OMPRAKASH Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) The present petition is filed under Article 226 of the Constitution of India being aggrieved by the order dtd. 4/11/2020 passed by Additional Commissioner, Ujjain whereby he reversed the order dtd. 13/9/2017 passed by Additional Collector and the order dtd. 31/5/2003 passed by Sub Divisional Officer allowing the application of the petitioner for correction in the area of survey number under Sec. 89 of M.P. Land Revenue Code.

(2.) The facts of the case are that according to the petitioner, he purchased the land bearing survey No.681/6 of area 1.619 Aari, located at Village - Bardiya Amra, Tehsil- Garoth vide registered sale deed dtd. 6/9/1974 (hereinafter referred as 'the subject land'). Consequently, in Batankan proceedings, the land purchased by the petitioner was numbered as survey No. 681/6/1. His name was mutated in the revenue record. According to him, in the year 2003, he became aware that the area of survey No.598 has been erroneously reduced. He moved an application for correction under Sec. 89 of the M.P. Land Revenue Code before Sub-Divisional Officer, Garoth. The Sub-Divisional Officer called for the report from Patwari. According to him, the testimony of the father of the private respondents - Keshuram was recorded wherein he clearly stated that he has never given possession of survey number 681/7 (new No.586) at the spot and no land of survey number 681/7 (new No.586) exists at the spot. The Sub-Divisional Officer corrected the area of petitioner's ownership vide order dtd. 31/5/2003. He submits that the said order was never challenged by Shri Keshuram during his lifetime. Subsequently, after lapse of more than 13 years, the order dtd. 31/5/2003 was challenged by the respondents in an appeal before the Collector along with an application under Sec. 5 of the Limitation Act for condonation of delay. The Collector dismissed the appeal filed by the respondents vide order dtd. 13/9/2017. Being aggrieved by the said order, the respondent No.2 preferred an appeal before the respondent No.1. The said appeal was delayed by about 45 days. The respondent No.1 without issuing notice and given any opportunity of hearing to the petitioner, admitted the appeal for hearing without any adjudication on application under Sec. 5 of the Limitation Act vide order dtd. 23/2/2018. Thereafter the petitioner moved an application on 12/4/2019 for hearing on the point of limitation. The respondent No.1 dismissed the same by the impugned order.

(3.) The respondents filed reply and submitted that the petition suffers from suppression of material facts. The petitioner has suppressed the fact that he has already filed a Civil Suit No.139A/2020 in the Court of Civil Judge, Class-2, Garoth on 10/11/2020 before filing of the present petition, the present petition was presented on 25/11/2020, but the aforesaid fact has been suppressed in the present petition. He has also drawn attention of para-7 of the plaint that the petitioner has questioned the legality of the order passed by the Additional Commissioner, Ujjain. It is further submitted that there was no delay in filing the appeal before the Collector as no notice was issued to the father of the respondents - Keshuram and further the Additional Commissioner has rightly heard the matter on merit. He further submitted that a fraud has been committed by the petitioner and there is manipulation of revenue record by him. All these facts have been taken into consideration by the Additional Commissioner while passing the impugned order. He has referred to the various revenue record to submit that he is in possession of the land in question.