BHAWARLAL Vs. KASTURI BAI

JUDGEMENT

(1.) SHRI M.G. Upadhyaya, learned counsel for the appellant. He is heard on the question of admission. This appeal by the defendant is directed against the concurrent judgment and decree passed by the Additional District Judge, Narsingharh, District Rajgarh in Civil Appeal No. 33-A/2005. By the impugned judgment and decree, lower Appellate Court has affirmed the judgment and decree passed by the learned trial Court in favour of respondents No. 1 and 2.

(2.) RESPONDENTS No. 1 and 2 filed a suit for declaration and permanent injunction against the appellant in respect of agricultural land admeasuring 9.679 Hect. situated in Village Kadia chundrawat, more particularly described in the plaint. It is an admitted fact that the suit land belonged to Raghunath, the father of respondents. The admitted relationship between the parties is as under : <IMG>JUDGEMENT_94_MPRN_2008.jpg</IMG> It is also not disputed that the present appellant filed a suit for declaration of title and permanent injunction on 3.11.1981, but that suit was withdrawn by the appellant unconditionally during proceedings for mutation started by the appellant. Appellant raised inconsistent plea with regard to mutation through Rajaram on the basis of oral partition at the same time he claimed that he was entitled to the mutation to the extent of 50 Paise share in the agricultural holdings of Raghunath based upon agreement. The said application was opposed by the respondents and the Tahsildar accepted the claim of the respondents and mutated the entire agricultural holdings in their name by order dated 6.7.1982. Against the order of Tahsildar, appellant preferred an appeal before the Sub- Divisional Officer who partly allowed the appeal and accepted the claim of the appellant for mutation in the land in dispute to the extent of 50 Paise. It is alleged in the plaint that somewhere in the year 1995 the appellant started making efforts for joint cultivation and started claiming equal share in the suit property which compelled the respondents to institute the suit, out of which this appeal arises. Appellant resisted the suit and on the basis of pleadings of the parties, trial Court struck issues and allowed the parties to adduce evidence. Learned trial Judge after appreciating the evidence initially dismissed the suit. The judgment and decree of the trial Court was set aside in first appeal and the case was remanded back in view of the application under Order XLI, Rule 27.

(3.) LEARNED counsel for the appellant at the time of arguments submitted that the trial Court had no jurisdiction to embark upon enquiry regarding validity of the order of SDO (Exhibit P-2) in view of the provisions contained in section 250 read with section 257 of the M.P. Land Revenue Code, 1959. It was submitted that it had attained the finality and no such suit could be filed. In this connection, it was also contended that the suit as framed was time-barred and the respondents could not be permitted to challenge the order passed by SDO after 15 years. I am not impressed by either of the submissions for the simple reasons it was not the case of the appellant that he acquired title by adverse possession. That apart, it is settled that a mutation order does not confer any title or right as the Revenue authorities is not a judicial order. See 2003 RN 162 (SC), Bajrangi v. Badribai. Such order does not decide question of title nor do they operate as res judicata in a civil suit. Jurisdiction of civil Court in that regard is not barred by section 250 read with 257 of the Code, so these contentions must fail. The next contention of learned counsel for the appellant was that the suit is barred by principle of estoppel. In our considered view, without there being an iota of pleading and evidence, how this contention was raised. Be that as it may, it is clear that plea of estoppel is a rule of evidence and it does not create interest in property - Banwarilal v. Sukkdharshan, 1973 MPLJ Note 23 = AIR 1973 SC 814. So this contention also does not advance the case of the appellant.