Madhya Pradesh High Court

MP/3534/2020 of RADHYESHYAM Vs TEJ SINGH on 1 February 2024

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COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE

1

IN THE HIGH COURT OF MADHYA PRADESHAT INDORE

BEFORE

HON'BLE SHRI JUSTICE ANIL VERMAON THE 1[st] OF FEBRUARY, 2024

MISC. PETITION No. 3534 of 2020

BETWEEN:-

1.RADHYESHYAM S/O RAMLAL VILLAGEBARUKHEDI, TEHSIL PACHORE, DIST. RAJGARH(MADHYA PRADESH)

2.PRABHULAL S/O RAMLAL VILLAGE BARUKHEDI,TEHSIL PACHORE, DIST. RAJGARH (MADHYAPRADESH)

3.MANGILAL S/O RAMLAL VILLAGE BARUKHEDI,TEHSIL PACHORE, DIST. RAJGARH (MADHYAPRADESH)

( BY SHRI SAMEER SAXENA - ADVOCATE )

.....PETITIONER

AND

1.TEJ SINGH S/O BANE SINGH VILLAGEBARUKHEDI, TEHSIL PACHORE, DIST. RAJGARH(MADHYA PRADESH)

2.CHAND SINGH S/O TEJ SINGH VILLAGEBARUKHEDI, TEHSIL PACHORE, DIST. RAJGARH(MADHYA PRADESH)

( BY SHRI SAMEER ANANT ATHAWALE - ADVOCATE)

.....RESPONDENTS

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

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ORDER

With the consent of both the parties, matter is heard finally at motion stage.

2/ Present petition has been filed by the petitioners under Article 227of Constitution of India being aggrieved by the impugned order dated13/12/2019 ( Annesure-P/1) passed by the Additional Commissioner, BhopalDivision, Bhopal, whereby the respondents' appeal has been allowed and theimpugned orders dated 29/06/2019 and 08/08/2018 passed by Sub-DivisionalOfficer, Sarangpur, District - Rajgarh and Tahsildar, Pachore, District - Rajgarhrespectively have been set aside.

3/ Facts of the case in brief are that petitioners are having land invillage -Barukhedi, Tehsil-Pachore, District - Rajgarh and for going to their field,only one way is available to the petitioners as customary way through the landof respondents admeasuring Survey number 1037, Rakba 0.94 hectare andSurvey number 63/1, 87/3, 102/2/1, 206/1 and 207. Respondents have blockedthe path of petitioners by applying wire fencing, due to which, petitioners arenot able to access to their field. Therefore, petitioners filed an applicationbefore the Tahsildar, Pachore under section 131 of Madhya Pradesh LandRevenue Code, 1959 ( in short "MPLRC") for tight of way and removal ofobstructions. That order was challenged before SDO, Sarangpur byrespondents and vide order dated 29/06/2019, appeal was dismissed. Then, therespondents filed appeal before Additional Commissioner, Bhopal Division,Bhopal, who allowed the appeal vide order dated 13/12/2019, Being aggrievedby the said order, petitioners have filed present petition before this Court.

4/ Learned counsel for the petitioners submits that the Tahsildarconducted inquiry. Site inspection panchanama and naksha ( map) wereprepared by the Tahsildar and it was held that on. the land from SurveyNos.102/2 to 227, customary way was found and respondents after erectingfencing, obstructed the way of petitioners and on the basis of oral and documentary evidence, the Tahsildar and the SDO have correctly passed theorders. The impugned order passed by the Additional Commissioner is bad inlaw, because there is no rebuttal of evidence and the orders passed by Tahsildarand SDO were based upon spot inspection report. No Government path isavailable to the petitioners to access their field. The impugned order is contraryto law and facts, hence he prays that the impugned order be set aside.

5/ From perusal of the impugned order passed by Tahsildar, Pachoreand SDO, Sarangpur, it appears that as per the order of Tahsildar, Pachore, siteinspection panchanama was prepared and according to which, alternategovernment way (Shashkiya Kakad) has been found there, although it has beenfound that on the alternate way, wire fencing been done and crops have foundthere.

6/ It is a settled position of law that as per the provision of section 131of MPLRC, there is requirement of alternate way. From perusal of siteinspection report, it appears that there is alternate way available to petitioners.Although it has been blocked, but petitioners have right to file an applicationunder section 133 of MPLRC for removal of such obstruction. If alternategovernment way is available to the petitioners, they cannot claim customaryright over the lands of other farmers. Apart from the above, petitioners did notfile copies of statements, which were recorded before the Tahsildar. They didnot file their sale deed. If there is any customary way for the petitioners, it maybe mentioned in the sale deed also, therefore, adverse evidence can be drawnagainst the petitioners. In absence of the aforesaid, it appears that the Tahsildarwhile passing the order (Annexure-P/2) has not considered the evidenceavailable on record. Admittedly, there is alternate way to reach the petitioners'

field.

7/ In view of the above, it appears that the impugned order passed by the Additional Commissioner, Bhopal Division, Bhopal is just and proper andaccording to law and he has not committed any error in passing the impugnedorder. therefore, this Court does not find any ground to interfere in theimpugned order.

8/ Accordingly, present petition filed under section 227 of the Constitution of India is hereby dismissed.

CC as per rules.

amol

(ANIL VERMA)JUDGE

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