Madhya Pradesh High Court
Gurucharan Singh vs Buddha Through Lrs (A) Pratap on 24 June, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 5096 of 2009
GURUCHARAN SINGH AND OTHERS
Versus
BUDDHA THROUGH LRS (A) PRATAP AND OTHERS
---------------------------------------------------------------------------------------
Appearance:
Shri N K Gupta - Senior Advocate alongwith Shri Y.P.S.
Rathore-Advocate and Shri Sanjay Dwivedi - Senior Advocate
alongwith Shri Somyadeep Dwivedi - advocate and for the petitioners.
Shri Sohit Mishra - Govt. Advocate for the respondent/State.
Shri P.C.Chandil - Advocate for the respondents No.3 to 8.
Shri D.R.S.Baghel - Advocate for respondent No.14
Shri Yash Sharma - Advocate for respondent No.30.
------------------------------------------------------------------------------------
Reserved on : 18/06/2025
Delivered on : 24/ 06/2025
-------------------------------------------------------------------------------------
This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
-------------------------------------------------------------------------------------
ORDER
This petition under Article 226/227 of the Constitution of India has been preferred against the order dated 15.07.2008 passed by Commissioner in revision No.134/06-074, whereby while dismissing the revision the order dated 22.06.2007 passed by Collector, District Gwalior in appeal No.04/06-07 was affirmed, wherein the order dated 2 16.06.1997 passed by Sub Divisional Officer in case No.11/55- 56/170(ख), whereby the transfer of the land in favour of the petitioner, since belonging to Scheduled Tribe was held to be illegal and the said land was directed to be handed over to the said Tribe with a further direction to mutate their names in revenue records in place of petitioners, was under challenge and was upheld.
2. Short facts of the case are, that the present petitioners had purchased some agriculture lands from one Smt. Ramkali Diwan and Navi Raja Diwan by way of registered sale deed dated 17-7-1975 and their names were mutated in the revenue records as owner in possession. Earlier to that, the land was purchased by Smt. Ramkali Diwan and Navi Raja Diwan from ancestors of present private respondents and before that permission was sought from the Collector under section 165 of the M.P. Land Revenue Code, as the private respondents/their ancestors belonged to Adiwasi community and the said permission was granted by the Collector vide order dated 20.01.1968 in case No.7/66-67/A/21(165) to the ancestors of present respondents, to sale the land in favour of the predecessors in title of the petitioner i.e. Smt. Ramkali Diwan and Navi Raja Diwan. While granting permission, in the proceedings the Collector recorded the statements of ancestors of private respondents and Sub Divisional Officer had submitted a report after making enquiry thus Collector 3 after making complete enquiry and having found that the land can be sold by Adiwasis to the non Adiwasi' person, permission was granted. In the permission it was also noted that 54 Bigha land would be left with the ancestors of the respondents for their livelihood and only on that condition permission was granted.
3. After purchase of the land by the petitioner vide sale deed dated 17.07.1975 proceedings were initiated by the Sub Divisional Officer under Section 170-B of M.P. Land Revenue Code on the ground that the petitioners have notified the information as required under sub Section (1) of Section 170-B and without considering the effect of the permission dated 20.01.1968 held that the sale deed executed in favour of petitioner is not valid and the order dated 17.12.1991 was passed and the entire exercise was done after 15 years of execution of registered sale deed in favour of petitioner and after 22 years of registration of sale deeds in favour of predecessors in title of the petitioner i.e. Smt. Ramkali Diwan and Navi Raja Diwan.
4. Against the order passed by Sub Divisional Officer an appeal was preferred before the Collector but the same was dismissed vide order dated 07.03.1992, against which a revision was preferred before the Commissioner and the Commissioner vide order dated 30.05.1992 allowed the revision after considering the permission granted under Section 165 of M.P. Land Revenue Code vide order dated 20.01.1968 4 and held the petitioners to be owners in possession and also held that provisions of under Section 170-B is not applicable in the present circumstances. Against the order passed by the Commissioner, a revision was preferred before Board of Revenue and the Board of Revenue allowed the said revision, though second revision was not maintainable before Board of Revenue. Against the said order writ petition No.1564/1993 was preferred by the petitioners and this Court vide order dated 06.12.1995 allowed the writ petition and the case was remanded back to the Sub Divisional Officer for deciding it afresh after considering the law laid down in the case of Aatma Ram Vs. State of M.P. & others reported in AIR 1995 MP 225. Vide said order this Court also directed that the parties shall maintain status quo with regard to possession.
5. After order of remand no enquiry was conducted by the Sub Divisional Officer, no opportunity to lead evidence was granted to the petitioners and without conducting enquiry as per the orders passed by this Court, an order was passed on 16.06.1987 and while passing the order considered the case beyond the provisions of Section 170-B ignoring that the provisions of Section 170-B were not applicable, as the petitioners had not purchased the land from some Adiswasi rather they had purchased the land from Ramkali Diwan and Navi Raja Diwan and they did not belong to Adiwasi community. 5
6. On 10.06.1996, the case was fixed before Sub Divisional Officer for filing list of witnesses and thereafter on 09.07.1996 it was reported that some persons have died and thereafter case was fixed on 12.09.1996 and at that stage an application was submitted by the non applicants for hearing of the case No.107/82-83/B-121 separately and for consideration on the application case was fixed for hearing on 14.11.1996 and on that date written submissions were submitted by the parties on the application for hearing the case separately thereafter on 20.11.1996 applications and documents were filed by the respondents and the case was fixed for 02.12.1996. On that day, written submissions were presented on the application, which was filed on 12.09.1996 thereafter case was fixed for 07.12.1996 and on 26.02.1997 an order was passed for registration of the case, hence the case was never fixed for final arguments and no enquiry as ordered by this Court in W.P. No.1564/1993 was conducted, no evidence was recorded, neither any opportunity for recording the evidence was granted and after hearing on the application for separate hearing of the cases, the Sub Divisional Officer passed final order on 16.06.1997 holding that the provision of Section 170-B is applicable.
7. In the meanwhile, a civil suit No.65-A/1996 was filed by the ancestors of respondents which was dismissed, against which, first appeal No.62/1998 was filed by them, which was also dismissed vide 6 judgment and decree dated 29.04.1999. In the judgment and decree dated 29.04.1999, the District Judge gave a finding that no evidence was produced by the respondents regarding the sale deed dated 28.05.1968 and 17.05.1975 executed without permission from the Collector and it was held that the sale deed was good but without considering the same, the order impugned has been passed by the Sub Divisional Officer, which was against the findings given by the civil Court. The order passed by the Sub Divisional Officer when challenged before the appellate Authority i.e. Collector was upheld and the appeal preferred by the present petitioners was dismissed. The revision preferred against the order of dismissal of appeal was dismissed without any intimation given to the petitioner or his counsel, thus, alleging the said order to be behind the back and against the principle of natural justice has been challenged in the present petition.
ARGUMENTS
8. Learned Senior counsel for the petitioner had argued before this Court that the Collector on earlier occasion has granted permission vide order dated 20.01.1968 on the basis of an enquiry report prepared by the then Sub Divisional Officer after recording the statements of buyers and sellers but the Sub Divisional Officer in the impugned order dated 16.06.1997 had held the said permission to be invalid, 7 which is per se illegal, as no inferior authority can sit as an appeal against an order passed by his superior and further the said order was passed after lapse of almost 16 years from the date of execution of registered sale deed in favour of petitioners, which in the light of pronouncement of the Apex Court in the case of Ranveer Singh & anr. Vs. State of M.P. reported in AIR 2011 MP 27; explicating the circumstances the time period within which powers of revision of revenue authorities is to be exercised, was bad in law as the limitation prescribed therein is only 180 days from the date of knowledge of the order to be challenged.
9. It was further argued that a perverse finding has been recorded by the Sub Divisional Officer that subjective lands were not joint family property and Mulua as karta was not empowered to sale the said lands, which was based on the reasoning that in the revenue entries with respect to the suit lands contained the names of different persons and thus were their separate properties and in case of joint family property only name of karta would be recorded but the fact remain that all the co-parceners had share in joint family property and, therefore, names of all of them were recorded in the record of rights.
10. Further, it was argued that Section 108 of M.P. Land Revenue Code prior to its amendment in the year 2018, stipulated that record of rights should include the names of all the Bhumiswamis and there is 8 no distinguishing feature for ascertaining the nature of the property has been made under Section 108 of M.P. Land Revenue Code and the revenue entry containing names of multiple persons cannot lead to the presumption that the land was of joint family property, thus, the finding of Sub Divisional Officer that the lands eventually purchased by the present petitioners were not joint family property of Mulua and his family on the basis of entries is erroneous in the light of Section 108 of M.P. Land Revenue Code.
11. It was further argued that SDO has casted aspirations on the genuineness of the sale deeds and has also held that witnesses have not been produced to prove them, which in the teeth of Section 68 of Indian Evidence Act reveals that there would be presumption regarding the genuineness of sale deeds and recitals contained therein and such presumption can only rebutted by leading evidence. To bolster the aforesaid submissions, reliance was placed in the matter of Prem Singh and others Vs. Birbal and others reported in (2006)5 SCC 353.
12. On the basis of the aforesaid judgment, it was further contended that a sale deed would continue to operate as long as it is not set aside by the competent Court of civil jurisdiction and as the sale deeds in favour of the petitioners and in favour of predecessors in title of the petitioner having been not canceled by any civil Court they were valid 9 and enforceable, thus, learned Sub Divisional Officer has seriously erred in shifting the burden of proving the execution of registered sale deed on the petitioners.
13. It was further argued that exercise the powers under Section 170-B of MPLRC by Sub Divisional Officer was also illegal, as there were registered sale deeds in favour of the petitioners; also the SDO had acted beyond his jurisdiction by invalidating the permission dated 20.01.1968 granted by the Collector to the predecessors of the petitioners, thus, on both the counts the Sub Divisional Officer had erred. To bolster this argument, reliance was placed in the matter of Sukra Bai Vs. Makhan Gir Mahant reported in 2015(2)MPLJ 113 (DB).
14. It was also argued that in the order the learned Sub Divisional Officer had observed that possession of subjected lands were never handed over to the present petitioners and the respondents being member of aboriginal Tribes, after their ancestors were enjoying the same and in that regard reliance was placed by the Sub Divisional Officer on the order dated 20.01.1994 under Section 145 of Cr.P.C. Refuting the said ground, learned Senior Counsel while placing reliance in the matter of Jhummamal Vs. State of Madhya Pradesh and Ors. reported in AIR 1988 SC 1973 had argued that an order under Section 145 of Cr.P.C. only records the possession on the date 10 proceedings have taken place and such an order cannot be treated as an evidence of continuous possession of a party over a property.
15. It was further argued that the civil Court is the solitary forum for establishing factum of possession over any property, thus, finding as regards possession of the private respondents belonging to the aboriginal tribes over the subjected lands is perverse and, therefore, is liable to be set aside.
16. It was also argued that the Sub Divisional Officer while concluding had made an observation that registered sale deeds in favour of petitioners have been obtained through fraud and the aforesaid fraud has been premised on the finding based on alleged possession of the respondents of Scheduled Tribes on the subjected lands, which itself is a perverse finding, thus was erroneous, whereas the sale deeds clearly recites that the possession on subjected lands was handed over to the petitioners by their predecessors in title and such recital in the sale deed was required to be presumed to be corrected unless rebutted by the respondents and as such there was no rebuttal done on their part, thus, the findings on possession by the Sub Divisional Officer falls foul of provisions of Section 68 of Indian Evidence Act.
17. It was further argued that the Sub Divisional Officer has committed an act of judicial indiscipline by declaring the permission 11 of the Collector dated 20.01.1968 invalid, as Sub Divisional Officer is admittedly an officer subordinate in rank to the Collector in the hierarchy of Revenue Officers and he is bound by the order/permission passed by the then Collector and that too after a period of more than 20 years the said permission was challenged. To bolster this argument, learned Senior Counsel placed reliance in the matter of Union of India (UOI) and Ors. Vs. Kamlakshi Finance Corporation Ltd. reported in AIR 1992 SC 711.
18. Learned Senior Counsel while criticising the orders in appeal had submitted that proper procedure for service of notice on the petitioner was not adopted and straight away without adhering to the provisions of Rules 11, 12, 13 of the Rules of Procedure for Revenue Officers and Revenue Courts entail in schedule 1 of M.P. Land Revenue Code and Order 5 Rule 17 of CPC; it was argued that the service directly by way of publication was bad in law, thus, in wake of proper service of notice on the present petitioners the order passed by the Appellate Authority as well as revisional authority were bad in law. On the basis of aforesaid arguments, it was submitted that the present petition be allowed and the orders impugned herein be set aside.
19. Per contra, learned counsel for the respondents had submitted that the permission dated 20.01.1968 granted by the Collector was itself an invalid permission as some of the Adiwasis included minors, 12 who had applied before the Collector for grant of permission to sell the land in question and since the minors were not represented through their natural guardian, in absence of any permission from competent Court in favour of any person to act as a guardian of those minors, any permission granted therein was void and initio. To bolster their submissions reliance was placed in the matter of Deepak Agro Foods Vs. State of Rajasthan and Ors. reported in (2008) 7 SCC 748; and was submitted that where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non-est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. Further, reliance was placed in the matter of Chiranjilal Shrilal Goenka Vs. Jasjit Singh reported in (1993)2 SCC 507; in the matter of Ajay Singh and anr. Vs. State Of Chhattisgarh and anr. reported in (2017)3 SCC 330.
20. It was further argued that the learned Collector granted permission to some of minors by way of non speaking order and as the power to grant permission for sale of the property belonging to minors lay with the competent civil Court, the Collector in view of the provisions of the Guardians and Wards Act, 1890 as well as Minority Acts lacked inherent jurisdiction, thus, the permission was bad in law. 13 To buttress their submissions reliance was placed in the matter of Budhiya & another Vs. Chandrika Prasad reported in 1991 MPRN 94 and in the matter of Gopichand Vs. State of M.P. Reported in 1998 MPRN 103.
21. It was further argued that the present respondents have filed a suit for declaration and permanent injunction, which was registered at civil suit No.65/1996, wherein vide judgment dated 01.09.1998 the entire land was declared as government land, which was further challenged by them in appeal, wherein cross objection was preferred by the purchaser, which was registered as civil appeal No.62/98, wherein vide order dated 29.04.1999 the appeal filed by the appellants/triables was dismissed and the cross objection of procedure /petitioner were allowed and the sale deeds dated 28.05.1968 and 17.07.1975 were held to be validated, which was later on challenged in second appeal before this Court but the second appeal was dismissed holding that no substantial question of law is involved therein.
22. Alleging the said judgment and decree to be based on perverse finding learned counsel for respondents has argued that since the possession of the land in question is still with the respondents, merely on the basis of paper possession it could not be said that the petitioners are in possession of the said land. It was thus, prayed that the present 14 petition be dismissed.
23. Heard learned counsel for the parties and perused the record. DISCUSSION AND CONCLUSION,
24. It is an admitted fact that on 20.01.1968 permission to sale the land by persons belonging to aboriginal tribes was granted by the then Collector in favour of the respective purchasers i.e. Smt. Ramkali Diwan and Navi Raja Diwan. It is also an admitted fact that the said permission was never challenged by way of an appeal or revision by any of the persons in whose favour the said permission was granted nor by any one else. It is also an admitted fact that two of the applicants before the Collector seeking permission to sale the land were minor at that time and were not represented by their natural guardians but by one Mawashi s/o Gilhari.
25. There are two laws governing the rights of minor; one is the Hindu Minority and Guardianship Act, 1956 and the other Guardian and Wards Act, 1890. Under the 1956 Act, the natural guardian of Hindu minor is vested with the powers to do all acts which are necessary, reasonable and proper for the benefit of minor/minors and the minor's estate. This is premised on the principle of welfare of a child, which is of paramount consideration. However, the said power is not unbridled and is fettered as the draftsman, in their wisdom, 15 contemplated the misuse the powers by natural guardian. Thus, it was a conscious decision of the legislature to limit the scope of powers of natural guardian of Hindu minor, as the same was put to judicial scrutiny while dealing with immovable property of a minor.
26. Likewise, under the Act of 1890, limitation of powers of guardian of property appointed or declared by the Court and voidability of transfers made in contravention of section 28 or Section 29 have been incorporated. Thus, it is manifest that intent and object of provisions of 1956 Act was to equate the legal position of natural guardian of a Hindu minor with that of a guardian under 1890 Act. From provisions of both the Acts it is amply clear that clauses (a) and
(b) of Section 29 of the 1890 Act are in pari materia with clauses (a) and (b) of sub Section (2) of Section 08 of the Act of 1956. Similarly, Section 30 of the 1890 Act is verbatim at par with Section 8(3) of the Act of 1956. The pari materia nature of the two statutes is reflective from the effect of transaction being 'voidable', under both statutes, where the disposal of an immovable property of the minor by the guardian is without the prior permission of the court. Therefore it may be seen that the legislature designated the courts as the custodian of the rights of the minor and the discretion of the court was to be exercised based on the paramount consideration of the welfare of the minor.
16
27. The aforesaid position of law, at a cursory reading, may, appear to be contrary to the provisions of the Indian Contract Act, 1872, which predates both the above acts, and stipulates the effect of a transaction by and/or with the minor as 'void'. The legislative intent behind categorizing the effect of a transaction with a minor under the Contract Act as 'void' is predicated on the premise that a minor cannot be a contracting party, as a minor is not competent to enter into a contract in terms of Section 11 of the Contract Act, whereas, under the 1956 Act and/or 1890 Act, the alienation of immovable property, amongst others, on behalf of the minor is effectuated by the natural guardian/ guardian. As such, the effect of a transaction executed in the name of a minor by a natural guardian under the 1956 Act and/ or a guardian under the 1890 Act is consciously categorized as 'voidable' as against 'void' owing to the fact that a natural guardian/ guardian may be acting bonafidely and entering into a transaction for parting the immovable property of a minor for the benefit of the minor or for the protection of minor's estate and to hold such a transaction as 'void' may be adverse to the interests of the minor. Thus, to protect the interests of a minor, the legislature consciously categorized the transaction as 'voidable'.
28. The Hon'ble Apex Court in the matter of Vishwambhar vs. Laxminarayan reported in (2001) 6 SCC 163; has expounded on the 17 difference between void and voidable documents and while referring to Gorakhnath Dubey Vs. Harinarayan Singh reported in (1973) 2 SCC 535 has held as follows:
"5. ...We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject- matter of consolidation proceedings..."
29. Following the decision in Vishwambhar vs. Laxminarayan (supra), the Hon'ble Supreme Court in Nagali Amma Bhawani Amma Vs. Gopalkrishnan Nair reported in (2004)8 SCC 785; has held that a transaction entered into by the natural guardian in contravention of Section 8(2) was not void but merely voidable at the instance of the minor. Pertinently, the Hon'ble Supreme Court also clarified that to read anything contrary to the plain meaning of the statute would have the effect of depriving the minor of the right to affirm or ratify the transaction upon attaining majority.
30. In light of the settled principles under the 1956 Act, the disposal/ alienation of an immovable property of a Hindu minor by the guardian without the sanction of the court is voidable at the instance of a minor. This position is pari materia to the 1890 Act where Section 29 limits the power of the person appointed/ declared by the court as a guardian of the property of the minor, to sell the property of the minor 18 without obtaining the permission of the court and it is well settled that a voidable document has to be set aside by the court at the request of the minor before taking its legal effect. As such, setting aside of the sale which is voidable under Section 8(3) of the 1956 Act and Section 30 of the 1890 Act is necessary for avoiding a transaction where the sale deed is registered.
31. In the light of aforesaid ennunciations, it would be clear that if the minor in whose favour permission was sought later on wanted to avoid the said permission and the sale deed executed in pursuance thereof had a right to challenge the same and get the sale declared voidable by a competent civil Court but no such efforts appears to have been made by the minors after attaining the majority, thus, merely on the ground that permission was sought on behalf of minors, which had made the very permission void by the Sub Divisional Officer is per se illegal, therefore, the finding recorded by the Sub Divisional Officer in order dated 16.06.1997 that no permission could have been granted by the Collector for sale of the property so far as minor is concerned, therefore, the said permission was illegal, appears to be a perverse finding.
32. Another question, which is put before this Court is as to whether the provision of Section 170-B that is reversion of land of the members of aboriginal tribes, which was transferred by fraud is 19 applicable to the present case or not.
33. Sub section (1) and sub section (2) of Section 170-B provides as under:-
"(1)Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment), 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within [two years] of such commencement, notify to the Sub-
Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land. (2)If any person fails to notify the information as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs.[(2-A) If a Gram Sabha in the Scheduled area referred to in clause (1) of Article 244 of the Constitution finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that person to whom it originally belonged and if that person is dead to his legal heirs :Provided that if the Gram Sabha fails to restore the possession of such land, it shall refer the matter to the Sub-Divisional Officer, who shall restore the possession of such land within three months from the date of receipt of the reference.][Inserted by M.P. Act No. 1 of 1998 (w.e.f. 5-1- 1998).]"
34. To appreciate the aforesaid provision, it is also necessary to consider the order dated 16.12.1995 passed by this Court in W.P. No.1564/1993, wherein in the matter of predecessor in title of the present petitioners the said provisions were considered, wherein it was held as under:-
"7. It is thus clear that even where a vendee in possession has not notified the particulars as required under sub-section (1) of section 170-B, has a further opportunity to explain the reasons for his failure to notify the Particulars and if the reasons are acceptable, sub-section (2) cannot be invoked and the presumption cannot be drawn. In this connection, it is necessary to refer to an aspect which was not urged before the Court in Dhirendra Nath Sharma's case. Failure to notify the information as required under sub-section (1) of Section 170-B of the Code within the period specified leads to a presumption. That is because of the words "it shall be presumed" occurring in sub-section (2). But the nature and extent of presumption is that the person in possession has been in possession without any lawful authority. Sub-section (2) does not expressly or by 20 necessary implication, indicate that the presumption is either irrebuttable presumption or that it is a presumption amounting to conclusive proof."
Thus, even if it be presumed that the stand taken by the respondents is correct and that information was not given even then the respondent authorities cannot escape their responsibilities to look further into the matter. Let them do so now. Decision given by the Division Bench referred to above be taken note of. The petitioner would appear before Sub Divisional Officer on 24.01.1996. The parties would be at liberty to raise any other point which they wish to raise before Competent Authority. Decision be taken, without being influenced by what has already been said by the Revenue Authority. "
35. After considering the aforesaid provisions the matter was remitted back to the revenue authorities for taking further decision without being influenced by what has already been said by the revenue authorities in previous round of litigation and thereafter the impugned order dated 16.06.1997 came to be passed by the Sub Divisional Officer. The first ground taken by the Sub Divisional Officer in holding that the lands in question were transferred illegally in favour of the petitioner to the exclusion of members of the aboriginal tribes is that the permission dated 20.01.1968 was an illegal order, as it was passed in favour of minors, which made it void document and secondly was in derogation of provisions of Section 165 (6) of M.P. Land Revenue Code.
36. The aforesaid aspect is not further required to be gone into as it has already been discussed in the preceding paras that such a document would be termed as a voidable document and not as void document and could be challenged by the minors before competent civil Court after attaining majority but the minors after attaining the 21 age of majority had not challenged the said document before any competent Court of Civil Jurisdiction and had not sought declaration of the sale deed executed on its behalf to be null and void.
37. So far as the finding with regard to fraud as arrived by the Sub Divisional Officer and tried to justified by Respondent's counsel by placing reliance on the decision of Gopichand Vs. State of M.P. (Supra) is concerned, only on the basis that in the report it came that possession was that of the respondents over the property in question, a fraud had been perpetuated against them in getting the sale deed executed appears to be wholly misconceived, as there is no iota of material available on record that in any way fraud was committed/played by the petitioners/their predecessors in title in getting the order dated 20.01.1968 and sale deed executed in their favour.
38. In the case of A.C. Ananthaswamy & Others vs Boraiah reported in (2004) 5 SCC 588; it was held that fraud is to be pleaded and proved and to prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud and it should be proved that it was made false to the knowledge, 22 but herein case learned Sub Divisional Officer has presumed fraud in absence of any pleadings or proof, thus, the said finding is also perverse.
39. Also, with regard to the fact that the sale deeds were executed by misrepresenting the members of aboriginal tribes as there was no ascertainment of the market value and the value shown in the registered deed and there was no proof as on the basis of market value the sale deed was executed and as no witness of sale deed has been produced to prove the said fact, therefore, it can be presumed that the consideration was not paid honestly and, therefore, under the provisions of Section 170-B of MPLRC the land is required to revert back to the members of aboriginal tribe, in wake of any pleadings or proof cannot be said to be proved.
40. Thus, merely on the ground that transfer was not notified to the revenue authorities within a period of two years as provided under sub Section (1) of Section 170-B, the land is required to be reverted back to the aboriginal tribes appears to be not correct and in total derogation of the directions of this Court in W.P. No.1564/1993 dated 06.12.1995, thus, on this count also the finding appears to be bad in law.
41. Since the very order by which the learned Sub Divisional Officer has taken view that the land is required to be reverted back to the respondents i.e. members of the aboriginal tribes and their names 23 are required to be recorded in revenue records has been held to be perverse, the findings recorded by the Collector vide order dated 22.06.2007 in appeal No.4/2006-07 and order dated 15.07.2008 passed by Additional Commissioner revision No.234/2006-07, whereby the order dated 16.06.1997 passed by the Sub Divisional Officer was upheld, is held to be perverse. Accordingly, all the orders are hereby set aside. The authorities are directed to mutate the names of petitioners in the revenue records.
42. The judgments cited by Shri P.C. Chandil, learned counsel for respondents No.3 to 8 in the light of above discussion are not applicable to the present case.
43. Accordingly, the present petition is allowed in the above terms and disposed off.
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 GWALIOR, SHASH 2.5.4.20=36b486bb0d381b950e435e c09e066bc6b58cb947c1474b7dc349 a1cf27eaa2ce, postalCode=474001, st=Madhya Pradesh, serialNumber=E60A9BBFC39E0EE500 ANK EAADE1E0B3B8565CB3A7DC9F5CD0 48197DF0FF3149AE58, cn=NEETU SHASHANK Date: 2025.06.24 17:42:44 +05'30'