The main legal point established in the judgment is the requirement to comply with mandatory provisions and principles of natural justice in partition proceedings under MPLR Code, emphasizing the need to hear all legal heirs and the consequences of non-compliance.

ORDER/JUDGMENT – Shri N. K. Gupta, Senior Advocate with Shri Sanjay Kumar Sharma, counsel for the petitioners.

Shri D. D. Bansal with Shri Sarvesh Sharma, learned counsel for the respondents.

2. This petition under Article 227 of the Constitution of India has been filed against the order dated 25-2-2019 passed by Additional Commissioner, Gwalior Division Gwalior in Appeal No. 511/2017-18, by which the appeal filed by the respondents has been allowed and the order of partition passed by the Naib Tehsildar as well as the order of SDO Bhitarwar, District Gwalior in Case No. 72/2016-17 Appeal have been set aside.

3. The necessary facts for disposal of the present petition in short are that Bhagguram, Brijmohan (petitioner No. 1), Harnam (petitioner No. 2), Atar Singh (petitioner No. 3), Rakesh (petitioner No. 4), Nathu, Dhani Ram, Kamal Singh and Lachcho (petitioner No. 5) filed an application under section 178 of MPLR Code for partition of Survey Nos. 399, 396, 434, 650 and 651 situated in Village Karaiya, Tehsil Chinor, District Gwalior (M. P.). It was claimed that all the applicants are co-sharers and are the joint Hindu Family members and they were in joint possession of the agricultural land and now they have partitioned their property and on the basis of mutual partition, they are in possession of land and accordingly, it was prayed that the land in question be partitioned as per the consent of the parties. It appears that the Naib Tehsildar, Circle Antri, Tehsil Bhitarwar, District Gwalior allowed the application and the order of partition was passed on 4-3-1999 in Case No. 4/98-99/A-27.

4. The respondent No. 1 filed an appeal against the order of partition on 25-4-2017 with an application under section 5 of Limitation Act. It was contended by the respondent No. 1 that after the death of her father Bhaggu on 8-12-2013, when she approached the Patwari for mutation of her name, then she was told that property has already been partitioned and name of the respondent No. 1 is not recorded in the revenue records. Thereafter, she obtained the relevant revenue records, accordingly, appeal was filed and, thus it was prayed that the delay in filing the appeal be condoned.

5. The SDO, Bhitarwar, District Gwalior by order dated 21-3-2018 passed in Case No. 72/2016-17/appeal held that Bhaggu had expired on 8-12-2013, whereas, the appeal was filed on 21-4-2017 i.e. after more than 3 years of the death of Bhaggu and approximately 14 years and 9 months from the order of the partition. It was also held by the SDO that the partition proceedings had taken place between the legal heirs and since the respondent No. 1 is the daughter of Bhaggu, therefore, she was not a necessary party to the partition proceedings and accordingly, the application filed under section 5 of Limitation Act was rejected. As a consequence thereof, the appeal filed by respondent No. 1 was dismissed as barred by time. Being aggrieved by the order dated 23-1-2018 passed by SDO, Bhitarwar, District Gwalior, all the respondents filed an appeal before the Additional Commissioner, Gwalior Division Gwalior, which was registered as Case No. 511/2017-18/appeal.

6. By impugned order dated 25-2-2019, the Additional Commissioner has come to a conclusion that along with an application filed under section 178 of MPLR Code, Fard Batwara was also filed. Although the Naib Tehsildar had directed for the publication of Fard Batwara as well as for inquiry, however, it appears that the Fard Batwara was never published, whereas, publication of Fard Batwara is mandatory under Rule 6 of Rules framed under section 178 of MPLR Code. It was also held that from Fard Batwara, it appears that only those persons were impleaded, who were in possession of the land in question but the partition was not done after giving the notices to all the co-sharers. Further Bhagguram was given only 1.174 hectares of land out of total area of 4.434 of Survey No. 651. Nathuram was the Bhumiswami of Survey No. 434 are