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2020 Supreme(MP) 468
(HIGH COURT)
Sanjay Dwivedi, J.
Koutik Gupta v. State of M.P. and others
Miscellaneous Petition No. 1016 of 2020 (Jabalpur); against the order dated 7.8.2019 passed by the Board of Revenue in revision; Decided on 3.3.2020.
M.P. Tripathi for petitioner; Deepak Singh, Deputy Government Advocate for respondent/State.
Headnote:
¼1½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 178 && vf/kdkfjrk && ekSf[kd foHkktu rFkk i`Fkd&i`Fkd dCtk && la;qä /kkjd }kjk LohÑr && u, fljs ls foHkktu ds fy, vkosnu && rglhynkj }kjk eatwj && rglhynkj u, fljs ls foHkktu djus ds fy, l{ke ugha Fkk && mi[kaM vf/kdkjh }kjk ekSf[kd foHkktu ds vuqikyu dk funs'k lgh&gh fn;k x;k && jktLo eaMy }kjk vij vk;qä dk vkns'k vikLr fd;k x;k ijarq mi[kaM vf/kdkjh dk vkns'k vikLr ugha fd;k x;k && mi[kaM vf/kdkjh dk vkns'k vius vki izR;kofrZr gks tkrk gs && rglhynkj dks mi[kaM vf/kdkjh ds funs'k dk vuqikyu djuk gksxk && ;kfpdk [kkfjtA¼iSjk 8 ls 10
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 178 && ekSf[kd foHkktu && izek.k && la;qä /kkjdksa }kjk i`Fkd~&i`Fkd~ dCtk vkSj ekSf[kd foHkktu LohÑr && u, fljs ls foHkktu ds fy, vkosnu && rglhynkj u;s fljs ls foHkktu djus ds fy, l{ke ugha && ekSf[kd foHkktu dk vuqikyu fd;k tkuk gksxkA ¼iSjk 8 ,oa 9
(1) Land Revenue Code, 1959 (M.P.) -- S. 178 -- jurisdiction -- oral partition and separate possession -- admitted by joint holders -- application for fresh partition -- allowed by Tahsildar -- Tahsildar was not competent to do fresh partition -- direction for compliance of oral partition rightly given by SDO -- order of Additional Commission set aside by Board of Revenue but order of SDO not set aside -- order of SDO is automatically restored -- Tahsildar has to comply with direction of SDO -- petition dismissed. [Paras 8 to 10
(2) Land Revenue Code, 1959 (M.P.) -- S. 178 -- order partition -- effect -- separate possession and oral partition admitted by joint holders -- application for fresh partition -- Tahsildar is not competent to get fresh partition done -- compliance of oral partition mush be done. [Paras 8 & 9
ORDER
1. Heard on admission.
2. This petition is filed under Article 227 of the Constitution of India challenging the order dated 7.8.2019 (Annexure-P-1) passed by the Board of Revenue whereby the revision preferred by the respondent No. 5 has been allowed and the order passed by the Additional Commissioner, Indore was set aside.
3. As per the facts of the case, the present petitioner moved an application under section 178 of M.P. Land Revenue Code, 1959 (for brevity "Code of 1959") for getting the land partitioned i.e. situated over khasra No.24 area measuring 2.258 hectare which was recorded in the joint name of petitioner and respondent No. 5.
4. The petitioner has claimed that the petitioner and respondent No. 5 both have ½ share over the said land and accordingly there should be separate batan number made in favour of the parties. The Tahsildar registered a Revenue Case No. 53/A-27/2010-11 and passed the order on 29.5.2013 accepted the partition as claimed by the petitioner.
5. Against the said order, an appeal was preferred before the Sub Divisional Officer. The Sub Divisional Officer by order dated 10.2.2014 set aside the order of Tahsildar and accepted the appeal directing Tahsildar to correct the record according to oral partition and given batan number. Against the order of Sub Divisional Officer, second appeal was preferred before the Additional Commissioner, Indore Division, Indore and the said appeal was decided by order dated 22.12.2014 wherein the order of Sub Divisional Officer was set aside and the order of Tahsildar was maintained.
6. A revision was preferred before the Board of Revenue against the said order mainly on the ground that the oral partition took place between the parties and according to said oral partition, they were placed in possession of their respective portion and continuously holding its possession. Accordingly, the application under section 178 of the Code, 1959 is not maintainable. It is also stated that as per the statement of witnesses recorded, they have accepted the possession of the petitioner and respondent No. 5 over the share as has been given to them in an oral partition and accordingly they have been cultivating the land and taking crop from the said land. The oral partition has been accepted by the parties, therefore, that was admitted and as such second partition is not permissible. The statement of the petitioner was also recorded in which he has admitted that in half of the portion, he is cultivating the land. The petitioner before the Board of Revenue has contended that the petitioner and respondent No. 5 are the real brothers and their names are jointly recorded in the revenue record against the land in question, but he has contended that no oral partition took place between the petitioner and respondent No. 5 otherwise there would be a separate mutation in their name in respect of the land granted to him in his share. It is further contended that the Tahsildar has considered his application and duly partitioned the land, therefore, that order was not required to be interfered with. The contention of the petitioner was opposed by respondent No. 5 and thereafter the Board of Revenue in it is order has observed that after considering the statement recorded by the parties it is clear that oral partition of the land in question took place between the parties and as such they were put in possession of the land which has been cultivated by them since long.
7. The Board of Revenue observed that so far as the scope of interference in the matter by the Tahsildar when application under section 178 of the Code, 1959 is moved, is concerned, since there was no dispute in respect of the share of the parties over the land in question, the Tahsildar can partition the land by giving them separate numbers and set aside the order of Commissioner as such affirmed the order of Sub Divisional Officer. The Board of Revenue has also observed that the order of Tehsildar does not suffer from any irr
