Madhya Pradesh High Court
Sharda Bai vs Kedar Singh on 21 August, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
1
W.P. No.1715/2012
THE HIGH COURT OF MADHYA PRADESH
W.P. No.-1715-2012
(SHARDA BAI Vs KEDAR SINGH)
Gwalior, Dated :21/08/2019
Shri Shashank Indapurkar Advocate for the petitioners.
Shri N.K. Gupta Senior Advocate with Shri S.D. Singh,
for the respondents No.1 & 2.
Shri Ankur Modi, Additional Advocate General for the respondents No.3 & 4.
With the consent of the parties, the matter is finally heard.
The present petition has been filed by the petitioners challenging the order dated 8.11.2011 passed by Tehsildar, Antri, District Gwalior, whereby the learned Tehsildar has allowed the mutation proceedings in favour of respondents No.1 and 2.
2. It is alleged by counsel for petitioner that property situated in village Antri, District Gwalior ad-measuring 14 bigha 1 biswa in Survey No.1716 was in possession of Phoolchandra. A Civil Suit for declaration of title and permanent injunction and for declaration of registered sale deed dated 16.6.1995 to be null and void executed by petitioner No.1 in favour of respondents No.1 & 2. During the pendency of the Civil Suit, the statement of Sharda Bai was recorded, wherein she has categorically stated that Phoolchandra, predecessor of petitioner a to g are in possession over the property right from 2 W.P. No.1715/2012 1962-63 and she did not offer possession to respondents No.1 & 2, and the registered sale deed has been executed by playing fraud or coercion. An application under Order 39 Rule 1 & 2 CPC was filed in the Civil Suit which was decided on 19.10.1995 in favour of Phoolchandra, the respondents No.1 and 2 has remained ex-parte in the Civil Suit.
3. A Civil Appeal was filed against the order dated 19.10.1995 and the same was finally heard and decided vide order dated 14.9.1998 and the appeal was dismissed, on the basis of registered sale deed an application for mutation was filed and the Naib Tehsildar has allowed application for mutation vide order dated 3.9.1996. Against the same, an appeal was preferred before S.D.O. which was allowed on 30.3.1999, wherein it is observed by the Appellate Court that as the injunction has been granted in the Civil Suit, therefore mutation cannot be changed during the pendency of the Civil Suit and till the decision of the Civil Suit mutation process were stayed. An appeal was preferred against the order passed by S.D.O. to the Additional Commissioner by the respondents No.1 and 2 which was registered as appeal No.251/98- 99/Appeal and appeal was dismissed by the Additional Commissioner. Thus, the order passed by learned S.D.O. was affirmed by the Additional Commissioner on 12.4.2002 and the same has attained finality. It is further submitted that learned Tehsildar has committed a grave error in entertaining the 3 W.P. No.1715/2012 application for mutation and allowing the mutation on the basis of registered sale deed which was challenged in the Civil proceedings and the civil suit was pending. The Civil Suit was finally dismissed by the judgment and decree dated 7.9.2010 and an appeal has been filed by the legal heirs of Phoolchandra which was pending before the Additional District judge, Dabra. It is argued by counsel for the petitioner that it is a settled principles of law that the appeal is a continuation of suit, therefore, the respondents authorities should have waited for the decision of the appeal and the order passed by the learned S.D.O. which was finally affirmed upto Board of Revenue should have been maintained but the Tehsildar has committed an error in entertaining the application for mutation on the basis of registered sale deed by suppressing the facts of the case. The Naib Tehsildar did not even bother to take care of the fact that and to inquire about pendency of the appeal and the previous orders passed by learned S.D.O. which was affirmed up to the Revenue Board while entertaining the mutation application and without issuing any notice has passed the impugned order dated 8.11.2011 which is per se illegal, contrary to law and against the settled principles of natural justice, hence the present petition has been filed.
4. Counsel for the petitioner has alleged that after dismissal of Civil Suit an appeal was filed and appeal being continuation of suit, therefore, the learned Tehsildar should have taken care 4 W.P. No.1715/2012 of the orders by learned S.D.O. which was affirmed up to the Board of Revenue but the Tahsildar has not taken care of the aforesaid order and has passed the impugned order and has allowed the mutation application which itself is per se illegal as the mutation proceedings are hit by the constructive res judicata. It is further argued that when the registered sale deed on the basis of which the order impugned has been passed is put to question before learned trial court initially and now against which an appeal is filed and pending before the Additional District Judge, the authorities should have waited for decision of the appeal prior to allowing the application for mutation.
5. Per contra learned counsel appearing for the respondents has contended that writ petition is not maintainable owing to the fact that despite having a statutory remedy of appeal before the Sub Divisional officer u/S.44 of M.P. Land Revenue Code, 1959, the present petition is being preferred directly before this Hon'ble Court challenging the order dated 8.11.2011, therefore, is not maintainable. The petitioner should have availed the alternative and efficacious remedy available to the petitioners against the order passed by Naib Tehsildar. It is further contended that the Hon'ble Court vide order dated 02.04.2012 has granted interim relief and has directed to maintain status quo to the parties, the petitioner taking advantage of the order dated 2.4.2012 in a collusive manner has removed the name of 5 W.P. No.1715/2012 respondents No.1 & 2 from the Khasra entries in column No.3 and somehow managed to enter the name of petitioner in column No.3 in the year 2012-13 without obtaining any order from the competent authority. Thus, they have violated the terms and conditions of the interim order.
6. A return has been filed by the respondents No. 3 and 4 denying all the averments of the petition and further contended petitioner is having alternative and efficacious remedy of filing the appeal u/s.44 of M.P. Land Revenue Code before Sub Divisional Officer. It is further contended that after dismissal of the Civil Suit the names of respondents No.1 & 2 have applied for mutation of the names in the revenue records on the basis of registered sale deed and the learned Naib Tehsildar has allowed the mutation application and the names have been entered into Revenue Records. It is further contended that petition is not maintainable in the facts and circumstances of the case as a remedy of appeal is available u/S. 44 of the M.P. Land Revenue Code which should be availed by the petitioner. On these grounds, prayed for dismissal of the writ petition.
7. Heard the learned counsel for the parties and perused the record.
8. From perusal of record, it is seen that this Court vide order dated 2.4.2012 has directed for maintaining status quo. A Civil Suit was filed with respect to property in question which was registered as Civil Suit No.97-A/95 for declaration of title 6 W.P. No.1715/2012 and permanent injunction and for declaring the sale deed null and void. An application for mutation was filed by the respondents No.1 and 2 on the basis of registered sale deed dated 16.6.1995. The mutation application was allowed by learned Tehsildar against which an appeal was preferred before learned S.D.O. and order passed by learned S.D.O. was affirmed by Additional Commissioner and it was observed that no mutation proceedings should have taken place till pendency of the Civil Suit. The civil suit was finally heard and dismissed by judgment and decree dated 7.9.2010 against which an appeal has been preferred, the respondents No.1 and 2 has again filed an application for mutation of their names which was allowed by the Naib Tehsildar the aforesaid order passed by Naib Tehsildar was put to challenge before this court on the ground that the appeal being continuation of suit as there was already a direction for maintaining the status quo to the parties and considering the direction of status quo the learned S.D.O. has allowed the Appeal which was subsequently affirmed by Additional Commissioner. Thus, it is clear that there was already a status quo order passed by the Court below. It is trite law held by Hon'ble Supreme Court that mutation that does not confer any title rather the same is used for revenue purpose. There is already an interim order passed by this Court in the present appeal and as statutory remedy of appeal has been provided against the order passed by Naib Tehsildar, therefore, 7 W.P. No.1715/2012 in such circumstances, this court refrains from passing any order on merits of the case.
9. Accordingly, the present petition is disposed of with a direction to the petitioners to prefer an appeal against the order dated 8.11.2011 passed by Tehsildar u/S.44 of M.P. Land Revenue Code along with all the relevant documents and the certified copy of this order and the Tehsildar on receipt of such appeal shall consider and decide the same within a further period of three months from the date of receipt of copy of appeal along with certified copy of this order.
10. The petitioners are directed to file an application alongwith certified copy of this order for interim relief before the Appellate Authority and if such application is being filed by the petitioners alongwith certified copy of this order, the Appellate Authority is directed to consider the application for interim relief within a period of fifteen (15) days from filing of application. The outcome of the same shall be communicated to the petitioners within the aforesaid period.
11. Till the decision of interim application, status quo as directed by the Hon'ble High Court is directed to be maintained by the parties.
12. Accordingly, the petition is disposed off. No order as to costs.
(Vishal Mishra)
vpn Judge
VIPIN KUMAR
AGRAHARI
2019.10.01 10:46:54
+05'30'