Firoj Khan vs State Of Madhya Pradesh And Others

Gurpal Singh Ahluwalia, J

This writ appeal under Section 2 of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Ahdiniyam, 2005 has been filed against the orders dated 29.08.2023 and 04.03.2024 passed by the Learned Single Judge in W.P.No.17864/2022.

It is the case of the appellant that the learned Single Judge by order dated 29.08.2023 had directed for demarcation of Khasra No.2138/1 and 2139 through the revenue authorities through TSM machine.

The demarcation was done on 27.09.2023. However, no notice was given to the petitioner prior thereto. In the demarcation done on 23.09.2023, it was found that the petitioner has encroached upon the some part of Khasra No.2139 by constructing a shop. Accordingly, the learned Single Judge by order dated 04.03.2024 has held that seven encroachers have been identified and let all the encroachment be removed within seven days, if there is no legal impediment in the same.

Challenging the aforesaid both the orders, it is submitted by counsel for appellant that the appellant was not served with a notice prior to the demarcation done on 27.09.2023. Furthermore, the petitioner is the owner of Khasra No.1803/2/3/1 but it is fairly conceded that the petitioner has no title over Khasra No.2139 or 2138/1, situated in Chandiya, District Umaria. It is further submitted that the petitioner had filed an application for intervention in W.P.No.17864/2022, but the said application “has not been considered in arbitrary manner”. It is further submitted that now the petitioner has received a notice dated 05.03.2024 from the Tahsildar, Tehsil Chandiya District, Umaria to the effect that the petitioner should remove his encroachment from Khasra No. 2139 within a period of two days, failing which, coercive steps shall be taken for removal of encroachment.

Per Contra, the application is vehemently opposed by counsel for the respondents. It is submitted that it is incorrect to say that the intervention application filed by the appellant was never considered by the writ Court. In fact, the intervention application was taken up for consideration by the writ Court on 07.03.2024 and on the same day, the said application has been rejected. It is further submitted that the appellant has not claimed his title over Khasara No.2138 and 2139 and therefore, if the authorities have issued notice to remove the encroachment over the said khasra, then it cannot be said that the appellant is an aggrieved party.

Faced with such a situation, it is submitted by counsel for the appellant that the present appeal was filed on 07.03.2024 at 7:30 in the evening. It is true that the arguments on his application for intervention were heard by the learned Single Judge on 07.03.2024 and the order was also dictated in the open Court, but since the order was not uploaded till 7:30 in the evening, therefore, the appellant has not referred the said order in the memo of appeal. However, counsel for the appellant was requested to explain the meaning of his ground that the application for intervention filed by the appellant has not been considered in arbitrary manner. Accordingly, counsel for the appellant was requested to explain the meaning of word ‘arbitrary manner’.

It is fairly conceded by counsel for the appellant that the said word was used without any intention behind it. However, it was submitted that although the order dated 07.03.2024 was dictated in open Court but he could not hear that his application has been rejected.

Heard the learned counsel for the parties.

The factual aspect is that the petitioner was not a party in the W.P.No.17864/2022. He had also filed an application for intervention, which has been dismissed by order dated 07.03.2024 and the said order has not been challenged. Even assuming that the order was uploaded half an hour after filing of this appeal, still the appellant could have moved the application for amendment of writ appeal thereby assailing the order dated 7.3.2024 also. Even that has not been done.

Be that whatever it may be.

The crux of the matter is that the appellant was not a party in W.P.No.17864/2022. The first question for consideration is as to whether the appellant can maintain this appeal without seeking leave from the Court or not ?

When this question was specifically asked to the counsel for the appellant, then it was specifically replied that he is not aware of the legal position and that is why no such application has been filed.

Be that whatever it may be.

If a person who is not a party to a suit feels aggrieved by any order or judgment or decree, then he can always file an appeal by seeking leave from the Court.

The Supreme Court in the case V.N. Krishnamurthy and another vs. Ravi Kumar and others, reported in (2020) 9 SCC 501 has held that only to a “person aggrieved” leave to appeal can be granted. “Person aggrieved” does not include a person who suffers from a psychological or an imaginary injury. A person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized.

The Supreme Court in the case of My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and others, decided on 23.8.2022 in Civil Appeal No.5784/2022 has held as under :-

The respondents in the present case had access to recourse under Section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, and the final decree passed by the High Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under Section 96 of the CPC, for the respondents. Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party. Section 96 of the CPC reads as under:

Appeal from original decree .(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed [ten thousand rupees.]

Sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned.

In the light of the above, it can be safely concluded any aggrieved party can prefer an appeal with the leave of the Court.

Thus, it is clear that where a person who feels aggrieved by any order is not a party to the proceedings, then he can always prefer an appeal by seeking leave to appeal. Unfortunately, no such application has been filed. During the course of arguments, this aspect was repeatedly informed to the counsel for the appellant, but this Court did not receive any response in that regard and all the time counsel for the appellant was trying to justify that the demarcation, which has been done by the authorities is not in accordance with law. However, it was not specifically answered by the counsel for the appellant that the appellant is not in possession of any part of Khasra No.2139. The appellant has no title over Khasra No.2139 situated in Chandiya, District Umaria. Before carrying out the demarcation on 27.9.2023, a notice was sought to be served on the appellant and other persons, but as per the endorsement made by the Kotwar, the petitioner and other persons refused to accept the notice. No specific averment has been made in the memo of appeal that the said endorsement is false. It is merely said that the appellant was never served with the notice. Once, a notice was sought to be served on the appellant and if he refuses to accept the same, then subsequently he cannot make a complaint that an ex-parte demarcation was done specifically when there was already an order by the High Court to carry out the demarcation.

It is further submitted by counsel for the appellant that thereafter, one more notice was served on the appellant on 12.10.2023, but the said fact is not mentioned in the memo of appeal.

Considering the totality of the facts and circumstances of the case, coupled with the fact that appellant has been found to be in possession of part of Khasra No.2139 as an encroacher and even otherwise, it is not the case of the appellant that he has any title or right over Khasra No.2139 situated in Chandiya, District Umaria, this Court does not find any infirmity in the order passed by the learned Single Judge. Furthermore, the learned Single Judge has not given any finding, but has simply directed the authorities to proceed further in accordance with the demarcation report.

For the reasons mentioned above, this Court is of considered opinion that no case is made out warranting interference.

The appeal fails and is hereby dismissed.