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IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 683 of 2022

BETWEEN:-
1. SHYAM SUNDER S/O SHRI GHISALAL GOYAL,
AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS,
R/O: SENDHWA, DISTRICT: BARWANI (MADHYA
PRADESH)

2. SMT. VIMLA BAI W/O FULCHAND GOYAL, AGED

ABOUT 70 YEARS, OCCUPATION: HOUSEWORK,
R/O: SENDHWA, TEHSIL SENDHWA, DISTRICT:
BARWANI (MADHYA PRADESH)

.....PETITIONERS
(BY SHRI MANIKANT SHARMA ALONGWITH MS. SMRITI SHARMA,
ADVOCATE)

AND
1. SMT. SAVITRI BAI W/O GIRDHARILAL MAHAJAN
(DECEASED) THROUGH LRS. GIRDHARILAL
MAHAJAN, AGED ABOUT 74 YEARS,
OCCUPATION: RETIRED, R/O: AGRAWAL
COLONY, WARD NO. 8, NIWALI ROAD, SENDHWA,
DISTRICT: BARWANI (MADHYA PRADESH)

2. SMT. SAVITRI BAI W/O GIRDHARI MAHAJAN

(DECEASED) THROUGH LRS. SANJAY MAHAJAN,
AGED ABOUT 52 YEARS, OCCUPATION: BUSINESS,
R/O: AGRAWAL COLONY, WARD NO. 8, NIWALI
ROAD SENDHWA, DISTRICT BARWANI (MADHYA
PRADESH)

3. SMT. SAVITRI BAI W/O GIRDHARI MAHAJAN

(DECEASED) THROUGH LRS. SMT. VARSHA
MANGAL, OCCUPATION: HOUSEWORK, R/O:
AGRAWAL COLONY, WARD NUMBER 8, NIVALI
ROAD, SENDHWA DIST BARWANI (MADHYA
PRADESH)

4. SMT. SAVITRI BAI W/O GIRDHARI MAHAJAN

(DECEASED) THROUGH LRS. RITU MANGAL,
OCCUPATION: HOUSEWORK, R/O: AGRAWAL
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COLONY, WARD NUMBER 8, NIVALI ROAD,
SENDHWA DIST BARWANI (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI ANMOL PRAJAPATI AND SHRI JAGDISH BAHETI, ADVOCATES
FOR RESPONDENTS)

Reserved on :- 16.02.2023
Pronounced on :- 30.06.2023
.......................................................................................................
This petition having been heard and reserved for orders coming on for
pronouncement this day, HON'BLE JUSTICE PRANAY VERMA
pronounced the following:-
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by the petitioners being aggrieved by order dated 31.01.2022
(Annexure P/4) passed by the Additional Commissioner, Indore Division,
Indore whereby he has affirmed the order dated 20.09.2019 (Annexure P/3)
passed by the Sub Divisional Officer (Revenue) Sendhwa, District Barwani who
had in turn set aside the order dated 28.07.2018 (Annexure P/2) passed by the
Tehsildar, Tehsil Sendhwa, District Barwani.
02. The facts of the case are that Smt. Savitri Bai since deceased now
being represented through her legal representatives, the respondents, was the
owner of Khasra No.187/3/1 area 1.10 acre and Khasra No.190/7 area 1.90 acre
Gram Sendhwa. In respect of survey No.187/3/1 she had instituted proceedings
under Section 250 of M.P. Land Revenue Code, 1959 (hereinafter referred to as
'​the Code'​) against the petitioners. In those proceedings an order was passed on
15.10.2014 by the Board of Revenue remanding the matter back to the
Tehsildar, Sendhwa with a direction to him to constitute a demarcation

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committee to be headed by the Assistant Superintendent, Land Records and for
carrying out demarcation afresh and to re-decide the matter on merits. He was
inter alia directed to ascertain as to whether Savitri Bai had knowledge of
construction of godown and weighbridge on the disputed land for past 8-10
years and as to whether Section 250 of the Code, 1959 would be applicable.
03. In compliance of the aforesaid order, the Tehsildar constituted a
demarcation committee headed by the Assistant Superintendent, Land Records
which upon demarcation found that over 0.310 hectare of survey No.187/3/1
boundary wall and godown of the petitioners have been constructed. It was
further found that there is no proof as to since when the said construction has
been made. Smt. Savitribai has produced a document of the year 1997 from
which it appears that she had been aware of the construction ever since then.
Thereafter, the Tehsildar heard both the parties and found that
building/boundary wall/godown has been constructed over the disputed land
hence Section 250 of the Code is not attracted as the same is applicable only in
respect of open land. It was also held that as per Section 250 of Code
proceedings ought to have been instituted within a period of two years from the
date of illegal dispossession which has not been done. Consequently, by order
dated 28.07.2018 (Annexure P/2) the application under Section 250 of the
Code, 1959 filed by Smt. Savitribai was dismissed.

04. Being aggrieved by the order aforesaid, Smt. Savitribai preferred an

appeal under Section 44 (1) of the Code before the Sub Divisional Officer
which was allowed by order dated 20.09.2019 (Annexure P/3) by observing that
there is no dispute between the parties as regards the boundaries of their
respective lands. Smt. Savitribai had filed an application for demarcation on
10.06.2007 and upon such demarcation, she acquired knowledge as regards
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encroachment over her land after which the application under Section 250 of the
Code was filed by her on 01.11.2007. Encroachment of petitioner's is over
0.310 hectare of Khasra No.187/3/1 whereas the remaining land is open. Out of
the total encroached land of 33368 square feet godown and shed has been
constructed over only 2500 square feet hence primary encroachment is over
land and not over the constructed area. 30868 square feet of land is vacant and
only fencing has been made thereupon which cannot be said to be construction.
The aforesaid order has been maintained in Second Appeal preferred by the
petitioners under Section 44(2) of the Code by the Additional Commissioner by
the impugned order.
05. Learned counsel for the petitioners has submitted that the impugned
orders passed by the Additional Commissioner and the Sub Divisional Officer
are illegal and contrary to law. Smt. Savitri Bai had purchased her land in the
year 1980. The land over which encroachment of the petitioners has been found
is owned by them and not by the respondents. Petitioners had purchased the
said land bearing Khasra No.188/2 area 1 acre in the year 1997 by a registered
sale-deed from its previous owner Nazar Ali. They had got it diverted then itself
and had constructed a weighbridge, building, godown and boundary wall over
the same and have been carrying on business of Goyal Udyog Firm therefrom
and have been in possession of the said land ever since then. The demarcation
proceedings which have been carried out are illegal since in a Civil Suit filed by
Smt. Savitribai earlier, she had shown different boundaries of the disputed land.
Now demarcation has been got conducted on the basis of different boundaries.
The land of respondents is not near the land of petitioners but is at a different
place. Since petitioners have been in possession of the disputed land ever since

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1997, the application under Section 250 of the Code filed by Smt. Savitribai
was hopelessly barred by time and ought to have been dismissed on that
ground alone. The alleged encroachment is in any case by way of construction
of godown, building and warehouse hence is not of land hence provisions of
Section 250 of the Code are not attracted in the present case. The demarcation
of land of petitioners has not been carried out and only that of land of
respondents has been carried out. The land over which encroachment has been
found is diverted land hence it is immaterial if that land is of petitioners or
respondents as due to the same applicability of Section 250 of the Code is
excluded. It is further submitted that the documents which have been filed by
the petitioners alongwith their application bearing I.A. No.312/2023 for taking
additional documents on record conclusively proved title of petitioners to the
disputed land. The impugned orders hence deserve to be quashed. Reliance has
been placed on the decision of the Chattisgarh High Court in Asgar Ali Vs.
Amna Bi, W.P. No.4757/2008 decided on 18.01.2011 and of this Court in
Ramkali Vs. State of M.P. and others, W.P. No.18308/2019 decided on
06.09.2019 and Krishnakumar Das and another Vs. Balram Das and
others 1971 MPLJ 864.
06. Per contra, learned counsel for the respondents have submitted that
there is no infirmity in the impugned orders passed by the authorities below and
no case for interference has been made out. The authorities have rightly
appreciated the documents on record and have come to the conclusion that
there is encroachment by the petitioners over the disputed land. It is not a case
of title but of encroachment only and if the petitioners are of the opinion that
they have not encroached upon land of respondents, they could have
themselves filed a separate application under Section 129 of the Code for
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demarcation of their land but instead such a prayer has been made in the present
proceedings which cannot be entertained. Reliance has been placed on the
decision of this Court in Nathu Vs. Dilbande Hussain and others AIR 1967
M.P. 14 , Smt. Sunita and others Vs. State of M.P. and others M.P.
No.5156/2019 decided on 01.10.2020, Ramgopal Vs. Chetu 1976 JLJ 278,
Deochand and others Vs. Moolchand and others 2004 RN 24 and
Ramchandra and others Vs. Shankar and others 1989 RN 178.
07. I have heard the learned counsel for the parties and have perused the
record.
08. Section 250(1) and (2) of the Code being material are reproduced
below:-

"250. Reinstatement of Bhumiswami improperly

dispossessed.-[(1) For the purposes of this section and section 250-A
Bhumiswami shall include occupancy tenant and Government lessee.]
[(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 Bhmiswami 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 1978 in cases of unauthorized dispossession prior
to the 1st July 1976; and
(ii) in any other cases within five years from the date of dispossession or
from the date on which the possession of such person becomes
unauthorized, as the case may be;
(b) in case of a Bhumiswami not covered by clause (a), within two years
from the date of dispossession or from the date on which possession of
such person becomes unauthorized, as the case may be.]
[(1-b) the Tahsildar may on coming to know that a Bhumiswami or an
occupancy tenant or a Government lessee has been dispossessed of his
land otherwise then in due course of low, suo noto start Proceedings
under this section.
(2) The Tahsildar shall, after making an enquiry into the reactive claims of
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the parties, decide the application and when he order the restoration of
the possession to the Bhumiswami, put him in possession of the land.

09. As per the petitioners themselves, they have been in possession of the
disputed land atleast since 1997. It is not their case that they have obtained
possession at any later point of time. From the dispute as put forth by the
parties, it is apparent that it is a case falling under Section 250(1)(b) of the
Code. As per Smt. Savitribai, the unauthorized possession of the petitioners
became known to her only upon demarcation of the disputed land. The period
of limitation would hence be two years from the date of acquiring of such
knowledge by her. The demarcation of the disputed land was carried out on
31.05.2007 whereas the application under Section 250 of the Code was filed on
10.06.2007. The same was hence very much within time.
10. In my aforesaid view, I am fully fortified by the decision of this Court
in Murlidhar and Another Vs. Board of Revenue M.P. and Others ILR
2013 MP 597 in which it has been held by this Court in paragraph No.11, 12
and 13 as under:-
"11. The aforesaid provisions contemplate that if the Bhoomiswami is
dispossessed of the land otherwise than in accordance to due course of
law he can seek restoration of possession by applying to the Tahsildar
and the application has to be made within the time stipulated under sub-
sections (a) and (b). Subsection (a) relates to a Bhoomiswami who is a
tribal and therefore, for the present the said section is not relevant. Sub-
section (b) relates to other Bhoomiswami and two parameters are
indicated for assessing the starting point of limitation. The first parameter
is that the Bhoomiswami should initiate the proceeding within two years
from the date of dispossession.
12. According to Shri Ravish Agrawal, learned Senior Counsel as the
petitioners are shown to be in possession for more than 30 to 40 years
and as there is no change in the disputed area, it is stated that sub clause
(b) will not be applicable. However, the second part of this section relied
upon by Shri Usmani is more relevant. It contemplates the starting point
to be the date on which possession of such a person becomes
unauthorized. Therefore, as per this second parameter the starting point of
limitation would be the date when the possession is found to be
unauthorized.
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13. Admittedly, it is the case of respondents No. 5, 6 and 7 that they
were not aware of the unauthorized possession by the petitioners till one
of their family members Smt. Leela Bai initiated the proceedings before
the Tahsildar in the year 2007 which culminated in passing of the order
under section 129 sometimes in the year July, 2007. I see much force in
this submission. The evidence relied upon by Shri Ravish Agrawal,
learned Senior Counsel does show that for a period of more than 30 to
40 years the possession of the parties continued and the boundaries of
their respective property did not change. However, when Smt. Leela Bai
pointed out the possibility of there being encroachment into her property
then in the proceeding held under section 129 demarcation was ordered
and the report submitted vide Annexure P/3 on 6th September, 2007,
which established the encroachment and dispossession. Therefore the
date on which the petitioners were found to be in unauthorized possession
is the date of the order passed under section 129 and as the application
for restoration of possession under section 250 is filed within the period
of two years from the said date, the requirement of the second part of
sub-section (b) of section 250(1)(a) is complied with. A perusal of the
provisions of sub-section (b) of section 250(1)(a) as reproduced herein
above clearly shows that the limitation prescribed in this section to a
Bhoomiswami for seeking restoration of his possession would commence
either from the date he is dispossessed or from the date it is established
that the possession of any person is unauthorized. In the present case, the
possession of the petitioners was found to be unauthorized only when the
proceedings were held under section 129 when the demarcation
conducted established that they are encroachers into certain area and
therefore, unauthorizedly holding possession of certain area belonging to
the original Bhoomiswami. Accordingly, it has to be held that the starting
period of limitation for initiating a proceeding under section 250 would be
two years, to be calculated from the date of actual dispossession or if the
date of actual dispossession is not available then the period of two years
is to be calculated from the date the possession of a person is found to be
unauthorized and if the possession is found to be unauthorized in a
proceeding held under section 129 or any other statutory or legal
proceeding the date on which the findings of unauthorized possession is
recorded in the said proceedings. That being so, I have to hold that in the
present case the possession of the petitioners was found to be
unauthorized on the date when the order was passed in the proceeding
under section 129 and therefore, the starting point for calculating the
period of two years would be the said date and accordingly I am unable
to agree with the submissions made by Shri Ravish Agrawal, learned
Senior Counsel and hold that the Additional Commissioner and Board of
Revenue have not committed any error in holding that the application
under section 250 was filed within the statutory period of limitation."

11. The total area encroached by petitioners is 33368 sq. ft. Out of this
construction has been made by the petitioners over only 2500 sq. ft of land.
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The said construction is also in the nature of shed and unusable weighbridge by
keeping it in open. The same is not a concrete permanent construction. In any
case about 30868 sq. ft of open land has been encroached by petitioners and
construction is over only about 2500 sq. ft. Thus as laid down in
Krishnakumar Das and Another (supra), it is the dominant usage of the
encroachment which has to be seen. The property encroached is primarily land
and only a small part of the same has been put to construction. The dominant
usage of the encroached property is thus open land and not permanent
construction hence the contention of the petitioners that Section 250 of the
Code, 1959 which is only in respect of land of a Bhumiswami and not
construction over the land cannot be accepted mores in view of nature of the
alleged construction.
12. From the record, it is apparent that demarcation proceedings carried
out at the instance of Smt. Savitribai under Section 129 of the Code, 1959 have
attained finality. They have not been challenged by the petitioners before any
higher authority. All the objections which have been raised as regards the
demarcation proceedings have been so raised only in the present proceedings
under Section 250 of the Code. If petitioners had any grievance with the
demarcation proceedings, they ought to have challenged the same as provided
under the Code, 1959. It is not open for them to challenge the legality of those
proceedings these proceedings. This has been categorically held in the case of
Murlidhar and Another (supra) in paragraph No.15 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
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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."

13. Various grounds have been raised by the petitioners in this petition to
challenge the legality and validity of the demarcation proceedings such as the
proceedings being illegal, the disputed land not being near the land of
petitioners, their lands not having been demarcated, etc. As held above, such
grounds cannot be raised in the present proceedings under Section 250 of the
Code and are thus not required to be considered by this Court. An application
bearing I.A. No.312/2023 has been filed by petitioners in the present petition for
taking additional documents on record. From the same, it has been tried to be
projected that petitioners are owners of the disputed land and no encroachment
has been made by them over land of the respondents. It has on that basis
further sought to be contended that since land of petitioners is diverted land
hence the disputed land is also diverted land due to which provisions of the
Code, 1959 would not be applicable to the present case. In proceedings carried
out under Section 129 of the Code, it has been categorically held that the
disputed land is a part of the lands owned by the respondents and not the
petitioners. The said demarcation has not been challenged by the petitioners and
has attained finality hence it has to be necessarily held that the disputed land is a
part of land owned by the respondents which is agricultural land and not

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diverted land. The order of diversion produced by the petitioners is in respect
of their own land which does not help them in any manner since the disputed
land has been found to be part of the land owned by the respondents which is
agricultural land.
14. The additional documents have been produced by the petitioners to
primarily demonstrate that they are the owners of the disputed land. The title of
petitioners over their khasra numbers is not in dispute and the dispute is
primarily as to whether the disputed land is a part of the land owned by the
respondents which has already been found in the demarcation proceedings. The
documents produced by the petitioners in this petition thus do not help them in
any manner. Petitioners have never at any point of time made any prayer or
application for demarcation of their land hence they cannot raise any ground in
this petition that their land should have also been demarcated in the demarcation
proceedings instituted by Smt. Savitribai. In any case, the petitioners being
owners of the adjoining lands it shall be legally presumed that while carrying out
demarcation of land of Smt. Savitribai their lands also must have been included
since it is well settled principle that while carrying out demarcation all the
adjoining neighbouring lands are also to be taken into consideration.
15. As a result of the aforesaid discussion, I do not find any illegality or
perversity in the impugned orders passed by the authorities below and no error
appears to have been committed by them. The petition is consequently found to
be devoid of any merits and is hereby dismissed.

(PRANAY VERMA)
JUDGE
Shilpa

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