ORDER/JUDGMENT – Shri N. K. Gupta, Senior Advocate with Shri Sanjay Kumar Sharma, counsel for the petitioners. Shri D. D. Bansal with Shri Sarvesh Sharma, learned counsel for the respondents. 2. This petition under Article 227 of the Constitution of India has been filed against the order dated 25-2-2019 passed by Additional Commissioner, Gwalior Division Gwalior in Appeal No. 511/2017-18, by which the appeal filed by the respondents has been allowed and the order of partition passed by the Naib Tehsildar as well as the order of SDO Bhitarwar, District Gwalior in Case No. 72/2016-17 Appeal have been set aside. 3. The necessary facts for disposal of the present petition in short are that Bhagguram, Brijmohan (petitioner No. 1), Harnam (petitioner No. 2), Atar Singh (petitioner No. 3), Rakesh (petitioner No. 4), Nathu, Dhani Ram, Kamal Singh and Lachcho (petitioner No. 5) filed an application under section 178 of MPLR Code for partition of Survey Nos. 399, 396, 434, 650 and 651 situated in Village Karaiya, Tehsil Chinor, District Gwalior (M. P.). It was claimed that all the applicants are co-sharers and are the joint Hindu Family members and they were in joint possession of the agricultural land and now they have partitioned their property and on the basis of mutual partition, they are in possession of land and accordingly, it was prayed that the land in question be partitioned as per the consent of the parties. It appears that the Naib Tehsildar, Circle Antri, Tehsil Bhitarwar, District Gwalior allowed the application and the order of partition was passed on 4-3-1999 in Case No. 4/98-99/A-27. 4. The respondent No. 1 filed an appeal against the order of partition on 25-4-2017 with an application under section 5 of Limitation Act. It was contended by the respondent No. 1 that after the death of her father Bhaggu on 8-12-2013, when she approached the Patwari for mutation of her name, then she was told that property has already been partitioned and name of the respondent No. 1 is not recorded in the revenue records. Thereafter, she obtained the relevant revenue records, accordingly, appeal was filed and, thus it was prayed that the delay in filing the appeal be condoned. 5. Thereafter, she obtained the relevant revenue records, accordingly, appeal was filed and, thus it was prayed that the delay in filing the appeal be condoned. 5. The SDO, Bhitarwar, District Gwalior by order dated 21-3-2018 passed in Case No. 72/2016-17/appeal held that Bhaggu had expired on 8-12-2013, whereas, the appeal was filed on 21-4-2017 i.e. after more than 3 years of the death of Bhaggu and approximately 14 years and 9 months from the order of the partition. It was also held by the SDO that the partition proceedings had taken place between the legal heirs and since the respondent No. 1 is the daughter of Bhaggu, therefore, she was not a necessary party to the partition proceedings and accordingly, the application filed under section 5 of Limitation Act was rejected. As a consequence thereof, the appeal filed by respondent No. 1 was dismissed as barred by time. Being aggrieved by the order dated 23-1-2018 passed by SDO, Bhitarwar, District Gwalior, all the respondents filed an appeal before the Additional Commissioner, Gwalior Division Gwalior, which was registered as Case No. 511/2017-18/appeal. 6. By impugned order dated 25-2-2019, the Additional Commissioner has come to a conclusion that along with an application filed under section 178 of MPLR Code, Fard Batwara was also filed. Although the Naib Tehsildar had directed for the publication of Fard Batwara as well as for inquiry, however, it appears that the Fard Batwara was never published, whereas, publication of Fard Batwara is mandatory under Rule 6 of Rules framed under section 178 of MPLR Code. It was also held that from Fard Batwara, it appears that only those persons were impleaded, who were in possession of the land in question but the partition was not done after giving the notices to all the co-sharers. Further Bhagguram was given only 1.174 hectares of land out of total area of 4.434 of Survey No. 651. Nathuram was the Bhumiswami of Survey No. 434 area 3.135 hectares but in partition he got 5.240 hectares. Survey No. 399 area 4.024 hectares was owned by Dhaniram whereas he got only 1.161 hectares land in partition. 7. It was further held that only two survey Nos. 650 and 396 were joint property, which could have been partitioned but the other survey numbers, which were exclusively owned by other persons were also included in the partition proceedings. Survey No. 399 area 4.024 hectares was owned by Dhaniram whereas he got only 1.161 hectares land in partition. 7. It was further held that only two survey Nos. 650 and 396 were joint property, which could have been partitioned but the other survey numbers, which were exclusively owned by other persons were also included in the partition proceedings. Accordingly, it was held that if the respondent No. 1 had filed an appeal after getting the information about the order of partition, then the SDO, Bhitarwar, District Gwalior should have condoned the delay and should have decided the appeal on merits and accordingly, the appeal was allowed and the order dated 4-3-1999 passed by Naib Tehsildar and order dated 23-1-2018 passed by SDO, Bhitarwar were set aside. 8. Challenging the order passed by the authority below, it is submitted by the counsel for the petitioners that the SDO, Bhitarwar had dismissed the appeal on the ground of limitation and, therefore, the Additional Commissioner should not have decided the appeal on merits and after condoning the delay should have remanded the matter back to the Court of SDO, Bhitarwar, for decision on merits. It is further submitted by the counsel for the petitioners that present case is not a case of partition under section 178 of MPLR Code but in fact, it is a proceeding under section 178-A of MPLR Code and a Bhumiswami during his life time can always partition the property amongst his legal heirs. 9. Per contra, it is submitted by the counsel for the respondents that an application under section 178 of MPLR Code was filed by Dhaniram, Bhaggu, Nathu, Kamal Singh, Brijmohan, Harnam, Atar Singh, Rakesh and Lachcho. Brijmohan, Harnam, Atar Singh, Rakesh and Lachcho are children of Malthu @ Bhathu, whereas Kamal Singh is the son of Bhaggu. The property originally belonged to Devlal, who was survived by Dhaniram, Bhaggu, Malthu @ Bhathu and Nathu. Therefore, the partition should have taken place amongst these four persons only. Since, Bhathu had already expired, therefore, Harnam, Brijmohan, Atar Singh, Rakesh and Lachcho were rightly impleaded in the application but Halko widow of Bhathu was left. Similarly, Bhaggu was already alive but in spite of that Kamal Singh was also included in the partition proceedings, whereas Kamal Singh had no right or title during the lifetime of his father Bhaggu. Since, Bhathu had already expired, therefore, Harnam, Brijmohan, Atar Singh, Rakesh and Lachcho were rightly impleaded in the application but Halko widow of Bhathu was left. Similarly, Bhaggu was already alive but in spite of that Kamal Singh was also included in the partition proceedings, whereas Kamal Singh had no right or title during the lifetime of his father Bhaggu. Further more, the respondent No. 1 Kastoori is the daughter of Bhaggu but she was deliberately left. Thus, it is clear that those persons who were not liable to be included in the partition proceedings were included and they were given lands, thereby infringing the rights and title of co-sharers. 10. Heard the learned counsel for the parties. 11. It is clear from application (Annexure P/2) that it was filed under section 178 of MPLR Code and not under section 178-A of MPLR Code. It is specifically mentioned in the said application that all the applicants are members of the joint Hindu family and were jointly in possession of agricultural land and after mutual partition, they are in possession of the land, which has fallen to their respective shares and accordingly, prayer was made that the partition be made as per the land, which is in their possession. 12. From the contents of the said application, it is clear that the said application was not under section 178-A of MPLR Code, but it was under section 178 of MPLR Code. Even otherwise for the sake of argument, if the application Annexure P/2 is considered to be an application under section 178-A of MPLR Code, still this Court is of considered opinion that the said proceeding was vitiated. 13. Section 178-A of MPLR Code reads as under : – “178-A. Partition of land in life time of Bhumiswami. – (1) If any Bhumiswami wishes to partition his holding assessed for purpose of agriculture under section 59 or any part thereof amongst his legal heirs during his life time, he may apply for partition of such holding or part thereof to the Tahsildar. (2) The Tahsildar may after hearing the legal heirs divide the holding or part thereof and apportion the assessment in accordance with the rules made under this Code.” 14. (2) The Tahsildar may after hearing the legal heirs divide the holding or part thereof and apportion the assessment in accordance with the rules made under this Code.” 14. The use of words “amongst his legal heirs” in section 178-A of MPLR Code and the use of word “legal heirs” in sub-section (2) section 178-A of MPLR Code makes it clear that the Naib Tahsildar should have given an opportunity of hearing to all the legal heirs and not to some of the legal heirs mentioned in the application. 15. It is submitted by the counsel for the petitioners that in fact only those legal heirs are required to be heard amongst whom the Bhumiswami has decided to partition his holding. The submission made by the counsel for the petitioners cannot be accepted. The use of the word “legal heirs” cannot be confined to those legal heirs amongst whom the Bhumiswami, has decided to partition his holding otherwise the legislature would not have used the words “amongst his legal heirs.” The use of words “amongst his legal heirs” would mean all legal heirs of Bhumiswami. In the present case, it is undisputed fact that Kastoori was also one of the legal heirs of Bhaggu but she was neither heard nor any notice was given. Thus, it is clear that the partition proceedings, which have taken place in the year 1999, were vitiated. 16. So far as, the contention of the counsel for the petitioners that since the appeal filed by the respondent No. 1 was dismissed as barred by time, therefore, the Commissioner, Gwalior, Division Gwalior should not have decided the appeal on merits and at the best could have remanded the matter back to the Court of SDO after condoning the delay is concerned, in the considered opinion of this Court, the submission made by the counsel for the petitioners, appears to be correct. However, if the facts and circumstances of the case are considered, then it is clear that there is nothing on record to show that any notice was issued to respondent No. 1 as well as the Fard Batwara was ever published. In order to find out as to whether there was any sufficient cause for condonation of delay or not, the findings as to whether the respondent No. 1 was a necessary party or not, were essential. In order to find out as to whether there was any sufficient cause for condonation of delay or not, the findings as to whether the respondent No. 1 was a necessary party or not, were essential. Accordingly, it is held that no prejudice has been caused to the petitioners merely because the appellate authority has quashed the partition proceedings instead of remanding the matter back to the SDO, Bhitarwar for decision on merits. When the order of partition is bad because of non compliance of the mandatory provisions as well as because of non-compliance of principle of natural justice, then it would have been a futile attempt on the part of the Additional Commissioner to remand the matter after holding that the respondent No. 1 was a necessary party. 17. Even for the sake of argument that the Additional Commissioner should have remanded the matter to the SDO, Bhitarwar for adjudication on merits then in the teeth of findings given by Additional Commissioner, Gwalior that the respondent No. 1 was a necessary party and the partition proceedings have taken place without issuing any notice to her, then nothing was left for the SDO, Bhitarwar District Gwalior to adjudicate on the merits. 18. Under these circumstances, this Court is of the considered opinion that the order passed by Additional Commissioner, Gwalior Division Gwalior does not call for any interference. Accordingly, the petition fails and is hereby dismissed.