Madhya Pradesh High Court
Radheshyam vs Smt. Devibai on 26 June, 2019
1 MP-2680-2019
The High Court Of Madhya Pradesh
MP-2680-2019
(RADHESHYAM Vs SMT. DEVIBAI)
Jabalpur, Dated : 26-06-2019
Mr. Rahul Deshmukh, Advocate for the petitioner.
Heard on the question of admission.
Petitioner has filed this petition challenging the order dated 15.04.2019
contained in Annexure P-3 passed by Upper Commissioner, Bhopal Division,
Bhopal whereby the appeal preferred by petitioner - Radheshyam against the
order of Sub Divisional Officer dated 08.01.2019 was dismissed.
The brief facts of the case are that one Pannalal was owner of lands
bearing Khasra Nos.946, 947, 948, 949, 950, 951 and 952 admeasuring
3.270 hectare situated in village Mugaliya Hat. Respondent - Devi Bai was
wife Pannalal. Both of them adopted on 24.06.1995 petitioner Radheshyam as their son by registered adoption deed. Pannalal had executed a will on 20.06.1995 in favour of his adopted son Radheshyam. Later Pannalal died on 20.04.1997. After death of Pannalal, there was dispute between Devi Bai and Radheshyam regarding mutation of the land of Pannalal.
In the first round of litigation, both the parties went up to the Board of Revenue challenging the order of mutation which was passed in favour of Devi Bai dated 15.01.1999. The Board of Revenue had remanded the matter back to the Court of Tahsildar to pass fresh orders in the matter after hearing both the parties. After passing of the order by the Board of Revenue, the second round of litigation began between petitioner Radheshyam and respondent Devi Bai. The Tahsildar after hearing both the parties afresh has allowed the application for mutation in favour of Radheshyam in respect of 2.89 hectares of land. The order of mutation was passed on the basis of registered will in favour of Radheshyam dated 20.06.1995. The order of Digitally signed by PREM SHANKAR MISHRA Date: 02/07/2019 10:44:19 2 MP-2680-2019 mutation passed by Tahsildar dated 22.06.2017 was challenged before the Sub Divisional Officer in appeal. The appeal before the Sub Divisional Officer was registered as Appeal Case No.151/Appeal/2017-18. The Sub Divisional Officer allowed the appeal filed by the respondent Devi Bai vide its order dated 08.01.2019. The appeal was allowed by the Sub Divisional Officer on the ground that M.J.C. No.302/2014 was filed before the trial Court under Section 276 of the Indian Succession Act. The prayer for grant of probate in respect of will of Pannalal was rejected by the trial Court vide its order dated 13.05.2017. The Sub Divisional Officer held that the order which was passed by the Tahsildar is contrary to the order of Civil Court dated 13.05.2017, therefore, the order of Tahsildar was vitiated hence the order was set aside and appeal of Devi Bai was allowed.
The parties had challenged the order passed in appeal before the Upper Commissioner in second appeal. The appeal preferred before Commissioner by petitioner Radheshyam was registered as Case No.242/Appeal/2018-19. Appeal before Commissioner was dismissed vide order dated 15.04.2019. This order is under challenge before this Court in the present miscellaneous petition. Many grounds were raised in the second appeal before the Upper Commissioner, Bhopal Division, Bhopal. The Commissioner mainly relied on the ground that Civil Court vide its order dated 13.05.2017 has dismissed the suit of the appellant to grant probate under Section 276 of the Indian Succession Act. The Commissioner affirmed the order of Sub Divisional Officer on the ground that since prayer for probate under Section 276 of the Indian Succession Act was rejected by the Civil Court, therefore, Tahsildar could not have passed an order on the basis of will dated 20.06.1995. The Commissioner held that the order passed by Tahsildar dated 22.06.2017 is illegal as the order of the Civil Court is binding upon the Tahsildar and Digitally signed by PREM SHANKAR MISHRA Date: 02/07/2019 10:44:19 3 MP-2680-2019 resultantly the appeal preferred by the petitioner was dismissed.
The petitioner who was appellant before the Upper Commissioner has raised a ground that this Court in M.A. No.1723/2017 has ordered the parties to maintain status quo and, therefore, the order which has been passed by the High Court was breached by the orders of Sub Divisional Officer and, therefore, same be set aside. The Upper Commissioner did not consider the plea which was raised by the petitioner in the appeal. In this petition, petitioner has not filed any document to show that order which was passed in M.J.C. No.302/2014 dated 13.05.2017 is under challenge. It was the duty of the petitioner to place all the documents before the Court particularly when there is an order passed by the High Court which is relevant and also subject matter of petition. By checking the order on internet which was passed in M.P. No.1723/2017 it was found that this Court vide order dated 18.07.2017 had stayed the operation of the order dated 13.05.2017 passed in M.J.C. No.302/2014. Since this Court has stayed the order dated 13.05.2017 passed in M.J.C. No.302/2014, therefore, the Sub Divisional Officer could not have decided the case on the basis of the order which has been stayed by this Court. The learned Sub Divisional Officer as well as Upper Commissioner have committed an error of law in passing the order on the basis of an order which has already been stayed by this Court.
Petitioner in this petition has raised an issue that probate is not required to be obtained in the State of Madhya Pradesh. He has relied on the judgment passed by the Supreme Court in the case of K. Subramani vs. P. Rajesh Khanna reported in AIR 2001 SC 1151. As High Court is ceased with the matter in respect of M.J.C. No.302/2014, therefore, no orders could be passed deciding the issue which has been raised by the petitioner.
In view of the above facts and circumstances, the order passed by the Digitally signed by PREM SHANKAR MISHRA Date: 02/07/2019 10:44:19 4 MP-2680-2019 Sub Divisional Officer as well as Upper Commissioner suffers from illegality and, therefore, same are set aside. It is directed that the order which has been passed by the Tahsildar dated 22.062017 will be subject to final outcome of the order which will be passed in M.A. No.1723/2017.
With the aforesaid observations, the miscellaneous petition filed by the petitioner stands disposed of.
VISHAL DHAGAT) JUDGE Digitally signed by PREM SHANKAR MISHRA Date: 02/07/2019 10:44:19