Madhya Pradesh High Court
Hargovind Agrawal vs Mohanlal on 23 July, 2019
1
The High Court of Madhya Pradesh
MP 2593/2019
Hargovind Agrawal vs. Mohanlal and Others
Gwalior, dtd. 23/07/2019
Shri RK Goyal, counsel for the petitioner.
This miscellaneous petition under Article 227 of the Constitution of India has been
filed against the order dated 28/02/2019 (Annexure P1) passed by Additional
Commissioner, Gwalior Division, Gwalior in Second Appeal No.478/2016-17/Appeal, by
which the appeal filed by the petitioner against the rejection of mutation order, has been
dismissed.
The necessary facts for the disposal of the present petition in short are that the
petitioner had filed a civil suit for declaration of title and permanent injunction in respect
of survey nos.112, 113, 115, 118, 119, 120, 121, 124, 125, 126, 127, 128 and 138 situated
at village Ratikirar, Tahsil & District Shivpuri. In the said civil suit, the respondents filed
their counter-claim.
The Trial Court by judgment and decree dated 14 th October, 2003 passed in Civil Suit No.83-A/1998, held that although the petitioner is the owner and title holder of land in dispute but since he was not found to be in possession of the land in dispute, therefore, in view of Section 34 of the Specific Relief Act, the suit was dismissed as not maintainable and the counter-claim filed by the respondents for declaration of their title on the basis of adverse possession was also dismissed.
It appears that the petitioner as well as the respondents filed separate appeals against the judgment and decree passed by the Trial Court and the Appellate Court by judgment dated 8th January, 2005 passed in Civil Appeal No.19-A/2004, held that the petitioner has 2 failed to prove that he is the title holder of the land in dispute and even it was held that the possession of the petitioner over the land in dispute has also not been proved. Thus, the suit filed by the petitioner was dismissed in toto and appeal filed by the respondents against dismissal of their counter-claim was also dismissed.
Being aggrieved by the judgment and decree passed by the Appellate Court, the petitioner filed a Second Appeal No.307 of 2005, which was dismissed in limine by this Court by judgment dated 09/05/2008. It appears that a review petition was filed by the petitioner, which was registered as MCC No.607 of 2008, and that too has been dismissed by the Division Bench of this Court by order dated 17/07/2009. Thus, it is clear that neither the petitioner nor the respondents were found to be owner and title holder of the land in dispute nor they were found to be in possession of the land in dispute.
It appears that after dismissal of the review petition, the respondents filed an application under Section 109/110 of the MP Land Revenue Code for mutation for their names on the ground that the suit filed by the petitioner has been dismissed. The application filed by the respondents was decided by Tahsildar by order dated 24/04/2013 and instead of mutating the names of the respondents, the Tahsildar directed that in front of the name of Petitioner the words ''title not proved'' be written.
Against the order of the Tahsildar, the respondents filed an appeal, which was allowed by SDO, Shivpuri by order dated 26/08/2016 and held that since the petitioner as well as the respondents have failed to prove their title, therefore, the mutation of name of the petitioner on the basis of sale deed is also liable to be deleted and thus, the prayer made by the respondents for mutation of their names was rejected and at the same time, the mutation of the petitioner in the revenue record was also deleted and it was directed 3 that the name of Smt. Kutaiya, widow of Chhote, Caste Kachhi, the original owner, be recorded in the revenue record. It was directed that in case Smt. Kutaiya is not alive, then names of her legal representatives may be recorded in the revenue record.
Being aggrieved by the order of SDO, the petitioner filed an appeal which has been dismissed by Additional Commissioner, Gwalior Division, Gwalior by order dated 28/02/2013 passed in Case No.478 of 2016-17/ Appeal.
Challenging the order passed by the Courts below, it is submitted by the counsel for the petitioner that only the petitioner and the respondents were the contesting parties and they were claiming for the mutation of their names in the revenue record but Smt. Kutaiya or her legal representatives (in case, she is not alive) have never raised any objection with regard to mutation of the name of petitioner and thus, the SDO by order dated 26/08/2016 has directed mutation of the name of a person, who was not aggrieved by mutation of the name of the petitioner. It is submitted that the direction for mutation of name of Smt. Kutaiya is bad and is liable to be rejected and the order of Tahsildar, dated 24/04/2013 is liable to be maintained.
Heard the learned counsel for the petitioner.
The undisputed facts are that the petitioner has lost his civil suit and has failed to establish his title over the land in dispute. Even the respondents have lost their counter- claim. Thus, it is clear that neither the petitioner is the title holder of the land in dispute nor the respondents are the title holders of the land in dispute. Thus, under no circumstances, the name of the petitioner or the names of the respondents are liable to be mutated in the revenue records. Thus, the SDO, Shivpuri did not commit any mistake by rejecting the prayer of the respondents for mutation of their names in the revenue record as 4 well as by deleting the entry in the revenue record, which was in the name of the petitioner. Under these circumstances, only following two options were available with the SDO, Shivpuri:-
(I) Either to declare the land as a ''Government land'' and to ensure that nobody else remains in an authorized possession.
(II) To direct for mutation of names of the original owner or her legal representatives.
The SDO, Shivpuri, in his wisdom, had decided in favour of the original owner, namely, Smt. Kutaiya. Thus, this Court is of the considered opinion that the discretion exercised by SDO, Shivpuri cannot be said to be beyond his competence. Under these circumstances, by maintaining the order dated 26/08/2016 passed by SDO, Shivpuri in Case No.74/2012-13/Appeal as well as the order dated 28/02/2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.478/2016-17/Appeal, the SDO, Shivpuri is directed to ensure that the original owner, namely, Smt. Kutaiya or her legal representatives are not deprived of possession of the land in dispute and if the original owner Smt. Kutaiya or her legal representatives could not be traced, then the SDO, Shivpuri is directed to take over the possession of the land and may be declared as Government land.
With aforesaid observations, this miscellaneous petition is dismissed as misconceived.
(G. S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.07.24 18:11:39 +05'30'