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2022 DIGILAW 1155 (MP)

Santosh Singh Chauhan v. Vikram Singh Tomar

2022-09-19

MILIND RAMESH PHADKE, ROHIT ARYA

body2022
ORDER Arya, J:- 1. This intra-Court appeal is directed against the order dated 2.8.2022 passed in W.P. No.228/2010 by the learned Single Judge in exercise of writ jurisdiction under Article 226 of the Constitution of India. 2. Facts necessary for disposal of the appeal are in narrow compass. The appellant Santosh Singh Chauhan filed an application before the Tahsildar seeking mutation of half of 9 bigha 18 biswa of agricultural land falling in Survey Nos. 187/1, 482/1, 485, 487, 488/1 and 524 of Village Jagnapura, Tahsil Gwalior, District Gwalior. The application for mutation was filed on the basis of registered Will dated 20.12.1988 executed by the Testator Maharaj Singh and duly attested by two witnesses, namely, Vikram Singh and Shiv Singh Tomar. Shiv Singh Tomar is son of the Testator. The Tahsildar passed the order of mutation dated 30.4.1991. In the year 2006 the legal heirs of one of the attesting witnesses, namely, Vikram Singh filed an appeal under section 44 of MPLR Code after death of another attesting witness Shiv Singh in the year 2004 against the order dated 30.4.1991 before the SDO. The SDO, vide interlocutory order dated 24.8.2006, ex facie found that appeal was barred by 16 years from the date of order of Superintendent, Land Records. However, upon perusal of the application for condonation of delay, the SDO has mentioned in the order that it had been stated by the applicant that only 21 days' delay was caused from the date of knowledge, however, for such delay also there was no explanation. Learned counsel submits that, as a matter of fact, neither relevant facts were mentioned in the application nor evidence was led to substantiate the date of knowledge of the order dated 30.4.1991, in absence whereof there was no satisfaction recorded by the SDO as regards sufficient cause. Being aggrieved by the said interlocutory order, the respondent preferred an appeal before the Commissioner. The Commissioner (Appeals) vide order dated 17.2.2009 has set aside the order passed by the SDO. It is observed that the change of name in land records is dated 30.4.1991 while looking at the Namankan Panjiyan kramank 37 dated 30.4.1991 there was no notice or publication to the legal heirs of the Bhumiswami, and therefore, the mutation was not legal and proper. It is observed that the change of name in land records is dated 30.4.1991 while looking at the Namankan Panjiyan kramank 37 dated 30.4.1991 there was no notice or publication to the legal heirs of the Bhumiswami, and therefore, the mutation was not legal and proper. Under such circumstances, the Commissioner (Appeals) remanded the case to the Tahsildar to pass a fresh order on merits in accordance with law. The Board of Revenue has confirmed the said order by its order dated 7.12.2009. The appellant preferred writ petition No.228/2010 against the aforesaid order. The learned Single Judge did not at all deal with impugned orders passed by the Commissioner (Appeals) dated 17.2.2009 and Board of Revenue dated 7.12.2009, much less on merits. Instead, at page 5 of the order, learned Single Judge has concluded that the application filed by the appellant for mutation based on Will dated 20.12.1988 was not maintainable and appellant has been directed to file a civil suit to seek declaration of title based on Will. 3. In the aforesaid backdrop, the instant writ appeal is preferred with submission that such recourse adopted by learned Single Judge, in fact, and, in effect, traveled beyond the scope of writ petition and that of the impugned orders. Substitution or super imposition of the impugned order over the order of Revenue Authorities, in fact, is an instance of serious illegality, regard being had to the concept of judicial review under Article 226 of Constitution of India. Challenge was also made to the orders passed by the Commissioner (Appeals) and Board of Revenue on the question; as to whether said Revenue Authorities were justified condoning the delay by an evasive and tangential order and remitting to the file of Tahsildar for deciding the dispute on merits. Further elaborating his submissions, Shri Mishra submits that, in fact and in effect, the writ Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution, ought to have addressed the question whether the revenue Authorities were justified in condoning delay without recording satisfaction as to sufficient cause. That was not done. Shri Mishra, also submitted that there is no complete bar, much less statutory bar against mutation based on Will in revenue records. He refers to the Rules regarding record of rights published vide notification dated 10th June, 1965 to reinforce his submissions. That was not done. Shri Mishra, also submitted that there is no complete bar, much less statutory bar against mutation based on Will in revenue records. He refers to the Rules regarding record of rights published vide notification dated 10th June, 1965 to reinforce his submissions. On merits learned counsel also tried to submit that ex facie appeal is filed after 16 years since the date of mutation on 30.4.1991. The application seeking condonation of delay though indicates acquisition of knowledge on 10.3.2006, yet neither there is any explanation nor material placed before the SDO in support of the alleged date of knowledge. Mere statement on application as regards date of knowledge itself was not conclusive. Law is well settled in that behalf. Relying upon the judgement in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others ( (2013)12 SCC 649 ) learned counsel submits that unexplained delay gives rise to valuable right in favour of the party against whom the proceedings are initiated after period of limitation. Indeed, the power under section 5 of the Limitation Act is discretionary in nature. Nevertheless, the same is to be exercised judiciously with due advertence to material available, to record satisfaction that the delay caused was bonafide or otherwise. No such exercise has been done in instant case either by the SDO or superior Authorities. He also submits that two attesting witnesses, namely, Shiv Singh and Vikram Singh have witnessed execution of the Will dated 17.8.2006 of Testator Maharaj Singh. The Will is duly registered. Shiv Singh was the son of Maharaj Singh. After death of Shiv Singh, the legal heir of Shiv Singh namely Vikram Singh has taken recourse to instant proceedings in the year 2006. Hence, conduct of the parties was also required to be seen by the Revenue Authorities. That was also not done. That apart, there are various more relevant facts which were required to be taken into consideration by the Authorities but same was not done. Lastly, he submits that question of limitation is a mixed question of law and fact, therefore, unless parties lead evidence, the conclusion of condonation of delay of 16 years in the eyes of law shall not be sustainable. Lastly, he submits that question of limitation is a mixed question of law and fact, therefore, unless parties lead evidence, the conclusion of condonation of delay of 16 years in the eyes of law shall not be sustainable. Lastly, he submits that he has no objection if the case is remitted to the SDO for deciding the application for condonation of delay afresh in accordance with law after allowing the parties to lead evidence. 4. Per contra, Shri K.S. Tomar, learned senior counsel with Shri Santosh Agarwal, learned counsel for respondents submits that no illegality can be attributed to the order under challenge in view of the judgment of Supreme Court in the case of Jitendra Singh v. The State of Madhya Pradesh & Ors. reported in 2021 SCC OnLine SC 802, besides learned counsel also referred to the judgments cited in the impugned judgment. It is submitted that law is well settled that mutation of land records in respect of agricultural land based on Will is not permissible, therefore, there was a patent illegality in the order passed by Tahsildar while it recorded the name of the appellants in revenue records based on Will vide order dated 30.4.1991. In the alternative he submits that there was no illegality in the order passed by the Board of Revenue dated 7.12.2009 confirming the order of Commissioner (Appeals) dated 17.2.2009. Hence, this appeal deserves to be dismissed. Learned senior counsel further submits that though the photocopy of alleged Will indicates that two witnesses have appended their signatures as attesting witnesses but none of them have been examined before the Tahsildar. Hence, the Will was not proved before recording of the name of the appellants in the revenue records. Therefore, in all fairness the conclusion of learned Single Judge is impeccable and no interference is warranted. 5. Shri Varun Kaushik, learned Government Advocate appearing for the State submits that it is incorrect to say that Tahsildar has no jurisdiction at all to exercise powers under section 109 and 110 of MPLR Code to record the name of Bhuswami in revenue record in respect of agricultural land based on Will. Rules in that behalf are very clear since beginning that Tahsildar is competent to hold a summary inquiry. Of-course if Will is disputed, the parties may be relegated to approach the Court of competent jurisdiction for seeking title in land in question. 6. Rules in that behalf are very clear since beginning that Tahsildar is competent to hold a summary inquiry. Of-course if Will is disputed, the parties may be relegated to approach the Court of competent jurisdiction for seeking title in land in question. 6. In rejoinder, Shri Mishra submits that Will dated 17.8.2006 is a registered Will. The same was produced before the Tahsildar as well reflected from the order dated 30.4.1991. Tahsildar compared the copy of the Will with the original Will produced. Hence, it is incorrect to say that original Will was not produced. Besides, learned counsel also submitted that the judgment cited by learned Division Bench and the judgment referred and relied upon by the learned Single Judge in the impugned judgment indeed hold the field, nevertheless, the same have no application to the factual matrix in hand for the reason that dispute between the parties before the SDO, Commissioner (Appeals) and Board of Revenue confined to the delay of 16 years in preferring an appeal against the order of the Tahsildar dated 30.4.1991 and not the order of the Tahsildar on merits. The question of dispute on Will shall arise after the delay caused in preferring the appeal is condoned and not otherwise. With the aforesaid submissions, learned counsel prays for setting aside the impugned judgment. 7. Heard. 8. This Court has perused the orders passed by the Board of Revenue, Commissioner (Appeals) and the SDO, as well as, the order impugned. This Court finds substantial force in the submission of Shri Mishra while he contends that the delay of 16 years in preferring the appeal against the order of Tahsildar is well explicit. Said delay though was sought to be explained with an averment of knowledge of the order within 21 days preceding date of filing of appeal, however, there is no relevant pleading or material on record to justify acquisition of knowledge on the part of respondent as aforesaid. Said delay though was sought to be explained with an averment of knowledge of the order within 21 days preceding date of filing of appeal, however, there is no relevant pleading or material on record to justify acquisition of knowledge on the part of respondent as aforesaid. Though by a passing reference, the SDO has stated that there is no explanation for the delay of 21 days if the date of knowledge is accepted as indicated in the application, yet the Appellate Court and the Board of Revenue could not have treated the appeal barred by 21 days only, instead should have called upon the respondents to explain the delay with sufficient cause or should have remitted the case to the SDO for decision on the issue of condonation of delay on merits, allowing the parties to lead evidence on the question of knowledge of impugned order. The aforesaid exercise was pertinent as the question of limitation is a mixed question of law and fact. Board of Revenue and Commission (Appeals) have cursorily condoned the delay and remitted the case to the Tahsildar to decide the question on merits. The writ Court independent of the nature of the orders passed by the Board of Revenue and the appellate Court, at page 5 of the impugned order has given an altogether different dimension to the controversy while it concluded that mutation based on Will is not permissible and the petitioner/appellant only after seeking declaration of title based on Will from the Court of competent jurisdiction can approach the Revenue Authority for mutation. In our view the approach of learned Single Judge was not correct, regard being had to the nature of the orders passed by the Revenue Authorities. As a matter of fact, under Article 227 of the Constitution, the writ Court can exercise supervisory jurisdiction to adjudge justifiably/regularity of the impugned orders. However, under Article 226 of the Constitution of India the aforesaid order has been passed. In a way the crystallized right of the appellant, albeit subject to decision on question of limitation on merits, has been watered down by the impugned order of the Writ Court. Therefore, we are of the view that the order of the writ Court, in fact and in effect, has exceeded beyond the scope of writ petition and is independent of the impugned orders. 9. Therefore, we are of the view that the order of the writ Court, in fact and in effect, has exceeded beyond the scope of writ petition and is independent of the impugned orders. 9. Turning to rival contentions on merits this Court is of the view that indeed law is well settled where Will is disputed and denied, the Tahsildar or any other competent authority may relegate the parties to settle the dispute in a Court of competent jurisdiction on the question of title before acceding to the prayer for mutation in revenue record. 10. Nevertheless, the dispute before this Court is not on the merits of the claim of title on Will but whether the Commissioner (Appeals) and the Board of Revenue were justified having condoned the delay in absence of relevant material to substantiate claim of date of knowledge of Tahsildar's order dated 30.4.1991, as appeal after sixteen years from the date of said order otherwise suffers from formidable delay, therefore, barred by limitation. Shri Mishra is right, while he contends that, valuable substantive right has accrued in favour of the petitioner/appellant. In the obtaining facts and circumstances, therefore, the Commissioner (Appeals) and the Board of Revenue while hearing an appeal against the interlocutory order of the SDO dated 24.8.2006 should have remitted the matter back to the Sub Divisional Officer to decide the question on limitation in accordance with law. That was not done. Instead the case was remitted to the Tahsildar to decide the dispute on merits. Hence, the course adopted by the Commissioner (Appeals) and Board of Revenue is found to be vulnerable in the eyes of law and polluted with illegality 11. Consequently, the impugned order is set aside. The orders of the Commissioner (Appeals) and that of Board of Revenue are modified. It is directed that the SDO shall decide the question of limitation afresh after affording opportunity to private parties to submit additional/supplementary pleadings and lead evidence. In case, the delay is condoned after recording its satisfaction on the sufficient cause shown, the SDO shall deal with the case in accordance with law. With the aforesaid, the writ appeal stands disposed of. Meanwhile, both parties shall maintain the status quo. In case, the delay is condoned after recording its satisfaction on the sufficient cause shown, the SDO shall deal with the case in accordance with law. With the aforesaid, the writ appeal stands disposed of. Meanwhile, both parties shall maintain the status quo. This Court hopes and trusts that in the event the SDO is approached, he shall decide the same expeditiously and the SDO shall not be influenced by the order passed by the Commissioner (Appeals) and the Board of Revenue. It is made clear that this Court has not expressed any opinion on the merits of the case.