si— K 46 V , i (/ LN THE HIGH COURT OF CHE “my“ BILAsPUR m . 0-4 f W ‘$,Cwk ‘ \ *W _ gf‘” 1 Wjélrit Petition No. 3333 gggo3 $ Ishwar La} Pithaliya, (WW “it?“ '1) Aged 79 years, S/c. Late Karsan Ji Pithaliya, R/o. Pithaliya Complex Phaphadih Chawk Raipur Distt Raipur {(3.013 ‘ ‘ :Iz ” ‘ ‘ ‘ “MM cJm 0m (K tzwgufm 'rm" - Ef‘m . r ’9 £1, 0air‘ EM ES? NDE OM W _ jig): ‘t nihwww NT§ V/‘i@ Cgguv :1. Wd/o. Smt. Amba Late Narayan Bai, aged Bhai 74 Pithaliya years(§&~k‘r—‘ V ‘ “a W“ ' . 2. Kishore Chandra Pithaiiya Aged about 54 years, Sic; Late Narayan Bhai Pithaliya 3. Kailash Chandra Pithaliya Aged about 52 years, S/0.Latg Narayan Bhai Pithaliya, w® ATTISGAEH AT / All Rio. Pithaliya Complex Phaphadih Chowk Raipur District Raipur (C.G.} WRIT PETmoN U A 22g 2? F HE QoNSTITUTION OF INDIA g i \ i g ‘if ; W ( ‘ ; g3 \ \M HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Justice Prashant Kumar Mishra WP. No. 3388 0f 2003 lshwar Lal Pithaliya (dead) and others. Versus Smt. Amba Bai (dead) and others. ORDER Pogt fowl - 03-2011 Sd/- T iPrashant Kumar Mishra Judge ’ Jr 1% 4); -2011 *} r “y ’ { [A J HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON’BLE SHRI PRASHANT KUMAR MISHRA. J. W.P. No.3388 of 2003 PETITIONERS > lshwar Lal Pithaliya (dead) and others. Versus RESPONDENTS Smt. Amba Bai (dead) and others. Shri Rataii Pusty, counsei fur the petitioners. i Shri B.P. Sharma, counsel for the respondents. DRDER ( OI I°3I2011) by Following order of the Court was passed Prashant Kumar Mishra, J. Petitioners have caued in question the orders passed by the Officer » on Special Duty. Diverted Land on 01/1012002 (Annexure P/1), the appellate order passed by the Sub Divisional Officer (Revenue) on 17f02l2003 (Annexure P/2) and the second Appellate order passed by the Board of Revenue on 14i07/2003 (Annexure P/3). By these orders petitioners application under Section 110 of the Chhattisgarh Land Revenue Code (henceforth ‘the Code‘) for mutation of his name in the revenue records pertaining to lands bearing Khasra No. 87. 88 and 98 situated at village Fafadih, Patwari Halka No, 108 Raipur has been rejected on the ground'that the petitioners title and entitlement over the land has been disputed, therefore application for mutation cannot be entertained as his title can be determined only by the Civil Court. (2) Undisputedly, the subject land beionged to one Damji Bhai who died in the year 1948 and thereafter reoorded jointly in the name of Narayan Bhai Slo Damji Bhai and Jibibai widow of Damji Bhai. till 1981- ’ L; (“A 1982. The said Jibibai died in the year 1964. Origina! petitioner !shwar La! (since deceased) is the son of Maniben who in turn was daughter of Jibibai. lshwar Lal’s mother Maniben died in the year 1936 and the said- Jibibai (ishwar Lai‘s maternai grand mother) died in 1964. (3) a part of relevant Khasra number on his own right as iegai heir of Jibibai, however when he intended to aiienate some part of the subject land and requested for partition, the respondents avoided to give any repiy and on an enquiry he came to know that his name has not been recorded in the revenue records and the respondents have obtained order of mutation of their name by order dated 05/1 2/1981 without disciosing it to the revenue authorities that petitioner is aiso one of the iegai heir. On this premises petitioner moved an appiication under Section 110 of the Code for mutation of his name. According to ishwar Lai he is residing in a house constructed over (4) in response to the prociamation issued by the Officer on Speciat Duty, Diverted Land, Raipur the respondents raised preliminary objection before the said Revenue Officer inter afia contending that at the time of death of Damji Bhai in 1948 name of his‘widow and his son was recorded as required under the law relating to succession at the relevant time. The widow Jibibai was only entitled to maintenance which too got extinguished on her death in 1964 and thereafter the land was succeeded by Narayanji s/o Damiibhai. in 1981 a partition took place between Narayanji, his wife and two sons and their name was duly recorded in the revenue records. Narayanji also died on 15/071’1990 and no claim was made by the petitioner ishWar Lal within 12 yeas from the date of death of Narayanji. lt was further stated by the respondents that petitioner ishwar Lal and one'Rukmaniben are the tenants which is proved by the rent rib% receipt, statement of accounts and the record of the Municipal Corporation. w \’\ (5) The Omcer on Special Duty, by its order dated 01i10/2002 (AnneXure P/1) rejected petitioner's prayer for mutation on the ground that there is no evidence that the iands were purchased by Damji Bhai from stridhan funds of Jibibai and with regard to the nature of right which was acquired by Jibibai and thereafter by her grand son ishwar Lal (daughter’s son) and the application of law relating to succession are all questions of title which can only be gone into by Civil Court. Appeals preferred by the petitioner before the Sub Divisional Officer (Revenue), Raipur and Board of Revenue, Chhattisgarh was also dismissed by Annexure P/2 and P/3, respectively. (6) Shri Ratan Pusti, learned counsel for the petitioner has argued that the revenue authorities have failed to appreciate and apply the provisions of law contained in Ruie 32 of the Mutation Rules framed under Section 110 of the Code which provides that the Tahsildar is entitled to examine the question of title also in summary manner. He would submit that the petitioner being son of the predeceased daughter Jibibai, has a right on the property as Jibibai died in 1964 i.e. after commencement of the Hindu Succession Act, 1956. Learned counsel has reiied on the judgment in the matter of Ramji and others vs. Board of Revenue and others reported in 1998 R.N. 240 in support of his contention regarding application of Rule 32 of the Mutation Rules. He hasn‘also relied on the judgment in the matter of Badri Pershad vs. Smt. Kanso Devi reported in AIR 1970 SC WWL}163 and Smt. Beni Bai vs. Raghubir Prasad reported in AIR 1999 SC 1147 in support of his contention that right of Jibibai was crystallized as rq— absoiute right, therefore ishwar La! being son of the predeceased dughter of Jibibai, he is ntitled succeed to the property. a e to (7) Per contra, Shri B.P. Sharma reamed counsel for the respondent has argued that a Civil Sui in reiation to a part of he property is lready t t a pending adjudication, however, this fact has not been disclosd in the writ e petition. He would further submit that the petitioner has admitted his status of tenant by putting signature on rent receipts, therefore. he cannot tak a different stands and claim title in himself and further that it is e settled law that when serious dispute of title is raised before the revenue authorities praer for mutation is not allowd and the applicant is drected y e i to aproach th Civil Court. He further ontends that in view of the p e c concurrent orders passed by the officer on Special Duty, the Sub Divisional Officer and the Board of Revenue, no interferen in this ce petition under Arcie 227 of the Constiution of India is warranted. ti t ) (8 Along with return, the respondents have filed copy of the plaint of the Civil Suit hled by the petitioner as Annexure RI’l. tn the said suit a prayer has been made for declaration that the petitioner is not the tenant of any iividual and that he is residing in the accomdation on the nd mo strength of itle succeeded by him from his maternal grand mother late t Jibibai. He has further sought a declaration that te rent receipt be h deciared as false, forged, concocted and void on these grounds. The suit has been preferred on or about 16/12/2002. in te body of the plaint it h has been pleaded in detail in paragaph 4 to , 8,10,11,12 and 14 hat r 6 t plaintiff lshwar Lal Pithaliya is entitled to succeed the property from Jibibai. 9 ts s . ( In the present case there exis serious dipute of title between the petitioner and the respondents. Before passing an order f mutatin in o o .‘B._ favour of petitioner parties are required to lead extensive evidence about the nature of titie of Damji Bhai : Whether Damji Bhai purchased the property from stridhan of Jibibai. : whether the law prevailing at the relevant time permitted acquisition of absolute title by Jibibai : nature of right available to the son of predeceased daughter of Jibibai etc. Thus, the competent forum for deciding all these serious civil dispute relating to title is the Civil Court and further a Civil Suit has already been filed by lshwar Lal making pleading in detail as to his right on the property. For adjudicating the relief ciaimed in the suit the Civii Court would be required to address itself to the issue as to whether lshwar Lal is the tenant or has a right to succeed the property. Thus, the matter being pending in the Civil Court, a decision in this writ petition on the question of title should not be rendered otherwise parties would be prejudiced in their case before the Civil Court. (10) ln the matter of Jai Singh and others vs. Municipai Corporation of Delhi & others reported in (201 G) 9 SCC 385 the Hon'ble Supreme Court, after relying on its earlier decision in the matter of Estraila Rubber vs. Dass Estate (P) Ltd. Reported in (2001) 8 SCC 97 has held thus in paragraph 42 of the report :- "42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of lndia had been discussed in Estrella Rubber v. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97 wherein itiwas observed as follows : “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Articie 227 of the Constitution of lndia is examined and explained in a number fdecisions of this Court. The exercise of power under this \ \ \ article involves a duty on the High Court to keep inferior \ \ y>jv _é,~ courts and tribunals within the bound$ of their authority and to see that they do the duty expected or required of them in a Iegat manner. The High Court is not vested with any uniimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts of tribunais. Exercise of this power and interfering with the orders of the courts or tribunais is restricted to cases of serious-dereliction of duty and flagrant vioiation of fundamental principles of law or justice. where if the High Court does not interfere. a grave injustice remains uncorrected. it is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunai. if there isno evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion. which the court or tribunal has come to. (11) Applying the principles of law laid-down by the Supreme Court in the matter of Jaisingh (supra) and particularly in view of the fact that the subordinate revenue authorities have not decided right or entitlement of the petitioner for mutating his name and has only observed that there being dispute of title, the parties may approach the Civil Court, this Court is not inclined to interfere with the impugned orders in exercise of its jurisdiction under Article 227 of the Constitution of lndia. Parties to the petition would be at liberty to approach the Civil Court to claim such decree for which they are entitled in law. (1 2) Consequently, the instant Writ petition is dismissed. i (1 3) No order as to costs. Sd/— Prashant Kumar Mishra ' Judge