Validity of partition order and consideration of quality of land in partition disputes.

ORDER

This Petition under Article 227 of Constitution of India has been filed seeking following reliefs:

“Therefore, it is most humbly prayed that this Hon’ble Court may kindly be pleased to :- (In case of a writ of certiorari) I.

Issue a writ in the nature of certiorari for setting aside the impugned order:

(A) i) Date of order:- 12-12-2023 Annexure P-1.

ii) Passed in Case No.:- Case No.702/A27/2021-22. iii) Passed by :- Upper Commissioner, Sagar Division Sagar M.P. (B) i) Date of order:- 31-12-2021 Annexure P-2.

ii) Passed in Case No.:- Case No.0126/Appeal/2020- 21 iii) Passed by :- Sub- Division Office, District Nivadi M.P. iv) Issue any other writ, order or direction as this Hon’ble Court deems fit.”

2. It is the case of petitioners that father of petitioners late Matadeen had purchased 1/4th share in Khasra No.257 area 0.045 hectares, Khasra No.257/d area 0.279 hectares, Khasra No.257/[k area 0.247 hectares, Khasra No.258 area 0.121 hectares and Khasra No.257/x area 0.409 hectares. Petitioners thereafter moved an application for partition under Section 178 of M.P.L.R. Code. The Tahsildar, Niwari by order dated 31.05.2017 passed in Revenue Case No.4/A-27/2016-17 allowed the application by rejecting the objection filed by respondents to Fard Batwara. Being aggrieved by said order, respondents preferred an appeal before SDO (Revenue), Sub Division Niwari, District Niwari which was registered as Appeal No.126/Appeal/2020-21. By order dated 31.12.2021, the said appeal was allowed primarily on the ground that Khasra No.258 is situated by the side of road and is costly in comparison to other lands and land has not been sub-divided and the land, which is situated by the side of the road has not been equally given to all respondents. The SDO came to a conclusion that since there is a dispute with regard to quality of land as well as the sub-division therefore, adjudication of the said aspect is necessary and accordingly, appeal was allowed and order passed by Tahsildar on 31.05.2017 was set aside. Further, a liberty was also given to the parties to file an application afresh for partition. Being aggrieved by the said order, petitioners preferred an appeal before Additional Commissioner, Sagar Division Sagar, which was registered as Appeal No.702/A-27/2021-22 which too has been dismissed by impugned order dated 12.12.2023. 3. Challenging the orders passed by the authorities below, it is submitted by counsel for petitioners that respondents had primarily made an objection to Fard Batwara so far as it relates to Khasra No.258 and not in respect of other lands, therefore, even if the authorities were of the view that land forming part of Khasra No.258 has been unequally given, then matter could have been remanded only in respect of Khasra No.258. 4. Considered the submissions made by counsel for petitioners.

5. The written objection filed by respondents to Fard Batwara has been placed as Annexure P/6. The opening lines of the said objection are that Halka Patwari had not given an information to respondents with regard to partition and did not go on the spot to verify the situation as per the possession and therefore, Fard Batwara is liable to be rejected.

A copy of Fard Batwara has been filed as a part of Annexure P/5, which is at page 27. The said Fard Batwara bears signatures of Bhagwat Prasad, Manoj (respondent No.20), Khemchand (respondent No.16), Dhanaram (respondent No.21) and thumb impressions of two persons apart from signatures of two more persons, which are illegible.

However, it is clear that Fard Batwara does not contain signatures of all the co-sharers. Thus, it is clear that first objection raised by respondents that Fard Batwara was prepared in the absence of respondents is prima facie correct.

6. Under these circumstances, the authorities below did not commit any mistake by setting aside the order of partition dated 31.05.2017 passed by Tahsildar, Niwari in Revenue case No.4/A-27/2016-17. Since the SDO ha