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Madhya Pradesh High Court · body

2017 DIGILAW 1056 (MP)

Nirmal Kumar Jain v. Sudhir Kumar Jain

2017-10-05

ANAND PATHAK

body2017
ORDER 1. Heard finally. 2. The present petition under Article 226/227 of the Constitution of India has been preferred by the petitioner challenging the order dated 14.3.2016 (Annexure P-1) passed by the Member Board of Revenue, Gwalior whereby revision preferred by respondent No. 1 was allowed and the order dated 6.6.2015 (Annexure P-14) passed by the Additional Commissioner, Gwalior Division, Gwalior in appeal has been set aside. 3. Facts giving rise to filing of this petition are that as per pedigree attached with the litigation as Annexure P-2, Tarachand who was the head of the family had three legal representatives by way of Satish Chand and Ramesh Chand as sons and Makhmal Bai as daughter. Present petitioner is the son of Makhmal Bai. After the death of her husband, Makhmal Bai went to her parental home and started living with her father Tarachand. Makhmal Bai survived by two daughters namely Chanda Bai and Kanti Bai and one son Nirmal Kumar (who is the present petitioner). Along with her mother, petitioner started living at her maternal home with Tarachand. Some properties belonging to Makhmal Bai and present petitioner were started taken care of by Tarachand who became the guardian of the present petitioner in respect of the suit property also. After completing his education; petitioner joined services in the department of PWD and moved out of the maternal father's home. He continued with service and meanwhile, guardianship in respect of suit property remained in the name of Tarachand, who died in year 1993. Even after death of Tarachand up till 2006, petitioners' property continued under the guardianship of the Tarachandra through his LRs (maternal uncles of the present petitioner/ respondents herein). Earlier, Tarachand used to send the sale consideration received from sale of agricultural produce and after his death, maternal uncles of the petitioner (present respondents) used to send the sale consideration of the agricultural produce to petitioner regularly. Necessary bank drafts in this regard are placed in the writ petition and are on record. Khasra entries of the relevant years, till 2006 also indicate that property of the petitioner was under the guardianship of Tarachand and thereafter, through his LRs. In year 2006 petitioner declared himself as Major in respect of the suit property. Perusal of Khasra entries dated 17.1.2007 (Annexure P-5) reflects declaration of petitioner as Major. Khasra entries of the relevant years, till 2006 also indicate that property of the petitioner was under the guardianship of Tarachand and thereafter, through his LRs. In year 2006 petitioner declared himself as Major in respect of the suit property. Perusal of Khasra entries dated 17.1.2007 (Annexure P-5) reflects declaration of petitioner as Major. After getting himself declared as Major, petitioner intimated his maternal uncles/ respondents herein about the said fact on 24.5.2007 and when they refused to accept the altered position, petitioner preferred an application under section 250 of the M.P. Land Revenue Code, 1959 (for brevity "the Code") Tahsildar, Tahsil Mungawali, District Ashoknagar on 14.6.2007 for getting the possession from the present respondents. 4. Tahsildar, Tahsil Mungawali, District Ashoknagar has considered the case of the petitioner and passed the order dated 25.1.2011 (Annexure P-6) accepting contention of the petitioner and found the possession of the respondents as illegal and therefore, directed the respondents to remove the illegal possession. The said order has been put to challenge by the respondents before Sub-Divisional Officer, Mungawali, DistrictAshoknagar in appeal under section 44 of the Code vide Annexure P-7. Before Sub Divisional Officer, Mungawali, present petitioner also preferred an appeal for mesne profits and both the appeals were clubbed together. Vide order dated 4.7.2012 (Annexure P-12), Sub-Divisional Officer, Mungawali set aside the order passed by the Tahsildar, Tahsil Mungawali while allowing the appeal preferred by the respondents. Appeal preferred by the petitioner for mesne profits has been rejected. Being aggrieved by such state of affairs, petitioner preferred second appeal under section 44 of the Code before Commissioner/Additional Commissioner, Gwalior Division, Gwalior. 5. After hearing both the parties, and considering the documents on record, Additional Commissioner, Gwalior has passed the order dated 6.6.2015 (Annexure P-14) whereby appeal preferred by the petitioner has been allowed and the order passed by the Sub-Divisional Officer, Mungawali has been set aside. Being aggrieved by the said order dated 6.6.2015 (Annexure P-14) passed by Additional Commissioner, Gwalior, respondent No. 1 preferred a revision before the Board of Revenue, Gwalior which resulted into passing of the impugned order dated 14.3.2016 (Annexure P-1), which is under challenge before this Court under Article 226/227 of the Constitution of India. 6. Being aggrieved by the said order dated 6.6.2015 (Annexure P-14) passed by Additional Commissioner, Gwalior, respondent No. 1 preferred a revision before the Board of Revenue, Gwalior which resulted into passing of the impugned order dated 14.3.2016 (Annexure P-1), which is under challenge before this Court under Article 226/227 of the Constitution of India. 6. According to counsel for the petitioner, learned member of the Board of Revenue has caused illegality, perversity and impropriety in coming to the conclusion that petitioner has not filed an application under section 250 of the Code within limitation. He further submits that conclusion drawn by the Board of Revenue in respect of abatement of proceedings because of non-inclusion of LRs on record after the death of maternal-grand-father of the petitioner (Tarachand) while pursuing the litigation is erroneous. According to the Board of Revenue, LRs have not been brought on record within limitation and therefore, proceedings/appeal preferred by the petitioner stood abated. Similarly, Board of Revenue came to the conclusion regarding inclusion of multiple reliefs in respect of suit property situate at two villages. Inclusion of land situate at two villages in one application is not the proper procedure. 7. While assailing the findings given by the Board of Revenue, counsel for the petitioner Shri Sharma vehemently submits that the case in hand does not suffer from delay and latches in any manner because not only section 10 of the Limitation Act comes to the rescue of the petitioner but also provisions of section 250 of the Code itself postulates limitation to be of two years from the date of dispossession or from the date on which possession of such persons became unauthorized, as the case may be. 8. It is further submitted that in the present case, petitioner declared himself Major qua suit property in 2006 and, therefore, guardianship of Tarachand was removed. Thereafter, petitioner within two years, (from year 2006) moved an application under section 250 of the Code which was well within limitation as per the provisions of Sub-Clause 250(1)(a)(b) of the Code. He relied upon section 10 of the Limitation Act also and submits that section 10 of the Limitation Act does not prescribes any limitation as it contemplates exigency regarding suits against trustees and their representatives. He relied upon section 10 of the Limitation Act also and submits that section 10 of the Limitation Act does not prescribes any limitation as it contemplates exigency regarding suits against trustees and their representatives. Here in the present case, petitioner was maternal-grand-son of Tarachand and even after attainment of majority, suit property continued to be under guardianship of Tarachand and being maternal-grand-father of the petitioner, relationship was operating between them and therefore, Tarachand was acting like a trustee qua present petitioner and his properties. Therefore, section 10 of the Limitation Act would apply in the present case, which nowhere prescribes any length of limitation. He relied upon the judgment of the Hon'ble Supreme Court in the case of M/s. Nopani Investments (P) Ltd. v. Santosh Singh [(HUF) AIR 2008 SC 673 ], Sudish Prasad and others v. Babui Jonhia alias Manorama Devi and others [ (2013)9 SCC 181 ], as well as Madhukar and others v. Sangram and others [ (2001)4 SCC 756 ], and the judgment of this Court in the matter of Fattu Bhila v. Bhawaniram Dashrath [1960 JLJ 954= AIR 1961 (MP) 27 ]. 9. Learned counsel for the petitioner referred the proceedings in some different cases wherein deposition of Tarachand has been recorded (Annexure P-20) wherein, Tarachand has accepted his guardianship vis-a-vis present petitioner and his properties. He further referred the order dated 18.3.2015 (Annexure P-23) whereby the revision preferred by the respondents has been dismissed. In the said revision, respondents have challenged the order dated 30.12.2014 by which Additional Commissioner, Gwalior issued the notice to the LRs of the respondent. The said revision got dismissed and therefore, the question of bringing LRs of the respondent on record attained finality. Now the Board of Revenue which earlier passed the order dated 18.3.2015 dismissing the revision of respondent No. 1 took a somersault now in the impugned order by concluding that petitioner brought LRs of the respondents on record at a belated stage. 10. Despite service, nobody represented the respondents either through themselves or through their counsel and services were declared as completed vide order dated 17.10.2016, therefore, present case is heard and decided on the basis of submissions of the counsel for the petitioner and on the basis of perusal of the impugned order and record appended with the petition. 11. 10. Despite service, nobody represented the respondents either through themselves or through their counsel and services were declared as completed vide order dated 17.10.2016, therefore, present case is heard and decided on the basis of submissions of the counsel for the petitioner and on the basis of perusal of the impugned order and record appended with the petition. 11. From perusal of the application preferred by the petitioner and documents appended with the petition, it is established that Tarachand was maternal-grand-father of the petitioner and under his guardianship, petitioner and his property were existed. After attaining majority, petitioner moved for job and continued to be in service of state government till his superannuation. Till 2006 suit property was under the guardianship of Tarachand as reflected from revenue records/Khasra entries etc. In year 2006, petitioner declared himself as major in respect of the suit property to get the affairs of the suit property managed on his own and therefore, necessary corrections were caused to be incorporated in the Khasra entries on revenue records in year 2006. In year 2007, petitioner moved an application under section 250 of the Code and therefore, petitioner intimated the respondents regarding his intention. 12. Once the fiduciary relationship between Tarachand and its grandson is established then provisions of section 10 of the Limitation Act comes into play, whereby no limitation has been prescribed in respect of suit against the trustees and its representative. Here, Tarachand was acting as trustee qua properties of the petitioner and both shared fiduciary relationship. This Court in the case of Fattu Bhila (supra), has discussed this aspect and opined that word “trustee” has been used in a wider sense to describe one who has by his own conduct acquired a position of confidence and answerability to the real owner. 13. Definition of "trustee" is being defined in the Limitation Act itself wherein section 2(n) defines trustee as under :- “trustee” does not include a benamidar, a mortgagee remaining in possession after the mortgage has been satisfied or a person in a wrongful possession without title”. Section 10 of the Limitation Act is also reproduced for ready reference:- 10. 13. Definition of "trustee" is being defined in the Limitation Act itself wherein section 2(n) defines trustee as under :- “trustee” does not include a benamidar, a mortgagee remaining in possession after the mortgage has been satisfied or a person in a wrongful possession without title”. Section 10 of the Limitation Act is also reproduced for ready reference:- 10. Suits against trustees and their representatives:- Notwith-standing anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.” 14. It appears that except above mentioned three exigencies, all are included as trustees as referred in the definition of “trustee”. The Coordinate Bench of this Court in the case of Fattu Bhila (surpa), has explained the word trustee. “The word “trustee” in this and similar rulings, has been used in a wider sense to describe one who has by his own conduct acquired a position of confidence and answerability to the real owner. Such a person cannot, without discharging the burden and relieving himself of the trust, set up an adverse title”. Here in the present case, Tarachand acted as Trustee to the petitioner (and his properties) and enjoyed fiduciary relationship with petitioner, therefore, section 10 of the Limitation Act would be applicable in the fact situation of the case wherein, no limitation, per se can be imposed for proceeding instituted by the petitioner for getting back the suit property from the trustee or his LRs (present respondents). This aspect has been totally ignored by the Revenue Board while proceeding in the case, which caused illegality to the present petitioner. 15. Even otherwise, section 250 of the Code provides two years limitation. Petitioner declared himself as major in year 2006 and litigation has been started in year 2007 therefore, petitioner was within the limitation as per section 250 of the Code. 16. Revenue Board also erred in coming to the conclusion that the case of the petitioner fails on the ground of non-joinder of LRs within limitation after the death of the respondents. Here approach appears to be perverse and fallacious. 16. Revenue Board also erred in coming to the conclusion that the case of the petitioner fails on the ground of non-joinder of LRs within limitation after the death of the respondents. Here approach appears to be perverse and fallacious. Earlier, when petitioner tried to incorporate the LRs of deceased respondents, then opposition was raised by the respondents on the ground of delay which was rejected by the Additional Commissioner and challenging the said order of Additional Commissioner, Gwalior, a revision was preferred, which got dismissed vide order dated 18.3.2015 (Annexure P-23). Once the said aspect has been dealt with by the Revenue Board in an earlier proceedings, then taking recourse to the said ground again for dismissal of the revision appears to be perverse, illegal and fallacious. 17. As far as prayer in respect of the suit property situate at two villages is concerned, Civil Procedure Code itself provides for such relief to be claimed for concluding the controversy. Order II of CPC is clear in this regard, therefore, the suit property which was under the guardianship of Tarachand constitute a common cause of action and if the suit properties are situated at two villages then petitioner was right in his approach to claim for those properties in singular application. 18. The Hon'ble apex Court in the case of Madhukar (supra), has reiterated the principle in respect of hearing by the appellate Court while interfering into the findings recorded by the Court below. Here in the present case, Board of Revenue ventured into the order of Additional Commissioner, Gwalior dated 6.6.2015 (Annexure P-14) without considering the findings recorded by the appellate Court in true perspective and passed a order in a very slip shod manner. In view of the above discussion, order passed by the Revenue Board cannot be allowed to sustain and, therefore, it has to pale into oblivion by resurrecting the order dated 6.6.2015 (Annexure P-14) passed by Additional Commissioner, Gwalior. 19. Resultantly, the impugned order dated 14.3.2016 passed by Member, Board of Revenue (Annexure P-1) is hereby set aside and order dated 6.6.2015 (Annexure P-14) passed by Additional Commissioner, Gwalior is hereby affirmed in the peculiar facts and circumstances of the case. No costs.