IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR ON THE 15^th OF FEBRUARY, 2024 MISC. PETITION No. 1769 of 2022 BETWEEN:-

1. GEETABAI W/O GANPAT OCCUPATION: NIL VILLAGE MANAWAR AND ORIGINAL R/O KHANDWA (MADHYA PRADESH)

2. MAHESH S/O GANPAT OCCUPATION:

AGRICULTURIST VILLAGE MANAWAR, TEHSIL MANAWAR (MADHYA PRADESH)

3. JANKI BAI D/O GANPAT OCCUPATION: NIL VILLAGE MANAWAR TEHSIL MANAWAR (MADHYA PRADESH)

4. MANJU BAI D/O GANPAT OCCUPATION: NIL VILLAGE MANAWAR, TEHSIL MANAWAR (MADHYA PRADESH)

.....PETITIONERS (BY SHRI ATUL KUMAR GUPTA, ADVOCATE)

AND

1. GEETABAI W/O GANPAT OCCUPATION: NIL VILLAGE MANAWAR, DISTT. DHAR AND ORIGINAL VAYAL (MADHYA PRADESH)

2. SANTOSH S/O GANPAT OCCUPATION:

AGRICULTURIST VILLAGE MANAWAR, TEHSIL MANAWAR (MADHYA PRADESH)

3. PUSHPA BAI D/O GANPAT OCCUPATION: NIL VILLAGE MANAWAR, TEHSIL MANAWAR (MADHYA PRADESH)

Signature Not Verified

4. RAMU @ RAMLAL S/O GANPAT OCCUPATION:

AGRICULTURIST VILLAGE MANAWAR, TEHSIL MANAWAR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI NITIN PHADKE, ADVOCATE FOR THE RESPONDENTS ON CAVEAT)

……………………………………………………………………………………….

This petition coming on for admission this day, the court passed the following:

ORDER

Heard finally with the consent of the parties.

2] This petition has been filed by the petitioners under Article 227 of the Constitution of India against the order dated 21.03.2022, passed in an appeal by the Additional Commissioner, Division Indore whereby, the order passed by the SDO on 19.02.2022 has been quashed and the mutation entry dated 26.10.2016 has been validated in respected of the Survey Nos.470/1 and 471/1, ad-measuring 1.382 hectare, situated at Village Manawar, District Dhar.

3] In brief, the facts of the case are that the petitioner No.1 and the respondent No.1 were the wives of Late Ganpat S/o Narsingh, both by the name of Geeta Bai, one resident of Khandwa, and the other, of Vayal, Tehsil Manawar, District Dhar. The case of the petitioner is that Ganpat, in his lifetime, partitioned the agricultural land on 26.07.1997 wherein, it was agreed amongst the parties that Geeta Bai of Khandwa and Mahesh would get 2.075 hectares whereas, Geeta Bai of Vayal got 1.705 hectares whereas, the deceased Ganpat kept to himself 1.382 hectares.

4] After the land was partitioned in the aforesaid manner, Signature Not Verified subsequently, Ganpat in his lifetime again filed an application under Section 178-A of the M.P. Land Revenue Code, 1959 (hereinafter referred to as „the Code of 1959‟) for partition of land and this time, without even arraying the petitioners as parties in the aforesaid application, the land which fell into the share of Ganpat, was partitioned in toto to respondent No.2 Santosh, S/o Geeta Bai of Vayal.

5] Counsel for the petitioner has submitted that the application was filed in violation of Section 178-A of the Code of 1959, which clearly provides that all the legal heirs are required to be heard before the final order is passed. However, despite knowing this fact, the deceased Ganpat did not array the present petitioners as parties to the aforesaid application filed under Section 178-A of the Code of 1959, and it was decided behind the back of the petitioners, and the Tehsildar vide order dated 26.10.2016, allowed the application. The aforesaid order was challenged by the petitioners before the SDO, who vide his order dated 19.02.2021, although allowed the appeal setting aside the order passed by the Tehsildar, however, the SDO also set aside the earlier order of partition dated 26.10.2016, and directed that the names of all the parties be recorded in the revenue record and against the order passed by the SDO, the respondents preferred an appeal before the Divisional Commissioner, Indore, who has allowed the same and the mutation order passed in the year 2016 was upheld and being aggrieved, the present petition has been filed.

6] Counsel for the petitioners has submitted that the order passed by the Commissioner is contrary to law as apparent