Madhya Pradesh High Court
Bhavya Choudhary Through Power Of ... vs The State Of Madhya Pradesh on 2 November, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1 W.A. No.793/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT APPEAL No.793 of 2023
BETWEEN:-
BHAVYA CHOUDHARY, AGED-36, OCCUPATION-BUSINESS -
THROUGH POWER OF ATTORNEY HOLDER MRS. MANJRI
CHOUDHARY W/O VIJAY CHOUDHARY DATED 28/07/2022 BEARING
1.
REGISTERED NO.MP-179152022A4794918, R/O 905-906
INDRADARSHAN BUILDING, 19, NEAR MILLAT NAGAR, NEW LINK
ROAD, ANDHERI (WEST), MUMBAI (MAHARASHTRA)
DIVYA CHOUDHARY W/O VISHNU BAJPAI, AGED-34, OCCUPATION-
BUSINESS, THROUGH POWER OF ATTORNEY HOLDER MRS.
MANJRI CHOUDHARY W/O VIJAY CHOUDHARY, NOTARIZED ON
2. 28/09/2022, R/O 905-906 INDRADARSHAN BUILDING, 19, NEAR
MILLAT NAGAR, NEW LINK ROAD, ANDHERI (WEST) MUMBAI
(MAHARASHTRA)
.....APPELLANTS
(BY MS. GEETA LUTHRA, SENIOR ADVOCATE WITH MS. JANVI AHUJA,
ADVOCATE)
AND
THE STATE OF MADHYA PRADESH, SUB-DIVISIONAL OFFICER
1. (REVENUE) MALHARGANJ, INDORE COLLECTORATE, MOTI
TABELA, INDORE (MADHYA PRADESH)
SMT. MADHURI CHOUDHARY W/O SANJAY KUMAR CHOUDHARY,
2. AGE - 55 YEARS, OCCUPATION-BUSINESS, R/O E-13, SAKET NAGAR,
INDORE (MADHYA PRADESH)
DHRUV CHOUDHARY S/O SANJAY KUAMR CHOUDHARY. AGE - 33
3. YEARS, OCCUPATION - BUSINESS, R/O E-13, SAKET NAGAR,
INDORE (MADHYA PRADESH)
DEVIKA CHOUDHARY D/O SANJAY KUMAR CHOUDHARY, AGE - 30
4. YEARS, OCCUPATION - BUSINESS, R/O E-13, SAKET NAGAR,
INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 02-11-2023
17:07:52
2 W.A. No.793/2023
SMT. MANJRI CHOUDHARY W/O VIJAY KUMAR CHOUDHARY, AGED
ABOUT 56 YEARS, OCCUPATION - BUSINESS, R/O 905-906
5. INDRADARSHAN BUILDING 19, NEAR MITTAL NAGAR, NEW LINK
ROAD, ANDHERI (WEST) MUMBAI (MAHARASHTRA)
.....RESPONDENTS
(BY SHRI ANIKET NAIK, DEPUTY ADVOCATE GENERAL FOR
RESPONDENT NO.1/STATE)
(BY SHRI RAVINDRA SINGH CHHABRA, SENIOR ADVOCATE WITH SHRI
MUDIT MAHESHWARI, ADVOCATE FOR RESPONDENTS NO.2 TO 4.
____________________________________________________________________
Heard on 17/10/2023
Pronounced on 02/11/2023
____________________________________________________________________
This appeal having been heard and reserved for orders coming on
for pronouncement this day, Hon'ble Shri Justice Sushrut Arvind
Dharmadhikari pronounced the following :-
ORDER
Heard finally with the consent of both the parties.
2. In this writ appeal under Section 2(1) of of the Madhya Pradesh Uccha Nyayalaya Ki Nyayapeeth Ko Appeal Adhiniyam, 2005 the order dated 23/02/2023 passed in W.P. No.28458/2022 has been assailed whereby the writ petition filed by the appellants has been dismissed with cost.
3. Brief facts of the case are that the land bearing survey No.3 was initially registered in the name of Mitthulal Choudhary. In the year 1984- 85, the said land was diverted and divided in Survey No.3/1 and 3/2 ad- measuring 6.576 hectare each and recorded jointly in the name of Mitthulal Choudhary and his wife Laxmi Bai respectively.
4. On 06/10/1989, Mitthulal Choudhary executed a notarized Will bequeathing his property between the appellants - Bhavya Choudhary Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 02-11-2023 17:07:52 3 W.A. No.793/2023 and Divya Choudhary and the respondent No.2 - Smt. Madhuri Choudhary, respondent No.3 - Dhruv Choudhary and respondent No.5 - Smt. Manjri Choudhary equally i.e. 1.315 hectare each to above 5 (five) share holders. Mitthulal Choudhary died on 26/10/1989.
5. Accordingly to the appellants, Laxmi Bai wife of the Late Mitthulal Choudhary also executed a notarized Will dated 21/10/1992 before her death on 19/10/1993 by dividing the land equally between the appellants and respondents No.3 and 4 giving 1.644 hectare of the land to each one of them. After her death, survey No.3/2 was mutated in 1997 collectively in the name of family members belonging to the above mentioned two HUFs without any explicit demarcation of individual ownership interest.
6. In the year 2008, as per the oral understanding deed, Survey No.3/1 came to the family members of Vijay Choudhary (the appellants herein and respondent No.5) and Survey No.3/2 came to the family members of Sanjay Kumar Choudhary (the respondents No.2 to 4). Thereafter vide order dated 01/04/1993, the said land was mutated in the name of appellants and the respondents No.2, 3 and 5 in their joint names without any explicit delineation of individual ownership interest.
7. Thereafter a joint application for Fard Batwara was filed in the year 2010, which resulted in the division of land, with each party receiving 2.192 hectare land. The appellants became owners of Survey No.3/1/1 and 3/1/2 after the Fard Batwara in 2010. By the aforesaid ownership documents; such as modified Bhu Adhikar and Rin Pustikas of their respective lands bearing Survey No.3/1/1 and 3/1/2 each ad- measuring 2.192 hectare was made. The said Rin Pustikas contained the appellants pass-post size photograph affixed and contained the details of Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 02-11-2023 17:07:52 4 W.A. No.793/2023 Fard Batwara Case No.9/A-27/2009-10 and order dated 29/03/2010 which felicitated the partition.
8. On 08/02/2011, appellant obtained certified copy of the Khasras for the year 2010-11, which explicitly mentioned the Fard Batwara Case No.9/A-27/2009-10 and the order dated 29/03/2010 pertaining to the land of Survey No.3/1/1.
9. As per the averments made in the writ petition, the respondents No.2 to 4 without the knowledge or consent of the appellants filed a joint application by forging the signatures under Section 178 of M.P. Land Revenue Code, 1959 for recording the Fard Batwara on 22/02/2010. In the revenue proceedings, the statements were recorded and thereafter the order of partition was passed on 29/03/2010 and total land ad-measuring 13.152 hectare situated in Survey No.3/1 and 3/2 (old survey No.3) was divided equally at the ratio of 2.192 hectare in favour of the appellants and the respondents No.2 to 5.
10. According to the appellants, as per the Fard Batwara, their shares were reduced from 2.959 hectare to 2.192 hectare. They had no knowledge about the Fard Batwara order dated 29/03/2010. In the year 2015, the father of the appellants submitted an application for diversion of the land. On 05/01/2019, they again applied for diversion of the land, which came into the share by way of the Fard Batwara. The father of the appellants entered into an agreement for development of land on 22/10/2022.
11. A dispute in respect of demarcation of land was raised which came-up before the Writ Court on number of occasion by filing writ petitions by mother of the appellants. An objection was also filed before the Office of Sub Divisional Officer challenging the validity of the Fard Batwara dated 29/03/2010. The respondents No.2 to 5 filed their Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 02-11-2023 17:07:52 5 W.A. No.793/2023 objections. The Sub Divisional Officer dismissed the application for condonation of delay vide order dated 22/09/2022 by holding that the appeal is barred by 4203 days.
12. The appellants challenged the order dated 22/09/2022 of the Sub Divisional Officer in the writ proceedings before this Court.
13. The writ petition was opposed by respondents No.2 to 5 on the ground that mother of the appellants was present and had signed the Fard Batwara. At that time, she never raised any objection about her signature in the said order-sheet. The appellants applied for certified copy of the Khasra Panchshala on 03/02/2011, which was supplied in the month of July. Therefore, the appellants filed writ petition Nos.27542/2021 and 27563/2021, which were withdrawn on 26/07/2022, without any liberty to file a fresh writ petition, therefore, the writ petition filed by the appellants was barred and not maintainable. The appellants has also not proved sufficient cause for condoning the delay.
14. The appellants in the earlier round of litigation had relinquished their rights to challenge the order of the Fard Batwara and prayed for withdrawal of writ petition, which was accepted and this Court dismissed the writ petition as withdrawn without any liberty to file a fresh writ petition but they are precluded from filing any fresh writ petition in respect of the same subject matter to prevent the abuse of process of law. Surguja Transport Service vs. State Transport Appellate Tribunal AIR 1987 SC 88 and M.J. Exporters Private Limited vs. Union of India and others (2021) 13 SCC 543 wherein it has been held that if the writ petition is withdrawn without liberty to file a fresh petition in respect of the same cause of action, then, the writ petition cannot be entertained.
Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 02-11-2023 17:07:52 6 W.A. No.793/202315. The Writ Court after appreciating the arguments advanced by the learned counsel for the parties and the objections raised by the respondents herein, has held that in view of the law laid down by the Apex Court in catena of decisions, the present writ petition, which is on the same facts and grounds is barred by principles of res judicata.
16. On perusal of the memo of writ appeal, it is seen that the appellants have made certain allegations against the learned Single Judge in para 3.1.5.1 and para 4(h) onwards of the writ appeal wherein they have quoted the Oath of Office of a High Court Judge and Bangalore Principles of Judicial Conduct. In para 4.2, they have quoted the judgment of Apex Court in the matter of Union of India vs. K.K. Dhawan (1992) 2 SCC 56. In number of paragraphs, they have also mentioned the name of Learned Single Judge and transcript of conversation between the learned Single Judge and the learned counsel, which took place during final hearing of the writ petition. The appellants attributed motives, integrity and dignity of the learned Single Judge without there being any evidence in support thereof.
17. Such averments amount to Contempt of Court, which is an attack on majesty of Law undermining efficacy of judicial system. The Apex Court time and again has held that no party had a right to attribute motives to a Judge or to question the bonafide of the Judge or to raise questions with regard to competency of the Judge. The Apex Court went on to hold that if the criticism is made in a concerted manner to lower the majesty of the institution of the Court and with a view to tarnish the image, not only of the Judges but also of the Courts, then such attempt must be checked.
18. Inspite of the fact that such language was used in the memo of appeal, the same was brought to the notice of learned senior counsel Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 02-11-2023 17:07:52 7 W.A. No.793/2023 appearing of the appellants, but no steps were initiated to amend the memo of writ appeal and argued the matter for hours together without realizing the fact that there is no evidence in support thereof for making such an allegation.
19. This Court would have certainly imposed further cost on the appellants for attempting to undermine majesty of the Court. However, looking to the fact that learned Single Judge has already imposed heavy cost of Rs.25,000/- on the appellants, therefore, this Court does not propose to saddle the appellants with further cost.
20. Now coming back to the facts of the case, as per the record, the Fard Batwara was prepared and supplied to the father of the appellants, after which they applied for diversion of the land and also entered into development agreement, however, they never raised any objection with regard to the forged signatures in the Fard Batwara and as per proceedings of Fard Batwara their mother was also present and had signed the Fard Batwara. Naib Tehsildar also recorded their presence in the order-sheet, which was signed by them on three different occasions.
21. From the aforesaid, it is clear as day-light that the matter has attained finality between the parties in the earlier round of litigation where two writ petitions were dismissed as withdrawn without any liberty, therefore, the same issue could not have been raised by the appellants in W.P. No.28458/2022. Learned Writ Court has rightly come to the conclusion that no valid ground is available to the appellants to approach this Court under Article 226 of the Constitution of India and claim such relief. Moreover, the delay of 4203 days have also not been explained by the appellants. By filing subsequent writ petition, the limitation would not extend the period of limitation of appeal.
Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 02-11-2023 17:07:52 8 W.A. No.793/202322. The writ remedy is an equitable one. The Courts are bound to bear in mind the conduct of the party, who invoked the writ jurisdiction. The parties are supposed to come with clean hands, clean heart, clean mind and clean objective. They ought to have disclosed all the facts without suppressing any thing.
23. In the present case at hand, the appellants have suppressed material facts and on merits, they have no case at all. The learned Writ Court has meticulously examined the case on merits and passed the impugned order. There is no apparent legal error on the face of the order.
24. In view of the aforesaid, the Writ Appeal being bereft of merits and substance is hereby dismissed. However, the appellants are directed to deposit the cost of Rs.25,000/- before the M.P. State Legal Services Authority, Indore within a period of 30 days from today, as directed by the learned Single Judge in W.P. No.28458/2022, failing which the Principal Registrar of this Court is directed to list this matter under the caption "Direction Matters" for further necessary directions to recover the cost by way of arrears of land revenue.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
Aiyer*
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 02-11-2023
17:07:52