Aaga Khan Jilani vs Smt. Farhat Aara

This petition under Article 227 of the Constitution of India has been challenging the order dated 24-4-2019 passed by President, Board of Revenue in

case No. 1/Revision/Vidisha/Land revenue/2017/6189 and order dated 23-11-2017 passed by Commissioner, Bhopal Division, Bhopal in case no.

585/Appeal/2014-15.

The undisputed fact is that the land in dispute originally belongs to the respondents no. 1 to 11 or their predecessors.

It is the contention of the Counsel for the petitioners that the petitioners filed an application for mutation of their names on the ground that an oral lease

for a period of six years was given to them and thus they have acquired the status of occupancy tenant and therefore, they be declared as

Bhumiswami. The application was allowed by the Tahsildar by order dated 20-5-1985, and the petitioners were declared Bhumiswami on the ground

that they are in possession of the land in dispute by virtue of an oral lease which was granted for a period of six years.

The contesting respondents preferred an appeal after 28 years along with an application for condonation of delay. The S.D.O., vide his order dated

30-5-2015 rejected the application filed under Section 5 of Limitation Act, and consequently, also dismissed the appeal as barred by time.

Being aggrieved by the order of the S.D.O., the contesting respondents filed an appeal before the Court of Add. Commissioner, Bhopal Division,

which was allowed by the Add. Commissioner by order dated 23-11-2017.

The order of the Add. Commissioner was unsuccessfully challenged by the petitioners before the Board of Revenue, however, their revision has been

dismissed by the impugned order dated 24-4-2019.

Challenging the orders passed by the Board of Revenue as well as the Add. Commissioner, Bhopal Division, Bhopal, it is submitted by the Counsel for

the petitioner, that once, the appeal was dismissed by the S.D.O. as barred by time, then the Courts below should not have decided the matter on

merits, and if they were of the view that the delay in filing the appeal before the Court of SDO is liable to be condoned, then should have remanded

the matter back to the Court of S.D.O.. To buttress his contentions, the Counsel for the petitioner has relied upon the judgment passed by the Co-

ordinate Bench of this Court in the case of Ramgopal Vs. Kamla Bai reported in (2016) 1 MPLJ 320.

Per contra, it is submitted by the Counsel for the respondents no. 1 to 11 that both the Courts below have come to a conclusion that the petitioners had

filed an application for mutation of their names on the basis of adverse possession. The revenue authorities have no jurisdiction to mutate the name of

a party on the basis of adverse possession. Further, it has been specifically found that the owners of the land in dispute were never noticed or

informed and the Tahsildar had passed the order behind the back of the true owners of the land in dispute. It is further submitted that in fact the

petitioners had tried to grab the property of the answering respondents by claiming that an oral lease for a period of six years was granted in their

favor.

Considered the submissions made by the Counsel for the parties.

The petitioners have not seriously challenged the findings of the Courts below that the true owners of the land in dispute were never heard or they

were never noticed. Further more one of the noticee Manzoor Hussain was already dead, inspite of that notice was shown to have been served by

affixture. Further, the Add. Commissioner, has given a specific findings that the remark “notices were not accepted and noticees were not foundâ€

was subsequently added by the pen on the Carbon Copy of the service report. Certain interpolations in the service report were also pointed out by the

Add. Commissioner, Bhopal Division. Thus, the Add. Commissioner, came to a conclusion that the answering respondents were never served. The

Add. Commissioner, also came to the conclusion that the service by affixture was not in accordance with Rule 8 of Rules of Procedure of Revenue

Officers & Revenue Courts framed under Section 258(2A) and 2(c) of M.P.L.R. Code. Further the findings recorded by the Add. Commissioner

were also affirmed by the Board of Revenue. No material illegality could be pointed out by the Counsel for the Petitioners, to show that such a finding

of fact is perverse or contrary to record. Even otherwise, it is a findings of fact based on the appreciation of evidence.

Once, the Courts below had come to a conclusion that the answering respondents were not served and the order was passed by the Tahsildar in an

illegal manner behind the back of the answering respondents, then as a necessary corollary, the order dated 20-5-1985 passed by the Tahsildar would

be bad in law.

Now, the next question for consideration is that whether the Courts below should have remanded the matter back to the Court of S.D.O./ Tahsildar

for fresh consideration or not?

The Counsel for the petitioners is right in submitting that when an appeal/revision is allowed on the ground that the sub-ordinate Court has committed a

mistake by not condoning the delay in filing the appeal/revision, then the normal course should be to remand the matter with a direction to decide the

appeal/revision on merits.

However, this Court is exercising its power of superintendence under Article 227 of the Constitution of India and is only required to see that whether

the Authorities have committed any jurisdictional error or not?

In the present case, the land in dispute, undisputedly belong to the answering respondents. The petitioners had merely filed an application for mutation

of their names. Although the Tahsildar in its order dated 20-5-1985 has held that since, the land was given for a period of six year by an oral lease

therefore, the petitioners are entitled to be declared as Bhumiswami, but the Add. Commissioner has arrived at a specific conclusion that the

petitioners had applied for mutation of their names on the basis of Adverse possession. Although it is submitted by the Counsel for the petitioners, that

the findings recorded by the Add. Commissioner are incorrect, but for the reasons best known to the petitioners, the copy of the application and the

copy of the deposition sheets of the witnesses have not been filed. Thus, the petitioners have failed to substantiate their submissions that the

application was not filed for mutation of their names on the basis of Adverse possession. Further, the Tahsildar by a cryptic order dated 20-5-1985 had

deprived the true owners from the fruits of their lands by declaring the petitioners as Bhumiswami. The Tahsildar, even did not care to mention that on

what date the oral lease was granted to the petitioners. It is really unfortunate, that the Tahsildar who has been given the powers to decide the rights

of the parties, had acted in a such a manner by depriving the true owners by passing a cryptic order.

The order dated 20-5-1985 passed by the Tahsildar reads as under :

20-5-1985. । ।

। ।

। ।

508/ 26.328

6 ।

।

508/ 26.328

22.13 190 MPLR Code  ( 190)

।

15 ।

   ।  ।

The Add. Commissioner, had also come to a conclusion that the petitioners had prayed for mutation of their names in respect of 19.552 hectares,

whereas the Tahsildar declared them Bhumiswami in respect of 26.328 hectares.

From the plain reading of the order passed by the Tahsildar, it is clear that in fact he had declared the petitioners as Bhumiswami only on the basis of

their possession and it has been rightly held that it was beyond the jurisdiction of the Tahsildar.

Under these circumstances, when the Additional Commissioner had perused the entire record, and found that in fact the entire proceedings were

beyond the jurisdiction of the Tahsildar as they were based on the claim of adverse possession, then in the considered opinion of this Court, no

jurisdictional error was committed by the Courts below by not remanding the matter back to the Court of S.D.O. Or Tahsildar. Once, the proceedings

were without jurisdiction, then the same have been rightly set aside in toto.

Ex Consequenti, the petition fails and is hereby dismissed.