Madhya Pradesh High Court
Ghanshyam vs Liyakat Hussain on 17 August, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 17 th OF AUGUST, 2023
MISC. PETITION No. 719 of 2022
BETWEEN:-
GHANSHYAM S/O LATE HARIRAM MALI, AGED ABOUT
53 YEARS, OCCUPATION: AGRICULTURE CHOTA
MALIPURA JAORA TEHSIL JAORA DISTRICT RATLAM
(MADHYA PRADESH)
.....PETITIONER
(SHRI SUNIL JAIN, LEARNED SENIOR COUNSEL WITH SHRI KUSHAGRA
JAIN, LEARNED COUNSEL FOR THE PETITIONER )
AND
1. LIYAKAT HUSSAIN S/O MOHAMMAD MUSTKIM
OCCUPATION: NA R/O 145 BARAFKHANA JAORA
TEHSIL JAORA DISTRICT RATLAM (MADHYA
PRADESH)
2. CHIMANLAL S/O LATE HARIRAM MALI R/O 145
BARAFKHANA, JAORA. TEHSIL JAORA DISTRICT
RATLAM (MADHYA PRADESH)
3. RAMESHCHANDRA S/O LATE HARIRAM MALI
R/O 145 BARAFKHANA, JAORA, TEHSIL JAORA
DISTRICT RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ARUN GUPTA, LEARNED COUNSEL FOR THE RESPONDENTS)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
With the consent of the parties, heard finally.
This petition under Article 227 of the Constitution of India is filed against
the order dated 13.09.2021 passed by the Additional Commissioner, Ujjain
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 18-08-2023
18:38:12
Division, Ujjain in Case No.142/Appeal/2021-2022.
2. The brief facts of the case is that Lachibai(Mother of petitioner and
respondents no.2 and 3) herein was the sole owner of the land bearing survey
no.163/2 admeasuring 0.506 hectare, survey no.163/5 admeasuring 0.063
hectare total admeasuring 0.948 hectare situated at Gram Bannakheda, Tehsil
Jaora, District Ratlam. During her life time Lachibai executed a Will to ensure
that no dispute in respect of the aforesaid property take place after her death
amongst her legal representatives. The Will was executed by Lachibai on
21.05.2005. Lachibai out of aforesaid lands out of land of survey No.163/2
admeasuring 0.506 hectare, 0.190 hectare land bequeathed to respondent no.2
Chimanlal and admeasuring 0.190 hectare land was given to respondent no.3
Rameshchandra and remaining admeasuring 0.126 land was given to the
petitioner. Out of land of survey no.163/5 admeasuring 0.379 hectare
admeasuring 0.189 hectare land was given to the petitioner. So far as remaining
admeasuring 0.190 hectare land of this survey number Lachibai kept for her life
time interest and after her death same land will fall into the share of the present
petitioner.
3. The land of survey no.163/2 admeasuring 0.063 hectare was sold by
Lachibai during her life time to one Mr.Mohanlal S/o Dhannaji and for the sale
formalities rights were given to the present petitioner. Lachibai died on
29.03.2007. Thereafter, petitioner and respondent no.2 and 3 filed an
application for mutation of their names in respect of aforesaid lands as per Will
dated 21.07.2005 before Tehsildar, Jaora. The Tehsildar allowed the application
and passed an order of mutation of the aforesaid lands as per Will and directed
to record the name of the petitioner and respondents no.2 and 3 in respect of
the lands in question as per Will. In the year 2011 respondent no.2,3 and
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 18-08-2023
18:38:12
petitioner sold their respective shares of land of Survey No.163/2 to one
Mukesh Kumar vide registered sale deed dated 02.05.2011. Thereafter one Dilip
Kumar filed an appeal challenging the mutation, which was settled outside the
Court between the parties. Again on 13.10.2017 Tehsildar passed an order for
recording the name of the petitioner and respondents no.2 and 3 in the revenue
record as per Will, but necessary entries could not be made in the revenue
record. In the year 2020 respondents no.2 and 3 committed mischiefs with their
brother and sold the land admeasuring 0.252 hectare land of survey no.163/5
out of 0.379 hectare to respondent no.1 vide registered sale deed dated
27.10.2020 which is solely owned and possessed by the present petitioner.
4. Respondent no.1 then filed an application for mutation of his name in
survey no.163/5 before the Tehsildar which was allowed vide order dated
17.11.2020. Thereafter, the present petitioner filed an appeal before the Sub
Divisional Officer, Jaora, district Ratlam. The appeal was allowed vide order
dated 13.09.2021 (Annexure P/1) by setting aside the order dated 15.06.2021
passed by the Sub Divisional Officer and affirmed the order dated 17.11.2020
passed by the Tehsildar. Being aggrieved by the order dated 13.09.2021
(Annexure P-1) the petitioner has filed this petition.
5. Learned counsel for the petitioner has submitted that Additional
Commissioner has committed grave error of law and facts both in setting aside
the order dated 15.06.2021 passed by the SDO and in allowing the appeal filed
by the respondent no.1. He further submitted that the Additional Commissioner
failed in appreciating that the SDO was right in observing that the Will was
executed by Lachibai in favour of petitioner in respect of the land in question
and a civil suit in respect of the same land is pending before the Civil Court for
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 18-08-2023
18:38:12
declaration and permanent injunction and to declare the sale deed dated
27.10.2020 as null and void and to restrain the respondent no.1 from
interference in the suit property against the petitioner. Hence, prays for setting
aside the impugned order dated 13.09.2021 passed by the Additional
Commissioner and to restore the order dated 15.06.2021 passed by the SDO.
6. On the other hand, learned counsel for the respondent submitted that no
illegality has been committed by the Additional Commissioner in passing the
impugned order for the reason that the civil suit which has been filed by the
petitioner is still pending and there is no order of stay in existence in favour of
the petitioner.
7. Heard the learned counsel for the parties and perused the record.
8. The controversy involved in the present petition is whether for the mutation
of the disputed land, the revenue authorities have jurisdiction to initiate
proceedings under the M.P.Land Revenue Code, 1959 in the light of the fact
that a dispute in respect of the disputed land is pending before the civil Court in
which the title of the disputed land is to be decided. Section 111 of M.P.Land
Revenue Code reads as under :-
"111. Jurisdiction of Civil Courts. - The Civil Courts shall
have jurisdiction to decide any dispute to which the State
Government is not a party relating to any right which is
recorded in the record-of-rights."
9. A bare perusal of the aforesaid Section reveals that so far as title of the
property is concerned, the Civil Court has exclusive jurisdiction to decide the
same and, in such circumstances, when a civil suit is pending before the Civil
Court, no purpose would be served if mutation is carried out at the instance of
any party for the reason that the order passed by the Civil Court would be
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 18-08-2023
18:38:12
binding on the parties and if in the meantime, such decision is delivered and title
is decided, mutation is carried out in favour of any of the parties, it would only
lead to further litigation.
10. In the case of Ambika Prasad Bakshi Vs. Onkar Prasad Saini and
other reported in AIR 2005 MP 60 the Division Bench of this Court has held
as under:-
"17. We refrain from making any comment regarding the
claim of Ambika Prasad Bakhshi as the same was left open
by the Supreme Court, and any observation by us in that
regard may cause prejudice to the parties. Suffice it to say
that the jurisdiction of a Civil Court is superior to the Revenue
Courts and whatever is decided by the Civil Court is the final
decision and Tahsildar is bound to make a mutation on the
basis of a valid order of the Civil Court. Where a judgment of
the Civil Court relating to disputed land is produced before
the Revenue Court, the Revenue Court is bound by it and
should order mutation according to the decree of the Civil
Court. When there was definite finding of the Civil Court that
the respondents have become Bhumiswamis of the suit land,
the Revenue Courts had no jurisdiction to enquire regarding
the rights of the respondents after coming into force of M.P.
Land Revenue Code, 1959.
18. The learned counsel for the appellants next contended that
the learned single Judge failed to see that in the trial Court and
the lower appellate Court, the suit filed by the plaintiffs was
dismissed on the ground that notice of termination of the
original tenancy was not valid as the tenancy was terminated
in the month of April, instead of month of June and the title of
the respondents was not decided.
19. The contention is devoid of any merit. In fact, the
judgment of the trial Court and lower appellate Court were to
the effect that since the defendants have acquired the right of
Bhumiswami, the plaintiffs lost their claim in the suit property.
Thus, title of the respondents was decided and on the basis
of this decision the Revenue Courts were bound to order the
mutation of the names of the defendants in the suit whose
estate the present respondents represent."
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 18-08-2023
18:38:12
11. Thus, this court, in so many words have already held that the
jurisdiction of the civil court is superior to that of the jurisdiction of a revenue
court. In such circumstances also when the civil suit is already pending in Civil
Court between the parties regarding the title of the property, the mutation
proceedings before the revenue authorities can have no sanctity attached to
them.
12. In view of the aforesaid in the considered opinion of this Court, the
petition deserves to be allowed and is hereby allowed. The impugned order
dated 13.09.2021 (Annexure P-1) is hereby quashed and the order passed by
the Sub Divisional Officer (Revenue) dated 15.06.2021 is restored.
(HIRDESH)
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 18-08-2023
18:38:12
