DURGASINGH Vs. JEBOBAI

JUDGEMENT

(1.) THE facts out of which this petition arises are that there was one Harbhajan. After death of Harbhajan, it seems, Durgasingh, the present petitioner, claimed himself to be the adopted son of the deceased and asserted his rights as such. When Jebobai, widow of Babulal came to know of this she filed a suit (No. 391 -A of 1961) in the civil Court to the effect that it be declared that Durgasingh is not the adopted son of Harbhajan. This suit was decreed on 25 -2 -1963 and it was held that Durgasingh is not the adopted son of Harbhajan. Then, a second suit was filed by Durgasingh saying himself that he is son of Parmanand, and brother of Harbhajan and as Harbhajan and Parmanand are dead, he is the only heir to Harbhajan and as such, it should be declared that he is the owner of the disputed property and an injunction be given against Jebobai that she should not interfere in the possession of Durgasing. This suit was decreed on 22 -1 -1969 in which it was held that Durgasingh is the owner of the property and injunction is granted against Jebobai for not interfering in his possession. This suit was decreed exparte. Then, the third suit was filed, That was suit No. 158.A/70. This suit is filed by Jebobai. alleging that the decree passed in suit No. 107 -A/1968 was obtained by fraud and as such, it is not binding on her. The third suit is in the evidence stage. An application under section 110 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code) was submitted before Tahsildar by Jebobai for recording her name in place of her deceased father. The non -applicant to this objected that he being the adopted son, therefore, his name should be entered. Then, he also submitted that proceedings before the civil Court are pending, therefore, also the proceedings under section 110 of the Code be stayed. The Tahsil Court 'declined to stay the proceedings. Against that order, Durgasingh went before the Collector, who maintained the same order' Learned Additional Commissioner, in revisional powers set aside the order of Tahsildar and directed him to proceed with the mutation proceedings. Against this, there was a revision before the Board of Revenue and by order dated 27th September, 1972, the learned Member, Board of Revenue stayed the proceedings till the final out come of the civil litigation between the parties. Against this, the present petition is filed.

(2.) THE main grievance which was advanced before us is that when there is a valid decree by the civil Court, the revenue authorities have no right to stay the mutation proceedings. The learned counsel referred to us section 111 of the Code. This section says that the civil Courts shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record of rights. Basing this submission on this section, the learned counsel for the petitioner, Shri B.G. Apte, submitted that when there is a decree in his favour in suit No. 107 -A/68, then as of right, his name should have been mutated we think that he is right in his submission and, therefore, the order of the Board of Revenue cannot stand and so we set aside that order. But the question now before us is that what exactly should be done in such a matter when there are two decrees, one in favour of each party and a third suit is pending to decide that the decree obtained in second suit is not binding because of fraud. We feel, under such circumstances, it will be just and proper to stay the proceedings regarding mutation till the final outcome of suit No. 158 A/70. Therefore, we allow this petition, quash the order passed by the Board of Revenue and instead under Article 227 of the Constitution of India, we pass the order as mentioned above Parties to bear their own costs. Amount of security be rafund to the petitioner.