KISHORE SINGH Vs. STATE OF M. P.

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India is directed against the order dtd. 5/12/2023 passed by the Additional Collector, District Vidisha (M.P.) in Revision No.36/2023-24 whereby revision filed by the petitioner against the order dtd. 11/5/2023 passed by the Sub-Divisional Officer, Basoda District Vidisha (M.P.) in appeal No.174/2021-22 was dismissed and the order of appeal was upheld and which resulted that Panji No.7 dtd. 20/4/2010 of partition as certified by the Tehsildar was upheld.

(2.) The aforesaid orders have been assailed on the ground that they are against the provisions of Sec. 178 of M.P. Land Revenue Code, 1959 as they are passed without following due procedure prescribed for mutation and partition and on the date, respondent No.4 was not having any right and title/interest in the land. He was not the owner or co-owner and, therefore, no land could have been given in partition to him as he was a third party.

(3.) The short facts leading to controversy are that petitioner's father Late Shri Bheem Singh was exclusive owner of the land bearing survey No. 26, 35/2, 74, 85, 86 & 88/1 total area 14.601 hectare situated in Village Pathari, BasodaDistrict Vidisha MP. The right title or interest which was left by Late Shri Bheem Singh on 5/5/1992 was succeeded by his widow Smt. Ballo Bai and two sons ie., Kishore and Vijay (petitioners) and as such in the mutation panji name of all three legal successor were recorded in place of Bheem Singh on the basis of succession and that was certified by the Tehsildar on 21/2/1993. Thereafter petitioner's mother Smt. Ballo Bai expired on 11/11/1993. The respondent no. 4 who was having no title or authority to get the land applied for partition and proceedings were initiated on 1/4/2010 and later on culminated into final order dtd. 20/4/2010 and got an order of partitioned. Respondent No.4- Mahendra Singh was not having any right title or interest in the land neither his name was recorded in the earlier revenue records under any capacity, no application under Sec. 178 of the M.P. Land Revenue Code was ever filed by him, no case was ever registered, no notice was ever issued to the co-owners but in collusion with the revenue authorities, behind the back of petitioners, he successfully got the land partitioned. Though Ballo Bai Wd/o Late Shri Bheem Singh and mother of present petitioners died on 11/11/1993, but in the said Panji, share was also given to the deceased which shows that how fraudulently the respondent no. 4 has got the land of the petitioners and when the petitioners got knowledge about the so called wrong committed by respondents, in connivance with the revenue authorities, they applied for certified copy of the order and the proceedings but their application was returned with the endorsement that panji No. 7 publication is not part of the record. However, since wrong was already committed, therefore, an appeal was filed by the petitioners in the court of Sub Divisional Officer, Basoda, District Vidisha M.P. along with an application for condonation of delay. Learned SDO while allowing the application had condoned the delay. Against the said order of condoning the delay, a revision was preferred before the Board of Revenue which in the light of the amendment in Sec. 50 of the M.P. Land Revenue Code was transferred for decision to the Collector and the Additional Collector in revision no. 134/2019-20 dismissed it vide order dtd. 16/10/2019 while upholding the order of SDO. Against this order dtd. 16/10/2019 misc. petition no. 5854/2019 was filed by the respondent no. 4 which was allowed by. order dtd. 8/12/2021, with a direction to the Sub Divisional Officer to conduct a fresh inquiry with regard to the condonation of delay and then pass fresh order and if in the inquiry, it is found that some fraud has been played in the matter, then the appeal be considered within limitation and if it is found that no fraud was played, then the appeal be considered beyond the period of limitation and be proceeded with in accordance with law. In the light of the aforesaid directions, Sub Divisional Officer initiated proceeding and a report was called from the Tehsildar which was submitted on 7/10/2022 mentioning that the partition panji is contrary to the provision of Sec. 178 of the M.P. Land Revenue Code as by this partition, land has been given to a third person whose name was not recorded in the revenue records and that person was neither owner nor having any right title or interest, but learned SDO vide order dtd. 11/5/2023 found that no fraud has been played upon the appellants, therefore, held the appeal to be beyond the period of limitation, dismissed the appeal on the said ground. Aggrieved by the said order, the petitioner preferred a revision before the Additional Collector which was numbered as Revision No.36/2023-24 which also received the same fate and the said appeal was dismissed upholding the order passed by the SDO.