Naresh Kushwaha vs. Sonam Kushwaha

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5993/2016 Naresh Kushwaha and others Vs. Smt. Sonam Kushwaha and another

Gwalior, Dated :08/01/2019

Shri Amit Lahoti, Advocate for petitioners.

Shri Kamal Jain, Advocate for respondent no.2.

This writ petition under Article 227 of the Constitution of India has been filed against the order dated 11/8/2016 passed by the Board of Revenue, Gwalior in Case No.448-PBR/2016, by which the order of mutation passed by the SDO and affirmed by the Commissioner, Gwalior Division, Gwalior has been set aside.

The necessary facts for disposal of the present petition in short are that the respondent no.2 had filed an application for mutation of his name on the basis of a sale deed executed by the mother of the petitioners. The said application was allowed by the Tahsildar. When the petitioners came to know about the mutation of the name of respondent no.2, they preferred an appeal before the SDO and the order of the Tahsildar was set aside by the SDO by order dated 17/8/2015. The respondent filed an appeal, which too was dismissed by the Commissioner by order dated 20/1/2016. Being aggrieved by the order of SDO as well as the Commissioner, the respondent no.2 filed a revision before the Board of Revenue, which has been allowed and the order passed by the SDO and the Commissioner has been set aside and the name of respondent no.2 has been directed to be mutated in the revenue records on the basis of the sale deed.

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THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5993/2016 Naresh Kushwaha and others Vs. Smt. Sonam Kushwaha and another

Challenging the order passed by the Board of Revenue although several submissions were raised by the counsel for the petitioners, but it was fairly conceded by the counsel for the petitioners that a civil suit in respect of the same property is pending in which the petitioners have challenged the sale deed executed by their mother in favour of respondent no.2.

In view of the fact that the name of respondent no.2 has been mutated in the revenue records on the basis of the sale deed which is the subject matter of the civil suit, this Court is of the considered opinion that the impugned order passed by the Board of Revenue would be subject to the outcome of the civil suit.

At this stage, it is submitted by the counsel for the petitioners that till the final disposal of the suit, the respondent no.2 may be restrained from creating third party right in the suit property.

The submission made by the counsel for the petitioners cannot be accepted for the simple reason that the petitioners had filed an application under Order XXXIX Rule 1 and 2 CPC, which was rejected by the trial court. Against which, a Miscellaneous Appeal is already pending before the District Court. Thus, as the prayer for grant of temporary injunction is already subjudice, therefore, no interim order can be passed at this stage.

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5993/2016 Naresh Kushwaha and others Vs. Smt. Sonam Kushwaha and another

It is further submitted by the counsel for the petitioners that the trial court may be directed to decide the suit on its own merits without getting prejudiced by any of the observations made by the Board of Revenue.

Considered the submission made by the counsel for the petitioners.

So far as the order passed by the Board of Revenue is concerned, it is pertaining to the mutation of the name of respondent no.2 in the revenue records. The order of the Board of Revenue has not touched the validity of the sale deed executed by the mother of the petitioners in favour of respondent no.2. Even then, by way of a word of caution it is directed that the trial court while deciding the civil suit shall not get prejudiced by the orders of the revenue authorities.

With aforesaid directions, the petition fails and is hereby dismissed.

(G.S. Ahluwalia) Arun* Judge

ARUN KUMAR MISHRA 2019.01.10 10:20:28 +05'30'