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MADHYA PRADESH HIGH COURT
(HIGH COURT)
Sujoy Paul, J.
Ramgopal Sharma v. Kamla Bai
Writ Petition No.6949 of 2014 (Gwalior);
against order dated 2.7.2014 passed by Board of Revenue,
M.P., Gwalior in Revision; Decided on 28.10.2015.
(1) Land Revenue Code, 1959 (M.P.) -- Ss.50, 49(3) and 44 -- scope of powers under -- first appeal not adjudicated on merits -- but case remanded to trial Court -- in revision against such interim order -- on merits of case -- order of trial Court cannot be confirmed -- re-appreciation of evidence and examine the evidence by revisional Court as appellate authority -- not permissible -- first instance as original jurisdiction -- such powers can be exercised by first appellate authority -- matter remanded to first appellate Court for deciding appeal on merits. 1985 RN 181 (HC) relied on. AIR 1988 SC 2123, 2011(1) MPLJ 326, AIR 1984 All.155, 2013 RN 263 (HC) and 1992(II) MPWN 30 distinguished. 2013 RN 398 (HC), AIR 1962 Cal.417, AIR 1969 Mad.248, (2004)4 SCC 26 and 2012 AIR SCW 2523 referred to. [Paras 14 & 15
(2) Land Revenue Code, 1959 (M.P.) -- Ss.44, 49(3) and 50 -- scope of powers under -- first appeal not adjudicated on merits -- but case remanded to trial Court -- in revision against such interim order -- on merits of case -- order of trial Court cannot be confirmed -- re-appreciation of evidence and examine the evidence by revisional Court as appellate authority -- not permissible -- appellate and revisional powers are distinct -- first instance as original jurisdiction -- such powers can be exercised by first appellate Court -- matter remanded to first appellate Court for deciding appeal on merits. [Paras 14 & 15
(3) Land Revenue code, 1959 (M.P.) -- S.50 -- Constitution of India -- Art.227 -- scope of powers under section 50 of Code -- is almost analogous to the powers of High Court under Article 227 of Constitution of India -- re-appreciation of evidence and examine the evidence as appellate authority -- not permissible. [Para 14
(4) Practice -- first appeal not decided on merits -- but case remanded to trial Court -- in revision against such interim order -- on merits of case -- order of trial Court cannot be confirmed -- case should be remanded to first appellate Court for deciding appeal on merits. [Paras 14 & 15
1. Challenge in this petition is made to the order dated 2.7.2014 (Annexure P-1), order dated 31.1.2005 (Annexure P-4) and order dated 6.6.2009 (Annexure P-6) passed by Board of Revenue, Additional Collector and Additional Commissioner respectively.
2. The parties have fought long drawn battle before the Revenue Courts. Shri Abhishek Bhadoriya, learned counsel for the petitioner, contends that Halkibai was the original owner of the land. The respondent No.1 is the daughter of Halkibai whereas petitioner is son of Parmanand who was brother of Halkibai. Kamlabai's name was mutated in the land record on 26.12.1991. The petitioner, feeling aggrieved by said mutation, decided to challenge it because no notice was issued to petitioner before mutating the name of Kamlabai in the revenue record. On 28.7.1992 petitioner's name was mutated. Respondent filed an appeal against the said mutation order dated 28.7.1992 before the Sub-Divisional Officer (SDO). The SDO dismissed the appeal on 28.3.1995. The respondent then preferred an appeal against the said order dated 28.3.1995 before Additional Commissioner, which was decided on 30.4.1997 (Annexure P-2). The Additional Commissioner remanded the matter back to the authority below to take a decision afresh.
3. In turn, on 6.12.1999, the Tahsildar passed an order in favour of respondent and accordingly, respondent's name was directed to be mutated. Feeling aggrieved by this order of Tahsildar, petitioner preferred an appeal before SDO. This appeal was decided by order dated 24.3.2000 (Annexure P-3). The appeal was allowed and case was remanded back to Tahsildar. Feeling aggrieved by this order, the respondent preferred revision before the Additional Collector. Said authority by order dated 31.5.2005 (Annexure P-4) set aside the remand order and confirmed the order of Tahsildar dated 6.12.1999 (filed in this case along with list of documents). The present petitioner then preferred a revision against the order dated 31.1.2005 before the Additional Commissioner which was dismissed on 6.6.2009 (Annexure P-6). The second revision of petitioner against this order was also dismissed by the Board of Revenue by order dated 2.7.2014. These orders Annexures P-1, P-4 and P-6 are called in question in this petition filed under Article 227 of the Constitution.
4. Shri Abhishek Bhadoriya, learned counsel for the petitioner, submits that petitioner preferred a detailed appeal against the order dated 6.12.1999. The learned SDO did not decide the appeal on merits and remanded the matter back to Tahsildar to decide it afresh. This order of remand must be treated as interlocutory order because merits of the matter were not touched upon by the SDO. Hence, if revisional authority found any illegality in such remand order of SDO (Annexure P-3), in the fitness of things, the revisional authority should have set aside the order Annexure P-3 and remanded the matter back for adjudication on merits by the SDO. The revisional authority has erred in confirming the order dated 6.12.1999. In the result, the petitioner's right to prefer appeal and get adjudication on the points raised in the appeal were taken away. He contends that appeal is a statutory remedy provided under M.P. Land Revenue Code (Code) and such right could not have been taken away by revisional authority. In support of his contention, he relied on 2013 MPRN 398 (Shakuntala Devi and others v. Board of Revenue and others); Judgment of Kerala High Court in (Klurian v. Jose) decided on 17th March, 2006; AIR 1962 Calcutta 417 (Dilip Kumar Ghosh v. State); AIR 1969 Mad. 248 (Kaluvaroya Pillai and others v. Ganesa Pandithan and others); (2004) 4 SCC 26 (Narayan v. Kumaran and others); 2012 AIR SCW 2523 (Jegannathan v. Raju Sigamani and another). He submits that if impugned orders are not set aside, his objections and grounds raised in appeal will remain undecided and unadjudicated.
5. Shri S.K. Shrivastava, learned counsel for the respondent, on the other hand
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