STATE OF M.P. Vs. NAJMUDDIN AND ORS.

JUDGEMENT

(1.) Shri Pramod Mitha, learned Government Advocate for the appellant/State.

(2.) The facts of the case are that land of Village and Tehsil-Suwasara, District-Mandsaur of Survey Nos. 912, 913, 914, 915, 916, 917 and 911/1492, 11 Bigha and 3 Biswa of old Survey No. 520 was of the Gwalior State which was given to the father of defendant/Walid Mullah Hussain for the purpose of starting the Industry as per the rules of Gwalior State and in this regard lease-deed was executed with the signature of Patwari and Revenue Officer. The proceedings were initiated before Revenue Officer inter alia contending that this land was given for Ginning Factory and not for any other purpose, however, its use for other purpose is not permissible. As per order passed by Collector, Mandsaur patta was cancelled and said order was confirmed by Commissioner in appeal. On filing a revision bearing No. 973/PVR/98 by the respondent, the Board of Revenue vide order dated 1-11-2000 set-aside the order passed by Collector, Mandsaur and Commissioner, Ujjain. Against the order of Board of Revenue writ petition bearing No. 1580/2000 was filed, by State Government which was dismissed on 29-7-2009, thereafter Special Leave Petition bearing No. CC-11360/2010 was also dismissed on 6-8-2013 on the ground of delay with a liberty to the State Government to pursue its own remedy under the law. Thereafter civil suit has been filed seeking declaration on the ground that the order passed by Board of Revenue on 1-11-2000 be declared as null and void and defendant be restrained to not to change nature of the land by alienation or otherwise. On service of summon in a suit, the defendants tendered their appearance and moved an application under Order VII, Rule 11 of Civil Procedure Code inter alia raising the grounds that the suit filed by the plaintiff is barred by limitation. It is said that against cancellation of lease and for eviction proceedings civil suit cannot be maintained under section 257(m) of the M.P. Land Revenue Code (which shall be referred hereinafter as "Code"), and civil suit is barred by limitation.

(3.) After considering the averments of the plaint, objection so raised by defendant, suit was dismissed mainly on three grounds, however, on filing an appeal by the plaintiff/appellant it was dismissed upholding the finding on the point of limitation, and the suit is not maintainable as per section 257(m) of the Code. On the point of res judicata it is said that said issue cannot be decided at the threshold without taking evidence on record. Being aggrieved by the same, this appeal has been preferred.