The main legal point established in the judgment is the importance of proper service of notice and the binding nature of partition proceedings, as determined by relevant legal provisions and court decisions.

R.B. Dixit, J.

1. Feeling aggrieved by the judgment and decree dated 11-10-96, passed in Civil Appeal No. 20-A/89, of Addl. Judge to Distt. Judge, Morena at Sheopurkalan, partially modifying the judgment and decree in Civil Suit No. 203-A/88, of IInd Civil Judge, Class II, Sheopurkalan, the appellants/plaintiffs have come up in appeal, seeking redress praying for reversal of the impugned judgment and decree.

2. The facts in brief shorn of details and necessary for the disposal of this appeal He in a narrow compass. Nabbo Bai had filed the suit for declaration and permanent injunction regarding agricultural land situated in village Bich-gawadi on the ground that she has 1/4th share in the disputed land alongwith defendant No. 3 who also possessed 1/4th share and deceased Narvada was having half share in the property. Narvada had sold half of her share in the disputed property to respondent Nos. 1 and 2, whereupon respondent Nos. 1 and 2 initiated partition proceedings before Tehsildar, Sheopurkalan and Tehsildar, Sheopurkalan, vide his order dated 29-12-69, proceeded to decide the application ex parte, while, in fact the plaintiff was not properly served.

3. Learned Trial Court dismissed the suit of the plaintiff vide judgment dated 1-3-89, against which, an appeal was filed before Addl. Distt. Judge, Sheopurkalan which also met the same fate by the impugned order.

4. The present appeal has been admitted on the following substantial questions of law:

(i) Whether, service of proceedings of partition by Revenue Court vide Ex. P-8, upon the plaintiff, was proper ?

(ii) If the service was not proper, whether, the order of partition by the Revenue Court is binding upon the plaintiff ?

5. Appellant/plaintiff Nabbo died during pendency of this appeal and the present appellants arc brought on record as her legal representatives. It has been submitted on behalf of appellants that both the Courts below erred in appreciating evidence regarding service of notice on the deceased plaintiff Nabbo. Notice is Ex. D-8, upon which, process server Allanur (D.W, 4) was examined. Apparently, report of process server of Ex. D-8, is that Nabbo Bai had refused to accept the service and therefore, the service was served upon her by throwing copy of summon on her body. The witness has admitted that he was not ordered to effect the service in such a way. He has further admitted that since Nabbo Bai had refused to accept the service, the question of taking her thumb impression in compliance of the order does not arise, while in fact, notice (Ex. D-8) bears thumb impression mark of Nabbo Bai. The learned counsel of appellant argued that the rules found in Schedule 1 of M.P. Land Revenue Code, specify the order of service on party, wherein, the only method as a first step is by effecting a personal service. In case, if Nabbo Bai had refused to accept service as reported by process server then the question of taking her thumb impression on the copy of notice does not arise. In my considered opinion, the process server has categorically admitted that he has not served upon Nabbo Bai any notice of Tehsildar. In the circumstances, evidence of another witness Heeralal (D.W. 6) who was alleged to be present at the lime of service cannot he believed as being contradictory to the statement to process server Allanur. The findings of both the Courts below regarding service on Nabbo Bai cannot be sustained as being against the evidence on record.

6. In a Division Bench's decision of this Court, in the case of Bhupendra Singh Vs. Gopalkunwar, reported in 1970 JLJ 256, it has been held that the assumption the jurisdiction of Civil Court, where the order of authorities is a nuliity, is not barred. In another decision of this Court in the case of Radhe Mohan Vs. Omnarayan Dubey, reported in 1991 Revenue Nirnay 87, it was pointed out that ex parte order of partition by Tehsildar can be challenged in civil suit for declaration of title.

7. In Sheikh Vahid Vs. Gokul Chand and