ORDER

This Miscellaneous Petition under Section 227 of Constitution of India is preferred challenging the order dated 27.09.2021 passed in case no.459/appeal/2019-20 by Additional Commission Ujjain, Division Ujjain.

2. Facts in brief are that on 21.06.2018 petitioner had preferred an application under Section 178 of M.P.L.R.C. 1959 for partition of ancestral property. After receiving report from Patwari, Ld. Tehsildar by it order dated 16.02.2019 has passed the order of partition. In compliance of order dated 16.02.2019 passed by Ld. Tehsildar, revenue authorities has recorded the rights in the revenue record. After the order of Ld. Tehsildar, present respondent no.1 and 2 has filed a Civil Suit No.32-A/2019 on 26.03.2019 seeking the relief of declaration, partition and permanent injunction. By order dated 10.07.2019, Ld. Sub-Division Officer has dismissed the First Appeal filed by respondent No.1 and 2 and confirmed the order of partition dated 16.02.2019. Against the same respondent no.1 and 2 preferred a Second Appeal before Ld. Divisional Commissioner. By order dated 17.09.2021 Ld. Additional Commissioner, Ujjain Division, District – Ujjain, M.P. by which Second Appeal preferred by the respondent no.1 and 2 has been allowed and order passed by Ld. Sub- Divisional Officer in First Appeal and order passed by Ld. Tehsildar in an application filed by the petitioner under Section 178 of M.P.L.R.C., 1959 has been set aside.

3. Challenging the order, this petition has been preferred on the ground that application of petitioners for partition u/s 178 was allowed as no Civil Suit was preferred in respect to title when the application for partition was pending before Ld. Tehsildar and the order of Ld. Tehsildar was confirmed by Ld. First Appellate Court, but Ld. Second Appellate Court has reversed the order of both the courts holding that a Civil Suit was filed in the matter so there was no jurisdiction of Ld. Tehsildar to pass an order u/s 178 of M.PL.R.C, 1959 which is a perverse finding and the same is contrary to record as no civil suit was filed even prior to date of order of Ld. Tehsildar in respect to partition u/s 178 of M.P.L.R.C, 1959. All the courts below has committed serious error of law by 6.3 mis- interpreting Section 178 of M.P.L.R.C, 1959. There are two conditions to be satisfied before staying proceeding u/s 178 of M.P.L.R.C, 1959. Firstly there must be a civil suit filed and there must be a stay order of competent court, In the present case respondent no. 1 and 2 has not satisfied any of the requisite. This fact has been ignored by Ld. Second Appellate court in impugned order. Ld. Court below has ignored the fact that respondent has already sold some of his land falling in his share and by ignoring this, the impugned order has been passed.

4. Heard finally at the stage of admission.

5. Learned counsel for respondents opposed the prayer.

6. Perused the record.

7. It is settled position of law that the partition suit cannot be decided by demanding authority. If any dispute exceeds between the parties regarding partition, the whole jurisdiction vests with the Civil Court.

8. Order of Nayab Tehsildar, Tehsil Garoth, District Mandsaur in Revenue case no.32/A-27(2)/2017-18 (Annexure P-3) discloses that respondent Shyamlal objected to the partition proceedings before Nayab Tehsildar and also filed an application to adjourn the proceedings but Nayab Tehsildar rejected the application on the ground that no stay has been brought on record. This action of Nayab Tehsildar was not as per Section 178 of MPLRC 1959. It is not a ground to quash the impugned order that Civil Suit no.32-A/2019 before Civil Judge Class II Garoth, District Mandsaur was filed on 26.03.2019 whereas the order of Nayab Tehsildar (Annexure P-3) was passed on 16.02.2019. Additional Commission Ujjain, Division Ujjain has set aside the proceedings of Sub Divisional Officer, Sub Division Garoth, District Mandsaur and Nayab Tehsildar, Tehsil Garoth, District Mandsau