Madhya Pradesh High Court
Smt. Nandita Singh vs Ranjit Alias Bhaiyu Mohite on 20 October, 2021
Author: Anand Pathak
Bench: Anand Pathak
1 W.A.No.317/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
JUSTICE SHEEL NAGU
&
JUSTICE ANAND PATHAK
WRIT APPEAL NO.317/2021
Smt. Nandita Singh
Versus
Ranjit alias Bhaiyu Mohite & Ors.
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Shri R.N. Singh, learned senior counsel with Shri Harshvardhan
Topre, learned counsel for the appellant.
Shri V.K. Bhardwaj, learned senior counsel with Shri Rohit Batham,
learned counsel for respondent No.1.
Shri D.D. Bansal, learned Government Advocate for respondent
No.4/State.
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JUDGMENT
{Delivered on 20th day of October, 2021} Per Justice Anand Pathak, J.:
1. The present appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalay (Khand Nyay Peeth Ko Appeal), Adhiniyam, 2005 arising out of the order dated 16-02-2021 passed in Miscellaneous Petition No.2692/2020 by learned Writ Court whereby the petition preferred by respondent No.1 as petitioner has been allowed with certain directions and order dated 10-10-
2002 passed by Tahsildar, Tahsil Gwalior and order dated 07- 2 W.A.No.317/2021 12-2018 passed by SDO, Lashkar District Gwalior as well as order dated 10-06-2020 passed by Additional Commissioner, Gwalior Division have been set aside.
2. Precisely stated facts of the case are that appellant -Smt. Nandita Singh filed an application under Section 110 of M.P. Land Revenue Code, 1959 (hereinafter referred to as "the Code") before the Tahsildar for mutation of her name on the basis of Will purportedly executed by Vijay Singh Rao Mohite, son of Late Shankar Rao Mohite (also known as ''Vijay Singh Rao Ghorpade) in respect of Survey Nos.18, 19, 22, 23, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 162, 163, 164, 165, 166, 167, 168, 169, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188 and 189, admeasuring area 49 bigha 6 biswa situate at Village Ghatampur, Tahsil and District Gwalior.
3. Respondent No.1 canvassed the case before Tahsildar by making submissions that she was brought up by the testator (Vijay Singh Rao Mohite) when she was 10 years old and her marriage was also performed by the testator out of love and affection and due to the fact that he married her mother and thereafter her mother also brought respondent No.1 to the house of testator, therefore, testator executed an unregistered 3 W.A.No.317/2021 Will on 04-04-2002 in favour of appellant. It appears from the order dated 10-10-2002 (although records/proceedings are not available) passed by Tahsildar, Tahsil Gwalior that a public notice was issued but since nobody objected therefore, after examining two attesting witnesses of unregistered Will and taking the statement of Patwari, the direction for mutation of name of respondent No.1 on the basis of said unregistered Will was made.
4. It appears that present petitioner did not have any such inkling about such development and when he came to know about the same he preferred an appeal along with application for condonation of delay which was registered before the SDO. Vide order dated 07-12-2018, SDO, Lashkar District Gwalior dismissed the appeal preferred by the petitioner as barred by time as well as on merits.
5. Being aggrieved by the said order, further appeal has been preferred by the petitioner before Additional Commissioner, Gwalior Division which also met the same fate. Therefore, petitioner preferred miscellaneous petition primarily under Article 227 of Constitution of India before learned Writ Court. In the Writ Court it was the arguments of petitioner that revenue Court is not competent Court to mutate the name on the basis of an unregistered Will. Respondent No.1 at best can propound the Will through Civil Court by establishing her 4 W.A.No.317/2021 bona fides through evidence. Revenue Courts are bereft of such jurisdiction.
6. Respondent No.1 of writ petition, who happens to be appellant in this case objected the said submissions on the ground that respondent No.1 caused examination of both the attesting witnesses who specifically proved the Will about signature of testator in their presence as well as their signatures over the Will in the presence of testator. Therefore, it is her submission that Will was duly proved by appellant.
7. After considering the rival submissions, learned Writ Court passed the impugned order and held that revenue Courts have no jurisdiction to decide title on the basis of Will and therefore, revenue Court cannot cause mutation through Will. After detailed discussion whereby taking into ambit, the provisions of Sections 31, 110 and 178 of the Code held that order passed by Tahsildar is void-ab-initio since he did not have any jurisdiction to pass such order. Resultantly, other two orders of appellate revenue Courts were also quashed by learned Writ Court and on the basis of submission of parties about pendency of Civil Suit vide COS No.533-A/2017 before 7 th Civil Judge Class -I, Gwalior, directions were given by the Writ Court that till final adjudication by the Civil Court about respective claims, status- quo was directed to be maintained and meanwhile names of all Legal Heirs of late Vijay Singh Rao Mohite were directed to be 5 W.A.No.317/2021 made in revenue records while deleting the name of appellant from those revenue records. It is further observed that if any legal heir is not available, then name of State Government be recorded as Bhumiswami till adjudication of Civil Suit. This has precipitated filing of this appeal at the instance of appellant whose name got deleted from the revenue record by the order of learned Writ Court.
8. It is the submission of learned senior counsel appearing for the appellant/respondent No.1 that learned Writ Court caused illegality and arbitrariness in passing the impugned order. Impugned order suffers from jurisdictional error also because learned Writ Court directed the authorities to delete the name of respondent No.1 and mutate the name of State Government till civil suit is decided. In other words, as per appellant, jurisdiction of Civil Court has been taken by learned Writ Court and pre empted the controversy. When question of title is to be decided by the Civil Court then it should be left to the discretion of the Civil Court to decide the suit as well as different applications including application for temporary injunction.
9. It is further submitted that Tahsildar has not caused any procedural irregularity or illegality in passing the order dated 10-10-2002 whereby name of present appellant has been mutated over the land in dispute. Tahsildar invited the 6 W.A.No.317/2021 objections and in absence of any objection he recorded the statements of two attesting witnesses and requisitioned report from Patwari. Therefore, no illegality or procedural irregularity has been committed by him as per the powers vested in him under Section 110 of the Code.
10. It is the submission of learned senior counsel that drawing analogy from Section 178(1) of the Code for the purpose of mutation of title is misplaced. Mutation is just record of entry of revenue land in the name of an individual. It is record of acquisition of right and therefore, it does not confer title. On this count also, learned Writ Court erred and exceeded the jurisdiction.
11. Learned senior counsel relied upon the judgments of Apex Court in the matter of Suraj Bhan & Ors. Vs. Financial Commissioner & Ors., (2007) 6 SCC 186, Jogendrasinghji Vijaysinghji vs. State of Gujarat & Ors. (2015) 9 SCC 1, M. Siddiq (dead) through legal representatives Vs. Mahant Suresh Das and others (2020) 1 SCC 1 and Shaillendra Kumar Vs. Divisional Forest Officer, 2017 SCC (Online) MP 1514 in support of his submission.
12. Learned Government Advocate for respondent No.4/State opposed the submissions and submitted that finding given by the Writ Court appear to be correct because revenue Court has no such jurisdiction to decide title of the parties. Learned 7 W.A.No.317/2021 counsel relied upon the judgment in the case of Murari and another Vs. State of M.P. and others, 2020 (4) MPLJ 139.
13. Learned senior counsel for respondent No.1 petitioner in the writ petition also opposed the submissions and while supporting the impugned order submitted that once Tahsildar was bereft of jurisdiction to decide the title, then whole proceedings stood void-ab-initio. Civil suit filed at the instance of respondent No.1 Ranjeet alias Bhaiyu Mohite in which present appellant Smt. Nandita Singh is also party along with two other members of family then in that circumstance, let the case be decided on the anvil of pleadings, examination/cross- examination of witnesses, production of documents by the competent civil Court. He relied upon judgments rendered in cases reported in 2017 (1) RN 328 (Akshay Kumar Vs. Smt. Ramrati and others), 2019 (2) RN 252 (Pehalvan Singh and another Vs. Sitaram and another) and 2020 (I) MPJR SN 9 (Avnish Kumar Vs. Satyaprakash) in support of his submission.
14. Heard learned counsel for the parties and perused the record appended thereto.
15. It is a case where appellant/respondent No.1 was beneficiary of an unregistered Will dated 04-04-2002 executed by testator Vijay Singh Rao Mohite and it appears from the impugned order that immediately after Will dated 04-04-2002 she filed an 8 W.A.No.317/2021 application for mutation and thereafter mutation order was passed in her favour. Although proceedings are conspicuously missing (or not available) but still from the order passed by Tahsildar, it appears that two witnesses namely, Aditya Patankar and Govinddas Bansal who stood as attesting witnesses were examined and their statements were taken. Thereafter statements of village Patwari were taken, report was requisitioned from him and mutation order was passed. So far as procedure as prescribed under Section 110 of the Code is concerned, it is the duty of Tahsildar to record acquisition of rights reported to him under Section 109 of the Code or which come to his notice from any other source. The said acquisition of right is to be reported by applicant as per Section 109 of the Code. Since Sections 109/110 of the Code deal in respect of report and mutation of acquisition of rights through Record of rights as contemplated u/s 108 of Code. Therefore, Section 108 also assumes significance, same reads as under:
"108. Record of rights:- (1) A record -of-rights shall in accordance with rules made in this behalf be prepared and maintained for every village and such record shall include the following particulars:
(a) the names of all Bhumiswamis together with survey numbers or plot numbers held by them and their area, irrigated or unirrigated;
(b) the names of all occupancy tenants and Government lessees together with survey 9 W.A.No.317/2021 numbers or plot numbers held by them and their area, irrigated and unirrigated;
(c) the name and extent of the respective interests of such persons and the conditions or liabilities, if any, attaching thereto;
(d) the rent or land revenue, if any, payable by such persons; and
(e) such other particulars as may be prescribed.
(2) The record-of-rights mentioned in sub-
section (1) shall be prepared during a revenue survey or whenever the State Government may, by notification, so direct."
16. If provisions of Sections 108, 109 and 110 of the Code are seen in juxtaposition, then it makes the picture clear that record of rights and its subsequent acquisition is to be lawful acquisition of any right or interest in land and it should be mutated accordingly and since acquisition is to be lawful and names of all bhumiswamis and all occupancy tenants with their respective rights are to be included, therefore, proceedings must be fair and transparent.
17. In the present case, Tahsildar considered the application for mutation on the basis of an unregistered Will and taken the statements of attesting witnesses, meaning thereby he exceeded its jurisdiction from keeping record-of-rights to Adjudication of Rights. Best course would had been to ask the appellant to get the Will propounded and established through proper civil 10 W.A.No.317/2021 proceedings before the Civil Court rather than recording evidence on his own. Moment, he entered into adjudicatory role he caused jurisdictional error.
18. It is settled in law that revenue authority cannot decide the title.
It is domain of Civil Court. Recently, this Court in the case of Hariprasad Bairagi Vs. Radheshyam and others in Writ Appeal No.535/2021 (Reportable) has delineated the issue in question and thereafter held that it is domain of the Civil Court to test the Will on the anvil of claims/counter claims and evidence produced by the parties. Revenue Board have to record consequences only.
19. Full Bench of this Court in the case of Ramgopal Kanhaiyalal Vs. Chetu Batte, AIR 1976 MP 160 categorically held in somewhat similarly pleaded facts as under:-
"Determination of the question of title is the province of the Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the Civil Court cannot be assumed or implied. The scheme of the Code consistently preserves the jurisdiction of the Civil Court to decide questions of title and that jurisdiction is not excluded."
The aforesaid decision of Full Bench of this Court is found to be a good law by Hon'ble Apex Court in the case of Rohini Prasad and Ors. Vs. Kasturchand and Anr., AIR 2000 SC 1283.
11 W.A.No.317/2021
20. Considering overall facts and circumstances of the case as well as legal position, it appears that learned Writ Court has not caused any illegality in passing the impugned order. When Tahsildar had no jurisdiction to pass such order then proceedings are void-ab-initio. Judgments relied upon by appellant move in to different factual realm, therefore, are of no avail to the cause of appellant.
21. So far as arguments advanced by learned senior counsel on the basis of deleting name of appellant from the revenue record and incorporating the name of legal heirs of Vijay Singh Rao Mohite and in absence thereof, State Government as Bhumiswami, appear to be a step which may preempt the controversy and may affect the intermediary and final proceedings before the trial Court. Civil suit is already pending and therefore, every party must have a fair chance to canvass his/her case by producing evidence; documentary as well as oral to reach to the truth. Therefore, those observations as figured in paras 33 and 34 of impugned order deserve modification to the extent that parties shall maintain status-quo in respect of the suit property including the mutation entry as it exists today and it is made clear that no party shall have any right, title or interest to derive any benefit on the basis of said mutation entry (as it exists today) and shall not alienate the land on the basis of existence of any mutation entry in their favour, rightly or 12 W.A.No.317/2021 wrongly so recorded earlier.
22. Civil Court shall have all liberty to decide the pending civil suit in accordance with law including the application for temporary injunction and other ancillary or intermediary proceedings.
23. Writ appeal stands disposed of with above terms. However, discussion regarding power of revenue authority regarding lack of jurisdiction of revenue authority in deciding the mutation on the basis of Will as decided by learned Writ Court stands affirmed and this Court finds no reason to interfere such well reasoned order.
24. Writ appeal stands disposed of accordingly.
(Sheel Nagu) (Anand Pathak)
Judge Judge
Anil*
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
KUMAR
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PRADESH BENCH GWALIOR, ou=HIGH
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GWALIOR, postalCode=474001,
CHAURASIY st=Madhya Pradesh,
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Date: 2021.10.25 14:25:29 -07'00'