Madhya Pradesh High Court
Rajendra Singh (Decd.) Through Lrs. ... vs Revenue Department on 21 May, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT PETITION No. 20411 of 2020
BETWEEN:-
RAJENDRA SINGH (DECD.) THROUGH LRS. SMT.
SURAJ KUNWAR W/O LATE SHRI RAJENDRA
1. SINGH OCCUPATION: AGRICULTURIST VILLAGE
KANKRIYA, TEHSIL KHILCHIPUR, DIST.
RAJGARH (MADHYA PRADESH)
RAJENDRA SINGH (DECD). THROUGH LRS. SHRI
RAGHVENDRASINGH S/O LATE SHRI RAJENDRA
2. SINGH R/O: VILLAGE KANKARIYA TEHSIL
KHILCHIPUR DISTRICT RAJGARH (MADHYA
PRADESH)
RAJENDRA SINGH (DECD). THROUGH LRS. SHRI
VIJENDRA SINGH S/O SHRI RAJENDRA SINGH
3.
R/O: VILLAGE KANKARIYA TEHSIL KHILCHIPUR
DISTRICT RAJGARH (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ROHIT KUMAR MANGAL - ADVOCATE)
AND
REVENUE DEPARTMENT PRINCIPAL SECRETARY
1. MANTRALAYA VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
COMMISSIONER (REVENUE) BHOPAL DIVISION
2.
BHOPAL (MADHYA PRADESH)
SUB DIVISIONAL OFFICER (REVENUE) SUB
DIVISION KHILCHIPUR JEERAPUR DISTT.
3.
RAJGARH (MADHYA PRADESH)
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 22-05-2024
11:40:01
2
TEHSILDAR TEHSILDAR KHILCHIPUR , DISTT. -
4.
RAJGARH (MADHYA PRADESH)
SMT. SAJJAN KUNWAR W/O LATE SHRI KESHAR
SINGH R/O: VILLAGE KANKARIYA TEHSIL
5.
KHILCHIPUR DISTRICT RAJGARH (MADHYA
PRADESH)
DEVENDRA KUNWAR S/O LATE SHRI KESHAR
SINGH R/O: VILLAGE KANKARIYA TEHSIL
6.
KHILCHIPUR DISTRICT RAJGARH (MADHYA
PRADESH)
DHANRAJ KUNWAR D/O LATE SHRI KESHAR
SINGH R/O: VILLAGE KANKARIYA TEHSIL
7.
KHILCHIPUR DISTRICT RAJGARH (MADHYA
PRADESH)
SHRI YOGENDRA SINGH S/O LATE SHRI KESHAR
SINGH S/O SHRI NARYAN SINGH(ADOPTED SON)
8.
R/O: VILLAGE KANKARIYA TEHSIL KHILCHIPUR
DISTRICT RAJGARH (MADHYA PRADESH)
SHRI MAHENDRA SINGH S/O SHRI KESHAR
SINGH R/O: VILLAGE KANKARIYA TEHSIL
9.
KHILCHIPUR DISTRICT RAJGARH (MADHYA
PRADESH)
.....RESPONDENTS
( RESPONDENTS/STATE BY SHRI TARUN KUSHWAH - GOVT.
ADVOCATE AND RESPONDENT NO.8 BY SMT. SWATI UKHALE -
ADVOCATE)
.................................................................................................................
Reserved on : 07.05.2024
Pronounced on : 21.05.2024
................................................................................................................
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
ORDER
1. By this petition preferred under Article 226 of the Constitution of Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 22-05-2024 11:40:01 3 India the petitioners have challenged the order dated 11.12.2020 (Annexure P/1) passed by the Commissioner, Bhopal Division, Bhopal, whereby the appeal preferred by respondents 5 to 9 against the order dated 14.09.2020 passed by the Sub Divisional Officer, Khilchipur Jeerapur, District Rajgarh has been allowed. By the said order the Sub Divisional Officer had allowed the appeal preferred by the petitioners against the order dated 01.09.2005 passed in namantaran panji No.14, Gram Kankriya, P.S. No.26, Khilchipur, Rajgarh and had set aside the partition order passed in the same.
2. On the basis of a partition effected in the family, respondents 5 to 8 had approached the Tehsildar, Pargana Khilchipur. By order dated 01.09.2005 passed in namantaran panji No.14 the Tehsildar had directed for partition of the lands in dispute. A perusal of the said order shows that on the basis of a partition deed application for mutation was filed before the Tehsildar under Section 109, 110 of M.P. Land Revenue Code, 1959. However the order which was passed was in the nature of approving partition. The order records that on the basis of registered partition deed, partition is accepted and thereafter the revenue record has been directed to be corrected. The order which has hence been passed is a partition order.
3. This Court in Kamla Prasad and Others M.P. No.5885/2019, by order dated 18.07.2022 has already held that there is no provision for effecting partition on namantaran panji which can be done only upon Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 22-05-2024 11:40:01 4 filing of an application under Section 178 of the Code, 1959. It has been held as under :-
"In the M.P. Land Revenue Code, 1959, there is no provision for effecting partition on Namantaran Panji and the partition can be made only upon filing application under Section 178 of the MPLRC by any of the co-tenure-holders, that too after following the Rules framed under Section 178 of the MPLRC, which are reproduced as under:
RULES REGARDING PARTITION OF HOLDING (Under Section 178) [Notification No.199-6477-VII-N(Rules), dated the 6th January 1960] "1. (1) An application by a co-tenure-holder for partition of his share in the holding under Sub-Section (1) of section 178 of the Madhya Pradesh Land Revenue Code, 1959, shall contain the following particulars:-
(a) the area of each field constituting the holding and numbers borne by each of them in the village Jamabandi or Record-of-Rights;(b) the land revenue of the holding and the right in which it is held;
(c) the names of the co-tenure-holders and the extent of their shares.
(2) The application shall be accompanied by a copy of entries in the latest Jamabandi or Record-of-Rights.
2. On receipt of the application the Tahsildar shall hear the applicant in person and if after hearing the applicant it appears to him that the case does not fall under sub-section (3) of section 178, he shall cause to be served in accordance with the provisions of rules 11 to 16 in the First Schedule to the said Code, notices in Form A appended to these rules on Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 22-05-2024 11:40:01 5 the co-tenure-holders requiring them to appear before him and state their objections, if any, on a day to be specified in the notice, which shall not be less than thirty or more than sixty days from the date of issue of the notices. He shall also cause a proclamation in Form B appended to these rules to be published in accordance with the provisions of rule 17 in the First Schedule to the said Code stating his intention to partition the holding.
3. If, after hearing the applicant, co-tenure holders and any other persons appear, it appears to the Tahsildar, that there is sufficient reason for disallowing the partition, he shall, by order in writing, reject the application.
4. If the Tahsildar does not reject the application, he shall proceed, after determination and recovering from the applicant the costs of making partition, to effect the partition either personally or through such agency as he may appoint. So far as practicable, whole survey numbers/plot numbers shall be allotted and recourse to sub-division should be taken only in rare cases. So far as possible compact areas of land should be allotted to each party and care should be taken to ensure that the productivity of the area allotted to each party is in proportion to his share in the holding. Such productivity should be determined on the basis of the variety of the soils in the holding and their present condition.
5. The assessment of the holding shall be distributed in proportion to the shares held in the holding by the various co-tenure-holders. While apportioning the assessment, the fractions of a Naya Paise shall be ignored.
6. After the partition has been completed, the Tahsildar shall hear any objections which the parties may make, and shall either amend or confirm the partition. The partition shall take effect from the commencement of the agricultural year next following the date of such amendment or confirmation.
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 22-05-2024 11:40:01 67. In case the interest of one co-tenure-holder is to be sold to another co-tenure-holder willing to purchase it, the price of the interest to be sold shall be determined in accordance with the following principles:-
(1) If a price agreed between the parties, such price should be accepted if it appears to have been arrived at bona fide.
(2) If no price is agreed upon and accepted it shall be determined and fixed having regard to-
(a) the rates on which similar lands in the village or in its neighbourhood were sold during the last three years;
(b) results of enquiries into the value of land, if maintained under Sub-section (I) of section 63 of the Code in the neighbourhood.
(c) if no sales have taken place in the village or in its neighbourhood or if there is no record results of enquiries under clause (b) the price may be determined as far as possible, in accordance with the provisions of the Land Acquisition Act, 1894, ignoring the extra 15 percent for compulsory acquisition."
4. In the present case also it does not appear that any application was preferred by any of the parties for partition of the disputed lands. The partition has been effected in the namantaran panji which is impermissible as there is no provision in that regard. For effecting such a partition an application under Section 178 of the Code, 1959 is mandatory which has to be processed under the provisions of that Section and the Rules made thereunder.
5. Moreover it is observed that though Rajendra Singh, predecessor Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 22-05-2024 11:40:01 7 in interest of the petitioners was a family member but neither was any notice issued to him nor was he afforded opportunity of hearing in the matter. He was undoubtedly a necessary party to the proceedings. The partition order has been passed in the namantaran panji itself which is illegal. The said order had rightly been set aside by the Sub Divisional Officer but has illegally been reversed by the Commissioner.
6. Consequently the petition deserves to be and is accordingly allowed. The order dated 11.12.2020 (Annexure P/1) passed by the Commissioner, Bhopal Division, Bhopal is set aside and that passed by the Sub Divisional Officer (Revenue), Khilchipur Jeerapur is hereby restored. As directed therein the parties shall be free to move the Tehsildar for effecting of partition by preferring an application in that regard under Section 178 of the Code, 1959 which if preferred shall be adjudicated upon in accordance with law and by affording due opportunity of hearing to all the interested parties. The parties shall also be free to move application for their mutation over the disputed lands on the basis of either the registered partition effected in the family earlier or on any other basis. It is however made clear that this Court has not expressed any opinion on merits of the case.
7. With the aforesaid, the petition stands allowed and disposed off.
(PRANAY VERMA)
ns JUDGE
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 22-05-2024
11:40:01
8
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 22-05-2024
11:40:01