Awadesh Pachori vs The State Of Madhya Pradesh
2021 Latest Caselaw 2474 MP

      The High Court Of Madhya Pradesh
              W.P.No.16815/2020
( Awadesh Pachori Vs. State of Madhya Pradesh
                  & others)


Jabalpur Dated: 17/06/2021
       Shri Brijesh Chandra Choubey, learned

counsel for the petitioner.

     Shri Ankit Agrawal, learned Government

Advocate for the respondent-State.

Shri R.P.Khare, learned counsel for

respondents no.5 & 6.

This petition earlier on 02/12/2020 was

allowed and disposed of but that order has been

assailed by respondents no.5 and 6 saying that

they have not been heard and therefore the

matter has been remitted back by the Division

Bench in W.A.No.20/21 to decide it afresh by

giving opportunity of hearing to respondents

no.5 and 6. Thus, the matter is being heard

finally.

2. This petition has been filed against the order

dated 13/10/2020 (Annexure- P-9) passed by the Additional Commissioner affirming the order

of Tehsildar by reversing the order of Sub

Divisional Officer.

3. As per the facts of the case, the petitioner

filed a suit for declaration of title and permanent

injunction in respect of the disputed land i.e

khasra no.134/1 area measuring 4.26 hectare

and khasra no.169 area measuring 1.940

hectare situate at village Pindrai, Patwari Halka

No.9 revenue circle Piparia kala Tehsil Shahpura

District Jabalpur. The declaration has been

sought that the will dated 01/12/2004 be

declared forged and fabricated. The suit was

decreed by judgment and decreed dated

12/03/2020 holding that the plaintiff/petitioner

is the owner of the suit land.

4. The said judgment and decree has been

assailed by the respondents no.5 and 6 in an

appeal preferred under Section 96 of Code of

Civil Procedue. The said civil appeal

no.169/2020 is pending before the Additional District Judge, Patan District Jabalpur. In the

said appeal an application under Order 41 Rule

5 read with Section 151 of CPC for asking stay of

execution of judgment and decree has also been

filed but the said application was dismissed vide

order dated 27/05/2020.

5. The plaintiff/petitioner moved an

application under Section 109-110 of M.P.Land

Revenue Code,1959 for mutating his name in

the suit land in respect of which decree of

declaration has been passed by the Civil Court

and Naib Tehsildar Circle Pipariakala has

registered a revenue case vide no.397/A-

6/2020-21. After receiving the notice of the said

case, respondents no.5 and 6 have filed their

objection saying that they have already filed

regular civil appeal against the judgment and

decree dated 12/03/2020 and the said appeal is

pending for final adjudication, therefore,

application for mutation be dismissed till the

decree attains the final shape. The Naib

Tehsildar has allowed the objection and dismissed the application of the petitioner.

6. An appeal was preferred before the Sub

Divisional Officer challenging the order passed

by the Naib Tehsildar and the said appeal has

been allowed by the Sub Divisional Officer vide

order dated 29/08/2020 thereby setting aside

the order of Naib Tehsildar directing the revenue

officer to make necessary correction in the

revenue record.

7. The order of Sub Divisional Officer was

further assailed before the Additional

Commissioner, Jabalpur Division Jabalpur and

the said authority granted interim protection

staying the order of Sub Divisional Officer.

Thereafter an application for vacating of stay has

been filed but the said application was also

rejected vide order dated 04/09/2020 on the

ground that regular civil appeal is pending

before the Additional District Judge and fixed for

hearing, the interim protection has rightly been

granted. Challenging that order, the petitioner preferred a petition i.e. M.P.2499/2020 and this

Court by order dated 21/09/2020 disposed of

the same directing the Additional Commissioner

to decide the appeal within a period of 30 days

by a reasonable and speaking order. The

Additional Commissioner vide order dated

13/10/2020 allowed the appeal and set aside

the order of Sub Divisional Officer on the ground

that when appeal preferred by respondents no.5

and 6 is pending before the Additional District

Judge mutation application should not have

been allowed. Hence, this petition against the

order of Commissioner on the ground an appeal

preferred by respondents no.5 and 6 against the

impugned judgment and decree dated

12/03/2020 along with stay application which

has been rejected by the appellate court, the

implementation of judgment and decree cannot

be restrained and the decree-holder cannot be

denied to enjoy the fruit of the decree in absence

of any restraint order by any higher court.

8. Learned counsel for the petitioner submits that in a fact situation of the case when stay has

already been rejected in a pending regular civil

appeal, rejecting the mutation application would

amount to grant of injunction by the Additional

Commissioner. He submits that the revenue

court cannot override the view already taken by

the Civil Court, therefore, the Sub Divisional

Officer has rightly allowed the application of

petitioner for mutation.

9. Shri Khare appearing for respondents no.5

and 6 has opposed the contention of the

petitioner and supported the order of Additional

Commissioner mainly on the ground that the

decree passed by the Civil Court has not

attained finality and therefore, at this stage the

mutation application cannot be allowed

implementing the decree which is the subject

matter of pending appeal.

10. I have heard rival contentions of the parties

and in my opinion the order passed by the

Additional Commissioner is not sustainable and deserves to be set aside. Merely because appeal

is pending challenging the judgment and decree

passed in favour of the plaintiff/petitioner

declaring him to be the owner of the suit

property, he has every right to get his name

mutated in the revenue record that too in

pursuance to a decree passed in his favour. It is

also an important fact that injunction

application has been rejected by the appellate

court, therefore, revenue court by restraining

revenue authority from entertaining mutation

application would amount to granting interim

protection to the judgment debtor (respondents

no.5 and 6). If at all the appeal is allowed, the

order passed by the revenue authority mutating

the name of the plaintiff petitioner would also be

set aside in pursuance to the order passed by

the appellate court. It is also a settled principle

of law that entries in a revenue record do not

give any title to the recorded holder but decree

holder at this stage cannot be deprived to get

their name mutated specially under the circumstance that no injunction has been

granted by any higher forum in favour of

respondents no.5 and 6.

11. Ex consequentia the order of Commissioner

which is impugned in this petition is therefore

set aside and order passed by Sub Divisional

Officer is restored. The revenue authority is

directed to implement the order of Sub

Divisional Officer and it is further made clear the

respondents no.5 and 6 can take appropriate

step by initiating an appropriate proceeding if

they succeed in the pending appeal.

12. The petition is accordingly allowed. Order of

Additional Commissioner dated 13/10/2020

(Annexure- P-9) is set aside and order of Sub

Divisional Officer dated 29/08/2020 is restored.

(Sanjay Dwivedi) Judge

sushma Digitally signed by SMT SUSHMA KUSHWAHA Date: 2021.06.24 11:19:55 +05'30'