Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1349 (MP)

Manjeet Bhalla v. State of M. P.

2009-12-04

A.K.SHRIVASTAVA, S.SAMVATSAR

body2009
JUDGMENT Per S. Samvatsar, J. -- 1. This writ appeal is preferred by the petitioner being aggrieved by the order dated 27.10.2009 passed by the Single Bench of this Court in Writ Petition No. 4299/06 whereby the learned Writ Court has dismissed the writ petition filed by the present appellant challenging the order dated 14.8.2006 passed by the Additional Commissioner, Gwalior Division, Gwalior. 2. Facts of the case, narrated briefly stated, are that the present appellants had approached this Court by way of filing the writ petition with allegation that village Aaukhana Khurd was a Zamindari village. The Ex-Zamindar one Pandurang Rao had leased out the disputed land which is survey number 195, 218 and 219 of one Bapu Shaheb Temak in the year 1948-49. On abolition of Zamindari, said Bapu Saheb Temak became the Pucca Krishak of the said land and consequently, on coming into force the Madhya Pradesh Land Revenue Code, 1959 he acquired the status of Bhoomiswarni. After the death of said Bapu Saheb Temak, his son Shiv Singh inherited the said property. Said Shivsingh sold the aforesaid three survey numbers to one Ramnath vide registered sale deed dated 18.4.1975. Said Ramnath executed a Will on 21.11.1986 in favour of the present appellants. Ramnath died on 13.12.1987. Thus, the present appellants became the owner of the property. 3. Present appellants filed an application under section 113 of the Madhya Pradesh Land Revenue Code, 1959 (for brevity, the "Code") on 29.12.2000 for correcting the revenue record. Said application was allowed by the Sub Divisional Officer vide order dated 20.9.2002 and the revenue entries were corrected vide khasra entry Annexure P/9. 4. Subsequent, notices were issued by the Sub Divisional Officer to the appellants writ petitioners for review of the said order in exercise of his suo motu powers. Said matter was registered as Case No. 6/03-04/A-1. Said review application was disposed of by the Sub Divisional Officer vide order dated 5.8.2004 and the order passed by the Sub Divisional Officer on 20.9.2002 was maintained. Thereafter again, notices were issued to the appellants on 23.9.2006 by the Additional Commissioner for exercising powers of suo motu review. This matter was registered as case No. 258/05-06/suo motu review. Present appellants had submitted their reply. After filing of the reply, present appellants filed an application for transfer of the said case before the Board of Revenue on 8.8.2006. Thereafter again, notices were issued to the appellants on 23.9.2006 by the Additional Commissioner for exercising powers of suo motu review. This matter was registered as case No. 258/05-06/suo motu review. Present appellants had submitted their reply. After filing of the reply, present appellants filed an application for transfer of the said case before the Board of Revenue on 8.8.2006. Notice of transfer application were issued, but in spite of knowledge of the said proceedings, the Additional Commissioner allowed the review vide order dated 14.8.2006. This order passed by the Additional Commissioner was assailed by the present appellants before the learned single Judge by filing writ petition which stood dismissed by the impugned order. Hence, this writ appeal. 5. The first contention raised by Shri M.N. Krishnamani, Advocate on behalf of the appellants writ petitioners is that the impugned order passed by the learned Single Judge is illegal and contrary to law. The learned writ Court has not considered the fact that the title of the property in question is already decided by the civil Court in favour of the present appellants and therefore, the learned writ Court has committed an error in dismissing the writ petition. It is further contended that the learned writ Court has completely ignored the impact of the judgment passed by the civil Court between the same parties. He also contended that exercising powers of suo motu review after expiry of four years is illegal and contrary to law in view of the judgments of the apex Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Suppl. Gurgaon, AIR 1969 SC 1267 and M/s. S.B. Gurbaksh Singh v. Union of India and others, (1976) 2 SCC 181 . In both these cases, the apex Court has laid down that suo motu powers of review should be exercised within a reasonable time. As per the said judgments of the apex Court, "reasonable time depends upon facts and circumstances of each case but it may not be above six months. It is contended by the learned counsel for the appellants that the learned single judge has not considered this aspect of the matter. Learned counsel for the appellants next contended that the State Government was a party to the suit which was filed in respect of the same property and is bound by the said judgment and decree. It is contended by the learned counsel for the appellants that the learned single judge has not considered this aspect of the matter. Learned counsel for the appellants next contended that the State Government was a party to the suit which was filed in respect of the same property and is bound by the said judgment and decree. Hence the revenue authorities had no jurisdiction to arrive at any conclusion contrary to the judgment of the civil Court so far as title is concerned. It is next contended that so far as adjacent land is concerned, neighbourers of the appellants had filed civil suit in which it was held that Bapu Saheb Temak was Bhoomiswami of the land and this judgment is upheld upto the apex Court. In view of all these facts, it is contended by the learned counsel for the appellants that the impugned order as well as the order passed by the Additional Commissioner impugned before the learned writ Court deserves to be set aside. 6. Shri P.N. Gupta, learned Government Advocate appearing on behalf of the respondents State, on the other hand, opposed the arguments raised by Shri Krishnamani and contended that earlier suit was not between the same parties. He contended that the property in question was never purchased by the predecessor-in-title of the appellants-writ petitioners and the appellants have no right to the property in question. He contended that, the Additional Commissioner was therefore, right in exercising his power of suo motu review. He pointed out that the sale deed Annexure P/4 does not refer to any survey number. Hence, identity of the land purchased by the present appellants is also not proved. As such, according to learned Government Advocate, impugned order is correct and the appeal, therefore, deserved to be dismissed. 7. Having heard learned counsel for the parties and perusing the record, we find that copy of Patta which was executed by the Zamindar Pandurang Rao in favour of Bapu Saheb Temak is on recordasAnnexureP/3. This Patta includes survey numbers 195, 218 and 219 which is the subject matter of this appeal. From perusal of the said Patta, it appears that Patta was granted in Samvat 2005, that is, years 1946. 8. Annexure P/4 is a copy of sale deed executed by Shivsingh who was son of Baburao in favour of Ramnath Verma and Santosh Kumar. From perusal of the said Patta, it appears that Patta was granted in Samvat 2005, that is, years 1946. 8. Annexure P/4 is a copy of sale deed executed by Shivsingh who was son of Baburao in favour of Ramnath Verma and Santosh Kumar. This sale deed was executed on 18.4.1975. It is true that no survey numbers are mentioned in the said sale deed, however, from perusal of the sale deed, it appears that the property consisted of building and boundary of the property is mentioned at page number 2 of the said sale deed. Said sale deed is accompanied by a map in which the property is shown in red line. Having perused the map enclosed with this sale deed it was not possible for this Court to ascertain the exact situation of the property sold by way of the said sale deed since as per the sale deed, the property sold by this sale deed is surrounded by red line and the map enclosed by the appellant writ petitioner being a photo state copy, it could not be possible to find out red colour line in the map. Therefore, this Court called for the original sale deed from the appellant as well as record from the office of Sub Registrar. On comparison of the said map with the original, we find that survey numbers 195, 218 and 219 are included in red line. Thus, the subject matter of the sale deed was the above three survey numbers apart from some other property. Hence, from this document, it is clear that Shivsingh son of Bapu Singh had transferred his rights in the said property in favour of Ramnath Verma and Santosh Kumar. 9. Annexure P/5 is a copy of the Will executed by Ramnath Verma in favour of the present appellants. Present appellants on the basis of this Will filed an application for probate after the death of said Ramnath Verma. Copy of the death certificate of said Ramnath Verma is on record as Annexure P/6. Annexure P/7 is a copy of judgment dated 13.5.2005, delivered by of this Court in Misc. Appeal No. 760/2000 in the matter of probate, whereby this Court had granted probate in respect of the disputed property in favour of the present appellants. Thus, the property in question stood transferred in favour of the present appellants. 10. Annexure P/7 is a copy of judgment dated 13.5.2005, delivered by of this Court in Misc. Appeal No. 760/2000 in the matter of probate, whereby this Court had granted probate in respect of the disputed property in favour of the present appellants. Thus, the property in question stood transferred in favour of the present appellants. 10. Annexure P/8 is a copy of order dated 20.9.2002 passed by Sub Divisional Officer, Gwalior allowing the application filed by the present appellants under section 113 of the Code for correcting the revenue record. The revenue record stood corrected vide annexure P/9. 11. From perusal of the record, it appears that subsequently, the Sub-Divisional Officer had exercised his suo motu powers for reviewing the earlier order and ultimately disposed of the review by maintaining the earlier order. Thereafter, fresh notices were issued on 29.3.2006 by the Additional Commissioner in exercise of suo motu powers of review and the order was passed by the Additional Commissioner which was impugned before the learned writ Court. 12. Annexure R/1 is a copy of the judgment 31.8.2006 passed by the Court of sixth Civil Judge Class II, Gwalior in Civil Suit No. 49A/94. From perusal of the said judgment, it appears that the said judgment, it appears that the said suit was filed by Nirmal Kumar, Manish Kumar and Hemant Kumar, the three sons of Ramnath Sharma for injunction restraining the State Government from interfering in the land bearing survey numbers 218 and 219. In the said suit, Issue No. 1 was framed by the trial Court to the effect whether the plaintiffs are the owners of the land bearing survey numbers 218 and 219 situate at Aaukhana Khurd and the trial Court answered the said issue in affirmative. Said Judgment, and decree passed by the trial Court was challenged by the State Government by preferring Appeal No. 16/07 before the Court of Sixth Additional District Judge Gwalior. Said appeal stood dismissed by the appellate Court vide order dated 12.7.2007 on the ground that the appeal is barred by limitation. It is true that the said appeal was not decided on merits, nevertheless, the order passed by the trial Court in the civil suit is maintained. 13. Said appeal stood dismissed by the appellate Court vide order dated 12.7.2007 on the ground that the appeal is barred by limitation. It is true that the said appeal was not decided on merits, nevertheless, the order passed by the trial Court in the civil suit is maintained. 13. At the request of learned counsel for the parties, this Court has ascertained from the Registry of this Court whether or not any appeal was preferred by the State Government to the High Court against the judgment and decree passed by the Sixth Additional District Judge, Gwalior, and we have found that no such appeal was preferred. Thus, the judgment and decree passed in Civil Suit No. 49A/94 has attained finality in which it is held that the land bearing survey numbers 218 and 219 are owned by the plaintiffs in the said suit. 14. It is true that this judgment and decree was not brought to the notice of the Additional Commissioner at the time of deciding the suo motu review, nonetheless, said documents were filed before the learned writ Court as annexure R/1, R/2, and R/3. From perusal of the impugned order passed by the learned Single Judge, we find that there is absolutely no reference to the said documents in the order. 15. The contention, of the learned counsel for the appellants is that in view of this judgment and decree, now title of the present appellants to the property in question cannot be challenged because the question of title has attained finality between the parties or the person who are claiming title through the parties to the said proceedings under section 11 of the Code of Civil Procedure. 16. In the present case, the property in question has come to Ramnath by virtue of the sale deed executed by Shivsingh son of Bapurao Temak and the present appellants have become the owners of the suit property by virtue of Will executed by Ramnath which is probated by this Court. Thus, the appellants are claiming right to the property through Ramnath. So far Ramnath is concerned, civil suit was filed by the sons of Ramnath in which it is held that sons of Ramnath have acquired title to the property. 17. Thus, the appellants are claiming right to the property through Ramnath. So far Ramnath is concerned, civil suit was filed by the sons of Ramnath in which it is held that sons of Ramnath have acquired title to the property. 17. The contention of Shri P.N. Gupta, learned Government Advocate appearing for the respondents State is that as the appellants are not claiming rights through Ramnath and are claiming through his sons, the plea of res judicata will have no application because the appellants are not claiming through the plaintiffs in the said suit. This argument appears to be attractive, but without any merit because, the property in dispute in the civil suit and the present writ petition is the same. There may be inter se dispute between the heirs of Ramnath, one group of heirs claiming itself to be the owner of the property by natural succession while another group of heirs on the basis of Will. Nonetheless, the dispute in the earlier case was whether Bapu Sehab Tamek was the owner of the property or not and it was held that Bapu Saheb Tamak was the title holder of the property and the State Government is bound by the said judgment and decree. 18. Another ground on which present writ appeal deserves to be allowed is that the order dated 14.8.2006 passed by the Sub-Divisional Officer shows that he had passed the order in exercise of power under section 57 (2) of the Code. If in a proceeding under section 57 (2) of the Code any order in respect of title is passed by the revenue authorities, then it is open for the aggrieved party to file a civil suit as contemplated under section 57 (3) of the Code. The State Government against which the findings are arrived at has not challenged the said findings and, therefore, the said order has also attained finality. 19. Moreover, the order passed by this Court in second appeal No. 5/80 shows that in that case also, the appeal filed by the State Government was admitted on the question whether Bapu Saheb Tamak is the owner of the disputed land. Said Appeal was decided against the State Government and Special Leave Petition preferred by the State Government was also dismissed by the apex Court. Said Appeal was decided against the State Government and Special Leave Petition preferred by the State Government was also dismissed by the apex Court. Thus, in another case, which is pertaining to other part of the property owned by said Bapu Saheb Tamak, it is finally held that said Bapu Saheb Tamek was the owner of the property. In the said appeal, the State Government was the appellant. In such appeal, the State Government was the appellant. In such a situation, there is overwhelming material on record to show that said Bapu Saheb Temak was the owner of the property. After his death, the property devolved on Shivsingh. Shivsingh sold it to Ramnath who died on 13.12.1987. Said Ramnath executed will in favour of the present appellants who appointed probate of the Will and acquired title through Ramnath. In such a situation, the Additional Commissioner had no jurisdiction to exercise his powers of suo motu review. 20. It has also come on record that earlier also, notices in exercise of suo motu, review powers were issued. But the proceedings were ultimately dropped by maintaining the order passed by the Sub Divisional Officer. Thus, it is clear that the revenue authorities are repeatedly exercising their power of suo motu review. 21. That apart, question of delay is also germane is also material in the case in hand, as the power of suo motu review is exercised after lapse of four years, when as per the dictum of the apex Court, referred to above in the case of Jai Jai Ram Manohar Lal and S.B. Gurbaksh Singh (supra) wherein the apex Court has held that for exercising suo motu powers of review, six months time is a reasonable time. There is no explanation on record about the delay on the part of the State Government in exercising the powers of suo motu review. 22. Moreover, from perusal of the order passed by the Additional Commissioner impugned before the learned writ Court, it also appears that he was aware of the fact that an application was moved for transferring the case to another Court on 8.8.2006 still he passed the order passed 14.8.2006. This fact is mentioned by the Additional Commissioner himself in his order. This shows that he has acted with undue haste in the matter. 23. This fact is mentioned by the Additional Commissioner himself in his order. This shows that he has acted with undue haste in the matter. 23. Considering the totally of the facts and circumstances as indicated herein above and the material on record. this writ appeal deserves to be and is hereby allowed by setting aside the impugned order passed by the learned writ Court as also the order dated 14.8.2006 passed by the Additional Commissioner impugned before the learned Writ Court.