Rupaji vs Manohar Singh
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-IND:25023
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
Writ Petition No. 10515 of 2024
RUPAJI
Vs
MANOHAR SINGH AND OTHERS
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Appearance:
Shri Veer Kumar Jain, Senior Advocate with Shri Durgesh Sharma,
Advocate for the petitioner.
Shri Amit Agrawal, Senior Advocate with Shri Nitin Phadke,
Advocate for the respondent No.1.
Shri Ayushyaman Chaudhary, Govt. Advocate for the respondent
No.2/State.
Shri Tehjeeb Khan, Advocate for the intervenor.
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Reserved on : 02/09/2026
Delivered on : 08/09/2026
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ORDER
1/ Heard on I.A no. 11090/2025, which is an applicatoin for
intervention.
2/ Considering the fact that the applicants are the legal
representatives / heirs being daughters of present petitioner Rupaji and
considering the submissions at the bar, it requires their presence and
arguments to be heard, therefore, the I.A is allowed.
3/ Present petition has been preferred by the petitioner under
Article 226 of the Constitution of India seeking following reliefs :
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i) यह क , य क स र जर यकर पक म उकर
ररट / क रश / आर श पररर कए जर रस डट कम 2 द र परण
कम 0047/ अप ल / 2023-24 RCMS No. 06RD01-APP-
19306822 म पररर आरश कर 31.01.2024 Annexure P-5
क रस / अप स कय ज ' प ह व।
ii) यह क , अन ई सहयर ज म य नयलय उकर समझ वह
य कर पर कय ज ' प ह व।
4/ Fact of the case in brief is that the agricultural lands were
recorded in Bhumiswami rights of the present petitioner Rupaji S/o
Udaiji. On 26.09.2019, an application under Section 178A of the
MPLRC was filed by respondent no.1- Manohar Singh before the
Tahsildar and Case no. 62/A-27/2019-20 was registered by the
Tahsildar, Sardarpur. Thereafter, the notice was issued and the Patwari
was directed to produce the partition memo and parties were put to
notice as the order sheets dated 26/09/2019 and 31/10/2019 recorded
by the Tahsildar reflect. On 24.10.2019, the respondent no. 1- Manohar
Singh and the petitioner remained present before the Tahsildar and the
partition was accepted and produced on record. The statement of
petitioner was recorded by the Tahsildar. On 30.11.2019, in a revenue
partition proceeding, the suit lands were partitioned by respondent no.
1 in favour of his son Tilak Singh and his name has been duly recorded
in revenue records. On 01.02.2022, the petitioner preferred First
Appeal no. 69/Appeal/2021-22 under section 44 (1) of the MPLRC
which was allowed by the Sub-Divisional Officer [ in short “SDO”] by
holding that the proceedings under Section 178-A MPLRC were not
maintainable as notice to Bhumiswami was not issued and directed the
revenue entries to be restored in favour of petitioner-Rupaji. On
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NIVRUTTIRAO MAHANAG
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31/01/2024, in Second Appeal filed by the respondent no. 1 under
section 44(2) of the MPLRC, the Commissioner (Revenue), Indore
allowed the appeal and set aside the order of SDO on the ground that
the SDO decided the appeal without deciding the application under
Section 5 of the Limitation Act; and the appeal against a consent order
was not maintainable. Hence the present petition has been preferred
before this Court.
5/ During pendency of this petition, on 24.04.2024, this Court
stayed the operation of order of the Commissioner (Revenue). On
09.12.2025, based on the Interim order of this Court, the petitioner
filed an application before the Tahsildar claiming that since the order
of the Commissioner is stayed, the order of SDO revives, hence his
name should be recorded on entire lands. On 20.02.2026, the
respondent no.1 has lodged a complaint against the petitioner that on
20.02.2026, the petitioner assaulted the respondent no. 1 and his
family members and attempted dispossession of the respondent no.1
from the suit lands. On 27/05/2026, based on the application of the
petitioner, the Tahsildar issued a notice. On 28.11.2025, a report has
been furnished by the Revenue Inspector stating that pursuant to the
order of Tahsildar dated 31.10.2019 (Annexure-P/3) the name of
respondent no. 1 and thereafter on 30.11.2019 suit lands have been
recorded in the name of Tilak Singh S/o Manohar Singh and Tilak
singh mortgaged this land with HDFC Bank, Rajgarh and at present the
lands are recorded in the name of Tilak Singh. On 28.11.2025, an
opinion was sought by the Tahsildar from the Government Advocate.
On 01.12.2025, the Government Advocate furnished an opinion that
the order of SDO can be implemented by restoring the revenue entries
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NIVRUTTIRAO MAHANAG
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in the name of petitioner as per the interim order of the High Court. On
02.12.2025, the Tahsildar had issued direction to the Patwari to
implement the order of SDO.
6/ Heard learned counsel for the petitioner as also the
respondents.
7/ Learned counsel for the petitioner has submitted that the
petitioner and the contesting respondent no. 1 are relation of father and
son. By referring the Sections 178 and 178-A of the Madhya Pradesh
Land Revenue Code [ in short “MPLRC”] and also referring to
Annexure- P/1 and P/2, he has submitted that the land is in the name of
present petitioner Rupaji and the respondent has no authority to apply
neither under section 178, nor 179-A of the MPLRC and such
proceedings are not maintainable at the instance of the respondent/s.
He has further submitted by referring to the order passed by the
Tehsildar, which is Annexure-P/3 dated 31/10/2019, which was
challenged before the Sub-Divisional Officer [in short “SDO”] on
01/02/2022, thereafter, the Commissioner, Indore Division, Indore and
has submitted that when the Tehsildar has committed error by
accepting the application under section 178 of the MPLRC filed by the
respondent Manohar Singh, son of the present petitioner, which aspect
is rightly considered by the SDO and by exercising the powers under
secton 44 of the MPLRC, has rightly considered the relevant aspect.
When in absence of the fact that the petitioner, who is required to be
filed any proceeding under Section 178 or 178-A of the MPLRC and
in absence of that, his son cannot file such proceeding, therefore, the
S.D.O. has rightly reversed the order passed by the Tehsildar, which
was challenged by the respondent no. 1 and the Commissioner, without
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considering all relevant aspects in the matter, has considered that the
petitioner has given consent in that proceeding, therefore, now it is not
open for the petitioner to back out from that consent, which is
erroneous, as he has submitted that neither in view of the provisions of
the MPLRC, all the heirs are required to be impleaded as a party and in
the present case, admittedly, other heirs are not impleaded as a party
and on that count also, the proceedings are required to be quashed and
the impugned order passed by the Commissioner requires to be set
aside. He has lastly submitted that in view of section 178-A of the
MPLRC, during the lifetime of Bhumiswami, if the Bhumiswami is
filing such application, that can be considered by the Tehsildar after
issuing notice and hearing the other legal representatives of the
Bhumiswami, which was not done in the present case. He has
submitted that even in the consent, which is produced on record, the
signature of the present petitioner is very different than the normal
signature done by the present petitioner and the petitioner has never
given such consent and for that, he has also produced the report of
handwriting expert and by drawing attention of this Court towards that,
he has submitted that such aspect cannot be considered at this stage.
Therefore, the impugned order is required to be interfered with as the
orders passed by the Authority are patently illegal and improper.
8/ Learned counsel for the petitioner has further submitted
that by referring to Rule 1 and Rule 3 of the Madhya Pradesh Bhu-
Rajaswa Sanhita (Bhu-Abhilekh Main Namantaran) Niyam, 2018 [ in
short “ Rule, 2018] and also drawing attention of this Court towards
the Form no. 1 under Rule 3 and tabular Form no. 4 whereby the item
no. 10 of the Tabular Form, that such requirement is also not
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NIVRUTTIRAO MAHANAG
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necessarily complied with. He has further submitted by referring to
Form no. 5 under Rule 3 of that Rule, 2018, whereby the word
“Bhumiswami” is used, therefore, by referring to Table – 4 of Form no.
5 and Item no. 9, he has submitted that in view of this, the order passed
by the Tehsildar as well as the Commissioner are illegal and perverse
and required to be interfered.
9/ Per-contra, learned counsel for the respondent no. 1, duly
assisted by learned G.A for the State, has opposed the same by
contending that the various points that in view of the pleadings in Para
no. 6.4 of the petition, the petitioner alleges that his signature on the order
sheets and case papers of case no. 62/A-27/2019-20 are forged and this
statement is followed by the further statement in Para 6.6 that the
petitioner has lodged police complaints on 16.11.2021, 20.03.2022 and
22.02.2024 regarding forgery. He has further submitted that in essence,
the petitioner alleges that the order sheets recorded by the Tahsildar do
not contain the signature of the petitioner. He has further submitted that
respondent no. 1 has filed a reply to the petition and in para no. 2 of the
reply, it is pleaded that Rupaji (Father of Respondent no.1) had given
consent for effecting this partition and accordingly revenue partition-
cum-mutation was ordered. In para no. 3 of the reply, it is stated that even
after giving consent, the First Appeal was filed by the petitioner after 2
years, which was wrongly allowed by the SDO. In para no. 6 of the reply,
it is stated that the allegations and counter allegations made by the parties
require a factual inquiry into the alleged forgery of the signatures of the
petitioner in partition proceedings, which is beyond the purview of
Article 226 of the Constitution of India and in para no. 11 of the reply, it
is pleaded that so far as the proceedings of partition and mutation
reflected in Annexure P/2 and P/3 are concerned, a presumption arises
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NIVRUTTIRAO MAHANAG
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under Section 114 of the Evidence Act that the official proceedings have
been conducted in accordance with law, therefore, giving this basic
contentions and drawing chronology of events, he has submitted that the
scope of a writ petition under Article 226 of the Constitution of India is
limited and no factual inquiry can be undertaken by this Hon'ble Court.
By relying upon the judgment delivered in the case of Surya Dev Rai vs
Ram Chander Rai & Others reported in (2003) 6 SCC 675 [ Relevant
Paragraph nos. 10, 12 and 14], he has submitted that ordinarily in a
proceeding which arises out of a consent order akin, to a compromise
decree, the remedy lies before the same Authority or Court and an appeal
is not maintainable. He has further relied upon the judgment delivered in
the case of Manjunath Tirakappa Malagi and Gurusiddappa Tirakappa
Malagi in SLP (CIVIL) 4812 OF 2023 [ Relevant Paragraph no. 12.], he
has submitted that an appeal against a compromise order is even
otherwise not maintainable as held by this Hon'ble Court. By referring to
the judgment delivered in the case of Awadh Narayan Sahu & another
vs Hemendra Kumar Sahu & another reported in 2022 (2) RN 205
[Relevant Paragraph nos. 9 to 12], he has further submitted that in 2018,
the Rules known as M.P. Bhu-Rajaswa Sanhita (Bhu-Abhilekh Mein
Namantaran) Niyam, 2018 have been promulgated. Under Rule 3(1)(a)
and (e) read with Rule 10, 11 read with Form 1-Entry 10 and Form 5-
Entry 10 a proceeding for revenue partition and mutation can be
undertaken jointly. Further he has relied upon the judgment of Full Bench
of this Hon'ble Court in the case of Anand Chaudhary vs State of M.P.
reported in 2025 (1) MPLJ 646 [Relevant Paragraph nos. 18 to 26], in
which it has been held that in the scheme of MPLRC, mutation is
something more than a mere fiscal entry. He has further submitted that in
view of section 110 read with section 111 of the MPLRC read with the
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Mutation Rules of 2018, it has been authoritatively held by the Full
Bench in Para nos. 27. 28, 29, 35, 37, 38, 40, 41, 42 and 75(3) that such
disputes requiring a factual inquiry are best suited to be determined by the
Civil Court. He has further submitted that the effect of an interim order is
well explained by the Hon'ble Apex Court in the case of Shree
Chamundi Mopeds Ltd. Vs Church of South India Trust Association
reported in (1992) 3 SCC 1 and submitted that the present petition lacks
merits and required to be dismissed.
10/ Learned counsel for the intervenor has also made his
submissions by way of filing I.A no. 11090/2025 that the applicants are
the daughters of the present petitioner. The alleged agricultural land is
registered in the revenue record in the name of the applicant's father I.e.
petitioner Rupaji S/o Udaji. He has further submitted that respondent No.
1 filed an application before the Tehsildar for the partition of the
petitioner's lands under Section 178-A of the MP Land Revenue Code,
1959. Despite being Rupaji's legal daughters, the applicants were neither
made party to the application, nor was the Revenue Court informed of
this. Furthermore, the Patwari of the area also presented the actual
information about the heirs to the Tehsildar, due to which the impugned
order was passed behind the back of the applicants, without their
knowledge or cognizance. He has further submitted that despite the
applicants being interested parties in the case, the Tehsildar passed a
partition order without making them parties and without giving them any
notice and without giving them an opportunity to be heard, which the
applicants challenged by filing an appeal before the Sub-Divisional
Officer (Revenue), but the Appeal Court dismissed the case due to the
pendency of the present writ petition. He has further submitted that
according to subsection (2) of Section 178-A, the Tehsildar can pass an
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NIVRUTTIRAO MAHANAG
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order on such an application during the lifetime of the landowner only
after hearing his legal heirs. In the case before the Tehsildar, even though
petitioner Rupaji, has legal heirs/daughters, they were not allowed to
receive the land. In such circumstances, Section 178- A(2) has not been
complied with, rendering the entire proceedings and order vitiated and
invalid. He has further submitted that the applicants have a direct interest
in the subject matter of the petition and have filed Revenue Appeal No.
117/Appeal/25-26 regarding this same land before the Commissioner,
Indore Division, Indore, which is still pending. For the above reasons, the
applicants' interest in the petition should not be affected. To bolster his
contentions, he has placed reliance upon the order dated 25/02/2020
passed in Writ Petition no. 4723 of 2020 [ Bhogiram and Anr. Vs.
Gannibai] by the Gwalior Bench of this M.P. High Court.
11/ I have considered the submissions made by both the parties
and also perused the material available on record.
12/ Considering the submissions made by the parties, it
transpires that essentially, the dispute is between the father and the son. It
also transpires on perusal of the record that the entry which is entered at
Serial no. 2123 is in the name of present petitioner Rupaji, who is father,
in various survey numbers in the revenue record. It also transpires that
thereafter, by virtue of the order passed by the Tehsildar, the partition is
recorded on 26/09/2019. It also transpires that there is a statement of
petitioner Rupa, which is recorded by the Tehsildar at the relevant point
of time for the partition, which has taken place between the father and the
son. It is necssary to considere the fact that the application is filed by the
son and not by the father and therefore, the scope of sections 178 and
178-A of the MPLRC is required to be considered, which are reproduced
for the sake of reference as under :
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NIVRUTTIRAO MAHANAG
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“ 178. Partition of holding.
(1) If in any holding, which has been assessed for purpose of
agriculture under Section 59, there are more than one bhumiswami any
such bhumiswami may apply to a Tahsildar for a partition of his share in
the holding :
[Provided that if any question of title is raised the Tahsildar shall
stay the proceeding before him for a period of three months to facilitate
the institution of a civil suit for determination of the question of title.]
[Substituted by M.P. Act No. 18 of 1978 (w.e.f. 13-6-1978).]
(1-A) If a civil suit is filed within the period specified in the
proviso to sub-section (1), and stay order is obtained from the Civil Court,
the Tahsildar shall stay his proceedings pending the decision of the Civil
Court. If no civil suit is filed within the said period, he shall vacate the
stay order and proceed to partition the holding in accordance with the
entries in the record of rights.] [Inserted by M.P. Act No. 18 of 1978
(w.e.f. 13-6-1978).]
(2) The Tahsildar, may, after hearing the co-tenure holders, divide
the holding and apportion the assessment of the holding in accordance
with the rules made under this Code.
(3) [ x x x] [Omitted by M.P. Act No. 25 of 1964 (w.e.f. 23-4-
1964).]
(4) [ x x x] [Omitted by M.P. Act No. 25 of 1964 (w.e.f, 23-4-
1964).]
(5) [ x x x] [Omitted by M.P. Act No. 25 of 1964 (w.e.f. 23-4-1964).
]Explanation I.-For purposes of this section any co-sharer of the
holding of a bhumiswami who has obtained a declaration of his title in
such holding from a competent Civil Court shall be deemed to be a co-
tenure holder of such holding.
Explanation II.-[ x x x] [Omitted by M.P. Act No. 25 of 1964
(w.e.f. 23-4-1964).]
178A. Partition of land in life time of Bhumiswami.
(1) If any Bhumiswami wishes to partition his holding assessed for
purpose of agriculture under section 59 or any part thereof amongst his
legal heirs during his life time, he may apply for partition of such holding
or part thereof to the Tahsildar.
(2) The Tahsildar may after hearing the legal heirs divide the
holding or part thereof and apportion the assessment in accordance with
the rules made under this Code.]
13/ Considering, prima-facie, the son cannot be considered as a
Bhumiswami as required for the applicability of the such proceeding
under the above mentioned sections, therefore, the contentions raised by
the petitioner that the proceeding initiated by the son is not maintainable
in the eyes of law, prima-facie is required to be acceptable. It also
transpires that the scope of section 44 of the MPLRC, which is related to
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NIVRUTTIRAO MAHANAG
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Appeal, is required to be considered and for the sake of reference, it is
reproduced as under :
44. Appeal and appellate authorities.
“
(1 ) Save where it has been otherwise provided, an appeal shall lie from
every original order of a Revenue Officer competent to pass such order
under this Code or the rules made thereunder-
(a) if such order is passed by any Revenue Officer subordinate to the
Sub-Divisional Officer - to the Sub-Divisional Officer;
(b) if such order is passed by any Revenue Officer subordinate to the
Deputy Survey Officer - to the Deputy Survey Officer;
(c) if such order is passed by the Sub-Divisional Officer - to the
Collector;
(d) if such order is passed by the Deputy Survey Officer - to the
District Survey Officer;
(e) if such order is passed by any Assistant Collector, Joint Collector
or Deputy Collector to whom the powers have been conferred
under-section 24-to the Collector;
(f) if such order is passed by any Revenue Officer in respect of
whom a direction has been issued under sub-section (3) of section
12 - to such Revenue Officer as the State Government may direct;
(g) if such order is passed by a Collector or District Survey Officer
-to the Commissioner;
(h) if such order is passed by the Commissioner - to the Board.
( 2) Save as otherwise provided, a second appeal shall lie against every
order passed in first appeal under this Code or the rules made thereunder -
(a) by the Sub-Divisional Officer or the Deputy Survey Officer or the
Collector or the District Survey Officer - to the Commissioner;
(b) by the Commissioner - to the Board.
(3) The second appeal shall lie only -
(a) if the original order has in the first appeal been varied or reversed
otherwise than in a matter of cost; or
(b) on any of the following grounds and no other, namely :-
(i)that the order is contrary to law or, usage having the force of
law; or
(ii)that the order has failed to determine some material issue of
law, or usage having force of law; or
(iii)that there has been a substantial error or defect in the
procedure as prescribed by this Code, which may have
produced error or defect in the decision of the case upon
merits.
(4) An order passed in review varying or reversing any order shall be
appealable in like manner as the original order.
14/ When the SDO, by order dated 03/02/2022, by considering
the Appeal, came to the specific conclusion that looking to the partition,
which is taken place between the father and the son, is not within the
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NIVRUTTIRAO MAHANAG
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knowledge of the petitioner Rupaji, which transpires from the record and
also considering the fact that the statement of petitioner Rupaji is
recorded by the Tehsildar by recording his consent, the signature of the
petitioner is also disputed by the petitioner himself and in support of that,
the petitioner has also filed a report of hand-writing expert along with this
petition. The finding is also required to be considered from the angle that
all the legal representatives / heirs of the petitioner Rupaji, who can be
considered as co-sharer, are not impleaded in the proceeding. Considering
the objections filed by the third parties, who are daughters of the
petitioner, it also transpires that the requirement of Sections 178 and 178-
A of the MPLRC is not fulfilled, otherwise also, looking to the fact that
during the lifetime, the father cannot agree for disproportionate partition,
which has happened in the present case, where majority of the land was
owned in the share of the petitioner pursuant to that so-called partition
and minimal land remains with the father and more particularly, when the
father is denying the fact that he has remained present in the proceeding
and has given any consent. Considering all these aspects and considering
totality and facts and circumstances of the case, the judgments which are
cited by the parties, are reproduced as under :
Surya Dev Rai vs Ram Chander Rai & Others reported in (2003)
6 SCC 675 [
10. Article 226 of the Constitution of India preserves to the
High Court power to issue writ of certiorari amongst others. The principles
on which the writ of certiorari is issued are well-settled. It would suffice
for our purpose to quote from the 7-Judge Bench decision of this Court in
Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. – (1955) 1 SCR 1104.
The four propositions laid down therein were summarized by the
Constitution Bench in The Custodian of Evacuee Property Bangalore Vs.
Khan Saheb Abdul Shukoor etc. – (1961) 3 SCR 855 as under :-
"……the High Court was not justified in looking into the order of
December 2, 1952, as an appellate court, though it would be justified in
scrutinizing that order as if it was brought before it under Article 226 of the
Constitution for issue of a writ of certiorari. The limit of the jurisdiction of
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the High Court in issuing writs of certiorari was considered by this Court
in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955
SC 233) and the following four propositions were laid down :-
"(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally
in the exercise of its undoubted jurisdiction, as when it decides without
giving an opportunity to the parties to be heard, or violates the principles
of natural justice;
(3) (3) The court issuing a writ of certiorari acts in exercise of a
supervisory and not appellate jurisdiction. One consequence of this is that
the court will not review findings of fact reached by the inferior court or
tribunal, even if they be erroneous.
(4) (4) An error in the decision or determination itself may also be
amenable to a writ of certiorari if it is a manifest error apparent on the face
of the proceedings, e.g., when it is based on clear ignorance or disregard of
the provisions of law. In other words, it is a patent error which can be
corrected by certiorari but not a mere wrong decision."
12. In the exercise of certiorari jurisdiction the High Court proceeds on
an assumption that a Court which has jurisdiction over a subject- matter
has the jurisdiction to decide wrongly as well as rightly. The High Court
would not, therefore, for the purpose of certiorari assign to itself the role of
an Appellate Court and step into re-appreciating or evaluating the evidence
and substitute its own findings in place of those arrived at by the inferior
court.
14. The Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr. ,
(1955) 1 SCR 250, held that certiorari may be and is generally granted
when a court has acted (i) without jurisdiction, or (ii) in excess of its
jurisdiction. The want of jurisdiction may arise from the nature of the
subject-matter of the proceedings or from the absence of some preliminary
proceedings or the court itself may not have been legally constituted or
suffering from certain disability by reason of extraneous circumstances.
Certiorari may also issue if the court or tribunal though competent has
acted in flagrant disregard of the rules or procedure or in violation of the
principles of natural justice where no particular procedure is prescribed.
An error in the decision or determination itself may also be amenable to a
writ of certiorari subject to the following factors being available if the error
is manifest and apparent on the face of the proceedings such as when it is
based on clear ignorance or disregard of the provisions of law but a mere
wrong decision is not amenable to a writ of certiorari.
Manjunath Tirakappa Malagi and Gurusiddappa Tirakappa
Malagi in SLP (CIVIL) 4812 OF 2023
12. The only remedy against a compromise decree is to file a recall
application. This Court in Pushpa Devi Bhagat v. Rajinder Singh , (2006) 5
SCC 566 summed up the position of law as follows:
“17. The position that emerges from the amended provisions of
Order 23 can be summed up thus:
(i) No appeal is maintainable against a consent decree having
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regard to the specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court
recording the compromise (or refusing to record a 1 Section 96(3) of CPC:
No appeal shall lie from a decree passed by the Court with the consent of
parties. compromise) in view of the deletion of clause (m) of Rule 1 Order
43.
(iii) No independent suit can be filed for setting aside a
compromise decree on the ground that the compromise was not lawful in
view of the bar contained in Rule 3-A.
(iv) A consent decree operates as an estoppel and is valid and
binding unless it is set aside by the court which passed the consent decree,
by an order on an application under the proviso to Rule 3 Order 23.
Therefore, the only remedy available to a party to a consent decree to
avoid such consent decree, is to approach the court which recorded the
compromise and made a decree in terms of it, and establish that there was
no compromise. In that event, the court which recorded the compromise
will itself consider and decide the question as to whether there was a valid
compromise or not. This is so because a consent decree is nothing but
contract between parties superimposed with the seal of approval of the
court. The validity of a consent decree depends wholly on the validity of
the agreement or compromise on which it is made…” (Emphasis
Provided) Thus, even if we accept the contention of the appellants that
their father was coerced by his brothers and father (appellants’
grandfather) to enter into a compromise, which led to the passing of the
consent decree, a fresh suit is still not a valid remedy. In that situation, the
appellants’ father should have filed a recall application before the Court
that had passed the decree. The appellants’ father has never done so!
Moreover, he had admitted the consent decree and never questioned its
validity.
Awadh Narayan Sahu & another vs Hemendra Kumar Sahu &
another reported in 2022 (2) RN 205
9/ Learned Commissioner has mentioned that there is not
challenge to said Nayab Tehsildar which contains signatures of the present
petitioners. She has held that an order passed by the Tehsildar in 1989 on
the basis of the consent of the parties is not Prasad and Others, 2012
Revenue Nirnay 323, in which it is held that as per Art 231(1) and (2) of
the Hindu Laws by Mulla in a joint Hindu family property purchased from
the income of the joint property in the name of elder brother will not be
treated as self acquired property of his elder brother.
10/ Learned Additional Commissioner has also placed reliance
on the judgment of Supreme Court in Narendra Kumar J. Modi Vs.
Commissioner of Income Tax, 1976 AIR SC 1953 and in M/S Nopany
Investments (P) Ltd. Vs. Santokh Singh (HUF), AIR 2008 SC 673, which
too are applicable to the facts and circumstances of the case.
11/ As far as, law laid down by the Bombay High Court in
Shiva Martand Tapkire (supra) is concerned, it is in relation to Prevention
of Fragmentation and Consolidation of Holdings Act, 1947 and facts of
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that case are not applicable to the facts of the present case.
12/ Therefore, in view of the fact that petitioners themselves
were signatory to the partition and on their consent an order of partition
and consequent mutation in the name of four brothers namely the
petitioners and the respondents was carried out cannot be faulted with.
There is no error apparent in the impugned order calling for interference.
Petition fails and is dismissed.
Anand Chaudhary vs State of M.P. reported in 2025 (1) MPLJ
646
18/ To appreciate the relevant contentions of the rival parties, we first
proceed to examine the rights which a Bhumiswami gets on the basis of
mutation because it has been vehemently argued that mutation is only a
fiscal entry and does not create a title in the land and on the contrary, it
was argued that mutation in fact gives a number of rights to the recorded
Bhumiswami though technically, it may not be a title of proprietary right
in the land.
19/ As per Section 164 of M.P.L.R.C. it is provided that interest of
Bhumiswami shall on his death pass by inheritance, survivalship or
bequest as the case may be, subject to his personal laws. Thus, it is clear
that a person getting Bhumiswami right which though may not be title,
but on his death, the land will devolve on his own legal heirs. Section 164
of M.P.L.R.C. is as under:-
"164. Devolution - Subject to his personal law the interest of Bhumiswami
shall, on his death, pass by inheritance, survivorship or bequest, as the
case may be."
20/ As per Section 178-A, a Bhumiswami can partition the land in his own
lifetime amongst his own legal heirs. The said provision is as under:-
"178 (A). Partition of land in life time of Bhumiswami.-(1) If any
Bhumiswami wishes to partition his holding assessed for purpose of
agriculture under Section 59 or any part thereof amongst his legal heirs
during his life time, he may apply for partition of such holding or part
thereof to the Tahsildar.
(2) The Tahsildar may after hearing the legal heirs divide the holding or
part thereof and apportion the assessment in accordance with the rules
made under this Code."
21/ As per Section 168 of M.P.L.R.C., a Bhumiswami has been given a
power to induct lessee and thus, charge lease rent, premium and create
lease hold rights of the third party in the land. Section 168 (1) of
M.P.L.R.C. is as under:-
"168. Leases.-(1) A Bhumiswami may lease any land comprised in his
holding which has been assessed for the purpose of agriculture under
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Section 59 , for any period not exceeding five years at a time."
22/ As per Section 167 , right has been given to the Bhumiswami to
exchange the land by mutual agreement of whole or any part of its
holding in the following manner:-
"167. Exchange of land.-Subject to the provisions of Section 165
Bhumiswami may exchange by mutual agreement the whole or any part
of their holding for purpose of consolidation of holdings or securing
greater convenience in cultivation."
23/ Section 165 (9) gives power to the Bhumiswami to mortgate the land
to secure a loan. The said provision is as under:-
"1[(9) Nothing in this section shall-
(i) Prevent a Bhumiswami from transferring any right in his land by way
of mortgage to secure payment of an advance made to him by co-
operative society subject to the condition that the land shall not be sold to
secure recovery, without exhausting the procedure prescribed in Section
154-A; or
(ii) Affect the right of any such society to secure recovery of any advance
made to him, in accordance with the provisions of Section 154-A."
24/ As per Section 250 , a Bhumiswami upon getting his name mutated as
a Bhumiswami can seek possession of the land. The relevant provision is
as under:-
"250. Reinstatement of Bhumiswami improperly dispossessed. - (1) The
Tahsildar shall-
(a) on application of a Bhumiswami or his successor-in-interest who has
been improperly dispossessed, issue a show cause notice to the person
occupying Bhumiswami's land to explain the grounds of his possession
and make such enquiry as he thinks fit, or
(b) on coming to know that a Bhumiswami has been improperly
dispossessed, on his own motion start proceedings under clause (a).
(2) If after the enquiry the Tahsildar finds that the Bhumiswami has been
improperly dispossessed, he shall order the restoration of the possession
to the Bhumiswami and also put him in possession of the land.
(3) The Tahsildar may, at any stage of the enquiry, pass an interim order to
the person occupying the land to hand-over its possession to the
Bhumiswami, if he finds that the Bhumiswami was dispossessed by
opposite party within six months prior to the submission of the application
or commencement of suo motu proceedings under this section.
(4) The person against whom an interim order has been passed under sub-
section (3) may be required by the Tahsildar to execute a bond for such
sum as the Tahsildar may deem fit for abstaining from taking possession
of land until the final order is passed by the Tahsildar and if the person
executing a bond is found to have entered into or taken possession of the
land in contravention of the bond, the Tahsildar may forfeit the bond in
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whole or in part and may recover such amount as an arrear of land
revenue.
(5) Where the Tahsildar orders restoration of possession of land to the
Bhumiswami under sub-section (2), the Tahsildar shall also award
compensation to be paid to the Bhumiswami by the opposite party for the
period of his unauthorised possession and such compensation shall be
calculated at the pro rata rate of ten thousand rupees per hectare per year.
The compensation awarded under this section shall be recoverable as an
arrear of land revenue.
(6) When an order has been passed under sub-section (2) for the
restoration of possession of land to the Bhumiswami, the Tahsildar may
require the opposite party to execute a bond for such sum as the Tahsildar
may deem fit for abstaining from taking possession of the land in
contravention of the order.
(7) Where an order has been passed under sub-section (2) for the
restoration of the possession of land to the Bhumiswami, the opposite
party shall also be liable to fine which may extend to fifty thousand
rupees.
(8) If any person continues in unauthorised occupation or possession of
land for more than seven days after the date of order for restoration of
possession under sub-section (2) or sub-section (3), then without prejudice
to the compensation payable under sub-section (5) or the fine under sub
section the Sub- Divisional Officer shall cause him to be apprehended and
shall send him with a warrant to be confined in a civil prison for a period
of fifteen days in case of first order for restoration of possession and shall
cause him to be apprehended and shall send him with a warrant to be
confined in such prison for a period of three months in case of second or
subsequent orders for restoration of the possession to such Bhumiswami:
Provided that no action under this section shall be taken unless a notice is
issued calling upon such person to appear before the Sub-Divisional
Officer on a day to be specified in the notice and to show cause why he
should not be committed to the civil prison:
Provided further that the Sub-Divisional Officer may order the release of
such person from detention before the expiry of the period mentioned in
the warrant if he is satisfied that the unauthorised possession has been
vacated.
25/ Most importantly, a Bhumiswami has been given a right to transfer
the land. Thus, the Bhumiswami can sale, gift, mortgage and in every
other manner, transfer his interest in the land. This is only subjected to
some restrictive provisions in other sub clauses of Section 165 which
restrict the rights to transfer where the Bhumiswami is a member of
aboriginal Tribe or vulnerable section of society or where the land is held
in leasehold rights of the State Govt. Therefore, subject to other restrictive
provisions of Section 165 , a Bhumiswami has been given the right of
transfer the land. Section 165 is as under:-
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"165. Rights of transfer.-1[(1) Subject to the other provisions of this
Section, provisions of the proviso to sub-section (3) of Section 158 and
provisions of Section 168 , a Bhumiswami may transfer any interest in his
land.[ (2) Notwithstanding anything contained in sub-section (1)-
(a) no mortgate of any land by a Bhumiswami shall hereafter be valid
unless atleast five acres of irrigated or ten acres of unirrigated land is left
with him free from any encumbrance or charge;
(b) subject to the provisions of clause (a), no usufructuary mortgage of
any land by a Bhumiswami shall hereafter be valid if it is for a period
exceeding six years and unless it is a condition of the mortgage that on the
expiry of the period mentioned in the mortgage deed, the mortgage shall
be deemed, without any payment whatsoever by the Bhumiswami to have
been redeemed in full and the mortgagee shall forthwith re-deliver
possession of the mortgaged land to the Bhumiswami;
(c) if any mortgagee in possession of the land mortgaged does not hand
over possession of land after the expiry of the period of the mortgage of
six years whichever expires first the mortgagee shall be liable to ejectment
by the orders of the Tahsildar as trespasser and the mortgager shall be
placed in possession of the land by the Tahsildar.
[Provided that nothing in this sub-section shall apply in the case of a
mortgage of any land held by a Bhumiswami for non-agricultural
purpose.] (3) Where a Bhumiswami effects a mortgage other than a
usufructuary mortgage of his land pursuance of the provisions of sub-
section (2), then notwithstanding anything contained in the mortgage
deed, the total amount of interest accruing under the mortgage shall not
exceed half the sum of the principal amount advanced by the mortgagee.
(4) Notwithstanding anything contained in sub-section (1), no
Bhumiswami shall have the right to transfer any land-
(a) in favour of any person who shall as a result of the transfer become
entitled to land which together with the land, if any, held by himself or by
his family will in the aggregate exceed such ceiling limits as may be
prescribed;
(b) 3[ *]
(i) nothing in this sub-section shall apply-
(a) (i) in the case of transfer in favour of an institution established for a
public, religious or charitable purpose or a transfer for industrial purpose
or a transfer by way of mortgage;
(ii) in the case of transfer in favour of co-operative society for industrial
purpose or a transfer by way of mortgage subject, however, to the
condition that no mortgage for agricultural purposes shall authorize sale
for recovery of an advance in contravention of clause (b) of Section 147 ;
(b) in the case of a transfer of land held for non-agricultural purposes;]
(ii) 1[ ].
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(5) Notwithstanding anything to the contrary in any other enactment for
the time being in force, no land of a Bhumiswami shall, in execution of a
decree or order of a court, be sold to any person who as a result of such
sale shall become entitled to land which together with the land, if any, held
by himself or by his family will in the aggregate exceed such ceiling limits
as may be prescribed;
3[Provided that nothing in this sub-section shall apply in the case of a co-
operative society where any land is to be sold in execution of a decree or
order passed in favour of such society after exhausting the procedure
prescribed in Section 154-A. 1[(6) Notwithstanding anything contained in
sub-section (1) the right of Bhumiswami belonging to a tribe which has
been declared to be an aboriginal tribe by the State Government by a
notification in that behalf, for the whole or part of the area to which this
Code applies shall-
(i) in such areas as are predominantly inhabited by aboriginal tribes and
from such date as the State Government may, by notification, specify, not
be transferred nor it shall be transferrable either by way of sale or
otherwise or as a consequence of transaction of loan to a person not
belonging to such tribe in the area specified in the notification;
(ii) in areas other than those specified in the notification under clause (i),
not to be transferred or be transferable either by way of sale or otherwise
or as a consequence of transaction of loan to a person not belonging to
such tribe without the permission of a Revenue Officer not below the rank
of Collector, given for reasons to be recorded in writing.
2[(6-a) Notwithstanding anything contained in sub-section (1), 3[the right
of a Bhumiswami other than a Bhumiswami belonging to a tribe which
has been declared to be an aboriginal tribe under sub-section(6), in the
land excluding the agricultural land] shall not be transferred or be
transferable either by way of sale or otherwise or as a consequence of
transaction of loan to a person not belonging to aboriginal tribe without
the permission of the Collector given for reasons to be recorded in writing;
Provided that every such transfer effected 4[after the 9 th day of June,
1980 but before the 20th April, 1981] which is not in accordance with the
provisions herein contained shall unless such transfer is ratified by the
Collector in accordance with the provisions hereinafter contained, be void
and shall be of no effect whatsoever, notwithstanding anything contained
in this Code or any other law for the time being in force.
(6-b) Notwithstanding anything contained in the Limitation Act, 1963
(No.36 of 1963), the Collector may on his own motion at any time or on
an application made in this behalf within three years of such transaction in
such form as may be prescribed, make an enquiry as he may deem fit, and
may, after giving reasonable opportunity of being heard to the persons
affected by the transfer, pass an order ratifying the transfer or refusing to
ratify the transfer.
(6-c) The Collector shall in passing an order under sub-section (6-a)
granting or refusing to grant permission or under sub-section (6-b)
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ratifying or refusing to ratify the transaction shall have due regard to the
following:-
(i) whether or not the person to whom land is being transferred is a
resident of the Scheduled Area;
(ii) the purpose to which land shall be or is likely to be used after the
transfer;
(iii) whether the transfer serves, or is likely to serve or prejudicate
the social, cultural and economic interest of the residents of the
Scheduled area;
(iv) whether the consideration paid is adequate;
(v) whether the transaction is spurious or benami; and
(vi) such other matters as may be prescribed.
The decision of the Collector granting or refusing to grant the
permission under sub-section (6-a) or ratifying or refusing to ratify
the transaction of transfer under sub-section (6-b), shall be final,
notwithstanding anything to the contrary contained in this Code.
(6-d) On refusal to grant the permission under sub-section (6-a) or
ratification under sub-section (6-b), the transferee, if in possession of the
land shall vacate the possession forthwith and restore the possession
thereof to the original Bhumiswami.
(6-e) If the Bhumiswami for any reason whatsoever fails or is unable to
take possession of the land of which the right of possession stands
restored to him under sub-section (6-d), the Collector shall cause the
possession of land to be taken and case the land to be managed on behalf
of the Bhumiswami subject to such terms and conditions as may be
prescribed till such time as the original Bhumiswami enters upon his land:
Provided that if any resistance is offered in restoring possession, the
Collector shall use or cause to be used such force as may be
necessary.
1[(6-ee)2[ *].] (6-f) The provisions of sub-section (6-a) to 1[(6-
e)] shall have effect, not withstanding anything to the contrary
contained in this Code or any other law for the time being in force.]
(7) Notwithstanding anything contained in sub-section (1) or in any
other law for the time being in force-
2(a) where the area of land comprised in a holding or if there be more
than one holding the aggregate area of all holdings of a Bhumiswami is in
excess of five acres of irrigated or ten acres of unirrigated land, then only
so much area of land in his holding or holdings shall be liable to
attachment or sale in execution of any decree or order as is in excess of
five acres of irrigated or ten acres of unirrigated land;]
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(b) no land comprised in a holding of a Bhumiswami belonging to a tribe
which has been declared to be an aboriginal tribe under sub-section (6)
shall be liable to be attached or sold in execution of any decree or order;
(c) no receiver shall be appointed to manage the land of a Bhumiswami
under Section 51 of the Code of Civil Procedure, 1908 (V of 1908) nor
shall any such land vest in the court or any receiver under the Provincial
Insolvency Act, 1920 (V of 1920)* contrary to the provisions of clause (a)
or clause (b):
Provided that nothing in this sub-section shall apply where a charge
has been created on the land by a mortgage;
3[(7-a) Notwithstanding anything contained in sub-section (1), no
Bhumiswami specified in Section 33 of the Madhya Pradesh
Bhoodan Yagna Adhiniyam, 1968 (No.28 of 1968) shall have the
right to transfer any interest in his land specified in the said section
without the permission of the 4[Collector].] 5[(7-b)
Notwithstanding anything contained in sub-section (1), 6[a person
who holds land from the State Government or a person who holds
land in Bhumiswami rights under sub-section (3) of Section 158 ] or
whom right to occupy land is granted by the State Government or
the Collector as a Government lessee and who subsequently
becomes Bhumiswami of such land, shall not transfer such land
without the permission of a revenue officer not below the rank of a
Collector, given for reasons to be recorded in writing.] (8) Nothing
in this section shall prevent a Bhumiswami from transferring any
right in his land to secure payment of, or shall affect the right of the
State Government to sell such right for the recovery of an advance
made to him under the Land Improvement Loans Act, 1883 (XIX of
1883) or the Agriculturists Loans Act, 1884 (XII of 1884).
1[(9) Nothing in this section shall-
(i) prevent a Bhomiswami from transferring any right in his land by
way of mortgage to secure payment of an advance made to him by
co-operative society subject to the condition that the land shall not
be sold to secure recovery, without exhausting the procedure
prescribed in Section 154-A; or
(ii) affect the right of any such society to secure recovery of an
advance made to him, in accordance with the provisions of Section
154-A.] 2[(9-A) Nothing in this section shall prevent a
Bhumiswami who is a displaced person from transferring any right
in his land to secure payment of an advance made to him by the
Dandakaranya Development Authority or shall affect the right of
that Authority to sell such right for the recovery of such advance.
3[(9-b) Nothing in this section shall prevent a Bhumiswami from
transferring any right in this land to secure payment of an advance made
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to him by a Commercial Bank for purpose of agriculture or improvement
of holding or shall affect the right of any such Bank to sell such right for
the recovery of such advance.] (10) Notwithstanding anything contained
in the Indian Registrations Act, 1908 (XVI of 1908), no officer
empowered to register documents thereunder shall admit to registration
any document which purports to contravene the provisions of this section.
(11) Nothing in this section shall-
(a) invalidate any transfer which was validly made; or
(b) validate any transfer which was invalidly made;
Before the coming into force of this Code."
26. Further, it cannot be lost sight by this Court that in the case of rural
agricultural ancestral properties that have not been subjected to a
transaction which is necessarily registerable under the provisions of Indian
Registration Act, 1908 so far since 1908, there may not be any other
registered document of title but only mutation entry. The State of Madhya
Pradesh has framed Registration Rules in terms of Registration Act, 1908
which are known as M.P. Registration Rules, 1939. As per Rule 19 (n) of
M.P. Registration Rules 1939, a document of transfer of agricultural land
is required to be presented with the latest computerized Khasra of one
year issued by the Revenue Department. Thus, without a copy of Revenue
khasra, no registered deed will be executed in respect of the land. Rule 19
relates to return of documents not accompanied with requisite material
and Rule 19 (n) relates to return of document if not presented alongwith
copy of computerized khasra which is as under:-
19. Return of document for correction, etc.- The following
documents may be returned for amendment, correction, or supply of
omissions -
(n) A document required to be registered under the provisions of section
17 of the Act pertaining to agricultural land, which is not presented along
with the up-to-date computerized khasra of one year issued by the
Revenue department.
15/ Though there is no quarrel about the ratio of the above
mentioned judgments, all the judgments are required to be considered on
the facts of each case and looking to the facts of the present case, it
clearly transpires that the provisions of Sections 178 and 178-A of the
MPLRC is not attracted in the facts of the present case and more
particularly, when the father is Bhumiswami and only Bhumiswami can
apply for the partition. Moreover, all the legal representatives or co-sharer
of the property / land of the father are not impleaded as party and also
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considering the fact that the father is saying that he has never given any
consent and signed any documents, clearly indicates that such entry is
made by the Tehsildar at the relevant point of time in fraudulent manner
and not after compliance of the necessary provisions of the Law as
indicated earlier in the present case. The order passed by the S.D.O is in
consonance with the law, which is wrongly interfered with by the
Commissioner, Indore Division and therefore, the reasons assigned by the
Authority, i.e. the Tehsildar as well as the Commissioner, Indore Division
are not justified in the facts of the present case and are also not found in
accordance with the law and can be considered as perverse, illegal and
improper, which clearly violates the rights of the petitioner to all the
lands in question as per his violation and also action of the Tehsildar
jeopardize the right of the petitioner. Accordingly, this is a fit case, where
the Court should exercise the power contemplated under Article 226 of
the Constitution of India by interfering with the order passed by the
Tehsildar as well as the Commissioner, Indore Division and by restoring
the order passed by the S.D.O and to correct the record accordingly in
accordance with the law as expeditiously as possible, preferably within
30 days from the date of receipt of certified copy of this order.
16/ Accordingly, present petition is allowed and disposed of.
CC as per rules.
(SANDEEP N. BHATT)
JUDGE
amol
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