Narayan vs Padam And Others

Pranay Verma, J

With the consent of learned counsel for the parties, the matter is finally heard.

This petition under Article 226 of the Constitution of India has been preferred by the petitioner being aggrieved by the order dated 11.08.2025 (Annexure P/8) passed by the Commissioner, Indore Division, Indore reversing the order dated 10.10.2023 (Annexure P/4) passed by the Sub Divisional Officer (Revenue), Badwah, District Khargone as well as the order dated 04.04.2023 (Annexure P/2) passed by the Tehsildar, Tehsil Sanawad, District Khargone and allowing the application under Section 250 of M.P. Land Revenue Code, 1959 (for short 'the Code') preferred by respondent No.1.

The facts in brief are that respondent No.1 made an application before the Tehsildar for demarcation of his land bearing Survey No.223, area 0.575 hectare, Gram Tajpura, Tehsil Sanawad, District Khargone. On the application, demarcation was carried out in which illegal possession of the petitioner over the disputed land was found. Respondent No.1 requested the petitioner to deliver possession of the said land to him, but he refused to do so.

Thereafter, respondent No.1 filed an application under Section 250 of the Code before the Tehsildar for obtaining possession of the disputed land which was dismissed by him by order dated 10.10.2023 by observing that in the cross-examination of witnesses of respondent No.1, it has been admitted that respondent No.1 has been in possession of the disputed land as it is ever since the time of purchase by him. It was also held that the demarcation which was carried out was not legal. Being aggrieved by the said order, respondent No.1 preferred an appeal before the Sub Divisional Officer which was dismissed by him by order dated 10.10.2023. Both the aforesaid orders have been set aside in appeal having been preferred by respondent No.1 by the Commissioner by the impugned order holding that the legality of the proceedings under Section 129 of the Code cannot be examined in proceedings under Section 250.

Learned counsel for the petitioner has submitted that the demarcation proceedings which had been carried out by the Tehsildar earlier were wholly illegal and erroneous. They were in contravention to the provisions of Section 129 of the Code and the Rules made in that regard. The witnesses of respondent No.1 have admitted that respondent No.1 has been in possession of the disputed land as it is ever since the time of purchase by him meaning thereby that he has not been forcibly dispossessed by the petitioner. The findings recorded by the Tehsildar and the Sub Divisional Officer have not been taken into consideration. During pendency of the second appeal, respondent No.1 entered into a compromise with adjacent landowners which is an attempt by him to tamper with evidence. The disputed land is part of common passage and therefore no exclusive ownership can be allotted to anyone. The land sold to the petitioner is already less in area compared to what is mentioned in the registered sale deed and if the impugned order is complied with, then he will have lesser land under his ownership and possession which has been purchased by him by paying adequate consideration. It is hence submitted that the impugned order be set aside.

Learned counsel for respondent No.1 has supported the impugned order and has submitted that the petition deserves to be dismissed.

I have considered the submissions of the learned counsel for the parties and have perused the record.

In Murlidhar and Another Vs. Board of Revenue M.P. and Others, 2013 (3) MPLJ 184 it has been categorically held by this Court that in case the order under Section 129 of the Code is not challenged by preferring appeal or revision under Section 44 or Section 50 of the Code, the same becomes final and if on the basis of the same, any action is taken that cannot be interfered with. It has been held as under :-

"15. As far as the second ground is concerned, the proceeding under section 129 for demarcation was conducted by the Tahsildar and had attained finality. If the petitioners had any grievance with regard to the said order they were required to challenge the same in accordance to law by filing an appeal or revision against the said order by invoking the provisions of section 44 or section 50 of M.P. Land Revenue Code. If the petitioners felt that the order passed under section 129 is without notice to them and without hearing them, they should have challenged the said order in accordance to law. Having not done so, the order becomes a final order and based on the same if the possession of the respondents are restored, no error is committed by the Board of Revenue or the Additional Commissioner. That apart, it is a case of the petitioners that in the proceeding held under section 129 notice was not issued to them, however, the finding recorded is contrary and it shows that in spite of notice petitioner No. 1 did not appear and petitioner No. 2 did not receive the notice. Be it as it may be, once the order under section 129 had attained finality and based on the same action is taken, I see no reason to interfere into the matter."

In the present case also, the proceedings under Section 129 of the Code have not been challenged by the petitioner in accordance with the provisions thereof. If the petitioner felt that the demarcation proceedings are illegal, he ought to have applied before the Sub Divisional Officer for challenging the same. If his challenge had been negatived by the Sub Divisional Officer, he could have challenged the same further as provided under the law. However, it does not appear that the demarcation proceedings carried out at the behest of respondent No.1 were ever challenged by the petitioner. The same hence attained finality. On strength of such demarcation, application under Section 250 of the Code was filed by respondent No.1 before the Tehsildar in which legality of proceedings of demarcation could not have been entertained. Since the petitioner has not challenged the demarcation proceedings, the Tehsildar and the Sub Divisional Officer could not have entered into the legality of the same and dismissed the application of respondent No.1 which error has rightly been corrected by the Commissioner by the impugned order.

Even if the witnesses of respondent No.1 have admitted that respondent No.1 is in possession of his land in the same manner as he was ever since it was purchased by him, it would not make any difference. The dispute is as regards illegal dispossession. If upon purchase of land, respondent No.1 was put in possession of part of the same and has continued to be in such possession ever since then, it cannot be said that his title is over only that land. If land was purchased by him in addition to the land over which he was put in possession but he was not aware of that land and became aware only after conducting of demarcation proceedings it would still be a case of wrongful dispossession attracting the provisions of Section 250 of the Code. Respondent No.1 would be deemed to have acquired its knowledge only upon demarcation. In any case, respondent No.1 has stated that he did not get his land demarcated at the time of its purchase but got the same demarcated only subsequently. His illegal dispossession became known to him as well as petitioner then only.

Thus, in view of the aforesaid, the Commissioner has rightly allowed the application preferred by respondent No.1 under Section 250 of the Code on the basis of the demarcation carried out under Section 129. No fault is found with the said order which is accordingly affirmed, as a result of which the petition is dismissed.