KAPOOR SINGH Vs. STATE OF M P

JUDGEMENT

(1.) CHALLENGING the orders Annexure P-1 dated 9th January 2004 passed by the Board of Revenue and the order Annexure P-2 dated 3.10.2003 passed by the Additional Commissioner exercising the powers of appeal and revision under the M.P. Land Revenue Code, 1959, petitioner has filed these petitions.

(2.) FACTS in nutshell relevant for deciding the present petitions are that the land in question, particulars of which are given in para 5.1 of the petitions, were initially recorded in the name of one Bikha S/o Shri Sukha. It is stated that land belonged to Bikha and before his death on 14.10.1998 Bikha executed a will in favour of petitioner Kapoor Singh. It is stated that after death of Bikha i.e. 3.11.1998 petitioner Kapoor Singh has filed application for mutation before the Sub-Divisional Officer. It is the case of the petitioner that after the death of Bikha it came to his knowledge that on 12.10.1992 Patwari has entered the name of respondents Sitaram and others in the revenue records and the name of Bikha has been deleted. The complaint was made in this regard and the Collector called for the report from the concerned Tahsildar. Annexure P-4 is the complaint filed by the petitioner and Annexure P-5 is the report submitted by the Tahsildar on 13.11.2002. In this report it has been indicated by Tahsildar that name of Bikha has been deleted and name of Sitaram and others has been recorded on the basis of mutation proceeding No. 49 dated 13.10.1992. It is further indicated in the report that on enquiry from the office of Settlement Officer it is reported that no such record of mutation is available in the office of Settlement Commissioner pertaining to Case No. 49, the report indicated that mutation made in the name of Sitaram and others is illegal, even though on this report, Collector passed an order on 27.112000 for initiating suo motu revision proceedings, it seems that nothing was done in the matter thereafter, therefore, petitioner filed an appeal before the Sub-Divisional Officer, challenging the order dated 12.10.1992 mutating the name of Sitaram and others in place of appellant Bikha along with this appeal an application for condonation of delay was filed inter alia contending that the petitioner came to know about the mutation done on 12.10.1992 only when he inspected the record few days before filing of the appeal and therefore, sought for condonation of delay. Delay was condoned and Tahsildar finding mutation dated 12.10.1992 done in the Case No. 49 to be without any basis quashed the order of mutation, against this order further appeal was filed by the respondents is allowed by the Additional Commissioner vide order Annexure P-2 dated 3.10.2003, petitioner preferred revision before the Board ofRevenue and Board of Revenue upheld the order of Additional Commissioner by Annexure P-1, even though Shri D.P. Singh counsel for petitioners and Shri Rajendra Sagoria counsel for the respondents argued on various aspects on merits of the claim. From the records it is seen that Bikha is recorded as owner of the land in question and the finding recorded by the Sub-Divisional Officer is that the reason for entering the name of Sitaram and others in the revenue record on 12.10.1992 is not clear, even the proceedings on the basis of which the Patwari entered the name of Sitaram are not available. It is the case of the respondents that the Sub-Divisional Officer quashed the order of mutation made by Tahsildar on 12.10.1992, this finding of the Sub-Divisional Officer is supported by the enquiry report Annexure P-5 dated 13.11.2000 and the reasons indicated by the Sub-Divisional Officer in its order 27.11.2000 Collector has initiated the proceeding in suo motu revision. However when the matter travelled to the Additional Commissioner and thereafter to the Board ofRevenue surprisingly the facts were never taken into the consideration. Finding that SDO has passed the order without hearing the respondents Sitaram and others and the order passed without hearing respondents Sitaram and others is illegal interference was made by the Additional Commissioner and Board of Revenue if that was the case then it was proper that the authorities concerned namely the Additional Commissioner and the Board of Revenue to remand the matter back to the Sub-Divisional Officer for deciding the appeal afresh after hearing respondents Sitaram and others on the contrary both the additional Commissioner and Board of Revenue were carried away by the fact that certain suit have been filed by the petitioner claiming his right to title over the property on the basis of will executed in his favour by late Bikha on 14.10.1998. It is indicated in the order passed by the Board of Revenue that as the right to title is to be decided in the civil proceeding, the Board of Revenue upheld the order passed by the Additional Commissioner. Similarly the Additional Commissioner has stated that when Bikha has expired in the year 1998, during his life time he had not challenged the order dated 12.10.1992 intereference at the instance of the petitioner cannot be permitted when the will on the basis of which petitioner is claiming his right is not established and there is serious dispute with regard to this will, this order of the Additional Commissioner was not proper. The Additional Commissioner while adverting to these questions did not address the main issue involved in the matter as to how and in what circumstances the name of Bikha was deleted from the revenue records and the name of respondents Sitaram was entered on 12.10.1992 the consistent finding available on record on the basis of enquiry conducted by the Tahsildar is that there is no sale or document executed by Bikha in favour of Sitaram and others. There is no sale deed executed by Bikha in favour of Sitaram during his life time till 1992. Patwari mutated the name of Sitaram is available but records in this regard are not available. In the light of these facts it would have been proper if the matter was remanded back to the Sub-Divisional Officer to decide the question afresh after hearing instead of restoring of the order dated 12.10.1992. The action of the Additional Commissioner and Board of Revenue in dealing with the matter in the manner as done cannot be approved by this Court merely because some civil suit is pending that cannot be a ground for upholding the mutation order dated 12.10.1992. Prima facie material available on record indicates that this order of mutation passed by the Tahsildar is without any basis it is found to be prima facie unsustainable, therefore, it was proper to remand the matter back to the Sub-Divisional Officer for deciding the appeal of the petitioner afresh after hearing respondents Sitaram and others.

(3.) ACCORDINGLY this petition is allowed, order Annexure P-2 dated 3.10.2003 passed by the Additional Commissioner and Annexure P-1 dated 9.1.2004 passed by Board of Revenue are quashed. Matter is remanded back to Sub-Divisional Officer for deciding Appeal No. 11/02-03 filed by the petitioner Kapoor Singh afresh in accordance with law after hearing all concerned. It may be clarified that the SDO, shall decide the appeal without being influenced by any observation made in this order. The observation made with regard to the mutation done on 12.10.1992 as contained in this order is only for the purpose of deciding this petition, the Sub-Division Officer is directed to decide the appeal afresh in accordance with law without being influenced by any observation made in this order. As the matter pending since long, parties are directed to appear before the Sub-Divisional Officer along with certified copy of this order on 7th of May 2007, on the same being done the Sub-Divisional Officer shall decide the appeal within a period of three months thereafter.