement it was also alleged that in the petition, which was decided on 31-07-2000, it was also held that the suit land was given to the appellant for cutting of grass for which appellant was liable to pay a sum of Rs. 600/- per year to the respondent. It was also held that no right has been accrued to the appellant in the suit land. In the written statement it was further alleged that in compliance of the order passed by SDM, Dewas possession was delivered to the respondent on 04-08-2000. It was alleged that appellant also filed an appeal before the Commissioner (Revenue), Ujjain, which was dismissed on 04-02-2002, wherein it was observed that the possession of the appellant was illegal and the order dated 31-07-2000 passed by SDM, Dewas is in accordance with law. It was alleged that appellant also filed an appeal before the Commissioner (Revenue), Ujjain, which was dismissed on 04-02-2002, wherein it was observed that the possession of the appellant was illegal and the order dated 31-07-2000 passed by SDM, Dewas is in accordance with law. However, since the suit property is Waqf property, therefore, under Section 54 of the Waqf Act, 1995 the powers to remove the possession of the appellant is only with Commissioner, Waqf Board and not the Revenue Court. It was alleged that against the order passed by the Commissioner, Ujjain no appeal/revision was filed by the appellant. It was alleged that Revenue Commissioner issued instructions to Commissioner, Waqf Board, Bhopal to take appropriate steps and the matter was sent to the Commissioner, Waqf Board, Bhopal on 01-03-2002. It was denied that the possession was taken by the respondent forcefully and the suit property was damaged by demolishing the house and cutting of crops. It was further alleged that no cause of action has accrued to the appellant and also appellant has no right to sue, hence the suit be dismissed. 6. On the basis of the pleadings of the parties, learned Trial Court framed the issues, recorded the evidence and dismissed the suit, against which the present appeal has been filed. 7. Mrs. Rekha Shrivastava, learned Counsel for the appellant submits that judgment and decree passed by the learned Court below is illegal and deserves to be set aside. Learned Counsel further submits that from perusal of the record it is evident that SDM, Dewas passed an order Exh. P-l on 31-07-2000, while the possession was taken by the respondent through Tehsildar on 04-08-2000 i.e., after 4 days of the order, while the appeal filed by the appellant was pending and there was non-compliance of the order relating to taking of the possession of the suit property. It is also submitted that there was no justification on the part of the learned Court below in dismissing the suit. 8. Mr. Jayant R. Vipat, learned Counsel for the respondent submits that appellant was an encroacher, the possession was taken by the respondent through process of law and at the time of taking the possession of the property household was given to the members of the family of the appellant. 8. Mr. Jayant R. Vipat, learned Counsel for the respondent submits that appellant was an encroacher, the possession was taken by the respondent through process of law and at the time of taking the possession of the property household was given to the members of the family of the appellant. It is submitted that in the facts and circumstances of the case no illegality has been committed by the learned Trial Court in dismissing the suit. In alternative it is also submitted that appellant has utterly failed in proving the damages. 9. From perusal of the record it is evident that while passing the order Exh. P-1 on 31-07-2000, SDM, Dewas has directed that notices be issued to the appellant under Section 38(A) of MPLRC. The possession was taken on 04-08-2000. There is nothing on record to show that any notice was issued by the Tehsildar and the notice was duly served on the appellant. On the contrary the case of the appellant is that no notice was served on the appellant and the appeal was pending against the order dated 31-07-2000. 10. From perusal of the record it appears that vide order dated 04-02-02 Commissioner (Revenue), Ujjain has further directed that since the status of the appellant is encroacher and the property belongs to Waqf Board, therefore, the Revenue Court is having no jurisdiction to take possession and it is only the Commissioner, Waqf Board who is competent to take possession under Section 54 of the Waqf Act. This order is not before this Court and the only thing which has to be determined by this Court is that whether the learned Court below has rightly dismissed the suit filed by the appellant, wherein the claim was for damages. To prove the plaint appellant has filed Exh. P-1 order dated 31-07-2000 passed by SDM, Dewas and Exh. P-2 Panchnama dated 4-08-2000, whereby the possession of the land and the house was taken. Exh. P-3 is the receipt given by the respondent, which shows that possession was taken by the respondent along with crops. Exh. P-4 is letter dated 11-02-99 issued by the Office of Chief Minister whereby, Collector, Dewas has been directed to take appropriate steps in the matter and Exh. P-5 is the letter dated 22-02-99 whereby the respondent has requested the Minister-in-Charge of (Urban Administration) to take appropriate steps for removal of the possession of the appellant. Exh. P-4 is letter dated 11-02-99 issued by the Office of Chief Minister whereby, Collector, Dewas has been directed to take appropriate steps in the matter and Exh. P-5 is the letter dated 22-02-99 whereby the respondent has requested the Minister-in-Charge of (Urban Administration) to take appropriate steps for removal of the possession of the appellant. Apart from this appellant has also examined himself as P.W. 1, Sabbir Ahmed as P.W. 2, Abdul Mazid Khan as P.W. 3 and Abdul Hamid as P.W. 4. While respondent has examined Hussaini as D.W. 1 and Hakimuddim as D.W. 2. 11. Section 38-A of the MPLRC reads as under: Manner of executing order to deliver possession of immovable property: Where any person against whom an order to deliver possession of immovable property has been passed under this Code such order shall be executed in the following manner, namely: by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land. 12. From perusal of the record, it is evident that in compliance of the order dated 31-07-2000 no procedure was followed as laid down under the law. It appears that without following any procedure and also without issuing any notices to the appellant, the possession of the land and the house was taken by the respondent on 04-08-2000. It is also appears that the Tehsildar, Dewas was the instrument for delivery of possession. Thus, it is evident that the action taken relating to taking of possession was done by respondent illegally. Respondent was having no authority to take the possession without following the procedure laid down under the law. 13. So far as entitlement of the appellant relating to compensation is concerned, there is nothing on record on the basis of which the damages caused to the appellant can be computed. From perusal of the Exhs. P-2 and P-3, it is evident that possession of the land bearing various survey numbers measuring 18.59 hectare of land was taken by the respondent alongwith standing crops, and the possession of the house situated at Survey No. 927 measuring 30 ft. x 20 ft. and house of RCC constructed on Survey number 925 was also taken by the respondent. P-2 and P-3, it is evident that possession of the land bearing various survey numbers measuring 18.59 hectare of land was taken by the respondent alongwith standing crops, and the possession of the house situated at Survey No. 927 measuring 30 ft. x 20 ft. and house of RCC constructed on Survey number 925 was also taken by the respondent. It is also evident that the standing crops were of cabbage and maize which were having height of 1 feet. It is also evident from this documents that at the time of taking possession, appellant was not present and the members of the family removed their household goods for the purpose of handing over the possession at 6.50 p.m. i.e., after sun set. 14. In the statement of the appellant it has come that the value of two houses was approximately Rs. 1,00,000/- and the value of the crops was Rs. 50,000/- and after selling the crops appellant would have get Rs. 1,00,000/-. There is no rebuttal of the evidence. Keeping in view of the facts and circumstances of the case, where it is amply proved that possession has been taken by the respondent without following the process of law and the crops were standing in the field, in the opinion of this Court, it will be appropriate to award a sum of Rs. 1 lakh to the appellant towards damages. 15. In view of this appeal stands allowed. Respondent is directed to pay a sum of Rs. 1,00,000/- to the appellant within a period of 2 months which shall carry interest @ 6% per annum. In case the respondent fails to make the payment of decreetal amount within a period of two months, the respondent shall be further liable for payment of interest @ 12% per annum from the date of filing of the suit. Respondent shall also bear the cost of appellant of both the Courts.