Madhya Pradesh High Court
Jagdish vs Rameshchandra on 11 February, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
M.P. No. 6232/2019
Jagdish & others. V/s. Rameshchandra
-: 1 :-
Indore, dated : 11.02.2020
Petitioner by Ms. Neha Singh Patidar, Advocate.
Respondent by Shri Pratyush Mishra, Advocate.
With consent of learned counsel for the parties, heard
finally.
ORDER
The petitioners have filed the present petition being aggrieved by order dated 16.7.2019 passed by Sub Divisional Officer (SDO), Manawar, District Dhar and order dated 20.11.2019 passed by the Additional Commissioner, Indore Division, Indore.
2. Facts of the case, in short, are as under :
(i) The petitioners and the respondent are real brothers. The petitioners filed an application before the Tehsildar for partition land bearing Survey Nos. 11/1, 51/2, 88/1, 220, 447/1 and 637/1 total area 4.691 Hect. situated at Village Sunrel, Tehsil Dharampuri. The aforesaid land was already recorded in the name of petitioners and the respondent jointly. By order dated 4.9.2012, the Tehsildar has allowed the application by deleting the name of respondent from the revenue record and also divided the land in question between the petitioners.
(ii) According to the respondent, he was in service and behind his back, his name has been deleted from the revenue record and his remaining three brothers have partitioned the property between them. After retirement from service, he came back to THE HIGH COURT OF MADHYA PRADESH M.P. No. 6232/2019 Jagdish & others. V/s. Rameshchandra -: 2 :- the village and then he came to know about the aforesaid development. He obtained the certified copy of the order of Tehsildar and immediately filed the appeal before the SDO along with an application u/s. 5 of the Limitation Act. Notices were issued to the petitioners and vide order dated 16.7.2019, the SDO has not only condoned the delay but also set aside the order passed by the Tehsildar and cancelled the entries made in the revenue record on the basis of order dated 4.9.2012 and directed the Tehsildar to restore the entries in the name of all the four brothers.
(iii) Being aggrieved by the aforesaid order of the SDO, the present petitioners preferred an appeal before the Additional Commissioner. Vide order dated 20.11.2019, the appeal has been dismissed, hence the present petition before this Court.
3. Ms. Neha Singh Patidar, learned counsel for the petitioners, submits that the SDO has wrongly condoned the delay of 6 years and set aside the order of the Tehsildar. The respondent was given the separate land in Khargone District after the partition in the family. He was working as Gram Sevak and was aware about the proceedings pending before the Tehsildar. Order dated 4.9.2012 was passed on the basis of partition in the family and the procedure prescribed u/s. 178 of M.P. Land Revenue Code (MPLRC) was duly followed. The notice was published in the newspaper and opportunity of hearing was also given to the respondent. The SDO ought to have decided the application u/s. 5 of the Limitation Act first THE HIGH COURT OF MADHYA PRADESH M.P. No. 6232/2019 Jagdish & others. V/s. Rameshchandra -: 3 :- and then the appeal on merit. Hence, the order is bad in law and is liable to be set aside.
4. Per contra, Shri Pratyush Mishra, learned counsel appearing for the respondent, submits that the name of petitioners and respondent were recorded in the revenue record and without impleading the respondent before the Tehsildar and without giving any notice to him, his name has been deleted from the revenue record and the name of the petitioners have been mutated in the revenue record in collusion with the revenue authorities. U/s. 178(2), the Tehsildar is empowered to partition the property after giving notice to all the joint owners. The SDO as well as Additional Commissioner have rightly set aside the order of Tehsildar. The petitioners are free to file fresh application for partition.
5. In this petition, the petitioners have not filed copy of the order dated 4.9.2012 passed by the Tehsildar. In all fairness, the petitioners ought to have filed the said order to show that the respondent was a party in it and a notice was issued to him. The SDO while considering the matter has found that the respondent after retirement from service was residing in Village Bhoinda, Tehsil Kasrawad, District Khargone and his name was recorded with the petitioners jointly, but on the pretext of partition, his name has been deleted and Tehsildar passed the order dated 4.9.2012 without following the procedure prescribed in Section 178 of the MPLRC. The petitioners have not filed the copy of the proceedings of the Tehsildar to show that the procedure THE HIGH COURT OF MADHYA PRADESH M.P. No. 6232/2019 Jagdish & others. V/s. Rameshchandra -: 4 :- prescribed in Section 178 of MPLRC was followed. The respondent was not made party before the Tehsildar and he was not served with the notice, therefore, he had no knowledge about the order dated 4.9.2012. Hence, the delay has rightly been condoned by the SDO. I have no reason to disbelieve the finding recorded by the SDO which has been affirmed by the Additional Commissioner. The petitioners and respondent are real brothers and the lands in question ought to have been partitioned by metes and bounds. Their names are liable to be jointly recorded in the family property until partition takes place between them. Hence, no interference is called for. However, the parties are at liberty to approach the Tehsildar for partition of land in question between them.
6. Consequently, this petition fails and is hereby dismissed.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2020.02.13 13:07:02 +05'30'