Madhya Pradesh High Court
Bitti Devi vs Ramkumar on 11 December, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 11 th OF DECEMBER, 2023
MISC. PETITION No. 2404 of 2019
BETWEEN:-
1. BITTI DEVI D/O RAGHVENDRA, AGED ABOUT 5
YEARS, GRAM PACHOKHARA MACHAND TEHSIL
RON DISTRICT BHIND (MADHYA PRADESH)
2. MEERA D/O SHRI SHEETAL, AGED ABOUT 45
YEARS, R/O GRAM UMRI THASIL MADHOGARH
DISTRICT JALAON (UTTAR PRADESH)
.....PETITIONERS
(BY SHRI VILASH TIKHE- ADVOCATE)
AND
1. RAMKUMAR S/O BABU, AGED ABOUT 45 YEARS,
R /O PACHERA TEHSIL GORMI DISTRICT BHIND
AT PRESENT GUHANI TEHSIL CHAKARNAGAR
DISTRICT ETAWAH (UTTAR PRADESH)
2. GUDDI DIVI W/O SHRI RAMKUMAR, AGED
ABOUT 42 YEARS, PACHERA THASIL GORMI
BHIND AT PRE. GUHANI THASIL CHAKARNAGAR
DISTRICT ETAWAH (UTTAR PRADESH)
3. RAKESH SINGH S/O SHRI JILEDAR SINGH, AGED
ABOUT 44 YEARS, R/O GRAM PACHERA THASIL
GORMI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DHARMENDRA SHARMA - ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition under Article 227 of the Constitution of India is
directed against the order dated 10.01.2019 passed by Member of Board of
Revenue in Case No.3690/2018/Bhind/Land Revenue whereby revision
preferred by the present respondents No.1 to 3 was allowed and the order of
Additional Commissioner dated 14.03.2018 passed in Second Appeal
No.0549/17-18 whereby the order passed by Sub-Divisional Officer dated
01.02.2018 affirming the order dated 09.07.2012 of Tehsildar by which the
names of present respondents were mutated in the revenue records, was set
aside.
At the outset, learned counsel for the petitioners has placed on record the
copy of the judgment and decree passed by Civil Judge, Class-II, Mehgaon,
District Bhind in Civil Suit No.A/95/2015 fought between the parties wherein the
Will on the basis of which, the names of all the respondents herein were
mutated in the revenue records by the Tehsildar vide order dated 09.07.2012
had been held to be void.
On the basis of the aforesaid judgment and decree, learned counsel for
the petitioner submits that firstly, the revenue authorities could not have mutated
the names of the present respondents in the revenue records on the basis of a
Will which was in dispute, as has been held by catena of its judgment by this
Court and secondly, since the very Will dated 02.02.2012 has been declared to
be null and void by a competent Court of Civil Jurisdiction, therefore, the order
passed by the Sub-Divisional Officer in first appeal doesn't deserve stand. On
the aforesaid premises, it was prayed that the present petition be allowed and
the orders impugned herein be set aside.
Per contra, learned counsel for the respondents submits that passing of
judgment and decree dated 20.01.2022 is not in dispute, but the same has been
challenged by the present respondents in appeal and the said appeal is still sub
judice before the competent Appellate Court, therefore, at present, the order
passed by Tehsildar as well as Sub-Divisional Officer cannot be said to be bad
in law and the present petition deserves to be dismissed.
Heard the counsel for the parties and perused the record.
It is an admitted position that mutation had been sought by present
respondents on the basis of Will dated 02.02.2012 executed by one Sheetal
Singh, who is father of the present petitioners in favour of the present
respondents. The aforesaid Will has been challenged by present petitioners at
the first appellate stage before the Sub-Divisonal Officer with a contention that
at the time of proceedings pending before Tehsildar, no notices were issued to
the present petitioners and therefore, they had no occasion to challenge the
execution of the said Will and thus, the order of Tehsildar mutating the names
of present respondents was bad in law.
Learned First Appellate Court by ignoring the aforesaid aspect had
affirmed the order passed by Tehsildar which was challenged by the present
petitioners before the Additional Commissioner by way of Second Appeal.
Learned Additional Commissioner vide order dated 14.03.2018 had allowed the
Second Appeal and while setting aside the orders passed by Sub-Divisonal
Officer in First Appeal as well as the order of the Tehsildar mutating the names
of present respondents in revenue records, remanded the matter back to the
Tehsildar for fresh adjudication in the matter. Aggrieved by the aforesaid order,
revision was preferred before the Board of Revenue and vide impugned order
dated 10.01.2019, the Board of Revenue had allowed the revision preferred by
present respondents and the order whereby the matter was remanded by the
Additional Commissioner was set aside.
Though at the time of passing of the order by the Member, Board of
Revenue, the suit for declaring the Will dated 02.02.2012 was pending and since
the application under Order 39 Rule 1 & 2 of CPC preferred by present
petitioners in that suit was rejected, learned Board of Revenue ignoring the legal
position with regard to the powers of the Revenue Authorities for mutating the
names of parties in the revenue records on the basis of a disputed Will, had
allowed the said revision and had set aside the order of the Additional
Commissioner which itself was per se illegal.
Even otherwise, after passing of the said order since a competent Court
of civil jurisdiction i.e. Civil Judge (Class-II) Mehgaon, District Bhind in RCS
NA/95/2015 (Biiti Devi and Anrs. Vs. Ramkumar Singh and Anrs.) vide
judgment and decree dated 20.01.2022 had declared the Will dated 02.02.2012
to be null, the order passed by learned Tehsildar dated 09.07.2012 is of no
consequence, though the said judgment and decree dated 20.01.2022 is said to
have been challenged by present respondents in appeal. As there is no stay
order to the effect in operation of the aforesaid judgment and decree, therefore,
the said judgment and decree is having a legal force, thus, the order passed by
Tehsildar as well as Sub-Divisional Officer dated 09.07.2012 and 01.02.2018
cannot be sustained and therefore, the order dated 10.01.2019 passed by
Member of Board of Revenue also per se illegal, accordingly is set aside.
With the aforesaid observations, the present petition is allowed.
(MILIND RAMESH PHADKE)
JUDGE
Vijay
VIJAY Digitally signed by VIJAY TRIPATHI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
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st=Madhya Pradesh,
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serialNumber=58392D8C4E7C9693BFE
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Date: 2023.12.15 13:34:19 +05'30'
