Madhya Pradesh High Court
Smt. Sushilabai vs The State Of Madhya Pradesh on 27 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 27th OF JANUARY, 2025
WRIT PETITION No. 1643 of 2025
SMT. SUSHILABAI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Jitendra Bharat Mehta, learned counsel for the petitioner.
Ms. Vinita Dwivedi, learned Panel Lawyer for the respondents/State.
ORDER
1. This petition under Article 226 of the Constitution of India has
been preferred by the petitioner being aggrieved by the order dated
11.04.2019 (Annexure P/1) passed by the Additional Commissioner, Ujjain
Division, Ujjain affirming the order dated 03.04.2018 (Annexure P/8) passed
by the Sub Divisional Officer (Revenue), Khategaon, District Dewas which
in turn had affirmed the order dated 29.12.2017 (Annexure P/7) passed by
the Naib Tehsildar, Tappa Rangaon, District Dewas whereby her application
preferred under Sections 109, 110 of M.P. Land Revenue Code,1959 for her
mutation over the disputed land had been rejected.
2. The facts of the case in brief are that the petitioner was given
certain agricultural land at Village Ameli, Tehsil Khategaon, District Dewas
for performing Pooja of Shri Shankar Bhagwan Murti, Shri Shankar Mandir,
Ameli. The entries in the revenue records were illegally changed by the
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respondents and the name of Collector as Manager was inserted therein. This
led to filing of Civil Suit No.303-A/1980 before the Civil Judge, Junior
Division, Khategaon, District Dewas for declaration of title and permanent
injunction. The same was decreed by judgment and decree dated 31.03.1989.
Thereafter the Collector, District Dewas as Manager of the deity filed a
separate civil suit bearing No.2-A/2006 for declaration of title and permanent
injunction which was dismissed by Civil Judge, Class-2, Khategaon, District
Dewas by judgment and decree dated 30.06.2007. The same was affirmed by
judgment and decree dated 18.03.2009 passed in Civil Appeal No.25-A/2007
by the Additional District Judge, Kannod, District Dewas. The same was
further affirmed by order dated 20.02.2024 passed by this Court in S.A.
No.1391/2021.
3. In the meanwhile, the petitioner had filed an application under
Sections 109, 110 of the Code, 1959 before the Tehsildar for her mutation
over the disputed lands. The same was dismissed by the Tehsildar holding
that the application for mutation has been filed after a period of 27 years
from the date of passing of the judgment and decree by the trial Court. The
same was affirmed by the Sub Divisional Officer and further by the
Additional Commissioner by way of the impugned order.
4. I have considered the submissions of the learned counsel for the
parties and have perused the record.
5. Mutation in the revenue records is made pursuant to an
application filed under Sections 109, 110 of M.P. Land Revenue Code, 1959
which are as under :-
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109. [ Acquisition of rights to be reported. [Substituted
by M.P. Act No. 23 of 2018]
(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. Explanation
1. The right mentioned above does not include an easement or a
charge not amounting to a mortgage of the kind specified in
section 100 of the Transfer of Property Act, 1882 (No. IV of
1882).Explanation II. A person, in whose favour a mortgage is
redeemed or paid off or a lease is determined, acquires a right
within the meaning of this section.Explanation III. Intimation in
writing required to be given under this section may be given either
through a messenger or handed over in person or may be sent by
registered post or by such other means as may be
prescribed.Explanation IV. For the purpose of this section,
"otherwise disqualified" includes the "person with disability" as
defined in clause (5) of section 2 of the Rights of person with
Disabilities Act, 2016 (No. 49 of 2016)
(2)When any document purporting to create, assign or extinguish
any title to or any charge on land used for agricultural purposes, or
in respect of which a khasra has been prepared, is registered under
the Indian Registration Act, 1908 (No. 16 of 1908), the
Registering Officer shall send intimation to the Tahsildar having
jurisdiction over the area in which the land is situated in such
Form and at such times as may be prescribed.
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(3)Any person whose rights, interests or liabilities are required to
be or have been entered in any record or register under this
Chapter, shall be bound on the requisition in writing of any
Revenue Officer, Revenue Inspector, Nagar Sarvekshak or Patwari
engaged in compiling or revising the record or register, to furnish
or produce for his inspection, within one month from the date of
such requisition, all such information or documents needed for the
correct compilation or revision thereof, as may be within his
knowledge or in his possession or powers. A written
acknowledgement of the information furnished or document
produced shall be given to the person.
(4)Any person neglecting to make the report required by sub-
section (1) or furnish the information or produce the documents
required by sub-section (3) within the period specified therein
shall be liable, at the discretion of the Tahsildar, to a penalty not
exceeding five thousand rupees.
(5)Any report regarding the acquisition of any right under this
section received after the specified period shall be dealt with in
accordance with the provisions of section 110.
110. [ Mutation of acquisition of right in land records.
[Substituted by M.P. Act No. 23 of 2018]
(1)The Patwari or Nagar Sarvekshak or person authorised under
section 109 shall enter into a register prescribed for the purpose
every acquisition of right reported to him under section 109 or
which comes to his notice from any other source.
(2)The Patwari or Nagar Sarvekshak or person authorised, as the
case may be, shall intimate to the Tahsildar, all reports regarding
acquisition of right received by him under sub-section (1) in such
manner and in such Form as may be prescribed, within thirty days
of the receipt thereof by him.
(3)On receipt of intimation under section 109 or on receipt of
intimation of such acquisition of right from any other source, the
Tahsildar shall within fifteen days, -
(a)register the case in his Court;
(b)issue a notice to all persons interested and to such other persons
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and authorities as may be prescribed, in such Form and maimer as
may be prescribed; and
(c)display a notice relating to the proposed mutation on the notice
board of his office, and publish it in the concerned village or
sector in such manner as may be prescribed;
(4)The Tahsildar shall, after affording reasonable opportunity of
being heard to the persons interested and after making such further
enquiry as he may deem necessary, pass orders relating to
mutation within thirty days of registration of case, in case of
undisputed matter, and within five months, in case of disputed
matter, and make necessary entry in the village khasra or sector
khasra, as the case may be, and in other land records.
(5)The Tahsildar shall supply a certified copy of the order passed
under sub-section (4) and updated land records free of cost to the
parties within thirty days, in the manner prescribed and only
thereafter close the case :Provided that if the required copies are
not supplied within the period specified, the Tahsildar shall record
the reasons and report to the Sub-Divisional Officer.
(6)Notwithstanding anything contained in section 35, no case
under this section shall be dismissed due to the absence of a party
and shall be disposed of on merits.
(7)All proceedings under this section shall be completed within
two months in respect of undisputed case and within six months in
respect of disputed case from the date of registration of the case.
In case the proceedings are not disposed of within the specified
period, the Tahsildar shall report the information of pending cases
to the Collector in such Form and manner as may be prescribed.]
6. A perusal of Section 109 of the Code unmistakably shows that
what had been provided therein is only that any acquisition of right has to be
reported within a period of six months from the date of such acquisition.
However, the consequences of not reporting any such acquisition of right
have not been provided therein. It has not been specified that if any such
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acquisition of right is reported after a period of six months the same would
not be taken cognizance of. The provision appears to be only a procedural
provision. It is not stipulated therein that if acquisition of a right is reported
beyond the period of six months from the date of his acquisition, mutation on
that basis would become barred by time and would be impermissible. The
provisions are not mandatory and reporting of right is only obligatory has
already been held by this Court in Dr. Rajdeep Kapoor V/s. Mohammad
Sarvar Khan 2021 (2) MPLJ 452 . The effect of the provision is not creation
of any period of limitation for seeking mutation but is only an obligation
imposed upon a person acquiring a right to report such acquisition to the
revenue authority concerned. However merely for that reason it cannot be
held that an application for mutation based upon acquisition of right, even if
made beyond the period of six months from the date of such acquisition,
would be deemed to be beyond limitation and would not be entertained.
7. Another aspect which may be taken note of is that as per Sub
Section 3 of Section 110 which provides for the procedure for effecting
mutation, proceedings for mutation and the consequent mutation can be done
on receipt of intimation under Section 109 or on receipt of intimation of such
acquisition of right from any other source. Thus too eventualities are
contemplated for effecting mutation. One is receiving of an intimation of
acquisition of right under Section 109 and the other is receipt of intimation
of such acquisition of right from any other source. Such intimation would
comprise within it an application made by any person for mutation over the
land. It has nowhere been provided that firstly an intimation of acquisition of
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right has to be given and thereafter only an application for mutation can be
made. Such application for mutation even without sending any intimation
under Section 109 can be made upon acquisition of right. An intimation
under Section 109 of the Court is not a sine qua non for seeking mutation.
8. In any case Section 109 contemplates acquisition of right meaning
thereby acquiring a right which was not held earlier and which has been
acquired subsequently by any of the modes as contemplated under the law
such as sale, gift, relinquishment etc. This provision would not be applicable
to a case where a person moves the Civil Court for declaration of his title
contending that he already has title and his contention is accepted and his
title is declared. In that case it would not be acquisition of any right not held
earlier but would only be a declaration of already pre-existing right. In such a
case the provision of Section 109 of the Code would be wholly inapplicable
an application for mutation can be straight away preferred under Section 110
of the Code. As noticed earlier no period has been fixed either under Section
109 or 110 for making an application for mutation.
9. In the present case the decree which was passed in favour of the
petitioner though was on 31.03.1989 but the same only declared her already
pre-existing right over the disputed lands, there was no acquisition of any
right by the petitioner. The said decree has attained finality. The challenge to
the same by the respondents by preferring their independent suit has also
faced dismissal upto this Court. There is no legal impediment for giving
effect to the judgment and decree dated 31.03.1989. As held above there was
no period of limitation for preferring of the mutation application. The
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authorities below have however erred in dismissing the application for
mutation preferred by the petitioner only on the ground of delay i.e. the same
having been preferred 27 years after passing of the judgment and decree
passed by the trial Court. The impugned orders hence cannot be sustained.
10. As a consequence, the petition deserves to be and is accordingly
allowed and the impugned orders passed by the authorities below are hereby
set aside and the matter is remanded back to the Tehsildar to decide the
mutation application preferred by the petitioner on its own merits.
11. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
ns
