Madhya Pradesh High Court
Shiv Prasad Pandey vs Lalita Prasad Dubey on 18 December, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P. No.208/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 18th OF DECEMBER, 2023
MISCELLANEOUS PETITION No. 208 of 2021
BETWEEN:-
1. SHIV PRASAD PANDEY S/O LATE SHRI
SURYA DATT PANDEY, AGED ABOUT 62
YEARS, OCCUPATION: CULTIVATOR R/O
VILLAGE GADAHARA, TEHSIL AND
DISTRICT SINGARAULI (MADHYA
PRADESH)
2. SMT. KESH KUNWAR W/O SHRI RAJENDRA
PRASAD DUBEY, AGED ABOUT 60 YEARS,
OCCUPATION: HOUSEWIFE R/O VILLAGE
BIHARA TEH. AND DISTT. SINGARAULI
(MADHYA PRADESH)
3. SMT. YASHODA D/O LATE SHRI RAM
NARESH DWIVEDI, AGED ABOUT 55 YEARS,
OCCUPATION: HOUSEWIFE R/O VILLAGE
CHHIVA TEH. DEOSAR DISTT. SINGARAULI
(MADHYA PRADESH)
4. SURENDRA KUMAR DUBEY S/O LATE SHRI
AMBIKA PRASAD DUBEY, AGED ABOUT 52
YEARS, OCCUPATION: GOVT. SERVANT R/O
VILLAGE GADAHARA TEH. AND DISTT.
SINGARAULI (MADHYA PRADESH)
5. PHULWASI WD/O RAGHAV RAM, AGED
ABOUT 75 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE GADAHARA TEH.
AND DISTT. SINGARAULI (MADHYA
PRADESH)
6. RAM LAL SAHU S/O JANAK LAL SAHU,
AGED ABOUT 55 YEARS, OCCUPATION:
CULTIVATOR R/O VILLAGE GADAHARA
2 M.P. No.208/2021
TEH. AND DISTT. SINGARAULI (MADHYA
PRADESH)
7. ANAND LAL SAHU S/O CHHOTE LAL SAHU,
AGED ABOUT 52 YEARS, OCCUPATION:
CULTIVATOR R/O VILLAGE GADAHARA
TEH. AND DISTT. SINGARAULI (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI VIJAYENDRA SINGH CHOUDHARY - ADVOCATE)
AND
1. LALITA PRASAD DUBEY S/O LATE SHRI
RAM NATH DUBEY, AGED ABOUT 62 YEARS,
OCCUPATION: CULTIVATOR R/O VILLAGE
GADAHARA, TEHSIL AND DISTRICT
SINGARAULI (MADHYA PRADESH)
2. ADDITIONAL COMMISSIONER REWA
DIVISION REWA (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI RAJENDRA KUMAR GUPTA -
ADVOCATE, RESPONDENT NO.2/STATE BY SHRI DHEERAJ KUMAR
TIWARI - PANEL LAWYER)
This petition coming on for admission this day, the court passed the
following:
ORDER
This Miscellaneous Petition under Article 227 of the Constitution of India has been filed against order dated 19/12/2019 passed by Additional Commissioner, Rewa Division Rewa in case No.255/Appeal/14-15, by which appeal filed by respondent No.1 has been allowed and mutation order dated 26/12/2008 has been set aside.
3 M.P. No.208/20212. It is submitted by counsel for petitioners that by mutation order passed by Naib Tehsildar, names of Lalita Prasad, Surya Datt and Surendra Kumar were mutated in respect of land in dispute. Being aggrieved by order dated 26/12/2008, respondent No.1 preferred an appeal along with an application under Section 5 of Limitation Act. It is submitted that in the application filed under Section 5 of Limitation Act, it was claimed by respondent No.1 that he received information of mutation order dated 26/12/2008 on 13/03/2012 and after obtaining certified copy of the same, he preferred an appeal on 07/06/2012. Since SDO, Singrauli was of the view that respondent No.1 has failed to make out sufficient cause for condonation of delay, therefore by order dated 06/12/2014 passed in case No.73/Appeal/2012-13, he dismissed the application filed under Section 5 of Limitation Act. However, fairly conceded that instead of dismissing the appeal as barred by time, also dismissed it on merits.
3. Being aggrieved by order passed by SDO Singrauli, respondent No.1 preferred an appeal before Additional Commissioner, Rewa Division Rewa which was registered as case No.255/Appeal/14-15 and by impugned order dated 19/12/2019, Additional Commissioner, Rewa Division Rewa has set aside the mutation order dated 26/12/2008. The order was passed by Additional Commissioner mainly on the ground that respondent No.1 was not made a party to the proceedings. Thus, it is submitted that once an order is set aside on technical issue of non- compliance of principles of natural justice, then instead of dismissing the proceedings for once and all, Additional Commissioner should have 4 M.P. No.208/2021 remanded the matter back to SDO Singrauli to decide the matter afresh and should not have set aside the order of Naib Tehsildar dated 26/12/2008. It is further submitted that respondent No.1 is claiming his title over the property in dispute on the basis of Will executed by Chaiti and it is well established principle of law that revenue Authorities have no power to mutate the names of a beneficiary on the basis of Will. If propounder of Will wants to take advantage of the same, then he has to approach the competent Court of civil jurisdiction for declaration of his title.
4. Per contra, petition is vehemently opposed by counsel for respondent No.1. It is submitted that a Will was executed by Chaiti in favour of respondent No.1. He was a necessary party and sufficient cause was shown for condonation of delay. It is otherwise well established principle of law that while considering the question of delay, Courts must adopt a lenient view.
5. Heard learned counsel for the parties.
6. It appears that one Chaiti was the owner of property in dispute. Thereafter, mutation of names of Lalita Prasad, Surya Datt and Surendra Kumar was carried out in the mutation register itself by Naib Tehsildar by order dated 26/12/2008. No separate proceedings were registered for the purposes of mutation. Counsel for petitioners as well as respondents could not point out that under what provision of law, mutation can be carried out in the mutation register itself without separately registering a case for mutation.
5 M.P. No.208/20217. Accordingly, counsel for petitioners was directed to point out the relationship of Lalita Prasad, Surya Datt and Surendra Kumar with Chaiti and also to point out as to whether they were Class-1 or Class-2 heirs or not?
8. It is fairly conceded by counsel for petitioners that petition is completely silent with regard to status of Lalita Prasad, Surya Datt and Surendra Kumar. It was also fairly conceded that copy of application filed before Naib Tehsildar has also not been placed on record.
9. Be that whatever it may be.
10. The procedure which was adopted by Naib Tehsildar for mutation of names of Lalita Prasad, Surya Datt and Surendra Kumar in respect of property in dispute is unheard of. Whenever an application for mutation on the basis of succession is filed, then a separate case is to be registered and after inviting objections, an order is to be passed and only thereafter corrections can be carried out in revenue records on the basis of said order. A completely new procedure which is unknown to law was adopted.
11. Accordingly, this Court is of the considered opinion that the order dated 26/12/2008 passed by Naib Tehsildar cannot be given the stamp of approval.
12. So far as the right of respondent No.1 to claim title over the land in dispute is concerned, according to petitioners, respondent No.1 is not related to Chaiti and he is a complete stranger. However, it is the case of respondent No.1 also that Chaiti had executed a Will in his favour and 6 M.P. No.208/2021 accordingly, on the basis of said document, he had sought his mutation in the revenue records.
13. The Supreme Court in the case of Jitendra Singh v. State of Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil) No.13146/2021 has held as under:
"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter. 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu 7 M.P. No.208/2021 Kumhar, (2019) 10 SCC 259; and Ajit Kaur v.
Darshan Singh, (2019) 13 SCC 70."
14. The Supreme Court in the case of H. Lakshmaiah Reddy v. L. Venkatesh Reddy, reported in (2015) 14 SCC 784 has held as under :
"8. As rightly contended by the learned Senior Counsel appearing for the appellants, the first defendant did not relinquish or release his right in respect of the half-share in the suit property at any point of time and that is also not the case pleaded by the plaintiff. The assumption on the part of the High Court that as a result of the mutation, the first defendant divested himself of the title and possession of half-share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh case are relevant and are extracted below: (SCC p. 142, paras 21-22) "21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni v. Inder Kaur, Pattanaik, J., speaking for the Bench has clearly held as follows:
(SCC p. 227, para 7) '7. ... Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour 8 M.P. No.208/2021 mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.'
22. Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of Mutation No. 1311 dated 19-7-1954. The assumption on the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so, legally, she was in possession on the date of coming into force of the Hindu Succession Act and she, as a full owner, had every right to deal with the suit properties in any manner she desired.
In the circumstances, we are of the opinion that the High Court erred in concluding that the first defendant by his conduct had acquiesced and divested himself of title of his half-share in suit property and the said erroneous conclusion is liable to be set aside."
15. The Supreme Court in the case of Suraj Bhan v. Financial Commr., reported in (2007) 6 SCC 186 has held as under :
"9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi 9 M.P. No.208/2021 have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."
16. Thus, it is clear that if a propounder of Will wants to take advantage of Will, then he has to approach the competent Court of civil jurisdiction for declaration of his title and only thereafter his name can be mutated.
17. It is well established principle of law that mutation entries are not documents of title and and they are done only for fiscal purposes.
18. Furthermore, Additional Commissioner, Rewa Division Rewa by order dated 19/12/2019 passed in case No.255/Appeal/14-15 has set aside the order of mutation dated 26/12/2008 passed by Naib Tehsildar as well as order dated 06/12/2014 passed by SDO Singrauli. Order of Naib Tehsildar was set aside primarily on the ground that no opportunity of hearing was given to respondent No.1. Thus, it is clear that order of mutation was set aside by Additional Commissioner, Rewa Division Rewa on the ground of non-compliance of principles of natural justice. Whenever an order is set aside on technical issue, then the Authority must remand the matter back to concerning Court for decision afresh in accordance with law. The proceedings cannot be quashed for once and all.
10 M.P. No.208/202119. Under these circumstances, order dated 19/12/2019 passed by Additional Commissioner, Rewa Division Rewa in case No.255/Appeal/14-15 is hereby partially affirmed although on different ground and matter is remanded back to Naib Tehsildar Singrauli for deciding the application filed by Surya Datt, Surendra Kumar and Lalita Prasad for mutation of their names afresh.
20. Naib Tehsildar shall separately register a case for said purposes. Lalita Prasad, Surya Datt and Surendra Kumar shall be under obligation to establish their right under the Hindu Succession Act and only if it is found that they are legal heirs of original owner, then their names shall be mutated, otherwise the land shall be declared as Government land.
21. It is made clear that right of respondent No.1 shall be decided by Civil Court in case if any civil suit is filed and if any mutation is carried out, then it shall be subject to the outcome of suit which may be filed in civil Court.
22. With aforesaid observation, petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHUBHANKAR MISHRA Date: 2023.12.19 17:39:05 +05'30'