Madhya Pradesh High Court
Tarabai vs Subhash Chand on 12 May, 2022
Author: Anjuli Palo
Bench: Anjuli Palo
1
MP No.4352 of 2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 12th OF MAY, 2022
MISC. PETITION No. 4352 of 2021
Between:-
TARABAI
W/O DEVENDRA AKASH PALIWAL,
AGED ABOUT 56 YEARS,
OCCUPATION: HOUSEWIFE
R/O CHAVARPATHA, TEH.TENDUKHEDA,
DIST.NARSINGHPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANKALP KOCHAR, ADVOCATE)
AND
1. SUBHASH CHAND
S/O LATE RAMCHAND PALIWAL
R/O CHAVARPATHA, DIST.NARSINGHPUR
(MADHYA PRADESH)
2. RAJENDRA KUMAR
S/O LATE RAMCHAND PALIWAL
R/O CHAVARPATHA TAHSIL TENDUKHEDA
(MADHYA PRADESH)
3. STATE OF MADHYA PRADESH
THR. COLLECTOR DISTT-NARSINGHPUR
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS 1 AND 2 BY SHRI K.D. SINGH, ADVOCATE AND
RESPONDENT NO.3 BY MS. SHANTI TIWARI, PANEL LAWYER )
This petition coming on for hearing this day, the court passed the
following:
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MP No.4352 of 2021
ORDER
With the consent of learned counsel for the parties, the matter is heard finally.
In this petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 12.11.2021 passed by the respondent No.3 - Additional Collector, district - Narsinghpur whereby the question of limitation has been ignored and a direction has been issued to the Sub-Divisional Officer to decide the matter on merits.
2. Admittedly, the respondents are brothers-in-law of the petitioner. As claimed by the petitioner, her father-in-law was the owner and in possession of 216 acres of land situated in Tahsil- Kareli, district- Narsinghpur. He partitioned his land under a family arrangement on 14.02.1997 among his three sons, i.e. the respondents 1 and 2, and husband of the petitioner and also himself and granted land admeasuring 54 acres to each. Thereafter on the basis of the family settlement dated 14.02.1997, respondents 1 and 2 filed an application for mutation of the name of Rishi Raj - minor son of the petitioner on khasra numbers 244/2 and 246/1. On the basis of the application and affidavit of the respondents 1 and 2, the name of Rishiraj Paliwal was mutated in the revenue records in relation to khasra number 246/1 by order dated 14.02.1997. In the said order, it has been mentioned the statement of Rajendra Kumar (respondent No.2) that the land was partitioned with mutual 3 MP No.4352 of 2021 consent and land bearing khasra number 246/1 admeasuring 5.683 hectares has been given to the son of the petitioner Rishi Raj.
3. According to the petitioner, she and her son Rishiraj entered into a family arrangement whereby the lands bearing khasra numbers 246/1 and 244/2 were given to the petitioner in exchange of 18 acres of land situated at Keslihaar. The grievance of the petitioner before this Court was that after a lapse of ten years, the respondents filed revision under Section 44 of the MP Land Revenue Code along with an application for condonation of delay stating that they came to know about the mutation order on 08.06.2015 and the SDO vide order dated 06.01.2016 allowed the application for condonaton of delay without there being any sufficient or cogent reason. Being aggrieved with this order, the petitioner preferred a revision before the Board of Revenue. The Board of Revenue vide order dated 24.08.2016 upheld the order passed by the SDO.
4. The aforesaid order was challenged before this Court in Writ Petition No.18031/2018 wherein this Court vide order dated 14.11.2019 set aside the orders dated 24.08.2016 passed by the Board of Revenue and the order dated 06.01.2016 passed by the SDO and the matter was remanded to the SDO for deciding the matter afresh after examining the documents annexed by the petitioner in that case as Annexures P-1 to P-4 after affording an opportunity of hearing to both the parties.
4 MP No.4352 of 20215. Thereafter, vide order dated 13.08.2021, learned SDO held that the ground that due to lack of information, there is delay in filing the appeal, is baseless. Hence, the appeal was dismissed by the SDO being time-barred. The aforesaid order was challenged by the respondents in revision before the Additional Collector, Narsinghpur. Learned Additional Collector vide order dated 12.11.2021 held that the respondents had purchased the lands in question from the husband of the petitioner. It was also held that thereafter on the basis of unregistered family settlement, the name of the petitioner was mutated in respect of the same land which was already sold to the respondents. The revisional authority also found that no partition as per provisions of MP Land Revnue Code was held. Hence, it is held that ignoring the delay in filing the appeal, the SDO should have decided the matter on merits and set aside the order dated 13.08.2021.
6. From perusal of the documents on record, it is clear that the order of mutation was passed in favour of the petitioner and her son on 28.05.2005 and the respondents filed appeal before the SDO on 18.06.2015. The said application for condonation of delay has been annexed at page number 31 of this case wherein it has been mentioned that the respondents purchased the lands in question from the husband of the petitioner on 28.08.1985. The respondents filed an application on 27.05.2015 for certified copies of "Sanshodhan Panji" because they wanted to avail loan of KCC. The respondents were granted copy of aforesaid "Sanshodhan Panji" on 02.06.2015. Then only they came to know about the mutation in 5 MP No.4352 of 2021 favour of the petitioner. It was further urged that the respondents are villagers and they were not aware about the legal procedure.
7. Learned counsel for the petitioner submits that there is delay of ten years in filing the appeal which is neither bona fide nor delay is explained by proper reasons by the respondents, hence, in the light of the decisions in the cases of Maniben Devraj Shah v. Municipal Corporation of Brihan, Mumbai, (2012) 5 SCC 157; Madhya Pradesh Matsya Mahasangh v. Sudheer Kumar and Another, (2010) 15 SCC 179; Lanka Venkateshwarlu v. State of Andhra Pradesh, (2011) 4 SCC 363; Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649; (2010) 8 SCC 685; and State of Uttar Pradesh v. M/s Satish Chand Shivhare, 2022 LiveLaw (SC) 430, delay could not have been condoned.
8. On the other hand, learned counsel appearing for the respondents submits that due to genuine reasons, delay occurred. In the absence of information regarding mutation order, the appeal could not have been filed within time, hence, the revisional authority has rightly directed for ignoring the delay. It is further contended that in so many cases, the keeping in view the genuine reasons, the Courts have condoned the delay. In support of his contentions, learned counsel for the respondents 1 and 2 has placed reliance on the decisions in the cases of B.S. Sheshagiri Setty and Others v. State of Karnataka, (2016) 2 SCC 123; Dhiraj Singh v. Haryana State, (2014) 14 SCC 12; State of MP v. Ramesh Prasad 6 MP No.4352 of 2021 Verma, 2004 (I) MPWN 194 (Note 72); and Esha Bhattacharjee (supra).
9. Learned counsel for the respondents submits that the documents i.e. Annexures P-1 to P-4 and the application to give land bearing khasra numbers 264/1 and 2 as well as the application for mutation in favour of the son of the petitioner, are forged and the respondents have not filed the same. But, from the year 2005 till today, the respondents have neither filed any written complaint nor they alleged the same in any of the documents. That apart, the aforesaid documents also find mention in the order of mutation by the Tahsildar. Hence, it cannot be believed, at this stage, that Annexures P-1 and P-4 were not filed by the respondents before the Revenue Court.
10. During life time of Ramchandra Paliwal partition took place on 14.02.1997. On the basis of the family settlement, respondent No.1 appeared before the Tahsildar, Kareli and got the name of Rishi Raj Paliwal (son of the petitioner) mutated in the revenue records with regard to Khasra Number 246/1. Copy of the application for mutation, affidavit of respondent No.1 and the order dated 14.02.1997 have been annexed herewith as Annexure P-1. Similarly, respondent No.2 Rajendra appeared before the Tahsildar and got the name of Rishi Raj mutated in the revenue record in respect of Khasra number 246/2. copy of the application for mutation, affidavit of the respondent No.2 and order of mutation dated 14.02.1997 have been annexed herewith as Annexure P-2.
7 MP No.4352 of 2021From Annexure A-4, it is clear that the respondents were very well aware about the entire procedure of mutation order.
11. Thereafter, the petitioner and her son Rishiraj entered into a family arrangement between them whereby the lands bearing khasra numbers 246/1 and 244/2 were given to the petitioner in exchange of 18 acres of land situated at Keslihaar. Thereafter, as is clear, the order of mutation was passed on 28.05.2005 and the respondents filed appeal against the said order before the SDO on 18.06.2015 after a lapse of about ten years.
12. In this context, it is profitable to refer to the recent decision of Hon'ble the Supreme Court in the case of Lingeswaran Etc. v. Thirunagalingam, (Petition for Special Leave to Appeal (C) No.s 2054-55/2022 decided on 25.02.2022). In the said case, Hon'ble the Supreme Court was dealing with the matter where the High Court set aside the order passed by the trial Court condoning the delay of 467 days in preferring the application for setting aside the ex parte decree. Hon'ble the Supreme Court held that the view taken by the High Court is correct. Once it was found even by the learned trial Court that delay has not been properly explained and even there is no merits in the application for condonation of delay, thereafter the matter should rest there and the condonation of delay application was required to be dismissed.
13. In the case of Maniben Devraj Shah (supra) in paragraph 14 it has been observed by Hon'ble the Supreme Court as follows:
8 MP No.4352 of 2021"The law of limitation is founded on public policy. The limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation."
14. From perusal of the impugned order dated 12.11.2021 passed by the Additional Collector, it is apparent that the said authority instead of delineating on the issue of limitation, emphasized on the merits of the case whereas from perusal of the application for condonation of delay filed by the respondents before the SDO, it is clear that no satisfactory reason has been assigned by the respondents except that they had no knowledge about the order of mutation for an inordinate period of about ten years. The order of mutation was passed in favour of the petitioner and her son on 28.05.2005 and the respondents filed appeal against the said order before the SDO on 18.06.2015. It is settled in law that every remedy remains alive only till the expiry of the period fixed by the 9 MP No.4352 of 2021 legislature. In view of the aforesaid enunciation of law as well as aforesaid discussion, this Court is of the opinion that the Additional Collector, Narsinghpur has committed an error in condoning the inordinate delay of about ten years. Hence, the impugned order dated 12.11.2021 passed by the respondent No.3 is hereby set aside. However, the parties would be at liberty to take recourse of other remedies as are available to them in accordance with law.
15. Accordingly, the petition is disposed of.
(SMT. ANJULI PALO) JUDGE ks Digitally signed by KOUSHALENDRA SHARAN SHUKLA Date: 2022.05.20 03:39:05 -07'00'