The judgment emphasizes the legal principle that mutation does not confer title and a co-sharer cannot relinquish their right without executing a relinquishment deed.

JUDGMENT : – This Second Appeal has been filed under section 100 of CPC against the judgment and decree dated 30-9-2021 passed by Third Additional District Judge, Nagod, District Satna in Regular Civil Appeal No. 39/2016 arising out of judgment and decree dated 18-7-2016 passed by Second Civil Judge, Class-II Nagod, District Satna (M.P.) by which the suit filed by the plaintiff for partition and mutation has been decreed.

2. The appellant is the defendant having purchased part of property in dispute from defendant No. 2 Smt. T. D. Chamar.

3. The facts necessary for disposal of the present Appeal in short are that the plaintiffs filed a suit for partition, for declaration of sale deed dated 29-12-2006 executed in favour of the appellant as null and void, for quashment of mutation as well as for permanent injunction.

4. It is the case of the plaintiff that property in dispute is an ancestral property and the plaintiff No. 3 had filed an application under section 178 of MPLR Code before the Tahsildar, which was registered as Revenue Case No. 92/A-27/2003-04 for partition and the said application was allowed by order dated 17-2-2006, Exhibit P.1. Being aggrieved by the said order, Ramgopal Choudhary preferred an appeal before the SDO, Nagod, District Satna, which was registered as Appeal No. 87/Appeal/05-06. The said appeal was allowed by order dated 20-9-2006, Exhibit P/2 and the order of the Tahsildar was set aside and the matter was remanded back. Thereafter, it appears that the proceedings under section 178 of MPLR Code, which were pending before Tahsildar, Nagod, District Satna, were dismissed for want of prosecution.

5. The crux of the matter is that the property in dispute remained un-partitioned. The defendant No. 2 Smt. T. D. Chamar alienated a part of the property in favour of the appellant by a registered sale deed dated 29-12-2006, Exhibit D/30 / Exhibit P.5 and therefore, it was claimed that the sale deed executed by Smt. T. D. Chamar in favour of the appellant is null and void because a co-sharer cannot sell specific piece of land and that too in excess in his or her share.

6. The defendant No. 2/Smt. T. D. Chamar, who had alienated the property to the appellant was proceeded ex parte. The appellant/defendant No. 1 filed his written statement and denied that the property in dispute is an ancestral property. It was claimed that the defendant No. 2 Smt. T. D. Chamar was in possession of araji Nos.489/1 area 3.13 Bigha and 49/1 area 9 Biswa. It was admitted that the plaintiff No. 3 Badkaiyaa Choudhary had filed an application under section 178 of MPLR Code before the Tahsildar for partition and seeking 1/5th share in the property. It was claimed that the defendants No. 3 to 5, namely; Smt. Sundariya, Smt. Sukwariya and Smt. Surtiya had filed their reply, Exhibit D/3 and had stated that they are relinquishing their share and therefore, it was clear that only the plaintiffs and the defendant No. 2 had share in the property in dispute. On 16-7-2004, the Tahsildar, Nagod issued public notice and these aforesaid replies were submitted by the defendants No. 3 to 5 on 8-10-2004 and accordingly, the fard Batwara was prepared and the order of partition was passed by the Tahsildar on 17-2-2006. Accordingly, the land in dispute was partitioned in five equal shares and the names were also mutated on the strength of the said partition deed. The defendant No. 2 had taken a loan of Rs. 22,000/- from the State Bank of India on Kishan Credit Card. It was also admitted that SDO, Nagod issued a notice of Appeal No. 92/A-27/03-04. It was also admitted that the Appellate Court remanded the matter back but claimed that since plaintiff No. 3 did not appear before the Tahsildar, therefore, the proceedings before the Tahsildar were dismissed for want of prosecution. However, it was claimed that since the proceedings under section 178 of MPLR Code stood dismissed for want of prosecution therefore, the order of partition passed by the Tahsildar g