Madhya Pradesh High Court
Pranlal Shah vs M.P. Board Of Revenue on 17 October, 2019
Author: Vishal Dhagat
Bench: Vishal Dhagat
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HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Writ Petition No. 19615 of 2015
Parties Name Pranlal Shah and others
Vs.
M.P. Board of Revenue and another
Bench Constituted Hon'ble Shri Justice Vishal Dhagat
Whether approved for Yes/No
reporting
Name of counsels for parties For Petitioners: Mr. Piyush Jain,
Advocate.
For respondent No.1: Mr. Vikram
Johri, Panel Lawyer.
For respondent No.2: Mr. R.K. Verma, Senior Advocate with Ms. Preeti Khanna, Advocate.
Law laid down -
Significant paragraph -
numbers
(ORDER)
17.10.2019
1. Petitioner has filed the present writ petition challenging the order dated 02.11.2015 passed by the M.P. Board of Revenue, Gwalior. By the impugned order, Board of Revenue has considered the application filed under Section 50 of the Madhya Pradesh Land Revenue Code (hereinafter referred to as "MPLRC" for short) for revising the order passed in the second appeal.
2. The facts of the case in short are that one Shakar Ben Shah who is mother of respondent Nos.1 to 8 filed an application before the 2 Tahsildar under Section 178 of MPLRC for partition of the land between Heeralal Shah, Pranlal Shah, Shakar Ben Shah and Neeta Shah. Tahsildar passed an order dated 12.09.2005 and divided the land in question in four parts. The disputed Khasra Nos. were 42/1 measuring 1.246 hectare, 43/1 measuring 0.941 hectare, Khasra No.45/1 measuring 0.099 total area 2.276 hectares. Learned Tahsildar vide its impugned order dated 12.09.2005 gave part of Khasra No.42/1, 43/1 measuring 0.339 hectare to non-applicant No.8 namely Neeta Shah. Tahsildar gave part of Khasra No.42/1, 43/1 are 0.287 hectare, part of Khasra No.45/1 measuring 0.640 hectare and part of Khasra No.44/3 measuring 0.089 measuring total 1.016 hectare to Heeralal Shah and others. Tahsildar gave part of Khasra No.42/1, 43/1 measuring 0.339 hectare to Shakar Ben Shah and others. Tahsildar further gave part of Khasra No.42/1 area 0.181 hectare and Khasra No.43/1 area 0.100 hectare and 0.281 hectares to Heeralal Shah and others. The said partition order passed by Tahsildar was challenged in first appeal and second appeal. The order passed by Tahsildar was affirmed by the appellate Courts and the First Appeal No.54-A/27 year 2005-06 and Second Appeal No.584A/27 year 2010-11 was rejected vide order dated 06.08.2007 and 25.03.2015.
3. Though various issues are raised by the parties in this wit petition but the crux of the matter is whether the order passed by Tahsildar dated 12.09.2005 is without jurisdiction.
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4. It was averred by the respondent before the Board of Revenue that the land in question was not agricultural land but factories go- downs etc were made on the said land. The land in question was used for other than agricultural purposes and, therefore, Tahsildar has no jurisdiction or authority to pass the impugned order dated 12.09.2005. The Board of Revenue on the basis of aforesaid averment in revision held that the land in question is used for factory and the dispute regarding the property is pending before the Civil Court. In view of the same provision of Section 178 of MPLRC is not attracted in the case and Tahsildar has no power to partition the suit property. On the basis of the said facts, order passed by the Tahsildar and of first appellate Court and second appellate Court were set aside and order was passed to maintain the revenue records as it was existing prior to passing of the impugned order of Tahsildar.
5. The aforesaid order passed by the Board of Revenue has been challenged in this writ petition on the ground that Nazul Officer has passed an order dated 03.09.2002 which was never challenged by the respondents and same has attained finality and it is binding on the parties, therefore, impugned order dated 02.11.2015 is bad in law.
6. The learned Revenue Courts cannot decide the question of title and, therefore, findings given in respect of title are without jurisdiction 4 and bad in law. The order was also assailed on the ground that one Smt. Shakar Ben Shah respondent No.1 died on 05.11.2011 and appellant failed to file application for bringing legal heirs of deceased on record within a period of 90 days and, therefore, appeal was not maintainable in the eye of law and impugned order dated 02.11.2015 is not sustainable in law. An application for amendment was filed to bring before this Court the registration of another firm by Heeralal Shah to mislead this Court. However, no amendment was made in the relief clause of the writ petition.
7. From the pleadings made by the parties and arguments advanced, the following questions arise before this Court for consideration:-
(i) Whether the order passed by Tahsildar is without jurisdiction as the land is being used for other than agricultural purpose and no order can be passed under Section 178 of MPLRC?
(ii) Whether the appeal before Additional Commissioner has abated due to the death of one Shakar Ben Shah and, therefore, further proceedings before Board of Revenue against the order of Additional Commissioner was not maintainable?
(iii) Whether Nazul Officer has passed an order dated 03.09.2002 by which order of mutation was recalled and, therefore, the impugned order dated 02.11.2015 is bad in law? 5
8. Admittedly, the land in question is used for other than agricultural purposes. If the land is being used for other than agricultural purpose and no formal application for diversion of land has been filed before the revenue authorities then whether it would be out of scope of Tahsildar under Section 178 of MPLRC to pass orders on partition and separate possession of the land. Un-amended Section 178 of the MPLRC reads as under:-
"178. Partition of holding.--(1) If in any 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.] (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 Tahsildar 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]"
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9. Admittedly there are factories, go-down and other buildings on the land in question and if parties have violated the provisions under Section 172 of MPLRC then a fine may be imposed upon them for using the land for non-agricultural purpose without permission of revenue authorities. The order passed by Board of Revenue does not suffer from any illegality as admittedly there is dispute of properties before the Civil Court regarding the partition of property. Admittedly, the land is used for non-agricultural purpose, therefore, the Tahsildar will not have jurisdiction to pass an order. In this respect, no fault can be found with the order passed by the Board of Revenue.
10. It is averred by the petitioner that respondent namely Shakar Ben Shah had died on 05.11.2011. The said fact was brought to the notice of the Court by filing death certificate of respondent No.1. The application for bringing the legal representatives of Shakar Ben Shah was filed within a period of 90 days from the date of knowledge. The application filed under Order 22 Rule 4 C.P.C. for bringing the legal representatives of respondent No.1 was allowed, no objections were raised and said order has become final. There is no substance in the objections raised by the petitioner that the order was passed by the Additional Commissioner when the appeal was in mode of abatement. The legal heirs were already brought on record, the application was allowed and in absence of challenge to the order the same has become final and it 7 cannot be said that the order was passed when the appeal before the Additional Commissioner was in abated state.
11. The third ground which is raised by the petitioner is that the order dated 03.09.2002 has become final as same has not been challenged. By order dated 03.09.2002, order dated 09.11.2001 was recalled by which mutation of names was done. The impugned order in question is not related to the said order. The order which was subject matter of suit was passed under Section 178 of MPLRC and order dated 03.09.2002 will have no bearing in the present case. Thus, this ground is also not tenable.
12. In view of the aforesaid facts and circumstances of the case, writ petition filed by the petitioner is dismissed. The order passed by the Board of Revenue in Revision No.1106-II/15 dated 02.11.2015 is affirmed.
(Vishal Dhagat) Judge psm Digitally signed by PREM SHANKAR MISHRA Date: 2019.10.18 18:04:32 +05'30'