Jagdish And Others vs Ramjilal And Others

Milind Ramesh Phadke, J

This petition under Article 226 of the Constitution of India has been preferred by the petitioner challenging the order dated 28.03.2024 passed in Appeal No. 0090/2023-24 by the Sub-Divisional Officer, Dabra, District Gwalior. By the said order, the appellate authority reversed the order dated 14.06.2022 passed in Case No. 0890/2021-22/A-6 by the Naib Tehsildar, Circle Bilowa, whereby mutation had been effected in favour of the petitioner on the basis of a Will and it was held that since the petitioner claims mutation on the basis of a Will, the matter falls outside the jurisdiction of revenue authorities and lies within the domain of the civil court. Assailing the aforesaid order, the present petition has been filed.

At the outset, learned Government Advocate for the State, Shri Kushwah, appearing for respondent Nos. 7 to 9, raised a preliminary objection regarding the maintainability of the present petition in view of the provisions contained in sub-section (3) of Section 44 of the Madhya Pradesh Land Revenue Code, 1959. It is submitted that where an original order has been varied or reversed in first appeal otherwise than on the question of costs, a second appeal shall lie. It is further contended that in the present case, the original order passed by the Naib Tehsildar, whereby mutation was granted in favour of the petitioner on the basis of a Will, has been reversed by the Sub-Divisional Officer; therefore, the impugned order squarely falls within the ambit of sub-section (3) of Section 44 of the Code. Accordingly, it is argued that since an efficacious alternative remedy of second appeal is available, the present petition is not maintainable.

None appeared on behalf of the petitioner.

Heard learned counsel for the State and perused the record.

This Court finds substance in the preliminary objection raised by the State. Sub-section (3)(a) of Section 44 of the Madhya Pradesh Land Revenue Code provides that where an original order has been varied or reversed in first appeal otherwise than in a matter of costs, a second appeal shall lie. The provision further contemplates other situations under sub-section (3)(b)(i), (ii) and (iii).

In the present case, since the original order has been reversed by the Sub-Divisional Officer and the petitioner is aggrieved by the same, he has a statutory remedy of filing a second appeal. In view of the availability of such alternative and efficacious remedy, this Court is not inclined to entertain the present petition under Article 226 of the Constitution of India.

Accordingly, the petition is disposed of with liberty to the petitioner to avail the remedy of second appeal in accordance with law.