ORDER

The present appeal has been filed under Section 2 (1) of Madhya Nyayalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 challenging the order dated 11.07.2023 passed in M.P.No.3640/2021 whereby learned single Judge has set-aside the order dated 03.01.2017 passed by SDO-Raghogarh, Guna by directing to consider and decide the application on the issue of limitation.

2.In this case, the dispute is only in respect of land bearing Survey No.203 admeasuring area .167 hectare, of village -Pargana Raghogarh. After the order passed by this Court on 04.01.1997 in S.A.No.200/1997, the appellant filed an application under Section 115 and 116 of MPLRC seeking recording of his name on 1/2 share of land bearing Survey No.203 admeasuring area .167 hectare as co-owner. On 09.07.2012, the aforesaid application was opposed by respondents and thereafter, vide dated 29.05.2013, the Tehsildar has dismissed the application as time barred. Thereafter, the appellant preferred an appeal before the SDO in which vide order dated 03.01.2012, the learned SDO remanded the matter back to the Tehsildar, Raghogarh. Thereafter, respondents approached the Additional Commissioner by way of second appeal. Vide order dated 03.09.2021, the second appeal was dismissed and thereafter, Miscellaneous Petition was preferred before the Single Bench of this Court.

3.Vide order dated 11.07.2023, writ court held that the SDO has wrongly entertained the appeal on merits without deciding the issue of limitation. Hence, the writ Court set-aside the order of SDO and remanded back with direction to decide the issue of limitation.

4. Having heard the learned counsel for parties and on perusal of the record.

5.That, the appellant and Late Premnarayan were real brothers. Their father Girdharilal, after the death, left other immovable properties also but the appellant has filed an application claiming 1/2 share only in respect of bearing Survey No.203 admeasuring area .167 hectare. For other land second appeal is also pending before this Court. Therefore, if the name of appellant is liable to be recorded jointly in Survey No.203 then name of respondents are also liable to be recorded jointly with the appellant in respect of other land. Therefore, the proper course would be to file an application for partition before the Tehsildar and Tehsildar shall decide the same on the basis of Fard Batwara between the parties. At present application for recording the name of appellant is only in respect of one survey number and therefore, other properties left by Shri Girdharilal are ought to be partitioned by meets and bounds between these two legal heirs. In such premises learned counsel submit that the application of mutation has no merit and rightly decided by Tehsildar.

6.Learned counsel for the appellant submit that other land belonging to father of the appellant is under litigation hence same cannot be included in the application for partition.

7.At present name of the respondents are recorded as exclusive owner of the land Survey No.203 admeasuring area .167 hectare on the basis of will of Late Girdharilal. In civil suite, the said will had been discarded by the civil Court and said decree has been affirmed by the civil Court in S.A.No.200/1997. Therefore, the name of the appellant is liable to be recorded as co-owner along with names of respondents. If the respondents have any grievance about their share/title in respect of other joint property left by the Late Girdharilal, they may challenge the same by way of appropriate legal proceeding. In view of the judgment dated 04.01.2006 passed in S.A.No.200/1997, the name of appellant is also liable to be recorded as co-owner along with respondents. The parties shall be free to go for partition by way of civil suit or revenue proceedings in respect of all the properties of Late Girdharilal.

8.In view of the above, impugned order Annexure P-1 is set aside. Tehesildar Raghogarh is dire