Smt. Nandita Singh vs Ranjit Alias Bhaiyu Mohite
2021 Latest Caselaw 6548 MP

                                         1           W.A.No.317/2021

           HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR


                        DIVISION BENCH


                   JUSTICE SHEEL NAGU
                            &
                  JUSTICE ANAND PATHAK


                  WRIT APPEAL NO.317/2021


                         Smt. Nandita Singh
                               Versus
                 Ranjit alias Bhaiyu Mohite & Ors.


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Shri R.N. Singh, learned senior counsel with Shri Harshvardhan
Topre, learned counsel for the appellant.
Shri V.K. Bhardwaj, learned senior counsel with Shri Rohit Batham,
learned counsel for respondent No.1.
Shri D.D. Bansal, learned Government Advocate for respondent
No.4/State.
==================================================

                          JUDGMENT

{Delivered on 20th day of October, 2021}

Per Justice Anand Pathak, J.:

1. The present appeal under Section 2(1) of Madhya Pradesh

Uchcha Nyayalay (Khand Nyay Peeth Ko Appeal), Adhiniyam,

2005 arising out of the order dated 16-02-2021 passed in

Miscellaneous Petition No.2692/2020 by learned Writ Court

whereby the petition preferred by respondent No.1 as petitioner

has been allowed with certain directions and order dated 10-10-

2002 passed by Tahsildar, Tahsil Gwalior and order dated 07-

12-2018 passed by SDO, Lashkar District Gwalior as well as

order dated 10-06-2020 passed by Additional Commissioner,

Gwalior Division have been set aside.

2. Precisely stated facts of the case are that appellant -Smt.

Nandita Singh filed an application under Section 110 of M.P.

Land Revenue Code, 1959 (hereinafter referred to as "the

Code") before the Tahsildar for mutation of her name on the

basis of Will purportedly executed by Vijay Singh Rao Mohite,

son of Late Shankar Rao Mohite (also known as ''Vijay Singh

Rao Ghorpade) in respect of Survey Nos.18, 19, 22, 23, 120,

121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,

133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144,

145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156,

157, 158, 162, 163, 164, 165, 166, 167, 168, 169, 173, 175,

176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188

and 189, admeasuring area 49 bigha 6 biswa situate at Village

Ghatampur, Tahsil and District Gwalior.

3. Respondent No.1 canvassed the case before Tahsildar by

making submissions that she was brought up by the testator

(Vijay Singh Rao Mohite) when she was 10 years old and her

marriage was also performed by the testator out of love and

affection and due to the fact that he married her mother and

thereafter her mother also brought respondent No.1 to the

house of testator, therefore, testator executed an unregistered

Will on 04-04-2002 in favour of appellant. It appears from the

order dated 10-10-2002 (although records/proceedings are not

available) passed by Tahsildar, Tahsil Gwalior that a public

notice was issued but since nobody objected therefore, after

examining two attesting witnesses of unregistered Will and

taking the statement of Patwari, the direction for mutation of

name of respondent No.1 on the basis of said unregistered Will

was made.

4. It appears that present petitioner did not have any such inkling

about such development and when he came to know about the

same he preferred an appeal along with application for

condonation of delay which was registered before the SDO.

Vide order dated 07-12-2018, SDO, Lashkar District Gwalior

dismissed the appeal preferred by the petitioner as barred by

time as well as on merits.

5. Being aggrieved by the said order, further appeal has been

preferred by the petitioner before Additional Commissioner,

Gwalior Division which also met the same fate. Therefore,

petitioner preferred miscellaneous petition primarily under

Article 227 of Constitution of India before learned Writ Court.

In the Writ Court it was the arguments of petitioner that

revenue Court is not competent Court to mutate the name on

the basis of an unregistered Will. Respondent No.1 at best can

propound the Will through Civil Court by establishing her

bona fides through evidence. Revenue Courts are bereft of such

jurisdiction.

6. Respondent No.1 of writ petition, who happens to be appellant

in this case objected the said submissions on the ground that

respondent No.1 caused examination of both the attesting

witnesses who specifically proved the Will about signature of

testator in their presence as well as their signatures over the

Will in the presence of testator. Therefore, it is her submission

that Will was duly proved by appellant.

7. After considering the rival submissions, learned Writ Court

passed the impugned order and held that revenue Courts have

no jurisdiction to decide title on the basis of Will and therefore,

revenue Court cannot cause mutation through Will. After

detailed discussion whereby taking into ambit, the provisions of

Sections 31, 110 and 178 of the Code held that order passed by

Tahsildar is void-ab-initio since he did not have any jurisdiction

to pass such order. Resultantly, other two orders of appellate

revenue Courts were also quashed by learned Writ Court and

on the basis of submission of parties about pendency of Civil

Suit vide COS No.533-A/2017 before 7 th Civil Judge Class -I,

Gwalior, directions were given by the Writ Court that till final

adjudication by the Civil Court about respective claims, status-

quo was directed to be maintained and meanwhile names of all

Legal Heirs of late Vijay Singh Rao Mohite were directed to be

made in revenue records while deleting the name of appellant

from those revenue records. It is further observed that if any

legal heir is not available, then name of State Government be

recorded as Bhumiswami till adjudication of Civil Suit. This

has precipitated filing of this appeal at the instance of appellant

whose name got deleted from the revenue record by the order of

learned Writ Court.

8. It is the submission of learned senior counsel appearing for the

appellant/respondent No.1 that learned Writ Court caused

illegality and arbitrariness in passing the impugned order.

Impugned order suffers from jurisdictional error also because

learned Writ Court directed the authorities to delete the name

of respondent No.1 and mutate the name of State Government

till civil suit is decided. In other words, as per appellant,

jurisdiction of Civil Court has been taken by learned Writ

Court and pre empted the controversy. When question of title is

to be decided by the Civil Court then it should be left to the

discretion of the Civil Court to decide the suit as well as

different applications including application for temporary

injunction.

9. It is further submitted that Tahsildar has not caused any

procedural irregularity or illegality in passing the order dated

10-10-2002 whereby name of present appellant has been

mutated over the land in dispute. Tahsildar invited the

objections and in absence of any objection he recorded the

statements of two attesting witnesses and requisitioned report

from Patwari. Therefore, no illegality or procedural irregularity

has been committed by him as per the powers vested in him

under Section 110 of the Code.

10. It is the submission of learned senior counsel that drawing

analogy from Section 178(1) of the Code for the purpose of

mutation of title is misplaced. Mutation is just record of entry

of revenue land in the name of an individual. It is record of

acquisition of right and therefore, it does not confer title. On

this count also, learned Writ Court erred and exceeded the

jurisdiction.

11. Learned senior counsel relied upon the judgments of Apex

Court in the matter of Suraj Bhan & Ors. Vs. Financial

Commissioner & Ors., (2007) 6 SCC 186, Jogendrasinghji

Vijaysinghji vs. State of Gujarat & Ors. (2015) 9 SCC 1, M.

Siddiq (dead) through legal representatives Vs. Mahant

Suresh Das and others (2020) 1 SCC 1 and Shaillendra

Kumar Vs. Divisional Forest Officer, 2017 SCC (Online) MP

1514 in support of his submission.

12. Learned Government Advocate for respondent No.4/State

opposed the submissions and submitted that finding given by

the Writ Court appear to be correct because revenue Court has

no such jurisdiction to decide title of the parties. Learned

counsel relied upon the judgment in the case of Murari and

another Vs. State of M.P. and others, 2020 (4) MPLJ 139.

13. Learned senior counsel for respondent No.1 petitioner in the

writ petition also opposed the submissions and while

supporting the impugned order submitted that once Tahsildar

was bereft of jurisdiction to decide the title, then whole

proceedings stood void-ab-initio. Civil suit filed at the instance

of respondent No.1 Ranjeet alias Bhaiyu Mohite in which

present appellant Smt. Nandita Singh is also party along with

two other members of family then in that circumstance, let the

case be decided on the anvil of pleadings, examination/cross-

examination of witnesses, production of documents by the

competent civil Court. He relied upon judgments rendered in

cases reported in 2017 (1) RN 328 (Akshay Kumar Vs. Smt.

Ramrati and others), 2019 (2) RN 252 (Pehalvan Singh and

another Vs. Sitaram and another) and 2020 (I) MPJR SN 9

(Avnish Kumar Vs. Satyaprakash) in support of his

submission.

14. Heard learned counsel for the parties and perused the record

appended thereto.

15. It is a case where appellant/respondent No.1 was beneficiary of

an unregistered Will dated 04-04-2002 executed by testator

Vijay Singh Rao Mohite and it appears from the impugned

order that immediately after Will dated 04-04-2002 she filed an

application for mutation and thereafter mutation order was

passed in her favour. Although proceedings are conspicuously

missing (or not available) but still from the order passed by

Tahsildar, it appears that two witnesses namely, Aditya Patankar

and Govinddas Bansal who stood as attesting witnesses were

examined and their statements were taken. Thereafter

statements of village Patwari were taken, report was

requisitioned from him and mutation order was passed. So far

as procedure as prescribed under Section 110 of the Code is

concerned, it is the duty of Tahsildar to record acquisition of

rights reported to him under Section 109 of the Code or which

come to his notice from any other source. The said acquisition

of right is to be reported by applicant as per Section 109 of the

Code. Since Sections 109/110 of the Code deal in respect of

report and mutation of acquisition of rights through Record of

rights as contemplated u/s 108 of Code. Therefore, Section 108

also assumes significance, same reads as under:

"108. Record of rights:- (1) A record -of-rights shall in accordance with rules made in this behalf be prepared and maintained for every village and such record shall include the following particulars:

(a) the names of all Bhumiswamis together with survey numbers or plot numbers held by them and their area, irrigated or unirrigated;

(b) the names of all occupancy tenants and Government lessees together with survey

numbers or plot numbers held by them and their area, irrigated and unirrigated;

(c) the name and extent of the respective interests of such persons and the conditions or liabilities, if any, attaching thereto;

(d) the rent or land revenue, if any, payable by such persons; and

(e) such other particulars as may be prescribed.

(2) The record-of-rights mentioned in sub- section (1) shall be prepared during a revenue survey or whenever the State Government may, by notification, so direct."

16. If provisions of Sections 108, 109 and 110 of the Code are seen

in juxtaposition, then it makes the picture clear that record of

rights and its subsequent acquisition is to be lawful acquisition

of any right or interest in land and it should be mutated

accordingly and since acquisition is to be lawful and names of

all bhumiswamis and all occupancy tenants with their

respective rights are to be included, therefore, proceedings must

be fair and transparent.

17. In the present case, Tahsildar considered the application for

mutation on the basis of an unregistered Will and taken the

statements of attesting witnesses, meaning thereby he exceeded

its jurisdiction from keeping record-of-rights to Adjudication of

Rights. Best course would had been to ask the appellant to get

the Will propounded and established through proper civil

proceedings before the Civil Court rather than recording

evidence on his own. Moment, he entered into adjudicatory role

he caused jurisdictional error.

18. It is settled in law that revenue authority cannot decide the title.

It is domain of Civil Court. Recently, this Court in the case of

Hariprasad Bairagi Vs. Radheshyam and others in Writ

Appeal No.535/2021 (Reportable) has delineated the issue in

question and thereafter held that it is domain of the Civil Court

to test the Will on the anvil of claims/counter claims and

evidence produced by the parties. Revenue Board have to

record consequences only.

19. Full Bench of this Court in the case of Ramgopal Kanhaiyalal

Vs. Chetu Batte, AIR 1976 MP 160 categorically held in

somewhat similarly pleaded facts as under:-

"Determination of the question of title is the province of the Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the Civil Court cannot be assumed or implied. The scheme of the Code consistently preserves the jurisdiction of the Civil Court to decide questions of title and that jurisdiction is not excluded."

The aforesaid decision of Full Bench of this Court is

found to be a good law by Hon'ble Apex Court in the case of

Rohini Prasad and Ors. Vs. Kasturchand and Anr., AIR

2000 SC 1283.

20. Considering overall facts and circumstances of the case as well

as legal position, it appears that learned Writ Court has not

caused any illegality in passing the impugned order. When

Tahsildar had no jurisdiction to pass such order then

proceedings are void-ab-initio. Judgments relied upon by

appellant move in to different factual realm, therefore, are of

no avail to the cause of appellant.

21. So far as arguments advanced by learned senior counsel on the

basis of deleting name of appellant from the revenue record and

incorporating the name of legal heirs of Vijay Singh Rao

Mohite and in absence thereof, State Government as

Bhumiswami, appear to be a step which may preempt the

controversy and may affect the intermediary and final

proceedings before the trial Court. Civil suit is already pending

and therefore, every party must have a fair chance to canvass

his/her case by producing evidence; documentary as well as oral

to reach to the truth. Therefore, those observations as figured in

paras 33 and 34 of impugned order deserve modification to the

extent that parties shall maintain status-quo in respect of the

suit property including the mutation entry as it exists today and

it is made clear that no party shall have any right, title or

interest to derive any benefit on the basis of said mutation entry

(as it exists today) and shall not alienate the land on the basis of

existence of any mutation entry in their favour, rightly or

wrongly so recorded earlier.

22. Civil Court shall have all liberty to decide the pending civil suit

in accordance with law including the application for temporary

injunction and other ancillary or intermediary proceedings.

23. Writ appeal stands disposed of with above terms. However,

discussion regarding power of revenue authority regarding lack

of jurisdiction of revenue authority in deciding the mutation on

the basis of Will as decided by learned Writ Court stands

affirmed and this Court finds no reason to interfere such well

reasoned order.

24. Writ appeal stands disposed of accordingly.

                                 (Sheel Nagu)                            (Anand Pathak)
                                    Judge                                    Judge
Anil*

        ANIL        Digitally signed by ANIL KUMAR
                    CHAURASIYA


        KUMAR
                    DN: c=IN, o=HIGH COURT OF MADHYA
                    PRADESH BENCH GWALIOR, ou=HIGH
                    COURT OF MADHYA PRADESH BENCH
                    GWALIOR, postalCode=474001,

        CHAURASIY   st=Madhya Pradesh,
                    2.5.4.20=8512f40a1a9eaa50b6802d068b5
                    1dae27e84c266b09d283f0799e67cdc7df5


        A
                    0f, cn=ANIL KUMAR CHAURASIYA
                    Date: 2021.10.25 14:25:29 -07'00'