Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1212 (MP)

Sakhi Gopal Dixit v. Board of Revenue

2009-10-22

R.S.JHA

body2009
ORDER 1. The petitioner has filed this petition being aggrieved by order dated 3.2.2009 passed by the Madhya Pradesh Board of Revenue, Gwalior setting aside the order dated 12.10.2007 passed by the Additional Commissioner, Sagar Division, Sagar, by which he had remitted the matter back for passing fresh orders after hearing the petitioner. 2. The brief facts, leading to the tiling of the present petition, are that Khasra Nos. 430, 826 to 829, 847 to 857 totalling an area of 3.67 hectares and Khasra Nos. 366, 1045 and 1105 area 4.61 hectares initially stood in the name of two brothers Rajendra Kumar and Ram Swaroop. Rajendra Kumar died issueless in the year 1992 and thereafter the name of his brother Ram Swaroop continued to be recoded in the revenue records. Ram Swaroop died issueless on 4.10.2006 and therafter respondent No.2 being the sole surviving relative of deceased Ram Swaroop being the son of his aunt filed an application on 5.10.2006 for mutation of his name in the revenue records under Sections 109 and 110 of the M.P. Land Revenue Code (hereinafter referred to as 'the Code'). The application was taken on record and a proclamation was issued inviting objections from all interested persons in accordance with the procedure prescribed by Section 110 of the Code. As no objections were received the Superintendent, Land Records, Chattarpur recorded allowed the statement of respondent No.2 and his witnesses and thereafter allowed the application for mutation filed by respondent No.2 by order dated 16.11.2006. 3. Being aggrieved by the order passed by the Superintendent, Land Records, Chattarpur dated 16.11.2006 the petitioner filed an appeal before the Collector, Chattarpur which was dismissed by the Additional Collector by order dated 31.8.2007. The petitioner, thereafter, approached the Commissioner, Sagar Division, by filing a Second Appeal and the Additional Commissioner, Sagar Division, Sagar by order dated 12.10.2007 remitted the matter back to the Superintendent, Land Records for passing fresh orders after giving opportunity of hearing to the petitioner who claimed himself to be the owner of the property on the basis of a 'Will' executed by deceased Ram Swaroop on 4.10.2006. 4. 4. The respondent No.2 being aggrieved by the order passed by the Additional Commissioner, Sagar Division, Sagar dated 12.10.2007 approached the Board of Revenue and the Board by the impugned order dated 3.2.2009 has set aside the order passed by the Additional Commissioner, Sagai Division, being aggrieved by which the petitioner has filed the present petition. 5. It is submitted by the learned counsel appearing for the petitioner that the petitioner has a validly executed 'Will' in his favour executed by the deceased Ram Swaroop on 4.10.2006 in respect of half of the total property which was also duly registered after the death of Ram Swaroop on 14.11.2006 and in such circumstances the petitioner was required to be heard by the concerned authority before passing the orders allowing the application for mutation filed by respondent No.2 and in such circumstances the impugned order of the Board of Revenue setting aside the order dated 12.10.2007 passed by the Additional Commissioner, Sagar Division remitting the matter back to the authority for passing fresh orders after giving due opportunity of hearing to the petitioner is patently illegal and deserves to be set aside as the authority was and is required to hear the petitioner before passing any orders on the application for mutation filed for respondent No.2. 6. From a perusal of the petition as well as the document on record it is clear that respondent No.2 filed an application for mutation of his name on 5.10.2006 on the basis of which a proclamation was issued by the Superintendent, Land Records which fact has been affirmed by all the Courts after perusing the record of the authority. It is also clear that the petitioner did not file any objection pursuant to the proclamation issued by the authority in accordance with the procedure prescribed by Section 110 of the Code and, therefore, the authority after recording the statement of respondent No.2 and his witness and by recording a finding that respondent No.2 was the sole surviving relative of the deceased has allowed the application for mutation. It is also clear that the petitioner, who could have and should have filed an objection alongwith an application on the basis of the Will for mutation of his name, did not do so for a period of 1-1/2 months. It is also clear that the petitioner, who could have and should have filed an objection alongwith an application on the basis of the Will for mutation of his name, did not do so for a period of 1-1/2 months. From the record it is clear that the petitioner, for the first time, made a claim before the Appellate Authority based on the 'Will' dated 4.10.2006 and the Collector, on finding that the lower authority had passed orders after following the procedure prescribed by law, refused to interfere in the said order. 7. It is also apparent from a perusal of the impugned order passed by the Board of Revenue that the authority has discussed the matter in detail and has also taken into consideration the fact that the 'Will' in favour of the petitioner was executed on the same day when Ram Swaroop died; the Will has been executed in favour of the petitioner by stating that he is the son-in-law of the deceased when admittedly the deceased died issueless; that it was registered nearly 1-1/2 months after his death i.e. on 14.11.2006; that the petitioner did not file any objection or object to the application filed by respondent No.2 before the Superintendent, Land Records; that the 'Will' did not contain the photographs of the deceased testator; and that the original 'Will' was not produced before the authority. The Board of Revenue has also taken into account the fact that the original authority has passed the order after following the procedure prescribed by law an in such circumstances the question of setting aside the order and again giving the petitioner and opportunity of hearing, which would be an unending process, was unwarranted. 8. At this stage, it is also pertinent to take into consideration the provisions of Section 111 of the Code, which read as under :-- "111. Jurisdiction of Civil Courts -- The Civil Courts shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record-of rights." 9. Jurisdiction of Civil Courts -- The Civil Courts shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record-of rights." 9. From a perusal of the aforesaid Section in juxtaposition to the provisions of Section 109 and 110 of the Code, it is clear that the petitioner should have filed an objection before the original authority on issuance of a proclamation and as he failed to do so and is aggrieved by the order, his remedy lies before the competent Civil Court in view of the provisions of Section 111 of the Code wherein the petitioner can take up proceedings by filing an appropriate application on the basis of his claim based on the 'Will' executed by deceased Ram Swaroop. 10. In view of the aforesaid, as the original order passed by the Superintendent, Land Records dated 16.11.2006 has been passed after following the due procedure prescribed by law and does not suffer from any preversity or illegality and as the Board of Revenue, by the impugned order dated 3.2.2009, has reaffirmed that order after due application of mind to each and every issue raised by the petitioner, I am of the considered opinion that the impugned order does not warrant any interference by this Court specifically in view of the provisions of Section 111 of the Code which make it abundantly clear that the remedy of the petitioner against the order passed under Section 110 of the Code lies before the competent Civil Court. 11. It needs no clarification or observation to state that the petitioner would be at liberty to take up all the issues before the competent Civil Court in case he chooses to initate or institute any action thereto. It also needs no emphasis to state that in case the petitioner chooses to take up proceedings before the competent Civil Court, the Court would be required to decide the matter on its own merits and shall not be influenced by the orders passed by the authorities in accordance with law. 12. In view of the aforesaid facts and circumstances, I do not find any merit in the petition warranting interference in the impugned order dated 3.2.2009 passed by the Board of Revenue which order is, accordingly, affirmed. The petition being meritless is, accordingly, dismissed. 12. In view of the aforesaid facts and circumstances, I do not find any merit in the petition warranting interference in the impugned order dated 3.2.2009 passed by the Board of Revenue which order is, accordingly, affirmed. The petition being meritless is, accordingly, dismissed. In the facts and circumstances of the case there shall be no order as to the costs.