Madhya Pradesh High Court
Kashi Bai vs Laxman Singh (Deleted) Through Lrs (A) ... on 27 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:2933
1 WP-1750-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 27th OF JANUARY, 2025
WRIT PETITION No. 1750 of 2008
KASHI BAI
Versus
LAXMAN SINGH (DELETED) THROUGH LRS (A) SMT MEERA BAI
AND OTHERS
Appearance:
Shri Ravi Choudhary - Advocate for the petitioner [P-1].
Shri Arvind Kumar Agrawal, Advocate for the respondent .
ORDER
The present petition under Article 226 of the Constitution of India is directed against the order dated 20.3.2008 passed by the Board of Revenue in Revision No.482-PBR/7, whereby while allowing the revision, the order dated 12.3.2007 passed by the Additional Commissioner in Revision No.341/2005-06 was affirmed, whereby the order dated 30.6.2006 passed by the Additional Collector, District Gwalior in Case No.32/2005-06/Revision was set aside.
2. Further challenge is made to the order dated 4.1.2006 passed in Appeal No.102/2004-05 by the Sub Divisional Officer, Gwalior whereby while allowing the appeal the order of mutation dated 28.3.1981 passed in favour of present respondents was set aside and the matter was remitted back to the Tehsildar, Gwalior for deciding the matter afresh after giving opportunity of hearing to the party concerned.
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3. Learned counsel for the petitioner had argued before this Court that in Appeal no. 102/2004-05 before the Sub Divisional Officer the challenge was made to an order dated 28.3.1981, whereby the names of present respondents were mutated in the revenue records (Namantran Panji) after a period of 24 years which after going through the merits of the matter was condoned and the appeal was decided on merits and by deciding the said appeal the Namantran Panji dated 28.3.1981 was set aside and the matter was remitted back to the Tehsildar for fresh adjudication after giving opportunity of hearing to the parties and though the said order was appealable as per unamended Section 44 of M.P. Land Revenue Code, a revision was preferred against the said order before the Additional Collector by present respondent which was dismissed, against which another the revision was preferred before Additional Commissioner which was allowed vide order dated 12.3.2007, which was bad in law as the very revision before the Additional Collector was not maintainable, thus, the second revision against the order of revision was also not maintainable, therefore, no order could have been passed and since the jurisdiction to hear the revision was not vested with the Additional Collector the same deserved to be dismissed as not maintainable. While referring to sub-section (2) of section 44 of M.P. Land Revenue Code it was argued that clause (III) of said section provides that if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost, a second appeal would lie and as per section 50 of the unamended provision sub-section (1) the revision would lie against an order passed by the revenue officer to Board of Revenue, Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer in which no appeal lies and since there is provision of second appeal the revision was not at all maintainable, but the fact was ignored by the Additional Commissioner and Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 3 WP-1750-2008 Board of Revenue, and therefore the present petition deserves to be allowed and the order dated 12.3.2007 passed by Additional Commissioner and order dated 12.3.2007 passed by Additional Commissioner and order dated 20.3.2008 passed by the Board of Revenue deserves to be quashed.
4. While referring to the judgment passed by the Apex Court in the matter of Vineeta Sharma Vs. Rakesh Sharma and others, 2021 (1) MPLJ 209 it was argued that Section 6 of Hindu Succession Act as amended confers status of coparcener on a daughter born before or after amendment in same manner as son with same rights and liabilities and as present petitioner was a coparcner in the property, mutation of the names of the respondents in the revenue records to the exclusion of the name of the petitioner was perse illegal, therefore, learned Sub Divisional Officer was right in setting aside the Namantran Panji and remitting the matter back to the Teshildar for fresh adjudication.
5. Per contra learned counsel for the respondents had argued before this Court that the ground of maintainability of revision before the Additional Collector against the order of Sub Divisional Officer dated 4.1.2006 has been raised for the first time during the course of the arguments as neither before the Additional Commissioner or before the Board of Revenue or before this Court in the pleadings this aspect was ever raised. Thus, at this late juncture holding the orders passed by the Additional Commissioner dated 12.3.2007 and by the Board of Revenue dated 20.3.2008 cannot be held to be perverse.
6 . It was further argued that the nomenclature used by the Revenue Authorities, in a case, meaning a specific letter or title given will not determine the final outcome of the fate of the case and the Court has to look into the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 4 WP-1750-2008 substance of the dispute and the legal arguments presented not just the terminology used, thus, even if the matter before the Additional Commissioner was labeled as a revision under section 50 of the M.P. Land Revenue Code it could be treated as Second Appeal under section 44 as the Additional Collector has not dismissed the revision on the ground of maintainability rather had addressed upon the merits of the matter and thereafter has dismissed the revision.
7 . It was further argued that if the order passed by the Additional Collector is treated as passed in Second Appeal, the revision before the Additional Commissioner by the present respondents would be very well maintainable, whereby the learned Additional Commissioner had rightly observed that since the Namanatran Panji dated 28.3.1981 has been challenged after a lapse of 24 years and no explanation much-less plausible explanation has been afforded on behalf of the petitioner in preferring the appeal, therefore, the S.D.O. had erred in condoning the huge delay of 24 years.
8. It was further argued that object for fixing time-limit for litigation is based on public policy for fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. It has further been argued that the Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
9. It was further argued that the Court cannot enquire into belated and stale claims on the ground of equity, as delay defeats equity. In furtherance of his arguments it was submitted by the learned counsel that the Courts help Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 5 WP-1750-2008 those who are vigilant and do not slumber over their rights. To bolster his submissions learned counsel has placed reliance in the matter of Mohd. Sahid and others Vs. Raziya Khanam (dead) through legal representatives and others, (2019) 11 SCC 384 and in the matter of Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi and others, 2022 (1) MPLJ 519.
10. Heard the counsel for the parties and perused the record.
11. So far as the arguments raised by the counsel for the petitioner that the revision before the Additional Commissioner against the order passed by the Sub Divisional Officer in First Appeal No.102/2004-05 dated 4.1.2006 in the light of the provisions of un-amended section 50 of M.P. Land Revenue Code was not maintainable is concerned, admittedly, the original order dated 28.3.1981 whereby mutation was carried out in the revenue records of the name of present respondents was reversed in first appeal preferred before the S.D.O. vide order dated 4.1.2006 and while setting aside the said order the matter was remitted back. Thus, in the light of unamended section 44 sub section (2) (iii) (a), the second appeal was maintainable, but instead whereof the revision under section 50 of the M.P. Land Revenue Code has been filed.
12. As per section 44 sub section (2) the second appeal shall lie against every order passed in First Appeal under M.P. Land Revenue Code and the Rules made thereunder by S.D.O. or Collector to the Commissioner.
13. Herein case at the stage of preferring second appeal firstly a mistake was committed by the present respondent in preferring the revision and that too before the Collector which in any way was not maintainable. Thereafter again a mistake was committed in preferring a revision before the Commissioner Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 6 WP-1750-2008 challenging the order passed in revision by the Additional Collector when as per the unamended provisions of Section 44 (2) (iii) (a) of the M.P. Land Revenue Code he was the second Appellate Authority. Thus, the second appeal would have been right forum before the Commissioner, to have agitated the order passed by the Sub Divisional Officer in first appeal and the revision would not have been proper remedy.
14. Be that as it may the Apex Court in the matter of Kiran Devi Vs. Bihar Stat Sunni Wakf Board, reported in (2021) 15 SCC 15 the three Judges Bench had reiterated with nomenclature under which the case is filed is not relevant and does not debar the Court from exercising its jurisdiction which otherwise it possesses. In the aforesaid case the Court while hearing the case decided by the High Court wherein challenge was made to an order of Wakf Tribunal in a petition styled under Article 226 of the Constitution observed that when a petition is filed against an order of Wakf Tribunal before the High Court, the High Court exercising jurisdiction under Article 227 of the Constitution of India therefore it is wholly immaterial that the petition was titled as writ petition as infact in certain High Court's petition under Article 227 is titled as Writ Petition, in certain other High Court's as Revision Petition and in certain others High Court as Misc. Petition. Further it was held that proviso to sub-section (9) of section 83 of the Waqf Act, 1993 confers powers on the High Court to call for examine the records relating to a dispute question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality and propriety of such determination. Thus, it was held that statutory provisions is acceptance of principle that the Jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed.
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15. While relying upon the decision of the Pepsi Food Ltd. and Anr. Vs. Special Judicial Magistrate and Ors., reported in (1998) 5 SCC 749 the Apex Court further held as under: "Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise the jurisdiction under the Act or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety or determination any dispute of the Tribuanl is a reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226, 227 of the Constitution of India is wholly inconsequential and immaterial.
16. In the light of the aforesaid enunciation it could be gathered that the nomenclature under which matter is filed would quite not be relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possessed. Herein case as per provisions of section 44 (iii) (a) Commissioner is the second appellate authority, thus, had a right to exercise jurisdiction to hear an order challenging the first appeal. On this count this court does not find any reason to hold that the order passed by the Additional Commissioner dated 12.3.2007 is bad in law.
17. So far as the merits of the matter is concerned the contention of the petitioner is that the petitioner being a coparcener being a daughter born to the original bhumiswami was entitled to get her name mutated in the revenue record and as per section 6 (1) (b) of the Hindu Succession Act daughters by their birth have the same rights in the co-paracenery property as that is enjoyed by the son and they are subject to same liabilities as provided in section 6 (1) (c) and since the present petitioner is a coparcener in the property left by her father, the very mutation in the revenue records of their names excluding the name of Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 8 WP-1750-2008 present petitioner was bad in law.
18. With regard to the aforesaid it is trite to observe that merits of the matter can only be gone into when a legal remedy is promptly availed without any delay against an order of curtailment of rights of party as it is settled that law comes to assistance of the vigilant and not of the sleepy. It is also trite law that Court cannot enquire into belated and stale claims on the ground of equity as delay defeats equity and the court helps those who are vigilant and do not slumber over their rights.
19. In the aforesaid context, if the legal position with regard to section 5 of Limitation Act is seen then two important considerations are required to be bear in mind; the first consideration that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the person in whose favour the order has been passed. In other words, when the period of limitation prescribed has expired and the person has obtained a benefit under the law of limitation to treat the order as beyond challenge, and this legal right which has accrued to the person by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone the delay and this discretion has been deliberately conferred on the Court in order that judicial power in that behalf should be exercised to advance substantial justice. Thus, section 5 of the Limitation Act gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well recognized, the words "sufficient cause" receiving a liberal construction so as to advance Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 9 WP-1750-2008 substantial justice when no negligence nor inaction nor want of bonafide is imputable to the person.
20. It is also settled preposition that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly and though the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts has no power to extend the period of limitation on equitable grounds. In the case of Pudlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448 it has been observed as under:
The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
21. Further in the case of Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81 , it is observed and held by the Apex Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 10 WP-1750-2008 with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by the Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
22. Further in the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".
23. The Apex Court in the matter of Majji Sannemma @ Sanyasirao (supra) while considering the aforesaid judgment has held as under:
8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane.
Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein - original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.
24. As the very order dated 28.3.1981 has been challenged by the present petitioner after a lapse of 24 years with an explanation that for the first time the fact of passing of the said order came to the knowledge of the petitioner on Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:2933 11 WP-1750-2008 29.6.2005 when the mutation of the names of the respondents in their revenue records was informed by the then Patwari and except for the aforesaid explanation nothing has been mentioned in the application regarding the delay from 28.3.1981 till 29.6.2005. Apart from that one agreement dated 15.10.2003 has also been placed on record wherein it was agreed by the present petitioner that she had no objection if the lands are given to the respondents and even it is assumed that the petitioner has acquired the knowledge on the date when the said agreement was executed, the appeal before the S.D.O. was preferred in the year 2005 after a lapse of approximately two years.
25. Though the said agreement dated 15.10.2023 is stated to be a forged document, no pleadings are there in the entire petition about the same. Thus, it cannot be presumed that the petitioner was not having knowledge of mutation entries in the revenue records. Thus, this Court is of the opinion that no explanation much less sufficient or satisfactory explanation has been offered by the petitioner herein before the Sub Divisional Officer while preferring the appeal for condonation of huge delay of 24 years and Sub Divisional Officer only on the ground of equity had condoned the huge delay, thus was not at all justified in exercising the discretion to condone such huge delay and had not exercised its discretion judiciously. The reasoning given by the Sub Divisional Officer while condoning the delay of 24 years is not germane, therefore, the order passed by the Sub Divisional Officer was unsustainable both on law as well as on facts.
2 6 . Accordingly, this Court finds that no illegality has been committed by learned Additional Commissioner and the Board of Revenue in dismissing the first appeal and affirming the order of mutation.
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27. The petition is accordingly sans merits and is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE (aspr) Signature Not Verified Signed by: ASHISH PAWAR Signing time: 13-02-2025 06:57:18 PM