IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SANJAY DWIVEDI th ON THE 20 OF FEBRUARY, 2024 MISC. PETITION No. 1697 of 2023 BETWEEN:-

1. RAVI SINGH S/O SANTOSH SINGH, AGED ABOUT

25 YEARS, OCCUPATION: AGRICULTURE RESIDENT OF VILLAGE BAMHORIKALA TEHSIL PALERA, DISTRICT TIKAMGARH (MADHYA PRADESH)

2. DHARMENDRA SINGH PARIHAR, S/O SHRI MOHAN SINGH PAIHAR,, AGED ABOUT 40 YEARS, OCCUPATION: AGRICULTURE R/O HOUSE NO. 157 LINE NO.4 BIRLA NAGAR, GWALIOR (MADHYA PRADESH)

3. SANDEEP RAI, S/O SHRI LAKHAN RAI, AGED ABOUT 22 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE - SHIMRA KHURD, TEHSIL - PALERA, DISTRICT TIKAMGARH (MADHYA PRADESH)

.....PETITIONERS (BY SHRI P.N. DAS - ADVOCATE)

AND

1. SMT. SALLO DAUGHTER OF RAGHUVIR SINGH THAKUR W/O RAMSINGH SENGAR.

2. SMT. JANAK D/O RAGHUVIR SINGH THAKUR W/O RAJA SINGH SENGAR BOTH RESIDENTS OF VILLAGE BAMHORIKALA TEHSIL PALERA, DISTRICT TIKAMGARH (MADHYA PRADESH) (APPLICANTS)

3. KAMLESH D/O SANTOSH SINGH THAKUR

4. RATAN SINGH S/O RANMAT SINGH)

5. SUCHNA SINGH D/O SAGUNSINGH THAKUR

6. VIR SINGH S/O SHRI PRATAP SINGH THAKUR

7. SHER SINGH S/O SHRI PRATAP SINGH THAKUR

8. SMT. SNEHLATA D/O RAMAN SINGH THAKUR W/O SHRI YOGENDRA SINGH THAKUR

9. PARVAT SINGH S/O LAKHAN SINGH THAKUR

10. RAVINDRA SINGH S/O LAKHAN SINGH THAKUR 11. MALKHAN SINGH S/O DAULAT SINGH THAKUR ALLRESIDENTS OF VILLAGE BAMHORIKALA KALA TEHSIL PALERA, DISTRICT TIKAMGARH.

12. RAJKUMARI W/O GHANSHYAM SAHU 13. RAMKUMAR S/O GHANSHYAM SAHU

14. KAMLA DEVI W/O SHER SINGH THAKUR ALL R/O RESIDENT OF VILLAGE BAMHORIKALA TEHSIL PALERA (MADHYA PRADESH)

15. RAJESH KUMAR S/O LAKHAN LAL GUPTA

16. BRAJESH KUMAR S/O LAKHAN LAL GUPTA BOTH R/O VILLAGE KANERA, TEHSIL PALERA, DISTRICT TIKAMGARH (MADHYA PRADESH)

17. SMT. KAMLA W/O RAVI SHANKAR GOSWAMI R/O

1013-2, RAJENDRA PRASAD COLONY, TANSEN ROAD GWALIOR (MADHYA PRADESH)

.....RESPONDENTS (NO. 1 AND 2 BY SHRI J.P. SINGRAUL - ADVOCATE)

(OTHER RESPONDENTS ARE THE FORMAL PARTIES AND THEREFORE THEIR PRESENCE IS NOT REQUIRED FOR ADJUDICATION OF THE CASE.

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

ORDER

This miscellaneous petition is of 2023 challenging the order dated

10.02.2023 (Annexure P/6) passed by the Additional Commissioner, Sagar Division, Sagar whereby the appeal preferred by the respondent Nos. 1 and 2 against the order of Sub Divisional Officer dated 18.06.2019 (Annexure P/4) has been allowed. The Additional Commissioner set aside the order passed by the Sub Divisional Officer and affirmed the order-Annexure P/2 dated 22.02.2019 passed by the Nayab Tahsildar, Circle Varana, Tahsil Palera, District Tikamgarh whereby the said authority allowed the application submitted under Section 178 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as 'Code, 1959') and Fard Batwara was done in favour of respondent Nos. 1 and 2.

2. Learned counsel for the petitioners submits that the land in question is recorded in the joint names of the parties including the petitioners but they were neither given any notice nor any opportunity of being heard was given to them and Fard Batwara took place between respondent Nos. 1 and 2 on the report of Patwari saying that they were in possession of the land since last 35 years. However, as per the learned counsel for the petitioners, since the land was recorded in the joint names of the parties including the petitioners, therefore the petitioners were necessary parties and required to be heard before taking place any type of partition of that land but neither they were heard nor their signatures were taken on Batwaranama and as such proceeding initiated by the Nayab Tahsildar under Section 178 of the Code, 1959 was illegal and the order passed thereof deserves to be set aside. According to counsel, against the said order the petitioners preferred an appeal before the Sub Divisional Officer raising the ground that they have not been heard and no opportunity has been given to them before allowing application under Section 178 of the