Madhya Pradesh High Court
The State Of Madhya Pradesh vs Inder Singh on 19 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF JUNE, 2025
SECOND APPEAL No. 1253 of 2020
THE STATE OF MADHYA PRADESH
Versus
INDER SINGH
Appearance:
Mr. A.K. Nirankari - Govt. Advocate for the appellant / State.
Mr. Saket Sharma - Advocate for the respondent.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
the Judgment and Decree dated 01-10-2015, passed by Second District Judge
Ashoknagar in Civil Appeal No. 32-A/2015, by which the Judgment and
Decree dated 16-08-2013, passed by Second Civil Judge, Class-I,
Ashoknagar in Civil Suit No. 17A/2012, was reversed. The order dated 30-
09-2019, passed by Second Additional Judge to the Court of First Additional
District Judge, Ashoknagar in Review Petition No. 92/2018, has also been
impugned in the present appeal.
2. It is not out of place to mention here that the appeal was filed with
delay and Coordinate Bench of this Court by Order dated 29-01-2024
condoned the delay in filing the appeal. Being aggrieved by the said order,
the respondent preferred Civil Appeal No. 4304/2025, which was dismissed
by the Supreme Court by order dated 21-03-2025. However, the appellant
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was directed to deposit a cost of Rs. 50,000/- for delayed filing of the appeal.
On 16-06-2025, it was submitted by counsel for the State that the cost of Rs.
50,000/- has been deposited and, accordingly, the case was taken up for
arguments on admission.
3. The facts necessary for disposal of the present appeal, in short, are
that the plaintiff, who claims himself to be a retired Army man, was allotted
Survey No. 8/1, Area 1.060 hectares, situated in Village Mohari Rai, District
Ashoknagar, as Bhumiswami by order dated 30-08-1977 passed by
Tahsildar, District Ashoknagar in Case No. 28-A 19/76-77. However, in the
revenue records, the name was mutated as Ishwar Singh in place of Inder
Singh and, accordingly, by order dated 19-08-1976, passed by Additional
Commissioner, Gwalior Division, Gwalior in Case No. 6A19/75-76,
direction was given to correct the name and, accordingly, name of Inder
Singh / plaintiff was corrected from Ishwar Singh. It was the case of the
plaintiff that he mortgaged the said property for construction of well and
mutation was done in khasra and khatauni. However, theft took place in his
house, as a result, the revenue documents were also stolen. As his medical
condition was not keeping well, therefore, he shifted to Ashoknagar for
better education of his children also. It was alleged that the defendant
declared the said land as government land without giving any information to
the plaintiff. The plaintiff tried to obtain the certified copy of the order, but
the copies were not supplied and only the certified copies of Register of
1975-76, Register of payment of land revenue of 1977-78, the Mutation
Register and the certified copies of Patwari Halka of Village Mohari Rai of
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1977-78 and 2010-11 were supplied. Accordingly, the plaintiff issued a
notice under Section 80 of CPC and in spite of service of that notice, no
reply was given and accordingly, a suit was filed for declaration of title and
permanent injunction on the ground that the land in dispute was wrongly
declared as government land without giving any notice to him and, therefore,
the act of the Revenue Court was in violation of the principles of natural
justice.
4. The defendant filed its written statement and claimed that the land
was never allotted to the plaintiff. The plaintiff was never in possession of
the property in dispute. The property in dispute is a part of Survey No. 8,
whose total area is 5.696 hectares. Right from the year 2004, the said land is
a government land and is a Charnoi Land. The Tahsildar, Ashoknagar, by
order dated 14-09-2006, passed in Case No. 15-A, 6-A/2005-06, declared the
said land once again as Charnoi Land. 2.090 hectares of Survey No. 8 has
been allotted to Men's Welfare Department and the remaining area, i.e.,
3.606 hectares of land, has been allotted for the construction of the building
of District Magistrate, Ashoknagar, and thus, it was claimed that the entire
land is Government land.
5. The Trial Court, after framing issues, dismissed the suit.
6. Being agreed by the judgment and decree dated 16-08-2013, passed
by the Trial Court, the respondent preferred an appeal which has been
decreed by the Judgment and Decree dated 01-10-2015.
7. As already pointed out, the appeal was filed with a delay of
approximately 5 years, i.e., on 29-08-2020. Since the delay has already been
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condoned, therefore, there is no need to consider that aspect anymore.
8. Challenging the judgment and decree passed by the Appellate Court,
it is submitted by counsel for the appellant that the appellant has filed an
application under Order 41 Rule 27 CPC alleging that the plaintiff had filed
an application for exchange of Survey No. 8/1 area 1.060 hectares on the
basis of which Case No. 6-A/19/75-76 was registered in the Court of
Collector, District, Guna. The application for exchange of aforesaid land was
allowed and the land in respect of which the decree has been passed was
surrendered in favour of the State and the other land was exchanged. This
fact was not pleaded by the plaintiff and, accordingly, sought to file a
certified copy of the order sheets of Case No. 6A/19/75-76.
9. Now, before proceeding further, this Court would like to consider
I.A. No. 3995/2022, which is an application under Order 41 Rule 27 CPC.
The said application reads as under:-
"APPLICATION UNDER ORDER - 41 RULE- 27 OF C.P.C.
1908 FOR TAKING ADDITIONAL EVIDENCE ON RECORD
May it please this Hon'ble Court
The humble appellant/defendant State of M.P. submits this
application as under:-
1. That, the applicant has filed a Second Appeal under Section-
100 of the C.P.C., 1908 against the Judgment and Decree dated
01.10.2015 passed by Mr. A.K. Bhatiya, Second Additional
District Judge, Ashok Nagar, District Ashok Nagar in civil appeal
No. 32-A/2015, whereby Learned First Appellate Court has
reversed the Judgment and Decree passed by the Learned Second
Civil Judge Class-I (Ms. Sweta Goyal) in Civil suit No. 171/2012
dated 16.08.2013. By way of this appeal the appellant State has
also challenged the judgment passed in Review Petition No.
92/2018 dated 30.09.2019 by which the Learned Second
Additional District Judge to the Court of First Additional Judge
(Ms. Priya Sharma) has dismissed the Review Petition of the
appellant 'inter-alia confirming the Judgment and Decree dated
04.10.2015 passed by the Learned First Appellate Court.
2. That, in the instant appeal, appellant has also submitted an
application under section- 5 of the Limitation Act, which is inter-
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alia based on the fact that plaintiff/ respondents has got the decree
by way of fraud. The fraud was committed by way of presenting
an application for exchange of land survey No. 08/1 Rakwa 1.060
hectare, that application was submitted by the respondent/plaintiff
under Rajwasha Pustak Paripatra 4 (3) Clause- 17. On the basis of
which a case was registered before Collector, District Guna (Mr.
P.S. Mehta) in case No. 6/A/19/'75-76. In that case
the application for exchange of the aforementioned land was
allowed and the land for which the decree in this case has been
obtained was surrendered in favour of the State and other land was
obtained in exchang.
3. That, it is submitted that this fact was not pleaded by the
plaintiff/ respondent before Learned Trial Court and the land
which was given to him, after allowing the application for
exchange was sold out by him and the suit has been preferred for
the getting the land, which was surrendered by plaintiff in favour
of State. Therefore, after surrender of land plaintiff had not right
this was the important fact effecting plaintiff's right. But by way of
fraud he suppressed this fact before the Trial Court as well as
before the First Appellate Court. Therefore, it is necessary in the
interest of justice and for saving the interest of appellant to
produce the documents relating to the proceeding for exchange of
land and the sale-deeds by which plaintiff had sold out the land
which was obtained by him in exchanged. Therefore, the file of
the aforementioned case of the Collector, Guna case No.
6/A/19/75-76 and the copies of the Khasra showing the sale of the
land and mutation, on the basis of exchange are also relevant to
decide the controversy involved in this case.
4. That, therefore, these documents are being submitted along
with this application. Copy of the case file of the case No.
6/A/19/75-76 is being submitted and marked as Annexure A/1.
And the certified copies of the Khasra showing entries on the
basis of the exchange as well as on the basis of sale of land are
being submitted and marked as Annexure A/2.
PRAYER
Therefore, it is most humbly and respectfully submitted that this
application may kindly be allowed and the documents/additional
evidence may kindly be taken on record."
10. From the plain reading of the aforesaid application, it is clear that
the defendant / State has admitted that the land in dispute was allotted to the
plaintiff, but now the only defence of the State is that subsequently the
plaintiff had obtained another land in exchange for the land in question. In
the entire application, it is nowhere mentioned as to why the aforesaid
document was not filed before the trial court.
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11. Order 41 Rule 27 CPC reads as under:-
"Production of additional evidence in Appellate Court -- (1) The
parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court,
But if--
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
[(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due diligence,
such evidence was not within his knowledge or could not,
after the exercise of due diligence, be produced by him at the
time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the
Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its
admission."
From the plain reading of the aforementioned provision, it is clear that
the parties seeking to produce additional evidence must establish that
notwithstanding the exercise of due diligence, such evidence was not within
his knowledge or could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was passed. I.A. No.
3995/2022 is completely silent in that regard. However, Order 41 Rule 27 (1)
(b) provides that the additional evidence can be taken by the appellate court
if the appellate court requires any document to be produced or any witness to
be examined to enable it to pronounce judgment, or for any other substantial
cause.
12. Now, the only question for consideration is as to whether the
appellant has made out a good ground for grant of permission to lead
additional evidence or not?
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13. As already pointed out, the State did not file the aforesaid
document either before the trial court or before the appellate court. Even I.A.
No. 3995/2022 was filed after two years of the filing of this appeal or after
seven years of dismissal of the appeal by the District Court. It is the case of
the appellant that the plaintiff had got the land exchanged in lieu of what was
allotted to him as Bhumiswami and the aforesaid fact has been suppressed by
him. Necessarily, it is a defence which ought to have been taken by the
defendant in its written statement. Under these circumstances, the State
should have filed an application under Order 6 Rule 17 CPC for amendment
in its written statement along with an application under Order 41 Rule 27
CPC.
14. Even the Office of Additional Advocate General was negligent in
dealing with this case and no application under Order 6 Rule 17 CPC has
been filed for amendment in the written statement. Furthermore, the entire
application is silent as to why no action has been taken by the State against
the O.I.C. or the persons who were dealing with the case and were guilty of
suppressing the material fact.
15. In reply to the aforesaid query, it was submitted by counsel for the
State that after bifurcation of the districts, District Ashoknagar came into
existence, whereas the record of the revenue remained with the previous
district, i.e., Guna. Therefore, the aforesaid pleading as well as the
documents could not be filed by the state at the earliest.
16. It is suffice to mention here that the aforesaid ground has not been
mentioned in the application filed under Order 41 Rule 27 CPC.
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17. Furthermore, it was the State which bifurcated the District of Guna
and constituted a new district, Ashoknagar. The plaintiff was not responsible
in any manner for the declaration of Tahsil Ashoknagar as District
Ashoknagar. Even if District Guna was bifurcated, still it was obligatory on
the part of the respective Collector to ensure that all the revenue documents
are transferred to the newly constituted district. Therefore, it is clear that the
Collectors were also negligent in discharging their duties, but no action has
been taken by the State against any of the Collectors.
18. Furthermore, once the suit was instituted, then why O.I.C. or the
Collector, Ashok Nagar did not try to find out or locate the revenue record
pertaining to the land in question? Furthermore, the defendant itself had
examined Shriram Yadav, Patwari of Village Mohari Rai, who admitted that
Survey No. 8/1 Area 1.060 hectares is recorded in the name of the plaintiff
in the Mutation Register (Exhibit P-15). He also admitted that the plaintiff
was declared as Bhumiswami by order dated 30-08-1977 passed in Case No.
28-A 19/76-77. However, he was not able to point out as to whether any
notice was given to the plaintiff before declaring the said land as government
land.
19. Thus, I.A. No. 3995/2022 cannot be allowed on the ground that not
only it is silent as to why the aforesaid documents could not be placed before
the Trial Court or the Appellate Court but it is also silent as to why no action
has been taken by the State against the officers who were guilty of
suppressing the material fact as well as on the ground that no application
under Order 6 Rule 17 CPC has been filed by the State for amendment in the
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written statement.
20. Accordingly, I.A. No. 3995/2022 is hereby rejected.
21. Heard on the question of admission.
22. Plaintiff Inder Singh has specifically stated in his plaint that the
name of the State Government was mutated in the revenue record without
giving any notice to him. In examination-in-chief, Inder Singh (PW-3) has
also taken the same stand. Thus, this appeal is admitted on the following
substantial questions of law:-
"(i) Whether the courts below should have granted liberty to
the State to decide the question of mutation of name of State in the
revenue records after giving an opportunity of hearing to the
plaintiff or not?"
23. Since the parties are represented by their counsels, therefore,
the appeal is heard finally.
24. The civil suit was filed challenging the revenue record and in view
of Section 257 of M.P.L.R. Code, the civil suit is barred and the plaintiff
should have filed the appeal before the Revenue Courts. However, in the
light of the judgment passed by the Supreme Court in the case of Dhulabai
and Ors. v. State of M.P. and Anr. , reported in AIR. 1969 SC 78, a civil suit
can be maintained in case if the order has been passed in violation of the
principles of natural justice. In the present case, it is the specific stand of the
plaintiff - Inder Singh that the impugned revenue entry was made without
issuing any notice to him. Thus, the civil suit is held to be maintainable
because it was the case of the plaintiff that the impugned mutation entry was
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made in violation of the principles of natural justice.
25. Now, the only question for consideration is as to whether the
courts below should have decreed the suit in toto without granting any liberty
to the State to pass a fresh order after giving notice to the plaintiff or not?
26. Whenever any order is passed in violation of the principles of
natural justice, then the court must remand the matter back to the authorities
to decide it afresh after giving notice to the aggrieved party. Under these
circumstances, this Court is of the considered opinion that the courts below
should have granted liberty to the State authorities to issue a fresh notice to
the plaintiff to show cause as to why the land in dispute be not registered as
government land.
27. Accordingly, the aforesaid substantial question of law is answered
in affirmative and by maintaining the judgments and decrees passed by the
courts below, a liberty is granted to the State Government to issue a fresh
notice to the plaintiff to show cause as to why the land in question be not
recorded as a government land.
28. With the aforesaid observation, the appeal is disposed of.
(G. S. AHLUWALIA)
JUDGE
AKS
