Madhya Pradesh High Court
Rajeshwari Bhatt vs The State Of Madhya Pradesh on 22 November, 2017
1 WP No.416 of 2016
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
WRIT PETITION NO.416 OF 2016
Rajeshwari Bhatt and another
Vs.
State of M.P. and others
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Present :-
Shri V.K. Shukla, Advocate for the petitioners.
Shri Vaibhav Tiwari, Panel Lawyer for the respondents/State.
Shri Dhananjay Chaturvedi, Advocate for the respondents No.6
to 10.
ORDER
(Passed on this the 22nd day of November, 2017) This petition has been filed by the petitioners under Article 227 of the Constitution of India against the order dated 26.11.2015 (Annexure P/1) passed in Revision No.1187-II-15 by the Member, Revenue Board, Gwalior whereby the petitioners' revision under Section 50 of the M.P. Land Revenue Code, 1959 (in short 'the Code of 1959') has been rejected.
2. In brief the case of the petitioners is that the respondents No.6 & 7 filed an application under Section 109/110 of the Code of 1959 before the respondent 2 WP No.416 of 2016 No.5/Tehsildar, Semariya, District Rewa for mutation of their names in respect of the disputed land situated at Survey No.357/3. The objections were also filed in the aforesaid application but the Tehsildar vide order dated 28.11.2011 allowed the application for mutation in favour of respondents No.6 & 7. Against the aforesaid order passed by the Tehsildar, the petitioners filed an appeal under Section 44(1) of the Code of 1959 before the respondent No.4/Sub Divisional Officer, Sirmour, District Rewa, which was allowed by the Sub Divisional Officer vide his order dated 31.5.2013. Being aggrieved by the aforesaid order, the respondents No.6 & 7 preferred an appeal before the Additional Commissioner, Rewa Division, Rewa who vide order dated 13.5.2015 allowed the appeal by reversing the order dated 31.5.2013 passed by the Sub Divisional Officer. Against the order of Additional Commissioner, the petitioners again preferred a revision before the Board of Revenue but vide impugned order dated 26.11.2015 it has also been dismissed.
3. The petitioners' further case is that in respect of the disputed property as also other properties a civil suit has also been filed by the petitioner in the Court of Additional District 3 WP No.416 of 2016 Judge, Rewa, which is registered as Civil Suit No.103-A/2011. The suit inter alia was for partition and declaration of title in respect of the disputed land. The petitioners' contention is that since the civil suit is already pending before the Civil Court in respect of disputed property, the mutation proceedings ought not to have been initiated by the Revenue Authority. Learned counsel for the petitioner has placed reliance on the decision of Apex Court rendered in the case of T.Ravi & another vs B.Chinna Narasimha and others reported in 2017 (3) Scale
740.
4. On the other hand, learned counsel for the respondents No.6 to 10 has submitted that no illegality has been committed by the learned Member of the Revenue Board in passing the impugned order for the reason that the civil suit which has been filed by the petitioners is still pending and there is no order of stay in existence in favour of the petitioners, in fact, even the application for temporary injunction under Order 39 Rule 1 & 2 of CPC is still pending consideration. Learned counsel has placed reliance on the decision of this Court in the case of Sakhi Gopal Dixit vs Board of Revenue and another, reported in 2009 (5) M.P.H.T. 282 to submit that if the order of 4 WP No.416 of 2016 mutation is passed after following due procedure, then no fault can be found in the same.
5. Heard learned counsel for the parties and perused the record.
6. The controversy involved in the present petition is that whether for mutation of disputed land, the revenue authorities have the jurisdiction to initiate proceedings under the Code of 1959 in the light of the fact that in respect of the disputed property, a dispute is already pending before the Civil Court in which the title of the disputed land is to be decided. At this juncture, it would be relevant to refer to Section 111 of the Code of 1959 which reads as under:-
"111. Jurisdiction of Civil Courts. - The Civil Courts shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record-of-rights."
7. A bare perusal of the aforesaid Section reveals that so far as the title of the property is concerned, the Civil Court has exclusive jurisdiction to decide the same and in such circumstances when the dispute between the parties is still pending before the Civil Court, no purpose would be served if mutation is carried out at the instance of any of the parties for 5 WP No.416 of 2016 the reason that the order passed by the Civil Court would be binding on the parties and if in the meantime, before such decision is delivered and title is decided, the mutation is carried out in favour of any of the parties, it would only lead to further litigation. Reference may had to the Division Bench judgment of this Court in the case of Ambika Prasad Bakshi vs. Onkar Prasad Saini and other reported in AIR 2005 MADHYA PRADESH 60. The relevant paras of the same read as under:-
17. We refrain from making any comment regarding the claim of Ambika Prasad Bakhshi as the same was left open by the Supreme Court, and any observation by us in that regard may cause prejudice to the parties. Suffice it to say that the jurisdiction of a Civil Court is superior to the Revenue Courts and whatever is decided by the Civil Court is the final decision and Tahsildar is bound to make a mutation on the basis of a valid order of the Civil Court.
Where a judgment of the Civil Court relating to disputed land is produced before the Revenue Court, the Revenue Court is bound by it and should order mutation according to the decree of the Civil Court. When there was definite finding of the Civil Court that the respondents have become Bhumiswamis of the suit land, the Revenue Courts had no jurisdiction to enquire regarding the rights of the respondents after coming into force of M.P. Land Revenue Code, 1959.
18. The learned counsel for the appellants next contended that the learned single Judge failed to see that in the trial Court and the lower appellate Court, the suit filed by the plaintiffs was dismissed on the ground that notice of termination of the original 6 WP No.416 of 2016 tenancy was not valid as the tenancy was terminated in the month of April, instead of month of June and the title of the respondents was not decided.
19. The contention is devoid of any merit. In fact, the judgment of the trial Court and lower appellate Court were to the effect that since the defendants have acquired the right of Bhumiswami, the plaintiffs lost their claim in the suit property. Thus, title of the respondents was decided and on the basis of this decision the Revenue Courts were bound to order the mutation of the names of the defendants in the suit whose estate the present respondents represent.
(emphasis supplied) Thus, this court, in so many words has already held that the jurisdiction of the civil court is superior to that of the jurisdiction of a revenue court. In such circumstances also when the civil suit is already pending between the parties regarding the title of the property, the mutation proceedings before the revenue authorities can have no sanctity attached to them.
8. In the case of T.Ravi & another (supra) cited by the petitioner, the Apex court has dealt with the provisions of s.52 of the Transfer of Property Act, 1882 and has no direct bearing on the case at hand which relates to the effect of a pending civil suit on the mutation proceedings before the revenue authorities.
9. In the case of Sakhi Gopal Dixit (supra) relied upon 7 WP No.416 of 2016 by the counsel for the respondents also, this court has held in para 10 and 11 as under:-
"10. In view of the aforesaid, as the original order passed by the Superintendent, Land Records dated 16-11-2006 has been passed after following the due procedure prescribed by law and does not suffer from any perversity or illegality and as the Board of Revenue, by the impugned order dated 3- 2-2009, has reaffirmed that order after due application of mind to each and every issue raised by the petitioner, I am of the considered opinion that the impugned order does not warrant any interference by this Court specifically in view of the provisions of Section 111 of the Code which make it abundantly clear that the remedy of the petitioner against the order passed under Section 110 of the Code lies before the Competent Civil Court.
11. It needs no clarification or observation to state that the petitioner would be at liberty to take up all the issues before the Competent Civil Court in case he chooses to initiate or institute any action thereto. It also needs no emphasis to state that in case the petitioner choose to take up proceedings before the Competent Civil Court, the Court would be required to decide the matter on its own merits and shall not be influenced by the orders passed by the authorities in accordance with law."
(emphasis supplied) Thus, this decision also does not help the respondents in any way because in this case also the finality of the order passed by the civil courts has been acknowledged and only confirms the finding recorded by this court as discussed in the foregoing paragraphs.
8 WP No.416 of 2016
10. In the circumstances, the impugned order dated 26.11.2015 (Annexure P/1) is hereby quashed and the parties are directed to maintain status quo till the title in the civil suit is decided.
11. During the course of arguments, this Court has also been apprised by the parties that Civil Suit No.103-A/2011 which was instituted in the year 2011 by the petitioner is still pending and even the application for temporary injunction has not been decided, which, in the considered opinion of this Court, is a cause of concern. Hence, the learned Additional District Judge, Rewa is hereby directed to decide the Civil Suit No.103-A/2011 expeditiously preferably within a period of six months from the date of receipt of certified copy of this order, which shall be sent by the Registry post-haste to the learned Additional District Judge, Rewa for its proper compliance.
12. With the said observations, the petition stands allowed.
13. No order as to costs.
(Subodh Abhyankar) Judge 22/11/2017 DV Digitally signed by DINESH VERMA Date: 2017.11.22 16:40:42 +05'30'