KASHIBAI AND ORS. Vs. JAGDISH PARASHAR AND ORS.

JUDGEMENT

(1.) With the consent of parties, the matter is finally heard. Present petition is being filed for recalling the order dated 19.6.2019 passed by Additional Collector, district Bhind whereby, the revision filed by the petitioners has been rejected.

(2.) It is alleged by counsel for the petitioners that Mevaram, Rajendra, Bhagirth, Jagdish and Udayveer are all family members and they jointly filed an application under Section 178 of M.P. Land Revenue Code before Tahsildar seeking partition of the property in question. The learned Tahsildar after recording statements of the parties and after preparation of FARD allowed the application and passed the order of partition of the property dated 18.2.2014 on the consent of the parties. Counsel for the petitioners submits that the respondents with malafide intention preferred an appeal under Section 44 of MPLRC before the court of SDO Bhind on 20.1.2016 along with an application under Section 5 of the Limitation Act which was allowed by learned SDO without assigning any reason. The petitioners have alleged that the entire proceedings have taken place by way of playing fraud as no affidavit of any of the party for filing appeal was filed rather the affidavit was filed of one Sandeep S/o Rajendra Sharma. He has further drawn attention of this court to the application under Section 5 of the Limitation Act and has argued that there is no explanation for filing appeal after lapse of two years. It is only mentioned that as and when the matter came to their knowledge, the appeal was preferred but the fact remains that the application for partition was filed jointly with consent of all the parties. He has further drawn attention of this court to the fact that the land of two different villages are involved in the present case and there is no affidavit with respect to the partition being based on mutual consent. But the appeal was filed owing to the fact that despite of partition by mutual consent, actual possession was not handed over to the respondents. The aforesaid aspect is incorrect owing to the fact that at the time of partition with mutual consent, possession was not handed over to the parties. The appeal was preferred with malafide intention just to grab the land of petitioners. Even otherwise, the order was passed with the consent of the parties and as per the settled legal position, against the consent order, no appeal is maintainable. He has relied upon the judgment passed by Hon. Supreme Court in the case of Pushpa Devi Bhagat (D) Th. Lrs. Vs Rajinder Singh & Ors reported in (2006) 5 SCC 566. It is further argued that the parties have not approached the court with clean hands and has not explained the limitation properly. In such circumstances, when there is no proper explanation for the delay being caused in filing appeal and also the fact that parties have not approached the court with clean hands, the appeal could not have been entertained. He has further relied upon the judgment passed by Hon. Apex Court in the case of Lanka Venkateswarlu (D) By Lrs vs State Of A.P. & Ors reported in 2011 Volume 2 SCC 363. He prays for setting aside or the impugned order passed by SDO Bhind which was duly affirmed by the Additional Collector, district Bhind.

(3.) Per contra, counsel for the respondents has denied all the averments of the petition and has contended that in terms of partition, no actual possession was handed over rather fraud has been played with the respondent as in the application for mutual consent and FARD report, there are no actual signatures of the respondents. The petitioners some how managed their actual signatures and have got the orders passed behind the back of the respondents and when the aforesaid fact came to the knowledge of the respondents, they immediately preferred an appeal and the same was allowed by the SDO vide its order dated 14.8.2018. The learned SDO has observed that learned Tahsildar has passed an order without taking actual signatures of the respondents. On these grounds, SDO has allowed the appeal. On appeal being preferred before the Additional Collector against the order dated 14.8.2018, the same was rejected and the order passed by SDO was affirmed. There is categorical finding by both the courts that there were no actual signatures of the respondents and the learned Tahsildar has passed the order of partition on mutual consent. It is further submitted that this petition is filed under Section 227 of the Constitution of India where the courts while exercising supervisory jurisdiction have very limited scope of interference. He has relied upon the judgment rendered by Hon. Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 wherein, following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution have be formulated: