Madhya Pradesh High Court
Lakhanlal vs Narsingh on 29 August, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
M.P. No. 2686/2019
Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab
-: 1 :-
Indore, dated : 29.08.2019
Shri J.B. Mehta, learned counsel for the petitioner.
Shri Pankaj Ajmera, learned counsel for the
respondent.
With consent of learned counsel for the parties, heard
finally.
ORDER
The petitioner has filed the present petition being aggrieved by order dated 16.11.2017 passed by Sub Divisional Officer (SDO), Revenue, Pansemal; order dated 11.4.2010 passed by Additional Collector, Barwani; and order dated 23.3.2019 passed by Additional Commissioner, Indore Division.
2. Facts of the case, in short, are as under :
(i) Respondent filed an application before the SDO seeking correction of name in the revenue record. According to him, he belongs to Scheduled Tribe, resident of Village Chatli, Tehsil Niwali, District Barwani. The land bearing Survey No.343/5 Patwari Halka No.8 area 0.10 Acre is an agricultural land and the same was recorded in the name of his grandfather - Gana S/o.
Ismal Barela in Column No.12 vide order No.6119 dated 28.7.1955. He was illiterate and his father was also illiterate and they had no knowledge about the entries in the revenue record. Some time back, he came to know that the aforesaid land is recorded in the name of Nathulal S/o. Bhuralal. Thereafter, he obtained the copy of the revenue record and found that in Samwat 2013 in Column No.14 of 'Khasra Panchsala' the land THE HIGH COURT OF MADHYA PRADESH M.P. No. 2686/2019 Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab -: 2 :- has been recorded in the name of Bhuralal Balmukund vide order dated 10.9.1959. He stated that his grandfather and his father had not sold the land in question to anyone. Nathulal got recorded his name in the revenue record by way of forgery. The land of a tribe cannot be transferred in the name of non-tribe, therefore, entries be corrected and his name be mutated in the revenue record in place of Nathulal. The Tehsildar registered the case and issue notice to the present petitioner. The petitioner filed an application under Order 13 Rule 10 of C.P.C. for summoning the record of Case No.6119 and order dated 28.7.1955. The Tehsildar directed the Patwari to submit the report.
(ii) After obtaining the report from Patwari, the Tehsildar submitted his report dated 3.5.2017 to the SDO recommending for recording the name of the respondent in the revenue record. The SDO has considered the report and also summoned the record of the year 1963-64 and thereafter passed the order dated 16.11.2017 in favour of the respondent. The SDO has held that the name of Gana was recorded in the revenue record (Kishtabandi Khatauni) of the year 1958-59, and 1961-62, 1963- 64 and "Panchsala Samwat 2018 to 2022. The petitioner has not produced any record in respect of transfer of the land in question in favour of Nathulal. As per report given by Patwari, no one was found into the possession of the land in question. As per the record of the year 1963-64 in B-1 Khatauni, the land belonging to the tribe has been recorded in the name of a non-tribe which is THE HIGH COURT OF MADHYA PRADESH M.P. No. 2686/2019 Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab -: 3 :- violation of Section 170-B of M.P. Land Revenue Code (MPLRC). The SDO accordingly directed the petitioner to handover the possession of the land in question to the respondent.
(iii) Being aggrieved by the aforesaid order of SDO, the petitioner preferred an appeal before the Additional Collector. Additional Collector has also observed that the present petitioner has failed to prove as to how the land was recorded in the name of Nathulal in the year 1963-64 and accordingly dismissed the appeal. Thereafter, the petitioner approached the Additional Commissioner, who has also dismissed the appeal on the ground that the land of a tribe has wrongly been recorded in the name of Nathulal, who is a non-tribe. Hence, the present petition before this Court.
3. Shri J.B. Mehta, learned counsel for the petitioner, submits that the name of father of petitioner was recorded in B-1 Kishtabandi Khatauni of the year 1953-54. Learned revenue authorities have wrongly ignored the aforesaid entries in the revenue record. The burden has wrongly been shifted on the petitioner to prove the ownership of the land in question, whereas, the respondent ought to have been called upon to establish the ownership of Gana S/o. Ismal and how his name was recorded in the year 1957-58 onwards. He further submits that the provisions of Section 170-B of MPLRC are not application to any transaction which took place prior to the year 1980 when these provisions came into force in the MPLRC. In THE HIGH COURT OF MADHYA PRADESH M.P. No. 2686/2019 Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab -: 4 :- support of his contention, he has placed reliance over the judgments of this Court in the case of Balvant Rai V/s. Collector : 1988 RN 169; Sarjoo Pd. V/s. Sitaram : 1995 MPLJ Notes of Cases 19; and Roopchand V/s. Board of Revenue : 1995 RN 184. He further submits that the petitioner was not given any opportunity to cross-examine the witnesses and the order has been passed in his absence, hence the matter is liable to be remanded back or the orders be set aside and the respondent be relegated to the civil court to establish his owner over the land in question.
4. On the other hand, Shri Pankaj Ajmera, learned counsel appearing for the respondent, submits that all the three revenue authorities have concurrently given the finding in favour of the respondent. The scope of interference by the High Court under Article 227 of the Constitution of India is very limited in view of law laid down by the apex Court in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil :
(2010) 8 SCC 329. If the petitioner is aggrieved by the orders of revenue authorities, he should have approached the civil court to establish his right, title and interest over the land in question.
5. I have heard the learned counsel appearing for the parties at length and perused the material available on record.
6. The petitioner and respondent both the parties are relying on the revenue entries and both the parties have failed to produce any document in respect of ownership over the property in question. According to the petitioner, his father's name was THE HIGH COURT OF MADHYA PRADESH M.P. No. 2686/2019 Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab -: 5 :- recorded in B-1 Kishtabandi Khatauni in the year 1953-54 and thereafter from 1963-64 by virtue of order dated 27.6.1963. However, record of said order was called by the SDO, but without receipt of the record, the impugned order has been passed by the SDO. The case of the respondent is also based on the revenue entries in which name of his grandfather was found recorded in the year 1957-58 to 1963-64. He approached the SDO in the year 2017. After the death of Gana, name of his son
- Gulab was also not recorded in the revenue record.
7. It is correct that the provisions of Section 170-B of the MPLRC came into force in the year 1979-80 and before that, there was no requirement of taking permission of the Collector before transferring of the land belonging to a tribe in the name of a non-tribe. This Court in the case of Roopchand (supra) has held that the provisions of Section 170-A are attracted only when the transfers are affected between the period commencing 2.10.1959 and ending on 29.11.1976. The provisions of Section 170-B came into force w.e.f. 24.10.1080, therefore, these provisions of Section 170-B are not applicable to any transaction done prior to 24.10.1980. Therefore, in the present case, even if there was any transaction in the year 1963 between the grandfather of the respondent and father of the petitioner, for which, no permission from the Collector was required and thus, the revenue authorities have wrongly declared the said transaction as illegal by virtue of Section 170-B of MPLRC which came into force w.e.f. 24.10.1980. Hence, on this ground THE HIGH COURT OF MADHYA PRADESH M.P. No. 2686/2019 Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab -: 6 :- alone, the orders passed by the revenue authorities are not sustainable in law.
8. By order dated 11.4.2017, the SDO has found that the petitioner is in possession of land in question and directed him to handover the same to the respondent. In the report submitted by the Tehsildar, name of Nathulal i.e. father of the petitioner was found to be recorded to be in possession over the land in question in the revenue record. It is settled that the dispute of title is liable to be decided by the Civil Court and not by the revenue authorities. The respondent is claiming his title by virtue of succession and he approached the Tehsildar/SDO in the year 2017 for recording his name being the grandson of Gana, therefore, he is required to establish his right and title over the land in question. The burden is on him to prove that his grandfather was owner of the land in question and thereafter he has succeeded title being a grandson. These questions are not liable to be decided by the revenue authorities. In absence of clear title, the name cannot be recorded in the revenue records, therefore, the impugned orders passed by the revenue authorities cannot be given effect. The findings recorded by the revenue authorities are not binding on the civil courts and till issue of title is decided by the civil court, the orders passed by the revenue authorities cannot be given effect to.
9. In view of the foregoing discussion, this petition deserves to be and is hereby allowed. The impugned orders passed by the SDO, Additional Collector and the Additional THE HIGH COURT OF MADHYA PRADESH M.P. No. 2686/2019 Lakhanlal S/o. Nathulal Mangal V/s. Narsingh S/o. Shri Gulab -: 7 :- Commissioner are hereby set aside. The respondent is at liberty to move before the appropriate Court of law for establishing his title over the land in question. The petitioner is also at liberty to to appropriate Court of law to establish his claim over the land in question as he has also failed to produce any evidence with regard to his ownership. For the purpose of interim protection/temporary injunction, the parties are free to file appropriate application before the trial Court.
10. With the aforesaid, this petition stands disposed of.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.08.31 15:23:25 +05'30'