RAMBAI Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure against the judgment and decree dated 7-12-99, passed by IInd Additional District Judge, Chhatarpur, in Civil Appeal No. 79-A/97 confirming the judgment and decree dated 23-12-95, passed by IIIrd Civil Judge Class-I, Chhatarpur, in Civil Suit No. 274-A/94.

(2.) The appellant/plaintiff stated in her plaint that she had constructed a shop on Khasra No. 541, near Bus Stand Chandra Nagar, Tahsil Raj Nagar, District Chhatarpur, She claimed that she had constructed the shop, in question, after obtaining due permission in writing dated 4-12-74 from the Sarpanch of Gram Panchayat Chandra Nagar. This piece of land which was Khasra No. 541, was the suit-land. In paragraph 9 of the plaint it has been stated that the appellant received a notice dated 11-1-89 to the effect that she had occupied Khasra No. 533 situate at Chandra Nagar, Tahsil Raj Nagar, District Chhatarpur and, therefore, she was liable to be evicted under Section 248 of Madhya Pradesh Land Revenue Code. She was also required t6 stop further constructions. Thereafter, on 18-3-90 Tahsildar and other revenue officers came to her and orally told her to remove the construction otherwise it will be forcibly removed. It was alleged by the appellant that she and her sister were in possession of Khasra No. 541 for over 100 years and, therefore, she was entitled to a decree for permanent injunction agaiastthe respondents restraining them from interfering with her possession over the suit- property. It was further claimed by the appellant that the notice under Section 248 of Madhya Pradesh Land Revenue Code issued by the respondents to her was illegal and bad in the eyes of law.

(3.) Having heard the learned counsel for the appellant as well as the learned counsel for the respondents, this Court is of the view that the appellant could not seek a declaration in respect of aforesaid land of Khasra No. 541. Since the notice issued by the respondent No. 2 was in respect of Khasra No. 533, the daim regarding Khasra No. 541 did not lie as the respondents were not trying to dispossess the appellant from Khasra No. 541. In view of this matter, the judgment and decree of the Court below is liable to be set aside and the plaint is liable to be rejected on the short ground that there was no cause of action in favour of the appellant in respect of Khasra No. 541. The appellant is free to raise any ground before the concerned Tahsildar saying that the notice is invalid as she has not occupied Khasra No. 533. The Tahsildar shall give her full opportunity to prove her case and if he comes to the conclusion that Khasra No. 533 is not occupied by the appellant, he may either issue fresh notice for removal of the encroachment or may withdraw his notice in accordance with law. However, it is made clear that the Tahsildar shall give full opportunity to the appellant to prove her case in accordance with law and shall not take any coersive action without giving a finding that the appellant had occupied Khasra No.533.