Madhya Pradesh High Court
Rohit vs The State Of Madhya Pradesh on 19 May, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
NEUTRAL CITATION NO. 2025:MPHC-IND:13964
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W.P. No.2946 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 19th OF MAY, 2025
WRIT PETITION No. 2946 of 2025
ROHIT
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mohan Sharma- Advocate for the petitioner.
Shri Rajwardhan Gawde- P.L./G.A. for the State.
Shri Makbool Ahmad Mansoori- Advocate for the respondent
Nos.5 and 6.
ORDER
1] This petition has been filed by the petitioner under Article 226
of Constitution of India, against the order dated 13.12.2024, passed by the
Additional Commissioner, in a revision arising out of an order dated
11.07.2024, passed by the SDO (Revenue) District Dhar, in an appeal,
arising out of an order dated 13.06.2024, passed by the Tehsildar under
the proceedings under Section 131 of the M.P. Land Revenue Code, 1959
(hereinafter referred to as the Code of 1959).
2] Vide order dated 13.06.2024, the Tehsildar has allowed the
aforesaid the application filed by the respondent Nos.5 and 6, claiming
their right of way through the petitioner’s land.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 05-06-2025
11:24:29
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W.P. No.2946 of 2025
3] In brief, the facts of the case are that respondent Nos.5 and 6
purchased the land bearing Survey Nos.185/2/1, 185/2/2 and 185/2/3,
situated at village Sunarkhedi, Tehsil and District Dhar from one
Laxmibai, wife of Ratanlal Sugaliya, through a registered sale deed dated
28.04.2023. It is further the case of the petitioner that the respondent
Nos.5 and 6 preferred an application under Section 131 of the Code of
1959, claiming passage from the land bearing survey No.185/1 which
belongs to the petitioner. In the aforesaid application, the Tehsildar
directed the Halka Patwari to submit its report after inspecting the land,
and in the meanwhile, notices were also issued to the petitioner.
4] According to the petitioner, the spot inspection was conducted
on 26.06.2023 in his absence, and the petitioner, after giving his
appearance on 30.06.2023, also filed an application on 21.07.2023 under
Order 26 Rule IX of CPC for conducting spot inspection in his presence,
however, the application was rejected on the same day. Thereafter, the
petitioner also filed a detailed reply, contending that there is no passage
available from his land at Survey No.185/1,and also that there are
tubewell, trees and electricity poles, DP of the electricity line erected on
the said place, which is being shown as a passage by the respondent
Nos.5 and 6. The Tehsildar, after recording the evidence of the parties,
allowed the application on 13.06.2024, and the SDO has affirmed the
same in the appeal, whereas the revision preferred by the petitioner
against the order passed by the SDO on 11.07.2024 has also been rejected
by the Additional Collector vide its impugned order dated 13.12.2024.
Thus, this petition.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 05-06-2025
11:24:29
NEUTRAL CITATION NO. 2025:MPHC-IND:13964
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W.P. No.2946 of 2025
5] Shri Mohan Sharma, learned counsel for the petitioner has
vehemently argued before this Court that both the authorities below have
erred in affirming the order passed by the Tehsildar by wrongly
appreciating the evidence produced by the parties on record. It is
submitted that there was no customary way available from the petitioner’s
land at Survey No.185/1, as the respondents and their predecessors were
already using a way from Survey No. 198 and 185/3 to reach to Survey
No. 185/2. Counsel has also drawn the attention of this Court to the sale
deed executed in favour of the respondent Nos.5 and 6, in which it is not
mentioned anywhere that the predecessor in title of the respondent Nos.5
and 6, namely Laxmibai used to approach her land at Survey No.185/2
from the northern side of the petitioner’s land at Survey No. 185/1.
6] Counsel for the respondent Nos. 5 and 6, on the other hand, has
opposed the prayer, and it is submitted that no case for interference is
made out, looking to the concurrent finding of fact recorded by all the
revenue authorities below.
7] Counsel has also drawn the attention of this Court to the sale
deed executed in favour of the respondent Nos.5 and 6 by Smt. Laxmibai,
wherein, in para 4, it is also mentioned that apart from the land, all the
other easementary rights which were available to the said Laxmibai
would also be transferred to the respondent Nos.5 and 6, and thus, it is
submitted that since Laxmibai was already using the land of the petitioner
to approach the land at Survey No.185/2, the authorities have rightly
appreciated the documents filed on record by the parties, as also the
evidence adduced. The respondent Nos.5 and 6 have also relied upon the
sale deed executed in favour of the petitioner by one Smt. Shivkali Bai
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 05-06-2025
11:24:29
NEUTRAL CITATION NO. 2025:MPHC-IND:13964
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W.P. No.2946 of 2025
Mali, which was executed on 06.05.2017. It is submitted that the
aforesaid sale deed contains a specific recital to the effect that the vendee
under the deed would keep continue to use the already existing way
located within the adjacent land bearing Survey No.182, like the vendor
in the deed. It is submitted that the said recital in the sale deed leaves no
doubt that even at the time of execution of the sale deed, the customary
way remained in existence within the adjacent land of Survey No. 182 to
approach the land at Survey No. 185/1. It is submitted that the dispute has
arisen only when the petitioner made an attempt to obstruct the customary
use of way by the respondent Nos. 5 and 6. Thus, it is submitted that the
petition being devoid of merits, is liable to be dismissed.
8] Heard counsel for the parties and perused the record.
9] From the record, it is apparent that that the three Revenue
Authorities have decided in favour of the respondent Nos.5 and 6 in
respect of their claim of right of way from the petitioner’s land at Survey
No. 185/1. It is also found that parties have also adduced the evidence in
respect of their respective claims, however, it would be pertinent to note
here that the petitioner has not examined any other person in his defence,
apart from himself.
10] In the considered opinion of this Court, the burden of proof lay
on the petitioner to rebut the assertions made by the respondent Nos.5 and
6 in their applications, and thus, the authorities have found that the
petitioner has not been able to rebut the claim of the respondent Nos.5
and 6.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 05-06-2025
11:24:29
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W.P. No.2946 of 2025
11] In such facts and circumstances of the case, this Court does not
find it to be a fit case to interfere while exercising its jurisdiction under
Article 226 of the Constitution of India.
12] Accordingly, the petition being devoid of merits is hereby
dismissed.
(SUBODH ABHYANKAR)
JUDGE
Bahar
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 05-06-2025
11:24:29