BASANT Vs. STATE OF M.P. AND ANOTHER

JUDGEMENT

(1.) This Misc. Appeal under Order 43, Rule 1(u) of Civil Procedure Code. 1908 (hereinafter referred to as C.P.C.) has been filed against the judgment and decree dated 29.10.2009 passed by 1st Addl. Judge to the Court of 4th Addl. District Judge (Fast Track). Khandwa in Civil Appeal No. 60-A/09 whereby judgment and decree dated 27.11.2007 passed by IIIrd Civil Judge Class II, Khandwa in Civil Suit No. 11-A/06 has been set aside and matter has been remanded to the Trial Court for hearing afresh.

(2.) In nut shell, the case of appellant before the Trial Court was that he purchased the disputed land from one Pramila vide registered sale-deed dated 19.11.2003 and got the possession. Said Pramila purchased the suit land from one Saubhagi Bai vide registered sale-deed dated 21.7.1988, and Saubhagi Bai purchased the said land vide registered sale-deed dated 20.11.51 from one Shivnarayan, and Shivnarayan purchased the aforesaid land from erstwhile Malguzar Dinkar Rao by registered sale deed dated 8.8.1949. Pramila was the full owner and was in possession, and a certificate to this effect was issued by Gram Panchayat, Mortakka, Khandwa. Plaintiff/appellant having purchased the suit land from Pramila on the basis of certificate dated 28.11.2003 issued by Gram Panchayat. Mortakka, started hotel business in the name and style of Gopal Midway. A complaint was made by the then MLA of Pandhana constituency that plaintiff/appellant by encroaching the Government land constructed the hotel and also constructed a septic tank at the bank of Narmada river, and the polluted water is being mixed in the water of Narmada river. On the basis of complaint. Tehsildar, under the influence of M.L.A. illegally done the measurement of disputed land, and on the basis of wrong measurement, shown the plaintiff as encroacher over the Government land. Infact on a small portion of suit land the construction of sewage line soak pit system was made by plaintiff as per design approved by the State Government, and there is no possibility of sewage water being mixed in the Narmada river. Apprehending that respondent/revenue authorities, by misusing the power, may forcibly dispossess the plaintiff from the suit land, the suit was filed by the plaintiff/appellant for declaration and permanent injunction.

(3.) Trial Court, on the basis of oral and documentary evidence, and considering the fact that possession was there from 9.8.1949 of the occupiers till the plaintiff, decreed the suit on 27.11.2007, against which respondents/State preferred as appeal. Learned Appellate Court, set side the judgment and decree of Trial Court and remanded the matter for measurement by appointing a Commissioner and giving opportunity to lead evidence to the parties.