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2020 Supreme(MP) 1104
IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Rasool Khan (Dead) Through Legal Heirs & others
v. Abdul Aziz Khan
Miscellaneous Petition No. 3263 of 2020 (Gwalior) ;
against the order Dated 16.11.2020 passed by the Additional Commissioner, Bhopal Division, Bhopal in case No. 465/Appeal/2012-13; Decided on 4.12.2020
Arun Katare for Petitioners
Headnote:
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 109 rFkk 110 && e©f[kd fgck d¢ vkèkkj ij ukekarj.k dk;Zokgh && ftl çR;FkÊ us fgck fd;k Fkk mlus fgck e©f[kd :i ls Lohdkj fd;k && ijarq og rglhynkj d¢ U;k;ky; esa O;fDrxr :i ls milatkr ugÈ gqvk && çR;FkÊ dh milatkfr lqfuf'pr fd, fcuk gh ;kph ds i{k esa ukekarj.k vkns'k ikfjr && rglhynkj us ,slh izfØ;k viukbZ tks fofèk dh vKkr gS uSlfxZd U;k; d¢ fl)kar dh iw.kZr% mis{kk dh && vij vk;qä us ,slk vkns'k vikLr djus esa d¨Ã xyrh ugÈ dhA ¼iSjk 6] 10 ,oa 11
¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 49 ¼3½ && çfrçs"k.k && dc visf{kr ugÈ && fgck d¢ vkèkkj ij fd;k x;k ukekarj.k vfèkdkfjrkjfgr gS && jktLo izkf/kdkfj;ksa ds fgck dh 'kq)rk dk fofu'p;u djus dh vfèkdkfjrk ugÈ && çFke vihy le; oftZr gksus ds dkj.k [kkfjt dh xà && vij vk;qä }kjk rglhynkj ,oa mi[kaM vfèkdkjh d¢ vkns'k vikLr fd, x, && ekeyk çFke vihy U;k;ky; d¨ çfrçsf"kr fd;k tkuk pkfg, ijarq rglhynkj d¢ le{k dk;Zokgh vfèkdkfjrk jfgr Fkh blfy, vij vk;qä us ekeyk mi[kaM vfèkdkjh d¨ çfrçsf"kr ugha dj dksbZ xyrh ugha dhA ¼iSjk 2 ,oa 11
¼3½ ifjlhek vfèkfu;e] 1963 && èkkjk 5 && foyac dh ekQh && çR;FkÊ d¢ ihB-ihNs ukekarj.k vkns'k ikfjr fd;k x;k && foyac ekQ fd;k tkuk pkfg, Fkk && çR;FkÊ dk ladFku fd mls rglhynkj }kjk ikfjr vkns'k dh tkudkjh ugÈ Fkh && Lohdkj fd;k tkuk pkfg, FkkA ¼iSjk 10
¼4½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && èkkjk 109 rFkk 110 && fgck && 'kq)rk && jktLo izkf/kdkfj;ksa d¨ fgck dh 'kq)rk dk fofu'p;u djus dh vfèkdkfjrk ugÈ gS pkgs og fyf[kr ;k e©f[kd g¨ && fgck d¢ vkèkkj ij ukekarj.k vfèkdkfjrkjfgr gSA 2021 ¼1½ jk- fu- 25 ¼mPp U;k;k-½ voyafcrA ¼iSjk 8] 9 ,oa 11
¼5½ fgck && 'kq)rk && fyf[kr gks ;k e©f[kd && jktLo U;k;ky;¨a d¨ fgck d¢ ç'u dk fofu'p;u djus dh vfèkdkfjrk ugÈA ¼iSjk 8 ls 11
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110 -- mutation proceedings on basis of oral Hiba -- Hiba orally accepted by respondent who made Hiba -- but he did not appear in person febore Court of Tahsildar -- without ensuring appearance of respondent -- mutation order passed in favour of petitioner -- Tahsildar adopted procedure unknown to low -- gave complete go by -- to principles of natural justice -- no error committed by Additional Commissioner in setting aside such order.
[Paras 6, 10 & 11)
(2) Land Revenue Code, 1959 (M.P.) -- S. 49 (3) -- remand -- when not required -- mutation made on basis of Hiba is without jurisdiction -- revenue authorities have no jurisdiction to decide correctness of Hiba -- first appeal dismissed as time barred -- Officer set aside by Additional Commissioner -- matter should be remanded to first appellate Court -- but since proceedings before Tahsildar were without jurisdiction, Additional Commissioner did not commit any mistake by not remanding matter to S.D.O. [Paras 9 & 11
(3) Limitation Act, 1963 -- S.5 -- condonation of delay -- mutation order passed behind back of respondent -- delay should have been conddoned -- contention of respondent that he was not aware of order passed by Tahsildar -- should have been accepted. [Para 10
(4) Land Revenue code, 1959 (M.P.) -- Ss. 109 and -- 110 -- Hiba -- correctness -- revenue authorities have no jurisdiction to decide correctness of Hiba, whether written or oral -- mutation on basis of Hiba is without jurisdiction. 2021 (1) RN 25 (HC) relied on. [Paras 8, 9, & 11
(5) Hiba -- Correctness -- whether written or oral -- revenue Courts have no jurisdiction to decide question of Hiba.
[Para 8 to 11.
ORDER
1. This miscellaneous petition under Article 227 of Constitution of India has been filed against the order dated 16.11.2020 passed by Additional Commissioner, Bhopal Division, Bhopal in Case No.465/Appeal/2012-13 by which the mutation of names of petitioners in the revenue records, has been set aside.
2. It is submitted by the counsel for the petitioners that on the basis of an oral Hibanama, the names of the petitioners were mutated in the revenue records and the respondent had also appeared and had accepted the Hibanama and, therefore, he kept quite. However, after a gap of about 12 years, the respondent filed an appeal along with an application under section 5 of Limitation Act which was rejected by SDO, Lateri, District Vidisha and accordingly, the appeal was also dismissed.
3. Being aggrieved by order of SDO, the respondent preferred an appeal which has been allowed by Additional Commissioner, Bhopal Division, Bhopal and the orders of SDO as well as Tahsildar have been set aside.
4. It is submitted by the counsel for the petitioners that an Heirs and Ors. Abdul Aziz Khan application for mutation of names of the petitioners was filed before Tahsildar, Lateri, District Vidisha on 15.2.100 and accordingly, the notices were issued and the case was fixed for 3.3.1999. On 3.3.1999, the respondent appeared and verbally accepted Hiba and accordingly, case was fixed for recording evidence of petitioners. On 8.3.1999, the evidences of petitioners were recorded and case was fixed for 10.3.1999. On 10.3.1999, the petitioners also sought time to examine one more witness as well as to examine the respondent and accordingly, case was adjourned to 12.3.1999. On 12.3.1999, evidence of one Abdul Gaffar was recorded and accordingly, case was fixed for final orders. It is submitted that respondent Abdul Aziz who had given the land on Hiba, had executed an affidavit and thus, it is clear that the petitioners as well as respondent had admitted the Hiba orally before the Tahsildar, therefore, the Tahsildar did not commit any mistake in mutating the names of petitioners. It is further submitted that SDO, Lateri, District Vidisha did not commit any mistake in dismissing the appeal as barred by limitation and under these circumstances, Additional Commissioner, Bhopal Division, Bhopal should not have set aside the well-reasoned orders passed by the Tahsildar as well as the SDO.
5. Considered the submissions made by the counsel for the petitioners.
6. The petitioners have filed the copy of the order sheets of the Court of Tahsildar, Lateri, District Vidisha. From these orders sheets, it is clear that respondent Abdul Aziz did not appear in person before the Court of Tahsildar. It is beyond understanding that when Tahsildar had decided to record the evidence of witnesses of petitioners, then why the Tahsildar did not insist for appearance and recording of evidence of respondent Abdul Aziz. Although in the order dated 3.3.1999 the Tahsildar has observed that respondent has verbally accepted the Hiba, but the said order sheet does not bear the signature of respondent. Thus, it is clear that the Tahsildar has acted in a most unfair manner.
7. The question which is necessary for determination is that whether the revenue authorities are competent to decide the genuineness of ''Hiba'' or not ?
8. This Court in the case of 2021(1) RN 25 (HC) Dharamveer Singh and Others v. Rushtum Singh and Others, by order dated 27.8.2019 passed in MP No. 3281 of 2019 has held as under :-
''The Punjab and Haryana High Court in the case of Rajinder Singh And Another v. Financial Commissioner as decided on 21st March, 2013 in Civil Writ Petition No. 3821/2011 has held that validity of ''Will'' can be decided by the civil Court which has exclusive domain over such matter and this cannot be decided by the Revenue Courts.
Heard the Learned Counsel for the parties.
A similar view has been taken by a Coordinate Bench of this Court by order dated 6.4.2017 passed in Writ Pet
