Ayub Khan vs Additional Commissioner ...
2023 Latest Caselaw 8457 MP

           1


   IN THE HIGH COURT OF MADHYA PRADESH

                    AT G WA L I O R
                          BEFORE
         HON'BLE SHRI JUSTICE ANAND PATHAK

                 ON THE 13th OF JUNE, 2023

               MISC. PETITION No. 2393 of 2023

BETWEEN:-
AYUB KHAN S/O LT SHRI NAZIR KHAN, AGED
ABOUT 47 YEARS, OCCUPATION: AGRI. R/O-
WARD NO. 2 NAI BASTI KURWAI TAHSIL
KURWAI   DISTRICT    VIDISHA  (MADHYA
PRADESH)
                                             .....PETITIONER
(BY SHRI ANIL KUMAR MISHRA -ADV0CATE)

AND
1. ADDITIONAL     COMMISSIONER    BHOPAL
    DIVISION, BHOPAL (MADHYA PRADESH)
   RAJU KHA S/O LATE SHRI NAJEER KHA,
2.
   AGED ABOUT 45 YEARS, OCCUPATION:
   AGRICULTURIST R/O- VILLAGE KURWAI
   KRASHAK VILLAGE JARGUAVA TAHSIL
   KURWAI DISTRICT VIDISHA (MADHYA
   PRADESH)
3. SARDAR KHAN S/O LATE SHRI NAZIR KHAN
   (DIED) THROUGH ITS REPRESENTATIVES

  (A) MUBARIK KHAN S/O LATE SHRI NAZIR
  R/O WARD NO. 2 NAI BASTI KURWAI TAHSIL
  KURWAI DISTRICT VIDISHA (MADHYA
  PRADESH)

  (B) ANWAR KHAN S/O LT. SHRI NAZIR, R/O
  WARD NO. 2 NAI BASTI KURWAI TAHSIL
               2


     KURWAI DISTRICT             VIDISHA    (MADHYA
     PRADESH)

     (C) FAREEDA BI D/O LT. SHRI NAZIR, R/O-
     WARD NO. 2 NAI BASTI KURWAI TAHSIL
     KURWAI DISTRICT VIDISHA (MADHYA
     PRADESH)
4.
     MANNO BI D/O LATE SHRI NAZIR KHAN
     (DIED) THROUGH ITS REPRESETATIVES


     (A) AHMED KHAN S/O SHRI CHOTU KHAN
     R/O- VILL. CHATOLI THASIL SIRONJ
     DISTRICT VIDISHA (MADHYA PRADESH)

     (B) SHAKILA BI D/O- SHRI CHOTU KHAN, R/O
     VILL. CHATOLI THASIL SIRONJ DISTRICT
     VIDISHA (MADHYA PRADESH)
   BANNO BI W/O- MUBIN KHAN R/O-
   VILLAGE     MUNGAWALI      KIRMANI
5.
   MOHALLA TEHSIL MUNGWALI DISTRICT
   ASHOKNAGAR (MADHYA PRADESH)
   RAJDA BI W/O SHRI HASMA KHAN    R/O
   VILL.         ROJRU          THASIL
6.
   GANJBASODADISTRICT VIDISHA (MADHYA
   PRADESH)
                                                           .....RESPONDENTS
(BY SHRI MAN SINGH JADOUN - GOVERNMENT ADVOCATE)
       This petition coming on for hearing this day, the court passed the

following:

                                       ORDER

The present petition under Article 227 of the Constitution has been filed by the petitioner for seeking fallowing relief:-

"(i) That, the impugned order dated 21/03/2023 (Annexure P/1) may kindly be

set aside in the interest of justic.

(ii) Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case same may kindly be granted to the petitioner."

2. Precisely stated facts of the case are that the petitioner is a nephew of the respondent No.2. The case under Sections 109 and 110 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred as 'Code') has been registered before the court of Tahsildar, Kurwai, District Vidisha which was decided in favour of the petitioner. Respondent No.2 presented the case dated 04.10.2021 under Sections 109 and 110 of the Code on the basis of registered Will in respect of surveys numbers as mentioned in the petition.

3. Here the respondent No.2 again filed the civil suit No.RCS A7/2022 before Civil Judge Senior Division, Kurwai, District Vidisha and application under Order 39 Rule 1 and 2 of CPC was also filed for injunction and same was decided in favour of the present petitioner.

4. It is the submission of the learned counsel for the petitioner that the respondent No.2 is trying to misuse the process and just to harass the present petitioner filed an appeal under Section 44 of the Code before the Sub-Divisional Officer, Kurwari and same was also decided in favour of the present petitioner. After rejection of appeal, second appeal was also filed under Section 44 (2) of the Code and respondent No.1/Additional Commissioner passed the order dated 21.03.2023, therefore, petitioner is

before this Court.

5. It is the submission of the learned counsel for the petitioner that Additional Commissioner, Bhopal erred in passing the impugned order and causing illegality ignoring the principles of Muslim Law whereby more than 1/3 part of the assets cannot be bequeathed and inheritance opens only after the death of the Muslim. Nobody can become heir to living person. Will to the extent 1/3 part of the bequeath-able property is allowed. He referred the order dated 15.03.2023 passed in Writ Petition No.2578/2022 (Geeta Paliwal and others Vs. Sitaram and others) in support of his submission.

6. Learned Government Advocate for the State opposed the prayer and supported the impugned order and he prayed for dismissal of this petition.

7. From the perusal of the impugned order dated 21.03.2023, it appears that since a matter pertains to Will vis-a-vis the respective claims of the petitioner, therefore, Additional Commissioner, Bhopal set aside the order dated 18.05.2022 passed by the Sub-Divisional Officer, Kurwari, District Vidisha as well as order dated 28.12.2021 passed by the Tahsildar, Kurwai, District Vidisha. Additional Commissioner gave the liberty to the parties to file to file civil suit before the civil court on the basis of Will vis-a-vis Muslim Law. Rights of the parties can only be crystallized by way of civil suit because it has the necessary paraphernalia and training to adjudicate the respective rights.

8. Full Bench of this court in the case of Ram Gopal Kanhaiyalal

Vs. Chetu Batte reported in AIR 1976 MP 160 and judgment of the Division Bench of this Court in the case of Hariprasad Bairagi Vs. Radheshyam and others reported in 2021 (2) Revenue Nirnay 217 and in the case of Murari and another Vs. State of M.P. and others reported in 2020 (4) MPLJ 139 and the judgment of Apex Court in the case Rohini Prasad and others Vs. Kasturchand and another reported in AIR 2000 SC 1283, it appears that this aspect has been clearly spelt out by the Apex Court as well as this Court from time to time.

9. Civil Court is the best available forum in this regard for adjudication of respective right, title and interest of the parties.

10. Accordingly, the petition sans merits and is hereby dismissed.

(ANAND PATHAK) JUDGE Rashid

RASHID Digitally signed by RASHID KHAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=23377d7d214c811801fc322b576ca4ed1954237f632441

KHAN 6af3985b5e9940ed42, pseudonym=D0D045404B6F6AB1225B3600B86B72153386BADD, serialNumber=111CC474A72B078DC9A89F3CB13BB668FD8E0E9 1BEDA3CB721BBD836D768B09C, cn=RASHID KHAN Date: 2023.06.20 17:33:21 +05'30'