This miscellaneous petition under Article 227 of the Constitution of Indiahas been filed against the orders dated 22.11.2022 and 29.11.2017 passed by Additional Commissioner, Chambal Division, Morena and Sub-Divisional Officer Ambah, District Morena in Case No.416/2017-18/Appeal and Case No.79/2014/15/Appeal respectively. The facts necessary for disposal of the present petition in short are that the respondent filed an application under Section 178 of MPLR Code forpartition of Survey No.1856 Area 0.55 Hectares situated in Village Rachhed, Tehsil Porsa, District Morena. The case of the respondent is that she and the petitioners are having equal share in the aforesaid lands and, accordingly, the same may be partitioned. The Naib Tehsildar initiated the proceeding and called a report from Village Patwari and Revenue Inspector. According to petitionerNo.1, a wrong report was submitted, therefore, the petitioner No.1 submitted an objection before the Naib Tehsildar claiming that the Fard Batwara has not been prepared on the basis of land which is in possession of the parties and, accordingly, a fresh proposal was called. Objections were submitted for thefresh inspection report. In the meanwhile, the petitioner No.1 Smt. Sukhdevi executed a sale deed in favour of petitioners No.1 and 2 and sold her half sharein the land. In the sale deed, the boundaries of the land were also mentioned. On16.04.2015, the Tehsildar passed the final order on the basis of the subsequent inspection/panchnama.

Being aggrieved by the order dated 16.04.2015 passed by Naib Tehsildar, Tehsil Porsa, District Morena, the respondent filed an appeal which has beenallowed by Sub-Divisional Officer vide order dated 29.11.2017 passed in CaseNo.79/2014-15/Appeal. The petitioners thereafter challenged the order of SDO by filing an appeal before the Additional Commissioner, Chambal Division, Morena, but the same has been rejected by the impugned order.

Challenging the orders passed by the SDO, Tehsil Porsa, District Morena as well as the Additional Commissioner, Chambal Division, Morena, it is submitted by the counsel for the petitioners that the second Fard Batwara was prepared on the basis of the possession of the respective parties and, therefore, the authority should not have relied upon the first Fard Batwara.

Heard the learned counsel for the parties.

It is the case of the petitioners that the land in dispute was an undivided property and an application under Section 178 of MPLR Code was filed.

During the pendency of the said application, the petitioner No.1 alienated her share in the property in dispute. It is also the case of the petitioners that the boundaries were mentioned in the sale deed and possession of specific peaceof land was given to the petitioner Nos.2 and 3. However, the counsel for the petitioner could not satisfy this Court as to how a specific land of an undivided Hindu family property can be alienated? The petitioner No.1 could have at the most alienated her share to the petitioners No.2 and 3 and it was the duty of the petitioners No.2 and 3 to seek partition before getting the possession of a specific peace of land. It is the case of the petitioners that the subsequent fard batwara was prepared on the basis of actual possession of the parties. It is an undisputed fact that the second fard batwara was prepared after the executionof sale deed in favour of the petitioners No.2 and 3. Since every co-sharer is stated to be a joint owner and in possession of each and every inch of the property in dispute, therefore, the petitioners No.2 and 3 were not entitled for possession of any specific peace of land and they were entitled for possession of a land only after the partition was affected.

Thus, it is clear that the Revenue Inspector committed a material illegality while preparing the second fard batwara by claiming it to be based on the actual possession of the parties. At the cost of repetition, it is once again held that so long as the holdi