Gopal Krishan Mahant vs The State Of Madhya Pradesh
2021 Latest Caselaw 8984 MP

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        THE HIGH COURT OF MADHYA PRADESH
                 Writ Petition No.27299/2021
       Gopal Krishan Mahant Vs. State of M.P. and others

Gwalior, Dated:20-12-2021

      Shri Santosh Agrawal, Advocate for petitioner.

      Shri Ajay Raghuvanshi, Panel Lawyer for the State.

      This petition under Article 226 of the Constitution of India has

been filed against the order dated 22/9/2021 passed by the Additional

Collector, Bhind in case No.84/Revision/2019-2020, thereby

affirming the order dated 21/5/2012, by which the proceedings in

case No.116/2006-07/B-121 have been restored to its original file.

2.    It is submitted by the counsel for the petitioner that Late

Sarmandas was the sole owner of the property in dispute and he had

adopted Late Amardev, the grandfather of the petitioner and

accordingly,   the   grandfather   of   the   petitioner   became    the

Bhumiswami of various lands including survey no.732 area 1.735

hectares (in short "the disputed property") situated in Daboh, Sub

Tahsil Daboh, Tahsil Lahar, District Bhind. After the death of

grandfather, namely, Sarmandas, the father of the petitioner, namely,

Amardev filed a suit seeking declaration that he is the adopted son of

Late Sarmandas and by virtue of adoption deed, he has become the

owner of various lands including the disputed property. It is

submitted that the suit filed by the father of the petitioner was

decreed and it was held that the father of the petitioner was the

adopted son of Late Sarmandas and after the death of Late
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        THE HIGH COURT OF MADHYA PRADESH
                 Writ Petition No.27299/2021
       Gopal Krishan Mahant Vs. State of M.P. and others

Sarmandas, he became the sole owner of the property in dispute and

other properties. It is submitted that thereafter, the respondent no.4

preferred a First Appeal alongwith an application for permission to

file an appeal, which was rejected by order dated 1/9/2010 passed by

Sixth Additional District Judge (Fast Track) Lahar, District Bhind in

MJC No.12/2008. Thereafter, the respondent no.4 preferred Second

Appeal No.573/2010, which was disposed of by order dated

30/1/2012 with the following observations:-

"The appellant was not a party before the trial court in a suit for declaration in respect of the suit property filed by respondent No.1 against respondents No.2 to 8. The appellant is a trust and claims itself to be aggrieved by the impugned judgment and decree granted by the trial court in favour of respondent No.1 and therefore the appellant-trust filed a first appeal against the impugned judgment and decree of the trial court before the first appellate court after 7-8 years of the said decree. The said first appeal of the appellant- trust has been dismissed by the first appellate court both on the ground of limitation as also on the ground of maintainability. It is aggrieved by this impugned judgment and decree of the first appellate court, the appellant-trust has filed present second appeal. This second appeal is not pressed by the learned senior counsel appearing on behalf of the appellant. He only seeks a clarification in the matter that any adjudication on merits contained in the impugned judgment and decree of the courts below should not bind him in the legal proceedings that he may bring to protect the interest of the appellant-trust in the suit property. It is an admitted fact on record that the appellant-trust was not a party to the suit in which impugned judgment and decree was passed by the trial court and therefore any determination by the trial court can not bind the appellant-trust. The appellant-trust shall be entitled to

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.27299/2021 Gopal Krishan Mahant Vs. State of M.P. and others

take such legal proceedings to protect its interest in the suit property as it may be advised as per law. In case any such proceedings are brought by appellant-trust, then the same shall be adjudicated by the concerned court on merits uninfluenced by any observation contained in the impugned judgment and decree of the courts below. Subject to this, the present second appeal is hereby dismissed as not pressed."

3. It is submitted that taking advantage of the observations made

by the High Court, the respondent no.4 preferred an application

under Section 32 of M.P. Land Revenue Code before the Tahsildar

for recall of order dated 15/4/2010 passed in original case

No.116/2006-07/B-121 and to restore it to its original file and to

decide afresh after hearing respondent no.4. The said application was

allowed by the Tahsildar by order dated 21/5/2012 and case

No.116/2006-07/B-121 has been restored to its original file. Being

aggrieved by the said order, the petitioner preferred a revision before

the Court of Additional Collector, District Bhind, which has been

dismissed by the impugned order.

4. It is submitted by the counsel for the petitioner that the

respondent no.4 was never recorded as Bhumiswami and, therefore,

he has no right or title in the property in dispute and thus, the

Tahsildar as well as the Additional Collector should not have restored

the proceedings of case No.116/2006-07/B-121 for deciding afresh

after giving opportunity to respondent no.4.

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.27299/2021 Gopal Krishan Mahant Vs. State of M.P. and others

5. Heard learned counsel for the petitioner.

6. Whether the respondent no.4 has any right or title in the

property in dispute or not is not the subject matter of this writ

petition. Undisputedly, the father of the petitioner had filed a suit for

declaration of his title on the basis of his adoption by Late Sarmandas

and the respondent no.4 was not a party to the said suit. The suit filed

by Late Amardev (father of the petitioner) was a suit in personam and

not in rem, therefore, the decree passed in the said suit is binding on

the parties to the suit and not to any other person. Since the claim of

the respondent no.4 has not been decided so far qua the petitioner,

therefore, in the light of the observations made by the High Court in

the Second Appeal No.573/2010, the Tahsildar was left with no other

option but to recall the order dated 15/4/2010 as the said order of

mutation was passed on the basis of a decree passed in favour of the

petitioner. Under these circumstances, no jurisdictional error could be

pointed out by the counsel for the petitioner.

7. Accordingly, the petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.12.22 14:44:04 +05'30'