Madhya Pradesh High Court
Shantiprabha Shukla vs Kamlesh Prasad on 13 March, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 13th OF MARCH, 2023
SECOND APPEAL NO.1173 OF 2015
Between:-
1. SHANTIPRABHA SHUKLA W/O LATE
SHRI VISHWANATH SHUKLA, AGED
ABOUT 70 YEARS,
2. MANEESH SHUKLA S/O LATE SHRI
VISHWANATH SHUKLA, AGED ABOUT
40 YEARS,
3. BHARAT SHUKLA S/O LATE SHRI
VISHWANATH SHUKLA, AGED ABOUT
35 YEARS,
ALL R/O MUKTIYAAR GANJ, TEH.
RAGHURAJ NAGAR, DISTRICT SATNA
(MADHYA PRADESH)
4. JYOTI MISHRA, W/O SHRI JAGAT
NARAYAN MISHRA, D/O LATE SHRI
VISHWANATH SHUKLA R/O PATERI,
TEHSIL RAGHURAJ NAGAR, DISTRICT
SATNA (MADHYA PRADESH)
..............APPELLANTS
(BY SHRI HIMANSHU MISHRA, ADVOCATE)
AND
1. KAMLESHWAR PRASAD, S/O SHRI
VISHWANATH PRASAD, AGED ABOUT
47 YEARS,
2. FULJARIYA, W/O SHRI VISHWANATH
PRASAD, AGED ABOUT 67 YEARS,
2
BOTH R/O BHAISARAHA, TEHSIL
RAMPUR NAIKIN DISTRICT SIDHI
(M.P.)
3. STATE OF MADHYA PRADESH,
THROUGH THE COLLECTOR, SATNA
(M.P.)
............RESPONDENT
(BY SHRI S.K. MISHRA, ADVOCATE FOR RESPONDENTS 1&2)
(BY SHRI RAMJI PANDEY, GOVERNMENT ADVOCATE FOR RESPONDENT
3/STATE)
------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the Court passed the
following:
ORDER
This second appeal has been preferred by appellants/defendants
challenging the judgment and decree dated 07/08/2015 passed by 1 st
Additional District Judge, Amarpatan, District Satna in Civil Appeal No.22-
A/2011, affirming/modifying the judgment and decree dated 30/06/2010
passed by Civil Judge Class-I, Amarpatan, District Satna in Civil Suit No.86-
A/2003, whereby suit filed by the plaintiffs/respondents 1&2 for declaration
of title, permanent injunction and for declaring the order(s) of mutation null
and void was decreed by trial Court, which by some modification has been
affirmed with the further observation that the respondent 1-Kamleshwar
Prasad shall be entitled to get his name mutated in the revenue record.
2. Learned counsel for the appellants/defendants submits that after
passing of the previous judgment and decree dated 18/02/1995 (Ex.P/1)
affirmed in C.A. No.10-A/1995 vide judgment and decree dated 07/01/1998
(Ex.P/2) and further affirmed in S.A. No.154/1998 vide order dated
22/06/1998 (Ex.P/7), the respondents 1-2/plaintiffs' second/instant suit was
barred by res judicata, which has rightly been held to be barrred by first
appellate Court vide para 25 of the impugned judgment. He further submits
that after holding the second suit to be barred by res judicata, learned first
appellate Court has erred in holding the mutation order(s) to be null and void
and further erred in holding the plaintiff- Kamleshwar Prasad to be entitled
for getting his name mutated in the revenue record. In support of his
submissions, he placed reliance on the decision of coordinate Bench of this
Court in the case of Bhagwandas Vs. Shriram 2010(2) MPLJ 350. With the
aforesaid submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for respondents 1&2 supports the impugned
judgment and decree passed by the learned Courts below and prays for
dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, in the previous civil suit decided on 18/02/1995
(Ex.P/1), the rights of respondent 1/plaintiff- Kamleshwar Prasad as well as
of the appellants' predecessor Shri Vishwanath Shukla were decided and
holding the Will of the favour of Kamleshwar Prasad to be genuine, he was
found owner/bhumiswami of the land in question.
6. Looking to the civil suit No.23-A/1991, previous suit appears to have
been filed in the year 1991. It is apparent that the orders of mutation passed
in favour of Vishwanath Shukla were passed during pendency of the previous
civil suit, which attained finality by dismissal of second appeal on
22/06/1998 (Ex.P/7), therefore, the order of mutation passed in favour of
Vishwanath Shukla had lost its importance. It is also well settled that
mutation neither creates any right/title nor extinguishes the rights of real
owner.
7. So far as the decision in the case of Bhagwandas (supra) is concerned,
in this judgment no relief of declaration of title was sought and only relief in
respect of correction of revenue record was sought, therefore, coordinate
Bench of this Court has held that the question in relation to correction of
revenue record is within the exclusive jurisdiction of the revenue Court and
the suit for such relief is barred by Section 257(z-2) of the MPLRC,
therefore, in my considered opinion, the judgment in the case of Bhagwandas
(supra) is not applicable at all to the present case.
8. Further, so far as the effect of reversal of finding of res judicata by first
appellate Court is concerend, in my considered opinion in the light of
previous judgment and decree dated 18/02/1995 (Ex.P/1), which attained
finality up to the second appeal, the respondent 1/plaintiff- Kamleshwar
Prasad was not required even to file the suit for declaration of title.
9. As the respondent 1/plaintiff was held to be owner/bhumiswami of the
land in question on the basis of Will executed by his grand father, therefore,
he is entitled for mutation of his name irrespective of all the previous orders
of mutation in the name of Vishwanath Shukla, which have rightly been held
null and void by learned Courts below.
10. In view of the aforesaid discussion, in my considered opinion, there is
no substantial question of law involved in the second appeal, therefore, it
fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.
11. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
RS JUDGE
RASHMI Digitally signed by RASHMI RONALD VICTOR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH, ou=HIGH COURT OF MADHYA
PRADESH, postalCode=482001, st=Madhya
RONALD
Pradesh,
2.5.4.20=dcca7715f3f684c24752dbb505e5b1
86c02289cadaa753ee20545e7ad1b52d64,
pseudonym=625746E87FF4AC3C6DB695A8
AAC47B69FE61026F,
VICTOR
serialNumber=9EBC5CA1D2C50306E16173E
A7E3552F54DAFD50DD81AA3585D181CA58
585377A, cn=RASHMI RONALD VICTOR
Date: 2023.03.14 10:49:44 +05'30'
