Madhya Pradesh High Court
Gurucharan Singh vs Buddha Through Lrs (A) Pratap on 24 June, 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. 5096 of 2009
GURUCHARAN SINGH AND OTHERS
Versus
BUDDHA THROUGH LRS (A) PRATAP AND OTHERS
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Appearance:
Shri N K Gupta - Senior Advocate alongwith Shri Y.P.S.
Rathore-Advocate and Shri Sanjay Dwivedi - Senior Advocate
alongwith Shri Somyadeep Dwivedi - advocate and for the petitioners.
Shri Sohit Mishra - Govt. Advocate for the respondent/State.
Shri P.C.Chandil - Advocate for the respondents No.3 to 8.
Shri D.R.S.Baghel - Advocate for respondent No.14
Shri Yash Sharma - Advocate for respondent No.30.
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Reserved on : 18/06/2025
Delivered on : 24/ 06/2025
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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
This petition under Article 226/227 of the Constitution of India
has been preferred against the order dated 15.07.2008 passed by
Commissioner in revision No.134/06-074, whereby while dismissing
the revision the order dated 22.06.2007 passed by Collector, District
Gwalior in appeal No.04/06-07 was affirmed, wherein the order dated
16.06.1997 passed by Sub Divisional Officer in case No.11/55-
56/170(ख), whereby the transfer of the land in favour of the petitioner,
since belonging to Scheduled Tribe was held to be illegal and the said
land was directed to be handed over to the said Tribe with a further
direction to mutate their names in revenue records in place of
petitioners, was under challenge and was upheld.
2. Short facts of the case are, that the present petitioners had
purchased some agriculture lands from one Smt. Ramkali Diwan and
Navi Raja Diwan by way of registered sale deed dated 17-7-1975 and
their names were mutated in the revenue records as owner in
possession. Earlier to that, the land was purchased by Smt. Ramkali
Diwan and Navi Raja Diwan from ancestors of present private
respondents and before that permission was sought from the Collector
under section 165 of the M.P. Land Revenue Code, as the private
respondents/their ancestors belonged to Adiwasi community and the
said permission was granted by the Collector vide order dated
20.01.1968 in case No.7/66-67/A/21(165) to the ancestors of present
respondents, to sale the land in favour of the predecessors in title of
the petitioner i.e. Smt. Ramkali Diwan and Navi Raja Diwan. While
granting permission, in the proceedings the Collector recorded the
statements of ancestors of private respondents and Sub Divisional
Officer had submitted a report after making enquiry thus Collector
after making complete enquiry and having found that the land can be
sold by Adiwasis to the non Adiwasi' person, permission was granted.
In the permission it was also noted that 54 Bigha land would be left
with the ancestors of the respondents for their livelihood and only on
that condition permission was granted.
3. After purchase of the land by the petitioner vide sale deed dated
17.07.1975 proceedings were initiated by the Sub Divisional Officer
under Section 170-B of M.P. Land Revenue Code on the ground that
the petitioners have notified the information as required under sub
Section (1) of Section 170-B and without considering the effect of the
permission dated 20.01.1968 held that the sale deed executed in favour
of petitioner is not valid and the order dated 17.12.1991 was passed
and the entire exercise was done after 15 years of execution of
registered sale deed in favour of petitioner and after 22 years of
registration of sale deeds in favour of predecessors in title of the
petitioner i.e. Smt. Ramkali Diwan and Navi Raja Diwan.
4. Against the order passed by Sub Divisional Officer an appeal
was preferred before the Collector but the same was dismissed vide
order dated 07.03.1992, against which a revision was preferred before
the Commissioner and the Commissioner vide order dated 30.05.1992
allowed the revision after considering the permission granted under
Section 165 of M.P. Land Revenue Code vide order dated 20.01.1968
and held the petitioners to be owners in possession and also held that
provisions of under Section 170-B is not applicable in the present
circumstances. Against the order passed by the Commissioner, a
revision was preferred before Board of Revenue and the Board of
Revenue allowed the said revision, though second revision was not
maintainable before Board of Revenue. Against the said order writ
petition No.1564/1993 was preferred by the petitioners and this Court
vide order dated 06.12.1995 allowed the writ petition and the case was
remanded back to the Sub Divisional Officer for deciding it afresh
after considering the law laid down in the case of Aatma Ram Vs.
State of M.P. & others reported in AIR 1995 MP 225. Vide said order
this Court also directed that the parties shall maintain status quo with
regard to possession.
5. After order of remand no enquiry was conducted by the Sub
Divisional Officer, no opportunity to lead evidence was granted to the
petitioners and without conducting enquiry as per the orders passed by
this Court, an order was passed on 16.06.1987 and while passing the
order considered the case beyond the provisions of Section 170-B
ignoring that the provisions of Section 170-B were not applicable, as
the petitioners had not purchased the land from some Adiswasi rather
they had purchased the land from Ramkali Diwan and Navi Raja
Diwan and they did not belong to Adiwasi community.
6. On 10.06.1996, the case was fixed before Sub Divisional
Officer for filing list of witnesses and thereafter on 09.07.1996 it was
reported that some persons have died and thereafter case was fixed on
12.09.1996 and at that stage an application was submitted by the non
applicants for hearing of the case No.107/82-83/B-121 separately and
for consideration on the application case was fixed for hearing on
14.11.1996 and on that date written submissions were submitted by the
parties on the application for hearing the case separately thereafter on
20.11.1996 applications and documents were filed by the respondents
and the case was fixed for 02.12.1996. On that day, written
submissions were presented on the application, which was filed on
12.09.1996 thereafter case was fixed for 07.12.1996 and on
26.02.1997 an order was passed for registration of the case, hence the
case was never fixed for final arguments and no enquiry as ordered by
this Court in W.P. No.1564/1993 was conducted, no evidence was
recorded, neither any opportunity for recording the evidence was
granted and after hearing on the application for separate hearing of the
cases, the Sub Divisional Officer passed final order on 16.06.1997
holding that the provision of Section 170-B is applicable.
7. In the meanwhile, a civil suit No.65-A/1996 was filed by the
ancestors of respondents which was dismissed, against which, first
appeal No.62/1998 was filed by them, which was also dismissed vide
judgment and decree dated 29.04.1999. In the judgment and decree
dated 29.04.1999, the District Judge gave a finding that no evidence
was produced by the respondents regarding the sale deed dated
28.05.1968 and 17.05.1975 executed without permission from the
Collector and it was held that the sale deed was good but without
considering the same, the order impugned has been passed by the Sub
Divisional Officer, which was against the findings given by the civil
Court. The order passed by the Sub Divisional Officer when
challenged before the appellate Authority i.e. Collector was upheld
and the appeal preferred by the present petitioners was dismissed. The
revision preferred against the order of dismissal of appeal was
dismissed without any intimation given to the petitioner or his
counsel, thus, alleging the said order to be behind the back and against
the principle of natural justice has been challenged in the present
petition.
ARGUMENTS
8. Learned Senior counsel for the petitioner had argued before this
Court that the Collector on earlier occasion has granted permission
vide order dated 20.01.1968 on the basis of an enquiry report prepared
by the then Sub Divisional Officer after recording the statements of
buyers and sellers but the Sub Divisional Officer in the impugned
order dated 16.06.1997 had held the said permission to be invalid,
which is per se illegal, as no inferior authority can sit as an appeal
against an order passed by his superior and further the said order was
passed after lapse of almost 16 years from the date of execution of
registered sale deed in favour of petitioners, which in the light of
pronouncement of the Apex Court in the case of Ranveer Singh &
anr. Vs. State of M.P. reported in AIR 2011 MP 27; explicating the
circumstances the time period within which powers of revision of
revenue authorities is to be exercised, was bad in law as the limitation
prescribed therein is only 180 days from the date of knowledge of the
order to be challenged.
9. It was further argued that a perverse finding has been recorded
by the Sub Divisional Officer that subjective lands were not joint
family property and Mulua as karta was not empowered to sale the
said lands, which was based on the reasoning that in the revenue
entries with respect to the suit lands contained the names of different
persons and thus were their separate properties and in case of joint
family property only name of karta would be recorded but the fact
remain that all the co-parceners had share in joint family property and,
therefore, names of all of them were recorded in the record of rights.
10. Further, it was argued that Section 108 of M.P. Land Revenue
Code prior to its amendment in the year 2018, stipulated that record of
rights should include the names of all the Bhumiswamis and there is
no distinguishing feature for ascertaining the nature of the property
has been made under Section 108 of M.P. Land Revenue Code and the
revenue entry containing names of multiple persons cannot lead to the
presumption that the land was of joint family property, thus, the
finding of Sub Divisional Officer that the lands eventually purchased
by the present petitioners were not joint family property of Mulua and
his family on the basis of entries is erroneous in the light of Section
108 of M.P. Land Revenue Code.
11. It was further argued that SDO has casted aspirations on the
genuineness of the sale deeds and has also held that witnesses have not
been produced to prove them, which in the teeth of Section 68 of
Indian Evidence Act reveals that there would be presumption
regarding the genuineness of sale deeds and recitals contained therein
and such presumption can only rebutted by leading evidence. To
bolster the aforesaid submissions, reliance was placed in the matter of
Prem Singh and others Vs. Birbal and others reported in (2006)5
SCC 353.
12. On the basis of the aforesaid judgment, it was further contended
that a sale deed would continue to operate as long as it is not set aside
by the competent Court of civil jurisdiction and as the sale deeds in
favour of the petitioners and in favour of predecessors in title of the
petitioner having been not canceled by any civil Court they were valid
and enforceable, thus, learned Sub Divisional Officer has seriously
erred in shifting the burden of proving the execution of registered sale
deed on the petitioners.
13. It was further argued that exercise the powers under Section
170-B of MPLRC by Sub Divisional Officer was also illegal, as there
were registered sale deeds in favour of the petitioners; also the SDO
had acted beyond his jurisdiction by invalidating the permission dated
20.01.1968 granted by the Collector to the predecessors of the
petitioners, thus, on both the counts the Sub Divisional Officer had
erred. To bolster this argument, reliance was placed in the matter of
Sukra Bai Vs. Makhan Gir Mahant reported in 2015(2)MPLJ 113
(DB).
14. It was also argued that in the order the learned Sub Divisional
Officer had observed that possession of subjected lands were never
handed over to the present petitioners and the respondents being
member of aboriginal Tribes, after their ancestors were enjoying the
same and in that regard reliance was placed by the Sub Divisional
Officer on the order dated 20.01.1994 under Section 145 of Cr.P.C.
Refuting the said ground, learned Senior Counsel while placing
reliance in the matter of Jhummamal Vs. State of Madhya Pradesh
and Ors. reported in AIR 1988 SC 1973 had argued that an order
under Section 145 of Cr.P.C. only records the possession on the date
proceedings have taken place and such an order cannot be treated as
an evidence of continuous possession of a party over a property.
15. It was further argued that the civil Court is the solitary forum for
establishing factum of possession over any property, thus, finding as
regards possession of the private respondents belonging to the
aboriginal tribes over the subjected lands is perverse and, therefore, is
liable to be set aside.
16. It was also argued that the Sub Divisional Officer while
concluding had made an observation that registered sale deeds in
favour of petitioners have been obtained through fraud and the
aforesaid fraud has been premised on the finding based on alleged
possession of the respondents of Scheduled Tribes on the subjected
lands, which itself is a perverse finding, thus was erroneous, whereas
the sale deeds clearly recites that the possession on subjected lands
was handed over to the petitioners by their predecessors in title and
such recital in the sale deed was required to be presumed to be
corrected unless rebutted by the respondents and as such there was no
rebuttal done on their part, thus, the findings on possession by the Sub
Divisional Officer falls foul of provisions of Section 68 of Indian
Evidence Act.
17. It was further argued that the Sub Divisional Officer has
committed an act of judicial indiscipline by declaring the permission
of the Collector dated 20.01.1968 invalid, as Sub Divisional Officer is
admittedly an officer subordinate in rank to the Collector in the
hierarchy of Revenue Officers and he is bound by the
order/permission passed by the then Collector and that too after a
period of more than 20 years the said permission was challenged. To
bolster this argument, learned Senior Counsel placed reliance in the
matter of Union of India (UOI) and Ors. Vs. Kamlakshi Finance
Corporation Ltd. reported in AIR 1992 SC 711.
18. Learned Senior Counsel while criticising the orders in appeal
had submitted that proper procedure for service of notice on the
petitioner was not adopted and straight away without adhering to the
provisions of Rules 11, 12, 13 of the Rules of Procedure for Revenue
Officers and Revenue Courts entail in schedule 1 of M.P. Land
Revenue Code and Order 5 Rule 17 of CPC; it was argued that the
service directly by way of publication was bad in law, thus, in wake of
proper service of notice on the present petitioners the order passed by
the Appellate Authority as well as revisional authority were bad in law.
On the basis of aforesaid arguments, it was submitted that the present
petition be allowed and the orders impugned herein be set aside.
19. Per contra, learned counsel for the respondents had submitted
that the permission dated 20.01.1968 granted by the Collector was
itself an invalid permission as some of the Adiwasis included minors,
who had applied before the Collector for grant of permission to sell
the land in question and since the minors were not represented through
their natural guardian, in absence of any permission from competent
Court in favour of any person to act as a guardian of those minors, any
permission granted therein was void and initio. To bolster their
submissions reliance was placed in the matter of Deepak Agro Foods
Vs. State of Rajasthan and Ors. reported in (2008) 7 SCC 748; and
was submitted that where an authority making order lacks inherent
jurisdiction, such order would be without jurisdiction, null, non-est
and void ab initio as defect of jurisdiction of an authority goes to the
root of the matter and strikes at its very authority to pass any order and
such a defect cannot be cured even by consent of the parties. Further,
reliance was placed in the matter of Chiranjilal Shrilal Goenka Vs.
Jasjit Singh reported in (1993)2 SCC 507; in the matter of Ajay
Singh and anr. Vs. State Of Chhattisgarh and anr. reported in
(2017)3 SCC 330.
20. It was further argued that the learned Collector granted
permission to some of minors by way of non speaking order and as the
power to grant permission for sale of the property belonging to minors
lay with the competent civil Court, the Collector in view of the
provisions of the Guardians and Wards Act, 1890 as well as Minority
Acts lacked inherent jurisdiction, thus, the permission was bad in law.
To buttress their submissions reliance was placed in the matter of
Budhiya & another Vs. Chandrika Prasad reported in 1991 MPRN
94 and in the matter of Gopichand Vs. State of M.P. Reported in 1998
MPRN 103.
21. It was further argued that the present respondents have filed a
suit for declaration and permanent injunction, which was registered at
civil suit No.65/1996, wherein vide judgment dated 01.09.1998 the
entire land was declared as government land, which was further
challenged by them in appeal, wherein cross objection was preferred
by the purchaser, which was registered as civil appeal No.62/98,
wherein vide order dated 29.04.1999 the appeal filed by the
appellants/triables was dismissed and the cross objection of
procedure /petitioner were allowed and the sale deeds dated
28.05.1968 and 17.07.1975 were held to be validated, which was later
on challenged in second appeal before this Court but the second appeal
was dismissed holding that no substantial question of law is involved
therein.
22. Alleging the said judgment and decree to be based on perverse
finding learned counsel for respondents has argued that since the
possession of the land in question is still with the respondents, merely
on the basis of paper possession it could not be said that the petitioners
are in possession of the said land. It was thus, prayed that the present
petition be dismissed.
23. Heard learned counsel for the parties and perused the record.
DISCUSSION AND CONCLUSION,
24. It is an admitted fact that on 20.01.1968 permission to sale the
land by persons belonging to aboriginal tribes was granted by the then
Collector in favour of the respective purchasers i.e. Smt. Ramkali
Diwan and Navi Raja Diwan. It is also an admitted fact that the said
permission was never challenged by way of an appeal or revision by
any of the persons in whose favour the said permission was granted
nor by any one else. It is also an admitted fact that two of the
applicants before the Collector seeking permission to sale the land
were minor at that time and were not represented by their natural
guardians but by one Mawashi s/o Gilhari.
25. There are two laws governing the rights of minor; one is the
Hindu Minority and Guardianship Act, 1956 and the other Guardian
and Wards Act, 1890. Under the 1956 Act, the natural guardian of
Hindu minor is vested with the powers to do all acts which are
necessary, reasonable and proper for the benefit of minor/minors and
the minor's estate. This is premised on the principle of welfare of a
child, which is of paramount consideration. However, the said power
is not unbridled and is fettered as the draftsman, in their wisdom,
contemplated the misuse the powers by natural guardian. Thus, it was
a conscious decision of the legislature to limit the scope of powers of
natural guardian of Hindu minor, as the same was put to judicial
scrutiny while dealing with immovable property of a minor.
26. Likewise, under the Act of 1890, limitation of powers of
guardian of property appointed or declared by the Court and
voidability of transfers made in contravention of section 28 or Section
29 have been incorporated. Thus, it is manifest that intent and object
of provisions of 1956 Act was to equate the legal position of natural
guardian of a Hindu minor with that of a guardian under 1890 Act.
From provisions of both the Acts it is amply clear that clauses (a) and
(b) of Section 29 of the 1890 Act are in pari materia with clauses (a)
and (b) of sub Section (2) of Section 08 of the Act of 1956. Similarly,
Section 30 of the 1890 Act is verbatim at par with Section 8(3) of the
Act of 1956. The pari materia nature of the two statutes is reflective
from the effect of transaction being 'voidable', under both statutes,
where the disposal of an immovable property of the minor by the
guardian is without the prior permission of the court. Therefore it may
be seen that the legislature designated the courts as the custodian of
the rights of the minor and the discretion of the court was to be
exercised based on the paramount consideration of the welfare of the
minor.
27. The aforesaid position of law, at a cursory reading, may, appear
to be contrary to the provisions of the Indian Contract Act, 1872,
which predates both the above acts, and stipulates the effect of a
transaction by and/or with the minor as 'void'. The legislative intent
behind categorizing the effect of a transaction with a minor under the
Contract Act as 'void' is predicated on the premise that a minor cannot
be a contracting party, as a minor is not competent to enter into a
contract in terms of Section 11 of the Contract Act, whereas, under the
1956 Act and/or 1890 Act, the alienation of immovable property,
amongst others, on behalf of the minor is effectuated by the natural
guardian/ guardian. As such, the effect of a transaction executed in the
name of a minor by a natural guardian under the 1956 Act and/ or a
guardian under the 1890 Act is consciously categorized as 'voidable'
as against 'void' owing to the fact that a natural guardian/ guardian
may be acting bonafidely and entering into a transaction for parting the
immovable property of a minor for the benefit of the minor or for the
protection of minor's estate and to hold such a transaction as 'void'
may be adverse to the interests of the minor. Thus, to protect the
interests of a minor, the legislature consciously categorized the
transaction as 'voidable'.
28. The Hon'ble Apex Court in the matter of Vishwambhar vs.
Laxminarayan reported in (2001) 6 SCC 163; has expounded on the
difference between void and voidable documents and while referring
to Gorakhnath Dubey Vs. Harinarayan Singh reported in (1973) 2
SCC 535 has held as follows:
"5. ...We think that a distinction can be made between cases where a document
is wholly or partially invalid so that it can be disregarded by any court or
authority and one where it has to be actually set aside before it can cease to
have legal effect. An alienation made in excess of power to transfer would be, to
the extent of the excess of power, invalid. An adjudication on the effect of such a
purported alienation would be necessarily implied in the decision of a dispute
involving conflicting claims to rights or interests in land which are the subject-
matter of consolidation proceedings..."
29. Following the decision in Vishwambhar vs. Laxminarayan
(supra), the Hon'ble Supreme Court in Nagali Amma Bhawani
Amma Vs. Gopalkrishnan Nair reported in (2004)8 SCC 785; has
held that a transaction entered into by the natural guardian in
contravention of Section 8(2) was not void but merely voidable at the
instance of the minor. Pertinently, the Hon'ble Supreme Court also
clarified that to read anything contrary to the plain meaning of the
statute would have the effect of depriving the minor of the right to
affirm or ratify the transaction upon attaining majority.
30. In light of the settled principles under the 1956 Act, the
disposal/ alienation of an immovable property of a Hindu minor by the
guardian without the sanction of the court is voidable at the instance of
a minor. This position is pari materia to the 1890 Act where Section
29 limits the power of the person appointed/ declared by the court as a
guardian of the property of the minor, to sell the property of the minor
without obtaining the permission of the court and it is well settled that
a voidable document has to be set aside by the court at the request of
the minor before taking its legal effect. As such, setting aside of the
sale which is voidable under Section 8(3) of the 1956 Act and Section
30 of the 1890 Act is necessary for avoiding a transaction where the
sale deed is registered.
31. In the light of aforesaid ennunciations, it would be clear that if
the minor in whose favour permission was sought later on wanted to
avoid the said permission and the sale deed executed in pursuance
thereof had a right to challenge the same and get the sale declared
voidable by a competent civil Court but no such efforts appears to
have been made by the minors after attaining the majority, thus,
merely on the ground that permission was sought on behalf of minors,
which had made the very permission void by the Sub Divisional
Officer is per se illegal, therefore, the finding recorded by the Sub
Divisional Officer in order dated 16.06.1997 that no permission could
have been granted by the Collector for sale of the property so far as
minor is concerned, therefore, the said permission was illegal, appears
to be a perverse finding.
32. Another question, which is put before this Court is as to whether
the provision of Section 170-B that is reversion of land of the
members of aboriginal tribes, which was transferred by fraud is
applicable to the present case or not.
33. Sub section (1) and sub section (2) of Section 170-B provides as
under:-
"(1)Every person who on the date of commencement of the Madhya Pradesh
Land Revenue Code (Amendment), 1980 (hereinafter referred to as the
Amendment Act of 1980) is in possession of agricultural land which belonged to
a member of a tribe which has been declared to be an aboriginal tribe under
sub-section (6) of Section 165 between the period commencing on the 2nd
October, 1959 and ending on the date of the commencement of Amendment Act,
1980 shall, within [two years] of such commencement, notify to the Sub-
Divisional Officer in such form and in such manner as may be prescribed, all
the information as to how he has come in possession of such land.
(2)If any person fails to notify the information as required by sub-section (1)
within the period specified therein it shall be presumed that such person has
been in possession of the agricultural land without any lawful authority and the
agricultural land shall, on the expiration of the period aforesaid revert to the
person to whom it originally belonged and if that person be dead, to his legal
heirs.[(2-A) If a Gram Sabha in the Scheduled area referred to in clause (1) of
Article 244 of the Constitution finds that any person, other than a member of an
aboriginal tribe, is in possession of any land of a bhumiswami belonging to an
aboriginal tribe, without any lawful authority, it shall restore the possession of
such land to that person to whom it originally belonged and if that person is
dead to his legal heirs :Provided that if the Gram Sabha fails to restore the
possession of such land, it shall refer the matter to the Sub-Divisional Officer,
who shall restore the possession of such land within three months from the date
of receipt of the reference.][Inserted by M.P. Act No. 1 of 1998 (w.e.f. 5-1-
1998).]"
34. To appreciate the aforesaid provision, it is also necessary to
consider the order dated 16.12.1995 passed by this Court in W.P.
No.1564/1993, wherein in the matter of predecessor in title of the
present petitioners the said provisions were considered, wherein it was
held as under:-
"7. It is thus clear that even where a vendee in possession has not notified the
particulars as required under sub-section (1) of section 170-B, has a further
opportunity to explain the reasons for his failure to notify the Particulars and if
the reasons are acceptable, sub-section (2) cannot be invoked and the
presumption cannot be drawn. In this connection, it is necessary to refer to an
aspect which was not urged before the Court in Dhirendra Nath Sharma's case.
Failure to notify the information as required under sub-section (1) of Section
170-B of the Code within the period specified leads to a presumption. That is
because of the words "it shall be presumed" occurring in sub-section (2). But the
nature and extent of presumption is that the person in possession has been in
possession without any lawful authority. Sub-section (2) does not expressly or by
necessary implication, indicate that the presumption is either irrebuttable
presumption or that it is a presumption amounting to conclusive proof."
Thus, even if it be presumed that the stand taken by the respondents is correct
and that information was not given even then the respondent authorities cannot
escape their responsibilities to look further into the matter. Let them do so now.
Decision given by the Division Bench referred to above be taken note of. The
petitioner would appear before Sub Divisional Officer on 24.01.1996.
The parties would be at liberty to raise any other point which they wish to raise
before Competent Authority. Decision be taken, without being influenced by
what has already been said by the Revenue Authority. "
35. After considering the aforesaid provisions the matter was
remitted back to the revenue authorities for taking further decision
without being influenced by what has already been said by the revenue
authorities in previous round of litigation and thereafter the impugned
order dated 16.06.1997 came to be passed by the Sub Divisional
Officer. The first ground taken by the Sub Divisional Officer in
holding that the lands in question were transferred illegally in favour
of the petitioner to the exclusion of members of the aboriginal tribes is
that the permission dated 20.01.1968 was an illegal order, as it was
passed in favour of minors, which made it void document and
secondly was in derogation of provisions of Section 165 (6) of M.P.
Land Revenue Code.
36. The aforesaid aspect is not further required to be gone into as it
has already been discussed in the preceding paras that such a
document would be termed as a voidable document and not as void
document and could be challenged by the minors before competent
civil Court after attaining majority but the minors after attaining the
age of majority had not challenged the said document before any
competent Court of Civil Jurisdiction and had not sought declaration
of the sale deed executed on its behalf to be null and void.
37. So far as the finding with regard to fraud as arrived by the Sub
Divisional Officer and tried to justified by Respondent's counsel by
placing reliance on the decision of Gopichand Vs. State of M.P.
(Supra) is concerned, only on the basis that in the report it came that
possession was that of the respondents over the property in question, a
fraud had been perpetuated against them in getting the sale deed
executed appears to be wholly misconceived, as there is no iota of
material available on record that in any way fraud was
committed/played by the petitioners/their predecessors in title in
getting the order dated 20.01.1968 and sale deed executed in their
favour.
38. In the case of A.C. Ananthaswamy & Others vs Boraiah
reported in (2004) 5 SCC 588; it was held that fraud is to be pleaded
and proved and to prove fraud, it must be proved that representation
made was false to the knowledge of the party making such
representation or that the party could have no reasonable belief that it
was true. The level of proof required in such cases is extremely higher.
An ambiguous statement cannot per se make the representor guilty of
fraud and it should be proved that it was made false to the knowledge,
but herein case learned Sub Divisional Officer has presumed fraud in
absence of any pleadings or proof, thus, the said finding is also
perverse.
39. Also, with regard to the fact that the sale deeds were executed
by misrepresenting the members of aboriginal tribes as there was no
ascertainment of the market value and the value shown in the
registered deed and there was no proof as on the basis of market value
the sale deed was executed and as no witness of sale deed has been
produced to prove the said fact, therefore, it can be presumed that the
consideration was not paid honestly and, therefore, under the
provisions of Section 170-B of MPLRC the land is required to revert
back to the members of aboriginal tribe, in wake of any pleadings or
proof cannot be said to be proved.
40. Thus, merely on the ground that transfer was not notified to the
revenue authorities within a period of two years as provided under sub
Section (1) of Section 170-B, the land is required to be reverted back
to the aboriginal tribes appears to be not correct and in total derogation
of the directions of this Court in W.P. No.1564/1993 dated 06.12.1995,
thus, on this count also the finding appears to be bad in law.
41. Since the very order by which the learned Sub Divisional
Officer has taken view that the land is required to be reverted back to
the respondents i.e. members of the aboriginal tribes and their names
are required to be recorded in revenue records has been held to be
perverse, the findings recorded by the Collector vide order dated
22.06.2007 in appeal No.4/2006-07 and order dated 15.07.2008 passed
by Additional Commissioner revision No.234/2006-07, whereby the
order dated 16.06.1997 passed by the Sub Divisional Officer was
upheld, is held to be perverse. Accordingly, all the orders are hereby
set aside. The authorities are directed to mutate the names of
petitioners in the revenue records.
42. The judgments cited by Shri P.C. Chandil, learned counsel for
respondents No.3 to 8 in the light of above discussion are not
applicable to the present case.
43. Accordingly, the present petition is allowed in the above terms
and disposed off.
Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
neetu
NEETU Digitally signed by NEETU SHASHANK
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
SHASH
2.5.4.20=36b486bb0d381b950e435e
c09e066bc6b58cb947c1474b7dc349
a1cf27eaa2ce, postalCode=474001,
st=Madhya Pradesh,
serialNumber=E60A9BBFC39E0EE500
ANK
EAADE1E0B3B8565CB3A7DC9F5CD0
48197DF0FF3149AE58, cn=NEETU
SHASHANK
Date: 2025.06.24 17:42:44 +05'30'
