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IN THE HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Rajveer Singh v. Babulal and others
Writ Petition No.5907 of 2016 (Gwalior); against order dated 5.8.2016 passed by the Board of Revenue M.P. in Revision No.2203-I/2016; Decided on 10.2.2017.
(1) Land Revenue Code, 1959 (M.P.) -- S.250(1)(i-a) -- right to application under -- Bhumiswami or his successor-in-interest has right to file application -- petitioner also joined as respondent No.4 before first appellate authority in civil proceedings -- he has right to file application -- objection about locus of petitioner cannot be countenanced.
Held : The petitioner being successor-in-interest of the original defendant is entitled to file an application under section 250 of the Code. Hence, the said objection, in the opinion of this Court cannot be countenanced.
(2) Land Revenue Code, 1959 (M.P.) -- S.250(1)(b) -- starting point of limitation -- civil suit for declaration of Bhumiswami rights dismissed -- such decree upheld upto Supreme Court and attained finality -- application within two years from judgment of second appellate Court -- appellate proceedings are in continuity of suit -- two years period of limitation will be reckoned from date of order of appellate Court -- such application cannot be dismissed as non-maintainable on ground of limitation -- orders of SDO and Board of Revenue set aside -- petition allowed.
Held : As the civil suit was dismissed on 23.9.2005 and the plaintiffs were held to be in unauthorized possession of the suit property, therefore, the judgment and decree passed by the trial Court is the date for reckoning the period of limitation of two years, subject of course, to the appellate proceedings as the appellate proceedings are held to be in continuity of the suit.
Therefore, the aforesaid period of two years shall be reckoned from the date of dismissal of the Second Appeal No.7/2008 on 28.8.2009, as such, the application under section 250 of the Code filed by the petitioner is within two years. Under these circumstances, the reasoning assigned by the Sub-Divisional Officer and the Board of Revenue as against the maintainability of the application under section 250 of the Code on the ground of limitation is found to be fallacious in nature and cannot be countenanced.
(3) Appeal -- means of -- appellate proceedings are in continuity of suit. [Para 12
1. In this writ petition under Article 227 of the Constitution of India, petitioner has approached this Court challenging the legality, validity and propriety of the order dated 5.8.2016 passed in Case No.2203-1/2016 Revision.
2. Facts relevant and necessary for disposal of this writ petition are that the respondents had filed civil suit seeking a declaration as Bhumiswami and permanent injunction in respect of parcels of agricultural land falling in different survey numbers as mentioned in paragraph 1 of the plaint situated in village Karola, Tahsil Morena vide Civil Suit No.90A/2003. The suit was though dismissed by IIIrd Civil Judge, Class-I, Morena vide judgment and decree dated 23.9.2005, however, it was ordered that the plaintiffs/respondents shall not be dispossessed from the suit land except by due process of law.
3. The aforesaid judgment and decree passed by the trial Court has been maintained in First Appeal No.3-A/2007 decided on 21.9.2007, accordingly, decree was drawn on 23.9.2007. Second appeal preferred against the aforesaid judgment vide Second Appeal No.7 of 2008 has been dismissed by judgment and decree dated 28.8.2009. The Civil Appeal No.3257 of 2011 arising therefrom has also been dismissed vide order dated 11.9.2014 by the Hon’ble Supreme Court. As such, the aforesaid judgment and decree passed by the trial Court has attained finality.
4. It appears that the successor-in-interest of the original defendant, the petitioner has filed an application under section 250 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as ‘the Code’) seeking removal of the possession of the plaintiffs/respondents as they are in authorized occupation, before the Tahsildar. Mauza Karola, District Morena. The Tahsildar vide order dated 30.9.2014 has ordered for removal of the possession from the respondents/plaintiffs and restoration of possession in favour of the petitioner.
5. Being aggrieved by the order passed by the Tahsildar, the respondents/plaintiffs have filed an appeal before the Sub-Divisional Officer, Morena. Vide order dated 11.4.2015, the Sub-Divisional Officer, opined that as the petitioner did not place on record the date of dispossession, therefore, the aforesaid application was found to be not maintainable, as according to the authority, unless, the defendant was dispossessed within 2 years from the date of the application, the same was barred by time. Being aggrieved, petitioner preferred an appeal before the Additional Commissioner, Chambal Division, Morena. Vide order dated 30.6.2016, the Additional Commissioner has set aside the order passed by the Sub-Divisional Officer and maintained the order passed by the Tahsildar.
6. The present respondents/plaintiffs filed a revision petition before the Baord of Revenue. The Board of Revenue by the impugned order has set aside the order passed by the Additional Commissioner and restored the order passed by the Sub-Divisional Officer with the reasoning that unless the fact of date of dispossession was brought to the notice of the competent authority, the proceedings under section 250 of the Code could not have been initiated.
7. Learned senior counsel appearing for the petitioner taking exception to the order passed by the Board of Revenue with reference to provision contained under section 250 (1-a)(a) & (b) of the Code which reads as under:-
250. Reinstatement of Bhumiswami improperly dispossessed.-
(1) ......
(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 the 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 Tahsildar for restoration of the possession :-
(a) in case of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 -
(i) before the 1st July, 197
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