Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 803 (MP)

KASHIBAI v. JAGDISH PARASHAR

2019-11-15

VISHAL MISHRA

body2019
ORDER/JUDGMENT – Shri D. D. Bansal with Shri Sarvesh Sharma, counsel for the petitioners. Shri N. K. Gupta, Sr. Advocate with Shri Sanjay Sharma Advocate for the respondents No. 1 and 2. 2. With the consent of parties, the matter is finally heard. 3. Present petition is being filed for recalling the order dated 19-6-2019 passed by Additional Collector, District Bhind whereby, the revision filed by the petitioners has been rejected. 4. It is alleged by counsel for the petitioners that Mevaram, Rajendra, Bhagirth, Jagdish and Udayveer are all family members and they jointly filed an application under section 178 of M.P. Land Revenue Code before Tahsildar seeking partition of the property in question. The learned Tahsildar after recording statements of the parties and after preparation of FARD allowed the application and passed the order of partition of the property dated 18-2-2014 on the consent of the parties. Counsel for the petitioners submits that the respondents with mala fide intention preferred an appeal under section 44 of MPLRC before the Court of SDO Bhind on 20-1-2016 along with an application under section 5 of the Limitation Act which was allowed by learned SDO without assigning any reason. The petitioners have alleged that the entire proceedings have taken place by way of playing fraud as no affidavit of any of the party for filing appeal was filed rather the affidavit was filed of one Sandeep S/o Rajendra Sharma. He has further drawn attention of this Court to the application under section 5 of the Limitation Act and has argued that there is no explanation for filing appeal after lapse of two years. It is only mentioned that as and when the matter came to their knowledge, the appeal was preferred but the fact remains that the application for partition was filed jointly with consent of all the parties. He has further drawn attention of this Court to the fact that the land of two different villages are involved in the present case and there is no affidavit with respect to the partition being based on mutual consent. But the appeal was filed owing to the fact that despite of partition by mutual consent, actual possession was not handed over to the respondents. The aforesaid aspect is incorrect owing to the fact that at the time of partition with mutual consent, possession was not handed over to the parties. But the appeal was filed owing to the fact that despite of partition by mutual consent, actual possession was not handed over to the respondents. The aforesaid aspect is incorrect owing to the fact that at the time of partition with mutual consent, possession was not handed over to the parties. The appeal was preferred with mala fide intention just to grab the land of petitioners. Even otherwise, the order was passed with the consent of the parties and as per the settled legal position, against the consent order, no appeal is maintainable. He has relied upon the judgment passed by Hon. Supreme Court in the case of Pushpa Devi Bhagat (D) Th. Lrs. vs. Rajinder Singh and ors., reported in (2006) 5 SCC 566 . It is further argued that the parties have not approached the Court with clean hands and has not explained the limitation properly. In such circumstances, when there is no proper explanation for the delay being caused in filing appeal and also the fact that parties have not approached the Court with clean hands, the appeal could not have been entertained. He has further relied upon the judgment passed by Hon. Apex Court in the case of Lanka Venkateswarlu (D) By Lrs. vs. State of A.P. and ors., reported in (2011) 2 SCC 363. He prays for setting aside or the impugned order passed by SDO Bhind which was duly affirmed by the Additional Collector, district Bhind. 5. Per contra, counsel for the respondents has denied all the averments of the petition and has contended that in terms of partition, no actual possession was handed over rather fraud has been played with the respondent as in the application for mutual consent and FARD report, there are no actual signatures of the respondents. The petitioners some how managed their actual signatures and have got the orders passed behind the back of the respondents and when the aforesaid fact came to the knowledge of the respondents, they immediately preferred an appeal and the same was allowed by the SDO vide its order dated 14-8-2018. The learned SDO has observed that learned Tahsildar has passed an order without taking actual signatures of the respondents. On these grounds, SDO has allowed the appeal. On appeal being preferred before the Additional Collector against the order dated 14-8-2018, the same was rejected and the order passed by SDO was affirmed. The learned SDO has observed that learned Tahsildar has passed an order without taking actual signatures of the respondents. On these grounds, SDO has allowed the appeal. On appeal being preferred before the Additional Collector against the order dated 14-8-2018, the same was rejected and the order passed by SDO was affirmed. There is categorical finding by both the Courts that there were no actual signatures of the respondents and the learned Tahsildar has passed the order of partition on mutual consent. It is further submitted that this petition is filed under Article 227 of the Constitution of India where the Courts while exercising supervisory jurisdiction have very limited scope of interference. He has relied upon the judgment rendered by Hon. Apex Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 wherein, following principles on the exercise of High Court’s jurisdiction under Article 227 of the Constitution have be formulated : (a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. and has prayed for dismissal of the writ petition. 7. From record, it is seen that learned Tahsildar has passed an order on an application filed under section 178 of the MPLRC for partition on mutual consent. In other words the jurisdiction has to be very sparingly exercised. and has prayed for dismissal of the writ petition. 7. From record, it is seen that learned Tahsildar has passed an order on an application filed under section 178 of the MPLRC for partition on mutual consent. There are no actual signatures of the respondents on the application as well as FARD report. The aforesaid aspect was observed by the SDO and hence, the order passed by Tahsildar based on mutual consent was rejected. The learned SDO has allowed the application under section 5 of the Limitation Act on the aforesaid ground and has fixed the case for final arguments vide its order dated 14-8-2019. The aforesaid order has put to challenge before the Additional Collector. The Addl. Collector has affirmed the order passed by SDO. It is only a limitation application which has been allowed by the SDO and the appeal is yet to be heard by the SDO. Therefore, all the arguments could have been addressed before the Court. But as there is probability/apprehension that without there being actual signatures on the application, the partition order was passed by Tahsildar on mutual consent. The aforesaid being the disputed questions of fact can very well be looked into by SDO and in this petition under Article 227 of the Constitution the Court is having very limited jurisdiction. Therefore, this Court refrain from entertaining the disputed questions of facts in this petition. The order passed by learned SDO in appeal while allowing application under section 5 of Limitation Act has duly been affirmed by learned Additional Collector and the appeal is still to be heard by the the SDO. In such circumstances, this Court refrains from entertaining this appeal in view of the law laid down by Hon. Apex Court in the case of Shalini Shyam Shetty (supra). 8. Accordingly, this petition sans merit is hereby dismissed. CC as per rules.