ABDUL KALEEM Vs. ABDUL JABBAR

JUDGEMENT

(1.) CHALLENGING an order dated 27.9.2011 and 18.3.2011 passed by the Collector, Chhindwara in the matter of permitting revision of an order passed by the Tahsildar regarding partition of the area in question, petitioner has filed this writ petition.

(2.) PETITIONER Shri Abdul Kaleem and respondent No.1 Abdul Jabbar are the real brothers. It is said that respondent No.2 Abdul Khaliq is cousin of petitioner. The property in question is situated in Tahsil Sausar, District Chhindwara. It was originally the property of one Abdul Khurshid, who had two sons, Chote @ Abdul Malik who was father of respondent No.2 Abdul Khaliq and the second son was Abdul Hameed who is father of petitioner Abdul Kaleem and respondent No.1 Abdul Jabbar. Petitioner and respondent No.1 Abdul Jabbar have three sisters also. It is said that the property in question was subjected to voluntary partition by the family members and the same was reduced to writing on 15.12.1994 vide Annexure P/1. It is said that based on the memorandum of partition Annexure P/1, a joint application Annexure P/2 dated 15.12.1994 was submitted by the parties for partition of the property and the application was submitted to the Tahsildar, Sausar for recording the partition as required under the provisions of Section 178 of M.P. Land Revenue Code. The Tahsildar opened the proceedings and vide order Annexure P/3 dated 31.12.1994, recorded the partition and decide the same. Nothing was done for a period of more than 13 years, after this, order was passed. When an appeal under Section 44(1) of the M.P. Land Revenue Code was filed by respondents No.1 and 2 and their sisters. As there was a delay in filing the appeal, an application under Section 5 of Limitation Act is also said to have been filed. Annexure P/4 is memorandum of appeal and the application for condonation of delay. it is stated that the appellate authority initiated proceedings and finally vide order Annexure P/5 dated 3.3.2008 finding the appeal to be filed beyond the period of limitation, the same was dismissed. Thereafter nothing happened for another two years, when in the year 2010 vide Annexure P/6 it is said that respondents No.1 and 2 again filed a complaint before the Tahsildar seeking review of his order dated 31.12.1994. Tahsildar forwarded this application to the Sub Divisional Officer seeking permission for review. However, vide Annexure P/7 on 1.11.2010 permission for review was declined by the Sub Divisional Officer. Thereafter vide Annexure P/8 on 2.12.2010 respondents No.1 and 2 filed a revision petition under Section 50 before the Collector questioning the order dated 1.11.2010 passed by the Sub Divisional Officer. By the impugned order dated 18.3.2011 Annexure P/9 the Additional Collector, Chhindwara having allowed the revision petition under Section 50 this writ petition has been filed challenging the impugned order.

(3.) SHRI Ravish Agrawal, learned Senior Counsel appearing for the petitioner took me through the documents as are indicated herein above and submitted that in the impugned order the Additional Collector interfered by holding that the original order dated 31.12.1994 of partition was passed by the Tahsildar without following any due process as required under the M.P. Land Revenue Code and the Sub Divisional Officer rejected the appeal against the same on 3.3.2008 even though no appeal was filed. It is said that the Additional Collector interfered into the matter and infact has quashed the order dated 31.12.1994 and remanded the matter for fresh enquiry which is beyond the jurisdiction and power of the Additional Collector on two counts. The first ground raised is that when only permission was sought for to review the matter and permission was declined by the Sub Divisional Officer on 1.11.2010, the Additional Collector could not grant permission for review. Order dated 31.12.1994 was not questioned before the Additional Collector and therefore, the Additional Collector could not interfere with this order. Accordingly, it is said that the Additional Collector has exceeded his jurisdiction and the order is unsustainable. It is further stated that permission for review can be granted only under Section 51(3) of the M.P. Land Revenue Code and the application itself was barred, the action impugned by the Additional Collector is unsustainable. It is said that as a joint application was filed there was no necessity for issuing notice before passing the order dated 31.12.1994 by the Tahsildar. It is further stated that determination of fraud ordered by the Collector is unsustainable. Accordingly, contending that action has been taken in an illegal manner and beyond the period of limitation, this writ petition has been filed.