Naresh Rai vs Ashish Singh

Sanjay Dwivedi, J

Counsel for the petitioner is heard on the question of admission. Petitioner has filed this petition under Article 227 of the Constitution of India questioning the legality, validity and propriety of the order dated 01.10.2021 (Annexure P/10) passed by the Additional Commissioner, Jabalpur whereby the appeal preferred by the petitioner under Section 44 of M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code, 1959) against the order passed by the Sub Divisional Officer on 26.02.2018 has been rejected.

As per facts of the case, the petitioner purchased the land bearing Khasra No. 360/2, area 1.497 hectares situated at N.B. No. 431, Patwari Halka No. 43, Village Sahawal, Tehsil Gadarwara, District Narsinghpur through registered sale deed dated 17.01.2011 and since then he is in possession of the said land.

After purchase of the land, an application for mutation has been filed by the petitioner wherein the respondent has raised written-objection before Tehsildar and after considering such objection, the Tehsildar rejected the objection and allowed the application for mutation in favour of the petitioner and prepared Bhoo-Adhikar Rin Pustika.

The respondent thereafter moved an application for demarcation of the land and on his application, a revenue case has been registered vide Revenue Case No. 10-A/12 Year 2013-14 in which vide order dated 11.06.2014, the order of demarcation of the land of the respondent has been passed and that order was based upon the demarcation conducted in presence of other villagers and adjoining land owners including the petitioner and the report prepared accordingly in which it is found that petitioner has encroached the land of the respondent, area measuring 0.745 hectares. In pursuance to the said demarcation report, the respondent moved an application under Section 250 of the Code, 1959 and thereafter the Tehsildar, Gadarwara registered a revenue case as Case No. 70A/2015-2016 wherein the present petitioner has submitted a reply and the Tehsildar vide order dated 25.04.2017 passed an order directing the petitioner to remove the unauthorized possession over the land of the respondent.

The order dated 25.04.2017 was again assailed by the petitioner by filing an appeal before the Sub Divisional Officer and the said appeal was also rejected by the Sub Divisional Officer vide order dated 26.02.2018 mentioning therein that the demarcation was conducted in accordance with law, that too in presence of the petitioner and, therefore, on the basis of the demarcation report since the petitioner is in unauthorized possession of the land of the respondent, therefore, under the provisions of Section 250 of the Code, he is required to remove the unauthorized possession from the land measuring 0.745 hectares of Khasra No. 452. The said order was again assailed by the petitioner by filing Second Appeal under Section 44 of the Code, 1959 before the Additional Commissioner, Jabalpur Division, Jabalpur and the said appeal has also been dismissed by the Additional Commissioner by the impugned order dated 01.10.2021, affirming the order passed by the Tehsildar and the Sub Divisional Officer. Hence, this petition.

Learned counsel for the petitioner submits that the petitioner is assailing the order mainly on the ground that the respondent was aware of the fact that the land has been purchased by the petitioner in the year 2011 and since then he is in possession of the land but the application under Section 250 of the Code, 1959 has been filed by the respondent in the year 2014 and as per the provisions of Section 250 of the Code, 1959, the application should have been filed before the Tehsildar by the Bhoomi-swami, who has been dispossessed within six months from the date of dispossession and as such, the application of the respondent is not within time and the same should have been dismissed on the ground of limitation and no order could have been passed on the said application filed by the respondent under Section 250 of the Code, 1959.

However, submission of learned counsel for the petitioner is without any substance for the reason that the cause of action accrues in favour of the respondent from the date of demarcation. Here, it is a case in which at the time of mutation, the respondent raised an objection but the said objection was rejected by the revenue authority and thereafter, the respondent moved an application for getting the land demarcated and thereafter due demarcation was done after following the procedure and that too in presence of present petitioner and other adjoining land owners. The order of demarcation was passed by the Tehsildar on 11.06.2014 and thereafter an application under Section 250 of the Code was filed and that was well within limitation. It is also not disputed that the demarcation order has not been assailed by the petitioner in any of the higher forum and the same has attained finality.

It is also pertinent to mention here that the order of demarcation is the foundation of application filed by the respondent under Section 250 of the Code, 1959 and the revenue authority after considering the said demarcation report came to the conclusion that it is the petitioner who has unauthorizedly possessed the land of the respondent and, therefore, under Section 250 of the Code, 1959, an order of removal of unauthorized possession has been passed.

Considering the consistent view taken by the revenue authority after considering the record, I am of the opinion that under Article 227 of the Constitution of India, when this Court does not find any patent illegality in the order of the revenue authority or any jurisdictional error, interference at this stage is not permissible.

In view of the law laid down by the High Court in case of Murlidhar and another Vs. Board of Revenue, M.P. and Others reported in 2013(3) M.P.L.J. 184 and Shree Vaishnav Sahayak Trust, Indore Vs. State of M.P. and Others reported in 2015(2) M.P.L.J. 561, limitation for initiating proceeding under Section 250 of the Code, 1959 starts from the date of order of demarcation and as such, objection raised by the petitioner has no substance. The petition, therefore, is without substance and the submission made by learned counsel for the petitioner suffers from any legal foundation.

Accordingly, the petition is hereby dismissed.