ORDER

Appellants/defendants have preferred this appeal under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 31.03.2023 passed by First District Judge, Dewas (MP in Regular Civil Appeal No.32/2022 arising out of judgment and decree dated 20.09.2022 passed in Civil Suit No.35-A/2020 by Third Civil Judge, Senior Division, Dewas (MP).

(2)The facts in nutshell is that plaintiffs and defendants No.1 to 3 are the co-owners of the suit property, but without making the plaintiff No.2 as a party, the defendant No.1 had submitted an application regarding partition in the court of Tehsildar, Barotha registered as Case No.33/A-27/2016-17 without making the plaintiff No.2 a party and without their consent, the defendant No.1 and 2 has got right on half of the disputed lands and got order of partition in their favour which is not lawful. They had filed an appeal against this order in the Court of Sub-Divisional Officer, Dewas (MP) but the said appeal has also been dismissed on 16.04.2018. Against the said appeal, they had preferred an second appeal before the Additional Commissioner, Ujjain Division, Ujjain (MP) and vide order dated 27.11.2019, the said appeal has also been rejected. The plaintiff and defendants No.1 to 3 have equal rights in the litigated land but only to deprive them of their right in the land and to illegally dispossess them the partition was effected and the said partition has been done while preparing the 'batwara fard' which was not done in the presence of plaintiff and is not lawful. Therefore the said orders dated 17.01.2018, 16.04.2018 and 27.11.2019 are not valid and have to be declared void and ineffective. On these grounds, the plaintiff sought the relief claimed.

(3)That, the defendants had denied the averments and has pleaded that partition was affected between the parties as per procedure of law and prays for rejection of the suit.

(4)The trial court has framed the issue and on the basis of pleading of both the parties and after taking evidence of both the parties has rejected the suit filed the respondents/plaintiffs on 20.09.2022.

(5)Being aggrieved by the aforesaid judgment and decree passed by the trial court, the appellants/defendants had preferred the first appeal before the First District Judge, Dewas (MP) whereby the first appellate court has dismissed the appeal filed by the appellants by affirming the judgment and decree passed by the trial court.

(6)Counsel for the appellant/defendant has filed this second appeal on the ground that findings of both the courts below are perverse, illegal and arbitrary and both the courts below have committed error by dismissing the appeal filed by the defendant.

Thus, on the basis of above, substantial question of law arises for consideration in second appeal and prays that appeal be admitted for final hearing.

(7)I have heard counsel for the parties and have perused the records with due care.

(8)From perusal of the record of trial court, it appears that the respondents/plaintiffs have filed the civil suit for declaration and order dated 17.01.2018 passed by Tehsildar in respect of Survey Nos.90/1, 410, 413/1 area respectively, 0.720 hectares, 1.030 hectares and 0.230 hectares, total 1.980 hectares, land of village Nariyakheda, Tehsil Barotha, District Dewas (MP) declared null and void and seeking perpetual injunction with regard to the defendants for the partition of the suit land. So the burden of proof lies on the appellants to prove their case that Tehsildar has not followed the procedures given in the land revenue code. On inspection of trial court record and as per Ex.P/5, the appellants/defendants had filed an application before the Tehsildar under Section 178 of Madhya Pradesh Land Revenue Code, 1959 and thereafter, the Tehsildar had issued notice to the respondents/plaintiffs and they ha