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2020 Supreme(MP) 418
(HIGH COURT)
G. S. Ahluwalia, J.
Chandra Shekhar Dubey and others v. Narendra and others
Miscellaneous Petition No. 158 of 2020 (Gwalior): against order dated 4.11.2019 passed by the Board of Revenue in Revision No. 1009-I/2008; Decided on 5.2.2020.
Niraj Shrivastava for petitioners.
Headnote:
¼1½ flfoy çfØ;k lafgrk] 1908 && vk- 22 fu- 3 && e-iz- Hkw&jktLo lafgrk] 1959 && /kkjk 50 && iqujh{k.k ds mi'kkeu dk fook|d && iqujh{k.k esa vkosnd dh e`R;q && fof/kd izfrfuf/k vfHkys[k ij ugha yk, x, && vkosnd dh e`R;q dk fnukad izdV ugha && e`r O;fä ds fo#) vkns'k ikfjr && vkosnd dh e`R;q dk fnukad izdV djuk ;kph ds fy, vko';d Fkk && izdV djus esa vlQy jgk && iqujh{k.k mi'kfer gks x;k Fkk ;k ugha] bl fo"k; esa fofufnZ"V fu"d"kZ ugha fn;k tk ldrkA ¼iSjk 7 ls 9
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 178¼1½] ijarqd && foHkktu vkns'k && oS/krk && gd ds iz'u ij flfoy okn yafcr && bl vk'k; dh vkifÙk dh xbZ && foHkktu dk;Zokgh jksds fcuk] foHkktu vkns'k ikfjr && ,slk vkns'k voS/k gS && lgh&gh vikLr fd;k x;k && gLr{ksi visf{kr ughaA ¼iSjk 10 ls 12
¼3½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 178 && foHkktu QnsZa && la;qä /kkjd izfroknhx.k dh lgefr ;k gLrk{kj ugha && ,slh foHkktu Qnksa ij foHkktu voS/k gS && vij vk;qä }kjk vikLr fd;k x;k && u, fljs ls foHkktu ds fy, jktLo eaMy }kjk ekeyk rglhy U;k;ky; dks izfrizsf"kr && jktLo eaMy }kjk dksbZ =qfV ugha dh xbZA ¼iSjk 10 ls 12
¼4½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 49¼3½] ijarqd && vfHkO;fä ^^vihy izkf/kdkjh lk/kkj.kr;k ekeyk izfrizsf"kr ugha djsxk** && ls vfHkizsr && 'kCn ^^lk/kkj.kr;k** ds iz;ksx ls Li"Vr% minf'kZr gS fd ekeys ds izfrizs"k.k dk vkR;kafrd otZu ugha gS && fQj Hkh] tcrd vlk/kkj.k ifjfLFkfr;k¡ ugha gksa] vihy U;k;ky; ekeyk izfrizsf"kr ugha djsxkA ¼iSjk 13 ls 15
(1) Civil P.C., 1908 -- O. 22 R. 3 -- M.P. Land Revenue Code, 1949 -- S. 50 -- issue of abatement of revision -- death of applicant in revision -- legal representatives not brought on record -- date of death of applicant not disclosed -- order passed against dead person -- it was incumbent upon petitioner to disclose date of death of applicant -- failed to disclose -- no specific finding can be given whether revision was abated or not. [Paras 7 to 9
(2) Land Revenue Code, 1959 (M.P.) -- S. 178(1), Proviso -- partition order -- legality -- civil suit on question of title pending -- objection raised to that effect -- without staying partition proceedings, partition order passed -- such order is illegal -- rightly set aside -- no interference called for. [Paras 10 to 12
(3) Land Revenue Code, 1959 (M.P.) -- S. 178 -- partition lists -- no consent or signature of defendant joint holders -- partition on basis of such partition lists in illegal -- set aside by Additional Commissioner -- Board of Revenue remanded matter to Tahsil Court for fresh partition -- no erro committed by Board of Revenue. [Paras 10 to 12
(4) Land Revenue Code, 1959 (M.P.) -- S. 49(3), Proviso -- expression "appellate authority ordinarily shall not remand case" -- meaning -- use of word "ordinarily" clearly indicates that there is no absolute bar of remand of case -- however, unless and untill exceptional circumstances are there, appellate Court shall not remand case. [Paras 13 to 15
ORDER
1. This petition under Article 227 of the Constitution of India has been filed against the order dated 4.11.2019 passed by the Board of Revenue in Revision No. 1009-1/2008/Datia/LR, by which the revision filed by the respondent has been allowed and the matter has been remanded back after setting aside the order of partition.
2. The necessary facts for disposal of the present petition in short are that Premnarayan and one Jay Dayal were the co-owner and Bhumiswami of land bearing Survey No. 20, 74, 218/1, 423, 425/1, 435, 436, 437, 445/1, 447, 448, 449/3, 450, 884 and 889, total area 12.011 hectare situated in village Tharet, District Datia.
3. After the death of Jay Dayal, the names of his legal representatives, i.e., Narendra Kumar, Surendra Kumar and Smt. Ramshree were mutated along with Premnarayan. It is the case of the petitioner that since Jay Dayal and Premnarayan were living separately, therefore, in the year 1969-70, they mutually partitioned the land, however, no partition was done on the revenue record and since for the purpose of loan / KCC separate agricultural holding was required, therefore, Premnarayan filed an application under section 178 of MPLRC for partition of the land. Respondents filed an application raising the question of title and, thereafter, a suit was also filed which was dismissed in default and the appeal filed by them has also been dismissed by the Appellate Court. The case of Premnarayan is that in the partition proceedings, Fard Batwara was put up by Patwari in accordance with the land, which were in occupation of the respective parties. No objection was filed by the respondents No. 1 to 3 and after hearing both the parties, the Tahsildar passed an order of the partition. The order passed by the Tahsildar was challenged by the respondents no. 1 and 2 by filing an appeal before the SDO, Seondha which was registered as Appeal No. 15/Appeal/2005-06 and after hearing both the parties, the SDO, Seondha District dismissed the appeal by order dated 19.4.2006. The order passed by the SDO was challenged by the revisionist by filing second appeal before the Court of Additional Commissioner, Gwalior Division, Gwalior, which was registered as Appeal No. 389/Appeal/2005-06 and the Additional Commissioner by order dated 18.08.2008 has allowed the appeal and set aside the order of partition.
4. Being aggrieved by the order of the Additional Commissioner, Premnarayan filed a revision before the Board of Revenue, which was registered as Revision No.1009-1/2008/Datia/LR. During the pendency of the revision, Premnarayan also expired. The revision has also been dismissed by order dated 4.11.2019.
5. Challenging the order passed by the authorities below, it is submitted by the counsel for the petitioners that since Premnarayan had already expired during the pendency of the revision proceedings and the said revision was allowed without substitution of the legal representatives of Premnarayan, therefore, the final order has been passed against a dead person. It is further submitted that Additional Commissioner committed a material illegality by holding that the Fard Batwara was not published thereby materially affecting the interest of the respondents. It is further submitted that since the civil suit filed by the respondents was also dismissed, therefore, merely because the Tahsildar had not stayed its proceedings under section 178 of MPLRC, would not nullify the said proceedings.
6. Heard the learned counsel for the petitioner.
7. So far as the death during the pendency of the revision is concerned, except by mentioning that Premnarayan had expired during the pendency of the revision, the petitioners have neither filed the death certificate of Premnarayan on record nor have disclosed the date of death of Premnarayan. On the contrary, in paragraph 5.5 of the writ petition, it is mentioned that "During this proceeding Premnarayan met to unfortunate death. The petitioners (being sons, daughters & widow of decea
