WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA I— ’ I / $ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (227) No, 4757 of2008 (SB: Hon'ble Mr. N.K. Agarwal, J.) Present : Shri Sanjay S Agrawal, Advocate for the petitioner. Shri KA Ansari, Sr. Advocate with Shri R.L; Bajpai,- Advocate for respondent. ORAL ORDER (Passed on 18.01.20} 1) The instant petition is directed against the order dated 22.08.2008 passed by the Board of Revenue in Revenue Case No. RN/l O/R- A/70/522/2007 whereby the revision preferred by the respondent against the order of Addl. Collector, Korba dated 26.06.2007 ‘ was allowed affirming the order passed by the SDO, Korba, and setting aside the order passed by the Tehsildar, Katghora’, Distt. Korba. ' Brief facts of the ease, as projected by the counsel for the petitioner is that : the respondent filed an application under Section 250 of the MP/CG Land Revenue Code, 1959 (for short ‘the Code’) for its possession against the petitioner inter-aha on the ground that she is recorded Bhnmiswami of the suit land and the petitioner has forcibly taken its possession. On demarcation PETITIONER : Asgar Ali Nun—applicant r Versus RESPONDENT : Amna Bi Applicant the petitioner wa$ found in poss¢ssion of 0.04 dismal of disputed land. Preliminary objections were raised by the petitioner herein in reply to the above application showing that there is a house ' constructed upon the above land and he is in possession of the above house for more than a period of 22 years, and therefore, the Tehsildar has no right to hear the above matter and it is within the domain of civil court. It was further pleaded that the petitioner is in possession of the suit property since 20 years after constructing house thereupon and thus he had perfected his title by way of adverse possession. ‘ 3. The respondent, in her statement (Annexure P/3) has stated that in the house constructed by her, Asgar Ali is residing for a period of 15 years with her permission. 4. The Tehsildar, after considering the pleadings of the parties, the i ‘J evidence led and the material available on record, dismissed the application holding it as not maintainable. The above order of Tehsildar was reversed by the SD_O in the appeal preferred by the respondent vide order dated 25.09.2006. There~against, the appeal preferred before the Addl. Collector, Korba was allowed and the order of Tehisldar was restored. Thereagainst revision was preferred by the respondent which was allowed vide order impugned. Hence this petition. Shri Sanjay S Agrawal, learned counsel appearing for the petitioner would submit that in an application nled under Section 250 of the Code, it is necessary to prove forcible/unlawful VB dispossession of a Bhumiswami of the and. Undisputey, it is l dl the possession of the house construcmd upon the diuted and sp l n di which is in dispute i the instant case. Accorng to the respondents evidence, she constructed the house an th d e ’ petitioner is resing therein with her permission. Fth, it is id urer also not clear that when and in what manner e‘titioner thpe disossesse the respondent, therefore, Section 250 of the de pd Co is as application in the fts and circumstance f the presnt h ac s o e cse an order pased by the Board of Revenue is per se illega a d s l which deserves to be set aside. 6. On the other hand, Shri KA Ansari, learned couel appearing for ns te respodent wod support the order passed by the Board f h n ul o Revenue and would submi that the order is ell reasoned der t w or and this court in exercise ourisdieti under Article 227 of the fj’on Constitution of India would not indulge in re-appreciating of the evidence and the order deserves to be upheld. I have heard the counsel appearing for the parties and perused the order impugned and records of the case. 8. Before adverting to the facts of the ease, it would be appropriate to reproduce Sections 2 (l )(k) and relevant parts of Section 250 ofthe Code which reads as under i "2(1)(k). “land” means a portion of the earth’s surface whether or not under water; and, where land is referred to in this Code, it shall be deemed to include all things attached to or permanently fastened to any thing attached to such lan .” “250. Reinstatement of Bhoomiswami improperly dispossessed.- [(1) For the purpose 9f this section and section 250-A Bhoomiswami shall include occupancy tenant and Government lessee.) [l—a] If a Bhoomiswami is dispossessed of the land otherwise than in due course of law or if any ' person unauthorisedly continues in possession of ‘ any land ofBhoomiswami to the use of which such person has ceased to be entitled under any provision of this Code, the Bhoomiswami or his successor in interest may apply to the Tahsildar for restoration of the possession,- u XXX . XXX XXX 9. The High Court ofMadhya Pradesh in case of Krishnakumar Das and another v. Balram Das and others! has observed in para 4 of its judgment as under : 4. Now, the purpose of the Code is to provide a speedy and summary remedy to a Bhumiswami dispossessed. of his land. No doubt, the land is hetionally meant to include even buildings on land;_ but it is clearly not the intent of the Code to provide a speedy and summary remedy under the Code to a Bhumiswami dispossessed of his immovable property. The use ofthe word ‘Bhumiswami’ in connection with the land of which he dispossessed and of which he may claim restoration of possession in section 250 of the Code clearly shows that the speedy and summary remedy provided by the Code is to be restored when a person, who is Bhumiswami, is dispossessed of land which he holds in Bhumiswami ‘-i971 rum-864 dghts and when the restoration of possession of such land is the dominant purpose. But, whcn the land is an appurtenance to the building and the dominant pulpose of the plaintiff is to get restoration of possession of his building of which he alleges forcible dispossession, section 6 of the Specific Relief Act would be his appropriate remedy which provides that ‘if any person is dispossessed, without his consent, of immovable prope1ty otherwise than in due course of law, he or any person claiming through him may, be set up in such suit’. I am also add that buildings standing on land are hctionally made to mean land in the Code (see section 2 (k) of the Code), provided there is nothing in the subject or the context, and that consequently, when the dominant purpose of a person who also happens to be a Bhumiswami is to recover possession of his house of which he has been illegally dispossessed, his house cannot come within the fictional definition of the word ‘land’ as dehned in the Code to give jurisdiction to a Tahsildar to restore him to its possession under section 250 ofthe Code.” 10. Now, reverting to the facts of the case, it is clear that the respondent had failed to prove the factum of forcible dispossession by the petitioner, when and in what manner the respondent was dispossessed and the property in dispute is Bhumiswami land. On the contrary, as per her own evidence, the respondent herself constructed the house over the suit land and gave its possession to the petitioner about 15 years ago. 11. By applying the above ratio of judgment of High Court of Madhya Pradesh, to which I am in respectful agreement, to the facts of the present case, it would be crystal clear that so far as property in dispute is concamed, which is house property, Section 250 of the Code has no application and the petitioner’s remedy lies in hling of Civil Suit. l2. preferred by the respondents and has failed to consider that provisions of Section 250 of the Code are inapplicable in the present case and thus has acted without jurisdiction in reversing the order of Tehsildar and Add]. Collector. 13. In view of above, the order impugned dated 22.08.2008, passed by the Board of Revenue, being not sustainable in law, deserves to be and is hereby set aside. However, the respondent is free to pursue his remedy before the jurisdictional Civil Court in accordance with law. l/ Sd/— The Board of Revenue went. wrong in allowing the revision N.K. Agrawal‘. Judge