MP/2236/2018 of RAMVEER SINGH S/O SHRI DEVI SINGH THR. POWER OF ATTORNEY HOLDER CHANDRABHAN SINGH RAGHUVANSHI Vs BHAGCHAND on 5 November 2024

ORDER

The present petition under Article 227 of the Constitution of India isdirected against the order dated 16.02.2018 passed by Member, Board ofRevenue in Revision No.2833-PBR/2016, whereby order passed in second

appeal no.5/2015-16 dated 20.07.2016 passed by Additional Commissioner,Gwalior Division was set aside and the order passed by the SDO dated20.05.2015, whereby the order dated 05.01.2005 mutating the name of thepetitioner in the revenue records with regard to survey no.1074/min 3 was setaside, was upheld.

Learned senior counsel Shri N.K. Gupta along with Miss Rashi Kushwahhad assailed the order passed by Board of Revenue on two fold grounds, thefirst one being that respondent no.2 who was one of the vendors, during thependency of the revision before the Board of Revenue, had expired and withoutimpleading his legal representatives, the revision has been decided and,secondly, on merits the order passed by the Additional Commissioner, whichwas sound and well founded wherein it was observed that the Namantranno.16/15.09.2004, whereby vide order dated 05.01.2005 mutation ofShivnarayan, Nahar Singh, Raj Kumar s/o Tikaram Jatav was made was withregard to survey no.1088 on the basis of registered sale-deed in their favour,whereas the dispute between the parties was in relation to survey no.1074 andwithout ascertaining the aforesaid fact and conducting any enquiry in that regardthe SDO has passed the order which was per se illegal and, thus, while settingaside the order passed by SDO dated 20.05.2015, the matter was remandedback to the Tehsildar for conducting a fresh enquiry into the matter and takeappropriate decision, which was not required to be interfered with but theMember, Board of Revenue had gone into another aspect of the matter and hadgiven a finding which was not in dispute regarding the sale-deeds been executedthrough power of attorneys and the said power of attorneys were not filedbefore any of the Courts below, therefore, the said order is not sustainable.Further since, no illegality committed by the SDO in passing the order and without considering the said aspect by the Additional Commissioner hadpassed the said order, thus, the order is bad in law.

It was further submitted that one of the judgments which has been reliedupon by the counsel for the respondent in the matter of Anant Singh andAnother vs. Govind and Ors reported in 1999 RN 99, wherein it had beenheld that while passing the order if no rights of the parties had been decided andthe matter has been remitted back to the lower authority, no prejudice could besaid to have been caused to either of the parties and if the parties believed in themerits of the case, they should face the enquiry instead of shying away from itand as the learned Additional Commissioner had not decided any rights of theparties rather had remitted the matter to Tehsildar for fresh adjudication it didnot require interference.

It has also been argued while placing reliance in the matter ofPrabhudayal and Ors. vs. Kishorilal passed in M.P. No.1609/2020 dated15.06.2023 that the SDO without considering the contents of the applicationunder Section 5 of the Limitation Act and without any discussion about thegenuineness of the reasons which has been assigned by the appellant/presentrespondent and without assigning any reason has condoned the delay of morethan 8 years in preferring the appeal, which was perverse, thus, in the light of thejudgment passed by the Hon'ble Apex Court in the matter of KrantiAssociates Private Ltd. and Anr. vs. Masood Ahmed Khand and Orsreported in 2010 (9) SCC 496, the order on this count passed by SDO wasillegal. On the strength of the aforesaid arguments, it was contended that thepresent petition deserves to be allowed and the order passed by the Board ofRevenue is required to be set aside and that of Additional Commissioner is to be restored.

Per contra, Shri S.K. Shrivastava appearing for the respondents hasvehemently opposed the contentions as raised by the learned Counsel for thepetitioner. It has been contended that the order passed by the SDO dated20.05.2015 was in consonance with the record available before it as admittedlythe order dated 05.01.2005 by which the name of the petitioner was mutated inthe revenue record was found to be pertaining to some different survey numberi.e.1088 and the names of Shivnarayan, Nahar Singh, Raj Kumar s/o TikaramJatav were mutated on the basis of sale-deed, thus, it was found by the SDOthat since on the basis of the order dated 05.01.2005 the name of the petitionerhas wrongly been mutated in the revenue records, therefore, the order dated05.01.2005 was set aside and the parties were directed to move appropriateapplications along with relevant documents before Tehsildar for their mutationand since, admittedly, the order dated 05.01.2005 which pertains to some othersurvey number and the entry on its basis in the Khasra was rightly set aside,there was no occasion for the Additional Commissioner to set aside the orderpassed by the SDO dated 20.05.2015 where already opportunity was affordedto both the parties to submit fresh application along with all documents formutating their names in the revenue records.

It was further contended that from bare perusal of the order passed bythe Additional Commissioner, it could be observed that on some irrelevantconsideration of non-scrutinizing of the documents with regard to surveynos.1074 and 1088 by the SDO while passing the said order it was held that theorder passed by SDO was bad in law, but while setting aside the order passedby the SDO has remitted the matter again to Tehsildar for fresh adjudicationwhich was per se illegal.

Arguments

With regard to the contention that the order passed by the Board ofRevenue is against a dead person, it has been argued that there is nothing onrecord to show as to when Ram Singh s/o Shri Ram Prasad who wasrespondent no.2 before the Board of Revenue had expired. No date of his deathhas been brought on record by the petitioner, thus, this fact that he had expiredduring the pendency of the revision before the Board of Revenue cannot beaccepted. It was further argued that even otherwise it is assumed thatrespondent no.2 before Board of Revenue had expired during the pendency ofthe revision, since he was the vendor and had not challenged the order passedby the SDO had in fact accepted the said order, this Court finds that no rightsthereof had left with him, rather or his LRs, which could adversely affect him orin case of his death to his legal representatives and at the most it could be saidthat the revision would have abated so far as Ramsingh s/o Ramprasad isconcerned. Thus, the order passed by the Board of Revenue cannot be said tobe bad in that regard.

Learned counsel for the respondent has also placed reliance in the matterof Anant Singh (supra) and has contended that the present writ petition sincebasically is against the order passed by the SDO dated 20.05.2015, whereby thematter has been remanded back to the Tehsildar is not maintainable as nothinghad been decided in favour of either of the parties rather the matter has beenremitted to the lower authority for fresh adjudication. Thus, it was submittedthat the present petition on this Count also deserves to be dismissed.

Heard the counsels for the parties and perused the record.

During the course of the arguments, learned senior counsel for thepetitioner had placed before this Court certified copies of the record of

mutation proceedings conducted by Additional Tehsildar in mutation caseno.9/04-05/A-6, wherein vide order dated 03.11.2004 the application underSection 110 of the MPLRC preferred by the present petitioner on the basis ofsale-deed no.383 dated 08.06.1993 through power of attorney was allowed andthe name of the petitioner was directed to be mutated in the revenue records.The said record was also made available to the counsel for the respondent whoafter going through the same had not controverted it. Thus, from thesubsequent fact which has emerged today it appears to this Court that beforeSDO a wrong amendment was carried out at the behest of present respondentand instead of challenging the order dated 03.11.2004 some other order dated05.01.2005 passed in case no.16/15.09.2004 was challenged.

The aforesaid amendment appears to have been brought due to theanomaly which has been crept out from the Khasra entry wherein on the basisof this second order dated 05.01.2005, the name of the petitioner has beenmutated in the revenue records in relation to survey no.1074.

Further it appears to this Court that though SDO has rightly held that videorder dated 05.01.2005 passed in Namantran no.16/15.09.2004 which pertainsto land bearing survey no.1088 situated within the jurisdiction of grampanchayat Khurera, the name of the petitioner has wrongly been mutated as videthe said order names of Shivnarayan, Nahar Singh, Raj Kumar s/o TikaramJatav were mutated, but this court finds that the SDO had wrongly set aside theorder dated 05.01.2005 rather the SDO should have directed the parties or tothe petitioner to produce the actual order of mutation and should have heard thematter.

The petitioner herein challenging the order passed by the SDO alsowithout bringing the said fact in a correctly before the Additional Commissioner had assailed the said order and in the guise of the said pleadings the AdditionalCommissioner also appears to have fell in trap and without clarifying the saidposition had remanded the matter back to the Nayab Tehsildar though in theeventuality in other terms the SDO has passed the same order.

Challenging the aforesaid order passed by the Additional Commissionerthe present respondent had approached the Board of Revenue and the Board ofRevenue also without discussing the aforesaid or scrutinizing the record heldthe order passed by the Additional Commissioner to be bad in law, but in theend result was the same, both the parties by the order of SDO as well as by theorder of Additional Commissioner were to go before Tehsildar and to raise theirrespective claims with regard to their mutation in the revenue records, which thepetitioner has already done and the respondent is yet to approach. Thus, thisCourt deems it fit to relegate the parties before the SDO for deciding the appealafresh, treating it to be an appeal against the order dated 03.11.2004 passed themutation case no.9/04-05/A-06, with a direction to pass a speaking andreasoned order after giving opportunity of hearing to the parties.

With the aforesaid direction, the petition stands disposed of.

It is needless to observe that this Court has not observed anything onmerits.

Chandni

(MILIND RAMESH PHADKE)JUDGE