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2023 DIGILAW 62 (MP)

Pushpa (Smt. ) v. State of M. P.

2023-01-12

G.S.AHLUWALIA

body2023
ORDER 1. This misc. petition under Article 227 of the Constitution of India has been filed against the order dated 6.12.2022 passed by Additional Collector, Shahdol in Case No. 52/Revision/2022-23 by which the revision filed by the respondent No. 2 against the rejection of her application under section 5 of the Limitation Act and consequently the dismissal of her appeal as barred by limitation, has been allowed. 2. The facts necessary for disposal of present petition, in short, are that the respondent No. 2 preferred an appeal on 5.8.2021 against the order dated 18.12.1983 passed by Tahsildar, by which the names of the parties were mutated on the basis of some registered partition deed. The said appeal was filed along with an application under Section 5 of Limitation Act. The SDO by order dated 3.6.2022 rejected the application filed under Section 5 of Limitation Act on the ground that no sufficient ground has been made out for filing the appeal after delay of 38 years and as a consequence thereof the appeal was also dismissed. 3. Being aggrieved by the aforesaid order, the respondent No. 2 preferred a revision before the Collector, Shahdol, which was registered as Case No. 52/Revision/2022-23. The revision has been allowed by the impugned order dated 6.12.2022 with a finding that since the petitioner has not produced the copy of registered partition deed, therefore, there was a sufficient ground for condonation of delay and accordingly, the SDO should have condoned the delay in filing the appeal. 4. Challenging the order passed by the Additional Collector dated 6.12.2022, it is submitted by the counsel for the petitioner that when the respondent No. 2 herself was a party to the registered partition deed then there was no sufficient ground for assailing the order of the Tahsildar after 38 longs years. 5. Heard the counsel for the petitioner. 6. Although the revision filed by the respondent No. 2 has been allowed on the ground that the copy of registered partition deed has not been placed on record but inspite of that the petitioner has not filed a copy of the registered partition deed even before this Court. Further more, whether there was any registered partition deed or not, is yet to be decided by the SDO because, the question whether mutation was done properly or not is the subject matter of appeal. Further more, whether there was any registered partition deed or not, is yet to be decided by the SDO because, the question whether mutation was done properly or not is the subject matter of appeal. Under this circumstance where the petitioner has failed to prima facie prove that mutation was done on the basis of any document, the contention of the respondent that she was not aware of mutation, appears to be correct. Therefore, the order of SDO was rightly set aside. However, it is made clear that the observation made by the Additional Collector in the impugned order with regard to non filing of the registered partition deed shall remain confined to Case No. 52/Revision/2022-23only. In order to avoid any confusion, the petitioner is granted liberty of filing a copy of the registered partition deed before the SDO in the pending appeal. The SDO shall decide the appeal without getting influenced or prejudiced by any of the observation made by the Additional Collector, Shahdol in the order dated 6.12.2022 as well as by the dismissal of the present miscellaneous petition. 7. It is submitted by the counsel for the petitioner that without there being any prayer for grant of interim relief, the Additional Collector, Shahdol has passed interim relief thereby restraining the petitioner from alienating the property. It is submitted by the counsel for the petitioner that no application was filed by respondent No. 2 along with appeal for seeking any interim order and therefore, in absence of any prayer by the respondent No. 2, the Additional Collector, Shahdol was not justified in restraining the petitioner. It is further submitted that against the order of partition as well as agasint the order passed by the SDO, the respondent No. 2 has also filed a civil suit and Additional Collector, Shahdol has ignored the pendency of the civil suit. 8. So far as filing of the civil suit against the revenue entry regarding partition as well as dismissal of appeal by the SDO as barred by limitation, is concerned, it is suffice to mention here that in view of section 257 of M.P. Land Revenue Code, the civil suit is maintainable only on limited question as held by the Supreme Court in the case of Dhulabhai v. State of Madhya Pradesh and another reported in AIR 1969 SC 78 . The order was passed by the SDO and respondent No. 2 had the statutory remedy of assailing the same before the Additional Collector, Shahdol, therefore, in the light of section 257 of the M.P. Land Revenue Code as well as in view of the fact that the respondent No. 2 had a statutory remedy to assail the order dated 3.6.2022 passed by the SDO, the Additional Collector, Shahdol did not commit any mistake by entertaining the appeal. 9. So far as the ground of interim relief is concerned, it is the case of the petitioner that no such relief was sought by the respondent No. 2 by filing such an application before the SDO. In absence of any relief being sought by respondent No. 2 before the SDO, this Court is of the considered opinion that the Additional Collector should not have issued an interim order. Accordingly, liberty is granted to respondent No. 2 that if so advised, she can file an application for grant of interim relief before the Court of SDO and if such an application is filed then the SDO shall be free to pass necessary order without getting influenced or prejudiced by the interim order passed by the Additional Collector, Shahdol. 10. With aforesaid modification, the order dated 6.12.2022 passed by Additional Collector, Shahdol in Case No. 52/Revision/2022-23 is hereby affirmed. The petition is accordingly disposed of.