Ravindra Kumar Rajak vs Rakesh Prasad
2023 Latest Caselaw 8847 MP

                                           1
      IN    THE       HIGH COURT OF MADHYA PRADESH
                            AT GWALIOR
                                BEFORE
                  HON'BLE SHRI JUSTICE ANAND PATHAK
                            ON THE 15 th OF JUNE, 2023
                        MISC. PETITION No. 2938 of 2023

BETWEEN:-
RAVINDRA KUMAR RAJAK S/O LATE SHRI RAMJEET RAJAK,
AGED   ABOUT  47  YEARS, R/O 09 NAWAB COLONY,
HARISHANKARPURAM MAHALGAON, GWALIOR (MADHYA
PRADESH)

                                                                        .....PETITIONER
(BY SHRI RAJENDRA SHAKYA-ADVOCATE)

AND
1.    RAKESH PRASAD S/O DEVIPRASAD, AGED ABOUT 48
      YEAR S , R/O ATHAI KE PASS RASOOLABAD, HAZIRA,
      GWALIOR (MADHYA PRADESH)

2.    KU. SHIVANGI PRASAD D/O SHRI RAKESH PRASAD, AGED
      ABOUT 21 YEARS, ASTHAI KE PASS RASULABNAD HAJIRA
      (MADHYA PRADESH)

3.    KU. HARSHITA PRASAD D/O SHRI RAKESH PRASAD, AGED
      ABOUT 9 YEARS, ASTHAI KE PASS RASULABNAD HAJIRA
      (MADHYA PRADESH)

4.    SAKSHAM PRASAD S/O SHRI RAKESH PRASAD, AGED
      ABOUT 16 YEARS, ASTHAI KE PASS RASULABNAD HAJIRA
      (MADHYA PRADESH)

                                                                     .....RESPONDENTS
(NONE FOR RESPONDENT)

      This petition coming on for admission this day, the court passed the following:
                                        ORDER

Heard on admission.

1. The present petition is preferred under Article 227 of the Constitution of India taking exception to order dated 9.5.2023 passed by Additional Commissioner Gwalior,

Division Gwalior whereby, the appeal preferred by petitioner has been rejected and order dated 26.04.2022 passed by SDO Jhansi Road Gwalior has been affirmed.

2. From the pleadings and documents, it appears that mother of petitioner namely Smt. Vimla Devi (since deceased) executed a power of attorney in favour of petitioner on 17.08.2017 to take care of property mentioned into it. As submitted by counsel for petitioner, the said power of attorney was actually a type of Will by which rights regarding property was being mutated in favour of petitioner.

3. A case was registered by one Smt. Vimal Prabhakar against the parents of petitioner. Later on, compromise decree was passed vide judgment and decree dated 8.9.2017. Judgment and decree filed as Annexure P/5. On the basis of said judgment and

decree, petitioner mutated the property in his name by moving an application before Tehsildar and Tehsildar Gwalior vide order dated 18.08.2021 mutated the land on the basis of alleged Will executed in favour of petitioner.

4. Challenging the said order of Tehsildar, respondents filed the appeal before SDO on the ground that they were never given any chance to appear in the mutation proceeding before the Tehsildar and as well as the fact that Will is forged and fabricated. SDO considered the submissions and remanded the matter back to the Tehsildar to hear the parties afresh and thereafter decide in accordance with law. Commissioner supported the order of SDO, therefore, petitioner preferred this petition .

5. Counsel for petitioner raised the point that order passed by authority is arbitrary and illegal.

6. Heard.

7. It is a case where petitioner is taking exception to order dated 9.5.2023 passed by Commissioner and order dated 26.04.2022 passed by SDO. Both the orders referred the matter for fresh hearing and remanded it to the Tehsildar for adjudication after giving opportunity of hearing to the parties.

8. On close scrutiny, it appears that Tehsildar proceeded without giving opportunity of hearing to the respondents and caused grave illegality to the extent where right of respondents to participate in the proceedings was hindered. Besides that Tehsildar did not consider the case from the perspective that matter pertains to mutation on the basis of a Will which is otherwise contested by the respondents. Therefore, appropriate forum for adjudication is before civil court.

All these aspects are required to be looked into. Therefore, no illegality has been caused by the Commissioner while affirming the order of SDO and while remanding the matter back to the Tehsildar for fresh adjudication. It is the duty of Tehsildar to act fairly and with transparency after giving opportunity of hearing to both the parties.

Petition sans merit and is hereby dismissed.

(ANAND PATHAK) JUDGE Van

VANDANA VERMA 2023.06.15 19:00:32 -07'00'