2019 Supreme(MP) 574
IN THE HIGH COURT OF MADHYA PRADESH
Vishal Mishra, J.
Mamta sharma (Smt.) v. Ajay Shankar
Miscellaneous Petition No. 2167 of 2019 with Writ Petition No. 9069 (Gwalior); against the order dated 6.3.2019 passed by the Board of Revenue in Revision No. 2017/3399 [Published in 2019 (2) RN 353] and the order dated 18.2.2019 passed by the Additional Commissioner, Gwalior Division, Gwalior;
Decided on 3.12.2019
Vikas Singhal and S.M. Bhan for petitoner; K.S. Tomar with Sanjay Singh Tomar for respondent.
Headnote:
¼1½ Hkw&jktLo lafgrk] 1959 ¼eŒçŒ½ & /kkjk 70 & losZ{k.k laa[;kad 227 ds mi&foHkktu ds fo"k; esa iwoZrk vkns'k fnukad 18-2-1988 & jktLo eaMy }kjk losZ{k.k la[;kad 227@2 ds u, fljs ls mi&foHkktu ds fy, ekeyk ÁfrÁsf"kr & rglhynkj }kjk ÁfrÁs"k.k vkns'k dk vuqikyu ugha fd;k x;k & jktLo eaMy ,oa mi[kaM vf/kdkjh ds vkns'kksa dk vuqikyu djus ds fy, ekeyk rglhynkj dks ÁfrÁsf"krA 2009 ¼2½ jkŒfuŒ 253 myVk x;kA ¼iSjk 12 ls 15½
¼2½ Hkw&jktLo lafgrk] 1959 ¼eŒçŒ½ & /kkjk 250 & vkns'k losZ{k.k la[;kad 227 ds mi&foHkktu ds iwoZrj vkns'k ij vk/kkfjr & mi&foHkktu dk ,slk vkns'k vikLr fd;k x;k & losZ{k.k la[;kiad 227@2 ds mi&foHkktu ds fy, ekeyk ÁfrÁsf"kr fd;k x;k & tc ,d ckj iwoZrj mi&foHkktu dk vkns'k vikLr dj fn;k x;k rks /kkjk 250 ds v/khu ikfjr vkns'k dk;e ugha j[kk tk ldrk & vfHk[kafMr & losZ{k.k la[;kd 227@2 ds ckjs esa rglhynkj ds fofu'p; ds i'pkr~ u;k vkosnu djus dh Lora=rk Ánku dh xbZA ¼iSjk 16½
(1) Land Revenue Code, 1959 (M.P.) -- S. 70 -- earlier order dated 18.2.1988 in respect of sub-division of survey No. 227 -- matter remanded by Board of Revenue for fresh sub-division of servey No. 227/2 -- remanded order not complied with by Tahsildar -- matter remanded to Tahsildar for compliance of order of Board of Revenue and SDO. 2019 (2) RN 353 overruled. [Paras 12 to 15]
(2) Land Revenue Code, 1959 (M.P.) -- S. 250 -- order based on earlier order of sub-division of survey No. 227 -- such order of sub-division set aside -- matter remanded for fresh sub-division of survey No. 227/2 -- once earlier order of sub-division is set aside, order passed under section 250 cannot be sustained -- quashed -- liberty granted for fresh application after decision of Tahsildar about sub-division of survey No. 227/2. [Para 16]
ORDER
1. On the joint request of learned counsel for parties, present writ petitions are analogously heard and are being decided by this common order, as they arise out of common litigation.
2. For the sake of convenience, the facts are borrowed from Misc. Petition No. 2167/2019.
3. The present petition is being filed challenging the order dated 6.3.2019 passed by the Board of Revenue, Gwalior. It is alleged by learned counsel for petitioner that petitioner has purchased the land in shape of plot ad-measuring area 1200 Sq. ft. of Survey No. 227/2 min 2 from the previous owner Mangal Singh by paying full consideration vide registered sale deed dated 26.4.2010. She got the possession of the land and her name was mutated in the Revenue Records on the basis of registered sale deed and after taking permission for construction of house over the land, she got constructed a house. She is also paying property tax in the Municipal Corporation, Gwalior. In support of her contentions, she has filed the copies of sale deed, diversion, NOC issued by Nazool Officer, Khashra and receipt of house tax in the petition.
4. It is further alleged that respondent without impleading the petitioner and without informing or issuing notice filed an application for batankan/partition before the Tahsildar, Gwalior and the application was allowed by the Tahsildar on the basis of the report given by R.I. vide order dated 28.2.2011 in Case No. 21/2010-11/A3. The petitioner was not impleaded as party to the aforesaid proceedings when the matter came to her knowledge, an appeal was preferred before the Sub Divisional Officer, Gwalior. The learned SDO has rejected the application filed by the petitioner on the ground of delay vide order dated 28.1.2013 and the same order was put to challenge before the Additional Commissioner, Gwalior Division Gwalior and learned Commissioner, after hearing both the parties has allowed the appeal vide its order dated 5.2.2014 and orders passed by the learned Tahsildar and Sub Divisional Officer, Gwalior were set aside. The order passed by the Commissioner was put to challenge before the Board of Revenue and the learned Board of Revenue has set aside all the orders vide its order dated 10.9.2014 passed in Case No. 668-PBR/2014 and remanded the matter with a direction to the Court of Tahsildar that to re-decide the application after providing opportunity of hearing to both the parties and fresh batankan/partition of land bearing Survey No. 227 (2) be done which is annexed as annexure P-7 in the petition. In pursuance to the order passed by the Board of Revenue, proceedings were taken by the Tahsildar and the learned Tahsildar called the report from RI for batankan and it was informed that no fresh batankan is required as the batankan has already been done with respect to Survey No. 227 vide order dated 18.2.1988 and the learned Tahsildar vide its order dated 20.5.2016 passed in Case No. 1/2014-15/A-3 not carried out fresh batankan in terms of orders passed by learned Board of Revenue as the batankan has already been carried out by the order dated 18.2.1988 in Case No. 20/86-87/A-27 and it was further observed that as the batankan order 18.2.1988 was never put to challenge before any court and has attained finality. The appeal was preferred by the SDO and the learned SDO vide its order dated 29.11.2016 has observed that learned Tahsildar has not complied with the order of learned Board of Revenue and has not carried out the batankan with respect to Survey No. 227/2 which was specifically directed by the Board of Revenue. Thus, the order passed by the learned Board of Revenue was not complied with. Again, SDO order was put to challenge before the Additional Commissioner, Gwalior Division Gwalior vide its order dated 30.8.2017 in Case No. 104/2016-17/appeal and the order passed by the SDO was set aside and confirmed the order of Tahsildar, Gwalior. In pursuance to the same, the matter again traveled upto Board of Revenue and learned Bo