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2020 DIGILAW 121 (MP)

Nanakram And Another v. Jamuna Prasad

2020-01-22

NANDITA DUBEY

body2020
JUDGMENT Nandita Dubey, J. - Both the aforesaid writ petitions are heard and decided analogously by this common order. 2. The facts, in brief, taken from W.P. No.11490/2017 are that respondent has filed an application under Section 250 of the M.P.Land Revenue Code (hereinafter referred to as "the Code") seeking possession of land ad-measuring 4 decimal and 0.58 acre that was found in illegal possession of present petitioners in the demarcation conducted on 06.06.1999 and 07.06.1999. The present petitioners in the reply to the said application contended that the alleged demarcation is irregular and illegal as no notice of demarcation was ever served on the petitioners. The Tahsildar, after considering the statements of witnesses, vide order dated 20.12.2005 rejected the application of the respondent. 3. Being aggrieved, the respondent challenged the aforesaid order before Sub-Divisional Officer. The appellate authority, consider that the record indicates that notices were served on the respondents allowed the appeal holding that in proceeding under Section 250 of the Code, demarcation under Section 129 of the Code cannot be questioned. 4. Being aggrieved, the petitioners approached the second appellate authority. The Addl. Commissioner vide order dated 20.02.2009 allowed the appeal and set aside the order of Sub-Divisional Officer. The respondent, thereafter preferred a revision challenging the order dated 20.02.2009 before the Board of Revenue. The question before the Board of Revenue was "whether in a proceeding under Section 250 of the Code, demarcation under Section 129 of the Code can be challenged ?." There being a divergent opinion in the matter, a reference was made to a Division Bench of the Board of Revenue. The reference was answered by order dated 18.03.2016 wherein it was held that ordinarily demarcation cannot be question in a proceeding under Section 250 of the Code. However, if prima facie demarcation suffers from gross irregularity and illegality, then the same can be interfered with in a proceeding under Section 250 of the Code. The single Member of the Board of Revenue thereafter allowed the revision and set aside the order dated 20.02.2009 of Addl. Commissioner directing possession to be restored to the respondents. Aggrieved by the same, the petitioners are before this Court. 5. The single Member of the Board of Revenue thereafter allowed the revision and set aside the order dated 20.02.2009 of Addl. Commissioner directing possession to be restored to the respondents. Aggrieved by the same, the petitioners are before this Court. 5. Submission of Shri Aditya Khampariya, learned counsel appearing for the petitioners is that the Board of Revenue ought to have decided the matter in the light of answer given by the Division Bench of the Board of Revenue, as the demarcation proceedings dated 06.06.1999 and 07.06.1999 were prima facie found to be illegal by the Tahsildar. 6. Per contra, Shri Ashish Shroti, learned counsel appearing for the respondent has supported the order of Board of Revenue. He has contended that the Board of Revenue, after considering the record, has found that demarcation was proper and the notice was served on the petitioners, hence, no interference is required, and prayed for dismissal of the petitions. It is further argued that any order passed under Section 129 of the Code cannot be challenged in proceeding under Section 250 of the Code. Reliance is placed on a decision of this Court in Murlidhar and another vs. Board of Revenue and others, (2013) 3 MPLJ 184 . 7. I have heard learned counsel for the parties and perused the record. 8. A perusal of order dated dated 20.12.2005 passed by Tahsildar reveals that the Tahsildar, on the basis of the statements of witnesses, has held that notice was not served on the petitioners nor they were present at the time of demarcation. The Sub-Divisional Officer, on the other hand, on the basis of Naksha Mauka has found that notice was properly served. In the impugned order, the Board of Revenue, after perusing the record, has mentioned that there is no illegality in the demarcation and the application under Section 250 of the Code has been found within the time limit. However, it has been observed that the demarcation of the land of petitioners was not done. Copy of order sheet and demarcation report filed as Annexure P/10, with the petition reveals that in the year 2000 the petitioners i.e.the adjoining land owners of Sy. No. 282/3 have filed application for demarcation of their land before the Tahsildar, Timarni, who further directed the R.I./ Patwari of Halka No.27 to submit his report within a week after demarcation of petitioners' land. No. 282/3 have filed application for demarcation of their land before the Tahsildar, Timarni, who further directed the R.I./ Patwari of Halka No.27 to submit his report within a week after demarcation of petitioners' land. As per the report dated 19.06.2000 of R.I./Patwari and Panchnama, demarcation of the land was not possible as no permanent boundary marks/survey marks were available. In view of the aforesaid report,and the observation of Board of Revenue that demarcation of respondent's land was not done, the legality of earlier demarcation proceedings dated 06.06.1999 and 07.06.1999 become highly doubtful. 9. Admittedly, petitioners and respondent are adjoining land owners. The Revenue Inspector performing the work of demarcation of land/plot is required to first ascertain whether there are permanent marks as per Section 124 of the Code or not and in absence of such boundary marks, he is required to ascertain the correct boundaries of nearby/adjoining survey numbers so as to protect the interest of adjoining land owners, who are necessary and interested parties, and only after ascertaining the boundaries of such lands from three sides he should submit his report. The petitioners and the respondent are having adjoining lands, even if demarcation of respondent is taken to be proper, but if the petitioners were found in possession of the respondent's land, then it was the duty of the authority to demarcate the land of petitioners also which has not been done as is clear from the impugned order. 10. It is pointed out by the learned counsel for the petitioners that in pursuant to order passed by the Board of Revenue, the Tahsildar,Rahatgaon vide order dated 05.08.2017 directed to restore the possession of the land to respondent, which was restored to the respondent as emerges from Annexures NA/1 and NA/2 on 18.08.2017. It is stated that this order/proceeding was done in violation of the interim order of status quo dated 08.08.2017 passed by this Court in present writ petition. Therefore, a contempt petition was filed against the Tahsildar, Rahatgaon, pursuant to which possession of land is restored to the petitioners. It is submitted that the petitioners have also filed a civil suit against the respondent seeking permanent injunction. Be that as it may, the fact remains that the order of demarcation under Section 129 of the Code has not been challenged by the petitioners till date. 11. It is submitted that the petitioners have also filed a civil suit against the respondent seeking permanent injunction. Be that as it may, the fact remains that the order of demarcation under Section 129 of the Code has not been challenged by the petitioners till date. 11. The order under Section 129 of the Code has attained finality and based on the same, an action under Section 250 of the Code has been taken. The only recourse left to the petitioners is to challenge the order of demarcation passed under Section 129 of the Code. If the petitioners feel that the order passed under Section 129 of the Code is without notice and without giving an opportunity of hearing to them, they should have challenged the said order, in accordance with law, by filing an appeal or revision against the said order by invoking the provisions of Section 44 and 50 of the Code as held in Murlidhar and another (supra). Having not done so, the order under Section 129 of the Code has attained finality and on the basis of the same, if direction for restoring the possession of the respondents is made, no fault could be found with the impugned order. 12. In view of the facts and circumstances, the petitions are dismissed. However, a liberty is extended to the petitioners to either challenge the order under Section 129 of the Code on all the grounds available to them or to apply afresh for demarcation of their lands. If such an application is filed, the competent authority shall decide the same after giving notice and opportunity of hearing to all the concerned/interested adjoining land owners. No order as to costs. 13. A photo copy of this order be also kept in the record of W.P. No. 11497/2017.