Asgar Ali vs Amna Bi

N.K. Agarwal, J.—The instant petition is directed against the order dated 22-8-2008 passed by the Board of Revenue in Revenue Case No. RN/10/R-A/70/522/2007 whereby the revision preferred by the respondent against the order of Addl. Collector, Korba, dated 26-6-2007 was allowed affirming the order passed by the SDO, Korba, and setting aside the order passed by the Tehsildar, Katghora, Distt. Korba. Brief facts of the case, as projected by the Counsel for the petitioner is that: the respondent filed an application u/s 250 of the MP/CG Land Revenue Code, 1959 (for short ''the Code'') for its possession against the petitioner inter alia on the ground that she is recorded Bhumiswami of the suit land and the petitioner has forcibly taken its possession. On demarcation the petitioner was found in possession of 0.04 dismal of disputed land. Preliminary objections were raised by the petitioner herein in reply to the above application showing that there is a house constructed upon the above land and he is in possession of the above house for more than a period of 22 years, and therefore, the Tehsildar has no right to hear the above matter and it is within the domain of Civil Court. It was further pleaded that the petitioner is in possession of the suit property since 20 years after constructing house thereupon and thus he had perfected his title by way of adverse possession.

The respondent, in her statement (Annexure P-3) has stated that in the house constructed by her, Asgar Ali is residing for a period or 15 years with her permission.

The Tehsildar, after considering the pleadings of the parties, the evidence led and the material available on record, dismissed the application holding it as not maintainable. The above order of Tehsildar was reversed by the SDO in the appeal preferred by the respondent vide order dated 25-9-2006. There against, the appeal preferred before the Addl. Collector, Korba was allowed and the order of Tehsildar was restored. There against revision was preferred by the respondent which was allowed vide order impugned. Hence this petition.

Shri Sanjay S. Agrawal, learned Counsel appearing for the petitioner would submit that in an application filed u/s 250 of the Code, it is necessary to prove forcible/unlawful dispossession of a Bhumiswami of the land. Undisputedly, it is the possession of the house constructed upon the disputed land which is in dispute in the instant case. According to the respondents evidence, she constructed the house and the petitioner is residing therein with her permission. Further, it is also not clear that when and in what manner the petitioner, dispossessed the respondent, therefore, Section 250 of the Code is has application in the facts and circumstances of the present case and order passed by the Board of Revenue is per se illegal which deserves to be set aside.

On the other hand, Shri K.A. Ansari, learned Counsel appearing for the respondent would support the order passed by the Board of Revenue and would submit that the order is well reasoned order and this Court in exercise of jurisdiction under Article 227 of the Constitution of India would not indulge in re-appreciating of the evidence and the order deserves to be upheld.

I have heard the Counsel appearing for the parties and perused the order impugned and records of the case.

Before adverting to the facts of the case, it would be appropriate to re-produce Sections 2(1)(k) and relevant parts of Section 250 of the Code which reads as under:-

(1) (k) "land" means a portion of the earth''s surface whether or not under water, and, where land is referred to in this Code, it shall be deemed to include all things attached to or permanently fastened to anything attached to such land.

Reinstatement of Bhumiswami improperly dispossessed.-

(1) For the purpose of this section and Section 250A Bhumiswami shall include occupancy tenant and Government lessee.

(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 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 Tehsildar for restoration of the possession.-

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The High Court of Madhya Pradesh in case of Krishna Kumar das and another Vs. Balramdas and others, , has observed in Para 4 of its judgment as under:-

Now, the purpose of the Code is to provide a speedy and summary remedy to a Bhumiswami dispossessed of his land. No doubt, the land is fictionally meant to include even buildings on land; but it is clearly not the intent of the Code to provide a speedy and summary remedy under the Code to a Bhumiswami dispossessed of his immovable property. The use of the word ''Bhumiswami'' in connection with the land of which he dispossessed and of which he may claim restoration of possession in Section 250 of the Code clearly shows that the speedy and summary remedy provided by the Code is to be restored when a person, who is Bhumiswami, is dispossessed of land which he holds in Bhumiswami rights and when the restoration of possession of such land is the dominant purpose. But, when the land is an appurtenance to the building and the dominant purpose of the plaintiff is to get restoration of possession of his building of which he alleges forcible dispossession, Section 6 of the Specific Relief Act would be his appropriate remedy which provides that ''if any person is dispossessed, without his consent, of immovable property otherwise than in due course of law, he or any person claiming through him may, be set up in such suit''. I am also add that buildings standing on land are fictionally made to mean land in the Code [see Section 2(k) of the Code], provided there is nothing in the subject or the context, and that consequently, when the dominant purpose of a person who also happens to be a Bhumiswami is to recover possession of his house of which he has been illegally dispossessed, his house cannot come within the fictional definition of the word, ''land'' as defined in the Code to give jurisdiction to a Tehsildar to restore him to its possession u/s 250 of the Code.

Now, reverting to the facts of the case, it is clear that the respondent had failed to prove the factum of forcible dispossession by the petitioner, when and in what manner the respondent was dispossessed and the property in dispute is Bhumiswami land. On the contrary, as per her own evidence, the respondent herself constructed the house over the suit land and gave its possession to the petitioner about 15 years ago.

By applying the above ratio of judgment of High Court of Madhya Pradesh, to which I am in respectful agreement, to the facts of the present case, it would be crystal clear that so far as property in dispute is concerned, which is house property, Section 250 of the Code has no application and the petitioner''s remedy lies in filing of Civil Suit.

The Board of Revenue went wrong in allowing the revision preferred by the respondents and has failed to consider that provisions of Section 250 of the Code are inapplicable in the present case and thus has acted without jurisdiction in reversing the order of Tehsildar and Addl. Collector. In view of above, the order impugned dated 22-8-2008, passed by the Board of Revenue, being not sustainable in law, deserves to be and is hereby set aside. However, the respondent is free to pursue his remedy before the jurisdictional Civil Court in accordance with law.