Mohan Kumar vs State Of M.P. & Ors

2) We herein set out the facts, in brief, to appreciate the issues involved in this appeal.

4) The case of the appellant is that the land bearing Survey No. 899 measuring 18 Biswas situated at Apaganj Mama Ka Bazar Lashker Gawlior, M.P. was purchased by him along with his mother from its previous owner Jaswant Kumar through registered sale deed dated 15.09.1941. The physical possession thereof was delivered to the appellant and his mother by their vendor and their names were also mutated in the revenue record as the “owners of the land”.

5) Three temples and two Darghas were alleged to have been constructed on the land in dispute while latrines and bathrooms as well as septic tanks were also alleged to have been constructed by the Municipal Corporation of Gwalior (respondent No.2) for the public user and sewer lines and pipe lines were also laid by the Public Health Engineering Department (respondent No.3) on a part of the said land.

6) The appellant, accordingly, approached the Collector, Gwalior for removing the trespass committed on their land. The Collector passed an order to remove the said trespass by dispossessing them therefrom under Section 4(2) of the Madhya Pradesh Public Premises and Devasthanam (Regulation) Act.

8) The Municipal Corporation of Gwalior expressed their agreement to the proposal made by the Collector and accordingly deputed an Engineer to evaluate the cost of the land owned by the appellant and his mother and of the proposed land situated near Surya Narain Temple. A report was, accordingly, received assessing the value of the land of the appellant at the rate of Rs.150/- per sq. meter. So far as the land situated near Surya Narain temple was concerned, it was assessed as Rs.800/- per sq. meter. Letters were also addressed by the Collector and Legal Aid in this regard.

9) Dissatisfied with the action of the respondents, the appellant and her mother filed a petition being W.P.(MP No. 290/1989 before the High Court. It was disposed of by the High Court on 22.06.1989 directing the Municipal Corporation to remove latrines, sewer lines, septic tank constructed on the land shown in Appendix ‘A’. As no action was taken, the second Misc. Pet. No. 859 of 1989 was filed by the appellant which was also disposed of by the High Court by order dated 16.03.1992 directing the appellant to institute a civil suit for getting the dispute adjudicated. Aggrieved by the said order of the High Court, the appellant filed a petition being S.L.P.(c) No. 11815 of 1992 before this Court. This Court affirmed the order of the High Court vide its order dated 08.04.1994.

14) Against that part of the judgment of the Trial Court which resulted in rejection of the claim of the appellant to allot him any alternate land in lieu of his land on which the encroachment was made, the appellant felt aggrieved and filed an appeal being F.A. No.3 of 1998 before the High Court. So far as the defendants are concerned, they were satisfied with the part of the decree passed by the Trial Court against them.

15) By impugned judgment dated 24.01.2005, the High Court not only dismissed the appeal of the plaintiff but proceeded to dismiss the entire suit including the finding of the Trial Court regarding ownership of the appellant over the suit land.

23) We are, therefore, of the considered opinion that instead of now remanding the case to the first Appellate Court, it would be just and proper to remand the case to the Trial Court to retry the suit on merits by affording an opportunity to the parties to adduce additional evidence in support of their case.

24) The parties (plaintiff and defendants) are accordingly granted liberty to amend their pleadings and adduce additional evidence. The Trial Court shall then pass a judgment in accordance with law uninfluenced by any of our observations and of the High Court.

25) Parties to appear before the concerned Trial Court on 27.03.2017 to enable the Court to conclude the proceedings preferably within six months from the date of party’s appearance.

28) The appeal thus succeeds and is allowed. Impugned judgment as also the judgment and decree of the Trial Court are set aside. The Trial Court is directed to decide the suit keeping in view the observations made above.

March 07, 2017