The main legal point established is that the conduct of the parties, including the execution of sale deeds, can be used as evidence of an oral partition, leading to the dismissal of a partition application.

JUDGMENT :

Gurpal Singh Ahluwalia, J.

1. This petition filed under Article 227 of the Constitution of India has been filed against the order dated 01.05.2020 passed by the Additional Commissioner, Bhopal Division Bhopal in Case No. 271/Appeal/2019-2020 by which the order dated 29.06.2019 passed by S.D.O. Sehore in Appeal No. 0132/Appeal/2017-2018 has been affirmed.

2. The case of the petitioner in short is that the petitioner filed an application under Section 178 of the Madhya Pradesh Land Revenue Code, 1959 (in short "the Code") for partition of agricultural lands bearing Survey Nos. 46 area 3.30 acres, 51/1 area 7.60 acres, 51/3 area 3.57 acres and 51/5 area 2.88 acres total area 17.35 acres situated at village Jharkhed, Sehore. It is the case of the petitioner that he has 30% share in the property whereas respondent No. 2 has 20% share. Respondent No. 3 has 30% share and remaining 20% shall fell to the share of Smt. Rameshwari W/o Ramsingh and Yashwant Singh S/o Ram Singh which was sold to respondent No. 1 by registered sale deed dated 09.11.2004.

3. On an application filed by the petitioner under Section 178 of MPLR Code, the Tehsildar issued an advertisement and a fard batwara was obtained and after recording the statements of the parties and on the basis of consensus, an order of partition dated 27.9.2017 was passed.

4. Respondent No. 1 being aggrieved by the order of Tehsildar preferred an appeal before the Court of S.D.O. (Revenue) District Sehore which was registered as Appeal No. 0132/Appeal/2017-2018 and the said appeal was allowed by the S.D.O. by order dated 29.06.2019, thereby setting aside the order dated 27.09.2019 passed by the Tehsildar.

5. Being aggrieved by the order of S.D.O., petitioner preferred an appeal before the Additional Commissioner, Bhopal Division Bhopal which too has been dismissed by the impugned order.

6. Challenging the orders passed by the S.D.O. as well as the Additional Commissioner, Bhopal Division Bhopal, it is submitted by the counsel for the petitioner that the petitioner and respondents No. 2 and 3 are real brothers whereas the respondent No. 1 is the purchaser from the widow of deceased brother of the petitioner. Respondent No. 1 had purchased the undivided share of 20% of Rameshwari Bai widow of Ram Singh (brother of the petitioner). It is submitted by counsel for the petitioner that he has no objection to the sale deed executed by Rameshwari Bai in favour of respondent No. 1 but it is clear from the sale deed that Rameshwari W/o Ram Singh and Yashwant Singh S/o Ram Singh had sold their undivided share of 20% and no specific piece of land was sold. It is further submitted that various civil and revenue litigations have taken place between the parties and the petitioner had filed a civil suit for declaration of title and permanent injunction whereas respondent No. 1 had filed his counter claim and in Regular Civil Appeal No. 39-A/2016 by judgment and decree dated 21.12.2016 passed by the District Judge, Sehore, the civil suit filed by the petitioner as well as the counter claim filed by respondent No. 1 was dismissed. However, it was also observed that the judgment and decree passed by the appellate court shall not have any effect on the rights of the parties to get the land partitioned from the revenue authorities. It is submitted that inspite of dismissal of the civil suit of the petitioner and counter claim of the respondent No. 1, the authorities have come to the conclusion that in view of the facts that both the parties have executed various sale deeds therefore it is clear that the oral partition had already taken place. It is submitted that this finding of the revenue authorities is contrary to the judgment and decree passed by the Civil Court.

7. Per contra, the petition is vehemently opposed by counsel for the respondent No. 1. It is submitted by counsel for respondent No. 1 that all the parties including the petitioner have sold various specific pieces of land which clearly indic