Madhya Pradesh High Court
Smt. Laxmi vs Geeta on 27 July, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR
SHRIVASTAVA
MISCELLENOUS PETITION 6742 OF 2019
Between:-
1. SMT. LAXMI, WIFE OF MURARI
AHIRWAR
2. SMT. MAMTA, WIFE OF SHRI
SURESH AHIRWAR
BOTH ARE RESIDENTS OF
LAMAICHA, TAHSIL & DISTRICT
DATIA (MP)
.... PETITIONERS
(SHRI ARVIND DUDAWAT- SENIOR ADVOCATE
WITH SHRI ARUN DUDAWAT- ADVOCATE FOR
THE PETITIONERS)
AND
1. GEETA, WIFE OF MATADEEN
AHIRWAR,
2. SMT. LAXMI, WIFE OF SHRI
SITARAM AHIRWAR,
3. INDARSHAN, SON OF SHRI
MANIRAM AHIRWAR
ALL ARE RESIDENTS OF
RAMNAGAR COLONY, JHANSI
ROAD, DATIA (MP)
-------RESPONDENTS
(SHRI V.K. BHARDWAJ- SENIOR COUNSEL WITH
SHRI ROHIT BATHAM- ADVOCATE FOR THE
RESPONDENTS)
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2
Reserved on : 14-07-2022
Passed on : 27-07- 2022
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The petition coming on for final hearing, Hon'ble Shri
Justice Rajeev Kumar Shrivastava, passed the following:-
ORDER
The present miscellaneous petition under Article 227 of Constitution of India has been filed by petitioners, challenging the order dated 06-11-2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Appeal No.96/2018-19 whereby considering the principle of res judicata the orders passed by authorities below, have been set aside.
(2) Facts giving rise to present petition, in short, are that the petitioners had purchased an agricultural land bearing survey no. 265, Min 2, area 0.166 hectare situated at Patwari Halka No.53, Village Ramnagar, District Datia by registered sale deeds Annexures P2 and P3. As there was a dispute in respect of aforesaid agricultural land, the petitioners applied for partition by filing an application u/S 178 of MPLRC before Tahsildar. Respondents No.1 and 2 filed their objection before the Tahsildar stating therein that as the houses are constructed on the aforesaid 3 disputed land, therefore, partition could not be possible. The Tahsildar vide order dated 05-03-2018 rejected the application for partition. Again, the petitioners applied for partition by filing an application before the Tahsildar and the Tahsildar passed an order of partition on 28-05-2018 and a Fard Batwara was prepared. In the meanwhile, the Tahsildar passed an interim order dated 12-04- 2019 thereby restraining the respondents from encroachment over the disputed land. Being aggrieved, respondents filed an appeal under Section 44(1) of MPLRC before the SDO and the same was dismissed vide order dated 24-12-2018. Being aggrieved, the respondents filed a second appeal under Section 44(2) of MPLRC before the Additional Commissioner, Gwalior Division, Gwalior and the Additional Commissioner vide impugned order dated 06- 11-2019 set aside the orders passed by the authorities below considering the principle of res judicata. (3) It is contended on behalf of petitioners that the order of partition has been passed by Tahsildar after giving opportunity of hearing to parties in accordance with provisions contemplated under the MPLRC. It is submitted that before the authority below, Khasra and spot map of year 2016-17 were filed. Halka Patwari 4 has endorsed names of respondents i.e.Geeta, wife of Matadeen Ahirwar, Smt. Laxmi wife of Sitaram Ahirwar and Indarshan, son of Maniram Ahirwar and accordingly, a fard batwara was got prepared and it was published. It is contended that after hearing the parties, the Tahsildar has given an observation that earlier, the application for partition is not barred by Section 11 of CPC. Being dissatisfied with the order of Tahsildar, respondents filed an appeal before the SDO under Section 44(1) of MPLRC and the same was also dismissed by SDO vide order dated 24-12-2018. It is further contended that against the orders passed by authorities below, the respondents filed an appeal before the appellate authority i.e. Additional Commissioner, who by its order dated 06-11-2019 set aside the order passed by authorities below by observing that as the houses were constructed over the disputed land, the partition could not be possible. It is contended that the impugned order passed by the appellate authority is illegal and contrary to law without recording any reason for reversing the findings of authorities below. It is further contended that since partition is a recurring cause of action, therefore, merely because previous application got dismissed, the subsequent application is 5 duly maintainable as per the provisions of Section 178 of MPLRC because the partition is a redistribution or adjustment of pre-existing among the co-owners resulting in division of land jointly held by them into different lots or portions thereby resulting in severalty of share vest in them. Hence, it is prayed that impugned order passed by the Additional Commissioner deserves to be set aside.
(4) On the other hand, learned senior counsel appearing for the respondents opposed the contentions of petitioners and supported the impugned order passed by second appellate authority i.e. Additional Commissioner while setting aside the impugned orders passed by the authorities below.
(5) Heard learned counsel for the rival parties and perused the impugned orders as well as documents available on record.
(6) Section 11 of CPC reads as under:-
11. Res judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and 6 finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .
[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.'' (7) The Hon'ble Apex Court in the case of Shub Karan Bubna 7 vs. Sita Saran Bubna (2009) 9 SCC 689 has held as under:-
''5. ''Partition'' is a re-distribution or adjustment of pre-existing rights, among co-owners/ coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co-
owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.'' (8) On perusal of record, it is apparent that the dispute with regard to partition is still in existence and the rights of the parties have to be decided. There is a limited jurisdiction whenever any application is filed u/S 178 of MPLRC. Proviso to Section 178 of MPLRC runs as under:-
''178. Partition of holding.-- (1) If in any 8 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.] 10[(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 Talisildar 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.
(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] [(4) x x x] [(5) x x x] 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] (9) On bare perusal of proviso to Section 178 of MPLRC, it is clear that if any question of title is raised, the Tahsildar shall stay the proceedings before him for a period of three months in order to facilitate the institution of a civil suit for determination of 9 question of title. As reflected from the record that as the houses were constructed over the disputed land, the partition could not take place, therefore, the Tahsildar was required to comply with provisions of Section 178 of MPLRC. Therefore, the order passed by the authority below is hereby quashed. The parties are hereby directed to seek relief by filing a civil suit before the competent Court of civil jurisdiction within a period of three months from the date of receipt of certified copy of this order. (10) With aforesaid observation, this miscellaneous petition stands disposed of.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.07.27 17:35:53 +05'30'