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Madhya Pradesh High Court · body

2012 DIGILAW 903 (MP)

Prism Cement Ltd. v. Saroj Singh

2012-09-14

U.C.MAHESHWARI

body2012
JUDGMENT Heard on the question of admission. 1. On behalf of the petitioner this petition is preferred under Article 226 of the Constitution of India (under the circumstances, the same is being considered under Article 227) for quashment of the order dated 18.4.2011, (Ann. P-9), passed by the Board of Revenue of the State of M.P. Gwalior in Revision No. 44-42/ Ex./08, whereby allowing such revision of the respondent nos. 5 to 8, filed against the respondent nos. 1 to 4, in part by setting aside the order dated 14.11.07 passed by the Upper Commissioner, Rewa Division in Case No. 412/Revision/06-07, the case has been remitted back to the Court of Tahsildar with some directions to decide afresh. 2. Counsel for the petitioner after taking me through papers placed on record argued that the impugned order being passed without impleading to the petitioner so also without considering its acquired vested right through registered sale deed dated 19th September 2008, from respondent nos. 5 to 8 in the alleged disputed land, is not sustainable under the law and prayed for admission and allowing this petition. 3. As per impugned order of Board of Revenue (Ann. P-9), initially the respondent nos. 5 to 8 herein filed an application under section 178, r/w sections 109 and 110 of the M.P. Land Revenue Code, in short “The Code” against the respondent nos. 1 to 4 on dated 6.12.1999 in Court of Tahsildar for partition of the disputed land between amongst the Co-Bhumiswamis. The same was registered as revenue case no. 17/A-27/99-2000. On consideration, such application was allowed, vide order dated 17.1.2000, (Ann. P-3). On filing the review petition against such order same was dismissed by Tahsildar, vide order dated 23.4.2005, (Ann. P-4). Being aggrieved by such order the respondent nos. 1 to 4 herein filed the revision bearing no. 94, 92/revision/05-06 in the Court of Upper Collector. On consideration, vide order dated 24.3.07 (Ann. P-5), the same was allowed and by setting aside the order of Tahsildar, the case was remitted back with some directions to decide afresh. Such order of Upper Collector was challenged by respondents no. 5 to 8, herein by way of revision bearing no. 412/revision/06-07 in th Court of Upper Commissioner, Rewa. On consideration by affirming the order of Collector, such revision was dismissed, vide order dated 14.11.07, (Ann. P-6), on which the respondents no. Such order of Upper Collector was challenged by respondents no. 5 to 8, herein by way of revision bearing no. 412/revision/06-07 in th Court of Upper Commissioner, Rewa. On consideration by affirming the order of Collector, such revision was dismissed, vide order dated 14.11.07, (Ann. P-6), on which the respondents no. 5 to 8 went to the Board of Revenue. On consideration such revision was allowed by the impugned order, (Ann. P-9) and all aforesaid orders of subordinate revenue authorities were set aside and the case has been remitted back to the Court of Tahsildar with directions to decide afresh after impleading the other co-bhumiswamis who were not impleaded earlier, in the matter and considering the alleged Will dated 2.9.2001 and 15.10.2011, after holding appropriate enquiry in respect of the same. 4. After passing the aforesaid order, Annexure P-9, the petitioner which was not impleaded as the party at any stage of revenue cases from the Court of Tahsildar upto the Board of Revenue has come with this writ petition stating that he being purchaser of the land in dispute through registered sale deeds from the respondents no. 5 to 8 has a right and authority to challenge the impugned order. According to the provision of section 178 of M.P.L.R. Code the partition proceeding relating to the agricultural land could be carried out between among the Co-Bhumiswamis and as per settled proposition in the absence of any such Co-Bhumiswami, such proceeding could not be affectively adjudicated. 5. As per impugned order, (Ann. P-9), it is apparent that some of the Co-Bhumiswami of the disputed land were not impleaded in the proceeding held by the Tahsildar. Inspite that by allowing the said application of section 178 of the Code, the Tahsildar passed the order for partition. Thereafter upto the Board of Revenue at any stage such Co-Bhumiswamis, as stated by the Board of Revenue in para 6 of its order were not impleaded as party in the matter. So in the lack of impleadment of necessary party, the entire proceedings of the aforesaid revenue authority was not in accordance with law. Thus, considering such aspect, the Board of Revenue has not committed any error either in setting aside the order of the subordinate authorities or remitting back the matter to the Court ot Tahsildar with aforesaid directions to decide the same afresh. 6. Thus, considering such aspect, the Board of Revenue has not committed any error either in setting aside the order of the subordinate authorities or remitting back the matter to the Court ot Tahsildar with aforesaid directions to decide the same afresh. 6. Besides the aforesaid the petitioner has come to this Court stating that he being purchaser of such land from the respondents no. 5 to 8 through registered sale deed, vide deted 19th September 2008 has right to challenge the impugned order, as such order has been passed without impleading it as party and thereby the Principle of Natural Justice has been violated. 7. Keeping in view the aforesaid date of registered sale deed, by which the petitioner had acquired the alleged right in the property, it is apparent that the petitioner has purchased the land during pendency of the aforesaid revenue case and in such premises, in the light of Doctrine of lis Pendence enumerated under section 52 of the Transfer of Property Act 1882, the petitioner is not having an independent right or authority to challenge the impugned order, (Annexure P-9), which has been passed between the Bhumiswamis, the seller of aforesaid sale deed of petitioner and other parties - the Co-Bhumiswamis of such land. In fact by virtue of section 52 of the T.P. Act, the petitioner is bound with the orders of aforesaid revenue proceedings, which has been passed between the parties, in the proceedings, which was pending in above mentioned revenue Courts on the date of the aforesaid sale deed of petitioner. 8. In the aforesaid premises, the petitioner did not have any locus standi to challenge the impugned order of Board of Revenue either under Article 227 or in any case under Article 226 of the Constitution of India. 9. Besides the aforesaid on examining the matter, I have not found any perversity, infirmity, illegality or anything against the propriety of law in the order impugned, Annexure P-9 requires any interference or gives the circumstance to admit this petition for final hearing. Consequently this petition being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. 10. However, considering the oral prayer of the petitioner’s counsel, it is observed that this order shall not deprive the petitioner to approach the appropriate forum with approprite proceedings permissible under the law to ventilate its dispute. Consequently this petition being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. 10. However, considering the oral prayer of the petitioner’s counsel, it is observed that this order shall not deprive the petitioner to approach the appropriate forum with approprite proceedings permissible under the law to ventilate its dispute. The writ petition is dismissed as indicated above.