Mukund Vs Panku (Died) Through Legal Heirs

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 549 of 2013

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Mukund S/o Lt Shri Chain Aged About 60 Years R/o Village Singanpur, Tah Jagdalpur, But Now Tokapal,psot Singanpur, Thana Badanji, Civil And Revenue Distt Bastar, Cg, Chhattisgarh

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Smt. Tulawati W/o Shri Mukund Aged About 55 Years R/o Village Singanpur, Tah Jagdalpur, But Now Tokapal,psot Singanpur, Thana Badanji, Civil And Revenue Distt Bastar, Cg, District : Bastar(Jagdalpur), Chhattisgarh

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Naresh (Died) Through His Legal Heirs As Per The Hon'ble Court Order Dated 03-03-2021 And 13-04-2021.

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3.1 - (A) Smt. Sonamani @ Sona Sethiya Wd/o Late Naresh Sethiya Aged About 44 Years R/o Village Singanpur , Schoolpara , Tahsil Tokapal, Post Singanpur, Thana Badanji, Civil And Revenue District Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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3.2 - (B) Hemant Sethiya S/o Late Naresh Sethiya Aged About 24 Years R/o Village Singanpur , Schoolpara , Tahsil Tokapal, Post Singanpur, Thana Badanji, Civil And Revenue District Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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3.3 - (C) Gaytri Sethiya D/o Late Naresh Sethiya Aged About 21 Years R/o Village Singanpur , Schoolpara , Tahsil Tokapal, Post Singanpur, Thana Badanji, Civil And Revenue District Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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Dayamani W/o Shri Naresh Aged About 40 Years R/o Village Singanpur, Tah Jagdalpur, But Now Tokapal,psot Singanpur, Thana Badanji, Civil And Revenue Distt Bastar, Cg, District : Bastar(Jagdalpur), Chhattisgarh

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Smt. Sulochana Wd/o Lt Shri Chain Aged About 72 Years R/o Village Singanpur, Tah Jagdalpur, But Now Tokapal,psot Singanpur, Thana Badanji, Civil And Revenue Distt Bastar, Cg, District : Bastar(Jagdalpur), Chhattisgarh

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... Petitioner(s)

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versus

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Panku (Died) Through Legal Heirs As Per Honble Courts Order Dated 1907-2023.

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1.1 - (A) Smt. Lachmani @ Kacha @ Kachri Wd/o Late Hari Aged About 55 Years R/o Village Keshapur, Block Darbha, Post Chingpal, Tahsil Darbha,

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2

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District Bastar C.G.

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1.2 - (B) Bhagchand S/o Late Hari Aged About 20 Years R/o Village Keshapur, Block Darbha, Post Chingpal, Tahsil Darbha, District Bastar C.G.

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... Respondent(s)

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(Cause Title is taken from Case Information System)

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For Petitioners : Mr. Alok Dewangan, Advocate For Respondents No. 1A & 1B : Mr. Manoj Paranjpe, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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11.04.2025

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The petitioners have challenged the order passed by the Commissioner (Tribal), Bastar Division, Jagdalpur dated 24.06.2013, whereby, the order passed by the Additional Collector, Jagdalpur dated 15.11.2010 has been set aside.

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The facts of the present case are as under:-

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(a) The land bearing survey Nos. 286/2 & 286/3 total admeasuring 9.16 acres was ancestral and exclusive property of Late Panku. Late Panku alienated the property through a registered sale-deed in the year 1967 to Samu. Late Panku approached the Debt Relief Court on the ground that he never executed the sale-deed in favour of Samu and it was a mortgage-deed. The concerned Court after appreciating material available on the record held that it was an outright sale and no fraud was played and thus dismissed the case vide order dated 28.07.1978.

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(b) Late Panku moved an application under Section 170 B of the C.G. Land Revenue Code, 1959 (hereinafter referred to as “Code, 1959”) before the Sub-Divisional Officer (Revenue), in the year 2000 for the reversion of land. The Sub-Divisional Officer (Revenue), rejected the application vide order dated 30.09.2004.

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(c) Late Panku preferred an appeal before the Collector assailing the order passed by the Sub-Divisional Officer (Revenue). The Collector, Jagdalpur allowed the appeal vide order dated 13.03.2006. The petitioner herein moved an application for review of that order before the Collector, Jagdalpur and the Additional Collector, Jagdalpur vide order dated 15.11.2010 allowed the review petition and re-called the order dated 13.03.2006 and upheld the order passed by the Sub-Divisional Officer (Revenue) dated 13.09.2004.

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(d) Late Panku preferred an appeal before the Commissioner (Tribal), Bastar Division, Bastar against the order dated 15.11.2010. The Commissioner vide order dated 24.06.2013 allowed the appeal preferred by Late Panku and set-aside the order passed by the Collector dated 15.11.2010. The petitioner has challenged the order dated 24.06.2013 in the instant petition.

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Mr. Alok Dewangan, learned counsel appearing for the petitioners would submit that in the year 1967, Late Panku had alienated the property through a registered sale-deed to Samu and later on, Samu sold the subject property through a registered sale-deed in the year 1970 to the father of petitioner No. 1/Chain Sundi. He would further submit that the earlier purchaser, namely Samu was not arrayed as a party; therefore, the orders passed by the Sub-Divisional Officer and the Collector are bad in law. He would also submit that the second appeal preferred by the respondent(s) before the Commissioner was not maintainable according to the provisions of Section 170 B of Code, 1959. He would contend that the subject land was purchased by the father of petitioner No. 1/Chain Sundi. He would further contend that permission was granted according to the

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provisions of Section 165(6) of the Code, 1959 by the competent authority in favour of the petitioners and this issue has already been examined by the Sub-Divisional Officer. He would also contend that between the same parties with regard to the same subject property, an order was passed by the Debt Relief Court against Late Panku on 28.07.1978; therefore, the application moved by Late Panku under Section 170 B of the Code, 1959 was not maintainable. He would also state that Late Panku sold his property to another aboriginal tribe; therefore, provisions of Section 170 B of the Code, 1959 would not attract. He would pray to set-aside the order passed by the Commissioner and to restore the order passed by the Collector in the review petition dated 15.11.2010.

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On the other hand, Mr. Manoj Paranjpe, learned counsel appearing for respondents No. 1A & 1B would oppose. He would submit that the petitioners were afforded a proper opportunity of hearing by the learned Courts below. He would further submit that the Debt Relief Court decided the issue that a sale-deed was executed by Late Panku in favour of Samu and it was not a mortgage-deed. He would also submit that the issue with regard to 170 B of the Code, 1959 was never raised or decided by the Debt Relief Court; therefore, the application preferred by Late Panku before the authority concerned was maintainable. He would contend that the SubDivisional Officer rejected the application moved by Late Panku under Section 170 B of the Code, 1959 only on the ground that the Debt Relief Court had considered the issue and passed the order in favour of Samu. He would further contend that initially, the Collector allowed the appeal preferred by the respondents and later on, a review petition was preferred by the petitioners and the order dated 15.11.2010 was recalled. He would also contend that the Collector upheld the order passed by the SubDivisional Officer and set-aside its own order. He would also submit that

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due to inadvertence, the respondents preferred a second appeal before the Commissioner, but merely quoting an incorrect provision of law would not make the appeal or revision incompetent. He would also argue that the Commissioner examined the entire aspect of the matter including the provisions under Section 165 (6) of the Code, 1959, and thereafter, setaside the order passed by the Collector in review. He submits that the instant petition deserves to be dismissed.

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I have heard learned counsel appearing for the parties and perused the documents placed on the record.

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The Hon’ble Supreme Court in the matter of J. Kumaradasan Nair & Anr. vs. IRIC Sohan & Ors. reported in 2009 AIR SCW 1921 , has held that mentioning of a wrong provision or non-mentioning of any provision of law would not be sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. The relevant para 14 is reproduced herein-

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below:-

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“14. It is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficent provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof…….”

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The Hon’ble Supreme Court in the matter of Pankajbhai Rameshbhai

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Zalavadiya vs. Jethabhai Kalabhai Zalavadiya reported in (2017) 9 SCC

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700 held that merely quoting an incorrect provision of law would not make the application incompetent. The relevant para 16 is reproduced hereinbelow:-

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“16. ………... Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the courts are meant to do justice and not to decide the applications based on technicalities.……..”

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Taking into consideration the law laid down by the Hon’ble Supreme Court and the fact that the respondents preferred an appeal before the Commissioner instead of revision, the contention made by the learned counsel for the petitioner in this regard is hereby rejected.

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Perusal of the order passed by the Collector in the review petition would show that the order passed by the Collector was re-called only on the ground that the case was concluded by the Debt Relief Court on 28.07.1978, wherein, the transaction was treated as an outright sale. In that proceeding, the issue before the authority was whether the transaction was mortgage-deed or sale-deed. The authority concerned after perusing the record and the material available on record held that it was a sale-deed and not a mortgage-deed. Perusal of the order passed by the authority concerned would show that the issue with regard to Section 170 B of Code, 1959 was not considered. For the first time, Late Panku moved an application under Section 170 B of the Code, 1959 before the SubDivisional Officer on 28.09.2000. The Sub-Divisional Officer (Revenue) rejected the said application on the ground that a proceeding had already been concluded by the Debt Relief Court, wherein, it was held that the transaction was a sale. The witnesses were examined by the Sub-

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Divisional Officer, the son of Samu stated that his father never remained in possession of the subject land. The other witness, namely, Sukru also stated that Samu never got possession of property .

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10. The Collector vide order dated 13.03.2006 allowed the appeal preferred by the aboriginal tribe and an order was passed for the reversion of land. The Collector while allowing the review petition re-called its own order and affirmed the order passed by the Sub-Divisional Officer only on the ground that a proceeding was concluded by the Debt Relief Court and again, the same issues are being raised and Samu was not made a party in that proceeding. The authority concerned while allowing the review has not assigned sufficient reasons.

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11. In my opinion, Samu was not a necessary party. Panku sold the subject property to Samu and it is informed that Samu sold the property through a registered sale-deed after obtaining permission under Section 165 (6) of the Code, 1959 to the Chain Sundi (father of petitioner No. 1). If Samu was not arrayed as a respondent in proceeding under Section 170 B of the Code, 1959 and the possession holder were impleaded, in my opinion, it was sufficient compliance of Section 170 B of the Code, 1959.

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12. The respondents preferred an appeal, whereas, they should have preferred a revision before the Commissioner and it was allowed vide order dated 24.06.2013. The Commissioner considered the entire material and recorded the following findings:-

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i. Samu was not a necessary party.

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ii. Initially, an order was passed by the Collector in favour of the aboriginal tribe.

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iii. On the trivial ground, the order passed in Appeal was re-called in the review petition.

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iv. There is a clear finding of the Benami Transaction as the subject property remained in possession of a non-tribe.

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13. In the considered opinion of this Court, no case is made out for interference. Consequently, this petition fails and is hereby dismissed . No cost(s).

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Sd/-Sd/- (Rakesh Mohan Pandey) Judge

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$iddhant

Mukund v. Panku (Died) Through Legal Heirs

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Mukund v. Panku (Died) Through Legal Heirs

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