Parmeshwar Giri vs Jalandhar Puri Goswami
2023 Latest Caselaw 22017 MP

Madhya Pradesh High Court

Parmeshwar Giri vs Jalandhar Puri Goswami on 21 December, 2023

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                            1                  M.P. No.2416/2022


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                          BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 21st OF DECEMBER, 2023
              MISC. PETITION No. 2416 of 2022
BETWEEN:-
1.   PARMESHWAR GIRI S/O LATE JAGDISH
     GIRI,   AGED     ABOUT   45   YEARS,
     OCCUPATION: FARMER R/O VILLAGE
     BIJOURI   TAHSIL   MANPUR   DISTRICT
     UMARIYA (MADHYA PRADESH)

2.   PARASH GIRI S/O JAGDISH GIRI, AGED
     ABOUT 43 YEARS, OCCUPATION: FARMER
     R/O VILLAGE BIJOURI, TAHSIL MANPUR,
     DISTRICT-UMARIYA (MADHYA PRADESH)

3.   PRAHLAD GIRI S/O JAGDISH GIRI, AGED
     ABOUT 40 YEARS, OCCUPATION: FARMER
     R/O VILLAGE BIJOURI, TAHSIL MANPUR,
     DISTRICT-UMARIYA (MADHYA PRADESH)

                                               .....PETITIONER
(BY SHRI SAKET ANAND - ADVOCATE )

AND
1.   JALANDHAR PURI GOSWAMI S/O NANDLAL
     PURI, AGED ABOUT 70 YEARS R/O VILLAGE
     POUNIYA     POST     KATNI     TAHSIL
     VIJAYRAGHAV GARH DISTRICT KATNI
     (MADHYA PRADESH)

2.   ADDITIONAL COMMISSIONER (REVENUE)
     JABALPUR DIVISION DISTRICT-JABALPUR
     (MADHYA PRADESH)

3.   SUB DIVISIONAL OFFICER (REVENUE) SUB
     DIVISION VIJAYRAGHAV GARH, KATNI
     (MADHYA PRADESH)

4.   TAHSILDAR VIJAYRAGHAVGARH TAHSIL
     VIJAYRAGHAV GARH, KATNI, DISTRICT
     KATNI (MADHYA PRADESH)

                                             .....RESPONDENTS
                                                               2                                              M.P. No.2416/2022


(SHRI SURENDRA KUMAR MISHRA - ADVOCATE FOR CAVEATOR, SHRI
GAJENDRA PARASHAR - PANEL LAWYER FOR THE STATE )
............................................................................................................................................
           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 02.05.2022 passed by Additional Commissioner, Jabalpur Division Jabalpur in appeal No.463/Appeal/2018-19 by which order dated 02.11.2020 passed by SDO, Tahsil Vijayraghavgarh, District Katni in case No.105/Appeal/2019-20 was set aside and the order passed by Tahsildar, Tahsil Vijayraghavgarh, District Katni was restored.

2. It is submitted by counsel for petitioner that respondent No.1 filed an application for mutation of his name on the basis of Will, whereas petitioners filed an application for mutation of their names on the basis of succession. Application for mutation on the basis of Will was allowed by Tahsildar, Tahsil Vijayraghavgarh, District Katni, which was challenged by petitioners by filing appeal before SDO, Tahsil Vijayraghavgarh, District Katni. The SDO, Tahsil Vijayraghavgarh, District Katni by his order dated 02.11.2020 allowed the appeal and order passed by Tahsildar, Tahsil Vijayraghavgarh, District Katni was set aside and directed for mutation of names of Jagdish Giri, Parmeshwar Giri, Paras Giri, Prahlad Giri all resident of Village Bijouri, Tahsil Manpur, District Umariya.

3. Being aggrieved by order passed by the SDO, Tahsil Vijayraghavgarh, District Katni, respondent No.1 preferred an appeal before Additional Commissioner, Jabalpur Division, Jabalpur, which was registered as case No.463/Appeal/2018-19. By the impugned order

dated 02.05.2022, Additional Commissioner Shri Tarun Bhatnagar has allowed the appeal and restored the order passed by Tahsildar, Tahsil Vijayraghavgarh, District Katni by which name of respondent No.1 was directed to be mutated on the basis of Will.

4. Challenging the order passed by Additional Commissioner, Jabalpur Division, Jabalpur, it is submitted by counsel for petitioners that it is well established principle of law that revenue authorities have no jurisdiction to mutate the name of beneficiary on the basis of Will. If a propounder of Will wants to take advantage of Will, then he has to seek declaration of his title from a civil Court of competent jurisdiction. It is further submitted that on 11.04.2022, final arguments were heard and the case was fixed for 16.05.2022. Before 16.05.2022, Additional Commissioner was transferred and accordingly, on 02.05.2022, he delivered the impugned judgment after taking an application for urgent hearing. It is submitted that this act of Additional Commissioner is indicative of fact that he had not acted in a bonafide manner and has acted dishonestly. It is further submitted by counsel for petitioners that dishonest intention of revenue authorities is writ large from the fact that even the Tahsildar showed undue haste in mutating name of respondent No.1 in compliance of order dated 02.05.2022.This Court on 21.06.2022 had stayed the effect and operation of order dated 02.05.2022 passed by Additional Commissioner. Respondent No.1 moved an application for execution of order passed by Additional Commissioner on 21.06.2022, which is evident from RCMS record according to which case was registered on 21.06.2022. However, the final order for carrying out mutation was passed by Tahsildar on 13.06.2022 i.e. prior to registration of application for mutation. Thus, it is clear that something fishy was going on which requires detailed investigation.

5. Per contra, petition is vehemently opposed by counsel for respondent No.1. It is submitted that no application was ever filed by respondent No.1 for urgent hearing of the case.

6. Heard the learned counsel for parties.

7. So far as the merits of the case are concerned, it is well established principle of law that revenue authorities have no jurisdiction to mutate the name on the basis of Will and if propounder of a Will wants to take advantage of Will executed by the testator, then he has to seek a declaration from a civil Court of competent jurisdiction.

8. The 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 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."

9. 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."

10. 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."

11. Thus, it is clear that application filed by respondent No.1 for mutation of his name on the basis of Will was not maintainable before revenue authorities and the Tahsildar, Tahsil Vijayraghavgarh, District Katni committed a material illegality by directing for mutation of name of respondent No.1 by his order dated 13.02.2019 passed in revenue case No.108/A-6(2)/2017-18. It is accordingly, hereby quashed.

12. Similarly, Additional Commissioner, Jabalpur Division Jabalpur also committed a material illegality by affirming order dated 13.02.2019 passed by Tahsildar, Tahsil Vijayraghavgarh, District Katni. Accordingly, order dated 02.05.2022 passed by Additional Commissioner Jabalpur Division Jabalpur in case No.463/Appeal/2018- 19 is hereby quashed.

13. The order dated 02.11.2020 passed by SDO, Tahsil Vijayraghavgarh, District Katni in appeal No.105/Appeal/2019-20 is hereby restored.

14. Before parting with this order, this Court would like to consider the submissions made by counsel for petitioners.

15. The petitioners have drawn attention of this Court towards the order sheets of Court of Additional Commissioner, Jabalpur Division, Jabalpur. As per order dated 11.04.2022, final arguments were heard and written arguments were also submitted by respondent No.1 and

petitioners were also permitted to submit their written arguments and accordingly, case was fixed for 16.05.2022.

16. It is the case of petitioners that Shri Tarun Bhatnagar, who was posted as Additional Commissioner, Jabalpur Division, Jabalpur was in seisin of the matter. He was transferred. However, on 02.05.2022, final order was passed by mentioning that an application for urgent hearing is taken and final order is passed.

17. It is further submitted that petitioners have also filed a copy of M.P. Revenue Case Management System as Annexure P/10 and according to the said information, on 16.05.2022, order was not passed. There is no entry in this system to show that any order was passed on 02.05.2022. It is submitted that in fact order dated 02.05.2022 was passed by Shri Tarun Bhatnagar subsequent to his transfer. It is further submitted that this Court by order dated 21.06.2022 had stayed the effect and operation of order dated 02.05.2022. It also appears that respondent No.1 had moved an application for execution of order dated 02.05.2022 passed by Additional Commissioner, Jabalpur Division Jabalpur which was registered on 21.06.2022, which is evident from RCMS and it was numbered as case No.42/B-121/2022-23. However, by order dated 13.06.2022 i.e. much prior to even registration of application for execution of order dated 02.05.2022 passed by Additional Commissioner, Jabalpur Division Jabalpur, the Tahsildar, Tahsil Vijayraghavgarh, District Katni directed for mutation of name of respondent No.1. Thus, it is submitted that not only Additional Commissioner, Jabalpur Division Jabalpur had acted in dubious manner but even Tahsildar, Tahsil Vijayraghavgarh, District Katni has passed the ante-dated orders in order to frustrate the stay order passed by this Court.

18. Considered the submissions made by counsel for petitioners.

19. If the allegations, which have been levelled by petitioners, are considered, then they are of serious nature, which cannot be ignored. However, the same are based on disputed questions of fact and this Court has no agency to investigate the same.

20. However, neither Shri Tarun Bhatnagar nor the then Tahsildar, Vijayraghavgarh, District Katni have been impleaded in their personal capacity. Although, this Court was inclined to direct DGP to depute Senior Police Officer to conduct an enquiry but since neither Shri Tarun Bhatnagar nor the then Tahsildar have been impleaded in their personal capacity, therefore, in their absence no direction can be issued.

21. Accordingly, the Chief Secretary, State of Madhya Pradesh is directed to look into the matter.

22. With aforesaid direction the petition is allowed.

(G.S. AHLUWALIA) JUDGE SR*