Idel Of Kapileswar Mahadev Kapildhara ... vs The State Of Madhya Pradesh
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Madhya Pradesh High Court

Idel Of Kapileswar Mahadev Kapildhara ... vs The State Of Madhya Pradesh on 6 August, 2024

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

                                    1                  W.P. No.12775/2007


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
        HON'BLE SHRI JUSTICE G. S. AHLUWALIA
               ON THE 6th OF AUGUST, 2024
             WRIT PETITION No. 12775 of 2007
  IDEL OF KAPILESWAR MAHADEV KAPILDHARA NARMADA
                 CHETRA AMARKANTAK
                          Versus
      THE STATE OF MADHYA PRADESH AND OTHERS

Appearance:
 Shri P.N. Pathak- Advocate for petitioner.
 Shri Abhishek Singh- Government Advocate for the respondent/State.
 Shri Shafiqullah- Advocate for respondent No. 3.

                                 ORDER

This petition under Article 226/227 of Constitution of India has been filed seeking the following reliefs:-

"(i) The Hon'ble High Court be pleased to set aside/ quash the impugned order dated 20.07.2007 passed in Revenue Case No.06/aa 25-2006-07 by the Naib Tehsildar Pushprajgarh, Annex.P-1, and declare that the entire properties gifted through registered Gift Deed dated 30.12.1965 Annex.P-3, i.e. land bearing Khasra No.209 area 1.14 acre, 210 area 4.89,213 area 0.91,257 area 4.42,259 area 4.35,276 area 1.34,156 area 0.08, 255 area 1.83,162 area 2.41,207 area 3.33 total 10 number total area 24.70 acre situated in village Damgarh, Tehsil Pushprajgarh, Dist.Annuppur (M.P.) is owned and possessed by the petitioner deity through Shebait Swami Sukhdevanandji.

(ii) The Hon'ble High Court be further pleased to restrain the respondents from interfearing the peaceful possession of the petitioner over the said properties directly or through any agent, officer or anyother agency and to quash any mutation order in favour of any other person other than the petitioner in relation to the aforesaid properties.

(iii) To pass anyother order in favour of the petitioner as deemed fit, in the facts and circumstance of the case, including the cost of this litigation."

2. It is submitted by counsel for petitioner that one Ganga Singh who was the disciple of Sachidanandji was the owner of the land in dispute. By gift-deed dated 30th December, 1965, 24.70 acres of land was gifted by Ganga Singh to Kapil Dhara Ashram. It was mentioned that his Guru Parampoojya Swami Sachidanandji has expired and his disciple Deogiri Baba is residing in Kapil Dhara and is performing Pooja in Kapileshwar Mahadeo Swami, therefore, he is gifting the property mentioned in the gift deed, to the temple. It is submitted that Shri Deogiriji expired on 1986 and thereafter Devanandji executed a will in favour of Sukhdewanandji and now Sukhdewanandji has expired by bequeathing his property to Ashok Kumar Dubey. It is submitted by counsel for petitioner that respondents No. 2 and 3 got their names mutated in the revenue records. However, in the year, 1993-94, the names of respondents No. 2 and 3 were deleted and the name of petitioner was recorded in the revenue record. By referring to a recommendation made by SDO (Revenue) Pushprajgarh, dated 29.10.2002, it is submitted that even the SDO (Revenue), Pushparajgarh has mentioned that the properties are recorded in the name of petitioner. It is submitted that however a proceeding under Section 176 of MPLR Code was initiated and it was held that whereabouts of respondents No. 2 and 3 are not known for last more than three years. They are not carrying out the agricultural activities and have abandoned the land and thus, the land in question i.e. Khasra No. 162, 207, 209, 210/1, 213 and 257, total area 6.921 hectares situated in Village Daygarh was declared as government land. It is submitted by counsel for petitioner that by gift deed executed

by Ganga Singh in the year 1965, multiple properties were gifted by him including the aforesaid properties. The petitioner was a necessary party but no notice was given to the petitioner in the proceedings which were initiated under Section 176 of MPLR Code. Even the witnesses who were examined in the said proceedings had stated that Sukhdevanandji is carrying out the agricultural activities, still no notice was given to Sukdevanandji. Accordingly, it is prayed that the order dated 20.07.2007 passed by Naib Tehsildar, Circle Amarkantak, Tehsil Pushparajgarh, District Anuppur in Revenue Case No. 6/A-25/2006-07 be quashed.

3. Per contra, the petition is vehemently opposed by counsel for State. It is submitted that respondent No. 2 was the owner of the property in dispute and once he had abandoned the said property and did not carry out the agricultural activities for two years, therefore, it was rightly declared as a government land in exercise of powers given under Section 176 of MPLR Code.

4. The counsel for respondent No. 3 submitted that respondent No. 3 has also filed a suit for declaration of title.

5. Considered the submissions made by counsel for parties.

6. The petitioner has not filed any document to show that Ganga Singh was the owner of the property in dispute, and the petitioner has only filed a Khasra Khatoni of Samwat, 1953 i.e. of the year, 1926 to show that the land was recorded in the name of Moti Singh S/o Uday Singh. Whether Ganga Singh was the S/o Moti Singh is not known. Further there is nothing on record to show that Moti Singh was survived by how many legal heirs. No document has been filed to show that the land was ever recorded in the name of Ganga Singh. Therefore, when the ownership of Ganga Singh has not been prima facie established by

the petitioner, then it is difficult for this Court to hold that the gift deed dated 30.12.1965 had transferred the title in favour of the petitioner.

7. Even otherwise, if the gift-deed was executed in the year 1965, then why the petitioner did not get its name recorded in the revenue record has not been clarified. The name of Sudama was recorded in the revenue record which is evident from the Khasra Khatoni filed by the petitioner itself. However, from the said document, it appears that in the year, 1993-94, the name of the petitioner was recorded for the first time.

8. The counsel for petitioner has not filed the copy of the order on the basis of which the name of the petitioner was recorded for the first time in the year, 1993-94. Although the petitioner has relied upon the letter dated 29.10.2002 sent by SDO (Revenue), Pushparajgarh to Collector Shahdol but the contents of the said letter do not take the case of the petitioner any further, but in fact the same is against the interest of the petitioner. In letter dated 29.10.2002, it is specifically mentioned that the Khasra Nos. 162, 207, 209, 210/1, 213 and 257 were recorded in the name of previous owner Sudama S/o Vishveshwar Baiga and for the first time, the name of Bhagwan Mahadeoji Sanrakshak Sukhdevanandji Maharaj was recorded in the revenue record. Therefore, it is clear that the petitioner has failed to prima facie proved that it had acquired any title on the basis of the gift-deed dated 30.12.1965 executed by Ganga Singh.

9. Further, by this petition the petitioner is seeking a declaration of title. As already pointed out there are multiple disputed questions which are to be answered before issuing such declaration, and the same cannot be done in exercise of power under Article 226 of Constitution of India.

10. So far as the submissions with regard to non grant of opportunity to the petitioner, before passing an order under Section 176 of MPLR

Code is concerned, the same is misconceived.

11. It is clear from the proceedings of the Naib Tehsildar that a public notice was issued and even some persons had also filed their objections. Why no objection was filed by the petitioner has not been explained.

12. Since multiple disputed questions of facts are involved, therefore, this Court is of considered opinion that the order dated 20.07.2007 passed by Naib Tehsildar, Circle Amarkantak, Tehsil Pushparajgarh, District Anuppur as it was in the year, 2007, does not require any interference.

13. Even otherwise, the petitioner had an alternative and efficacious remedy of filing an application under Section 176 (2) of MPLR Code (as it was in the year, 2007) or to file an appeal.

14. The Supreme Court in the case of State of Uttar Pradesh and Another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Others, reported in (2008) 12 SCC 675 has held as under:-

Para 38 "38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari [AIR 1992 All 331] that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p.

331), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus : (Suresh Chandra Tewari case [AIR 1992 All 331] , AIR p. 331) "2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner

should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed."

(emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner."

15. Since, multiple disputed questions of facts are involved, therefore, this petition is also dismissed on the ground of availability of alternative remedy.

16. Accordingly, the petition fails and is hereby dismissed.

17. Interim order dated 17.09.2007 is hereby vacated.

(G.S. AHLUWALIA) JUDGE AL

Date: 2024.08.08 15:25:18 +05'30'