Madhya Pradesh High Court
Smt. Nirmala Bai Alias Shanta Bai vs Smt. Manda Bai on 15 July, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 15th OF JULY, 2022
WRIT PETITION No. 13609 of 2022
Between:-
1. SMT. NIRMALA BAI ALIAS SHANTA BAI D/O
LATE SHRI VALMIK BANAIT W/O SHRI
TUKARAM MURUMKAR , AGED ABOUT 55
YE A R S , OCCUPATION: NIL R/O VILLAGE
KENHONDE TEHSIL RAAWE DISTRICT
JALGAON MAHARASTRA, PRESENT R/O
DISTRICT BURHANPUR M.P. (MADHYA
PRADESH)
2. SMT. DURGA BAI D/O LATE SHRI VALMIK
BANAIT W/O SHRI GAMBHIR BORNAARE ,
AGED ABOUT 53 YEARS, R/O NIMDAD TEHSIL
KHAKNAR DISTRICT BURHANPUR (MADHYA
PRADESH)
3. SMT. PRAMILA BAI D/O LATE SHRI VALMIK
BANAIT W/O SHRI NIVRATI ATWAADE , AGED
ABOUT 50 YEARS, R/O ICHCHAPUR TEHSIL AND
DISTRICT BURHANPUR (MADHYA PRADESH)
4. SMT. KALPANA BAI D/O LATE SHRI VALMIK
BANAIT W/O SHRI RAMESH GALFADE R/O
NASEERABAD TEHSIL NEPANAGAR DISTRICT
BURHANPUR (MADHYA PRADESH)
5. SMT. SARLA BAI D/O LATE SHRI VALMIK
BANAIT W/O SHRI RISHIKESH THEVLE , AGED
ABOUT 46 YEARS, R/O VILLAGE TAHAKAD
MUKTAINAGAR DISTRICT JALGAON
(MAHARASHTRA)
6. SMT. SHOBHA BAI D/O LATE SHRI VALMIK
BANAIT W/O SHRI GAJANAN SONWANE , AGED
ABOUT 44 YEARS, R/O VILLAGE PIPRI
MUKTAINAGAR DISTRICT JALGAON
(MAHARASHTRA)
Signature Not Verified
SAN
.....PETITIONER
Digitally signed by VAIBHAV YEOLEKAR
(BY SHRI VIJAYENDRA SINGH CHOUDHARY, ADVOCATE)
Date: 2022.07.22 11:07:56 IST
2
AND
1. SMT. MANDA BAI W/O LATE SHRI
VISHWANATH BANAEIT , AGED ABOUT 40
YE A R S , OCCUPATION: NIL R/O VILLAGE
KHAKNAR KALA NEAR GAJANAND MANDIR
TEHSIL KHAKNAR DISTRICT BURHANPUR M.P.
(MADHYA PRADESH)
2. TEJAS S/O LATE SHRI VISHWANATH BANAEIT ,
AGED ABOUT 15 YEARS, R/O VILLAGE
KHAKNAR KALA NEAR GAJANAND MANDIR
TEHSIL KHAKNAR DISTRICT BURHANPUR M.P.
(MADHYA PRADESH)
3. HEMANGI D/O LATE SHRI VISHWANATH
BANAEIT , AGED ABOUT 10 YEARS, R/O
VILLAGE KHAKNAR KALA NEAR GAJANAND
MANDIR TEHSIL KHAKNAR DISTRICT
BURHANPUR M.P. (MADHYA PRADESH)
4. SONAKSHI D/O LATE SHRI VISHWANATH
BANAEIT , AGED ABOUT 7 YEARS, R/O VILLAGE
KHAKNAR KALA NEAR GAJANAND MANDIR
TEHSIL KHAKNAR DISTRICT BURHANPUR M.P.
(MADHYA PRADESH)
5. STATE OF MADHYA PRADESH THROUGH
ADDITIONAL COLLECTOR DISTRICT
BURHANPUR M.P. (MADHYA PRADESH)
6. SUB DIVISIONAL OFFICER TEHIL NEPANAGAR
DISTRICT BURHANPUR M.P. (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI MANHAR DIXIT, ADVOCATE FOR RESPONDENT NO.
1/CAVEATOR)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
This writ petition is filed being aggrieved of order dated 27/05/2022 Signature Not Verified SAN passed by the learned Additional Collector, District Burhanpur in revision case Digitally signed by VAIBHAV YEOLEKAR no. 003/2022-23 whereby revision filed by respondent Smt. Manda Bai and Date: 2022.07.22 11:07:56 IST others was allowed.
3The order of remand passed by the S.D.O. has been set aside and the revisional court of Additional Collector, District Burhanpur has ordered to maintain the mutation carried out by the Tehsildar on 30/09/2013.
Learned counsel for the petitioner submits that in the earlier round of litigation when the present petitioner approached the Additional Collector by filing a revision no. 0004/2021-22, then the same Additional Collector based on the same material had ordered in para 7 that the S.D.O. Nepanagar erred in passing the stay order, inasmuch as the partition application produced before the Tehsildar, Khaknar is signed by only Vishwanath and not others.
The names of other parties are mentioned but they had not put their signatures on said partition application. It is further mentioned in the order that parties are residing on different addresses but in Sanshodhan Panji, they all have been shown to be resident of Khaknar Khurd and common notice was issued whereas separate notices should have been issued to the parties. In view of said findings of fact, the Additional Collector had set aside the order of the S.D.O. dated 5/03/2021 and remanded the matter to the S.D.O. It is submitted that on remand, the S.D.O. vide order dated 22/03/2022 remanded the matter to the Tehsildar for production of evidence and deciding the issue of mutation afresh but this order without any authority was put to challenge by the respondent/caveator before the Additional Collector in revision and that revision has been allowed drawing diametrically opposite conclusion based on the same set of documents which reflects that the court of Additional Collector, Burhanpur has failed to act impartially and in a judicious manner.
Signature Not VerifiedSAN Learned counsel for respondent no. 1/caveator in his turn submits that Digitally signed by VAIBHAV YEOLEKAR Date: 2022.07.22 11:07:56 IST the caveator had filed an application under Order 41 Rule 27 C.P.C. which was 4 allowed bi parte and on the basis of said documents which demonstrated that before the Tehsildar when mutation took place in favour of revisionist's father Vishwanath S/o Valmiki, then no objection was signed by the opposite parties and on the basis of that, impugned order was passed without appreciating a fact that on the basis of same document, two opposite findings could not have been recorded by the same Additional Collector within span of one year.
After hearing learned counsel for the parties and going through the record, as far as issue of maintainability of revision is concerned, there is no doubt about it in terms of the provisions contained in Section 46 of the M.P. Land Revenue Code. As far as merits of the case are concerned, it appears that though the Additional Collector has acted in a cryptic manner and tried to shortcut the proceedings whereas right course for the parties would have been to appear before the Tehsildar, lead evidence as to the authenticity of the signatures of the petitioner or otherwise for which there exists sufficient provisions under the law to which rival parties can take recourse to.
Therefore, in the light of the aforesaid discussion, this court is of the opinion that to arrive at the correct conclusion, matter needs to be remanded to the Tehsildar where rival parties will be required to lead evidence on a limited issue namely whether Batwara application contained signatures of all the concerned parties or not and the Tehsildar after permitting rival parties to lead evidence shall decide the issue.
This court hopes and trust that as the matter is pending since 2013, the Tehsildar shall make an endeavour to fix cases on a day to day basis so that the proceedings may be completed within a period of ninety days from the date of Signature Not Verified SAN receipt of copy of this order.
Digitally signed by VAIBHAV YEOLEKAR Date: 2022.07.22 11:07:56 ISTIn above terms, the petition is disposed of.
5(VIVEK AGARWAL) JUDGE vy Signature Not Verified SAN Digitally signed by VAIBHAV YEOLEKAR Date: 2022.07.22 11:07:56 IST