Ashraf Khan vs Vicky @ Gaurav
2022 Latest Caselaw 5938 Chatt

                                          1
                                                             W.P.(227) No. 173 of 2021


                                                                              NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                        Writ Petition (227) No. 173 of 2021
                           Order reserved on : 12/08/2022
                           Order delivered on : 22/09/2022
   Ashraf Khan, son of Shri Saeed Khan, aged about 38 years, resident of
    Maudhapara, Raipur (C.G.)
                                                           ---- Petitioner
                                Versus
1. Vicky @ Gaurav, son of Late Shri Sukhnandan @ Raj Kumar Agrawal, aged
   about 32 years, resident of Adiwasi Colony Road, Kushalpur, Raipur (C.G.)
2. Smt. Durga Bai, wife of Jeetram Bhatt, aged about 45 years, R/o Near Durga
   Sadan, Dumartalab, PH No. 104, Raipur (C.G.)
3. Smt. Chandrakala, wife of Shri Baleshwar Mishra, aged about 45 years, R/o
   Near Durga Sadan, Dumartalab, PH No. 104, Raipur (C.G.)
4. Smt. Meena Bai, wife of Shri Vanshraj Agrawal, aged about 60 years,
   resident of Krishna Nagar, Kota, Gudhiyari Marg, Raipur (C.G.)
5. State of Chhattisgarh, through the Collector, Raipur (C.G.)
6. The Tahsildar, Raipur (C.G.)
                                                                ---- Respondents

For Petitioner                        :       Mr. B.P. Sharma, Advocate
                                              alongwith Mr. M.L. Saket, Advocate
For Respondents 1                     :       Mr. Shashank Thakur, Advocate
For State/Respondents No. 5 & 6       :       Mr. Lalit Jangde, Dy. Govt. Advocate

                 Hon'ble Shri Justice Rakesh Mohan Pandey
                                C.A.V. Order

1. This petition is filed by the petitioner seeking therein direction to the revenue

authorities to record his name in the revenue records in pursuance of the

order passed by the Board of Revenue dated 03.02.2014 and provisions

contained under Sections 108 to 110 of the CG Land Revenue Code, 1959.

2. The case in nutshell is that the land in question bearing Survey No. 387/4,

387/5, 388/4 admeasuring 3.341 hectare situated at Village Dumartalab,

Patwari Circle No. 104, Tehsil and District Raipur was earlier recorded in the

name late Smt. Janakdulari. Respondent No. 4 is daughter of late Smt.

Janakdulari from her first marriage, whereas late Sukhnandan @ Raj Kumar

Agrawal (father of respondent No.1 Vicky @ Gaurav) and respondents No.

W.P.(227) No. 173 of 2021

2 & 3 are issues from second marriage. Respondent No.1 is son of

Sukhnandan. After death of Janankdulari, land was mutated in the name of

Sukhnandan and thereafter, an application was moved before the Tehsildar

by respondents No. 2 to 4 to record their name alongwith Sukhnandan and

same was allowed by the Tehsildar, Raipur vide order 24.04.2000.

Thereafter, an application was moved by the parties for partition between

respondents No. 1 to 4 and vide order dated 17.02.2006 same was allowed.

Thereafter, respondents No. 2 to 4 sold their share through registered sale-

deed dated 25.08.2006 for consideration of Rs.2,08,800/- each to the

petitioner.

3. The order passed by the Tehsildar on 24.04.2000 whereby names of

respondents No. 2 to 4 were recorded in revenue records, was challenged

by respondent No.1 and same was set aside by the Additional Collector,

Raipur, District Raipur vide order dated 22.01.2008. The order of the

Additional Collector was challenged by the petitioner by way of appeal and

vide order dated 30.04.2012, the Additional Commissioner, Raipur, Division

Raipur held that after the death of Smt. Janakdulari, the property in question

was recorded in the name of Sukhnandan, whereas it should have been

recorded in the names of respondents No. 2 to 4 too and therefore, Tehsildar

has rightly directed to record their names alongwith Sukhnandan. The

Additional Commissioner in its order dated 30.04.2012 set aside the order

passed by the Additional Collector and upheld the order passed Tehsildar.

4. The order passed by the Additional Commissioner was challenged before

the Board of Revenue by respondent No.1 by filling revenue revision case

and vide order dated 03.02.2014 same was dismissed by affirming the order

passed by the Additional Commissioner and the order of Tehsildar and

setting aside the order passed by the Additional Collector.

5. In between a civil suit bearing No. 8A/2009 was filed by respondent No.1 for

declaration that sale-deeds executed by respondents No. 2 to 4 in favour of

W.P.(227) No. 173 of 2021

the petitioner herein dated 25.08.2006 are null and void and not binding

upon them. The civil suit was dismissed on 04.08.2010 as ad valorem court

fee was not paid. First appeal No. 15A/2011 preferred by respondent No.1

was also dismissed vide judgment dated 05.10.2012. Thereafter, respondent

No.1 preferred Second Appeal No. 99/2013 before this Court which has

been admitted on 07.10.2013 on following substantial question of law:-

"Whether the court below has committed an error of law in not considering the requirement of the ad valorem fees to be paid in the instant case when the plaintiff is a third party to the sale deeds executed by the defendants/respondents No. 1 to 3 in favour of defendant/respondent No.4?"

6. Respondent No. 1 filed a petition i.e. WP(227) No. 273/2014 before this

Court against the order passed by the Board of Revenue and vide order

dated 03.02.2014 same was disposed of recording consent of the parties as

below :-

"11/10/2017 (1) Learned counsel appearing for the parties would submit that the subject matter of the writ petition has already been adjudicated by the Civil Court and the Appellate Court and now the matter is pending before this Court in the second appeal and, therefore, the instant writ petition may be disposed of in terms of the order ultimately to be passed by the second appellate Court.

(2) In view of the above submission made by the parties, the writ petition stands finally disposed of in the above-stated terms; and the order of the Board of Revenue shall be subject to the order passed by the second appellate Court."

7. On 03.03.2021 the petitioner has filed the instant petition under Article 227 of

the Constitution of India seeking therein direction to the revenue authority to

record his name in the revenue record according to provisions of Sections

108, 109 and 110 of the CG Land Revenue Code, 1959 and further to follow

W.P.(227) No. 173 of 2021

the order passed by the highest revenue Court i.e. Board of Revenue.

8. Mr. B.P. Sharma, learned counsel for the petitioner, submits that the

petitioner has purchased the property in question through registered sale-

deed dated 25.08.2006 after paying consideration and filing of civil suit, its

dismissal and pendency of second appeal do not create bar in recording his

name in the revenue records by the revenue authorities as it does not confer

any title in favour of the petitioner. He further submits that subordinate

revenue authorities are under obligation to follow order/direction/instruction

issued by the superior authority. The action of the revenue authorities in not

recording the name of the petitioner in the revenue records is violative of

fundamental and constitutional rights guaranteed under Articles 14, 19, 21 &

300A of the Constitution of India. He placed reliance on the decision of

Supreme Court in the matter of Bhimabai Mahadeo Kambekar (Dead)

Through Legal Representative vs. Arthur Import and Export Company

and Others, reported in (2019) 3 SCC 191.

9. Mr. Shashank Thakur, learned counsel for respondent No.1, and Mr. Lalit

Jangde, learned Deputy Government Advocate for respondents No. 5 & 6,

submit that the petitioner has suppressed the material facts and he has not

approached this Court with clean hands as in pursuance of order passed by

the Board of Revenue on 03.02.2014, an application was moved before the

Tehsildar, Raipur for mutation and same was registered as Revenue Case

No. 329/B-121/Year 2013-2014 and Revenue Case No. 92/A-6(A)/Year

2017-2018 and the Tehsildar dismissed the applications vide order dated

27.11.2020. They further submit that this fact is not pleaded in the instant

writ petition that after dismissal of the applications for mutation, the order of

Tehsildar was challenged before Sub-Divisional Officer (Revenue), Raipur

and vide order dated 11.02.2022 same has been dismissed. They further

submit that the property in question was recorded in the name of late Smt.

Janakdulari who died on 07.08.1995 and thereafter, it was recorded in the

W.P.(227) No. 173 of 2021

name of Sukhnandan @ Rajkumar Agrawal who died on 08.11.1996 and at

that time respondent No.1 was minor. Respondents No. 2 to 4 taking benefit

of minority, got recorded their names in the revenue records and thereafter

sold the property. Respondent No. 1 has challeged the sale-deeds executed

by respondents No. 2 to 4 in favour of the petitioner by filing civil suit, which

was dismissed and at present, second appeal is pending before this Court.

They also submit that W.P. (227) No. 273/2014 was preferred by respondent

No.1 before this Court and this Court recording the submissions of the

parties that "the instant writ petition may be disposed of in terms of the order

ultimately to be passed by the second appellate court" disposed of the same

vide order dated 11.10.2017 and thus, the present petition filed by the

petitioner is liable to be dismissed..

10. I have heard learned counsel for the parties and perused the material

available on record.

11. From the records, it is quite vivid that the property in question was recorded

in the name of late Smt. Janakdulari who died on 07.08.1995 and after her

death property in question was recorded in the name of Sukhnandan @

Rajkumar Agrawal. Respondents No. 2 to 4 moved an application to record

their names in the revenue records and the same was allowed by the

Tehsildar, Raipur. Sukhnandan (father of respondent No.1) died on

08.11.1996 and undisputedly at that time respondent No. 1 was minor. It is

also not in dispute that the civil suit was filed by respondent No.1 for

declaration to the effect that sale-deeds executed by respondents No. 2 to 4

in favour of the petitioner are null and void and second appeal preferred by

respondent No. 1 is pending before this Court and same has been admitted

on substantial question of law. It is also not in dispute that W.P.(227) No 273

was filed where the present petitioner was represented through his counsel

and on the basis of submissions of all the parties, order was passed on

11.10.2017, which has binding effect upon the parties. The petitioner has

W.P.(227) No. 173 of 2021

suppressed the fact that an application was moved before the Tehsildar,

Raipur to record his name in pursuance of order passed by the Board of

Revenue dated 03.02.2014 and same was dismissed by the Tehsildar vide

order dated 28.11.2020. The order of Tehsildar was challenged before the

Sub-Divisional Officer (Revenue) by filing appeal and same was also

dismissed on 11.02.2022. The petitioner has not disclosed these facts in the

instant petition.

12. Now coming to the judgment cited by learned counsel for the petitioner

wherein the Hon'ble Supreme Court has held that mutation of a land in the

revenue records does not create or extinguish the title over such land nor

has it any presumptive value on the title. It only enables the person in whose

favour mutation is ordered to pay the land revenue in question.

It is well settled law that mutation in revenue records does not give

any right to the parties, nor confer any title but, when the petitioner himself

has given his consent in W.P.(227) No. 273/2014 that the writ petition may

be disposed of in terms of the order ultimately to be passed by the second

appellate court, he cannot deviate from such statement given before this

Court.

13. As a fallout and consequence of above discussion, the petition is liable to be

and is hereby dismissed. The petitioner would be at liberty to avail

alternative remedy available under the law.

Sd/-

(Rakesh Mohan Pandey) Judge

vatti