Madhya Pradesh High Court
Seikh Jaheer Khan vs Smt.Sajhad Bi on 23 February, 2017
WP-12697-2006
(SEIKH JAHEER KHAN Vs SMT.SAJHAD BI)
23-02-2017
Shri Dinesh Koshal, learned counsel for the petitioner.
Shri Vijay Shankar Pandey, learned counsel for the respondent No.4.
Heard.
In the instant petition filed under Article 227 of the Constitution of India, the petitioner has called in question the legality and validity of the impugned orders dated 17.5.2006, 17.11.2004, 23.01.2004, 18.09.2004 passed by the Revenue authorities.
The facts adumbrated in nutshell are that the land bearing Khasra No.181 area 14.50 situated in village Udaipura was recorded in the revenue record in the name of father of the petitioner Shri Seikh Munnu, who was the owner and in possession of the said land. He died on 03.09.2002. It is pleaded that on 29.07.1997, Seikh Munnu had executed a bequest in favour of the petitioner in respect of his agricultural land and the movable properties. It was stated that testator had paid an amount of Rs.30,000/- cash to each of the daughter respondent Nos.1 & 2 in lieu of their shares in the property. It was also claimed that the respondent No.3 mother of the petitioner and wife of Seikh Munnu had also consented to the said bequest. On the basis of the said bequest, the petitioner had filed an application before the Tahsildar for mutation and the mutation was already affected as per the order dated 08.11.2000 in favour of the respondents. The same was challenged before the Sub Divisional Officer, who allowed the appeal filed by the petitioner and directed for mutation of the name of the petitioner in the revenue record on the basis of bequest dated 29.07.1997 and the consent document dated 04.1.2001 alleged to be signed by the respondent No.3.
Being aggrieved with the order dated 28.04.2001 passed by the Sub Divisional Officer, the respondents filed a Second Appeal before the Additional Commissioner, who by order dated 23.11.2001 remanded the case with a direction to give an opportunity to both the parties to adduce the evidence in respect of the bequest and to decide it accordingly. After remand, by order dated 18.09.2002, the Tahsildar held that the bequest could not be proved beyond the reasonable doubt even if it is admitted for the sake of arguments to be valid, the bequest rd could not be executed for more than 1/3 share unless the other heirs had consented to the said bequest. The Tahsildar also recorded a finding that the consent letter alleged to be executed by the respondent No.3 did not appear to be executed by free consent as the same was denied and disputed by the respondent No.3. He held that since there was no consent, therefore, in accordance with the Muslim law in place of Seikh Munnu, the name of the petitioner and the respondents be directed to be mutated. Copy of the order has been placed as Annexure P/5. The order passed by the Tahsildar was challenged by the petitioner before the Sub Divisional Officer, but the same was also dismissed by order dated 23.01.2004. Against the said order, a Second Appeal was preferred before the Additional Commissioner, which suffered dismissal by order dated 17.11.2004. Against the said order, the petitioner went in revision before the Board of Revenue and the same was also dismissed by order dated 17.5.2006 upholding the orders passed by the Revenue authorities.
Counsel for the petitioner submits that the orders passed by the Revenue authorities are illegal as the findings regarding execution of the bequest and the consent letter Annexure P/3 executed by the respondent No.3 are perverse.
Per contra, counsel for the respondent No.4 submits that the orders passed by the revenue authorities which have also been affirmed in the revision by the Board of revenue are legal and valid. There is no perversity in the order, hence, the petition sans merit and deserves to be dismissed.
So far as the law applied by the Tahsildar in its order dated 18.09.2002 in Annexure P/5 after remand is concerned, the counsel for the parties fairly submitted that there is no dispute to the said preposition of law applied by the Tahsildar as he held that the bequest could not have been executed by late Seikh Munnu in favour of the petitioner for more rd than 1/3 share, unless the consent is given by other heir for the same. The parties did not address on the said legal issue as conceded the same.
So far as the contention of the petitioner that the finding recorded by the Tahsildar regarding execution of the bequest and the consent letter executed by the respondent No.3 is concerned, it is found that finding is based on evaluation of the evidence. The revenue authorities have taken into consideration the evidence of the petitioner, witnesses Chhotelal, Sheikh Matin, Chandramohan Rathore, Mohanlal Jain and Kamruddin. The petitioner himself has deposed that the bequest was not executed in his presence. Regarding the payment of Rs.30,000/- to each of the daughters of Seikh Munnu, the petitioner stated that the said amount was given prior to writing of the bequest, whereas, witness Chhotelal could not specify when the payment of the alleged share was made. The petitioner himself admitted the fact that his father was illiterate person and star attesting witness Chandra Mohan Rathore stated that he was not knowing Seikh Munnu and he would not be able to recognize testator Seikh Munnu. On the appreciation of entire evidence, the Revenue Officer â Tahsildar held that the bequest was not found to be proved beyond suspicion. After recording the said finding, he held that even assuming that the bequest was executed by Seikh Munnu, but the same could not have been executed for more than rd 1/3 share and the consent of respondent No.3 was also not proved. The law applied by Tahsildar has not been disputed. The said findings of facts have been affirmed by the Sub Divisional Officer in his order dated 23.01.2004, which was further affirmed by the Upper Commissioner by order dated 07.11.2004 and the Board of Revenue by the impugned th order dated 17 May, 2006 (Annexure P/8), this Court does find any perversity in the impugned orders.
So far as the legal preposition of law applied by the Tahsildar and the other authorities has not been disputed by the counsel for the petitioner, I do not find any perversity in the orders impugned. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate court acting within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. (See-Jai Singh and another Vs. MCD (2010) 9 SCC 385 and Shalini Shetty Vs. Rajendra S. Patil, (2010) 8 SCC 329) Further co-ordinate Bench of this Court in the case of Ashutosh Dubey and another Vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, 2004 (2) MPHT 14 held that Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied :-- (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby. Accordingly, the present writ petition is dismissed.
(VIJAY KUMAR SHUKLA) JUDGE sj