SHIV DAYAL, C. J.:- 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 (197l 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 Land Revenue Code 1959 (hereinafter referred to as the Code) when any question of title is raised. Section l78 of the Code reads as follows:-

"Section 178 Partition of holding:- (1) if in any holding which has been assessed for the purpose of agriculture under Section 59, there are more than one Bhumiswami, any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding :

Provided that no such partition shall be made, if any question of title is raised, until such question has been decided by a civil suit.

(2) The Tahsildar may, after hearing the co-tenure holders divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code.

Explanation I.- For purpose of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding."

2. In Paitram's case (1968 Jab LJ 304) (supra), Paitram and others applied to the Naib Tahsildar under S. 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-Tehsildar 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

(i) the language of the proviso is plain.

(ii) that there is no warrant for reading the words 'genuine' or 'bogus' along with the word 'raised'.

(iii) to decide the question whether the plea of title raised is genuine or bogus is to decide the question of title itself.

(iv) Ordinarily, it is not the function of Revenue Courts to decide the question of title, it is exclusively the function of Civil Courts.

(v) The Naib-Tahsildar was in error in dismissing the application, he should have adjourned the case enabling the parties to raise the question of title before the Civil Court.

(vi) Mahingpalsingh, who raised the question of title, should have been directed to institute a civil suit within a time to be fixed by the Naib-Tahsildar.

(vii) If Mahingpalsingh did not take the matter to the Civil Court