LEELA PUROHIT AND COMPANY Vs. ARUN AGRAWAL

JUDGEMENT

(1.) This is a revision by the defendants No.1 to 4 against the order by which the plaintiff's appeal under Order 43 Rule 1 (r) C.P.C. has been alloowed and these defendants have been restrained from levelling the tank and raising any construction thereon until the decision of the suit.

(2.) Undisputed facts of the case are that by order dated 6-7-1965 of the Additional Collector, Jabalpur it was directed : "the tank bearing Khasra No. 1318 within Murwara be recorded in the name of appellant Shri T.C. Bajan subject to rights of nistar exercised by the villagers in the tank". In the Khatauni of the year 1954-55 it is recorded that according to wajib-ul-arz the villagers take bath and their cattle drink water and bathe in this tank. After the aforesaid order the entries which appear against this Khasra are :- (Vernacular matter omitted.....Ed.) This entry continued up to the year 1977-78. It was deleted by the order dated 2-5-1979 of the Sub-Divisional Officer on the application of T.C. Bajan. It was done after obtaining the report of the Patwari and Naib-Tehsildar to the effect that the water in the tank has become dirty and polluted. The S.d.O. further stated in his order that Katni has now become a town and ceased to be a village and for that reason the entry relating to nistari rights in the wajib-ul-arz has lost its relevance. the S.D.O. purporting to act under S. 242(5)(a) of the M.P. Land Revenue Code, 1959 deleted the entry from the wajib-ul-arz. Before doing so no notice was given to the villagers for whose benefit the entry appeared in the records. One of the grounds for modifying the entry was "(a) that all persons interested in such entry wish to have it modified." The S.D.O. did not advert to this aspect in his order and did not record that the villagers wish to have the entry modified. The other grounds for modification of the entry as provided in Clauses (b) to (e) of sub-sec. (5) of S. 242 were not available as they relate to modification consequent upon the decree or order of the Civil Court.

(3.) After fourteen years of the said order of the S.D.O. his successor-in-office sought permission of the Additional Collector for review of this order. The permission was granted by the Additional Collector on 16-6-1993. The S.D.O., by this order dated 30-4-1994 after giving an opportunity of hearing to all concerned cancelled the order dated 2-5-1979 and restored the entry of the wajib-ul-arz. This order was confirmed in appeal by the Additional Collector by his order dated 12-3-1998. Defendant No.1 Leela Purohit and company, a partnership firm, which claims to have acquired the rights of T.C. Bajan filed a second appeal before the Additional Commissioner, Jabalpur. By order dated 30-3-1999 he has set aside the orders of the S.D.O. and the Additional Collector and maintained the earlier order of the S.D.O. Though the Additional Commissioner specifically recorded a finding that no proclamation or notice was issued to the villagers by the S.D.O. before passing the order dated 2-5-1979 this defect was held to be of "technical nature."