Madhya Pradesh High Court
Smt.Madhu Rastogi vs Munnalal on 24 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 4233 of 2013
SMT.MADHU RASTOGI
Versus
MUNNALAL AND OTHERS
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Appearance:
Shri N.K.Gupta, lerned Senior Advocate alongwith Shri Y.P.S.
Rathore, learned counsel for the petitioner.
Shri Prashant Sharma, lerned counsel for the respondents.
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Reserved on : 09/01/2025
Delivered on : 24/01/2025
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This petition having been heard and reserved for orders, comiing
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition under Article 226/227 of the Constitution of
India is directed against the order dated 06.06.2013 passed by Board of
Revenue in revision No.515-PBR/2013, whereby the order dated
24.01.2013 passed by the Commissioner, Gwalior Division, Gwalior in
appeal No.143/2011-12, whereby the appeal filed by the respondent
No.1 was allowed, was affirmed.
2. The petitioner is also aggrieved by the order dated 16.08.2002
passed by Tehsildar in case No.9/88-89, whereby without considering
that there is joint holding of three brothers, there is no partition and
there is no pleading of ouster, hence the co-owner cannot acquire any
right over the share of another co-owner, an illegal order of mutation
was passed.
3. Short facts leading to the present controversy are that land
bearing survey Nos.213, 713/1, 716, 713/2, 714/1-min, 714/2 and 717
total area 5 bigha 2 biswa situated in village Ranipura, Tehsil and
District Gwalior was owned by one Vidhichand and after him the lands
were succeeded by his three sons, namely, Sitaram, Shivcharan and
Ramcharan. There was no division of the land and there was joint
ancestral holding of all the brothers. Respondent No.1 being son of one
of the brothers i.e. Sitaram filed an application before Tehsildar under
Section 110 and 190 of M.P. Land Revenue Code alleging that he is in
possession of the land since Samvat 2035 and the land was given to him
for cultivation orally, hence right to occupy the land is accrued in his
favour as per Section 169 of M.P. Land Revenue Code, thus, prayed for
recording of his name in revenue records as owner in possession. A
reply was filed to the said application by another brother Ramcharanlal
denying the facts as mentioned therein and prayed that the application
be dismissed.
4. Respondent No.1-Munnalal thereafter filed an application before
Tehsildar under Order XII Rule 3 and Order XII Rule 6 of CPC praying
therein that on the basis of admissions made by the non-applicants, his
application be allowed and the Tehsildar illegally and wrongly
considering the statements to be an admission allowed the application
vide order dated 16.08.2002 directed the name of respondent No.1-
Munnalal be recorded in the revenue records as owner in possession.
The present petitioner, who is daughter-in-law of Ramcharanlal, one of
the brothers, was not having knowledge about the order passed by
Tehsildar in favour of Munnalal and it was only when Munnalal had
later on preferred a civil suit with regard to the same land for
declaration of his rights which was numbered as 355-A/2004, and
subsequently was withdrawn on 08.12.2011 in view of the order passed
by the Tehsildar dated 16.08.2002, that it came to the knowledge of
present petitioner that some order had been passed by Tehsildar on
16.08.2002, whereby the name of respondent No.1 has been mutated in
the revenue records.
5. Upon acquiring the knowledge of the order dated 16.08.2002 an
appeal was preferred by the petitioner before Sub Divisional Officer
alongwith an application for condonation of delay under Section 5 of
Limitation Act. Learned Sub Divisional Officer after hearing the
arguments on the application and the appeal and considering the fact
that there was no admission by the parties and after order dated
16.08.2002 no intimation about the order was given by the parties and
the fact that the provisions of Section 169, 185 of M.P. Land Revenue
Code is not applicable and respondent No.1-Munnalal had not acquired
any rights under Section 169 of M.P. Land Revenue Code, condoned
the delay in filing the appeal and while allowing the same ordered to
record the names of all the three brothers i.e. Sitaram, Shivcharan and
Ramcharan in revenue records in equal share.
6. Against this order an appeal was filed by Munnalal before the
Commissioner, Gwalior Division, Gwalior which was allowed on
24.01.2013 and the order of Sub Divisional Officer was set aside.
Aggrieved by the aforesaid order, the present petitioner preferred
revision before the Board of Revenue but the said revision was
dismissed. Aggrieved by the aforesaid, the present petition has been
filed.
7. Learned Senior Counsel for the petitioner had argued before this
Court that the order dated 16.08.2002 passed by Tehsildar was against
the settled principles of law and without considering the provisions of
Order XII Rule 6 of CPC, the same has been passed as there was no
admission on the part of non-applicants therein that they have given
their share to respondent No.1 Munnalal on oral lease.
8. It was further argued that admittedly the original land owner was
Vidhichand and after him the lands in question were succeeded by
Sitaram, Shivcharan and Ramcharan, his three sons and between them
there was no partition, rather the lands in question were in joint
holding, thus, occupation of one of the co-owners of the property would
not confer any rights under the provisions of M.P. Land Revenue Code
and the possession would be deemed that of the other co-owners.
9. While referring to the reply to the application under Section 110
and 190 of M.P. Land Revenue Code filed on behalf of Ramcharanlal,
son of Vidhichand, one of the brothers, it was argued that in the said
reply there was a categorical denial of the factum of possession of
Munnalal over the land in question and also giving of oral patta was
denied, thus, when there was no admission on the part of the
predecessor in interest of the petitioner and the other brothers, learned
Tehsildar has wrongly construed the admission on their part and had
passed the order dated 16.08.2002.
10. It was further argued that the order passed by Tehsildar is against
principles of law that possession of one co-owner over the property
would be deemed to be possession of all the co-owners and if one of the
co-owner is in possession of the property for a long period, it cannot be
said that with the afflux of time under the provisions of M.P. Land
Revenue Code it would acquire rights of moroshi krishak and later on
Bhumiswami and this fact had rightly been considered by the Sub
Divisional Officer while condoning the delay and setting aside the order
passed by the Tehsildar since the said order of Tehsildar dated
16.08.2002 was perverse and wholly illegal.
11. It was further argued that learned Additional Commissioner as
well as Board of Revenue without considering the merits of matter have
solely gone on the question of limitation and had concluded that since
the appellant could not afford a reasonable explanation with regard to
delay of nine years in preferring the appeal, the order of condoning the
delay passed by the Sub Divisional Officer was held not to be proper,
which is not sustainable. On the strength of aforesaid arguments, it was
submitted that the present petition deserves to be allowed and the orders
impugned herein deserve to be set aside.
12. On the other hand, learned counsel for the respondent while
referring to judgment and decree dated 28.05.2024 passed in civil suit
No.35-A/2014 had argued that legal representatives of Shivcharanlal
had preferred a suit for declaration and partition, wherein on the basis
of pleadings of the parties, issue with regard to joint co-ownership of
the parties was framed and also an issue as to acquisition of
Bhumiswami rights by respondent No.1 on the basis of order dated
16.08.2002, which is impugned herein was framed, as issues Nos.1 and
4 and with regard to the aforesaid issues on the basis of the evidence
brought on record, the co-ownership of parties were held not to be
proved and so far as acquisition of Bhumiswami rights by respondent
No.1 was concerned, on the basis of the order dated 16.08.2002 was
held to be proved, thus, when by a competent Court of Civil
Jurisdiction rights of parties have already been determined in which the
present petitioner was also a party as defendant No.8, now at this
juncture the argument that since the property was of joint co-ownership
could not have been declared as land of Bhumiswami rights of
respondent No.1, is not sustainable. Thus, it was prayed that present
petition is devoid of any substance and, therefore, is liable to be
dismissed.
13. In contra to the arguments advanced by the learned counsel for
the respondent, learned Senior Counsel for the petitioner had referred to
an appeal memo of RCA No.168/2024 preferred by the plaintiffs in
civil suit No.35-A/2014 and had argued that the said judgment and
decree, whereby it has been held that the property in question was not a
coparcener property and on the basis of order passed by Tehsildar dated
16.08.2002 respondent No.1 has acquired Bhumiswami rights is under
challenge in appeal and as the said judgment and decree is sub judice
before a competent Court on its basis it cannot be said that rights of the
parties have been determined, it was, thus, prayed that the present
petition be allowed and the impugned orders be set aside.
14. Heard learned counsel for the parties and perused the record.
15. The sole ground raised on behalf of petitioner appears to be that
the land in question being a coparcenery undivided property, in absence
of any admission on the part of two of the brothers could not have
dwelved upon the third brother as Bhumiswami on the basis of long
possession under the provisions of M.P. Land Revenue Code and no
conferral of moroshi krishak and later Bhumiswami rights would accrue
in his favour. In the aforesaid context, the judgment and decree passed
in civil suit No.35-A/2014 dated 28.05.2024 assumes importance,
which has been filed by the present respondents, in which the petitioner
was also party defendant No.8. In the said suit following issues were
framed:-
क. ववाद प्रशश नशषष्करर
1 ककवा गवाम रवाशनीपपरवा पटववाररी हलष्कवा कमवामांष्क '' अप्रमवाणणत''
57 ससस्थित ववादगसत ष्ककषर भभमम सवर कमवामांष्क
213/4, 713/1/3, 716/5, 713/2, 714/1/1,
714/2, 717 ष्कपल रष्कववा 5 बनीघवा 2 षवसववा
ववादरी व प्रनतववादरीगण ष्ककी समांकपकत सववाममतव
ष्ककी भभमम हह?
2 ककवा ववादरीगण ष्कवा ववादगसत समांपषत्ति मम 1/30 ''अप्रमवाणणत''
हहससवा हह?
3 ककवा ववादरीगण ववादगसत समांपषत्ति ष्कवा ''अप्रमवाणणत''
षवभवाजश ष्करवा पवाशने ष्कने अधधिष्कवाररी हह ?
4 ककवा प्रष्करण कमवामांष्क 10/2001-02 मम पवाररत ''प्रमवाणणत''
आदनेश हदशवामांष्क 16.08.2002 ष्कने दववारवा
प्रनतववादरी क 0 1 भभमम सववामनी हहो गकवा हह?
5 ककवा ववादरी दववारवा ववाद ष्कवा उधचित मल
प कवामांष्कश ''प्रमवाणणत''
ष्कर पकवारपत नकवाकवालक शपलष्क अदवा कष्ककवा
गकवा हह?
6 ककवा दवाववा समक-सनीमवा सने बवाधधित हह? ''प्रमवाणणत''
7 सहवाकतवा एवमां वकक? ''अमांनतम ष्कमांडडिष्कवा
अशस
प वार''
16. Issue No.1 was with relation to the fact as to whether the
plaintiffs and defendants were co-owners of survey Nos.213, 713/1,
716, 713/2, 714/1-min, 714/2 and 717 total area 5 bigha 2 biswa, which
is the land in dispute and the said issue has been answered in negative.
So is the issue No.4, which was in relation to the fact as to whether the
present respondent No.1 had acquired Bhumiswami rights on the basis
of order dated 16.08.2002 passed in Case No.10/2001-02, which is the
basic order impugned herein passed by Tehsildar, has been answered in
affirmative, which implies that the co-ownership by the parties was
denied and the accrual of Bhumiswami rights by respondent No.1 on the
basis of order dated 16.08.2002 was held to be proper.
17. In the light of aforesaid judgment and decree, this Court finds
that though mutation in the revenue records of the name of respondent
No.1 was carried out on some other grounds but when the right has
been crystalised by the competent Court of civil jurisdiction, the same
was not required to be reversed or modified. Though another fact,
which is to be noted is that the judgment and decree dated 28.05.2022
has been challenged by the plaintiffs therein in first appeal in RCA
No.168/2024 and as such the said judgment and decree had not attained
finality yet, therefore, this Court while setting aside the orders dated
06.06.2013 passed by the Board of Revenue, order dated 24.01.2013
passed by Commissioner, Gwalior and the order dated 28.06.2012
passed by SDO, finds it expedient to dispose of the present petition
with an observation that the entries in the revenue records shall be
subject to final outcome of the civil litigation between the parties.
18. With the aforesaid, the present petition stands disposed off.
Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
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SHASHANK
Date: 2025.01.25 11:51:42 +05'30'
