Madhya Pradesh High Court

Ramkishan Patel vs Om Prakash Mishra on 16 May, 2024

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 16th OF MAY, 2024
MISC. PETITION NO.3083/2021

BETWEEN:-

RAMKISHAN PATEL, S/O ISHWARDAYAL PATEL,
AGED ABOUT 70 YEARS, R/O OSHO ASHRAM,
TEHSIL GOTEGAON, DISTRICT NARSINGHPUR
(M.P.)

.....PETITIONER

(BY SHRI YUVRAJ VAIDYA - ADVOCATE)

AND

1. OM PRAKASH MISHRA AGED ABOUT 50
YEARS, S/O LATE SHRI VISHWANATH DUTT
MISHRA R/O SASHTRI CHOWK SATNA,
DISTRICT SATNA (M.P.)

2. THE STATE OF M.P. THROUGH
COLLECTOR, JABALPUR DISTRICT
JABALPUR (M.P.)

3. REGISTRAR, PUBLIC TRUST, JABALPUR
DISTRICT JABALPUR (M.P.)

4. RAVI PRAKASH AGED ABOUT 50 YEARS,
S/O SHRI VISHWANATH DUTT MISHRA, R/O.
SASHTRI CHOWK, SATNA DISTRICT SATNA
(M.P.)

5. THE BOARD OF REVENUE GWALIOR,
DISTRICT GWALIOR (M.P.)

6. SMT. UMA DEVI W/O SHRI VISHWANATH
DUTT MISHRA, AGED ABOUT 52 YEARS,
R/O. SASHTRI CHOWK, SATNA DISTRICT
SATNA (M.P.)
2

7. JAI PRAKASH S/O SHRI VISHWANATH
DUTT MISHRA, AGED ABOUT 52 YEARS,
R/O. SASHTRI CHOWK, SATNA DISTRICT
SATNA (M.P.)

.....RESPONDENTS

(NO.1 BY SHRI ABHIJEET AWASTHI - ADVOCATE)
(INTERVENER BY SHRI KAPIL DUGGAL - ADVOCATE)
................................................................................................................................................
This petition coming on for hearing this day, the court passed the
following:
ORDER

The instant petition is heard finally with the concurrence of learned counsel for the parties.

2. This miscellaneous petition has been filed under Section 227 of the Constitution of India, whereby the petitioner is claiming the following reliefs:-

(i) That, this Hon'ble Court may kindly be pleased to quash and set aside the impugned order dated 28.09.2020 (Annexure P-12) in the interest of justice.

(ii) To direct the respondents to abide by the terms and conditions prescribed in the Tamleekhnama dated 15.05.1947 (Annexure-P-1).

(iii) Any other relief, which this Hon'ble Court deems just and proper in the aforementioned facts and circumstances of the case, may kindly be granted to the petitioner.

(iv) Cost of the petition may kindly be awarded.

3. The order dated 28.09.2020 (Annexure-P/12) is an order passed by the Board of Revenue exercising the power of review whereby the order dated 08.01.2020 (Annexure-P/11) passed by the Board of Revenue has been recalled/reversed and the appeal preferred before it was allowed.

4. The petitioner is challenging the impugned order of Board of Revenue only on the ground that it is in violation to the principle of natural justice and also in violation of Section 51(1)(ii) of M.P. Land Revenue Code, 1959 (for brevity 'Code') because before reversing the order by the Board of Revenue, the authority has not given any opportunity of hearing to the necessary parties, the petitioner who was necessary party. On these two grounds, the impugned order is being assailed by the petitioner. Learned counsel for the petitioner has placed reliance upon the orders passed by the High Court in W.P.No.398/2019 (Ku. Pan Bai v. The State of Madhya Pradesh & Ors.) on 13.05.2024 and in W.P.No.6435/2012 (Ashok Kumar Ghai v. State of M.P. & Ors.) on 02.09.2015.

5. In contrast, Shri Awasthi, learned counsel appearing for respondent No.1 submitted that under the existing circumstances and considering the order passed by this Court on 28.02.2022 while vacating the interim relief granted in favour of the petitioner assigning reason therein and further in pursuance to the facts and circumstances of the case, it was not required to follow the principle of natural justice and if opportunity of hearing is not provided to the petitioner, there is nothing illegal committed by the Board of Revenue in the light of decision of the Supreme Court in re State of Uttar Pradesh v. Sudhir Kumar Singh and others (2021) 19 SCC 706. He further submitted that the petitioner is continuously trying to disturb the title of the respondent and number

of petitions preferred by him on one or the other pretext, but all those petitions got dismissed by the High Court even cost had been imposed upon the petitioner. Shri Awasthi pointed out that title of the respondent in respect of the land in question has already been perfected by judgment and decree passed by the Civil Court on 24.04.1971 in C.S.No.661/1971. He also drew attention of this Court towards the issues framed and findings given thereon i.e. issue No.11(A), (B), 19, 22 and 25. He further drew attention of this Court towards the finding given in paragraph 42 of the judgment holding that Tamliknama, which is sought to be implemented in this petition, has already been declared void by the trial Court. He also pointed out the finding given by the trial Court in paragraph 50 whereunder the trial Court perfected the title of respondent on the basis of adverse possession. Shri Awasthi also submitted that the said judgment and decree was assailed in first appeal and also in second appeal and has been affirmed even by the High Court. According to him, as per definition of decree, it is nothing but an order of the court determining the rights of the parties and once it has been determined that the respondent has perfected the title over the land in question, mutation is done in favour of the title holder then it cannot be assailed by the petitioner whose father was also party in the civil suit as defendant no.1. Shri Awasthi also submitted that the proceeding which travelled upto the Board of Revenue challenging the mutation in favour of the father of respondent and as such title of respondent's father was perfected in the civil suit, therefore, challenge itself was illegal despite the fact that the petitioner somehow in number of occasions has been claiming before the High Court and according to him this proceeding is illegal and abuse of process of law.

6. Shri Awasthi in response to the submission made on behalf of the petitioner about the violation of the provisions of Section 51-A of the Code, submitted that the original appeal before the Board of Revenue had been preferred by the power of attorney holder namely Pradeep Patel. He submitted that Pradeep Patel has sworn an affidavit saying that he was aware of the fact that the judgment and decree perfected the title in favour of respondent's father has been passed by the Civil Court and he did not want to participate in the proceeding. He also submitted that the power of attorney was cancelled vide Annexure- P/3 after the order passed by the Board of Revenue.

7. In repartee, learned counsel for the petitioner submitted that before the Board of Revenue in original proceeding i.e. appeal preferred, the petitioner was party but in review petition before the Board of Revenue he was not made party and as such notice was not issued to him. He submitted that it was a requirement of law that the party before the authority in original proceeding, which was later-on reviewed must have been heard and therefore the order of Board of Revenue, according to him, is in violation of the provisions of Section 51-A of the Code.

8. No other point has been argued by the learned counsel for the parties.

9. I have heard the learned counsel for the parties and perused the record.

10. Indeed, the proceeding which has travelled up to the Board of Revenue is arising out of the challenge made to the mutation proceeding in respect of the property for which Civil Suit had been filed i.e. C.S.No.661/1971 parties being Khet Singh S/o Chhotelal and Ghanshyam S/o. Pretamlal v. Ishwardayal S/o Bhaiyalal, Prem Chand S/o Bhaiyalal, Tulsimram S/o Bhola Prasad and Vishwanath Datt S/o

Ramswaroop. The said civil suit was decreed vide judgment and decree dated 24.04.1971. The said judgment and decree is on record relating to the same land which is subject matter of the proceeding and the order which is impugned in this petition. In the said civil suit, the trial Court framed as many as 29 issues in which the finding given by the trial Court that the suit property belongs to defendant No.3-B namely Vishwanath Datt S/o Ramswaroop. Decree passed by the trial Court declaring Vishwanath Datt as bhumiswami of land by virtue of adverse possession. In the said judgment and decree, the transfer made by Tamliqnama dated 15.05.1947 was declared as void. The said aspect has been considered by this court in the present case on 28.02.2022 while vacating the interim order granted earlier. In the said order, paragraph 42 of judgment of trial Court was reproduced declaring the Tamliqnama 'void', which is also reproduced hereinbelow-

"42. No transfer of such land can be made without the permission of the Collector. If the Collector's permission has not been produced therefore the transfer of the suit lands by Bhaiyalal to Ramswaroop is void. I, therefore, hold that the suit property was subjected to a charge created by the debt relief court and the transfer in favour of Ramswaroop was void."

This Court has also examined the documents produced before the court showing that the defendant was in possession of the suit land and also observed that there was no document to substantiate that the plaintiff was in possession of the land. The said judgment and decree was affirmed upto the second appeal and thereafter no further challenge was made to the said judgment and decree and as such it attained finality.

11. The sole claim of the petitioner is based upon the document i.e. Tamliqnama dated 15.07.1947, but that has been declared 'void' by the civil court and as such while vacating the interim order, this court has also observed that in absence of any document of title, the petitioner cannot be extended any relief and interim order granted earlier was vacated. Not only this, but respondent No.1's counsel has filed several orders passed in different writ petitions preferred by the petitioner in respect of the same issue, but all those petitions have been dismissed by the High Court. He has produced the copy of the order dated 31.10.2022 passed in W.P.No.23411/2022 (Ram Kishan Patel v. State of M.P. & Ors.) in which the petitioner claimed that the land area measuring 28.40 hectare situated at village Pipariya Baniakheda, Teshil and District Jabalpur is the ancestral property. That petition was finally dismissed by the court imposing the cost of Rs.5,000/-. Another order in W.P.No.19913/2022 (Ram Kishan Patel v. The State of M.P. & Ors.) dated 17.11.2022 in which petition was dismissed as withdrawn. Then W.P.No.17661/2022 (Ram Kishan Patel v. The State of M.P. & Ors.) was dismissed as withdrawn on 28.10.2022. Again W.P.No.15248/2022 (Ram Kishan Patel v. The State of M.P. & Ors.) was also dismissed as withdrawn on 17.11.2022. Counsel for respondent No.1 submits that present petitioner is unnecessarily harassing the respondents by filing petitions one after the other and creating pressure upon them whereas it has already been decided that the land in question belongs to father of respondents No.1, 4 and 7 and husband of respondent No.6 namely Vishwanath Datt. The petitioner is in the habit of filing frivolous litigation in respect of the land over which he has no right and this fact has already been determined and considered by this court while vacating the interim order in this petition. The order passed by the Board of

Revenue was also under misconception and on the basis of incomplete information. Pradeep Kumar Patel was the power of attorney holder on behalf of the petitioner had shown his unwillingness to prosecute the matter, although later-on the power of attorney executed in favour of Pradeep Kumar Patel was also cancelled. The Board of Revenue in the first occasion has not considered the fact that the civil court had passed the decree holding the father of the respondents 'bhumiswami' and thereafter mutatition got done on the basis of said judgment and decree of civil court recorded the name of father of respondents presumed that on the basis of forged case, the mutation entry got done, whereas the judgment and decree produced by the respondents indicating that the petitioner's father was also party in the civil suit and decree was in his knowledge, despite that they did not bring this fact to the notice of this court and thus the Board of Revenue has committed error while setting aside the order of Collector in review. Astoundingly, when father of respondent no.1 namely Vishwanath Datt and his wife partitioned the property and that partition was accepted by the revenue authorities then the Collector after nine years in a review cancelled the order of mutation made in favour of the respondents. Although the petitioner has filed several orders of the High Court saying that the Board of Revenue has not given any opportunity and as such violated under Section 51(1)(ii) of Code, 1959 wherein it is provided that if the order passed by the authority is varied or reversed, the same cannot be done without giving notice to the parties interested. In Sudhir Kumar Singh (supra), relied upon by the learned counsel for respondent No.1, the Supreme Court has observed as under:-

"41. Under the broad rubric of the Court not passing futile orders as the case is based on "admitted" facts, being

admitted by reason of estoppel, acquiescence, non- challenge or non-denial, the following judgments of this Court are all illustrations of a breach of the audi alteram partem rule being established on the facts of the case, but with no prejudice caused to the person alleging breach of natural justice, as the case was one on admitted facts:

41.1 Punjab and Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214 (see paragraphs 1, 4 and 5); 41.2 Karnataka SRTC and Anr. v. S.G. Kotturappa and Anr. (2005) 3 SCC 409 (see paragraph 24);

41.3 Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and Ors. (2005) 5 SCC 337 (see paragraphs 21, 22 and 26); 41.4 Mohd. Sartaj and Anr. v. State of U.P. and Ors. (2006) 2 SCC 315 (see paragraph 18);

41.5 Punjab National Bank and Ors. v. Manjeet Singh and Anr. (2006) 8 SCC 647 (see paragraphs 17 and 19);

41.6 Ashok Kumar Sonkar v. Union of India and Ors. (2007) 4 SCC 54 (see paragraphs 26 to 32);

41.7 State of Manipur and Ors. v. Y. Token Singh and Ors. (2007) 5 SCC 65 (see paragraphs 21 and 22);

41.8 Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar and Ors. (2007) 13 SCC 352 (see paragraph 7) 41.9 Peethani Suryanarayana and Anr. v. Repaka Venkata Ramana Kishore and Ors. (2009) 11 SCC 308 (see paragraph 18);

41.10 Municipal Committee, Hoshiapur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216 (see paragraphs 31 to 36, and paragraphs 44 and 45);

41.11 Union of India and Anr. v. Raghuwar Pal Singh (2018) 15 SCC 463 (para 20).

42. An analysis of the aforesaid judgments thus reveals:

42.1 (1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice.

The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

42.2 Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

42.3 No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

42.4 In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.

42.5 The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite

inference of likelihood of prejudice flowing from the non- observance of natural justice."

(emphasis supplied)

12. In the present case, considering the factual position that the title of the father of respondents namely Vishwanath Datt has already been established and mutation of their name on the basis of judgment and decree passed by the civil court attained finality, litigation after litigation and dismissal of those case clearly indicate that no prejudice caused to the petitioner while entertaining the review by the Board of Revenue. In a normal circumstance, compliance of respective provision is mandatory and required, but in the present case, not following the substantive provision of law embodied in the principle of natural justice on the ground that no prejudice caused, shall not make the order invalid. I find it apposite to mention here that remitting the matter to the authority would be a futile exercise for deciding the case afresh because as per the facts considered hereinabove and mutation entry made on the basis of judgment and decree of civil court, cannot be said to be improper especially under the circumstance when the said judgment and decree has attained finality. The basic foundation claiming right over the property by the petitioner on the basis of Tamliqnama dated 15.07.1947 has already been declared void then no relief can be granted to the petitioner. It is also apparent that the petitioner is unnecessarily filing frivolous petitions and dragging the respondents into frivolous litigations. The issue is related to individual interest and not the public interest and therefore not following the principle of natural justice does not vitiate the impugned order especially under the circumstance when Pradeep Kumar Patel, power of attorney holder, had refused to

participate in the proceeding. Thus, the impugned order does not call for any interference.

13. In view of the above discourse, the petition being sans substance, is hereby dismissed.

(SANJAY DWIVEDI) JUDGE

sudesh SUDESH KUMAR SHUKLA 2024.06.01 12:58:20 +05'30'