Amar Singh Jatav vs Munshi Lal
2023 Latest Caselaw 2925 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                                  AT GWALIOR
                                       BEFORE
      HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                      ON THE 17th OF FEBRUARY, 2023
            MISCELLANEOUS PETITION NO.2558 OF 2020

BETWEEN:-

1.     AMAR SINGH, S/O SHRI CHAMPALAL
       JATAV, AGED 42 YEARS, OCCUPATION
       AGRICULTURIST,     R/O   BAJARIYA
       MOHALLA, ISAGARH, DISTRICT GUNA
       (MADHYA PRADESH).
2.     RAMDAYAL, S/O SHRI KOMAL JATAV,
       AGED    58    YEARS,   OCCUPATION
       AGRICULTURIST,     R/O   BAJARIYA
       MOHALLA, ISAGARH, DISTRICT GUNA
       (MADHYA PRADESH).
3.     SUMITRA BAI, WD/O CHAMPALAL JATAV,
       AGED    63    YEARS,   OCCUPATION
       AGRICULTURIST,     R/O   BAJARIYA
       MOHALLA, ISAGARH, DISTRICT GUNA
       (MADHYA PRADESH).
                                                                 ........PETITIONERS

(BY SHRI VILAS TIKHE - ADVOCATE)

AND

1.     MUNSHILAL, S/O SHRI KOMAL JATAV,
       AGED 53 YEARS, R/O ISAGARH, DISTRICT
       GUNA (MADHYA PRADESH).
2.     RATANLAL, S/O SHRI KOMAL JATAV,
       AGED 55 YEARS, R/O ISAGARH, DISTRICT
       GUNA (MADHYA PRADESH).

                                                               ........RESPONDENTS

(SHRI R.P. SINGH - ADVOCATE FOR RESPONDENT NO.1)
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Reserved on                           :       24th of January, 2023
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Pronounced on                         :       17th of February, 2023
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       This petition having been heard and reserved for orders, coming
on for pronouncement this day, Hon'ble Shri Justice Satyendra Kumar
Singh pronounced the following:
                                       ORDER

This petition, under Article 227 of the Constitution of India, has been preferred against the order dated 13/2/2020, passed by the Court of Collector, District Ashok Nagar in revision case No.0035/ Revision/ 2019-20, whereby the order dated 13/9/2019, passed by the Court of Sub-Divisional Officer, Isagarh, District Ashok Nagar in appeal No.14/Appeal/2019-20, allowing petitioners' application filed under Section 5 of the Limitation Act, was set aside and the appeal filed by the petitioners was also dismissed.

2. Brief facts giving rise to this petition are that the land bearing survey no.164/1 (admeasuring 1.950 hectare) and survey no.166/4 (admeasuring 1.900 hectare), situated at village Isagarh, District Ashok Nagar, were the undivided coparcenery property of the petitioners and respondents. Tahsildar, Isagarh vide order dated 09/09/2011, passed in partition case No.10/A3/16-17, partitioned the aforesaid lands and mutated the land bearing survey no.164/1, which is adjacent to the road, in the name of the respondents, whereas the land bearing survey no.166, which is situated at the backside of the above land and would fetch less value, was mutated in the name of the petitioners. Being aggrieved by the said order, petitioners filed an appeal No.14/Appeal/2019-20 alongwith an application u/S 5 of Limitation Act, before the Court of Sub-Divisional Officer, Isagarh, stating therein, that the said mutation

order was passed in their absence, and on 12/6/2019, when they were restrained to perform the agricultural activities on the land bearing survey no.164/1, and sought information from the concerned Halka Patwari, then they came to know that the land bearing survey no.164/1 was mutated in the name of the respondents. Petitioners after getting certified copy of the partition order dated 9/9/2011, filed the aforesaid appeal on 17/6/2019. Learned Appellate Court vide order dated 13/9/2019, allowed the petitioners' application filed under Section 5 of the Limitation Act and admitted the aforesaid appeal for hearing on merits. Being aggrieved by the said order dated 13/9/2019, respondents preferred revision No.0035/Revision/2019-20 before the Court of Collector, District Ashok Nagar, who vide impugned order dated 13/2/2020 allowed the revision and rejected the petitioners' application filed under Section 5 of the Limitation Act and also the appeal filed by them, on the ground that the petitioners were having knowledge of the partition order passed by the Tahsildar Isagarh, as they participated in the partition proceedings.

3. Learned counsel for the petitioners by referring the judgment passed by Hon'ble the Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, 1998 (7) Supreme 209 submits that once the Court accepts the explanation as sufficient and condoned the delay, then normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. Appellate Court, i.e. the Court of Sub-Divisional Officer, Isagarh, while exercising discretion allowed the petitioners' application filed under Section 5 of the Limitation Act and condoned the delay. The impugned order passed by

the Revisional Court is unsustainable. Petitioners were not having knowledge about the partition order. The property in dispute is still in possession of the petitioners and order of partition has not been given effect. Petitioners never appeared in the partition proceedings conducted by the Tahsildar, Isagarh. Hence, the impugned order is liable to be set aside and may be set aside.

4. Learned counsel for the respondents by referring to the judgment passed by Hon'ble the Apex Court in the cases of Mohd. Yunus Vs. Mohd. Mustaqim and others, (1984) AIR (SC) 38 and M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., (2001) AIR (SC) 3295 submits that the scope of Article 227 of the Constitution of India is very limited and is restricted to the cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. High Court can set aside or ignore the findings of facts of inferior Court or Tribunal if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or Tribunal has come to. In the instant case, it is apparent from the proceedings of the Court of Tahsildar, Isagarh that the petitioners were present and participated in the said proceedings. They have not given any satisfactory explanation about the delay caused in filing the appeal. Therefore, the order condoning the delay in filing the appeal passed by the Appellate Court without giving any reason was liable to be set aside, hence, vide impugned order learned Revisional Court set aside the same. Therefore, the power under Article 227 of the Constitution of India is not required to be exercised in the matter. The petition is devoid of merits, hence, it may be dismissed.

5. Heard learned counsel for both the parties at length and perused the record.

6. Admittedly, petitioners and respondents were joint owners of the disputed lands i.e. the land bearing survey no.164/1 (admeasuring 1.950 hectare) and survey no.166/4 (admeasuring 1.900 hectare), situated at village Isagarh, about which Tahsildar, Isagarh, in partition case No.10/A3/16-17, passed an order dated 09/09/2011 and mutated the land bearing survey no.164/1, in the name of the respondents, and the land bearing survey no.166, in the name of the petitioners. Being aggrieved by the said order, after about 8 years of the passing of the said order, the petitioners filed an appeal bearing No.14/Appeal/2019-20 alongwith an application u/S 5 of Limitation Act, before the Court of Sub-Divisional Officer, Isagarh.

7. Learned Appellate Court i.e. the Court of Sub-Divisional Officer, Isagarh, vide order dated 13/9/2019, allowed the petitioners' application filed under Section 5 of the Limitation Act and admitted the petitioners' appeal for hearing on merits. Upon perusal of the aforesaid order dated 13/9/2019, it is apparent that the petitioners' application, filed under Section 5 of the Limitation Act, was not decided on merit, as the order allowing the application was not a reasoned order. Relevant part of the said order is as under:

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8. Since the order dated 13/9/2019, passed by the Court of Sub- Divisional Officer, Isagarh, allowing the petitioners' application, filed u/S 5 of Limitation Act, was not decided on merit, therefore, the same was liable to be set aside. Hence, the learned Revisional Court i.e. the Court of Collector, District Ashok Nagar, has not committed any illegality or irregularity in setting aside the aforesaid order 13/9/2019, passed by the Court of Sub-Divisional Officer, Isagarh, and to that extent impugned order dated 13/2/2020, passed by the Court of Collector, District Ashok Nagar, in revision case No.0035/ Revision/2019-20, is liable to be affirmed. The judgement passed by Hon'ble the Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (Supra), cited by the learned counsel for the petitioners, is of no assistance to the petitioners as Hon'ble the Apex Court has nowhere debarred the jurisdiction of the revisional courts to entertain revision filed against the order of condonation of delay. Hon'ble the Apex Court has only held that once the Court accepts the explanation as sufficient and condoned the delay, then normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.

9. So for as the other part of the impugned order dated 13/2/2020, relating to dismissal of petitioners' application filed u/S 5 of Limitation Act alongwith dismissal of their appeal is concerned, the same has been passed on the ground that the petitioner no.2, Ramdayal appeared and participated in the proceedings of partition case bearing No.10/A3/16-

17. The petitioners, in their application filed u/S 5 of Limitation Act, have specifically stated that the partition order dated 09.09.2011, passed

by the Tahsildar, Isagarh, in partition case No.10/A3/16-17, was passed in their absence, and on 12/6/2019, when they were restrained to perform the agricultural activities on the land bearing survey no.164/1, and sought information from the concerned Halka Patwari, then they first time came to know that the land bearing survey no.164/1 was mutated in the name of the respondents.

10. In view of the above, the impugned order dated 13/2/2020, relating to dismissal of the petitioners' application filed u/S 5 of limitation Act alongwith dismissal of their appeal, apparently appears illegal, as before passing such an order, an opportunity had to be provided to the petitioners to establish their explanation, given by them with regard to the delay caused in filing their appeal. The learned Revisional Court, without sending back the case to the appellate court to give opportunity to the petitioners to establish the aforesaid facts, has dismissed their application. Hence, the second part of the impugned order, relating to dismissal of petitioners' application filed u/S 5 of Limitation Act alongwith their appeal, passed only on the basis of inference drawn from the proceedings of partition case about the participation of one of the petitioner, is unsustainable and liable to be set aside.

11. Thus, the petition is partly allowed and the impugned order dated 13/2/2020, passed by the learned Revisional Court i.e. the Court of Collector, District Ashok Nagar, in revision case No.0035/ Revision/2019-20, with regard to setting aside the order dated 13/9/2019, passed by the Court of Sub-Divisional Officer, Isagarh, in appeal bearing No.14/Appeal/2019-20 is hereby affirmed, while second part of the impugned order dated 13/2/2020, passed by the Revisional

Court, with regard to dismissal of petitioners' application filed u/S 5 of Limitation Act alongwith their appeal is set aside.

12. Cosequently, the matter is remitted back to the Appellate Court i.e. the Court of Sub-Divisional Officer, Isagarh, District Ashok Nagar, with a direction to reconsider the petitioners' application, filed u/S 5 of Limitation Act and pass a reasoned order, after providing opportunity of hearing and to produce evidence, if required, to both the parties.

(SATYENDRA KUMAR SINGH) JUDGE Arun* ARUN KUMAR MISHRA 2023.02.17 17:15:13 +05'30'