Chhatarsingh vs Surendrakumar
2023 Latest Caselaw 2692 MP

                            1

     IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

             MISC. PETITION No.4911 of 2022

       Between:-

1.     CHHATTAR SINGH, S/O SHRI KANCHAN
       SINGH KUSHWAH, AGED 53 YEARS,
       OCCUPATION: AGRICULTURE.
2.     DEVENDRA SINGH S/O SHRI KANCHAN
       SINGH KUSHWAH, AGED 40 YEARS,
       OCCUPATION: AGRICULTURE,
       BOTH R/O IDGAH BAADI, TAHSIL AND
       DISTRICT GUNA (MADHYA PRADESH)
                                    .....PETITIONER

       (BY SHRI SARVESH SHARMA - ADVOCATE )

       AND
1.     SURENDRA KUMAR S/O DEEPCHAND
       KUSHWAHA, AGED 25 YEARS,
       OCCUPATION: LABOUR, R/O      IDGAH
       BAADI, TAHSIL & DISTRICT GUNA
       (MADHYA PRADESH)
2.     DEEPCHAND S/O KANCHAN SINGH
       KUSHWAH, AGED 45 YEARS,
       OCCUPATION: LABOUR, R/O IDGAH
       BAADI, TAHSIL AND DISTRICT      GUNA
                                       2

       (MADHYA PRADESH)

                                                     .....RESPONDENTS

       (BY SHRI RAVI SHANKAR GUPTA - ADVOCATE)

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        Reserved on                           27/01/2023

       Delivered on                          14/02/2023
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       This petition coming on for admission this day, Hon'ble
Shri Justice Milind Ramesh Phadke passed the following:

                               ORDER

1. The present Petition under Article 226 of the Constitution of India had been preferred against the order dated 30/08/2022 passed in Case No. 145/2022-23/Appeal by Additional Commissioner, Gwalior, whereby the appeal preferred against the order dated 19/04/2022 passed by Sub-Divisional-Officer, Guna, wherein the order of mutation dated 28/08/2020 passed by Tehsildar in favour of the Petitioners, was setaside, was dismissed and the order passed by the Sub-Divisional-Officer was affirmed.

2. Short facts of the case are that the present Petitioners on the basis of one WILL dated 14/06/2013 executed by their father Daulatram, moved an application for mutation of their names in the revenue records u/s 109-110 of M.P. Land Revenue Code with regard to ½ share of lands bearing survey

numbers 308/1 rakba 1.004 Hect., 323 rakba 0.669 Hect., 313/1 rakba 0.774 Hect., 321 rakba 0.021 Hect., 322 rakba 1.118 Hect. And ½ portion of part of survey no. 315/2 rakba 0.021 Hect., survey no. 308/8 rakba 0.088 Hect., 308/4 rakba 0.021 Hect. situated at Gram Kasba Guna and in Gram Sakatpur, Tehsil and District Guna land bearing survey no. 210 rakba 0.878 Hect., 52/1 (52/3) rakba 0.170 Hect.

3. Vide order dated 28/08/2020 Tehsildar allowed the application and mutated the names of the Petitioner in the revenue records. Thereafter, present respondents preferred an appeal before Sub-Divisional-Officer, Guna, wherein it was contended that with regard to the lands in dispute father of present Petitioners had filed a Civil Suit No. 6A/2019, which got dismissed vide judgment dated 25/02/2020, wherein the validity of the Will executed in their favour was not gone into. It was also contended that a WILL was also executed in their by their Grandfather Daulatram and hiding all theses facts and without making the Respondents party in the mutation proceedings got their names mutated in the revenue records on the basis of WILL, which was illegal and was against the settled principle of law that on the basis of WILL mutation cannot be done by the revenue authorities. Learned Sub-Divisional- Officer after scrutinizing the matter allowed the appeal and while setting aside the order of mutation passed by the

Tehsildar, remitted that matter to Tehsildar for fresh adjudication after giving opportunity to all the parties.

4. Aggrieved the present Petitioners filed second appeal before the Additional Commissioner, which also received the same fate and the appeal was dismissed and the order passed by Sub-Divisional-Officer was upheld. Hence this Petition.

5. Learned Counsel for the Petitioners vehemently contended that since grandfather of Petitioner had during the life time of his first wife Bhuri Bai had kept Meva Bai, who cannot be said to be legally wedded wife and her children therefore cannot be said to have legal right in the property of Daulatram. It was further contended that since the Petitioners were only legitimate predecessors of Daulatram, the Respondents had no right and title to challenge the said WILL, thus, submitted that both the Appellate Courts orders are bad in Law and deserves to be set aside and the order of Tehsildar is required to be restored.

6. Per Contra Learned Counsel for the Respondents submitted that even if it is assumed that Meva Bai was not legally wedded wife of Daulatram, the children born out of the company cannot be said to be illegitimate children and they also have equal rights in the property. It was also contended that even as per provisions of section 16 of Hindu Marriage Act, such children has a right in the property and therefore, without

making them as a party in the mutation proceedings, the mutation of the names of the Petitioners done in the revenue records was not justified and the orders passed by the Appellate Courts is fully justified and cannot be faulted with.

7. Heard Counsel for the parties and perused the record.

8. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the WILL, the party who is claiming title/right on the basis of the Will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made, thus, before adjudicating the legality of the WILL it could not have been made the basis for mutation. Further as per the provisions of section 110 of M.P. Land Revenue Code it is provided that all the persons interested in acquisition of rights should be noticed and Tahsildar shall, after affording reasonable opportunity of being heard to the persons so interested and after making such further enquiry as he may deem necessary, pass orders relating to mutation, thus, since prima facie it appears that present Respondents also have interest in the property on which the Petitioner had sought mutation, they were required to be called and therefore, the findings arrived at by the Sub- Divisional-Officer dated 19/04/2022 and the order dated

30/08/2022 passed by Additional Commissioner is justified and the remittance of the matter to Tehsildar is wholly justified.

9. The Petition being sans merit deserves to be dismissed.

(Milind Ramesh Phadke) Judge 14/02/2023 Pawar/-

ASHISH PAWAR 2023.02.14 18:54:43 +05'30'