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Madhya Pradesh High Court · body

2022 DIGILAW 365 (MP)

Firoz Khan v. State of M. P.

2022-03-04

PURUSHAINDRA KUMAR KAURAV

body2022
ORDER 1. The petitioner has approached this Court against the order dated 14.12.2021 (Annexure-P-5) whereby, the appeal preferred by the petitioner has been rejected affirming the order passed by the Sub Divisional Officer dated 31.5.2016 (Annexure-P-3). 2. The land bearing Khasara No.482/29 and 484/2, Patwari Halka No.30/65, Bandobast No.80, situated at revenue circle Chand, District Chhindwara was owned and recorded in the name of one Safi Khan S/o Daraz Khan. The private respondents are legal heirs of late Safi Khan. According to the petitioner, on 12.12.2006, late Safi Khan sold part land of aforesaid Khasaras and the remaining land was gifted to the petitioner by executing a Hiba in presence of witnesses. The petitioner has states that after execution of Hiba, the petitioner came in possession of the said property and is residing therein with his family. He further states that on the basis of Hiba, the name of the petitioner came to be recorded in the Municipal record. On 15.6.2015 i.e. after the death of Safi Khan, the names of private respondents came to be recorded in the revenue record in place of Safi Khan not with standing the fact that after execution of Hiba, the petitioner became owner of the property. The petitioner challenged the Sanshodhan Panji by way of filing an appeal before the Sub Divisional Officer, Chourai. The said authority vide order dated 20.10.2015 (Annexure-P-2), held that the mutation of private respondents was done without the legal process and accordingly set aside the Sanshodhan Panji. However, SDO continued with the proceedings to ascertain genuineness of the Hiba executed in favour of the petitioner. The SDO thereafter, on 31.5.2016 (Annexure-P-3), dismissed the appeal and directed that the name of private respondents be mutated. The said order dated 31.5.2016 was challenged by the petitioner before the Additional Commission in an appeal which has also suffered dismissal vide order dated 14.12.2021 and hence, the petitioner has preferred the instant petition. 3. Learned counsel appearing for the petitioner submits that once the Sub Divisional Officer has held that the name of the private respondents were wrongly recorded by way of Sanshodhan Panji and thereafter, he had no jurisdiction to go into the question of genuineness of Hiba and, hence an illegality has been committed, therefore, and interference is sought for. 3. Learned counsel appearing for the petitioner submits that once the Sub Divisional Officer has held that the name of the private respondents were wrongly recorded by way of Sanshodhan Panji and thereafter, he had no jurisdiction to go into the question of genuineness of Hiba and, hence an illegality has been committed, therefore, and interference is sought for. He places reliance on the decision of this case in the matter of Ranjit alias Bhaiyu Mohite vs. Smt. Nandita Singh & Others [ 2021 1 RN 221 ] and another unreported order in the case of Harwai v. The State of Madhya Pradesh and others [M.P No.509 of 2021 dated 17.2.2021] 4. Learned counsel appearing for the private respondents on the other hand has submitted that on the basis of Hiba, the Tahsildar vide order dated 15.6.2015 mutated the name of the private respondent. The authenticity of the Hiba and its applicability and other issues cannot be adjudicated by the revenue Court and, therefore, if petitioner has any right on the basis of said Hiba, he should approach the competent Civil Court and hence, this Court should not interfere into the well reasoned order passed by the Additional Commissioner. He places reliance on a decision of this Court in the matter of Jahooran B and others vs. The State of Madhya Pradesh and others [WP No.22371 of 2021 dated 15.11.2021]. 5. Having considered the submissions made by rival parties, this Court is of the opinion that the revenue authorities are precluded to entertain an application for mutation on the basis of Hiba when the authenticity is objected by the other side. The only remedy is available to the party concerned is to approach the Civil Court for appropriate relief. Same is the view taken by this Court in the matter of Jahooran B and others (supra) while placing reliance on a decision rendered by this Court in the matter of Rasool Khan (Dead) through Legal Heirs and Ors. M.P. No.3263/2020, decided on 4.12.2020. 6. Same is the view taken by this Court in the matter of Jahooran B and others (supra) while placing reliance on a decision rendered by this Court in the matter of Rasool Khan (Dead) through Legal Heirs and Ors. M.P. No.3263/2020, decided on 4.12.2020. 6. The concluding part of order dated 20.10.2015 passed by the Sub Divisional Officer is reproduced as under:- ^^bl izdkj mDr fooj.k ls ;g Li"V gksrk gS fd v/khuLFk U;k;ky; }kjk e-iz- Hkw&jktLo lafgrk 1959 dh /kkjk 110 ds rgr cus fu;eksa dk ikyu fd;s cxSj vkns'k ikfjr fd;k gS tks fof/k lEer ugha gSA vr% vihykFkhZ }kjk izLrqr ;g vihy Lohdkj dh tkrh gS o vèkhuLFk U;k;ky; rglhynkj pkan ds }kjk xzke pkan dh ukekUrj.k iath dzekad 49 esa ikfjr vkns'k fnukad 15-6-2015 fujLr fd;k tkrk gS rFkk e-iz- Hkw&jktLo lafgrk 1959 dh /kkjk 109@110 ds rgr~ fgck ds lacaèk esa tk¡p vko';d gSA mRrjoknhx.k vihykFkhZ }kjk vihy esa fgck ds laca/k esa viuk tcko is'k djsa] rRi'pkr~ fgck ds laca/k esa vihykFkhZ lk{; is'k dj ldsaxsA** 7. The concluding part of order dated 31.5.2016 passed by the same authority is reproduced as under:- ^^bl izdkj lk{; ds mDr fo'ys"k.k ls ;g Li"V gksrk gS] fd vihykFkhZ us viuh lk{; ls fgck ds fu"iknu dks izekf.kr ugha fd;k gSA vr% vihykFkhZ ds i{k esa fgck ds vk/kkj ij vihykFkhZ dks LoRo dk vtZu ugha gksrk] vr% fgck ds vk/kkj ij vihykFkhZ ds i{k esa ukeUrj.k fd;k tkuk laHko ugha gSA mRrjoknhx.k Lo- lQh ds fofèkd okjlku izekf.kr gksrs gSaA vr% e-iz- Hkw&jktLo lafgrk 1959 dh /kkjk 109@110 ds rgr~ bl izdj.k esa fooknxzLr Hkwfe xzke pkan fLFkr [k-u- 482@29] 484@2d jdok 0-020 gsDVj ij mRrjoknhx.k dk uke ntZ djus dk vkns'k ikfjr fd;k tkrk gSA iVokjh vkns'k vuqlkj vfHkys[k nq:Lr djsA** 8. Since the claim of the petitioner is based on the disputed Hiba and the revenue authorities have declined to accept the authenticity of the said Hiba, therefore, the order passed by the Additional Commissioner dated 14.12.2021 does not suffer from any palpable error so as to call for interference under article 227 of the Constitution. The re-producted part of the orders passed by the Sub-Divisional Officer prima facie appears to be beyond his jurisdiction. Learned counsel appearing for the petitioner is correct in submitting that S.D.O does not have any jurisdiction to examine the authenticity of Hiba. The re-producted part of the orders passed by the Sub-Divisional Officer prima facie appears to be beyond his jurisdiction. Learned counsel appearing for the petitioner is correct in submitting that S.D.O does not have any jurisdiction to examine the authenticity of Hiba. However, in the instant case, since the additional Commissioner by the impugned order has left the parties to avail civil remedy, therefore, the question that arise at this stage is as to who should approach the Civil Court. Since in the instant case, the petitioner is claiming rights on the basis of Hiba, therefore, the petitioner should approach the Civil Court for appropriate relief. Even assuming that SDO has acted beyond jurisdiction but setting aside of his order would amount to restoring another illegal order, therefore, such a recourse is not taken. 9. In view of the aforesaid, the instant petition fails and is hereby dismissed.