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2020 Supreme(MP) 1098
IN THE HIGH COURT OF MADHYA PRADESH
Sanjay Dwivedi, J.
Awadesh Pachori v. State of M.P. & others
Writ Petition No. 16815 of 2020 (Jabalpur); against order dated 13.10.2020 passed by Additional Commissioner, Jabalpur Division, Jabalpur; Decided on 2.12.2020.
Brijesh Choubey for petitioner
Headnote:
¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 109 rFkk 110 && flfoy U;k;ky; dh fMØh ds vk/kkj ij ukekarj.k ds fy, vkosnu && ,slh fMØh ds fo#) vihy yafcr && vihy esa jksd vkns'k ugha && fMØh ds vk/kkj ij ukekarj.k dsoy bl vk/kkj ij bUdkj ugha fd;k tk ldrk fd ,slh fMØh ds fo#) vihy yafcr gSA ¼iSjk 5] 6 ,oa 7
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 109 rFkk 110 && ukekarj.k ds fy, vkosnu && flfoy U;k;ky; dh fMØh ij vk/kkfjr && ,slh fMØh ds fo#) vihy yafcr && ukeakrj.k izfof"V;k¡ gd~ dk lcwr gksuk ugha ekuh tk ldrha && ukeakrj.k ds fy, fu.kZ; ,oa fMØh vk/kkj cuk;k x;k && jktLo izkf/kdkjh uke ukekarfjr ds fy, vkosnu eatwj djus ds fy, rglhynkj funsf'kr && vihy eatwj dh tkrh gS rks ukekarj.k izfof"V;k¡ 'kq) dh tk ldrh gSaA ¼iSjk 6 ls 9
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110 -- application for mutation on basis of decree of civil Court -- appeal pending against such decree -- no stay order in appeal -- mutation on basis of decree cannot be refused merely because appeal is pending against such decree. [Paras 5,6 & 7
(2) Land Revenue Code, 1959 (M.P.) -- Ss.109 and 110 -- application for mutation -- based on decree or civil Court -- appeal pending against such decree -- mutation entries cannot be treated to be proof of title -- judgment and decree is made basis for mutation revenue authority cannot refuse to mutate name -- Tahsildar directed to allow application for mutation -- if appeal is allowed -- mutation entries can be corrected. [Paras 6 to 9
ORDER
1. By the instant petition, the petitioner is challenging the order dated 13.10.2020 (Annexure-P/9) passed by the Additional Commissioner whereby the Additional Commissioner has affirmed the order of Tahsildar and reversed the order of Sub Divisional Officer.
2. Learned counsel for the petitioner submits that in a suit preferred by the plaintiff/petitioner for declaration of title and for declaring the will dated 1.12.2004 forged and fabricated, by a judgment and decree dated 12.3.2020 the suit was decreed and a decree of declaration declaring the plaintiff/petitioner as the owner of the land of Khasra No.134/1 and 169 area measuring 4.260 hectares and 1.940 hectares respectively situates at village Pindrai, Patwari Halka No.9, Tahsil Sohagpur, District Jabalpur. Thereafter, an application under section 109/110 of the M.P. Land Revenue Code, 1959 was moved for mutation of the name of the petitioner in pursuance to the judgment and decree passed. He further submits that against the judgment and decree granted in favour of the plaintiff/petitioner, an appeal was preferred by respondent No.6, in which no stay was granted to the appellant therein and the said appeal is still pending. He also submits that the application for mutation has been rejected by the Tahsildar on the ground that the appeal is pending before the appellate Court, therefore, the judgment and decree passed by the trial Court is not final. Thereafter, the said order of Tahsildar was assailed by the present petitioner by filing an appeal before the Sub-Divisional Officer and the said appeal was allowed vide order dated 29.8.2020 setting aside the order of Tahsildar. Thereafter, a second appeal was also preferred before the Additional Commissioner, Jabalpur Division, Jabalpur, who vide order dated 13.10.2020 has allowed the appeal setting aside the order of Sub-Divisional Officer and restored the order of Tahsildar mainly on the ground that the appeal against the judgment and decree dated 12.3.2020 is pending before the appellate Court, therefore, mutation is not permissible in such a circumstance.
3. Learned counsel for the petitioner by the instant petition is submitting that the order of Tahsildar and Additional Commissioner are illegal because the mutation application could not have been rejected on the ground that the appeal against the judgment and decree is pending.
4. Since the appellate Court has not granted any stay in favour of appellants (respondents No.5 and 6 herein), therefore, the Tahsildar cannot refuse to record the name of the present petitioner in the revenue record on the basis of judgment and decree passed by the trial Court.
5. I find substance in the contentions raised by the lear.ned counsel for the petitioner because the application of mutation cannot be rejected only on the ground that the appeal is pending against the judgment and decree passed by the trial Court in favour of the present petitioner on the basis of which he is seeking mutation.
6. It is settled principle of law that mutation entries cannot be treated to be a proof of title and the revenue authority cannot refuse to mutate the name, if the judgment and decree passed by the trial Court is made basis for mutation.
7. Indisputably, the judgment and decree passed in favour of the present petitioner was the basis of the application for mutation and merely because the appeal is pending, the appellate authority cannot refuse to allow the application taking note of the fact that the appeal is pending before the appellate Court.
8. In view of the aforesaid, it is clear that the orders dated 6.7.2020 (Annexure-P/3) and 13.10.2020 (Annexure-P-9) passed by the Tahsildar and Additional Commissioner respectively are illegal and based on unreasonable consideration, therefore, are unsustainable in the eyes of law. Accordingly, they are set aside.
9. The order passed by the Sub Divisional Officer is, accordingly, restored. The Tahsildar is directed to allow the application of mutation bec
