Madhya Pradesh High Court
Kadam Singh And Ors. vs The State Of M.P.And Ors. on 3 October, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:18211
1 WP-2082-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 3 rd OF OCTOBER, 2024
WRIT PETITION No. 2082 of 2005
KADAM SINGH AND ORS. AND OTHERS
Versus
THE STATE OF M.P.AND ORS. AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the petitioner No.1.
Shri R.V. Sharma - Advocate and Shri Jitendra Singh Kaurav - Advocate for the petitioner
No.9.
Shri Jitesh Sharma - Govt. Advocate for the State.
Shri Kunal Suryavanshi - Advocate for the respondent No.4.
Shri V. K. Bhardwaj - Senior Advocate alongiwth Shri Anand Bhardwaj - Advocate for
the respondent No.7.
Shri Sarvesh Kumar Sharma - Advocate and Shri Abhishek Singh Bhadoriya - Advocate
for the respondent/intervenor.
ORDER
The instant petition under Article 226 of the Constitution of India is directed against the order dated 04.02.2014 passed by Tehesildar in case No.26/13-14/B-121, whereby in the light of decision rendered by Division Bench of this Court in W.A. No.259/2013 names of respondents No.6 and 7 were mutated in the revenue records, though there was only an order to maintain status- quo and there was no direction to mutate the names of respondents No.6 and 7 in the revenue records. Further challenge is made to the entries made in the Khasra Panchshala of the names of respondents No. 6 and 7 in pursuance to the order dated 04.02.2014 passed by the Tehsildar.
2. The petitioners are also aggrieved by the inaction on the part of the NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 2 WP-2082-2005 respondents in not deciding the application filed by the petitioner under Section 190 and 110 of MPLRC, which is registered as case No.19/2004-05/A-6 and is still pending.
3. Short facts of the case are that the petitioners are in occupation of agricultural lands bearing survey Nos. 173, 174, 175, 176, 180, 187,188, 189, 192, 193 and 194, total 34 bigha and 8 bisva situated in village Ohadpur, Pargana and District Gwalior. In the year 1974 Gulabchand and Chandra Shekhar preferred a suit No.7A/1974 for declaration of title and recovery of possession of the suit lands. The said suit was decreed in their favour vide judgement dated 20.03.1976, against which the predecessor interest of the petitioners Bhanwar Singh and Maharaj Singh preferred a First Appeal, which was allowed vide judgement dated 03.02.1977 passed in First Appeal No.184-A/1976, wherein the issue with regard to obtaining the status of Morusi Krishak in lieu of Section 168 of MPLRC was discussed and the contentions on behalf of predecessors-in- interest of the petitioners were accepted and the appeal was allowed and the judgement and decree of title and recovery of possession granted in favour of Gulabchand and Chandra Shekhar was set aside. Against the said judgement and decree a second appeal was preferred by Gulab Chandra and Chandra Shekhar and the said second appeal No.265/1977 was dismissed by this Court vide judgement dated 21.07.1992.
4. As under the provision of Section 192 of MPLRC the petitioners became the Bhumiswamis and were entitled to get their names mutated in the Khasra entries and since the names of original owners Gulab Chandra and Chandra Shekhar were continued in the revenue records, hence, the petitioners preferred an application under Section 190 and 110 of MPLRC. Though the said application was filed on 02.06.2001 and thereafter the matter got listed three times on NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 3 WP-2082-2005 20.06.2001, 04.07.2001 and 22.07.2001 but thereafter no dates were given by the Presiding Officer i.e. Tehsildar and no proceedings were conducted but under the garb of original file being missing it was informed to the petitioners that no application is pending, therefore, a new application bearing No.19/2004-05/A-6 was filed by the petitioners on 02.03.2005 and since it was not decided, the present petition came to be filed.
5. Taking advantage of delay in getting the names of petitioners recorded in the Revenue Records as Bhumiswami and inspite of there being a decree of the Courts below confirmed up to the High Court. The respondents under the pretext of purchasing the said lands from the original owners i.s. respondents No.6 and 7, namely, Gulab Chandra and Chandra Shekhar, who had no right left in the property to get their names mutated in the Revenue Records and sell the property, but in pursuance of the said illegal efforts, their names even were got mutated in the Revenue Records vide order dated 04.02.2014 passed in case No.26/13-14/B- 121 by Tehsildar, therefore, the said order by way of an amendment was also challenged by the petitioners.
6. In the amendment it has been averred that the said order of mutation of respondents No. 6 and 7 was passed under the garb of an order of Division Bench of this Court in Writ Appeal No.259/2013, which was preferred by the present respondent No.7 i.e. Guruttar Grah Nirman Sahkari Sanstha Maryadit against the order dated 15.07.2005 passed in the present writ petition, by which the petition was disposed of with a direction to Tehsildar, Gwalior to proceed the matter as expeditiously as possible and decide the matter within a period of one month from the date of service of notice to the respondents and while setting aside the order the matter was remitted back to the writ Court for decision on merits and further the NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 4 WP-2082-2005 order passed by Tehsildar dated 05.03.2012, whereby the names of the present petitioners were directed to be mutated in the Revenue Records and the name of respondent No.7/appellant therein was directed to be struck of was also set aside.
7. Against the said order the father of the present petitioner No.1 had preferred an SLP before Supreme Court, which was withdrawn vide order dated 13.12.2013. Thereafter a review petition No.511/2013 was preferred by the petitioner No.1, which also got dismissed vide order dated 02.12.2013.
8. After remand the matter was re-heard by the Tehsildar and vide order dated 04.02.2014 in the light of an opinion given by the Additional Advocate General the status in the Revenue Records as it existed prior to the order dated 05.03.2012, whereby names of the petitioners were recorded in the Revenue Records were directed to be mutated and that of name of respondent No.7 was deleted, was directed to be restored.
9. At the time of filing of present petition since the sale of land in question by Gulabchandra and Chandra Shekhar, who were original owners of the said land in favour of present respondents No.6 and 7 were not known to the petitioners, therefore, later on by way of amendment their names were also impleaded in the array of respondents. After recording names of the present petitioners in the Revenue Records by Tehsildar vide order dated 05.03.2012, an application under Section 178 of MPLRC was moved before the Tehsildar, which was registered as case No.35/10/09-12 and after due procedure the said application was allowed and the entries were made in the Khasras for the year 2012-13, but since the very order of mutation of the names of present petitioners in the Revenue Records dated 05.03.2012 passed by Tehsildar was set aside by the Writ Appellate Court in WA No.259/2013 and after the remittance of the matter vide order dated 04.02.2014 the status ante prior to the order dated 05.03.2012 was directed to be restored. NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 5 WP-2082-2005 Aggrieved by the aforesaid the present petition was preferred.
10. Learned counsel for the petitioner had argued that the order dated 04.02.2014 is contrary to the order passed by Division Bench of this Court in WA No.259/2013 dated 01.01.2013, wherein an interim order passed by this Court in the present writ petition was challenged, whereby directions to Tehsildar was issued to proceed with the matter as expeditiously as possible and decide the same within a period of one month from the date of service of the notice to the respondents and while remitting the matter back to the learned Single Judge the final order passed in the present writ petition disposing of the matter was set aside and also the order dated 05.03.2012, whereby the names of the petitioners were mutated in the Revenue Records, was also set aside with a direction to give opportunity of hearing to present respondent No.7 in the mutation proceedings but construing it to be an order to restore the status ante prior to the order dated 05.03.2012 the order dated 04.02.2014 was passed by Tehsildar, which is dehorse to the very said order, thus, is liable to be set aside.
11. It was further argued that when the very status of predecessors-in- interest of the present petitioners was held to be that of morushi krishak by a competent Civil Court, then as per the provisions of Section 168 of MPLRC, they had acquired rights of Bhumiswami as conferred under Section 190 of MPLRC, thus, directing to restore the status ante i.e. prior to passing of the order dated 05.03.2012 is per se illegal and perverse, thus, is liable to be set aside. On the basis of aforesaid arguments, it was submitted that the respondents/Revenue Authorities be directed to decide the application under Section 190 and 110 of MPLRC as expeditiously as possible and mutate names of the petitioners in the revenue records. To bolster his submissions, learned counsel for the petitioner has placed reliance in the matter of Munnilal Vs. Hardas reported 1982 MPLJ SN 26. NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 6 WP-2082-2005
12. Per contra, learned counsel for the respondent No.7 has raised preliminary objection that the order dated 04.02.2014 passed by the Tehsildar, whereby directions for restoring the status ante vide the order dated 05.03.2012 has been directed is an appealable order, therefore, challenging the said order by way of present writ petition without availing the alternative efficacious remedy available to the petitioners is not maintainable and, therefore, the present petition is liable to be dismissed.
13. It was further argued that the order dated 15.07.2005 passed in present writ petition was rightly set aside by the Writ Appellate Court in W.A. No.259/2013, whereby the order dated 01.11.2013 and the order of Tehsildar dated 15.03.2012 were also quashed since they were passed during the pendency of the present writ petition, as there was a direction for maintaining the status ante order dated 03.05.2012, therefore, no illegality can be said to have been committed by Tehsildar vide order dated 04.02.2014. On the strength of aforesaid arguments, it was contended that the present petition has no sum and substance, thus, be dismissed.
14. A reply has been filed in the matter on behalf of respondents No.1 to 3 and learned Govt. Advocate while supporting the contentions as raised in the said reply argued that the present respondents No.4 & 5 prior to disposal of the application preferred by present petitioners, had sold the disputed land to one Lochan Prasad, s/o Chhaviram Katare and in pursuance to the aforesaid sale his name was recorded as Bhumiswami in the Revenue Records vide order dated 11.12.2000 and thereafter Lochan Prasad Katare had sold the disputed land to respondent No.7 i.e. Guruttar Grah Nirman Sahkari Sanstha Maryadit and accordingly the name of respondent No.7 has been recorded in the Revenue NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 7 WP-2082-2005 Records. Likewise, Gulabchandra, the original owner had sold the land to respondent No.6 Ankit Grah Nirman and, therefore, in pursuance to the aforesaid sale its name has been recorded in the Revenue Records.
15. It was further argued that the petitioners in the year 2012 had filed an application before the Revenue Authorities alongwith the previous orders of civil suit, First Appellate Authority, High Court and the Apex Court and on the basis of the said documents the Revenue Authority had passed a detailed order dated 05.03.2012 and had recorded the names of the petitioners in the Revenue Records but in the Writ Appeal preferred by the respondent No.7 the Division Bench of this Court vide order dated 01.11.2013 had set aside the order dated 05.03.2012 and had remitted the matter back to the Single Bench for decision and as the order dated 05.03.2012 passed by Tehsildar, whereby names of petitioners was mutated in the Revenue Records was also set aside, the names which occured previous to passing of the said order was rightly directed to be recorded, thus, in this regard no anomaly can be found which requires to be corrected.
16. It was further argued that since the present respondent No.6 to 9 have preferred a separate writ petition No.7469/2015 before this Court challenging the very order dated 04.02.2014, therefore, this petition in their hands is not maintainable.
17. On the basis of the aforesaid arguments, it was submitted that the petition being devoid of merits is liable to be dismissed. To bolster their submissions, learned counsel for the respondents had placed reliance in the matters of Rameshwar Dayal and Ors. Vs. B.N. Tripathi, Panchayat and Social Education Organisation, Ater and Ors. reported in 1978 JLJ 179, Mescot Hospital & Research Centre Pvt. Ltd. Vs. State of M.P. & Ors. reported in 2015(IV) MPJR 226, Ramgopal Kanhaiyalal Vs. Chetu Batte reported in AIR 1976 MP 160, Jai NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 8 WP-2082-2005 Singh & Ors. Vs. Municipal Corporation of Delhi and Another reported in (2010) 9 SCC 385.
18. Heard learned counsel for the parties and perused the record.
19. The facts which are admitted and not denied by the other side are that in the year 1974 a suit for declaration of title and for possession was preferred by Gulabchandra and Chandra Shekhar with regard to the disputed survey numbers. The case of the plaintiffs in the suit was that the lands in dispute belong to them under Bhumiswami rights and the predecessors-in-interest/title of the present petitioners i.e. Bhanwar Singh and Maharaj Singh had absolutely no right over the said property rather they had illegally dispossessed the plaintiffs in the year 1972 and had ploughed the fields and thereafter had even got their names recorded in column No.7, 12 of the Khasras. The said suit was decreed in favour of Gulabchandra and Chandra Shekhar, which was challenged by Bhanwar Singh and Maharaj Singh, the father of the present petitioners. In the First Appeal an issue was raised as to whether the predecessors-in-interest and title of the present petitioners had acquired the rights of Mourusi Krishak or not as per the provisions contained of Section 168 of MPLRC?
20. Learned First Appellate Court in para 8 of the judgement has held as under:-
"8. '' अब यह उ प न होता है क या अपीलाथ गण के वाद त भूिम पर मोरोसी अिधकार ा हुये ? धारा 169 भू राज व सं हता, 1959 मे यह ावधान है क य द प टा धारा 168 सं हता के वपर त दया गया है तो प रणाम यह होगा क प टाधार को मोरोसी कृ षक के अिधकार ा हो जावेगे धरा 160 वधान के वपर त वतमान करण का प टा दया गया है । यह प है क इससे यह बात िस होती है क अपीलाथ गण को वाद त भूिम पर मोरोसी कृ षक के अिधकार ा हो चुके ह। उ रवाद गण के अिभभाषक का यह तक क उ रवाद 0 2 जस दनांक को प टा दया जाना कहा जाता है उस दनांक को अवय क था इसिलये प टा अवै है । पर तु उनका यह तक िनरथक है य क धारा 168 सं हता के पर तु NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 9 WP-2082-2005 उप धारा (2) म यह कहा गया है क य द खाता संयु हो तो उप धारा (2) धारा 168 सं हता लागू नह होगी जब तक क सभी संयु खातेदार भी उप धारा (२) म व णत प रभाषा म आते ह पर तु एसी थित म इस करण म नह ं है । मेरे उ मत क पु शंकर िसंह, मे बर डर व गोपाल 1970 रे यू िनणय 27 से होती है । इसके अलावा भी जब तक प टे क अविध समा नह हो जाती तब तक भी उ रवाद गण वाद तुत नह कर सकते तथा धारा 169 भू राज व सं हता के अनुसार अपीलाथ गण को मोरोसी कृ षक के अिधकार ा इसिलये हो चुके ह य क वाद त भूिम का प टा धारा 168 भू राज व सं हता के उपव ध के वपर त ह।
उपरो िन कष के कारण अपीलाथ गण के अिभभाषक ारा जो तक कये गये ह वह सह है
तथा वीकार कये जाते ह। तथा व ान अिधन थ यायालय का इन पर िन कष व
अिभलेख क लेखी ओर मौ खक सा य का अिधमू यन ु टपूण होने से िनर त यो य है ।"
21. As per the findings of the learned First Appellate Court the arguments as advanced on behalf of predecessors-in-interest of the present petitioners was accepted that under provisions of Section 168 and 169 of MPLRC, the predecessors-in-interest and title of the present petitioners, had acquired the rights of mourusi krishak and it was held that they had acquired the rights of mourusi krishak in the suit property, which are provided under Section 168 of MPLRC and as per Section 190 of the MPLRC, the predecessors-in-interest of the petitioners would said to have acquired the rights of Bhumiswami, as no application within one year as provided under Sub-Section (1) of Section 189 of MPLRC was moved by Gulabchandra and Chandra Shekhar, therefore, accrual of bhumiswami rights were automatic. The said judgement was unsuccessfully challenged by Gulabchandra and Chandra Shekhar in second appeal and thereafter in review petition and since the very order of First Appellate Authority remained intact, without any further challenge, it could be said that when a competent Court of Civil jurisdiction has found predecessors-in-interest and title of present petitioner of having mourusi krishak and as no application for restoring the possession back was moved by Gulabchandra and Chandra Shekhar, the original owners of the land in question within the period prescribed under Section 189(1) of MPLRC, NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 10 WP-2082-2005 therefore, it can be said that the predecessors-in-title of the petitioners had acquired bhumiswami rights.
22. When the bhumiswami rights have already accrued to the predecessors- in-title of present petitioners, they/petitioners were entitled to get their names mutated in the revenue records and thus, had rightly moved an application for mutation and since the same was not decided, the present petition was moved, which was disposed of with a direction to Tehsildar to expedite the proceedings and since Gulabchandra and Chandra Shekhar had exchanged hands with the properties, respondent No.7 being one of the subsequent purchaser had moved the Writ Appeal No.259/2013, in which no directions as such were issued by the Division Bench except for setting aside the order passed by Single Judge directing Tehsildar to expedite the proceedings and also setting aside the order dated 05.03.2012 passed by the Tehsildar during pendency of said petition, whereby names of present petitioners were mutated in the revenue records and that of present respondent No.7 was directed to be deleted but construing the said order to be a direction to record the status ante to the order dated 05.03.2012 passed in pursuance to the earlier order dated 15.07.2005 passed in present writ petition, which though cannot be said to be dehorse the orders passed by the Writ Appellate Court but can be said to be subject to final outcome of the present writ petition.
23. Since this Court has already found that the original owners i.e. Gulabchandra and Chandrashekhar themselves had lost right and title in the said property, they could not have transferred any better title to present respondents No.4, 6 and 7 then they had. Thus, the very mutation of the names of present respondent No.4, 6 and 7 in the Revenue Records could not be sustained. Accordingly, the order of Tehsildar dated 04.02.2014 (Annexure P/1-A) in case No.26/13-14/B-121 is hereby set aside and as a natural corollary the entries made NEUTRAL CITATION NO. 2024:MPHC-GWL:18211 11 WP-2082-2005 in the Khasras in favour of respondents No.6 and 7 are also hereby directed to be deleted.
24. Though the order impugned herein dated 04.02.2014 is an appealable order, but at this late juncture, this Court doesn't find any reason to remit the petitioner to avail the remedy.
25. Tehsildar is thus, directed to dispose of the application preferred under Section 190 and 110 of the MPLRC as expeditiously as possible preferably within a period of one month from the date of receipt of certified copy of this order.
26. Accordingly, the present petition is allowed to the aforesaid extent. Certified copy as per rules.
(MILIND RAMESH PHADKE) JUDGE neetu NEETU Digitally signed by NEETU SHASHANK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH SHASH GWALIOR, 2.5.4.20=36b486bb0d381b950e435ec09 e066bc6b58cb947c1474b7dc349a1cf27e aa2ce, postalCode=474001, st=Madhya Pradesh, ANK serialNumber=E60A9BBFC39E0EE500EA ADE1E0B3B8565CB3A7DC9F5CD048197 DF0FF3149AE58, cn=NEETU SHASHANK Date: 2024.11.13 15:02:24 -08'00'