Madhya Pradesh High Court
Sangeeta Dubey vs The State Of Madhya Pradesh on 20 December, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 20 th OF DECEMBER, 2023
WRIT PETITION No. 30845 of 2023
BETWEEN:-
SANGEETA DUBEY W/O SHRI MANOJ DUBEY, AGED
ABOUT 55 YEARS, OCCUPATION: TEACHER, R/O NEAR
BASU DAIRY, JANKI NAGAR, VIJAY NAGAR, JABALPUR,
DISTRICT JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIJAY KUMAR SHUKLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE SECRETARY, DEPARTMENT OF REVENUE,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. SUB DIVISIONAL OFFICER (REVENUE), TEHSIL
BAHORIBAND, DISTRICT KATNI (MADHYA
PRADESH)
3. NAIB TAHSILDAR SLIMNABAD, TEHSIL
SLIMNABAD, DISTRICT KATNI (MADHYA
PRADESH)
4. SMT. PRIYANKA DUBEY D/O SHRI BALMUKUND
DUBEY W/O SHRI AVINASH TRIPATHI, R/O
VILLAGE BHEDA, TEHSIL SLIMNABAD, DISTRICT
KATNI (MADHYA PRADESH)
5. SAYANA DUBEY @ SAMAY DUBEY D/O SHRI
BALMUKUND DUBEY W/O ABHINEET DUBEY, R/O
VIJAY NAGAR JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
6. PARTH DUBEY S/O SHRI BALMUKUND DUBEY,
R/O VILLAGE BHEDA, TEHSIL SLIMNABAD,
DISTRICT KATNI (MADHYA PRADESH)
Signature Not Verified
7. BALMUKUND DUBEY S/O LATE SHRI
Signed by: ANIL
CHOUDHARY
Signing time: 12/22/2023
12:05:39 PM
2
MOORATLAL DUBEY, R/O VILLAGE BHEDA,
TEHSIL SLIMNABAD, DISTRICT KATNI (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE FOR RESPONDENT
NOS.1 TO 3/STATE)
(SHRI GIRISH SHRIVASTAVA AND SHRI N.K. TIWARI - ADVOCATES FOR
RESPONDENT NOS.4 TO 7)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Pleadings are complete. With the consent of learned counsel for the
parties, the matter is finally heard.
2. This petition is under Article 226 of the Constitution of India assailing the
order dated 28.10.2023 contained in Annexure-P/6 passed by Sub Divisional
Officer (Revenue), Tehsil Bahoriband, District Katni/respondent No.2, in a case
i.e. RCMS No.0079/appeal/2023-24 whereby the appeal filed by respondent
Nos.4 and 5 herein, has been allowed.
3. As per the facts of the case, an application has been submitted by
respondent No.7 herein stating therein that in his lifetime he has gifted his
property situated at village Bheda, Tehsil Slimnabad, District Katni belonging to
Khasra Nos.401 and 405, area measuring 0.41 and 1.50 hectares respectively,
total area 1.91 hectares to his son i.e. respondent No.6 herein.
4. The case was registered and nobody has raised objection even after
publication of notice. The report from Halka Patwari was also obtained and as
per the report, the land situated at village Bheda belonging to Khasra Nos.401
and 405 areas measuring 0.41 and 1.50 hectares respectively at that time was
recorded in the name of respondent No.7 namely Balmukund Dubey S/o Late
Shri Mooratlal Dubey as Bhumiswami and as per the partition, respondent No.7
wanted to give that land to respondent No.6 herein. It is also stated that after the
partition, still 10 acres of land remained with respondent No.7 herein. In the
statement recorded before the Tehsildar, respondent No.7 has admitted that the
land belonging to Khasra Nos.401 and 405 was given to his son/respondent
No.6 herein and the daughters of the applicant namely Priyanka and Sayana,
respondent Nos.4 and 5 respectively have submitted an affidavit giving their
consent to record the land in the name of their brother namely Parth
Dubey/respondent No.6 herein.
5. The Tehsildar proceeded under Section 178-A of the M.P. Land Revenue
Code, 1959 (hereinafter referred to as the 'Code, 1959') accepting the said
partition and directed to mutate the land accordingly. Thereafter the order of
Tehsildar was assailed by respondent Nos.4 and 5 before the Sub Divisional
Officer, who by order dated 05.12.2020 dismissed the appeal on the ground of
limitation as it was found barred by time of 336 days and no sufficient reasons
assigned for condoning the delay. The said order was further assailed before
the Additional Collector, who in turn, vide order dated 06.12.2022 remitted the
matter to the competent authority setting aside the order dated 05.12.2020
directing the authority to decide the objection afresh after giving opportunity of
hearing to the parties concerned.
6. As per the record, a civil suit has also been filed by respondent Nos.4 and
5 herein before the Third Civil Judge, Senior Division, Katni, in which an
application for granting injunction under Order 39 Rule 1 & 2 of the Code of
Civil Procedure was also filed, but that application has been rejected vide order
dated 26.08.2022.
7. The Sub Divisional Officer after remand, set aside the order dated
05.04.2019 observing therein that the said order is contrary to the provisions of
the Code, 1959 and allowed the appeal further directing that the revenue record
be maintained and restored as it was before 05.04.2019.
8. The present petitioner has challenged the said order on the ground that
after the order passed by the Tehsildar, he purchased the land from respondent
No.6 herein, who executed as sale-deed in favour of the petitioner on a sale
consideration of Rs.14.25 lacs and thereafter she got her name mutated and till
then she has been in possession of the said land.
9. Learned counsel for the petitioner submits that in a proceeding pending
before the Sub Divisional Officer and also before the Commissioner, the
present petitioner has not been impleaded as a party and she has not been
heard. He submits that several documents have been filed by the petitioner
showing that the property in question belongs to her. He further submits that
since the name of the petitioner has already been recorded in the revenue
record, therefore, before passing any order she should also be heard because
the order of Sub Divisional Officer is based upon the document i.e. gift-deed,
which according to the petitioner, is a fabricated document and that cannot be
relied upon to get the name of respondents mutated and restore the possession
existing prior to 05.04.2019. The basis contention of the petitioner is that the
order of Sub Divisional Officer is liable to be set aside because the said
authority has not given any opportunity of hearing to the petitioner and
therefore, the order and the proceedings initiated by the Sub Divisional Officer
are in violation of principles of audi alteram partem.
10. Per contra, learned counsel appearing for respondent Nos.4 to 7 submits
that the present petitioner was not required to be heard for the reason that she
got the property purchased on the basis of Batwaranama and mutation entries
made in favour of respondent No.6 in pursuance to the application submitted
by respondent No.7. He submits that after recording the name of respondent
No.6, the petitioner purchased the land by sale-deed dated 09.07.2019. He
further submits that the petitioner was beneficiary of the said Batwaranama and
respondent No.6 accrued right only on the basis of said document whereas the
Batwaranama done by the Tehsildar has been assailed by respondent Nos.4 and
5 herein as the said property was ancestral property and respondent No.6 has
no right to execute any sale-deed or to sale the property in the manner in which
it got done. He submits that the suit filed by respondent Nos.4 and 5 was
dismissed for want of prosecution as their counsel did not appear on the date
when the case was fixed before the Court. Although, the application has been
moved for restoring the civil suit and according to him, if civil suit is not
decided in favour of respondent Nos.4 and 5, then on the basis of finding of
civil Court, the petitioner can mutate her name in the revenue record on the
basis of sale-deed dated 09.07.2019. He has also raised an objection with
regard to maintainability of the petition saying that the order of Sub Divisional
Officer can be further assailed before the Collector as per remedy available
under the Code, 1959, but writ petition under Article 226 of the Constitution is
not maintainable.
11. Considering the rival submissions made by learned counsel for the parties
and after perusal of record, I am of the opinion that the dispute is only with
regard to correction of revenue record made on the basis of order passed by
the revenue authorities. The Sub Divisional Officer has observed that the
document on the basis of which the Tehsildar acted upon and got partition
done changing mutation entries prima facie was not proper because it was a
simple piece of paper/unregistered document. There is no reason to discard the
finding given by the Sub Divisional Officer because that document is also
before this Court and it is unstamped, unegistered and on the basis of same, no
partition can be given weightage.
12. That apart, since the civil suit is filed by respondent Nos.4 and 5 claiming
their right over the land in question and also sought declaration that the sale-
deed dated 09.07.2019 executed in favour of the petitioner to be null and void,
if judgment and decree is passed in their favour, the revenue entries which is
made in favour of the petitioner shall be deleted and revenue record will be
corrected accordingly. But, at this stage, giving approval to the sale-deed which
is subject matter of civil suit, by this Court would not be proper. Therefore, in
my opinion, the Sub Divisional Officer did nothing wrong directing the
Tehsildar to restore the position as existing prior to 05.04.2019 because
ultimately if the petitioner succeeds in the civil suit and it is found that the sale-
deed is genuine, the mutation entries would be corrected accordingly.
13. It is made clear that the mutation entries cannot be considered to be a
document of title. It is only for the purpose of collecting revenue and those
entries cannot be kept vacant. Therefore, the order passed by the Sub
Divisional Officer, in my opinion, does not suffer from any material illegality or
irregularity. The petition is accordingly, dismissed making it clear that the
revenue record can be corrected by the petitioner on the basis of finding given
in a civil litigation, if comes in her favour.
14. With the aforesaid, the petition is dismissed.
(SANJAY DWIVEDI)
JUDGE
ac/-
