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2021 DIGILAW 494 (MP)

Lalaram v. Vipta Bai

2021-06-08

G.S.AHLUWALIA

body2021
¼1½ nÙkd && izkekf.kdrk && nÙkd ds vk/kkj ij foHkktu dk nkok jktLo vfèkdkfj;ksa dks nÙkd dh izkekf.kdrk dk fofu'p;u djus dh vf/kdkfjrk ughaA fjV ;kfpdk Ø-6695@lu~ 2013 fu.khZr fnukad 17-2-2021 voyafcrA ¼iSjk 5 ¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 178 && foHkktu dk vf/kdkj && ewy] iêsnkj }kjk nÙkd fy, tkus ds vk/kkj ij foHkktu dk nkok && nÙkd foys[k izLrqr ugha && ;kph us Lo;a dks ewy iêsnkj ds iq= ds :i esa of.kZr ugha fd;k && f[kyku flag ds iq= ds #i esa of.kZr && mlus ;g ugha crk;k gS fd ewy iêsnkj ls mldh fdl izdkj dh ukrsnkjh gS && mls foHkktu dk vf/kdkj ugha && vij vk;qDr }kjk foHkktu vkns'k Bhd gh vikLr fd;k x;kA ¼iSjk 5 ls 7 ¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 178 && foHkktu ds fy, vko';d i{kdkj && ewy iêsnkj dk nÙkd iq= gksus ds vk/kkj ij foHkktu dk nkok && ewy iêsnkj dh iq=h vko';d i{kdkj gS && i{kdkj ugha cuk;k x;k && vko';d i{kdkj ds vla;kstu ds dkj.k foHkktu dk;Zokgh fof/k dh n`f"V ls nks"kiw.kZ gSA ¼iSjk 7 ¼4½ Hkkjr dk lafo/kku && vuq-226 && 'kfDr;ksa dk iz;ksx && vk{ksfir vkns'k esa vf/kdkfjrk dh =qfV ds vHkko esa gLr{ksi visf{kr ugha && ;kfpdk [kkfjtA ¼iSjk 8 (1) Adoption -- genuineness -- partition claimed on basis of adoption -- revenue authorities have no jurisdiction to decide genuineness of adoption. W.P. 6695 of 2013 decided on 17.2.2021 relied on. [Para 5 (2) Land Revenue Code, 1959 (M.P.) -- S.178 -- right to partition -- partition claimed on basis of adoption by original lessee -- adoption deed not produced -- petitioner has not described himself as son of original lessee -- described as son of Khilan Singh -- he has not pointed out in what manner he is related to original lessee -- he has no right to partition -- partition order rightly set aside by Additional Commissioner. [Paras 5 to 7 (3) Land Revenue Code, 1959 (M.P.) -- S.178 -- necessary party for partition -- partition party for partition -- partition claimed on basis of adoption by original lessee -- daughter of original lessee is necessary party -- not impleaded -- partition proceeding is bad in law because of non-joinder of necessary party. [Paras 5 to 7 (3) Land Revenue Code, 1959 (M.P.) -- S.178 -- necessary party for partition -- partition party for partition -- partition claimed on basis of adoption by original lessee -- daughter of original lessee is necessary party -- not impleaded -- partition proceeding is bad in law because of non-joinder of necessary party. [Para 7 (4) Constition of India -- Art. 226 -- exercise of powers -- in absence of any jurisdictional error in impugned -- order -- no interference called for -- petition dismissed. [Para 8 ORDER 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 10.12.2019 passed by Additional Commissioner, Bhopal Division, Bhopal in Appeal No.18/Appeal/2012-13, by which the mutation of the name of the petitioner has been set aside. 2. According to the petitioner, the necessary facts for disposal of the present petition in short are that the original lessee had adopted the petitioner and, accordingly, an application for partition of land in dispute, i.e., Survey No.353/1/2 area 1.300 hectares was filed which was allowed by Tahsildar by order dated 24.6.2011. The respondent No.3, preferred an appeal before the Court of SDO, Nateran, District Vidisha which was dismissed by order dated 7.8.2012. Against the order of the SDO as well as Tahsildar, respondent preferred an appeal before the Court of Additional Commissioner, Bhopal Division, Bhopal, which has been allowed by order dated 10.12.2019 and the order of partition has been set aside by holding that neither the petitioner is the legal heir of the lessee nor he is in possession and title holder of the land in dispute and, accordingly, it was held that the order of partition dated 24.6.2011 passed by the Tahsildar is bad in law. 3. It is submitted by the counsel for the petitioner that the Additional Commissioner failed to see that the petitioner was adopted by the original lessee and, therefore, the property was rightly partitioned by the Tahsildar by order dated 24.6.2011. It is further submitted that the SDO had rightly dismissed the appeal on the ground that Saroj Bai is also daughter of the original lessee Gorelal, who has not been impleaded as a party in the appeal, therefore, the appeal was bad in law on the ground of non-joiner of necessary party. 4. Heard the learned counsel for the petitioner. 5. 4. Heard the learned counsel for the petitioner. 5. It is the case of the petitioner that the petitioner was adopted by original lessee Gorelal and on the basis of the said adoption deed, he had moved an application for partition, by impleading the respondents No. 1 and 2 in the proceedings and they had also given their consent and, accordingly, the Tahsildar by order dated 24.6.2011 had rightly directed for partition. The petitioner has not filed the adoption deed. Even in the writ petition, the petitioner has not described himself as son of Gorelal, but he has described himself as son of Khilan Singh. Furthermore, the revenue authorities have no jurisdiction to decide the genuineness of adoption deed. Further, this Court in the case of Smt. Ramkali v. Banmali and Another, by order dated 17.2.2021 passed in WP No. 6695/2013 has held as under :- ''5. ...It is further submitted that this Court by order dated 17.9.2019 passed in the case of Murari and another v. State of M.P. and others in Writ Petition No.19089/2019 had held that the revenue authorities have no jurisdiction to test the correctness and genuineness of the “Will”, therefore, the names of the parties cannot be mutated on the basis of a “Will” and they have a remedy to approach the civil Court for declaration of their title. The said order passed by this Court was subject to challenge in Writ Appeal No. 1916/2019, which was dismissed by the Division Bench of this Court by order dated 14.2.2020 in the case of Murari and another v. State of M.P. and others reported in 2020 (4) MPLJ 139. * * * * * * * 8. This Court by order dated 16.2.2021 passed in MP No.2692/2020 (Ranjit alias Bhaiyu Mohite v. Smt. Nandita Singh and Ors.) has held as under :- “(19) Section 31 of MPLR Code reads as under :- "31. * * * * * * * 8. This Court by order dated 16.2.2021 passed in MP No.2692/2020 (Ranjit alias Bhaiyu Mohite v. Smt. Nandita Singh and Ors.) has held as under :- “(19) Section 31 of MPLR Code reads as under :- "31. Conferral of Status of Courts on Board and ''Revenue Officers.-- The Board or a Revenue Officer, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between parties to any proceedings, shall be a Revenue Court." (20) Thus, from the plain reading of the aforesaid section, it is clear that the revenue authorities shall be treated as revenue Court for the purposes of ''any proceedings between the parties''. The important question which involves in the interpretation of section 31 of MPLR Code is as to whether the words ''any proceedings'' would include a question of title also or the proceedings are confined to the proceedings under the MPLR Code only. (21) If an application under section 110 of MPLR Code is filed for mutation of the name of all the legal heirs, then it would certainly be a proceeding under the MPLR Code because the question of title is not involved and all the legal heirs of the deceased/owner will be brought on record without any further adjudication but whether the adjudication of the title of the parties on the basis of a ''Will'' can be said to be a proceeding under the Act or not, is a moot question which requires consideration. (22) Section 178 of MPLR Code reads as under :-- "178. Partition of holding. (22) Section 178 of MPLR Code reads as under :-- "178. Partition of holding. -- (1) If in any holding, which has been assessed for purpose of agriculture under section 59, there are more than one Bhumiswami any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding : [Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the civil Court, the Tahsildar shall stay his proceedings pending the decision of the civil Court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code. [(3) x x x] [(4) x x x] [(5) x x x] Explanation I.-For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil Court shall be deemed to be a co-tenure holder of such holding. Explanation II.-[ x x x]" (23) Proviso to section 178(1) of MPLR Code specifically provides that in a partition proceedings, if any question of title is raised by any of the parties, then the revenue authorities shall stay the proceedings for a period of three months in order to facilitate the parties for institution of a civil suit for determination of question of title. Proviso to section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue authorities, otherwise the Tahsildar was not required to stay the proceedings so that the party to the partition proceedings may institute a civil suit for determination of question of title. Proviso to section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue authorities, otherwise the Tahsildar was not required to stay the proceedings so that the party to the partition proceedings may institute a civil suit for determination of question of title. If the words "any proceedings" are read in the light of the proviso to section 178(1) of MPLR Code, then it is clear that ''any proceedings'' would not include any proceeding involving the question of title of the parties. Whenever the question of title is raised or is involved, then the matter has to be adjudicated by the civil Court and not by the revenue authorities. (24) It is submitted by the counsel for the respondent No. 1 that since in the present case, a public notice was issued, but as nobody had raised any objection, therefore, in absence of any challenge to the ''Will'', the revenue authorities did not commit any mistake by mutating the name of respondent No. 1. (25) Considered the submissions made by the counsel for the respondent No. 1. (26) It is well-established principle of law that the burden is on the propounder of the ''Will'' to prove that the ''Will'' was executed in his favour by the testator. Even if the ''Will'' is not challenged by anybody, but still the propounder of the ''Will'' has to discharge his burden and no decree can be passed even by the civil Court merely on the ground that the respondents have chosen not to appear before it or have failed to file their written statement as provided under Order 8 rule 10 CPC.” 9. Further, the similar view which was taken by this Court on the earlier occasion has also been affirmed by the Division Bench of this Court in the Writ Appeal in the case of Murari (supra). Thus, it is clear that the revenue authorities have no jurisdiction to decide the correctness and genuineness of a “Will” and if the propounder of the “Will” wants to take advantage of the “Will”, then he has to get his title declared from the civil Court of competent jurisdiction. 10. It is next contended by the counsel for the petitioner that the “Will” purportedly executed by Shivcharanlal is a forged “Will”. 11. 10. It is next contended by the counsel for the petitioner that the “Will” purportedly executed by Shivcharanlal is a forged “Will”. 11. So far as the contention of the counsel for the petitioner with regard to the nature of the “Will” is concerned, this writ petition has arisen out of a revenue proceeding and once this Court has held that the revenue authorities have no jurisdiction to adjudicate the correctness and genuineness of a “Will”, then any observation on the genuineness of the “Will” would certainly prejudice the case of the respondents in case if they prefer a Civil Suit for declaration of their title. Even, after holding that the revenue authorities have no jurisdiction to mutate the names of respondents on the strength of a “Will”, it is also not expected from this Court to make any observation on the genuineness and correctness of the “Will”.'' 6. The adoption deed is a deviation from the law of succession. The petitioner has not pointed out that in what manner, he is related to original lessee Gorelal. If the petitioner is completely stranger to the family of Gorelal, then there was no reason for Gorelal to execute the adoption deed. Even otherwise, there is nothing on record that the petitioner was adopted in accordance with law. 7. Under these circumstances, if the Additional Commissioner has held that the petitioner has failed to prove that he is not the legal heir or not in possession and the not title holder of the land in dispute, then it cannot be said that the said finding is contrary to law. Further, it is admitted position that the respondent No. 3 is daughter of Gorelal and she was not made a party before the Tahsildar. Why the respondent No. 3 was not made a party has not been explained by the petitioner. The only conclusion which can be drawn is that the respondent No. 3 would not have supported the claim of the petitioner and that is why she was deliberately not impleaded in the proceedings so that the petitioner can succeed in getting the property partitioned. The proceedings before the Tahsildar were also bad because of non-joinder of necessary party, which was not taken note of by the SDO, Gwalior. 8. The proceedings before the Tahsildar were also bad because of non-joinder of necessary party, which was not taken note of by the SDO, Gwalior. 8. Under these circumstances, in absence of any jurisdictional error, this Court is of the considered opinion that no case is made out for interference in the order dated 10.12.2019 passed by Additional Commissioner, Bhopal Division, Bhopal in Appeal No. 18/Appeal/2012-13. Accordingly, this petition fails and is hereby dismissed.