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2012 DIGILAW 1176 (MP)

Bharat Singh v. Ashok Chaudhary

2012-11-09

SUJOY PAUL

body2012
Judgment Sujoy Paul, J.;- 1. In this writ petition, the petitioner has challenged the order dated 11.6.2012 (Annexure P1) passed by the Board of Revenue. Brief facts necessary for adjudication of this matter are :- (i) The petitioner and one Harisingh filed an application before the Tahsildar under Sections 190 and 110 of the M.P. Land Revenue Code, 1959 (in short 'MPLRC') against Kashiram, Surajsingh and Kailash. This matter was registered as case No. 05/83-84/A-46. (ii) In the said matter, Kashiram (father of present respondents No. 10 and 11) preferred an application with his affidavit on 28.6.1986 wherein he admitted the possession of applicants of the said matter over the land in question. (iii) The Tahsildar passed order in favour of the petitioner on 16.4.1999 (Annexure P/4). After the said order dated 16.4.1999, the name of petitioner and Harisingh was mutated in the revenue record. (iv) Against the order of Tahsildar dated 16.4.1999, Babusingh (non-applicant No. 4 in the proceedings before the Tahsildar) preferred an appeal before the Sub-Divisional Officer, Gwalior, bearing appeal No. 106/2006-07/appeal. The said appellant Babusingh died during the pendency of the appeal and present respondents No. 2(i) to 2(vii) were brought on record as his L.Rs. before the Sub-Divisional Officer, Gwalior. Accordingly, the said respondents contested the said appeal. The Sub Divisional Officer vide its order dated 8.6.11 Annexure P/5 dismissed the said appeal. (v) Against the order dated 8.6.11 passed by the Sub-Divisional Officer, an appeal was preferred by respondents No. 2(i) to 2(vii) before Additional Commissioner, Gwalior, which was registered as appeal No. 423/2010-11. During the pendency of that appeal, the parties settled their dispute out of the Court and on the basis of the said settlement, a written consent deed was prepared which is marked as Annexure P/6 to P/10. (vi) On the basis of the aforesaid settlement, an application was filed before the Additional Commissioner aforesaid to withdraw the appeal. The applications were supported by affidavits of the parties to the said appeal. One Shri Muneshwar Singh Tomar preferred an application under Order 1 Rule 10 CPC for his impleadment as party in the appellate stage, however, the appellate authority, learned Additional Commissioner, passed the order on 9.8.11 and disallowed the application of said Shri Tomar under order 1 Rule 10 CPC and permitted the parties to withdraw the appeal. One Shri Muneshwar Singh Tomar preferred an application under Order 1 Rule 10 CPC for his impleadment as party in the appellate stage, however, the appellate authority, learned Additional Commissioner, passed the order on 9.8.11 and disallowed the application of said Shri Tomar under order 1 Rule 10 CPC and permitted the parties to withdraw the appeal. The order of the SDO dated 8.6.11 was upheld by the appellate authority. (vii) The present respondent No. 1 who was neither a party to the proceedings before the Tahsildar nor before the SDO filed an appeal before the Additional Commissioner against the order dated 8.6.11 passed by the SDO. The said appeal was preferred on the basis of an agreement to sell allegedly made in favour of respondent No. 1. The said appeal of respondent No. 1 was dismissed by Additional Commissioner by order dated 9.8.11 holding that the said appellant/respondent No. 1 was not a party to the proceedings, and therefore, has no locus standi to file the appeal. (viii) Thereafter, respondent No. 1 preferred a revision before the Board of Revenue which was entertained by Board of Revenue and the order passed by Additional Commissioner dated 9.8.11 was set aside and the matter is remitted back to the said authority to decide it on merits. 2. Shri Sanjeev Jain, learned counsel for the petitioner, attacked this order on two counts; (i) the revision under Section 50 of the MPLRC was not maintainable at the behest of respondent No. 1 who has no locus to challenge the order passed by the subordinate authorities. (ii) On the strength of an agreement to sale, no right is accrued in favour of respondent No. 1, and therefore, the Board of Revenue has committed an error in entertaining the revision. 3. Per contra, Shri K.S. Tomar, learned senior counsel for respondent No. 1, relied on a recent judgment of this Court reported in 2012 (3) M.P.H.T. 183 (Jitendra Singh Vs. Rambabu & Ors.) to submit that respondent No. 1 is an aggrieved person and has a legal right. He relied on following judgments:- (i) 2011 (4) M.P.L.J. 547 (Anil Rajawat Vs. Dashrath Singh Gurjar & Ors.) (ii) 1976 JLJ SN 34 (State v. Surat Singh and another) (iii) 1978 M.P.L.J. SN 65 (Shitalchand v. Budhasingh) (iv) AIR 1974 SC 1719 (Shanti Kumar R. Canji Vs. Home Insurance Co. of New York) 4. He relied on following judgments:- (i) 2011 (4) M.P.L.J. 547 (Anil Rajawat Vs. Dashrath Singh Gurjar & Ors.) (ii) 1976 JLJ SN 34 (State v. Surat Singh and another) (iii) 1978 M.P.L.J. SN 65 (Shitalchand v. Budhasingh) (iv) AIR 1974 SC 1719 (Shanti Kumar R. Canji Vs. Home Insurance Co. of New York) 4. I have heard learned counsel for the parties and perused the record. 5. The question of locus of respondent No. 1 is no more res integra in view of the Division Bench judgment of this Court reported in 1975 JLJ 155 (Devi Prasad & another v. Nake & others). The relevant portion of the said judgment reads as under:- Apparently, therefore, non-petitioner No. 1 not being a party to the proceedings could not be said to be a person aggrieved and, therefore, cannot file a review or revision application against the order. It was contended by the learned Counsel that exercising jurisdiction under S.50 the authorities could act suo motu, but it is apparent from the orders of the Board of Revenue, Collector and Commissioner that they were not acting suo motu exercising jurisdiction under section 50. In the decision referred to above a similar contention was raised and it was answered in words:- The short answer to this contention is that the two appellate authorities did not act under that section 6. It is relevant to mention here that this Division Bench judgment is passed dealing with relevant provisions i.e. Section 50 and 51 of the MPLRC. The judgments cited by Shri K.S. Tomar, learned senior counsel, are based on different statutes and on a different fact situation. Once a direct authority is available dealing with the very same provision, I am bound by the said Division Bench judgment. In other words, the judgments which are not on the same statutory subject but are relied on for the purpose of analogy cannot be pressed into service. In other words, the judgments cited by Shri Tomar are based on other provisions of law and are not directly dealing with Section 50 of MPLRC. I am bound by the Division Bench judgment, and therefore, I am bound to hold that the revision at the behest of respondent No. 1 herein was not tenable. Respondent No. 1 was neither a party before the Tahsildar nor before the SDO. I am bound by the Division Bench judgment, and therefore, I am bound to hold that the revision at the behest of respondent No. 1 herein was not tenable. Respondent No. 1 was neither a party before the Tahsildar nor before the SDO. Accordingly, at his instance neither the appeal nor the revision was tenable. 7. I also find force in the argument of Shri Sanjeev Jain, learned counsel for the petitioner, that agreement to sell alone does not confer any right, interest or title in favour of respondent No. 1. This view is taken by Supreme Court in AIR 1967 SC 744 (Ram Baran Prasad v. Ram Mohit Hazra & Ors.) and (2004) 8 SCC 614 (Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra (Dead) Through LRs. ), and therefore, on this count also, respondent No. 1 had no locus to file the revision before the Board of Revenue. On the basis of aforesaid analysis, the order Annexure P/1 cannot be upheld. Consequently, Annexure P/1 is set aside. Petition is allowed to the extent indicated hereinabove. No costs.