Illegal possession of land and computation of damages under Section 38-A of the MP Land Revenue Code.

N.K. Mody, J.

1. Being aggrieved by the judgment and decree dated 21-09-04 passed by Ilnd Additional District Judge, Dewas in Civil Suit No. 3-A/03, whereby the suit filed by the appellant for compensation of Rs. 2,50,000/- was dismissed, the present appeal has been filed.

2. Short facts of the case are that the appellant filed a suit for realisation of Rs. 2,50,000/- as compensation on 10-05-01 alleging that respondent is recorded Bhumi Swami of the land bearing various survey numbers measuring 1.589 hectors situated at Tehsil and District Dewas. It was alleged that respondent filed a petition under Section 168 of MP. Land Revenue Code, which shall be referred hereinafter as MPLRC, in the Court of SDM, Dewas alleging that appellant is in occupation of the land as lessee. It was alleged that the said petition filed by the respondent was registered as case No. 232/B-121/98-99 and was allowed vide order dated 31-07-2000. It was alleged that against the order dated 31-07-2000 passed by SDM, Dewas, whereby appellant was directed to handover the possession of the agricultural property mentioned herein above, appellant filed an appeal alongwith an application for staying the operation of the order before Collector, Dewas. It was alleged that the appeal filed by the appellant was transferred to ADM, Dewas, wherein it was directed to call the record from the Court of SDM, Dewas. It was alleged that the record was not sent by SDM, Dewas. Further case of the appellant was that in the order dated 31-07-2000 it was directed that notice be issued to the appellant under Section 38 of MPLRC for handing over the possession of the suit property within a period of 24 hours, failing which action be taken under Section 38 for removal of the possession of the appellant. It was alleged that the notice was never served on the appellant, however it was served on one Kallu, brother of the appellant, who was not the member of the family of the appellant. It was alleged that without following the procedure laid down under Section 38 possession of the land in dispute alongwith the house and the standing crops was taken by the respondent. It was alleged that the house, which was constructed by the appellant was demolished by the respondent and the standing crops were also cut down by the respondent.

3. Further case of the appellant was that appellant constructed the house of RCC, which was containing six bedrooms measuring 25 feet x 40 feet, valuing Rs. 90,000/-. It was alleged that there was a cattle shade, which was also demolished by the respondent. In the suit appellant claimed a sum of Rs. 2,50,000/-, breakup of which is as under:

Rs. 90,000/- Towards demolition of house. Rs. 10,000/- Towards demolition of cattle shade. Rs. 50,000/- Towards costs of the crops. Rs. 1,00,000/- Towards loss of standing crops.

4. It was alleged that cause of action has accrued to the appellant with effect from 04-08-2000, when the possession was taken by the respondent.

5. The suit filed by the appellant was contested by the respondent by filing written statement, wherein the plaint allegations were denied. However it was admitted that the petition was filed by the respondent under Section 168 of MPLRC was allowed holding that the land in dispute belongs to the respondent and the land use of the suit property is graveyard i.e., other than agricultural purpose, upon which agriculture was not permitted and appellant is using the land for agricultural purposes as encroacher, without any prior permission of the respondent. In the written statement it was also alleged that in the petition, which was decided on 31-07-2000, it was also held that the suit land was given to the appellant for cutting of grass for which appellant was liable to pay a sum of Rs. 600/- per year to the respondent. It was also held that no right has been accrued to the appellant in the suit land. In the written statement it was further alleged that in compliance of the order passed by SDM, Dewas posse