CHETNA DHOLAKHANDI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The present miscellaneous petition has been preferred under Article 227 of the Constitution of India, challenging the order dated 31.03.2021 passed by Tahsildar, Kolaras, District Shivpuri in Case No.0033/A-27/20-21, whereby the Tahsildar exercising the power under Section 178 of MP Land Revenue Code, 1959 (for brevity, the 'Code') partitioned the holding in favour of respondent No.6-Gopal Dutt Dholakhandi.

(2.) The facts of the case in nutshell are that the land bearing Survey No. 566 admeasuring 3.990 hectares situated in village Dodiyai, Tahsil Kolaras, District Shivpuri was of the ownership of Late Keshav Dutt Dholakhandi. After death of Keshav Dutt Dholakhandi, the land came in heritance to Gopal Dutt (respondent No.6 herein), deceased Hem Dutt (husband of petitioner No.1 and father of petitioners No.2 and 3), Ram Dutt , Smt. Kamla Sharma and Smt. Mohini (daughters of Late Keshav Dutt). Respondents No.4 and 5 - Smt. Kamla Sharma and Smt. Mohini moved an application for partition in respect of land bearing survey No. 566/1 area 3.990 hectares. In the said proceeding, respondent No.7 to 9, namely, Brajendra Singh Raghuvanshi, Kuldeep Raghuvanshi and Bharat Singh Raghuvanshi, appeared and submitted an application along with copy of the order dated 16.02.2020, passed by Sub-Divisional Officer, Division Kolaras, District Shivpuri, stating that the names of respondents No.4 & 5 have been deleted. The respondents No.4 & 5 also prayed for partition in the same proceeding. The Tahsildar on the basis of order dated 16.2.2020 allowed the application of respondents No. 7 to 9, deleted the names of respondents No.4 and 5 and substituted the names of respondent No.6 and Hem Dutt, husband of petitioner No.1. Thereafter, on account of death of husband of petitioner No.1, the petitioners filed an application for substituting their names as legal representatives of deceased Hem Dutt, and also filed objection to the encroachment made by respondents No.7 to 9 on the land in dispute. The Tahsildar allowed the objections submitted by the petitioners and constituted six members team for submitting Partition Fard, which was submitted on 25.3.2021, but thereafter stating that since no objections are received, allowed the partition only on the basis of possession vide impugned order, Annexure P/1. Hence, this misc. petition is preferred by the petitioners.

(3.) Learned counsel for the petitioners has submitted that the Tahsildar conducted the proceeding and passed the impugned order in utter disregard to the provisions of law. The partition is done only on the basis of sale deed and possession, which could not have been done. The Tahsildar while passing the impugned order has utterly failed to consider that respondent No.6 sold his undivided unpartitioned specified share vide registered sale deed dated 19.10.2020 whereas it is settled law that if a sale deed is being executed, possession could not be handed over unless Civil Court decreed the suit of partition. It has also been submitted that the property in dispute is also subject matter of a civil suit bearing Civil Suit No. 249A/2020, which is pending before concerning Additional District Judge, Gwalior against respondent No.6, wherein status quo order has been passed on 10.8.2020 and further on 5.10.2020. Despite that, the respondent No.6 alienated his specified share and the Tahsildar has failed to consider this aspect. It is also submitted that the Tahsildar has failed to follow the mandatory procedure as no proclamation has been issued in terms of Rule 2 of the Rules made under Section 178 of the Code regarding partition of holding. The Tahsildar has further erred in not considering that a title dispute is pending before the Civil Court and the Tahsildar did not even wait for a period of three months as per mandate of the proviso to Sub-Section (1) of Section 178 and sub-Section (1-A) of Section 178 of the Code, and proceeded to pass final order. Hence, prayed for allowing the present petition. In support of submissions, learned counsel for the petitioner has placed reliance on the judgments in cases of Amar Singh and another vs. Ahibaran,1992 RN 4; Antarsingh v. Ram Singh and others,1992 RN 98); Shyamlal v. Ramlal and others,1994 RN 265; and,