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2015 DIGILAW 207 (MP)

Vaishnav Sahayak Trust v. State of Madhya Pradesh

2015-02-19

J.K.JAIN

body2015
ORDER : JARAT KUMAR JAIN, J. 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 30.01.2014 whereby the respondent No. 3 Additional Tehsildar, Indore rejected the objections in regard to maintainability of the application under Section 250 of the M.P. Land Revenue Code (in brief "Code"). 2. Brief facts for adjudication of this matter are as under:-- "[i] The petitioner a registered Public Trust, is owner and in possession of the land survey Nos. 293, 295 and 296 admeasuring 0.279, 0.134 and 0.522 hectares respectively situated at Village Sirpur Tehsil Rau Distt. Indore. At the request of Kailash and Badrilal, the demarcation of the said land was done on 11.06.2009 and it was found that land comprised in Survey No. 295 (in brief "suit land") is within the boundary wall of petitioner Trust. After demarcation report Kailash, Badrilal and respondent No. 2 were trying to dispossess the petitioner, therefore, the petitioner Trust filed a Civil Suit No. 42-A/09 for declaration and permanent injunction in the Court of Additional District Judge, Indore. In the said suit petitioner and respondent No. 2 both have filed the applications under Order 39 Rule 1 and 2. 13th Additional District Judge, Indore by a common order dated 01.03.2013 allowed the application of the petitioner directing the respondents not to dispossess the petitioner from suit land whereas the application of the respondent No. 2 was dismissed. Against this order respondent No. 2 filed the Misc. Appeal before this Court which is pending. [ii] During the pendency of the suit respondent No. 2 preferred an application under Section 131 of the Code. Learned Additional Tehsildar, Indore vide order dated 10.08.2009 directed the petitioner that the gate be kept open to provide means of access to respondent No. 2. Being aggrieved with this order petitioner preferred W.P. No. 6598/2009 wherein on 10.09.2009 ad interim stay was granted in favour of the petitioner. Subsequently the application under Section 131 of the Code has been dismissed in non-prosecution. In the light of that order petitioner withdrew Writ Petition No. 6598/2009. [iii] Thereafter respondent No. 2 filed an application under Section 129 of the Code for demarcation of land. Ex parte order for demarcation was passed by the Tehsildar, Indore. The said order was challenged by the petitioner in W.P. No. 7480/2013. In the light of that order petitioner withdrew Writ Petition No. 6598/2009. [iii] Thereafter respondent No. 2 filed an application under Section 129 of the Code for demarcation of land. Ex parte order for demarcation was passed by the Tehsildar, Indore. The said order was challenged by the petitioner in W.P. No. 7480/2013. This Court directed that the demarcation be done in the presence of both the parties. In compliance of the order demarcation was done in the presence of petitioner and respondent No. 2. In demarcation report it was found that land comprised in Survey No. 295 is in possession of petitioner. Thereafter W.P. No. 7480/2013 was disposed off with the direction that the parties shall be at liberty to take appropriate action in accordance with law pursuant to the demarcation done by the Tehsildar. [iv] On 28.12.2013 respondent No. 2 filed an application under Section 250 of the Code before the respondent No. 3/Additional Tehsildar, Indore for obtaining possession from the petitioner of the land which is found in possession of the petitioner as per demarcation report. The petitioner resisted the application on two grounds (i) the application is time barred; and (ii) during the pendency of the civil suit, Revenue Court has no jurisdiction to entertain application under Section 250 of the Code. Additional Tehsildar vide order dated 30.01.2014 rejected the objections holding that the application is well within time and the Revenue Court is free to proceed even during pendency of civil suit. Being aggrieved with the order the petitioner preferred this petition." 3. Learned Counsel for the petitioner submits that there was no direction in the order dated 20.12.2013 passed in W.P. No. 7486/2014 to initiate proceedings under Section 250 of the Code but the respondent No. 2 filed the application scandalizing the order. Since the suit for declaration and injunction of the suit land is pending and the order passed by the Civil Court is binding on Revenue Court, therefore, during the pendency of Civil Suit an application under Section 250 of the Code is not maintainable. 4. Learned Counsel for the petitioner submits that the impugned order is an interlocutory order, therefore, no appeal is maintainable against the impugned order. The order is illegal and is contrary to settled law and is without jurisdiction, therefore, the High Court may exercise writ jurisdiction under Article 226 and 227 of the Constitution. 4. Learned Counsel for the petitioner submits that the impugned order is an interlocutory order, therefore, no appeal is maintainable against the impugned order. The order is illegal and is contrary to settled law and is without jurisdiction, therefore, the High Court may exercise writ jurisdiction under Article 226 and 227 of the Constitution. In such circumstances on the ground of availability of alternative remedy present Writ Petition cannot be dismissed. Alternative remedy is a rule of discretion and not one of compulsion, thus, the Writ Petition under Article 226 and 227 is maintainable. 5. Learned Counsel for the petitioner submits that the Bhumiswami can apply for restoration of possession when he has been un-authorizedly and illegally dispossessed and such application can be filed within 2 years from the date of dispossession u/s. 250 of the Code moreover when the civil suit is pending the revenue court cannot pass order for restoration of possession. The petitioner is in possession of the suit land since 1923-26. Whereas the respondent No. 2 filed the application on 28.12.2013 i.e. after lapse of about 90 years. Thus the application is apparently time barred. Admittedly concerning the suit land petitioner has filed the civil suit for declaration and injunction and the Civil Court has granted temporary injunction against the respondent No. 2. The decision of Civil Court is final whereas the decision of Revenue Court will not operate as res judicata in such a civil suit as held by the Full Bench of this Court in the case of Ramgopal Kanhaiyalal Vs. Chetu Batte, AIR 1976 MP 160 . In such circumstances the application under Section 250 of the Code is not maintainable at all but by the impugned order learned Additional Tehsildar, Indore rejected the objections of the petitioner. 6. Per contra learned Counsel for the respondent submits that in the order dated 20.12.2013 passed in W.P. No. 7480/2013 the liberty was given to the respondent No. 2 for taking appropriate action in accordance with law pursuant to demarcation done by the Tehsildar. Thus, in the light of the order respondent No. 2 has filed an application under Section 250 of the Code therefore it is not correct that the respondent No. 2 filed the application by scandalizing the order of this Court. 7. Thus, in the light of the order respondent No. 2 has filed an application under Section 250 of the Code therefore it is not correct that the respondent No. 2 filed the application by scandalizing the order of this Court. 7. Learned Counsel for the Respondents submits that against the impugned order the petitioner has alternative remedy of filing appeal or revision u/s. 44 and 50 of the Code. Thus the Petition is not maintainable and is liable to be dismissed solely on this ground. 8. It is contended by learned counsel that merely because order dated 01.03.2013 was passed granting injunction in favour of petitioner and refusing injunction to the respondent No. 2 will not affect the proceedings under Section 250 of the Code. An application under Section 250 of the Code is a judicial proceedings seeking relief for possession and which was never injuncted by the Civil Court. The impugned order is interlocutory order and is not at all going to affect the merits of the case. 9. Learned Counsel for the respondent No. 2 further submits that in demarcation report dated 24.07.2013 it was found that the petitioner is in possession of the suit land then immediately the respondent No. 2 has filed the application under Section 250 of the Code. Thus the application is within time. Therefore there is no substance in the petition, it deserves to be dismissed. 10. I have heard learned Counsel for the parties and perused the record. 11. Firstly I have considered the objection in regard to maintainability of the petition. This Court in the matter of Shyama Prasad Datta and Others Vs. Arun Kumar Vasudeo and Others, (2010) ILR (MP) 1588 held that against the order of rejection of application under Order VII Rule 11 CPC though revision could be maintainable but High Court has in exercise of its powers under Article 226/227 has to strike with the sword of its power against each and every illegality. 12. This Court in the case of Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of Madhya Pradesh and Others, (2009) 1 MPLJ 443 held that petition once admitted could not be dismissed on the ground of availability of alternative remedy. 13. Hon'ble Apex Court in the case of M.P. State Agro Industries Development Corporation Ltd. and Another Vs. 12. This Court in the case of Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of Madhya Pradesh and Others, (2009) 1 MPLJ 443 held that petition once admitted could not be dismissed on the ground of availability of alternative remedy. 13. Hon'ble Apex Court in the case of M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan, (2007) 10 SCC 88 held as under:-- "The Rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, inspite of availability of an alternative remedy, a Writ Court may still exercise its discretionary jurisdiction of judicial review, in atleast three contingencies, namely (i) where the writ petition seeks enforcement of the fundamental rights, (ii) where there is failure of principal of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar." 14. In the light of the aforesaid precedents I am of the view that the petition is maintainable even if the alternative remedy of filing revision is available to the petitioner. 15. Now I have considered whether this Court while deciding the earlier Writ Petition No. 7480/2013 on 20.12.2013 directed to file an application u/s. 250 of the Code. While deciding the aforesaid petition this Court gave liberty to the parties to take appropriate action in accordance with law pursuant to the demarcation done by the Tahsildar. It is nowhere directed that the respondent No. 2 can file an application under Section 250 of the Code for obtaining possession, but the respondent No. 2 filed the application under Section 250 of the Code mentioning that the application is filed in compliance with order passed by this Court on 20.12.2013 in W.P. No. 7480/2013. Thus it is clear that the respondent No. 2 has misconstrued the order passed by this Court. 16. Now I have considered that whether during the pendency of the Civil Suit for declaration and injunction an application under Section 250(2) of the Code is maintainable. 17. Thus it is clear that the respondent No. 2 has misconstrued the order passed by this Court. 16. Now I have considered that whether during the pendency of the Civil Suit for declaration and injunction an application under Section 250(2) of the Code is maintainable. 17. Full Bench of this Court in the case of Ramgopal (supra) examined the ambit and scope of Section 250 and the effect of Clause (X) of Section 257 of the Code and held:-- "Even after the revenue Court makes an order under Section 250, the aggrieved party has the remedy of filing a civil suit for establishing his title to the land and for obtaining possession of the same. The decision of the revenue Court cannot operate as res judicata in the civil suit; nor can Section 257(X) of the Code stand in the way of institution of a suit for possession of a land founded on title. What is excluded from the cognizance of a civil Court under Clause (X) of Section 257 is a suit of the type of one under Section 9 of the Specific Relief Act for restoring possession of land to a dispossessed Bhumiswami." 18. This Court in the case of Ramgopal (supra) held that without availing the remedy under Section 250 of the Code Bhoomiswami can straightway filed a suit in Civil Court for declaration of his title. In the present case the petitioner has filed the suit for declaration and possession in regard to suit land and the Civil Court has granted temporary injunction in favour of the petitioner. In such a situation the revenue Court while exercising the jurisdiction under Section 250 of the Code cannot grant any relief i.e. cannot restore the possession to the respondent No. 2. Thus the application u/s. 250(2) of the Code is not maintainable when the civil suit has already been filed. 19. Besides the aforesaid, the material facts are missing in the application filed u/s. 250 of the Code. It is not averred that the respondent No. 2 is a Bhoomiswami of suit land and on which date he has been un-authorizedly dispossessed by the petitioner from the suit land. And he has also not mentioned the date on which cause of action accrued to him in order to calculate limitation. Thus in absence of material averments the application u/s. 250 of the Code is not tenable. 20. And he has also not mentioned the date on which cause of action accrued to him in order to calculate limitation. Thus in absence of material averments the application u/s. 250 of the Code is not tenable. 20. In the present case on 11.6.2009 the demarcation was conducted then first time it was disclosed that petitioner is in possession of suit land. Subsequently this fact was confirmed by demarcation report dated 24.7.2013. The limitation for filing application starts from the date of demarcation i.e. 11.6.2009. Thus the application for restoration of possession can be filed within two years i.e. before 10.6.2011 whereas the application u/s. 250 of the Code was filed on 28.12.2013. Thus the application is apparently time barred but the learned Additional Tahsildar recorded incorrect finding that the limitation will start from 24.7.2013. 21. The finding of the learned Additional Tahsildar that the application under Section 250 of the Code is within limitation and when there is no injunction against the revenue Court, in such a situation the revenue Court is free to proceed under Section 250 of the Code is incorrect and illegal. Thus the revenue Court has committed a patent error which is manifest and apparent from the face of record which has resulted in gross injustice. Moreover the learned Additional Tahsildar assumed jurisdiction to proceed u/s. 250 of Code when there is an injunction order in favour of the Petitioner by a Civil Court and the application of the Respondent has already been dismissed by the Civil Court. Thus the order passed by the Additional Tahsildar is set aside. Consequently the petition is allowed.