Madhya Pradesh High Court
Mahila Ramkali vs Yaduveer Singh (Deleted) Through Lrs ... on 15 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 16th OF JANUARY, 2025
WRIT PETITION No. 3330 of 2007
MAHILA RAMKALI AND OTHERS
Versus
YADUVEER SINGH (DELETED) THROUGH LRS (A) SMT. KESHKALI
(DELETED0 AND OTHERS
Appearance:
Shri Nirendra Singh Tomar - Advocate for the petitioner.
Shri Rohit Bansal, Advocate for the respondent no.1. [LR/S].
ORDER
The present petition under Article 226/227 of the Constitution of
India has been preferred for issuance of the writ order or direction for
quashing the order dated 11.1.2007 passed by the Board of Revenue
Gwalior in Case No. Revision/841/PBR/04 and the order dated 2.7.2004
passed by the Additional Commissioner, Gwalior Division Gwalior and the
order of mutation dated 1.10.2002 passed by the Tehsildar, whereby on the
basis of collusive decree passed in favour of the respondent (since
deceased) his name has been mutated in the revenue records by Tehsildar
which though was set aside by the S.D.O. Bhander in Appeal No.9/2002-03
dated 17.3.2003 were reversed in Revision No.94/2002-2003 dated
2.7.2004 passed by the Additional Commissioner which was affirmed by the
Board of Revenue, hence the present petition.
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2. Learned counsel for the petitioner while referring to the judgment
passed by Punjab and Haryana High Court in the matter of Shamsher Singh
Vs. Commissioner, Patiala Division, Patiala and others, (2011) 164 PLR
254 and in the case of Jagtar Singh Vs. State of Punjab, (2007) 4 PLR
638 had argued before this Court that when a civil suit with regard to
declaration of title was already pending before the Civil Court then the
revenue authorities were debarred from mutating the names of any other
party in the revenue records and should had precluded themselves from
even proceeding in the matter. Thus, the impugned order passed by the
Tehsildar, Additional Commissioner and Board of Revenue suffers from
perversity and illegality and therefore, are liable to be quashed.
3. It was further argued that learned Tehsildar vide order dated
1.10.2022 had not given any opportunity of hearing to the present petitioner
and had wrongly held that since on earlier occasion prior to remand the
matter was already heard, therefore, again the respondents are not required to
be heard and went on to mutate the name of the present respondent (since
deceased) in the revenue records on the basis of the order passed by this
Court in W.P.No.2186/1998 which is perse illegal and as the said order has
passed in total derogation of principle of natural justice, therefore, the same
deserves to be quashed and consequently the orders of Additional
Commissioner as well as Board of Revenue deserves to be set aside.
4. On the other hand learned counsel for the respondents had
submitted that it is not a case simplicitor of the suit for declaration and
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injunction filed by the present petitioner rather it is a suit for declaring the
earlier judgment and decree passed in favour of the respondents (since
deceased) to be null and void, thus, it cannot be said that since matter of
title is sub-judice before the Civil Court, therefore, the revenue authorities
should not have dwelled upon the proceedings for mutation. On the
aforesaid premise argued that the petition has no merit and the same
deserves to be dismissed.
5. Heard the counsel for the parties and perused the record.
6. In the case the challenge is to the order passed by the Revenue
Authorities of mutation in favour of the deceased respondent on the ground
of judgment and decree passed in Civil Suit No.59A/75 on 26.8.1975,
whereby the deceased respondent was declared to be adopted son of Atar
Duliya and on earlier occasion also similar petition was moved before this
Court which was numbered as W.P.No.2186/1998, wherein challenge was
made by present respondent to the orders, whereby his application for
mutation was rejected. In the said writ petition the matter was remanded back
to the authorities after quashing all the orders to reconsider the matter for
the purpose of granting mutation in the name of deceased respondent in the
light of the judgment and decree passed in his favour. Further in the said
order liberty was granted to the present petitioner to assail the judgment and
decree dated 26.8.1975 before the competent Court.
7. From the aforesaid order it would be clear that till the decision of
that order dated 12.9.2002 passed in W.P.No.2186/1998 no suit challenging
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the decree dated 26.8.1975 was preferred by the present petitioner and it
appears that only after passing of the said order the suit challenging the
judgment and decree came to be filed.
8. From the record it does not appear that there was any injunction or
restrained order in favour of the petitioners and said suit came to be
dismissed on 21.12.2005, against which the petitioner has preferred a First
Appeal No.72/006 and said appeal has been admitted for hearing on
1.2.2006. This Court further finds that there is no injunction in favour of the
present petitioners in the said appeal. It has trite law that mere pendency of
the suit/appeal would not take the effect of injunction or stay. Further there
is nothing on record to show that the second suit was for declaration of
title and not only for declaring the earlier judgment and decree to be null
and void. Thus, in that eventuality it cannot be said that mere pendency of
the suit would debar the revenue authorities to proceed in the revenue
proceedings.
9. So far as the arguments advanced by the counsel for the petitioner
that no opportunity of hearing was granted by the Tehsildar at the time of
mutating the name of the deceased respondent on record is concerned, this
Court finds that in the appeal preferred against the said order as well as in
the revision preferred thereafter the petitioner had got every chance to
agitate the same, but two Courts below had discarded the aforesaid
contention, therefore, at this late juncture this Court does not find any
reason to interfere with the said order and further does not finds the order to
be illegal or perverse. So far as the judgments relied by learned counsel for
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the petitioner are concerned since the order passed by the learned Single
Judge in the matter of Shamsher Singh (supra) is based on different
analogy laid down therein, it is not applicable to the present case and so far
as the judgment in the case of Jagtar Singh (supra) there in no law has been
laid down, this Court, thus is not bound by any observation made therein.
10. In the light of the aforesaid, the present petition has no sum and
substance and is accordingly dismissed.
(MILIND RAMESH PHADKE)
JUDGE
(aspr)
