Madhya Pradesh High Court
Manoj Kumar Bohare vs Kapoori Devi on 28 August, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 28th OF AUGUST, 2023
MISC. PETITION No. 4958 of 2023
BETWEEN:-
1. MANOJ KUMAR BOHARE S/O LATE SHRI
SANTOSH BOHARE, AGED ABOUT 23 YEARS,
R/O- VILLAGE BADONKALAN TEHSIL
BADONI DISTRICT DATIA (MADHYA
PRADESH)
2. MAYANK SHARMA S/O LATE SHRI SANTOSH
BOHARE, AGED ABOUT 19 YEARS, R/O-
VILLAGE BADONKALAN TAHSIL BADONI
DISTRICT DATIA (MADHYA PRADESH)
3. PRATIMA D/O LATE SHRI SANTOSH
BOHARE, AGED ABOUT 25 YEARS, R/O-
VILLAGE BADONKALAN TAHSIL BADONI
DISTRICT DATIA (MADHYA PRADESH)
4. JYOTI D/O LATE SHRI SANTOSH BOHARE,
AGED ABOUT 20 YEARS, R/O- VILLAGE
BADONKALAN TAHSIL BADONI DISTRICT
DATIA (MADHYA PRADESH)
5. RAJKUMARI W/O LATE SHRI SANTOSH
BOHARE, AGED ABOUT 48 YEARS, R/O-
VILLAGE BADONKALAN TAHSIL BADONI
DISTRICT DATIA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI RAVI SHANKAR GUPTA - ADVOCATE)
AND
1. KAPOORI DEVI W/O SHRI MAHARAJ SINGH
D/O LATE SHRI MAHARAJ SINGH R/O-0
VILLAGE SIJORA TEHSIL BADONI
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 29-08-2023
07:03:57 PM
2
DISTRICT DATIA AT PRESENT DAL MILL
ROAD INDERGARH DISTRICT DATIA
(MADHYA PRADESH)
2. MITHALA D/O LATE SHRI MAHARAJ
SINGH W/O SHRI RAMGOPAL (DIED)
THROUGH LRS RAMESHWAR S/O SHRI
RAMGOPAL SHARMA R/O- VILLAGE
RAHULI P.S. BEHAT DISTRICT GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT)
This petition coming on for hearing this day, the court passed the
following:
ORDER
Heard on admission.
1. The present petition under Article 227 of the Constitution has been
preferred by the petitioners taking exception to the order dated
02/08/2023 passed by the Additional Commissioner, Gwalior Division,
Gwalior, whereby appeal preferred against the order dated 23/12/2020
passed by the Sub-Divisional Officer, Datia has been affirmed. Vide order
dated 23/12/2020 earlier order 26/03/2009 passed by the Tahsildar stands
set aside.
2. Precisely stated facts of the case are that the petitioners and
respondents are ancestral brother and sisters. On the basis of a Will dated
16/01/2006 executed by grand-mother of the petitioners and respondents,
division of land was categorically bequeathed in favour of different
family members. On the basis of said Will, petitioners moved an
application for mutation before the Tahsildar Vargaye Tahsil Datia and the
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 29-08-2023
07:03:57 PM
names of the petitioners were mutated in the survey numbers which were
received by them through Will.
3. Respondents preferred appeal in which Sub-Divisional Officer
passed impugned order dated 23/12/2020 whereby claim of the
petitioners over the land in question was omitted and whole land was
mutated in favour of respondents. That is the bone of contention.
4. It is the submission of the learned counsel for the petitioners that
Sub-Divisional Officer and thereafter, Additional Commissioner did not
consider the contentions of the petitioners and decided the case on the
analogy that Will is to be proved in Civil Court, thereafter respective
rights can be crystallized in revenue records.
5. After arguing for a while, learned counsel for the petitioners fairly
submitted that appropriate remedy is to assert the right on the basis of
Will in view of the judgment of passed by the Full Bench of this Court in
the case of Ramgopal Kanhaiyalal Vs. Chetu Batte, AIR 1976 MP 160,
Division Bench judgement of this Court in the case of Hariprasad
Bairagi Vs. Radheshyam, 2021 (2) Revenue Nirnay 217, another
judgment case of Smt. Nandita Singh Vs. Ranjit @ Bhaiyu Mohite,
Writ Appeal No.317/2021 dated 20.10.2021 and the judgment of Apex
Court in the case of Rohini Prasad Vs. Kasturchand, AIR 2000 SC
1283, all mandate that question of Will and related dispute can only be
decided by the Civil Court and not by the revenue court. For brevity, the
said discussion is not reproduced but taken guidance from the said
mandate. Therefore, in the present case, appropriate remedy is already
directed by the Sub-Divisional Officer and Additional Commissioner. He
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 29-08-2023
07:03:57 PM
would prefer the same in accordance with law.
6. Considering the submissions and the guidance given by the
Supreme Court as well as Full Bench of this Court and the Division
Bench of this court in the cases referred above, it is apposite for the
petitioners to avail their remedy before Civil Court by ascertaining their
rights on the basis of Will.
7. At this juncture, learned counsel for the petitioners raised anxiety
regarding maintaining status quo so that no third party right shall be
created in the disputed property.
8. It is hereby clarified that if petitioners prefer civil suit within 15
days from today before the trial court alongwith application under Order
39 Rule 1 and 2 of CPC then trial court shall make all endevours to
decide the application under Order 39 Rule 1 and 2 of CPC in accordance
with law on its own merits. However; as an interim measures, for next 15
days no third party rights shall be created by the parties.
9. It is made clear that trial court shall decide the application
including temporary injunction on its own merits and would not be
swayed by the any observation made by this Court in the present order.
10. With the aforesaid, the present petition stands disposed of.
(ANAND PATHAK)
JUDGE
Rashid
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 29-08-2023
07:03:57 PM
