Madhya Pradesh High Court
Chetai Alias Chetram vs Bhagwan Shri Jagannath Swami Mandir ... on 21 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 21 st OF DECEMBER, 2023
REVIEW PETITION No. 71 of 2023
BETWEEN:-
1. CHETAI ALIAS CHETRAM S/O LATE HARLAL KURMI, AGED
ABOUT 104 YEARS, OCCUPATION: FARMER R/O VILLAGE
KUTHLA LAL BAHADUR SHASHTRI WARD, TEHSIL AND
DISTRICT KATNI (MADHYA PRADESH)
2. DAYARAM S/O LATE SHIV PRASAD, AGED ABOUT 80
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
3. PHOOLCHAND PATEL S/O LATE TANTTA, AGED ABOUT 75
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
4. SANTOSH PATEL S/O LATE MUNNA, AGED ABOUT 36
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
5. LALLA S/O LATE CHIDDA, AGED ABOUT 60 YEARS,
OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
6. NARESH SAHU S/O LATE MAHESH SAHU, AGED ABOUT 40
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
7. VISHNU SAHU S/O CHHOTA SAHU, AGED ABOUT 75 YEARS,
OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
8. ASHOK S/O LATE BAIJNATH, AGED ABOUT 60 YEARS,
OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
Signature Not Verified
Signed by: SUSHMA
KUSHWAHA
Signing time: 12/23/2023
4:20:16 PM
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9. LATORA SAHU S/O MITHAI LAL SAHU, AGED ABOUT 55
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
10. MANGAL S/O LATE BANDARA, AGED ABOUT 60 YEARS,
OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
11. BAISAKHU S/O LATE KODU LAL PATEL, AGED ABOUT 54
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
12. ZINDA S/O LATE RAMDAS, AGED ABOUT 65 YEARS,
OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
13. RAMPRASAD PATEL S/O SUDHA ALIAS SUDHUA, AGED
ABOUT 75 YEARS, OCCUPATION: FARMER R/O VILLAGE
KUTHLA LAL BAHADUR SHASHTRI WARD, TEHSIL AND
DISTRICT KATNI (MADHYA PRADESH)
14. RAMKISHORE YADAV S/O LATE BASORI, AGED ABOUT 63
YEARS, OCCUPATION: FARMER R/O VILLAGE KUTHLA LAL
BAHADUR SHASHTRI WARD, TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SACHIN JAIN - ADVOCATE)
AND
1. BHAGWAN SHRI JAGANNATH SWAMI MANDIR KAILWARA
KHURD THROUGH BHARATLAL TIWARI S/O SHRI DURGA
PRASAD TIWARI MANDIR SHRI JAGANNAT JI PUBLIC
TRUST COMMITTEE KAILWARA KHURDA KATNI
DISTRICT KATNI (MADHYA PRADESH)
2. SHRI KESHAV PRASAD PATHAK S/O LATE JANARDHAN
PRASAD PATHAK, AGED ABOUT 68 YEARS, OCCUPATION:
SECRETARY MANDIR SHRI JAGANNAT JI PUBLIC TRUST
COMMITTEE KAILWARA, KHURD,KATNI (MADHYA
PRADESH)
3. SHRI OM PRAKASH GUPTA S/O SHRI RAM PRASAD GUPTA
OCCUPATION: TREASURER MANDIR SHRI JAGANNAT JI
PUBLIC TRUST COMMITTEE KAILWARA, KHURD,KATNI
Signature Not Verified
Signed by: SUSHMA
KUSHWAHA
Signing time: 12/23/2023
4:20:16 PM
3
(MADHYA PRADESH)
4. RAM NATH S/O RAMESHWAR R/O VILLAGE KUTHLA,
TEHSIL KATNI (MADHYA PRADESH)
5. RAJU S/O RAMESHWAR R/O VILLAGE KUTHLA, TEHSIL
KATNI (MADHYA PRADESH)
6. RAMDAYAL S/O LATE SHRI SARJU LAL R/O BAHADUR
SHASTRI WARD NO 2, NEAR AFZAL ADVOCATE TEHSIL
KATNI (MADHYA PRADESH)
7. KODU PATEL S/O LATE SHRI BUDHWA R/O VILLAGE
KUTHLA, TEHSIL KATNI (MADHYA PRADESH)
8. SMT. VIDYA BAI S/W/D/O SHRI SONELAL R/O VILLAGE
KUTHLA, TEHSIL KATNI (MADHYA PRADESH)
9. SMT. KALLU BAI S/W/D/O SHRI SUKHDEO R/O VILLAGE
KUTHLA, TEHSIL KATNI (MADHYA PRADESH)
10. DEVI PRASAD DUBEY S/O SHRI MAHESH PRASAD DUBEY
OCCUPATION: EX MEMBER KAILWARA, KHURD,KATNI
(MADHYA PRADESH)
11. THE COLLECTOR, K AT N I DISTRICT KATNI (MADHYA
PRADESH)
12. NAIB TAHSILDAR, K AT N I DISTRICT KATNI (MADHYA
PRADESH)
13. THE SUB DIVISIONAL OFFICER, KATNI DISTRICT KATNI
(MADHYA PRADESH)
14. THE ADDITIONAL COMMISSIONER, JABALPUR DISTRICT
JABALPUR (MADHYA PRADESH)
15. THE BOARD OF REVENUE , GWALIOR MOTI MAHAL
GWALIOR DISTRICT GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SOURABH PATHAK - ADVOCATE)
This petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
Signature Not Verified
Signed by: SUSHMA
KUSHWAHA
Signing time: 12/23/2023
4:20:16 PM
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ORDER
By this review petition filed under Order 47 Rule 1 and under Section 114 of Code
of Civil Procedure petitioners are seeking review of order dated 25/11/2022 passed in
W.P.No.1588/2003.
2. The Writ Petition was preferred by respondents no.1 to 3 under Article 227 of
Constitution of India challenging the validity of order passed by Board of Revenue on
10/12/2022 (Annexure-P-6 of petition) in a revision preferred before it challenging the
order passed by the Commissioner, Jabalpur Division Jabalpur.
3. The dispute involved before the revenue authority relating to the proceeding
arising out of the application submitted under Section 110 of M.P.Land Revenue Code,
1959 by the petitioner-trust asking that name of respondents be deleted from the revenue
record over the land of the trust but they are shown as maurusi kashtkar. The matter
travelled up to the Board of Revenue because it has set-aside the order of Sub Divisional
Officer and Additional Commissioner and maintained the order of Naib Tahsildar who
had rejected the application of the petitioner-trust.
4. In this review petition several grounds have been raised by the petitioners for
recalling the order pointing out that Court has not considered some material aspect of the
matter. It is submitted that some of the respondents of writ petition died during the
pendency of petition, but they have not been substituted by their legal representatives,
therefore, order passed against those persons is nullity and the same needs to be recalled.
As per the petitioners, the respondents originally impleaded in an application for mutation
before the Tahsildar and also before Sub Divisional Officer, all of them were not party
before the Board of Revenue but this aspect has not been taken note of and on this
ground also the order passed by the writ court can be recalled.
5. Shri Pathak, counsel appearing for respondents in review petition submitted that
present petitioners were not party before the Board of Revenue, therefore, their presence
and their death in this petition does not have any impact over the order. He has also
submitted that it was the duty of the counsel for respondents of writ petition to apprise
the Court about the then existing position, but when matter has been argued that too after
20 years and has been decided, the same cannot be recalled only on this ground. He
further submits that respondents no.1 to 3 of this review petition have filed an application
for dismissal of review petition mentioning therein that the petitioner no.1, 3 to 9, 12 & 14
(of review petition) are self proclaimed owners of the land and they were not party in the
writ petition, therefore, they have no locus to challenge the order or seeking its recall.
6. I have heard the submissions made by counsel for parties and perused the
record.
7. From perusal of memo of review petition and reply filed by respondents no.1 to
3, it is clear that petitioners no.1, 3, 5 to 9 and 12 and 14 were not party in writ petition,
therefore, review petition on their behalf otherwise not maintainable. So far as
respondent no.2 and 13 are concerned they died in the year 2018 but their legal
representatives were not brought on record. The legal heirs of respondent no.4 Bandara
was Koudu but he also died, as such number of persons even legal heirs of respondents
died during the pendency of the petition but nobody has informed the court about the
said situation whereas Order 22 Rule 10-A of CPC caste obligation upon the parties to
inform the court about such a situation.
8. It also appears from the record that some of the respondents died and their legal
heirs brought on record but on the date of argument nobody has apprised the Court
about the said situation, even it has not been pointed by counsel for the respondents that
some of the persons have not been made party who were party before the revenue
authorities. The Sub Divisional Officer passed an order in favour of petitioners (in writ
petition) and in pursuant to the said order petitioners-trust was placed in possession of
the land. The application for mutation filed by the trust has rightly been allowed by Sub
Divisional Officer. The order has also been affirmed by the Commissioner but order of
Board of Revenue since not found proper, therefore, the same was set aside by this
Court in a Writ Petition that too after long gap of implementation of order of Sub
Divisional Officer but liberty has been granted by this Court to the respondents
dispossessed in pursuant to the order of Sub Divisional Officer for determining their right
over the land they can avail the appropriate proceeding.
9. Thus, in my opinion the ground raised in the application for recalling the order
does not have any impact over the right of the parties, therefore, only on this count the
order cannot be recalled. The review petition is also liable to be dismissed because it
has been filed by some of the persons who were not party in the Writ Petition and even
before the Board of Revenue. Since they were sleeping over their right since long and
only because order has been passed against them they suddenly wake up and
approached this Court by filing review petition.
10. This review petition is also barred by time and application under Section 5 of
Limitation Act for condoning the delay has been filed in which it is mentioned that some
of the petitioners were not made party in the proceeding initiated before the
Commissioner and also before the Board of Revenue as they were not aware of the
pendency of writ petition and order passed therein. They came to know only when
trustees of the trust visited the spot asked them to vacate the land in pursuant to the order
of High Court.
11. However, this explanation given by them for condoning the delay is not
acceptable for the reason that Sub Divisional Officer allowed the application of trust for
mutating their name and order of Sub Divisional Officer was challenged before the
Commissioner in an appeal. If affected persons were not party and not challenged the
order of Sub Diviisonal Officer before the Commissioner then at this stage they cannot
come forward and challenge the order passed in Writ Petition. The application for
condoning the delay is otherwise suffers from sufficient cause because delay is not from
the order passed by writ court but some of the petitioners were not party in the
proceeding initiated before Commissioner and also before Board of Revenue. This
review petition is also liable to be dismissed on the ground that delay occurred in
challenging the order cannot be condoned because there is no sufficient cause shown for
condoning the delay.
12. Even otherwise non presence of legal heirs of some of the deceased-
respondents does not cause any prejudice to them for the reason that the case of
respondents were also at the same footing and everybody was claiming right over the
property and status of all the respondents was same. The order of Sub Divisional
Officer passed in favour of petitioner-trust has also been given effect. The respondents
have been dispossessed and mutation entry was also corrected recording the name of
trust in the revenue record. The Madras High Court in B.K.Basha Vs. Mohamed Ali
and others reported in Manu/TN/1397/2018 dealing with the same situation relying upon
a Supreme Court judgement reported in 2004(13) SCC 431 (P.Jesaya Vs. Sub-
Collector), wherein the Supreme Court has observed as under:-
3. The only contention taken up in this appeal is that the first
respondent, in the appeal before the High Court, had died
during the pendency of that appeal. It is contended that his
heirs were not brought on record and, therefore, the appeal
before the High Court had abated. In support of this contention
reliance is placed on Order 22 Rule 4 of the Code of Civil
Procedure as well as the judgments of this Court in the case of
Mithailal Dalsangar Singh v. Annabai Devram Kini [(2003)
10 SCC 691] and in the case of Amba Bai v. Gopal [(2001) 5
SCC 570] . It is submitted that as the appeal had abated, the
judgment delivered by the High Court is non est and cannot be
enforced.
4. Though the arguments are attractive one must also keep in
mind Order 22 Rule 10 of the Code of Civil Procedure. It is
obligatory on the pleader of a deceased to inform the court
and the other side about the factum of death of a party. In this
case we find that no intimation was given to the court or to the
other side that the first respondent had died. On the contrary a
counsel appeared on behalf of the deceased person and argued
the matter. It is clear that the attempt was to see whether a
favourable order could be obtained. It is clear that the
intention was that if the order went against them, then
thereafter this would be made a ground for having that order
set aside. This is in effect an attempt to take not just the other
side but also the court for a ride. These sort of tactics must not
be permitted to prevail. We, therefore, see no reason to
interfere. The appeal stands dismissed. There will be no order
as to costs.
13. Accordingly, this Court is of the opinion that this review petition is nothing but
an exercise to somehow linger on the matter. I find no substance in the submissions
made by counsel for the review petitioner. This is not the ground of review that after
almost 20 years when petition has been decided nobody has informed the Court about
the death of the parties and also not discharged their obligation as casted by Order 22
Rule 10-A of CPC.
14. Exconsequentia, the review petition is without any substance, the same is
dismissed accordingly.
(SANJAY DWIVEDI)
JUDGE
sushma
