NAGJIRAM Vs. MANGILAL

JUDGEMENT

(1.) A Division Bench has referred this case to us to 'resolve the controversy' between Paitram v. Board of Revenue (1968 Jab LJ 304) and Gangaram v. Kanhaiyalal (1971 Jab LJ 819 ). Those cases were decided by two different Division Benches. In both of them the question was what the Tahsildar can do and how he should proceed with an application for partition made before it under Section 178 (1) of the Madhya Pradesh Lend Revenue Code. 1959 (hereinafter referred to as the Code) when any question of title is raised. Section 178 of the Code reads as follows:- "section 178 Partition of holding:-

(2.) IN Paitram's case (1968 Jab LJ 304) (supra), Paitram and others applied to the Naib Tahsildar under Section 178 of the Code for partition of certain property alleged to have been held by them along with Mahingpalsingh in Bhumiswami rights. It was claimed that the Land belonged to the parties as members of a joint Hindu family and that the applicants had a right of partition. However. Mahingpalsingh raised an objection that the land was recorded in his name, that he was solely entitled to that land and that the applicants were not entitled to any partition. His contention was that the Revenue Officer could not proceed with the partition until the question of title raised by him was decided by a Civil Court. It appears that the Naib-Tahsildar recorded the evidence and 'after considering the evidence produced by the parties' came to the conclusion that a genuine dispute as to title was raised by Mahingpalsingh, so that the proviso to Section 178 (1) of the Code was attracted. He, therefore, held that partition could not be effected till the question of title was decided by the Civil Court. In this view of the matter he dismissed the application of the applicants. On appeal the Sub-divisional Officer set aside the order of the Naib-Tahsildar on the ground that the objection raised by Mahingpalsingh was not genuine. In Second Appeal the Commissioner also took the same view. However, the Board of Revenue on a consideration of various facts on record came to a contrary conclusion and held that a substantial question of title was raised by Mahingpalsingh and setting aside the order of the appellate Court, restored that of the Naib-Tahsildar. The applicants, Paitram and others invoked the jurisdiction of the High Court under Article 226 of the Constitution. Dixit, C. J. and Bhave, J. held that

(3.) FOR the reasons that we are going to state presently, we respectfully concur in (i), (ii), (iii), (iv), (v) and (viii), but we respectfully disagree in (vi) and (vii ).