High Court Madhya Pradesh High Court

Keshav Sharma vs The State Of Madhya Pradesh on 16 July, 2010

Madhya Pradesh High Court
Keshav Sharma vs The State Of Madhya Pradesh on 16 July, 2010
                              M.A. No. 3116/2010
16-7-10

                Heard Shri B.L. Malviya, Advocate with Shri L.C. Chourasiya,

          Advocate for the appellant on the question of admission.

                This is an appeal under Order 43 Rule (1) read with Section 104

          of the CPC challenging the order dated 26.6.2010 passed by the

          learned Third Additional District Judge, Bhopal in Regular Civil Suit

          No.198-A/2010 wherein the trial court has rejected the application for

          grant of temporary injunction.

                It is contended on behalf of the appellant that on 22.5.2002 the

          appellant had applied to the Municipal Corporation for construction of

          a house and water tank on the suit land. Even after expiry of period of

          one month therefrom no response was received. There was neither

          any objection nor consent on behalf of the Corporation on the

          application dated 22.5.2002. Therefore, the inaction on the part of

          the respondent shall be treated to be their consent for construction

and accordingly the appellant has raised construction on the suit land

and their possession is established.

On behalf of the plaintiff a copy of the registration certificate

under the M.P. Shops & Establishment Act, 1958 issued in the name

of plaintiff’s son Vikrant Sharma for the suit property was presented

before the trial Court. On scrutiny of the same, the trial Court has
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observed that the said certificate issued by the office of Municipal

Corporation, Bhopal did not bear the Khasra number of the disputed

land though the address was mentioned as “Opposite Lalghati

Campus Board Office Guest House, Bhopal”. Moreover, the son of

plaintiff, namely, Vikrant Sharma, was not a party to the case and

hence, the said certificate of registration for carrying out business on

the suit property has been disbelieved. Counsel appearing for the

appellant has failed to point out as to how the finding of the trial

Court in that regard is bad in law.

The trial Court in its order dated 26.6.2010 has held that it was

a government land and the appellant was only the encroacher on the

suit land. In the plaint it is stated that the appellant is in possession of

the suit land for last 37 years but the trial Court has come to the

conclusion that no documents were filed by the plaintiff to

substantiate and prove their possession over the suit land for last 37

years. Once the appellant is found to be an encroacher on the suit

land belonging to the government and prima facie no legal

possession is established by way of any concrete evidence then no

advantage of the construction raised by virtue of so-called tacit

consent can be claimed by the appellant.

In this reference, Section 294 of the M.P. Municipal Corporation

Act, 1956 are relevant wherein it is required that every person who

intends to erect or re-erect a building shall submit to the
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Commissioner an application in writing for approval of the site

together with a site plan of the land, ground plan, elevation and

section of the building etc. and such other particulars as may be

prescribed in the byelaws. It is seen that in the present case the

relevant map and document containing necessary particular etc. were

not filed, therefore, in my opinion the trial Court has rightly come to

the conclusion that there was no map and necessary document

produced by the plaintiff.

There is no prima facie case made out to justify the grant of

injunction in favour of the appellant.

In view of the aforesaid, I do not find any substance in the

appeal. The appeal is accordingly dismissed.

(R.K. GUPTA)
Judge
S/