Madhya Pradesh High Court
Basant Kumar vs Sub Divisional Officer on 30 July, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 WA-1340-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 30th OF JULY, 2024
WRIT APPEAL No. 1340 of 2023
BASANT KUMAR
Versus
SUB DIVISIONAL OFFICER AND OTHERS
Appearance:
Shri Aviral Vikas Khare, learned counsel for the appellant.
Shri Bhuwan Gautam, learned Govt. Advocate for the respondent
Nos.1, 2 and 4/State.
Shri Tehjeeb Khan, learned counsel for the respondent [R-3].
Reserved on : 30.04.2024
Pronounced on : 30.07.2024
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This appeal having been heard and reserved for order coming on for
pronouncement this day, Hon'ble Shri Justice S.A. DHARMADHIKARI pronounced
the following:
JUDGMENT
Heard finally with the consent of both the parties.
2. The present writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya(Khand Nyaypeeth Ko Appeal) dhiniyam, 2005, assails the order dated 03.08.2023, passed in W.P. No.14652/2023 whereby the writ petition has been dismissed.
2. The writ petition was filed by the appellant praying for the following reliefs :- Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49
2 WA-1340-2023
(i) Appropriate writ direction or order in the name of certiorari, the impugned order dated 09.05.2023, passed by the respondent No.1 be quashed.
(ii) Appropriate writ direction or order in the name of certiorari, the impugned order dated 17.06.2021 passed by the respondent No.2 be quashed.
(iii) Appropriate writ direction or order in the nature of mandamus, the mutation entry made in the land record in pursuance of impugned orders be quashed.
(iv) Appropriate writ direction or order in the nature of mandamus, the respondents be directed not to make any mutation in the relevant records till the civil proceeding having disputed Will as the subject- matter pending between the parties is finally adjudicated by the Court of Law.
(v) Appropriate writ direction or order in the nature of mandamus, the respondent No.4 be directed to issue necessary instructions/directions to its subordinate revenue officers/courts in terms of the order dated 15.03.2023 passed by this Hon'ble Court in the case of Geeta Paliwal & Ors. Vs. Sitaram & Ors. (W.P. No. 2578/2022).
(vi) Appropriate writ direction or order in the nature of mandamus or other, directing enquiry against the conduct of the respondent No.1 and 2 in passing the impugned orders in clear violation of and blatantly ignoring the directions of this Court as well as their own superior authorities.
(vi) Cost of this petition be awarded.
(vii) Any other appropriate relief, which this Hon'ble Court may deem fit,be awarded to the petitioner.
3. Brief facts of the case are that the respondent No.3 had filed an application before the Tehsildar, Kasrawad under Section 109 read with Section 110 of the M.P. Land Revenue Code, 1959(in short ... "MPLRC") for carrying out mutation proceedings and record the name of the respondent No.3 in the revenue records of the land bearing Survey No.128/3 admeasuring 0.759 Hectare situated at village Khalbujurg, Tehsil Kasrawad, District Khargone on the basis of an alleged Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49 3 WA-1340-2023 notarized Will executed by late Kanhaiyalal Singhal S/o Late Khoobchand Singhal.
4. The present appellant being the Legal Heir of Late Kanhaiyalal alongwith others were impleaded as the respondents in the said case. The appellant appeared before the Tehsildar and filed his written objection challenging the genuineness of the Will and refuting the claim of the claim of the respondent No.3.
5. The Tehsildar, in a hasteful manner without affording any opportunity to the appellant for cross examining the witnesses and without even adducing the evidence, arbitrarily passed the order dated 17.06.2021 on the basis of an unregistered disputed Will. The appellant preferred an appeal on 14.10.2021 under Section 44 of the M.P.L.R. Code before the respondent No.1. The said appeal was dismissed.
6. Being aggrieved the appellant filed the writ petition bearing W.P. No.14652/2023. The learned Single Judge dismissed the writ petition and passed the following orders :-
"The petitioner before this Court has filed this present petition being aggrieved by the order dated 09.05.2023 passed by the Sub-Divisional Officer, whereby appeal has been dismissed and order dated 17.06.2021 passed by the Tehsildar has been affirmed.
2. Learned counsel for the petitioner submits that the Tehsildar has recorded and passed the mutation order on the basis of the will which he is disputing the same. The Sub-Divisional Officer has observed that the remedy is available to approach the Civil Court, if the will is being disputed. Tehsildar has found the will primafacie valid and accordingly acted upon it and mutated the name.
3. In the present case, the petitioner is disputing the will and he has already approached the Civil Court seeking declaration that will is void and suit is pending as RCS-A-4/22 before the Civil Judge, Kasrawat. In opinion of this Court, the person who disputes the will is to approach the Court and not a person in whose favour will is in Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49 4 WA-1340-2023 existence because he is not required to file a suit of Probate. It is also a settled law that mutation entries are always subject to final outcome of decision of the civil suit.
No case for interference is made out. Accordingly, stands dismissed.
No order as to costs."
7. Learned counsel for the appellant submitted that the learned Single Judge has held that though the appellant has already approached the Civil Court seeking declaration that the Will is void and the suit is pending before the Civil Judge, Kasrawad, it is settled law that the mutation entries are always subject to final outcome of the decision of the Civil Court. In fact, the learned Single Judge ought to have been considered the fact that the disputed Will cannot be adjudicated by the revenue authorities and instead of setting aside the illegal mutation order and proceedings of the Tehsildar, affirmed the illegal mutation giving go-by to the settled legal position. In view of the aforesaid, the order deserves to be set aside.
8. Learned counsel for the respondent/State as well as learned counsel for the respondent No.3 vehemently opposed the prayer and supported the order impugned. According to them, no illegality has been caused by the revenue authorities i.e. Tehsildar and Sub-Divisional Officer in passing the impugned order as also the order passed by the learned Single Judge needs no interference. Therefore, prayed for dismissal of the present writ appeal.
9. Heard the learned counsel for the parties at length and perused the record.
10. So far as maintainability of mutation proceedings on the basis of a Will is concerned, the said legal position has been clarified by the Apex Court, Full Bench of this Court as well as the Division Bench of this Court from time to time. The Full Bench of this Court in the case of Ramgopal Kanhaiyalal V. Chetu Batte reported in AIR 1976 MP 160 and Division Bench judgment in the Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49 5 WA-1340-2023 case of Hariprasad Bairagi Vs. Radheshyam & Ors. reported in 2021(2) Revenue Judgment(Nirnay) 217 have categorically held that the question of title is the domain of Civil Court. Relevant portion of the Full Bench in the case of Ramgopal Kanhaiyalal(Supra) is reproduced below :-
"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."
11. The Division Bench of this Court in Hariprasad Bairagi(Supra) and other decisions have discussed in detail about the scope of revenue courts in mutation proceedings on the basis of Will. In the case of Hariprasad Bairagi(Supra) the Division Bench of this Court has given considered scope of Rules 24 and 32 regarding Record of Rights Rules(under the MPLRC) published in M.P. Rajpatra dated 02.07.1965(amended on 16.04.1968) and concluded that the Tehsildar on his own cannot record evidence and decide the title arising out of the Will. It is the domain of Civil Courts only and understandably so because Civil Courts have all necessary tools of adjudication like proper pleadings, summoning the witnesses, recording of evidence, marshalling and appreciation of evidence and other ancillary mechanism alongwith trained judicial minds. Therefore, the Tehsildar does not have any authority to decide the question of Will in a mutation proceedings.
12. In the present case, there is a dispute regarding title. The appellant herein has already approached the Civil Court seeking declaration and the revenue authorities have to follow the outcome of the Civil Suit, then only mutation can be done. The revenue authority ought to have waited for the outcome of the Civil suit. The learned Single Judge dismissed the writ petition and declined to Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49 6 WA-1340-2023 interfere with the order of the revenue authorities on the ground that the appellant having approached the Civil Court seeking declaration and the Civil Suit RCS-A- 4/22 is pending before the Civil Judge, Kasrawad and it is settled legal proposition that mutation entries are always subject to final outcome of the decision of this Court. It is not in dispute that the Tehsildar in this case not only proceeded to record evidence and decide the title arising of the Will which is disputed that too, without affording any opportunity of cross-examining the witnesses, passed the order impugned. Thereafter, also mutated the names in the revenue records thereby causing injustice to the appellant.
13. The Supreme Court in the case of Jitendra Singh v. State of Madhya Pradesh by order dated 06.09.2021 passed i n SLP (civil) No.13146/2021 has held as under:
"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., 8 MP No.38/2023 reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title.Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 67 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co.,(2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49 7 WA-1340-2023 (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC
70."
14. The Supreme Court in the case of H. Lakshmaiah Reddy v. L.Venkatesh Reddy, reported in (2015) 14 SCC 784 has held as under:
8. As rightly contended by the learned Senior Counsel appearing for the appellants, the first defendant did not relinquish or release his right in respect of the half-share in the suit property at any point of time and that is also not the case pleaded by the plaintiff. The assumption on the part of the High Court that as a result of the mutation, the first defendant divested himself of the title and possession of half-share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh case are relevant and are extracted below: (SCC p. 142, paras 21-22) "21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No. 1311 dated 19-7-
1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni v. Inder Kaur, Pattanaik, J., speaking for the Bench has clearly held as follows:(SCC p. 227, para 7) '7. ... Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutationin favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.'
22. Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of Mutation No. 1311 dated 19-7-1954. The assumption on the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so, legally, she was in possession on the date of coming into force of the Hindu Succession Act and she, as a full owner, had every right to deal with the suit properties in any manner she desired."
15. The revenue authority instead of waiting for the outcome of the Civil Suit, Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 30-07-2024 17:33:49 8 WA-1340-2023 have passed the impugned orders dated 17.06.2021 as well as the Appellate Order dated 09.05.2023, which deserves to be set aside. Accordingly, both the orders are set aside. The learned Single Judge has erred in rejecting the writ petition. Accordingly, the order dated 03.08.2023, passed in W.P. No.14652/2023 also stands set-aside.
16. The writ appeal is allowed. No order as to costs.
(SUSHRUT ARVIND DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
pn
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 30-07-2024
17:33:49