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Madhya Pradesh High Court · body

2013 DIGILAW 450 (MP)

Rajesh Sharma v. Shashi Jain

2013-04-03

N.K.GUPTA

body2013
JUDGMENT : The applicant has challenged the order dated 4.10.2010 passed by the learned SDM, Mandla in criminal case No.161 (B.121) 06-07, whereby the order dated 22.6.2006 passed by the learned First Additional Sessions Judge, Mandla in criminal revision No.95/2003 was complied and the encroachment of the applicant was removed from the spot. 2. The prosecution’s case in short, is that, in the year 1981 the applicant's mother sold a piece of land having area 5,700 sq. feet to the respondent and the possession was also given. Thereafter, the mother of the applicant and the applicant sold the adjacent land to other persons. The respondent has moved an application under section 145 of the Cr.P.C. before the SDM and vide order dated 30.6.2003, the learned SDM directed that the applicant and his mother encroached the land which was in the possession of the respondent and constructed a boundary wall and therefore, that boundary wall may be removed and it was directed that the respondent be not dispossessed from her land. In criminal revision No.95/2003, the learned First Additional Sessions Judge, Mandla vide order dated 22.6.2006, confirmed the order passed by the SDM and also directed that order will be effective to the area of 5,700 sq. feet. Thereafter, the respondent filed an application for execution of the order dated 30.6.2003. The SDM directed for measurement of the disputed land but, after considering the objection raised by the respondent on various reports of Revenue Inspectors, a team of revenue officers was constituted as directed by the Collector and thereafter, the team found that the applicant encroached the land of the respondent and therefore, the SDM passed the impugned order in execution of the order dated 22.6.2006 passed by the revisionary Court. 3. I have heard the learned counsel for the parties. 4. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the order passed by the revisionary Court was not challenged further by the applicant or his mother in any superior Court and that order attained finality. Therefore, the validity of that order or the order passed by the SDM in the year 2003 shall not be considered in the present matter and therefore, the statements made by the learned counsel for the applicant against those orders cannot be considered in the present revision. Therefore, the validity of that order or the order passed by the SDM in the year 2003 shall not be considered in the present matter and therefore, the statements made by the learned counsel for the applicant against those orders cannot be considered in the present revision. It was directed by the SDM in the order dated 30.6.2003 that boundary wall constructed by the applicant be removed. Also, the revisionary Court has directed to see that the possession of the respondent be considered for the area of 5,700 sq. feet only. The grievance of the applicant is that the revenue inspectors gave various reports from time to time and those three reports were discarded by the SDM and when the report came in the favour of the respondent, it was accepted and therefore, the order passed by the learned SDM was incorrect. 5. If the entire reports and proceedings of the SDM Court is perused then, it would be apparent that the SDM vide order dated 30.6.2003 found that the applicant and his mother sold the southern part of the property, which was adjacent to the property of the respondent to one Makhija and thereafter, there was no land of the applicant or his mother remained at that place. Hence, there was no question of measurement. The revisionary Court has found that no spot map was produced by the applicant in the revision, so that the actual possession could not be ascertained. If the applicant and his mother had already sold the entire land adjacent to the land of the respondent then, there was no possibility of his land in between the land of the respondent and the land which was sold to one Makhija. If the reports given by revenue inspectors for 3 times are considered then, it would be apparent that the reports were prepared arbitrarily. They could not search the fixed point for the measurement and therefore, measurement done by the revenue inspectors was baseless. Hence, on taking objection by the respondent, the SDM discarded such reports and measurement given by the revenue inspectors. They could not search the fixed point for the measurement and therefore, measurement done by the revenue inspectors was baseless. Hence, on taking objection by the respondent, the SDM discarded such reports and measurement given by the revenue inspectors. Looking to the controversy, the Collector constituted a team to give the measurement and therefore, if that map of the measurement is perused from the record of the trial Court then, it would be apparent that, that team had not committed any error in making the measurement and it was found that the applicant and his mother encroached the property of the respondent and constructed a wall. Constructed boundary wall was found in the area of 5,700 sq. feet, which was sold to the respondent and therefore, by the impugned order, the learned SDM simply complied its own order dated 30.6.2003 and he also complied the order dated 22.6.2006 of the revisionary Court. No illegality or perversity is visible in the impugned order passed by the learned SDM. The learned SDM was not required to do anything, except to get measurement done and to execute his own order dated 30.6.2003. 6. Since no illegality or perversity is visible in the impugned order passed by the learned SDM then, there is no basis by which the revision filed by the applicant can be accepted. It is strange that the order was passed by the learned SDM against the applicant and his mother in the year 2003 and thereafter, the applicant did not knock the doors of the civil Court to get a declaratory decree in his favour because he knew that he and his mother had sold the entire land to various persons and there was no land remained of their own. However, the impugned order is executed and boundary wall is removed, therefore, no fruit can be obtained by the applicant in the present revision. He is free to move an appropriate proceeding before the civil Court, if his civil rights are violated. 7. On the basis of the aforesaid discussion, there is no basis by which the revision filed by the applicant can be accepted against the impugned order. Consequently, the present revision filed by the applicant is hereby dismissed. 8. A copy of the order be sent to the trial Court alongwith its record for information.