Smt.Manki Bai vs The State Of Madhya Pradesh
2024 Latest Caselaw 21246 MP

Madhya Pradesh High Court

Smt.Manki Bai vs The State Of Madhya Pradesh on 6 August, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                               1                           W.P.No. 3470 of 2023


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                      BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
             ON THE 6th OF AUGUST, 2024
                   WRIT PETITION No. 3470 of 2023
                SMT.MANKI BAI AND OTHERS
                         Versus
        THE STATE OF MADHYA PRADESH AND OTHERS

Appearance:
  Shri Pravesh Naveriya - Advocate for the petitioners.
  Shri Abhishek Singh - Government Advocate for respondents no. 1 to 3 / State.
  Shri Prakash Gupta - Advocate for respondent no. 4.

                                   ORDER

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-

(i) The Hon'ble Court may kindly issue directions that impugned order dated 06/04/2022 passed by the Respondent No.1 i.e. Annexure P/12 may kindly be quashed and set aside.

(ii) The Hon'ble Court may kindly issue directions that impugned order dated 04/03/2020 passed by the Respondent No.2 i.e. Annexure P/9 may kindly be quashed and set aside.

(iii) The Hon'ble Court may kindly issue directions that impugned order dated 22/05/2019 passed by the Respondent No.3 i.e. Annexure P/7 may kindly be quashed and set aside.

(iv) To allow the cost of case in favour of petitioner.

(v) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition.

2. For effective disposal of this writ petition, the discussion of facts in detail is not required.

3. Nando Bai, her sons Sumrat, Surat, Suraj and two others namely Sunita and Somta filed a suit for declaration in respect of Khasra no. 43 area 6.621 hectares, Khasra no. 87 area 3.550 hectare, Khasra no. 156 area 0.125 hectares and Khasra no.240 area 1.173 hectares, total area 11.469 hectares, allegedly claiming that they have 1/6th share in the said property. By judgment and decree dated 9.8.2012 Civil Suit No. 49-A/11 was decreed by Second Civil Judge Class-II, Betul and it was decreed that Nando Bai has 1/6th share in the property in dispute. It appears that this decree was never challenged and attained finality. It appears that thereafter an application for mutation of names of legal representatives of Nando Bai was filed which was allowed by order dated 22.5.2019 passed by Naib Tahsildar, Betul in Case No.142/A-6(2)/2017-18.

4. Being aggrieved by the said order, the petitioners preferred an appeal before the S.D.O. Betul which was dismissed by order dated 4.3.2020 passed in Appeal No. 45/Appeal/2019-20. The order passed by the S.D.O. was unsuccessfully challenged by the petitioners before the Additional Commissioner, Narmadapuram Division, Narmadapuram in Appeal No. 117/Appeal/2020-21 which was dismissed by order dated 6.4.2022. The orders dated 6.4.2022; 4.3.2020 and 22.5.2019 passed by the Additional Commissioner, Narmadapuram Division, Narmadapuram, S.D.O. Betul and Naib Tahsildar, Betul are the subject matter of challenge in this writ petition.

5. Challenging the orders passed by the Revenue Courts, it is submitted by counsel for the petitioners that although share of Nando Bai to the extent of 1/6th in the disputed property was declared by the Civil Court but without there being any partition, name of Nando Bai or her legal representatives cannot be recorded in the revenue records. Furthermore, application for mutation should have been filed within a period of six months as required under section 109 of MPLR Code. Furthermore, no notice as required under Section 110 (4) of MPLR Code was given to the petitioners who are the interested parties. Although, the petitioners had assailed the order passed by the Naib Tahsildar on various grounds but the Appellate authorities did not give any independent finding and they have merely upheld the finding given by the Naib Tahsildar.

6. Per contra, the petition is vehemently opposed by counsel for the respondents no. 4 to 8. It is submitted that once the share of Nando Bai was already declared by the Civil Court which attained finality, then she or her legal representatives are entitled to get their names mutated in the revenue records to the extent of 1/6th share and if the petitioners want the mutation of their name in respect of any specific piece of land, then they should file an application for partition.

7. So far as the submission with regard to delay in filing an application under Section 109 of MPLR Code is concerned, it is submitted that once the title of Nando Bai was already declared by the Trial Court, then even if the application was not filed within a

period of 6 months from the date of acquisition of rights, still it would not extinguish the title of the respondents no. 4 to 8. It is further submitted that since the petitioners were party in the civil suit and the decree was passed in their presence, therefore, they were aware of the fact that share of Nando Bai to the extent of 1/6th has already been declared. Thus, it is clear that even if no notices were served on the petitioners, still it would not take away any valuable rights of the petitioners.

8. It is further submitted that so far as the manner of deciding the appeal is concerned, since the petitioners have no right to claim ownership in respect of 1/6th share of Nando Bai, therefore, it is clear that no irregularity was committed by the Revenue Courts by directing for mutation of names of legal representatives of Nando Bai in the revenue records.

9. Heard learned counsel for the parties.

(i) Whether the mutation cannot be done without partition?

10. The Trial Court by judgment and decree dated 9.8.2012 passed in civil suit no. 49A/11 has passed the following decree :-

"xzke Vseuh rglhy ftyk cSrwy fLFkr 43 jdck 6-621 gS] [k0u0 87] jdck 3-550 gså] [k0u0 156 jdck 0-125 gså] [kåu 24 jdck 1-173 gs0 dqy jdck 11-469 gs0 esa ewy iw:"k :iflag dh iq=h uanksckbZ 1@6 va'k dh LoRokf/kdkjh gSA"

11. Thus, it is clear that by the aforesaid decree, share of Nando Bai to the extent of 1/6th in the disputed property was declared by the Trial Court. The mutation is not a document of title. Since, the respondents no. 4 to 8 who are legal representatives of Nando Bai

have 1/6th share in the property, therefore, they are entitled to get their names mutated to the extent of 1/6th share in the ancestral property. It is not the case of the petitioners that without partition, the names of the respondents no. 4 to 8 have been recorded in respect of any specific piece of land. Therefore, it is incorrect to say that without partition, the name of Nando Bai or her legal representatives cannot be recorded in the revenue records being coparcener.

(ii) Whether the delayed application will extinguish the title of the decree holder?

12. Section 109 (1) of MPLR Code reads as under :-

109. Acquisition of rights to be reported.

(1)Any person lawfully acquiring any right or interest in land shall report his acquisition of such right within six months from the date of such acquisition in the form prescribed -

(a) to the Patwari or any person authorised by the State Government in this behalf or Tahsildar, in case of land situated in non-urban area;

(b) to the Nagar Sarvekshak or any person authorised by the State Government in this behalf or Tahsildar, in case of land situated in urban area :

Provided that when the person acquiring the right is a minor or is otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Patwari or Nagar Sarvekshak or the person authorised or the Tahsildar."

13. It is well established principle of law that mutation entry is not a document of title and it is meant only for fiscal purposes. Even if an application for mutation on acquisition of right is not filed

within a period of 6 months from the date of such acquisition, still it would not extinguish the title of respondents no. 4 to 8. Accordingly, the delay in filing an application under section 109 (1) of MPLR Code would not adversely affect the title of respondents no. 4 to 8 and once they are title holder, they are entitled to get their names mutated in the revenue records.

(iii) Whether any notice was required before passing an order of mutation?

14. It is the contention of the petitioners that they were interested parties; therefore, in the light of Section 110 (4) of MPLR Code, they were required to be heard before passing an order of mutation.

15. Person interested means persons whose rights are involved in the property in dispute. So far as the rights of the parties are concerned, they have already been declared by the Trial Court by judgment and decree dated 9.8.2012 passed in Civil Suit No. 49-A/11. Undisputedly, the petitioners were party to the said civil suit. Once the rights have been decided in the presence of the petitioners, then the petitioners cannot claim that for mutation of names of respondents no. 4 to 8 on the basis of such decree, they were necessary party specifically when the property has not been partitioned and only the names of respondents no. 4 to 8 have been recorded in the revenue records being coparcener in the property in the dispute.

16. It is well established principle of law that violation of principle of natural justice by itself is not sufficient to set aside the order, unless and until a prejudice is caused to the person making

complaint of violation of principle of natural justice. Since, the rights of the petitioners have already been declared by the Trial Court which has attained finality, therefore, even if no notices were issued to the petitioners, still it cannot be said that the mutation proceedings were bad in law.

(iv) Whether the Appellate Court should decide the appeal in cursory manner and they should deal with each and every ground raised by the appellants?

17. Counsel for the petitioners is right in submitting that whenever an appeal is filed, the Appellate Court is under obligation to consider the grounds raised by the petitioners. But it is submitted that the Appellate Authorities have merely affirmed the finding given by the Naib Tahsildar, Betul.

18. The aforesaid submission cannot be accepted for the reason that Additional Commissioner, Narmadapuram Division, Narmadapuram as well as S.D.O. Betul have taken note of the decree passed by the Trial Court and in view of declaration of title of Nando Bai, they have rightly held that names of respondents no. 4 to 8 were liable to be mutated in the revenue records. Even this Court is deciding this petition in the light of the judgment and decree passed by the Civil Court. Thus, it cannot be said that any of the Appellate Authorities i.e. Additional Commissioner, Narmadapuram Division, Narmadapuram and S.D.O. Betul have decided the appeal without ad-hearing to the controversy involved in the case.

19. No other argument is advanced by counsel for the petitioners.

20. As no jurisdictional error was committed by the Naib Tahsildar, Tahsil Betul, S.D.O. Betul and Additional Commissioner, Narmadapuram Division, Narmadapuram, therefore, order dated 22.5.2019 passed by Naib Tahsildar in Revenue Case No. 0142/A- 6 (2)/2017-18, order dated 4.3.2020 passed by S.D.O. Betul, District Betul in Appeal No.45/Appeal/2019-20 and order dated 6.4.2022 passed by Additional Commissioner, Narmadapuram Division, Narmadapuram in Appeal No.117/Appeal/2020-21, respectively, are hereby affirmed.

21. The petition fails and is hereby dismissed.

(G. S. AHLUWALIA) JUDGE

JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a, postalCode=482001, st=Madhya Pradesh,

PAROUHA serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B19143A D99, cn=JITENDRA KUMAR PAROUHA Date: 2024.08.07 18:10:49 +05'30'

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