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IN THE HIGH COURT OF MADHYA PRADESH
G. S. Ahluwalia, J.
Subhanshu Soni v. State of M.P. & others
Miscellaneous Petition No. 572 of 2022 (Jabalpur): against the order dated 16.1.2020 passed by the Additional Commissioner, Sagar Division, Sagar in Case No. 473/Appeal/A-6/2016-17;
Decided on 13.2.2023
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 109 rFkk 110 && ukekarj.k dk egRo && ÒwfeLokeh dh e`R;q d¢ i'pkr~ mldh foèkok rFkk iq= d¢ uke ukekarj.k fd;k x;k && iq=h dk ukekarj.k ugÈ fd;k x;k && ukekarj.k çfof"V ls u rks d¨Ã vfèkdkj ;k gd l`ftr gksxk] v©j u fuokZfir gh gksxk && ek= blfy, fd iq=h us viuk ukekarj.k djkus d¢ fy, d¨Ã dne ugÈ mBk;k] og laifÙk esa vius gd ;k va'k ls oafpr ugÈ gksxhA ¼iSjk 10
¼2½ ifjlhek vfèkfu;e] 1963 && vuq- 65 && ykxw g¨uk && ;g la;qä fganw dqVqEc dh vfoÒkftr laifÙk d¨ ykxw ugÈ g¨xkA ¼iSjk 10
¼3½ çfrdwy dCtk && rkRi;Z rFkk gd dk nkok djus dh gdnkjh && tc rd lQyrkiwoZd ;g ugÈ n'kkZ;k tk, fd ,d lg&va'kèkkjh d¨ laifÙk ls csn[ky dj fn;k x;k Fkk ;k laifÙk dk foÒktu g¨ x;k Fkk] çR;sd lg&va'kèkkjh dk] blls fujis{k fd mldk okLrfod dCtk gS ;k ugÈ] vkUof;d dCtk ekuk tkrk gS && ,d lg&va'kèkkjh viuh cgu lg&va'kèkkjh d¢ fo#) çfrdwy dCts d¢ vkèkkj ij gd dk nkok ugÈ dj ldrk && fookfnr Òwfe esa mldh cgu dk va'k dÒh fuokZfir ugÈ g¨xkA ¼iSjk 10
¼4½ laifÙk varj.k vfèkfu;e] 1882 && èkkjk 52 && e-ç- Òw&jktLo lafgrk] 1959 && èkkjk 109 rFkk 110 && ÒwfeLokeh dh e`R;q d¢ i'pkr~ mldh foèkok rFkk iq= d¢ uke ukekarj.k fd;k x;k && iq=h dk ukekarj.k ugÈ fd;k x;k && ukekarj.k çfof"V ls u rks d¨Ã vfèkdkj ;k gd l`ftr gksrk gS] v©j u fuokZfir gh gksrk gS && fookfnr laifÙk esa iq=h dk va'k Fkk blfy, mlus vihy d¢ yacu ds n©jku ;kph d¨ 1-373 gSDVs;j Òwfe vU;laØkfer dh && oS/krk && mls varj.k djus dk vfèkdkj gS && rglhynkj us ;kph d¢ i{k esa ukekarj.k vkns'k Bhd&gh ikfjr fd;k && mi[kaM vfèkdkjh rFkk vij vk;qä us ukekarj.k vkns'k vikLr dj =qfV dh && mi[kaM vfèkdkjh rFkk vij vk;qä ds vkns'k vikLr && rglhynkj }kjk ikfjr ukekarj.k vkns'k çR;kofrZrA ¼iSjk 3] 10 ,oa 16
¼5½ ifjlhek vfèkfu;e] 1963 && èkkjk 5 && foyac dh ekQh && i;kZIr dkj.k && firk dh e`R;q d¢ i'pkr~ ukekarj.k dk;Zokgh esa iq=h d¨ i{kdkj ugÈ cuk;k x;k v©j lwpuk ugÈ nh xà && mldk ukekarj.k ugÈ gqvk && og vU; LFkku ij nkaiR;x`g esa jg jgh gS && mld¢ }kjk ukekarj.k vkns'k d¢ fo#) 13 o"kZ dh le;oftZr vihy çLrqr dh xà && mldk ladFku fd mldk ukekarj.k ugha g¨us dh mls tkudkjh ugÈ Fkh && vlR; ;k >wBk ugÈ dgk tk ldrk && mi[kaM vfèkdkjh us vihy ifjlhek oftZr gksus ds vk/kkj ij [kkfjt dj rkfRod voS/krk dh && vij vk;qä us ¼2016½ 2 ,l lh lh 36 d¢ çdk'k esa vihy bl vkèkkj ij [kkfjt dh fd mld¢ firk dh e`R;q 2005 d¢ iwoZ g¨ xà Fkh && ¼2020½ 9 ,l lh lh 1 }kjk ¼2016½ 2 ,l lh lh 36 mYVk x;k && vij vk;qä }kjk fn;k x;k dkj.k Òh çHkkoh ugÈ jgrkA ¼iSjk 5 ,oa 11 ls 14
(1) Land Revenue Code, 1959 (M. P.) -- Ss. 109 and 110 -- value of mutation -- after death of Bhumiswami, mutation made in name of his widow and son -- daughter not mutated -- mutation entry will neither create nor extinguish any right or title -- merely because daughter did not take any step to get her name mutated, it would not deprive her from her title or share in property. [Para 10
(2) Limitation Act, 1963 -- Art. 65 -- applicability -- it would not apply to undivided joint Hindu family property. [Para 10
(3) Adverse Possession -- meaning and entitlement to claim title -- every co-sharer is deemed to be in constructive possession, irrespective of whether he is in actual possession or not, unless and until it is successfully shown that one co-sharer was ousted from property or property was partitioned -- one co-sharer cannot make claim of title against his sister co-sharer on basis of adverse possession -- share of his sister in disputed land will never extinguish. [Para 10
(4) Transfer of Property Act, 1882 -- S. 52 -- M. P. Land Revenue Code, 1959 -- Ss. 109 and 110 -- after death of Bhumiswami, mutation made in name of his widow and son -- daughter not mutated -- mutation entry neither creates nor extinguishes any right or title -- since daughter had share in property in dispute, she alienated 1.373 hectares of land to petitioner during pendency of appeal -- legality -- she has right to transfer -- Tahsildar rightly passed mutation order in favour of petitioner -- SDO and Additional Commissioner committed error in setting aside mutation order -- orders of SDO and Additional Commissioner set aside -- mutation order passed by Tahsildar restored. [Paras 3, 10 & 16
(5) Limitation Act, 1963 -- S. 5 -- condonation of delay -- sufficient cause -- after death of father, daughter not impleaded and not noticed in mutation proceeding -- she was not mutated -- she is living in matrimonial house at different place -- 13 years’ timebarred appeal filed by her against mutation order -- her contention that she was not aware of non-mutation of her name -- cannot be said to be incorrect or false -- SDO committed material illegality in dismissing appeal as barred by limitation -- Additional Commissioner dismissed appeal in light of (2016) 2 SCC 36 on ground that her father died before 2005 -- (2016) 2 SCC 36 overruled by (2020) 9 SCC 1 -- reason assigned by Additional Commissioner also does not hold field. [Para 5 & 11 to 14
ORDER
1. This petition under Article 227 of the Constitution of India has been filed against the order dated 16.1.2020 passed by Addl. Commissioner, Sagar Division Sagar in Case No.473/appeal/A-6/2016-17 by which the appeal filed by the petitioner has been rejected.
2. The undisputed facts are that Badri Prasad was the owner and had 1/16th share in Kharsa Nos.673, 674, 675, 676, 677, 678, 679, 680, 681, 682, 683, 684, total area 3.997 hectares situated in Mouja Rajnagar, District Chhattarpur.
3. After the death of Badri Prasad the names of respondent No.5 and his mother Kesharbai were recorded. Against the order of mutation, the respondent No.6 Mithiladevi filed an appeal before the S.D.O. Rajnagar, District Chhattarpur. During the pendency of appeal, the respondent No.6 alienated 1.373 hectares to the petitioner and on the basis of the said sale-deed, the name of the petitioner was recorded in the revenue records by order dated 29.3.2016. The respondent No.5 preferred an appeal before the court of S.D.O. Rajnagar which was allowed by order dated 31.1.2017 and mutation of name of the petitioner by order dated 29.3.2016 was set aside. The petitioner being aggrieved by the order passed by the S.D.O. preferred a Second Appeal which has been dismissed by impugned order dated 16.1.2020 passed by the Addl. Commissioner, Sagar Division, Sagar.
4. Challenging the impugned order it is submitted by the counsel for the petitioner that Mithila Devi is one of the legal representative of Badri Prasad and therefore, her name should also have been recorded in the revenue records. However, without any information to the respondent No.6, the names of the respondent No.5 and her mother Kesharbai were recorded in the revenue records. When respondent no.6 Mithila Devi came to know about the said illegal mutation, she preferred an appeal before the S.D.O. Rajnagar District Chhattarpur along with an application under section 5 of the Limitation Act. The said appeal was dismissed by S.D.O. Rajnagar on the ground of limitation. The respondent No.6 preferred an appeal which was allowed and the matter was remanded back. However, in the meanwhile, the name of the petitioner was mutated in the revenue records by Tahsildar by order dated 29.3.2016 as he purchased 1.373 hectares of land from respondent No.6. The said order was challenged by the respondent No.5 and the mutation of the petitioner was set aside and the order has also been affirmed by the Addl. Commissioner. It is submitted that the Addl. Commissioner committed a mistake by holding that respondent No.6 had no right or title after the death of her father Badri Prasad.
5. Per contra, the petition is vehemently opposed by counsel for the respondent No.5. It was submitted by Shri Mishra that father of the respondents No.5 and 6 had died in the year 2002. Appeal was filed after 13 long years. The respondent No.6 was aware of the factum of death of her father. She did not make any application for mutation of her name. Under these circumstances, it is clear that the claim made by the respondent No.6 is barred by limitation and, therefore, the S.D.O. as well as the Addl. Commissioner did not commit any mistake by setting aside the order dated 29.3.2016 passed by the Tahsildar Rajnagar, District Chhatarpur and the name of the petitioner was rightly deleted from the revenue records. It is submitted by the counsel for the respondent No.5 that the period of limitation is provided under section 5 of the Limitation Act. He was also unable to point out the ingredients of adverse possession. However he claimed that in case of undivided property of Joint Hindu family each and every co-sharer cannot be treated as in joint possession of the property in dispute. However, the counsel for the respondent No.5 was unable to throw light on the doctrine of ouster.
6. Heard learned counsel for the parties.
7. The arguments advanced by counsel by respondent No.5 were shocking. It was the argument by counsel for the respondent No
Mutation orders require evidence of possession through lawful transfer, and failure to consider possession invalidates such orders.
Deemed consent applies when heirs benefit from a mutation order and remain silent, barring later challenges after significant delays.
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