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2025 DIGILAW 70 (MP)

Brijkishor v. Arun Kumar

2025-01-28

MILIND RAMESH PHADKE

body2025
ORDER 1. This order shall govern disposal of W.P. No.38629/2024 and W.P. No.7032/16. 2. For the sake of convenience, facts are taken from W.P. No.38629/2024. 3. These writ petitions have been filed by the petitioners challenging the order dated 16.4.2015 passed by Board of Revenue Madhya Pradesh, Gwalior in Revision No.301-1/2008 whereby the disputed land has been declared as Government Land under section 176 of the Madhya Pradesh Land Revenue Code, 1959. 4. In brief, the facts of the case are that, late Smt. Sarju Bai W/o Saligram who had ½ share as bhumiswami rights out of 5/6th share of the agricultural land bearing Survey Nos. 791, 1314, 1992, 1996, 1999, 2470, 2475, 2766, 2767, 2768, 2771, 2809, 2810, 2828, 2829, 2830, 2831, 2834, 2835, 2832, 2839, 2840, 2841, 2847, 2848, 2849, 3227 total survey No.27, and total area 12.123 hectare situated at village Piparoua Kalan Tehsil and District Datia. The said survey numbers were renumbered as 107, 664, 669, 1124, 1872, 1877, 1887, 2058, 2062, 2066, 2068, 2070, 2071, 2074, 2075, 2076, 2236 total survey numbers 17 and total area 12.13, the bumiswami rights of which were acquired by her in succession after the death of her husband late Shri Saligram S/o Ramdayal, therefore, mutation order dated 18.7.1988 was passed by the Nayab Tahsildar in the compliance of the order dated 4.10.1986 which was passed in Appeal No.127/80-81. Smt. Sarju Bai had a sole daughter namely Kamla and she was married with the Ramsevak Pachori (Father of the Petitioners) and her name was changed as Parwati after her marriage in her matrimonial home. Smt. Kamla @ Parvati had died before her father therefore late Smt. Sarju Bai was the absolute owner of the aforesaid lands as per the provisions of Hindu Succession Act,1956. 5. In the aforesaid mutation case No. 12/77-78/A-6, Smt. Sarju Bai stated in her cross examination recorded therein that her daughter Kamla had died and earlier she used to reside in Piparoua with her Nati (son of her daughter). Thereafter, Smt. Sarjubai died on 8.7.1996 and before her death, she had executed a will dated 3.5.1996 in favour of the petitioners. On 20.5.2002, after the death of the late Smt. Sarju Bai, the petitioners/applicants moved an application for mutation of the disputed land before the Learned Tehsildar, Pargana Bhander, District. Thereafter, Smt. Sarjubai died on 8.7.1996 and before her death, she had executed a will dated 3.5.1996 in favour of the petitioners. On 20.5.2002, after the death of the late Smt. Sarju Bai, the petitioners/applicants moved an application for mutation of the disputed land before the Learned Tehsildar, Pargana Bhander, District. Datia M.P. on the basis of the her will dated 3.5.1996 alleging that the Late Smt. Sarjubai was their maternal grandmother (Nani) and she was the absolute owner and bhumiswami of the disputed land and she had executed a will of disputed land in favour of the petitioners before her death and had declared the petitioners as title holders and successors of the disputed land after her death and, therefore, prayed for mutation of the disputed land in favour of petitioners in the place of the Late Smt. Sarjubai in the revenue papers. On this application, Case was registered as bearing No. 09/02-03/A-6 and proclamation was issued, objections and patwari report were called, thereafter respondent No. 1 to 5 made objections and alleged that Late Smt. Sarjubai had also executed a will dated 15.5.1996 in their favour and prayed that mutation order be passed in favor of respondents. Revenue court of learned Tahsildar after hearing both the parties, examining the witnesses of both parties and after considering the facts and circumstances, allowed the application filed by the petitioners for mutation vide order dated 31.5.2005. After passing the mutation order in favour of the petitioners, entries were duly carried out in the revenue records of the year 2004-05 but at the time of entry in revenue records concerned patwari made a note that the land will be restricted from sale. The respondents filed an appeal against the aforesaid mutation order dated 31.5.2005 before the learned Sub-Divisional Officer, Bhander, District Datia which was registered as 271/04-05/Appeal, after hearing both the parties and considering the ground alleged therein, the appeal was dismissed vide order dated 14.10.2005 confirming the order passed by the learned Tehsildar dated 31.5.2005. Thereafter the respondents preferred a second appeal against the order dated 14.10.2005 and also against the mutation before the learned Additional Commissioner Gwalior Division, Gwalior which was registered as 2/2005-06/Appeal, after hearing both the parties and considering the grounds alleged therein, the second appeal filed by respondents was dismissed vide order dated 31.12.2007 confirming the orders passed by the learned courts below. The respondents further preferred a revision against the petitioners before the Board of Revenue challenging the order dated 31.12.2007 passed by the learned Additional Commissioner as well as the order dated 14.10.2005 and 31.5.2005 respectively passed by the learned Courts below which was registered as Revision No.301-1/2008, in which, after hearing both the parties and considering facts and circumstances the learned Board of Revenue held that both petitioners as well as the respondents had failed to prove there Will out of suspiciousness and there is no proper appreciation of facts and passed the order dated 16.4.2015 setting aside the orders dated 31.12.2007, 10.10.2005 & 31.5.2005 passed by the learned subordinate Courts below and declared the disputed land as government land and Tehsildar, Bhander was directed to recorded the aforesaid land as government land in the land records and acquire the possession of the land in favour of the government. Being aggrieved from the order dated 16.4.2015 passed by the learned Board of Revenue, the present petition had filed by the petitioners. ARGUMENTS 6. Being aggrieved from the order dated 16.4.2015 passed by the learned Board of Revenue, the present petition had filed by the petitioners. ARGUMENTS 6. Learned counsel for the petitioner has raised two folds arguments; firstly, since both the parties are claiming right over the land in question on the basis of respective Wills executed in their favour by deceased Smt. Sarju Bai, learned Board of Revenue should have relegated the parties to get their claims adjudicated by Civil Court of Competent Jurisdiction as determination of right and title in the property is the province of the civil court and secondly, learned Board of Revenue had erred in holding the land in question to be a government land by invoking provisions of section 176 of the Madhya Pradesh Land Revenue Code, 1959 when no inquiry was conducted by the Tahsildar that bhumiswami had ceased to cultivate his/her holding for previous five years either by himself or herself or by some other person, or had not paid land revenue and had left the village in which he/she was usually residing and also had not taken possession of the land comprising the holding and also had not arranged for its cultivation by letting it out on behalf of the bhumiswami for a period of one agricultural year at a time and if the aforesaid eventualities would had taken place, then as per sub-section 2 of section 176 of Madhya Pradesh Land Revenue Code, 1959, Bhoomiswami would have a chance within a period of five years from the commencement of the agricultural year next following the date on which the Tehsildar had taken possession of the land to get the land restored after payment of the dues, if any and on such terms and conditions, the Tehsildar could have deemed fit. 7. It was further argued that admittedly the original land holder i.e. Smt. Sarju Bai had expired in the year 1996 and the application for mutation was moved in the year 2002. 7. It was further argued that admittedly the original land holder i.e. Smt. Sarju Bai had expired in the year 1996 and the application for mutation was moved in the year 2002. It was not the case of the Government that till 2002 that the petitioners or other respondents were not in possession of the land and even otherwise, if Tehsildar would have taken possession and given it for cultivation by letting it out on behalf of original Bhoomiswami for a period of one agricultural year, it was within next five years, the petitioners could have asked for its restoration which in the present case moving an application for mutation, if calculated would be within a period of six years. Thus, the order passed by the Board of Revenue is per se illegal. 8. It was further argued that it was nobody's case that the land was not cultivated by either of the parties or was abandoned, no land revenue pertained to the aforesaid land was paid or parties have left the village, thus, in that case, the findings are perverse and deserve to be quashed. 9. Shri Deepak Khot, learned Government Advocate, on the other hand, supported the impugned and has submitted that since Tehsildar at the time of mutation had not considered the provisions of section 176 of M.P. Land Revenue Code, learned Board of Revenue had rightly observed that since the application for mutation was moved after a period of six years, it would be deemed that the land had been abandoned, therefore, it was automatically vested in the State Government. Thus, prayed for dismissal of the petition. DISCUSSION AND CONCLUSION 10. After going through the impugned orders as well as rival contentions, this Court finds that petitioners in both the petitions are claiming their rights over the disputed land by way of Wills executed in their favour. As such, both the Wills are disputed and since it is a settled principle of law that on the basis of disputed Will no mutation could be carried, therefore, this Court deems it fit to direct the parties to prefer a civil suit agitating and getting adjudicated their rights on the basis of their respective wills. 11. As such, both the Wills are disputed and since it is a settled principle of law that on the basis of disputed Will no mutation could be carried, therefore, this Court deems it fit to direct the parties to prefer a civil suit agitating and getting adjudicated their rights on the basis of their respective wills. 11. So far as the findings of learned Board of Revenue with regard to the vesting of land in the State Government as per provisions of section 176 of M.P. Land Revenue Code, 1959 is concerned, this Court finds that under sub-section 1 of section 176 provides that if a bhumiswami ceases to cultivate his holding for five years either by himself or by some other person, does not pay land revenue or has left the village in which he usually resides, the Tahsildar may, after an enquiry, take possession of the land comprising the holding and arrange for its cultivation by letting it out on behalf of the bhumiswami for a period of one agricultural year at a time and further sub-section 2 provides that a right to the bhumiswami who is lawfully entitled to the land exists to claim it back within a period of five years from the commencement of the agricultural year next following the date on which the Tahsildar had taken possession of the land and the same shall be restored to him on payment of the dues, if any. 12. No such procedure as prescribed under sub-section 1 of section 176 had been followed which could have given a right to the present petitioners (who are claiming themselves to be owner of the property on the basis of will) to seek its restoration. Thus, when no possession had been taken over by the Tehsildar, it cannot be said that original owner had stopped cultivating the land from the last five years and therefore, the land would vest in the Government. This being a perverse finding is not concurred by this Court. Hence, the order passed by the Board of Revenue dated 16.4.2015 is set-aside. 13. This Court deems it fit to direct the Revenue Authorities to mutate the name of the original owner in the revenue records till the dispute is resolved by the competent Court of civil jurisdiction. 14. With the aforesaid direction, the present petition stands disposed of. Certified copy as per rules.