Madhya Pradesh High Court

Harunisha vs Sameer Ahemad @ Pammi on 18 August, 2023

Author: Gurpal Singh Ahluwalia

1 M.P. No.3930/2021

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 18th OF AUGUST, 2023
MISC. PETITION No. 3930 of 2021
BETWEEN:-
1. HARUNISHA W/O MOHAMMAD JALAL @
BHURA MIYA, AGED ABOUT 50 YEARS,
OCCUPATION: HOUSEWIFE R/O WARD
NO.17 HATHOR MOHALLA RAISEN
(MADHYA PRADESH)

2. JAIBUNISH W/O LATE AJEEJ KHAN,
AGED ABOUT 52 YEARS, OCCUPATION:
HOUSEWIFE R/O DISTRICT RAISEN
(MADHYA PRADESH)

.....PETITIONERS
(BY SHRI KANHAILAL GUPTA - ADVOCATE )

AND
1. SAMEER AHEMAD @ PAMMI S/O
HAMEED AHEMAD @ MUNAN SETHI R/O
WARD NO. 2 RAISEN DISTRICT RAISEN
(MADHYA PRADESH)

2. THE TEHSILDAR, TEHSIL RAISEN
DISTRICT RAISEN (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI Z.M. SHAH - ADVOCATE )
............................................................................................................................................

This petition coming on for admission this day, the court passed the
following:
ORDER

This Petition under Article 227 of Constitution of India has been filed against order dated 31.05.2021 passed by Additional Commissioner, Bhopal Division, Bhopal (M.P.) in case

No.720/Appeal/2011-12 by which name of respondent No.1 has been directed to be recorded in revenue records on the basis of Hibanama.

2. It is submitted by counsel for petitioners that Smt. Kamrun Nisha was owner of building/shop situated at survey No.459 area 0.03. After the death of Smt. Kamrun Nisha, respondent No.1, who is the brother of petitioners, filed an application for mutation of his name on the basis of Hibanama. Said application was rejected by Tahsildar by order dated 28.06.2010 and a direction was given to mutate the names of all legal heirs of Smt. Kamrun Nisha.

3. Being aggrieved by order passed by Tahsildar, respondent No.1 preferred an appeal before SDO (Revenue), District Raisen, which was registered as case No.86/Appeal/09-10 and said appeal was allowed by order dated 28.02.2011 and the matter was remanded back to decide afresh after deciding validity of Hibanama. Thereafter, Tahsildar by order dated 19.09.2011 passed in Revenue case No.395/A-6/2010-11 allowed the application for mutation of name of respondent No.1 on the basis of Hibanama.

4. Being aggrieved by said order passed by Tahsildar, petitioners preferred an appeal and accordingly, SDO (Revenue), District Raisen in case No.3/Appeal/2011-12 by order dated 31.07.2012 allowed the appeal and set aside order dated 19.09.2011 passed by Tahsildar.

5. Being aggrieved by order dated 31.07.2012 passed by SDO (Revenue), District Raisen, respondent No.1 preferred an appeal, which has been allowed by Additional Commissioner, Bhopal Division, Bhopal by order dated 31.05.2021 in case No.720/Appeal/2011-12.

6. Challenging the order passed by Additional Commissioner, Bhopal Division, Bhopal, it is submitted by counsel for petitioners that revenue authorities have no jurisdiction to mutate the name of

beneficiary on the basis of Will or gift (Hibanama). Revenue authorities have no jurisdiction to decide the authenticity of document and if respondent No.1 was inclined to take benefit of Hibanama, then he should have approached the civil Court for declaration of his title. To buttress his contention, counsel for petitioners has relied upon the judgment passed by Supreme Court in the case of Jitendra Singh v. State of Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil) No.13146/2021.

7. Per contra, petition is vehemently opposed by counsel for respondent No.1.

8. Heard learned counsel for parties.

9. Whether Hibanama was validly executed or not and whether it was accepted by beneficiary and whether possession of property by virtue of Hibanama was taken over by beneficiary or not are certain aspects, which are to be adjudicated before relying upon Hibanama.

10. Revenue authorities have no jurisdiction to decide the question of title and if a question of title has arisen requiring appreciation of a document, then beneficiary must file a suit for declaration of his title.

11. The Supreme Court in the case of Jitendra Singh (supra) has held as under:

"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.

6.1 In the case of Suraj Bhan v. Financial

Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v.

Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."

12. The Supreme Court in the case of H. Lakshmaiah Reddy v. L. Venkatesh Reddy, reported in (2015) 14 SCC 784 has held as under :

"8. As rightly contended by the learned Senior Counsel appearing for the appellants, the first defendant did not relinquish or release his right in respect of the half-share in the suit property at any point of time and that is also not the case pleaded by the plaintiff. The assumption on the part of the High Court that as a result of the mutation, the first defendant divested himself of the title and possession of half-share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh case are relevant and are extracted below: (SCC p. 142, paras 21-22) "21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in

assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni v. Inder Kaur, Pattanaik, J., speaking for the Bench has clearly held as follows: (SCC p. 227, para 7) '7. ... Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.'

22. Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of Mutation No. 1311 dated 19-7-1954. The assumption on the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so, legally, she was in possession on the date of coming into force of the Hindu Succession Act and she, as a full owner, had every right to deal with the suit properties in any manner she desired."

13. The Supreme Court in the case of Suraj Bhan v. Financial Commr., reported in (2007) 6 SCC 186 has held as under :

"9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam

Singh). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."

14. Thus, it is clear that mutation is only for fiscal purposes and by order of mutation no right or title can be conferred on any party.

15. Under these circumstances, this Court is of considered opinion that not only Tahsildar by order dated 19.09.2011 committed a material illegality by relying upon Hibanama filed by petitioners but even Additional Commissioner, Bhopal Division, Bhopal also committed same mistake in its order dated 31.05.2021 passed in case No.720/Appeal/2011-12.

16. Ex-consequenti, both the orders i.e. order dated 19.09.2011 passed by Tahsildar in Revenue Case No.395/A-6/2010-11 and order dated 31.05.2021 passed by Additional Commissioner, Bhopal Division, Bhopal (M.P.) in case No.720/Appeal/2011-12 are hereby quashed.

17. It is directed that names of all legal heirs of Smt. Kamrun Nisha be recorded in revenue records. However, it is observed that respondent No.1, if so advised, may file a suit for declaration of his title and if such a suit is filed, then trial Court shall decide the same strictly on the basis of evidence, which would come on record. Any finding recorded by any of the revenue authority will not be taken note of because the said findings are without jurisdiction and accordingly, they are null and void.