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2019 Supreme(MP) 583
IN THE HIGH COURT OF MADHYA PRADESH
Vishal Dhagat, J.
Pranlal Shah and others v. M.P. Board of Revenue and another
Writ Petition No. 19615 of 2015 (Jabalpur): against the order dated 2.11.2015 passed by the Board of Revenue in Revision No. 1106-II/2015;
Decided on 17.10.2019
Piyush Jain for petitioners; Vikram Johri, Panel Lawyer for respondent No. 1; K. K. Verma with Ms. Preeti Khanna for respondent No. 2.
Headnote: ¼1½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ & /kkjk 178 & vfèkdkfjrk & Ñf"k Hkwfe & O;iofrZr ugha ijarq Ñf"k fHkUu iz;kstuksa ds fy, iz;qä & foHkktu ds fy, flfoy okn Hkh yafcr & rglhynkj dks ,slh Hkwfe dk foHkktu djus dh vfèkdkfjrk ugha & rglhynkj }kjk ikfjr foHkktu vkns'k & jktLo izkf/kdkfj;ksa }kjk Bhd&gh vikLr fd;k x;k & jktLo eaMy dk vkns'k vfHkiq"VA ¼iSjk 9 ,oa 12
¼2½ flfoy çfØ;k lafgrk] 1908 & vk- 22 fu- 4 & e-iz- Hkw&jktLo lafgrk] 1959 & /kkjk 44¼2½ & f}rh; vihy esa ,d izR;FkhZ dh e`R;q & vihy mi'kfer gksxh ;k ugha & vkns'k 22 fu;e 4 ds v/khu vkosnu tkudkjh fnukad ls le; lhek ds Hkhrj & eatwj fd;k x;k & ,slk vkns'k vk{ksfir ugha & fofèkd okfjl vfHkys[k ij yk, tk pqds x, & vihy mi'kfer gksuk vfHkfuèkkZfjr ugha dh tk ldrhA ¼iSjk 10 ,oa 11
¼3½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ & /kkjk 109] 110 rFkk 178 & flfoy çfØ;k lafgrk] 1908 & /kkjk 11 & vkns'k fnukad 3-9-2002 }kjk] iwoZrj ukekarj.k vkns'k okil fd;k x;k & ,slk vkns'k vkf{kIr ugha fd;k x;k vkSj vafre gks x;k & izHkko & fo"k;&oLrq /kkjk 178 ds v/khu ikfjr vkns'k gS & vkns'k fnukad 3-9-2002 bl ekeys dks izHkkfor ugha djsxkA ¼iSjk 12
¼4½ flfoy çfØ;k lafgrk] 1908 & /kkjk 11 &e-iz- Hkw&jktLo lafgrk] 1959 & /kkjk 109] 110 rFkk 178 & iwoZ U;k; & ykxw gksuk & vkns'k fnukad 3-9-2002 }kjk] iwoZrj ukekarj.k vkns'k okil fd;k x;k & ,slk vkns'k vkf{kIr ugha fd;k x;k vkSj vafre gks x;k & izHkko & fo"k; oLrq /kkjk 178 ds vèkhu ikfjr vksn'k gS & vkns'k fnukad 3-9-2002 iwoZ U;k; ds :i esa ykxw ugha gksxkA ¼iSjk 12
(1) Land Revenue Code, 1959 (M.P.) -- S. 178 -- jurisdiction -- agricultural land -- not diverted but used for non agricultural purposes -- civil suit for partition also pending -- Tahsildar has no jurisdiction to partition such land -- order of partition passed by Tahsildar -- rightly set aside by revenue authorities -- order of Board of Revenue affirmed. [Paras 9 & 12
(2) Civil P.C., 1908 -- O. 22 R. 4 -- M.P. Land Revenue Code, 1959 -- S. 44(2) -- death of one respondent in second appeal -- whether appeal abated or not -- application under order 22 rule 4 within time from date of knowledge -- allowed -- such order not challenged -- legal heirs already brought on record -- appeal cannot be held abated. [Para 10 & 11
(3) Land Revenue Code, 1959 (M.P.) -- Ss. 109, 110 and 178 -- Civil P.C., 1908 -- S. 11 -- by order dated 3.9.2002, earlier mutation order recalled -- such order not challenged and became final -- effect -- subject-matter is order passed under section 178 -- order dated 3.9.2002 will have no bearing on instant matter. [Para 12
(4) Civil P.C., 1908 -- S. 11 -- M.P. Land Revenue Code, 1959 -- Ss. 109, 110 and 178 -- res judicata -- applicability -- by order dated 3.9.2002,earlier order of mutation recalled -- such order not challenged and became final -- effect -- subject-matter is order passed under section 178 -- order dated 3.9.2002 would not apply as res judicata. [Para 12
ORDER
1. Petitioner has filed the present writ petition challenging the order dated 2.11.2015 passed by the M.P. Board of Revenue, Gwalior. By the impugned order, Board of Revenue has considered the application filed under section 50 of the Madhya Pradesh Land Revenue Code (hereinafter referred to as "MPLRC" for short) for revising the order passed in the second appeal.
2. The facts of the case in short are that one Shakar Ben Shah who is mother of respondent Nos.1 to 8 filed an application before the Tahsildar under section 178 of MPLRC for partition of the land between Heeralal Shah, Pranlal Shah, Shakar Ben Shah and Neeta Shah. Tahsildar passed an order dated 12.9.2005 and divided the land in question in four parts. The disputed Khasra Nos. were 42/1 measuring 1.246 hectare, 43/1 measuring 0.941 hectare, Khasra No. 45/1 measuring 0.099 total area 2.276 hectares. Learned Tahsildar vide its impugned order dated 12.9.2005 gave part of Khasra No. 42/1, 43/1 measuring 0.339 hectare to non-applicant No. 8 namely Neeta Shah. Tahsildar gave part of Khasra No. 42/1, 43/1 are 0.287 hectare, part of Khasra No. 45/1 measuring 0.640 hectare and part of Khasra No. 44/3 measuring 0.089 measuring total 1.016 hectare to Heeralal Shah and others. Tahsildar gave part of Khasra No. 42/1, 43/1 measuring 0.339 hectare to Shakar Ben Shah and others. Tahsildar further gave part of Khasra No. 42/1 area 0.181 hectare and Khasra No. 43/1 area 0.100 hectare and 0.281 hectares to Heeralal Shah and others. The said partition order passed by Tahsildar was challenged in first appeal and second appeal. The order passed by Tahsildar was affirmed by the appellate Courts and the First Appeal No. 54-A/27 year 2005-06 and Second Appeal No. 584A/27 year 2010-11 was rejected vide order dated 6.8.2007 and 25.3.2015.
3. Though various issues are raised by the parties in this wit petition but the crux of the matter is whether the order passed by Tahsildar dated 12.9.2005 is without jurisdiction.
4. It was averred by the respondent before the Board of Revenue that the land in question was not agricultural land but factories godowns etc were made on the said land. The land in question was used for other than agricultural purposes and, therefore, Tahsildar has no jurisdiction or authority to pass the impugned order dated 12.9.2005. The Board of Revenue on the basis of aforesaid averment in revision held that the land in question is used for factory and the dispute regarding the property is pending before the civil Court. In view of the same provision of section 178 of MPLRC is not attracted in the case and Tahsildar has no power to partition the suit property. On the basis of the said facts, order passed by the Tahsildar and of first appellate Court and second appellate Court were set aside and order was passed to maintain the revenue records as it was existing prior to passing of the impugned order of Tahsildar.
5. The aforesaid order passed by the Board of Revenue has been challenged in this writ petition on the ground that Nazul Officer has passed an order dated 3.9.2002 which was never challenged by the respondents and same has attained finality and it is binding on the parties, therefore, impugned order dated 2.11.2015 is bad in law.
6. The learned Revenue Courts cannot decide the question of title and, therefore, findings given in respect of title are without jurisdiction and bad in law. The order was also assailed on the ground that one Smt. Shakar Ben Shah respondent No. 1 died on 5.11.2011 and appellant failed to file application for bringing legal heirs of deceased on record within a period of 90 days and, therefore, appeal was not maintainable in the eye of law and impugned order dated 2.11.2015 is not sustainable in law. An application for amendment was filed to bring before this Court the registration of another firm by Heeralal Shah to mislead this Court. However, no amendment was made in the relief clause of the writ petition.
7. From the pleadings made b
