Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 222 (MP)

Rajveer Singh v. Babulal

2017-02-10

ROHIT ARYA

body2017
ORDER 1. In this writ petition under Article 227 of the Constitution of India, petitioner has approached this Court challenging the legality, validity and propriety of the order dated 5.8.2016 passed in Case No.2203-1/2016 Revision. 2. Facts relevant and necessary for disposal of this writ petition are that the respondents had filed civil suit seeking a declaration as Bhumiswami and permanent injunction in respect of parcels of agricultural land falling in different survey numbers as mentioned in paragraph 1 of the plaint situated in village Karola, Tahsil Morena vide Civil Suit No.90A/2003. The suit was though dismissed by IIIrd Civil Judge, Class-I, Morena vide judgment and decree dated 23.9.2005, however, it was ordered that the plaintiffs/respondents shall not be dispossessed from the suit land except by due process of law. 3. The aforesaid judgment and decree passed by the trial Court has been maintained in First Appeal No.3-A/2007 decided on 21.9.2007, accordingly, decree was drawn on 23.9.2007. Second appeal preferred against the aforesaid judgment vide Second Appeal No.7 of 2008 has been dismissed by judgment and decree dated 28.8.2009. The Civil Appeal No.3257 of 2011 arising therefrom has also been dismissed vide order dated 11.9.2014 by the Hon’ble Supreme Court. As such, the aforesaid judgment and decree passed by the trial Court has attained finality. 4. It appears that the successor-in-interest of the original defendant, the petitioner has filed an application under section 250 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as ‘the Code’) seeking removal of the possession of the plaintiffs/respondents as they are in authorized occupation, before the Tahsildar. Mauza Karola, District Morena. The Tahsildar vide order dated 30.9.2014 has ordered for removal of the possession from the respondents/plaintiffs and restoration of possession in favour of the petitioner. 5. Being aggrieved by the order passed by the Tahsildar, the respondents/plaintiffs have filed an appeal before the Sub-Divisional Officer, Morena. Vide order dated 11.4.2015, the Sub-Divisional Officer, opined that as the petitioner did not place on record the date of dispossession, therefore, the aforesaid application was found to be not maintainable, as according to the authority, unless, the defendant was dispossessed within 2 years from the date of the application, the same was barred by time. Being aggrieved, petitioner preferred an appeal before the Additional Commissioner, Chambal Division, Morena. Being aggrieved, petitioner preferred an appeal before the Additional Commissioner, Chambal Division, Morena. Vide order dated 30.6.2016, the Additional Commissioner has set aside the order passed by the Sub-Divisional Officer and maintained the order passed by the Tahsildar. 6. The present respondents/plaintiffs filed a revision petition before the Baord of Revenue. The Board of Revenue by the impugned order has set aside the order passed by the Additional Commissioner and restored the order passed by the Sub-Divisional Officer with the reasoning that unless the fact of date of dispossession was brought to the notice of the competent authority, the proceedings under section 250 of the Code could not have been initiated. 7. Learned senior counsel appearing for the petitioner taking exception to the order passed by the Board of Revenue with reference to provision contained under section 250 (1-a)(a) & (b) of the Code which reads as under:- 250. Reinstatement of Bhumiswami improperly dispossessed.- (1) ...... (1-a) if a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Bhumiswami to the use of which such person has ceased to be entitled under any provision of this Code, the Bhumiswami or his successor-in-interest may apply to the Tahsildar for restoration of the possession :- (a) in case of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 - (i) before the 1st July, 1978 in cases of unauthorised dispossession prior to the 1st July, 1976; and (ii) in any other cases within five years from the date of dispossession or from the date on which the possession of such person becomes unauthorised, as the case may be; (b) in case of a Bhumiswami not covered by clause (1), within two years from the date of dispossession or from the date on which possession of such person becomes unauthorised, as the case may be. (Emphasis supplied) submits that the period of two years is to be reckoned from the date on which the possession of such person becomes unauthorized in the instant case. 8. It is contended that the possession of the respondents/plaintiffs became unauthorized on the date judgment and decree was passed by the trial Court on 23.9.2005 (supra). (Emphasis supplied) submits that the period of two years is to be reckoned from the date on which the possession of such person becomes unauthorized in the instant case. 8. It is contended that the possession of the respondents/plaintiffs became unauthorized on the date judgment and decree was passed by the trial Court on 23.9.2005 (supra). However, as the said judgment was carried to appellate Courts and proceedings being continuation of the suit, the same attained finality only after dismissal of second appeal on 28.8.2009 (supra) and further dismissal of civil appeal by the Hon’ble Supreme Court on 11.9.2014 (supra). It is further contended that the petitioner has filed the application under section 250 of the Code well within two years period from the date of judgment passed by this Court on 28.8.2009 (supra), therefore, the application ought not to have been held to be beyond the period of two years. Consequently, the Sub-Divisional Officer and the Board of Revenue have fell in error having ignored the aforesaid provision contained under section 250 of the Code. Hence, the impugned orders deserves to be set aside. 9. Per contra, learned counsel for the respondents contends that the present petitioner since was not the original defendant, therefore, he has no authority to file the application under section 250 of the Code. That apart, it is only the date of judgment and decree passed by the trial Court that is material for reckoning the period of limitation. Hence, the application, even otherwise, was not maintainable. Under such circumstances, no fault can be found with the order passed by the Sub-Divisional Officer as affirmed by the Board of Revenue, accordingly prayed for dismissal of the writ petition. 10. In rejoinder, the learned senior counsel contends that as a matter of fact the present petitioner has been added as party-respondent No.4 before the first appellate authority, therefore, the petitioner was very much party to the appellate orders. Heard. 11. A careful perusal of the aforesaid quoted provision of section 250(1) (1-a) of the Code makes it crystal clear that this provision is available either to the Bhumiswami or his successor-in-interest who may apply to the Tahsildar for restoration of possession and if any person unauthorizedly continues to be in possession of the land belonging to the Bhumiswami, such person ceased to be entitled to continue in possession under any provision of the Code. The petitioner being successor-in-interest of the original defendant is entitled to file an application under section 250 of the Code. Hence, the said objection, in the opinion of this Court cannot be countenanced. 12. Further a careful reading of section 250 (1-a)(b) quoted above, suggests that the reckoning of two years limitation also starts from the date on which the possession of such person becomes unauthorized. As the civil suit was dismissed on 23.9.2005 and the plaintiffs were held to be in unauthorized possession of the suit property, therefore, the judgment and decree passed by the trial Court is the date for reckoning the period of limitation of two years, subject of course, to the appellate proceedings as the appellate proceedings are held to be in continuity of the suit. 13. In the instant case, the First Appeal No.3A/2007 (supra), and the Second Appeal No.7/2008 (supra), arising therefrom have been dismissed and attained finality by dismissal of Civil Appeal No.3257/2011 on 11.9.2014 (supra), by the Hon’ble Supreme Court. Therefore, the aforesaid period of two years shall be recknoned from the date of dismissal of the Second Appeal No.7/2008 on 28.8.2009, as such, the application under section 250 of the Code filed by the petitioner is within two years. Under these circumstances, the reasoning assigned by the Sub-Divisional Officer and the Board of Revenue as against the maintainability of the application under section 250 of the Code on the ground of limitation is found to be fallacious in nature and cannot be countenanced. 14. Consequently the impugned orders passed by the Board of Revenue dated 5.8.2016 and the Sub-Divisional Officer dated 30.9.2014 are hereby set aside. The writ petition stands allowed and dispossed of. No order as to cost.