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2013 DIGILAW 1070 (MP)

State of M. P. and another v. Ramnaresh Brahmin

2013-09-05

Alok Aradhe

body2013
JUDGMENT 1. This appeal is by the defendants, which was admitted by a Bench of this Court on the following substantial questions of law :- “1. Whether the learned Courts below was right in entertaining the suit and resolving the dispute when the dispute in question is between the lessor and lessee under the provisions of the Revenue Book Circulars and thus the civil Court did not have any jurisdiction to entertain the suit ?” 2. Whether the learned Courts below could have decreed the suit without directing for demarcation of the land to question ? 3. Whether the learned Courts below was right in granting the decree of permanent injunction against the provisions of section 41 of the Specific Relief Act, 1963 ?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit inter-alia on the ground that the land admeasuring 30 x 80 square feet bearing Khasra No.1155 was alloted on lease to him for a period of 30 years on 18.11.1986 for construction of the house. The plot was renumbered as Khasra No.1155/2. The plaintiff had raised temporary construction on the plot in question, which was in dilapidated condition. On 19.12.2000, when the plaintiff commenced construction work of his house, the defendant No.1 came to the spot along with the staff and restrained the plaintiff from raising construction on the plot in question. Thereupon, the plaintiff got the plot demarcated and filed the suit seeking the relief for permanent injunction. 3. The defendants filed the written statement, in which inter-alia it was pleaded that on the land allotted to the plaintiff, he has already constructed a house. It was further pleaded that the land shown in the plaint map does not belong to the plaintiff and demarcation has been carried out in the absence of the officers of the defendant No.1. 4. The trial Court vide judgment and decree dated 31.1.2008 inter-alia held that the land bearing Khasra No.1155/2 admeasuring 0.022 hectares as shown in the plaint map was allotted to the plaintiff on lease. 4. The trial Court vide judgment and decree dated 31.1.2008 inter-alia held that the land bearing Khasra No.1155/2 admeasuring 0.022 hectares as shown in the plaint map was allotted to the plaintiff on lease. On the basis of demarcation reports on record as well as the testimony of Swamysharan Pandey (PW 5), Revenue Inspector, who carried out demarcation and Harilal Soni (PW 6) Patwari, who was present at the time of demarcation, the trial Court held that the plaintiff is in possession of the plot allotted to him on lease. It was further held that no evidence has been adduced by the defendants to prove that the plaintiff carried on construction on the land, which belongs to the defendants, which bears Khasra No.1156. Accordingly, the suit filed by the plaintiff was decreed. The aforesaid decree was affirmed in appeal by the lower appellate Court. 5. Learned Government Advocate for the appellants submitted that the suit filed by the plaintiff before the trial Court was not maintainable. It was further submitted that the demarcation was carried out in absence of officers of the defendant No.1. Therefore, on the basis of the demarcation, which was carried out in absence of officers of the defendant No.1, the suit could not have been decreed. It was further submitted that the Courts below grossly erred in granting decree for permanent injunction against the provisions of section 41 of the Specific Relief Act, 1963 (hereinafter in short referred to as “the Act”). On the other hand, learned counsel for the respondent submitted that the suit has rightly been decreed by the Courts below and the demarcation was carried out in presence of the defendant No.1, who has signed the panchnama. It is also submitted that no substantial question of law arises for consideration in the instant appeal and the matter stands concluded against the defendants by concurrent finding of facts. 6. I have considered the submissions made by learned counsel for the appellants and have perused the record. The Revenue Book Circulars, which has been issued by the Revenue Department of Government of Madhya Pradesh is in form of executive instructions. Learned Government Advocate was unable to point out the provision of Revenue Book Circulars which bars the jurisdiction of the civil Court. It is a trite law that by an executive fiat, the State Government cannot bar the jurisdiction of the civil Court. Learned Government Advocate was unable to point out the provision of Revenue Book Circulars which bars the jurisdiction of the civil Court. It is a trite law that by an executive fiat, the State Government cannot bar the jurisdiction of the civil Court. The plaintiff had filed the suit seeking the relief for permanent injunction as defendants were interfering in the possession of the plaintiff over the suit land. For the aforesaid reasons, the first substantial question of law framed by a Bench of this Court is answered in negative and against the appellants. 7. From perusal of Ex. P/9 i.e. demarcation report, it is evident that the Station House Officer namely the defendant No.1, who has signed the panchnama Ex. P/10 also, the demarcation has been carried out in presence of the defendant No. 1. On the basis of the demarcation reports, the Courts below have concurrently found that the plaintiff has not encroached any portion of the land belonging to the Police Department. Since the demarcation was carried out in presence of the defendant No.1 and the demarcation report was already on record, therefore, it was not necessary for the trial Court to issue direction for demarcation on the land in question. Accordingly, the second substantial question of law is answered. 8. Section 41 of the Act enumerates the grounds on which injunction cannot be granted. From close scrutiny of clause (a) to (j) of section 41 of the Act, it is evident that none of the grounds enumerated in section 41 of the Act are attracted to the facts of the case. Accordingly, the third substantial question of law framed by this Court is answered in affirmative and against the appellants. 9. In the result the appeal fails and is hereby dismissed with costs.