Pushpa (Smt. ) vs State of M. P. - 2023 Supreme(MP) 62

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(MP) 62

IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Pushpa (Smt.) v. State of M.P. and another
Miscellaneous Petition No. 90 of 2023 (Jabalpur): against the order dated 6.12.2022 passed by the Additional Collector, Shahdol in Case No. 52/Revision/2022-23; Decided on 12.1.2023.

Advocates:
Akhilesh Kumar Choubey for petitioner; Ms. Shanti Tiwari, Panel Lawyer for respondent/State.

Headnote:
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 110 rFkk 178 && jftLVªhÑr foÒktu foys[k d¢ vkèkkj ij ukekarj.k && vihy esa 38 o"kZ dk foyac && le;oftZr gksus ds dkj.k mi[kaM vfèkdkjh }kjk vihy [kkfjt dh xÃ && vfÒys[k ij d¨Ã nLrkost ugÈ && ;kph çFken`"V~;k LFkkfir djus esa vlQy jgk fd ukekarj.k fdlh nLrkost d¢ vkèkkj ij fd;k x;k Fkk && çR;FkÊ dk çfrokn fd mls ukekarj.k dh tkudkjh ugÈ Fkh && lgh çrhr g¨rk gS && mi[kaM vfèkdkjh dk vkns'k iqujh{k.k esa Bhd&gh vikLr fd;k x;k rFkkfi] ;kph d¨ mi[kaM vfèkdkjh d¢ le{k foÒktu foys[k çLrqr djus dh Lora=rk çnku dh xÃA ¼iSjk 6
¼2½ ifjlhek vfèkfu;e] 1963 && èkkjk 5 && foyac dh ekQh && ukekarj.k ds fo#) vihy && ukekarj.k jftLVªhÑr foÒktu foys[k d¢ vkèkkj ij fd;k x;k && vfÒys[k ij d¨Ã nLrkost ugÈ && mi[kaM vfèkdkjh us 38 o"kZ ds le; ls oftZr gksus ds dkj.k vihy [kkfjt dh && ;kph çFken`"V~;k LFkkfir djus esa vlQy jgk fd ukekarj.k fdlh nLrkost d¢ vkèkkj ij fd;k x;k Fkk && vij dysDVj us mi[kaM vfèkdkjh dk vkns'k vikLr djrs gq, foyac Bhd&gh ekQ fd;kA ¼iSjk 6
¼3½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 50 rFkk 257 && iqujh{k.k pyus ;¨X; g¨uk && jftLVªhÑr foÒktu foys[k d¢ vkèkkj ij ukekarj.k && vfÒys[k ij d¨Ã nLrkost ugÈ && mi[kaM vfèkdkjh }kjk vihy le;oftZr gksus ds dkj.k [kkfjt dh xÃ && vij dysDVj d¢ le{k iqujh{k.k çLrqr fd;k x;k rFkk flfoy okn Òh çLrqr fd;k x;k && flfoy okn èkkjk 257 d¢ vèkhu lhfer ç'u ij gh pyus ;¨X; && iqujh{k.k dk mipkj dkuwuh mipkj gS && iqujh{k.k pyus ;¨X; gS && vij dysDVj us iqujh{k.k xzg.k dj d¨Ã =qfV ugÈ dhA 1968 jk fu 683 ¾ 1969 ts ,y ts 1 ¾ , vkb vkj 1969 ,l lh 78 fufnZ"VA ¼iSjk 8
¼4½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 52 rFkk 50 && varfje vuqr¨"k && j¨d vkns'k && ,sls vuqr¨"k dh bZIlk d¢ fy, d¨Ã vkosnu ugÈ && varfje vuqr¨"k d¢ fy, fdlh vkosnu ds fcuk] j¨d vkns'k@varfje vuqr¨"k çnku ugÈ fd;k tk ldrk && varfje vuqr¨"k d¢ fy, mi[kaM vfèkdkjh d¢ le{k vkosnu çLrqr djus dh Lora=rk çnku dh xÃA ¼iSjk 9
(1) Land Revenue Code, 1959 (M. P.) -- Ss. 110 and 178 -- mutation done on basis of registered partition deed -- delay of 38 years in appeal -- appeal dismissed by SDO as barred by time -- no document on record -- petitioner failed to prima facie prove that mutation was done on basis of any document -- contention of respondent that she was not aware of mutation -- appears to be correct -- order of SDO rightly set aside in revision -- however, liberty granted to petitioner for filing partition deed before SDO. [Para 6
(2) Limitation Act, 1963 -- S. 5 -- condonation of delay -- appeal against mutation -- mutation done on basis of registered partition deed -- no document on record -- appeal dismissed by SDO as barred by time of 38 years -- petitioner failed to prima facie prove that mutation was done on basis of any document -- delay rightly condoned by Additional Collector by setting aside order of SDO. [Para 6
(3) Land Revenue Code, 1959 (M. P.) -- Ss. 50 and 257 -- maintainability of revision -- mutation on basis of registered partition deed -- no document on record -- appeal dismissed by SDO as barred by time -- revision filed before Additional Collector and civil suit also filed -- civil suit maintainable only on limited question under section 257 -- remedy of revision is statutory remedy -- revision is maintainable -- Additional Collector did not commit any mistake by entertaining revision. 1968 RN 683 = 1969 JLJ 1 = AIR 1969 SC 78 referred to. [Para 8
(4) Land Revenue Code, 1959 (M. P.) -- Ss. 52 and 50 -- interim relief -- stay order -- no application for seeking such relief -- without any application for interim relief, stay order/interim relief cannot be granted -- liberty granted to file application for interim relief before SDO. [Para 9

ORDER

1. This misc. petition under Article 227 of the Constitution of India has been filed against the order dated 6.12.2022 passed by Additional Collector, Shahdol in Case No. 52/Revision/2022-23 by which the revision filed by the respondent No. 2 against the rejection of her application under section 5 of the Limitation Act and consequently the dismissal of her appeal as barred by limitation, has been allowed.

2. The facts necessary for disposal of present petition, in short, are that the respondent No. 2 preferred an appeal on 5.8.2021 against the order dated 18.12.1983 passed by Tahsildar, by which the names of the parties were mutated on the basis of some registered partition deed. The said appeal was filed along with an application under Section 5 of Limitation Act. The SDO by order dated 3.6.2022 rejected the application filed under Section 5 of Limitation Act on the ground that no sufficient ground has been made out for filing the appeal after delay of 38 years and as a consequence thereof the appeal was also dismissed.

3. Being aggrieved by the aforesaid order, the respondent No. 2 preferred a revision before the Collector, Shahdol, which was registered as Case No. 52/Revision/2022-23. The revision has been allowed by the impugned order dated 6.12.2022 with a finding that since the petitioner has not produced the copy of registered partition deed, therefore, there was a sufficient ground for condonation of delay and accordingly, the SDO should have condoned the delay in filing the appeal.

4. Challenging the order passed by the Additional Collector dated 6.12.2022, it is submitted by the counsel for the petitioner that when the respondent No. 2 herself was a party to the registered partition deed then there was no sufficient ground for assailing the order of the Tahsildar after 38 longs years.

5. Heard the counsel for the petitioner.

6. Although the revision filed by the respondent No. 2 has been allowed on the ground that the copy of registered partition deed has not been placed on record but inspite of that the petitioner has not filed a copy of the registered partition deed even before this Court. Further more, whether there was any registered partition deed or not, is yet to be decided by the SDO because, the question whether mutation was done properly or not is the subject matter of appeal. Under this circumstance where the petitioner has failed to prima facie prove that mutation was done on the basis of any document, the contention of the respondent that she was not aware of mutation, appears to be correct. Therefore, the order of SDO was rightly set aside. However, it is made clear that the observation made by the Additional Collector in the impugned order with regard to non filing of the registered partition deed shall remain confined to Case No. 52/Revision/2022-23only. In order to avoid any confusion, the petitioner is granted liberty of filing a copy of the registered partition deed before the SDO in the pending appeal. The SDO shall decide the appeal without getting influenced or prejudiced by any of the observation made by the Additional Collector, Shahdol in the order dated 6.12.2022 as well as by the dismissal of the present miscellaneous petition.

7. It is submitted by the counsel for the petitioner that without there being any prayer for grant of interim relief, the Additional Collector, Shahdol has passed interim relief thereby restraining the petitioner from alienating the property. It is submitted by the counsel for the petitioner that no application was filed by respondent No. 2 along with appeal for seeking any interim order and therefore, in absence of any prayer by the respondent No. 2, the Additional Collector, Shahdol was not justified in restraining the petitioner. It is further submitted that against the order of partition as well as agasint the order passed by the SDO, the respondent No. 2 has also filed a civil suit and Additional Collector, Shahdol has ignored the pendency of the civil suit.

8. S

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