Holding

The Supreme Court held that the land in dispute is different from that covered by the 1954 Jagir Commissioner’s order, so res‑judicata does not apply; the appellants never acquired a lawful right to claim mutation, their application was barred by time and amounted to an abuse of process, and the Board of Revenue exceeded its revisional jurisdiction.

Issues considered

The applicability of the principle of res judicata to the present mutation claim
Whether the appellants had lawfully acquired a right to claim mutation under Section 109 of the Madhya Pradesh Land Revenue Code, 1959
Whether the mutation application filed after several decades was barred by the statutory limitation period
The jurisdiction of the Board of Revenue to direct a roving enquiry under Section 50
The adequacy of the appellants’ remedy under Section 116 of the Madhya Pradesh Land Revenue Code

Legislation cited

Madhya Pradesh Land Revenue Code, 1959s. 109, s. 116, s. 117, s. 50, s. 57(2)(3)

Subjects

mutationland revenueres judicataabuse of processleaselesseeSection 109Madhya PradeshBoard of Revenuerevisionland records

Judgment

,,

BEGUM SURAIYA RASHID AND ORS. A
v.
STATE OF MADHYA PRADESH AND ORS.

FEBRUARY 20, 2006

[H.K. SEMA AND DR. AR. LAKSHMANAN, JJ.) B

Madhya Pradesh Land Revenue Code, 1959-Sections 109, 116, 117-
Land recorded in name ofjail department given on lease-Lessee applying for
its mutation based on a decree in a suit, and in response to challenge to grant C
ofmutation, pleading res-judicata-He/d: As the land involved in the suit had
different location and area from the impugned land, challenge to grant of
mutation could not be defeated by plea of res-judicata-Mutation could not
be granted as lessee had accepted that the land belonged to the jail department
and did not challenge entry in revenue records in the name of latter-Otherwise
also, application for mutation made after decades ofpassing of decree in the D
Suit, was abuse of process of law as such application was to be made within
sir months from date of lawful acquisition of rights.

-> The impugned land measuring 59.17 acres in Khasra Nos. 943, 960,
961 and 962 was recorded in the name of jail department since the year
1935. It was given on lease to predecessors of appellants. However, in the E
year 1989, relying on a decree of Jagir Commissioner dated 2-3-1954 in a
suit filed by them, they filed an applicatioi, for mutation of this land before
the Naib Tahsildar under Section 109 of the Madhya Pradesh Revenue
Code, 1959. This application was allowed on 29-1-1990. But in an enquiry
ordered by Collector of the area, the Naib Tahsildar was held guilty of F
improper mutation. Thereafter Appellant authority set aside order of
mutation. Against this, in a revision preferred by appellants before Board
of Revenue under Section 50 of the Code, an enquiry was ordered and
report asked for. However, High Court set aside this order. Hence the
present appeal.
G
Aside from the above, in proceedings initiated in 1981 under Section
248 of the Code, for eviction of the appellants from the impugned lands,
\ they were declared trespassers. Order o~heir eviction passed by the
-I,
' Tahsildar on 16-9-1981 was confirmed by SDO, thereafter by

379 H
t
380 SUPRE\fE COURT REPORTS [2006] 2 S.C.R.

A Commissioner in second a1ppeal and subsequently by Government,
whereby it attained finality. v-,
Appellants contended that the present proceedings revolve around
decree of Jagir Commissioner dated 2-3-1954 and were barred by principle
of res-judicata., especially as that decree had been affirmed by High Court
B and Supreme Court. RespoTitdent Government contended that the decree
of the Jagir Commissioner did not include the area of the land in the
present dispute.

Dismissing the appeal, the Court

C HELD: 1. From the order of the Jagir Commissioner it is clear that
the land involved in that earlier suit was in Khasara Nos. 72/1, 73, 74, 75
and 76 in village Dharampuri and the area of land is 7.26 acres.
Undisputedly, the land involved in the present dispute relates to Khasra
Nos. 943, 960, 961 and 962 of Jahangirabad area of Bhopal city measuring
D 59.17 acres. While it is true that tin issue No. 9 in the said suit reference
was made to the order passed by the Jagir Commissioner on 2-3-1954
which was decided was not covered by the Jagir Commissioner's order
dated 2-3-1954. The land in the present dispute is distinctly different from )..
the point of view of the location of the land and Khasra Nos. from the •·
subject matter of earlier suit. Therefore, by no stretch of imagination, it
E can be said that the present dispute is hit by the principle of res-judicata
in view of the decision rendered in Civil Suit No. 180-A/84, whic_h has
attained finality. [384-C-F)

Dhanvanthakumariba v. State of Gujarat, (2004) 8 SCC 121, Mahi/a
F Bajrangi v. Badribai, (2003) 2 SCC 464 and Phool Pata v. Vishwanath Singh,
(2005) AIR 3575, held inapplicable.

2.1. It is clear that the land in dispute was recorded in the name of
jail department since from 1935 till 1989, when for the first time the
appellants filed an application for mutation. (383-F)
G 2.2. The appellants accepted that the land belonged to the jail
department and they were only the lessees paying rent of Rs. 375 to the
jail department. In alJ the correspondence not even a reference was made
to the order dated 2.3.1954 passed by the Jagir Commissioner. (386-H) •I
H 2.3. If the appellants were aggrieved by the entry of the Khasra Nos.
)
BEGUM SURAIYA RASHID"· STATE OF MADHYA PRADESH 381
in the name of jail department since from 1935, they could have raised A
the dispute under Section 116 of Madhya Pradesh Land Revenue Code,
1959 to the Tahsildar for its correction within one year from the date of
such entry. Section 117 of the Code raises a presumption as to entries in
land records being correct until the contrary is proved. Having not availed
the aforesaid provisions of law, the only remedy that was open to the B
appellants was under Section 57(2)(3) of the Code. (387-G-H; 388-AI

3. The power under Section 109 of Madhya Pradesh Land Revenue
Code, 1959 can only be exercised by the authority in respect of any person
lawfully acquiring a right and such application shall also be filed within
six months from date of such acquisition. In the instant case, the land in C
question was never lawfully acquired by the appellants as they were only
the lessees paying Rs. 375 to the jail authorities and there was no questfon
of lawfully acquiring any right as contemplated under Section 109 of the
Code. This apart, right if any, is acquired lawfully by any person, such
application must be made within six months from date of such acquisition D
and therefore application made for the first time in 1989 under Section
109 of the Code purportedly on the basis of the order dated 2-3-1954
pa~sed by the Jagir Commissioner was clearly an abuse of the process of
law. (386-H; 387-A-C)

4. The Board of Revenue erroneously called for the report again by E
directing a roving enquiry. As was pointed out by the High Court, the
Board of Revenue exercised revisional powers which is patently erroneous,
contrary to law and it transgressed its revisional jurisdiction by calling
report from the Tahsildar despite the impeccable facts available on the
record. Thus the High Court was justified in setting aside the said order.
F
(389-B-C)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1196 of2006.

From the Judgment and Order dated 27.10.2005 of Madhya Pradesh
High Court in Writ Petition No. 45/2001. G
Ms. Tasneem Ahmadi, Sudhir Kumar Gupta, Anurag Pandey, Ms.
Anuradha Thakur, Ms. Deepti Nar and Mukesh Kumar for the Appellant.

Dushyant Dave, Ms. Vibha Datta Makhija for the Respondents.
H
The Judgment of the Court was delivered by
382 SUPREME: COURT REPORTS (2006] 2 S.C.R.

A H.K. SEMA, J. Leave granted

The facts of this case revolves as to how the appellants clandestinely
and by suppressing the facts tried to grasp the public land measuring 59.17
acres in Khasra Nos. 943, 960, 961, 962 of Jahang1rabad ( Jail Bag) area of
Bhopal city under the guise of order dated 2.3.1954 passed by the Jagir
B Commissioner in respect of land !n Khasra Nos.72/1, 73, 74, 75, 76 in village
Dharampuri.

The facts of this case are c:umbersome and may be recited briefly and
strictly for the purpose of disposal of this appeal. The present disputed land
C measuring 59.17 acres in Khasra Nos.943, 960, 961 and 962 was recorded in
the name of jail department and situated in the area of Bhopal city near the
Arera Hills in front of old jail premises since 1935. It appears that the area
was developed as a ga1den having trees of Mangoes, Jamun, Lemon etc. and
the same was used to let out to different contractors and the property was
managed from the income received from the fruits grown in the garden. No
D revenue was assessed on that mcome as the land belonged to the State
Government. It is not disputed that the said land was given on lease to one
Shri Bhawani Singh and Shri Jameel Ahmed by the Superintendent of Jail for
._consideration of Rs.375/- per annum. Subsequently one Shri Rashiduzzafar
Khan, the predecessor of the appellants, obtained a deed of relinquishment in
E his favour from the lessees Bhawani Singh and Jameel Ahmed. This was
done without the concurrence and consent of the Government. Rashiduzzafar
Khan continued using the land in the capacity of lessee and used to pay
annual rent at the rate of Rs.37 5/-.

Rashiduzzafar Khan, prndecessor of the appellants submitted an
F application in August, 1960 to the Government for recording his name as a
Bhumiswami in respect of the said land in Khasra Nos.943, 960, 961 and
962. The same was, however, r1~jected by an order-dated 5.8.1962. Another
application filed by the appellants herein was rejected on 29th/30th January,
1965 on the ground that the land in question was recorded in the name of jail
G department.
Thereafter, a proceeding under Section 248 of the Madhya Pradesh
Land Revenue Code, 1959 (hereinafter referred to as 'the Code') was initiated
for eviction of the appellants in 1981. It was held that the appellants were the
-
trespassers and order of eviction was passed by the Tahsildar on 16.9.1981.
H The Tashildar's order was challenged before the SDO which was dismissed
BEGUM SURAIY A RASHID 1·. STATE OF MADHYA PRADESH [SEMA, J.] 383
on 19.3. 1985. SDO's order was challenged before the Commissioner in second A
appeal and the same was dismissed by the Commissioner on 29.6.1989. The
order of the Commissioner was challenged by filing M.P. No.3978 of 1991,
which was dismissed as withdrawn on 25.4.1998. Thereafter, the
Commissioner's order was assailed before the Revenue Minister and he
directed an enquiry in the matter and the said order was set-aside by the B
Government by its order dated 1.11.1991 on the ground that the Revenue
Minister had no jurisdiction to pass such an order. This would show that the
order of eviction passed by the Tahsildar on 16.9 .1981 attained its finality.

Another attempt was made by the appellants by filing application under
Section 57(2) of the Code on 14.11.1983 praying inter alia to declare C
Bhumiswami rights in their favour. The said application was filed before the
SDO, Bhopal, on the basis of the registered deed dated 6.4.1940 executed by
Bhawani Singh and Jameel Ahmed. This application was, however, not pursued
by the appellants.

Thereafter, the appellants filed civil suit No.159-A/84 in. the Court of D
District Judge, Bhopal. In the said suit the State Government filed the written
statement. The said suit was dismissed on withdrawal on 1.7.1998.

~ Thereafter, the appellants filed an application for mutation before the
Naib Tahsildar in 1989. The said application was allowed by the Tahsildar
on 29.1.1990. Suo Motu proceedings were drawn by the Collector, Bhopal on E
3.8.1990. An enquiry was ordered against the Naib Tahsildar and by an
enquiry report dated 27 .4.1994 the Naib Tashildar was held guilty of ordering
mutation improperly.

From the aforestated facts it clearly appears that the land in dispute was
recorded in the name of jail department since from 1935 till 1989, when for F
the first time the appellants filed an application for mutation.

At this stage, we may dispose of one of the arguments of Mr. Rohtagi
learned senior counsel for the appellants. It is contended that pursuant to the
Jagir Commissioner's order dated 2.3.1954 Civil Suit No.180-A of 1984 was G
filed by the appellants which was decreed by the 1rial Court and affirmed by
the Division Bench on 17.4.1987 and SLP against the same was dismissed on
6.5.1988. Therefore, the present dispute is barred by the principle of res
,.J judicata. He specifically referred to issue No.9 in the said suit. It reads:-

"Whether the order dated 02.03.1954 of the Jagir Commissioner is H
384 SUPREME COURT REPORTS [2006[ 2 S.C.R.

A contrary to law and void?"

According to Mr. Rohtagi. the order of Jagir Commissiner dated 2.3.1954
was on one of the issues in suit No.180-A/84 which has been decreed in
favour of the appellants and since the present case also revolves around the
order dated 2.3.1954 passed by the Jagir Commissioner the present dispute
B in hand is barred by the principle of res judicata.

In our view, this submission is misconceived. It is not disputed by the
respondents that the decree in Civil Suit No.180-A/84 passed in favour of the
present appellants has attained finality, SLP being dismissed on 6.5.1988. It ..
is, however, to be noted that it is the specific case of the respondent-
C Government that the order of the Jagir Commissioner dated 2.3. I 954 which
was the subject matter of Civil Suit No. 180-A/84 does not include the area
of the land in the present dispute. From the order of Jagir Commissioner as
quoted by the Trial Comt it clear!)' appears that the land involved in the
earlier suit was in Khasra Nos. 72/1, 73, 74, 75 and 76 in village Dharampuri
D and the area of land is 7.26 acres. Undisputedly, the land involved in the
present dispute relates to Khasra Nos.943, 960, 961 and 962 of Jahangirabad
area of Bhopal city measuring 59.17 acres. While it is true that in issue No.9
in the said suit reference was made to the order passed by the Jagir
Commissioner dated 2.3.1954 which was decided in favour of the appellants
but the land in the present dispute was not covered by the Jagir Commissioner's
-
E order dated 2.3.1954. As ~(ready noticed the land in the present dispute is
distinctly different from the point of view of the location of the land and
Khasra Nos. from the sub~'ect matter of earlier suit. Therefore, by no stretch
of imagination, it can be said that the present dispute is hit by the principle
of res judicata in view of the decision rendered in Civil Suit No.180-A/84,
p which has attained finality. In this connection, reliance has been placed by
Mr. Rohtagi on the cases of Dhanvanthkumariba v. State of Gujarat, (2004]
;...
8 SCC 121, Mahi/a Bajrangi v. Badribai, (2003] 2 SCC 464 and Phool Pata
v. Vishwanath Singh. (2005) AIR 3575. These decisions are of no assistance
to the appellants' case.

G Next, Mr. Rohtagi referred to the provisions of the Bhopal Abolition of
Jagirs and Land Reforms Act, 1953 (in short the Act), in particularly Section
4, Section 5, sub-section l(b) of Section 6, Sub-section (2) of Section 6,
Section 17 and Section 27. According to Mr. Rohtagi, no appeal has been
preferred by the State Government against the Order of the Jagir Commissioner
H dated 2.3.1954 as provided under Section 27 of the Act. The order passed by
I
->
I

BEGUM SURAIYA RASHID r. STATE OF MADHYA PRADESH [SEMA, J] J 85

the Jagir Commissioner has become final. This contention would be of no A
help to the appellants' case. We have already held that the Jagir
Commissioner's order dated 2.3.1954 does not refer to the land in dispute in
the present case measuring 59. 17 acres. We have also held that the land in
question has been recorded in the name of jail department in revenue records
since from 1935. It was never Jagirs land prior to the enforcement of abolition B
of Jagirs Land Refonns Act That the land in question was not covered by
the Jagir Commissioner's order dated 2.3.1954 has been accepted by the
appellants by their own conduct

That the land in the present dispute is not a part of the order dated
2.3.1954 passed by the Jagir Commissioner is also fortified by the following C
facts which we will be reciting presently.

In the Civil Suit No. 159-A/84 filed by the appellants, inter alia prayed
the following relief:

"(A) A decree for declaration be passed in favour of the plaintiffs and D
it be decreed that the plaintiffs have become Bhumiswamis and owners
of the suit lands situated in Bhopal town at Hoshangaband Road
mentioned in Khasra Nos. and area as shown below:-
Khasra Nos. Area
943 25.92
960 12.39 E
961 7.23
962 13.63
Total: 59. 17 acres.
In the said suit, the appellants admitted in paragraph 5 that Bhawani Singh
and Jameel Ahmed used to send Rs.375/- to jail deparirnent which was paid F
by late Nawab Rashid Uz- Zafar Khan from 1940 till his death, and after his
death in 1961 the plaintiffs reunited the amount till 1978, when the jail
department refused to accept the payment

In paragraph 11 it is stated that the Naib Tahsildar, Nazul, Bhopal
passed an order dated 16th September, 1981 evicting the plaintiffs from the G
land which has attained finality. As already noticed the sui~ was withdrawn
by the appellants and was dismissed on withdrawal on 1.7.1988.

In paragraph 22 of the plaint, the plaintiffs averred that they paid income
tax and wealth tax on the stud and agricultural fann and it was assessed by H
386 SUPREME COURT REPORTS (2006] 2 S.C.R.

A the Income Tax and other Taxation authorities. In the return filed by the
appellants on 8.6.1968 in paragraph 5 (Jail Bagh Farm), the appellants admitted
that they are only lessees of the land and that they paid a rent of Rs.375/- per
annum to the jail department of M.P.

In the application filed before the SDO by the appellants on 14.11.1983
B it is also admitted. in pargraph 5 that late Rashiaz Zaffar Khan used to send
Rs.375/- yearly in the lease:d account to the jail department. In the said
application Khasra Nos.943, 960, 961 and 962 and total area of the land
measuring 59.17 acres are shown. A prayer was made that the appellants be
declared as Bhumiswami of the disputed lands.
..
c In the letter dated 30. 7 .1968 counsel for the appellants addressed to the
Assistant Controller of Estate Duty, Indore, in connection with the estate duty
of Late Nawabzada Rashiduzzafar Khan, it is stated in paragraph 4 of the
letter as under:-

"Jail Bag Farm:
D
Copy of the Khasra in respect of Jail Bag Land, Khasra Nos. 943,
960, 961 and 962 of village Shahar is enclosed. As this land is owned
by the Jail Department, as per land records, it is called Jail Bag
Farm. Our client pays rent of Rs.3751- per annum to the Jail
Department of M.P. in respect of this land owned by the Jail
E
Department. "

(emphasis supplied)

In the letter dated 18.10.1962 written by the Chartered Accountant of
F the appellants to the Deputy Controller of the Estate Duty, it is stated in 3.9
that Stud Farm (Jail Bagh) s1canding in the area of about 59 acres, which is
used for breeding of horses, and that land does not belong to the owners.

The facts as adumbrated above would clearly show that all along the
appellants accepted that the land belonged to the jail department and they
G were only the lessees paying rent of Rs.375/- to the jail department. In all the
correspondences as recited above not even a reference was made to the order
dated 2.3.1954 passed by tht: Jagir Commissioner.

For the first time in 1989 an application was made under Section I 09 ..,.
of the Code for mutation purportedly on the strength of the order dated
H 2.3.1954 passed by the Jagir Commissioner. The power under Section I 09
BEGUM SURAIYA RASHID v. STATE OF MADHYA PRADESH [SEMA. J.] J 87
can only be exercised by the authority in respect of any person lawfully A
acquiring a right and such application shall also be filed within six months
from the date of such acquisition. In the instant case, as already noted, the
land in question was never lawfully acquired by the appellants as they were
only the lessees paying Rs.375/- to the jail authorities and there was no
question of lawfully acquiring any right as contemplated under Section I 09 B
of the Code. This apart, right if any, is acquired lawfully by any person, such
application must be made within six months from the date of such acquisition
and therefore application made for the first time in 1989 under Section 109
of the Code purportedly on the basis of the order dated 2.3.1954 passed by
the Jagir Commissioner was clearly an abuse of the process of law.

We may now make a quick survey of the relevant Sections of the Code,
c
for the purpose of disposal of the case at hand.

Chapter IX, Section I 04 of the Code deals with the land records.

Section I 08 of the Code deals with the record of rights and shall include
D
the following particulars:

--t (b) the names of all occupancy tenants and Government lessees
~ together with survey numbers or plot numbers held by them and their
area, irrigated or unirrigated;

Section 117 of the Code deals with the presumption as to entries in land
E
records and it provides that all entries made under this Chapter in the land
records shall be presumed to be correct until the contrary is proved.

Section 114 of the Code deals with the land records and it provides that
in addition to the map there shall be prepared for each village a khasra or F
field book.
-+
Section 116 deals with the disputes regarding entry in khasra or in any
other land records and it provides that if any person is aggrieved by an entry
made in the land records prepared under Section 114 he shall apply to the
Tahsildar for its correction within one year of the date of such entry. G
In the present case Khasra Nos. were entered in the name of jail
) department since from 1935 and if the appellants were aggrieved they could
' have raised the dispute under Section ll 6 to the Tahsildar for its correction
within one year from the date of such entry. As already noted Section 117
raises a presumption as to entries in land records being correct until the H
t
388 SUPREME COURT REPORTS (2006 J 2 S.C.R.

A contrary is proved. Having not availed the aforesaid provisions of Law, the
y-
only remedy that was open to the appellants was under Section 57(2)(3).

Section 57 Chapter VI of the Code deals with the land and land revenue.
It provides that all lands belong to the State Government, and all such lands
including standing and flowing water, mines. quarries, minerals and forests
B reserved or not, and all rights in the· sub-soil of any land are the property of
the State Government. Prov ,so to Section 57 provides that the Section shall
not affect any rights of any person subsisting at the coming into force of this
Code in any such property. Sub-section 2 of Section 57 provides that if any
dispute arises between the State Government and any person in respect of
C any right under sub-section (I) such dispute shall be decided by the Sub-
divisional Officer. Further, sub-section 3 provides that if any pc:rson is
aggrieved by any order passed by the SDO under sub-section 2 be may file
a civil suit to contest the v<.lidity of the order within a period of one year
from the date of such order

D As already noticed the appellants filed a Civil Suit No.159-A/84 and it
was dismissed on withdrawa1l on 1.7.1998.

As already noted on application being filed by the appellants in 1989,
the Tahsildar by ex-parte orc1er dated 29.1.1990 ordered the land in question
to be mutated in the name of the appellants. The Tahsildar in his order also
E noticed that the name of the jail department is mentioned in the land records.
However, the order was passed ex-parte on the ground that despite several
letters sent to the jail depa11ment none appeared on its behalf. We have
already noted that the order passed by the Naib Tahsildar dated 29.1.1990
was an abuse of the proces:; of law. The said order was set-aside by the
F Appellate Authority, in our view, rightly by a detailed order passed on
24.6.1996. Aggrieved thereby a revision under Section 50 of the Code was
preferred before the Board of Revenue. Section 50 reads:-

"50. Revision.-( I) The Board (or the Commissioner)/(x xx) or the
(Settlement Commissioner or the Collector or the Settlement Officer)
G may at any time on its/his motion or on the application made by any
party for the purpos·~ of satisfying itself/himself as to legality or
propriety of any order passed by or as to the regularity of the
proceedings of any Revenue Officer subordinate to it/him call for,
and examine the record of any case pending before, or disposed or by
such officer, and may pass such order in reference thereto as it/he
H
-)
BEGUM SURAIYA RASHID I'. STATE OF MADHYA PRADESH [SEMA,J.] J 89

thinks fit: A
On a cursory reading of Section 50 it postulates that the Board of Revenue
would exercise revisional powers if the revenue officer subordinate to it,
appears to have ·exercised a jurisdiction not vested in it by law or to have
failed to exercise a jurisdiction so vested or to have acted in the exercise of
its jurisdiction illegally or with material irregularity. In the instant case, the B
Board of Revenue erroneously called for the report again by directing a
..J roving enquiry. As was pointed out by the High Court, the Board of Revenue
·exercised revisional powers which is patently erroneous, contrary to law and
it transgressed its revisional jurisdiction by calling report from the Tahsildar
despite the impeccable facts available on the record. Thus, the High Court C
was justified in setting-aside the said order.

Even in the report submitted by the Naib Tahsildar on 7.9.1996 it is
stated as under:

"In the Patwari record 1995-96 Khasra No.943, area 25.92 Khasra D
No.9~0, area 12.39, Khasra No.961 area 7.23, Khasra N.o.962 area
13 .63, on total 59 .17 acre in the Khasra, Department ofJail is recorded
But at the place Stud Farm is constructed."

(emphasis added )

The report shows that the land in dispute was clearly recorded in the revenue E
records in the name of jail department and'the board ofrevenue acted contrary
to the facts in ordering mutation to be carried out in favour of the appellants.
It is unfortunate.

In the facts and circumstances this appeal is devoid of merits and F
deserves to be dismissed which we hereby do. Considering the fact that the
appellants were suppressing the facts at every stage of proceeding, we deem
it necessary that the appeal deserves to be dismissed with costs which we
quantify at Rs.10,000/- (Rs.Ten Thousand Only). The appeal is dismissed
with costs.
G
V.S. Appeal dismissed.
\

'