Madhya Pradesh High Court
Shama Khan vs District Collector (Mining) on 26 April, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 26th OF APRIL, 2024
WRIT PETITION No. 11176 of 2024
BETWEEN:-
BABULAL S/O SHRI RATAN LAL SUTAR, AGED
ABOUT 68 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE POLAY, TEHSIL
BAGLI, DISTRICT DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT RAJ-ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
PRINCIPAL SECRETARY REVENUE
DEPARTMENT VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. ADDITIONAL COMMISSIONER (REVENUE)
UJJAIN DISTRICT UJJAIN (MADHYA
PRADESH)
3. SUB DIVISIONAL OFFICER (REVENUE)
TEHSIL BAGLI, DISTRICT DEWAS (MADHYA
PRADESH)
4. KAMLA BAI S/O RATANLAL SUTAR GRAM
POLAY, TEHSIL - BAGLI, DISTRICT DEWAS
(MADHYA PRADESH)
5. SHANTA BAI D/O RATANLAL SUTAR GRAM
POLAY, TEHSIL - BAGLI, DISTRICT DEWAS
Signature Not Verified
Signed by: PRAVEEN
Signing time: 29-04-
2024 16:49:38
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(MADHYA PRADESH)
6. PREM BAI D/O RATAN SUTAR GRAM POLAY,
TEHSIL - BAGLI, DISTRICT DEWAS (MADHYA
PRADESH)
7. DINESH S/O PANNALAL SUTAR GRAM POLAY,
TEHSIL - BAGLI, DISTRICT DEWAS (MADHYA
PRADESH)
8. RAMESH S/O PANNALAL SUTAR GRAM
POLAY, TEHSIL - BAGLI, DISTRICT DEWAS
(MADHYA PRADESH)
9. DEEPAK S/O KAMAL SUTAR GRAM POLAY,
TEHSIL - BAGLI, DISTRICT DEWAS (MADHYA
PRADESH)
10. KAILASH S/O RATANLAL SUTAR GRAM
POLAY, TEHSIL - BAGLI, DISTRICT DEWAS
(MADHYA PRADESH)
11. GEETA BAI D/O RATANLAL SUTAR GRAM
MATMOR, TEHSIL BAGLI DISTRICT DEWAS
(MADHYA PRADESH)
12. LAXMI BAI D/O RATANLAL SUTAR GRAM
MATMOR, TEHSIL BAGLI DISTRICT DEWAS
(MADHYA PRADESH)
13. BADRILAL S/O BHAGIRATH SUTAR GRAM
BADI, TEHSIL BAGLI DISTRICT DEWAS
(MADHYA PRADESH)
Signature Not Verified
Signed by: PRAVEEN
Signing time: 29-04-
2024 16:49:38
-3-
14. RAJESH S/O BHAGIRATH SUTAR GRAM
BADI, TEHSIL BAGLI DISTRICT DEWAS
(MADHYA PRADESH)
15. PAWAN S/O BHAGIRATH SUTAR GRAM BADI,
TEHSIL BAGLI DISTRICT DEWAS (MADHYA
PRADESH)
16. SUNITA D/O BHAGIRATH SUTAR GRAM
CHOTI KHUDEL MUNDLA, TEHSIL AND
DISTRICT INDORE (MADHYA PRADESH)
17. KALABAI D/O BHAGIRATH SUTAR GRAM
CHOTI KHUDEL MUNDLA, TEHSIL AND
DISTRICT INDORE (MADHYA PRADESH)
18. RUKHMA BAI W/O BHAGIRATH SUTAR
GRAM BADI, TEHSIL BAGLI DISTRICT
DEWAS (MADHYA PRADESH)
19. BONDI BAI W/O BHAGIRATH SUTAR GRAM
BADI, TEHSIL BAGLI DISTRICT DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
( BY MS.ASHI VAIDYA-ADVOCATE)
This petition coming on for orders this day, the court passed the
following:
ORDER
The petitioner has filed the present Writ Petition challenging the order dated 22.02.2024 (Annexure P/1) and order dated 31.08.2018 (Annexure P/2) passed by the respondent No.2 and 3 respectively.
Signature Not Verified Signed by: PRAVEEN Signing time: 29-04- 2024 16:49:38 -4-2. The respondent Nos. 4 to 8 filed an application under Section178 of MPLRC seeking partition of the land bearing survey No.681 area 1.54 hectare. The petitioner appeared in the said proceedings and filed the reply that this land was owned by his mother who has alienated 2 bighas land on his favour by way of notarized agreement. Considering the reply filed by the petitioner and the evidence came on record, the Tehsildar vide order dated 01.02.2018 has dismissed the application for partition on the ground that there is dispute about the title of the land, hence, no partition can be done.
3. The respondents preferred an Appeal under Section 44 of MPLRC, 1959 before the Sub Divisional Officer. Vide order dated 31.08.2018, the learned Sub Divisional Officer set aside the order passed by Tehsildar and remanded the matter back to the Tehsildar to pass an order of partition. Being aggrieved by the aforesaid order, the petitioner preferred a Second Appeal before the Additional Commissioner. The Additional Commissioner vide order dated 22.02.2024 has dismissed the Appeal and maintained the order of Sub Divisional Officer, hence, present Writ Petition before this Court.
4. Shri Amit Raj, learned counsel for the petitioner submits that the Tehsildar rightly declined to entertain an application under Section 178 of MPLRC because there is dispute about the title of the land and respondents have remedy to approach the Civil Court to get the land partitioned. The Tehsildar has also observed that that he is having jurisdiction to partition the agriculture land but there is residential house and tube well in the land and the petitioner is claiming his dispute is title on the basis of Signature Not Verified Signed by: PRAVEEN Signing time: 29-04- 2024 16:49:38 -5- unregistered agreement to sale. The Sub Divisional Officer has no power to remand the matter, therefore, the learned Additional Commissioner has erred in upholding the order of Sub Divisional Officer. In support of contention, he has placed reliance on the judgment passed in case of Kuldeep & Ors.Vs. Hariram and Anr. reported in 2016 SCC Online MP 5768 and Smt. Chetna Dholakhandi & Ors Vs. State of M.P. and Others (Misc. Petition No.1674 of 2021 decided on 09.06.2021).
I have heared learned counsel for the parties and perused the record.
5. The petitioner is disputing the partition of the land on the basis of unregistered agreement to sale deed in his favour in respect of some part of the land of survey No.681. Admittedly, the agreement to sale does not confer the title in favour of the proposed purchasers as held by the Apex Court in case of Sunil Kumar Jain Vs. Kishan and others reported in (1995) 4 SCC 147 as under:-
"Learned counsel appearing for the petitioner contended that the under the agreement of sale dated 5th December, 1981 the respondents had received consideration and kept the petitioner in possession of the land and that, therefore, by operation of s,53-A of the Transfer of Property Act, the petitioner is entitled to the compensation. We are unable to agree with the learned counsel. In a reference, the dispute is to the title to receive the compensation. It is settled law that the agreement of sale does not confer title and, therefore, the agreement holder, even assuming that the agreement is valid, does not acquire any title to the property. It is seen that the agreement is subsequent to the notification under s.4(1). The Signature Not Verified Signed by: PRAVEEN Signing time: 29-04- 2024 16:49:38 -6- Government is not bound by such an agreement. The inter-se dispute is only with respect to the title as on the date of notification under s.4(1). The respondent is the undoubted owner of the property as per s.4 notification and that, therefore, the compensation was directed to be paid to the respondent since he is one of the members. We cannot find any illegality in the order passed by the Courts. However, if the petitioner has got any claim under s.30 of the Land Acquisition Act, it is open to him to take such action as open to him under law."
6. In case of Ghanshyam Vs. Yogendra Rathi (2023) 7 SCC 361 the Apex Court has held as under:
"In this regard, reference may be had to two other decisions of the Delhi High Court in Imtiaz Ali Vs. Nasim Ahmed and G. Ram Vs. Delhi Development Authority4 which inter-alia observe that an agreement to sell or the power of attorney are not documents of transfer and as such the right title and interest of an immovable property do not stand transferred by mere execution of the same unless any document as contemplated under Section 54 of the Transfer of Property Act, 1882, is executed and is got registered under Section 17 of the Indian Registration Act, 1908. The decision of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr.5 also deprecates the transfer of immovable property through sale agreement, general power of attorney and will instead of registered conveyance deed."
Therefore, it is for the petitioner to approach the Civil Court to get title of the land in order to oppose the partition. The unregistered agreement to sale does not confer him any title to oppose the partition. In Patwari report nothing is mentioned about the house and tube well on the land under partition.
Signature Not Verified Signed by: PRAVEEN Signing time: 29-04- 2024 16:49:38 -7-7. So far as power of Appellate Authority to remand the matter is concerned, under Section 49 (3) of MPLRC says that after hearing the parties the Appellate Authority may confirm, vary or reverse the order appealed against or may take such additional evidence as it may consider necessary for passing its order. So far as matter of partition is concerned, the Tehsildar is a Competent Authority to pass an order of partition the agriculture. Even if the Sub Divisional Officer set asides the order and held that the land is liable to be partitioned then fresh application is liable to be filed before the Tehsildar by parties, therefore, restoration of the application which has earlier been dismissed or remand or filing an fresh application are the same thing because setting aside the order by the Appellate Authority gives right to the parties to apply for partition under Section 178 of MPLRC before the Tehsildar. In order to get the land partisoned amongs co-sharer, filing of the application under Section 178 of MPLRC is the only remedy. The petitioner has no right to object the partition on the basis of unregistered documents which nowhere confer title upon him. Unless he gets title of the land on the basis of said agreement, he has no right to oppose the partitions proceedings.
In view of above, Writ Petition is dismissed. The petitioner is free to avail the remedy available under the law.
(VIVEK RUSIA) JUDGE Praveen Signature Not Verified Signed by: PRAVEEN Signing time: 29-04- 2024 16:49:38