IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANAND PATHAK th ON THE 15 OF FEBRUARY, 2024 MISC. PETITION No. 2199 of 2020 BETWEEN:-

1. PREMNARAYAN S/O GHURILAL KACHCHI, AGED 63 YEARS, R/O VILLAGE DEHARI TEHSIL CHACHODA DISTRICT GUNA (MADHYA PRADESH)

2. RAM SINGH S/O GHURILAL KACHI, AGED

58 YEARS, R/O VILLAGE DEHARI TEHSIL CHACHODA DISTRICT GUNA (MADHYA PRADESH)

.....PETITIONER (BY SHRI AMIT LAHOTI AND MS. RICHA BHADORIYA- ADVOCATES)

AND HRADESH S/O RAMDAYAL SHARMA, AGED 43 YEARS, R/O VILLAGE DEHARI, TEHSIL CHACHODA, DISTRICT GUNA (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI PRASHANT SHARMA- ADVOCATE)

This petition coming on for admission this day, the court passed the following:

ORDER

1. The present petition has been filed under Article 227 of the Constitution taking exception to the order dated 04.11.2019 passed by Collector, Division Gwalior, whereby appeal preferred by petitioners was rejected. Petitioners preferred appeal against the order dated 26.02.2018 passed by SDO where by appeal preferred by respondent was allowed and order dated 25.11.2017 passed by Naib Tehsildar, Chachoda District Guna in favor of petitioners was set aside.

2. Precisely stated facts of the case are that respondent was in possession of an agricultural land situate at Village Dehari Tehsil Chachoda vide survey No.124/1/3 admeasuring 0.104 hectare and survey No.124/1/4 admeasuring 0.510 hectare. He filed an application before Naib Tehsildar, Chachoda purportedly under Section 250 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred as Code, 1959) with the submissions that present petitioners have encroached over the part of the land under the ownership and possession of respondent, therefore, they be evicted and respondent as Bhumiswami be reinstated over the land.

3. Present petitioners appeared before the Naib Tehsildar and rebutted the claim. According to them, they are the owner of the suit property situate at survey No.124/1/3 and survey No.124/1/4. Since they are positioned over their legitimate property, therefore, no question of eviction arises.

4. Naib Tehsildar requisitioned the Patwari report and evidence was led by both the parties. On due consideration, Naib Tehsildar, rejected the application preferred by respondent on the ground that respondent knew this fact about possession of petitioners over the suit property and Patwari report nowhere indicated any element of encroachment.

5. Against the said order of Naib Tehsildar, respondent preferred an appeal before SDO, Chachoda, and SDO allowed the appeal vide order dated 26.02.2018 on the ground that initially some dispute arose regarding extent of boundary of land of respective parties, therefore, on the application preferred by respondent for demarcation on 19.05.2017, demarcation was carried out and thereafter on 29.06.2017, application under Section 25 of the Code, 1959 was preferred and it was submitted that on the basis of demarcation, it appears that petitioners have encroached upon the land of ownership and possession of respondent, therefore, from the period of demarcation, application under Section 250 of the Code, 1959 was within limitation. It was found that demarcation report indicates that petitioners are in encroachment over the suit property. Against the said order of SDO, present petitioners preferred appeal under Section 44 of the Code, 1959 before Additional Commissioner, Gwalior Division, Gwalior and said appeal was rejected and order of SDO was affirmed. Therefore, petitioners are before this Court by way of petition filed under Article 227 of the Constitution.

6. It is the submission of learned counsel for petitioners that application under Section 250 of Code, 1959 was preferred beyond period of two years which was prescribed under Section 250 of the Code itself before it was amended in the year 2018 whereby no limitation is now prescribed for moving application under Section 250 of the Code, 1959. Since case was of pre-amendment period