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Madhya Pradesh High Court · body

2015 DIGILAW 31 (MP)

State of M. P. v. Rajendra Kumar Goyal

2015-01-08

M.C.GARG

body2015
JUDGMENT 1. This second appeal under section 100 CPC has been filed against the judgment and decree dated 5.4.2005 passed by 2nd Additional District Judge in Civil Appeal No.62A/2005 reversing the judgment and decree dated 9.2.2006 passed by 2nd Civil Judge Class II in Civil Suit No.36A/2004. 2. This appeal is admitted on the following substantial question of law : “As to whether the provision of section 248 of the M.P. Land Revenue Code was not applicable to the municipal area or not?” With the consent of parties, matter is finally heard. 3. The trial Court dismissed the suit, but in the first appeal, the appellate Court allowed the appeal filed by the respondents holding, that the suit filed by the respondent/plaintiff was maintainable as provisions of section 248 were not applicable to the municipal area. 4. It has been brought to our notice by the counsel for appellant/State that in a judgment passed by this Court in case of Rashid Khan and another v. State of M.P. and others reported in 2011 RN 406 , where it has been categorically held that section 248 of M.P. Land Revenue Code is applicable even in municipal area, which is based upon the judgment of Hon'ble apex Court where a Division Bench judgment of this Court was reversed. Para 10 of the judgment is reproduced herein : “So far as the contention of learned counsel for the appellants that since the land is in the Municipal area, the provisions of section 248 of the Code are not applicable is concerned, the entire argument is based on the pivot of dictum laid down by the Division Bench of this Court in case of Sind Mahajan (supra) which has been reversed by the Supreme Court in case of State of M.P. and another v. Sind Mahajan Exchange Ltd. reported in 1999 RN 328. Hence this contention cannot be accepted that in the Municipal area the provisions of section 248 of the Code are not attracted.” 5. At this stage, learned counsel for the respondent submits that their grievance was not with respect to land forming part of survey No.1175,whereas reading of plaint itself shows that the respondent who has purchased the land forming part of survey No.1174 had claimed that the land purchased by them was being shown as part of survey No.1175. 6. At this stage, learned counsel for the respondent submits that their grievance was not with respect to land forming part of survey No.1175,whereas reading of plaint itself shows that the respondent who has purchased the land forming part of survey No.1174 had claimed that the land purchased by them was being shown as part of survey No.1175. 6. The respondents submits that they are not claiming any interest in the land forming part of survey No.1175 measuring 130×60 ft and if the appellant wishes to take steps about possession of that part, he will have no objection in that regard. 7. On the basis of statement made by learned counsel for the respondent and the law laid down by the apex Court, appeal stands disposed of. 8. There is no order as to cost.