Madhya Pradesh High Court
Mohanlal vs Ramkanyabai on 23 November, 2019
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
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(M.P. No.5315/2018)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S. B.: Hon'ble Mr Justice Ms. Vandana Kasrekar
M.P. No.5315/2018
Mohanlal
Vs.
Ramkanyabai & Ors.
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Shri Nitin Phadke, learned counsel for the petitioner.
Shri Yogesh Mittal, learned counsel for the respondents.
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ORDER
(Passed on this 23rd day of November, 2019) Per Vandana Kasrekar, J.
This petitioner has filed the present petition challenging the order dated 30/06/2018, passed by the Additional Commissioner Indore Division, Indore.
2. The dispute between the parties is regarding mutation in the revenue records pertaining to the land bearing Survey No.5/1 area 1.677 Hectare situated at Bherupipliya, Tehsil and District Dhar.
3. The land in question originally belonged to the father of the petitioner namely Thavarlal(since deceased). During the lifetime of Thavarlal, in terms of the partition proceedings commenced by Thavarlal, the land in question was mutated in the revenue records in the name of the petitioner on 26/09/2001. 2
(M.P. No.5315/2018) Thavarlal was also the recorded Bhumiswami of a parcel of land situated at village Manpur. After the death of Thavarlal, the land situated at village Manpur was mutated in favour of the petitioner on the basis of a will dated 31/07/2003.
4. The respondents did not raise any objection in respect of the mutation effected in favour of the petitioner for more than 15 years, but in the year 2016-17 they challenged the mutation effected in favour of the petitioner by filing an appeal under Section 44 of the M.P. Land Revenue Code( in short "M.P.L.R.C."), 1959 before the Sub Divisional Officer, Dhar. The appeal was based on the ground that Late Thavarlal had executed a will in favour of the respondents on 9/07/2007. The aforesaid appeal was grossly barred by limitation for which the respondents sought condonation by filing an application under Section 5 of the Limitation Act.
5. The application for condonation of delay was opposed by the petitioner by filing a reply. In addition, the petitioner also filed an application under Order 41 Rule 27 of CPC. The learned S.D.O after considering the explanation given by the respondents for the delay, dismissed the appeal by order dated 10/07/2017. The said order was assailed by the respondents by 3 (M.P. No.5315/2018) filing second appeal under Section 44 (2) of the M.P.L.R.C. The aforesaid appeal preferred by the respondents has been allowed by the learned Additional Commissioner by impugned order dated 30/06/2018. Being aggrieved by that order the petitioner has filed the present petition.
6. Learned counsel for the petitioner argues that the order passed by the Additional Commissioner is illegal and without jurisdiction inasmuch the learned Additional Commissioner has virtually decided the appeal as a civil suit and has recorded findings in the nature of jurisdiction of the civil court regarding the validity of the will set up by the respondents. The learned Additional Commissioner while passing the impugned order has not considered that the respondents had for the first time set up an alleged will after expiry of long time from the death of Thavarji which by itself rendered the alleged will dated 9/07/2007 to be suspicious and not worthy of any credence. He further submits that the Additional Commissioner has passed the impugned order without considering that the S.D.O. has dismissed the appeal on the ground of limitation and in that event, the Commissioner should have remitted back the matter to the S.D.O. for decision on merits.
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(M.P. No.5315/2018)
7. On the other hand, learned counsel for the respondents supports the order passed by the Court below. He further submits that the present writ petition is liable to be dismissed on the ground of concealment of fact. He submits that the petitioner is challenging the impugned order by filing writ petition before the Board of Revenue, Gwalior and the said revision petition was dismissed by order dated 31/10/2018 on the ground that same is not maintainable. He further submits that the order passed by the Commissioner is in accordance with law and in the impugned order, the learned Additional Commissioner did not recorded any findings regarding the validity of any will set up by the respondents. The learned Additional Commissioner has considered the order passed by the authorities and passed the impugned order. The learned Additional Commissioner has recorded the finding to set aside the mutation entries in favour of the petitioner on the ground that the Assistant Superintendent of land records had no jurisdiction to partition of revenue paying land under Section 178(A) of the M.P. Land Revenue Code and, therefore, the order passed by the learned Additional Commissioner was well within its jurisdiction to set aside the order of partition mutation. The order impugned (Annexure-P/1) 5 (M.P. No.5315/2018) was not passed on the basis of will.
8. Heard learned counsel for the parties and perused the record.
9. The dispute in the present case is regarding mutation in the revenue records pertaining to the land bearing Survey No.5/1 area 1.677 hectare situated at Bherupipliya, Tehsil and District Dhar. The disputed land was mutated in favour of the petitioner on the basis of will dated 31/07/2003 and the respondents did not raise any objection in respect of the mutation effected in favour of the petitioner for more than 15 years, but in the year 2016-17 they challenged the mutation effected in favour of the petitioner by filing an appeal under Section 44 of the M.P. Land Revenue Code, 1959 before the Sub Divisional Officer, Dhar. As the said appeal was filed time barred, therefore, the S.D.O. has dismissed the application for condonation of delay. Consequently, the appeal was also dismissed. Thereafter, the said order was assailed by the respondents by filing second appeal before the Additional Commissioner. The Additional Commissioner by impugned order dated 30/06/2018 has allowed the appeal preferred by the respondents. Against that impugned order, the petitioner has 6 (M.P. No.5315/2018) filed the present petition.
10. That in the present case, admittedly, the respondents had filed an appeal before the S.D.O. challenging the mutation proceedings after a period of more than 15 years along with an application for condonation of delay and the S.D.O. by impugned order has not decided the case on merit, but dismissed the appeal on the ground of delay. The learned Additional Commissioner has allowed the appeal preferred by the respondents, but when the S.D.O. has not decided the case on merit then the learned Additional Commissioner after setting aside the order passed by the S.D.O., should have remanded back the matter to the S.D.O. for deciding the appeal on merits. It is further seen that the Additional Commissioner while passing the order has also held that the order of partition is passed by the Assistant Superintendent Land Records and it should have been passed by the Tehsildar as Assistant Superintendent Land Records has no jurisdiction to pass such an order. Therefore, on this ground also the learned Additional Commissioner has set aside the order passed by the S.D.O. While passing the order the learned Additional Commissioner has not taken into consideration the Notification dated 17/02/1972 issued by the 7 (M.P. No.5315/2018) State Government in which the State Government confers on all Superintendents of land Records and the Assistant Superintendents of Land Records in the State, the powers conferred on a Tahsildar by or under Section 110 of the M.P.L.R.C. The Assistant Land Records was within its jurisdiction while passing the impugned order. Further, the learned Additional Commissioner while deciding the appeal has also entertained the said appeal as of civil suit and also determined the rights between the parties, which he cannot by exercising Appellate Court powers.
11. In such circumstances, I allow this miscellaneous petition. The impugned order dated 30/06/2018 passed by the Additional Commissioner is, hereby, set aside and the matter is remanded back to the S.D.O. for deciding the matter afresh on merits.
(Ms. Vandana Kasrekar) Judge pn/ Digitally signed by Preetha Nair Date: 2019.11.27 11:44:52 +05'30' 8 (M.P. No.5315/2018)