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Madhya Pradesh High Court · body

2020 DIGILAW 362 (MP)

Koutik Gupta v. State of M. P.

2020-03-03

SANJAY DWIVEDI

body2020
ORDER 1. Heard on admission. 2. This petition is filed under Article 227 of the Constitution of India challenging the order dated 7.8.2019 (Annexure-P-1) passed by the Board of Revenue whereby the revision preferred by the respondent No. 5 has been allowed and the order passed by the Additional Commissioner, Indore was set aside. 3. As per the facts of the case, the present petitioner moved an application under section 178 of M.P. Land Revenue Code, 1959 (for brevity "Code of 1959") for getting the land partitioned i.e. situated over khasra No.24 area measuring 2.258 hectare which was recorded in the joint name of petitioner and respondent No. 5. 4. The petitioner has claimed that the petitioner and respondent No. 5 both have ½ share over the said land and accordingly there should be separate batan number made in favour of the parties. The Tahsildar registered a Revenue Case No. 53/A-27/2010-11 and passed the order on 29.5.2013 accepted the partition as claimed by the petitioner. 5. Against the said order, an appeal was preferred before the Sub Divisional Officer. The Sub Divisional Officer by order dated 10.2.2014 set aside the order of Tahsildar and accepted the appeal directing Tahsildar to correct the record according to oral partition and given batan number. Against the order of Sub Divisional Officer, second appeal was preferred before the Additional Commissioner, Indore Division, Indore and the said appeal was decided by order dated 22.12.2014 wherein the order of Sub Divisional Officer was set aside and the order of Tahsildar was maintained. 6. A revision was preferred before the Board of Revenue against the said order mainly on the ground that the oral partition took place between the parties and according to said oral partition, they were placed in possession of their respective portion and continuously holding its possession. Accordingly, the application under section 178 of the Code, 1959 is not maintainable. It is also stated that as per the statement of witnesses recorded, they have accepted the possession of the petitioner and respondent No. 5 over the share as has been given to them in an oral partition and accordingly they have been cultivating the land and taking crop from the said land. The oral partition has been accepted by the parties, therefore, that was admitted and as such second partition is not permissible. The oral partition has been accepted by the parties, therefore, that was admitted and as such second partition is not permissible. The statement of the petitioner was also recorded in which he has admitted that in half of the portion, he is cultivating the land. The petitioner before the Board of Revenue has contended that the petitioner and respondent No. 5 are the real brothers and their names are jointly recorded in the revenue record against the land in question, but he has contended that no oral partition took place between the petitioner and respondent No. 5 otherwise there would be a separate mutation in their name in respect of the land granted to him in his share. It is further contended that the Tahsildar has considered his application and duly partitioned the land, therefore, that order was not required to be interfered with. The contention of the petitioner was opposed by respondent No. 5 and thereafter the Board of Revenue in it is order has observed that after considering the statement recorded by the parties it is clear that oral partition of the land in question took place between the parties and as such they were put in possession of the land which has been cultivated by them since long. 7. The Board of Revenue observed that so far as the scope of interference in the matter by the Tahsildar when application under section 178 of the Code, 1959 is moved, is concerned, since there was no dispute in respect of the share of the parties over the land in question, the Tahsildar can partition the land by giving them separate numbers and set aside the order of Commissioner as such affirmed the order of Sub Divisional Officer. The Board of Revenue has also observed that the order of Tehsildar does not suffer from any irregularity to that extent as determined share of parties. However, the order of Tahsildar was set aside by the Sub Divisional Officer as he was not required to do fresh partition as oral partition already admitted by the parties. 8. Considering the above, it reflects that the Board of Revenue has properly appreciated the fact and impact of the order of Additional Commissioner and rightly set aside the same and did not set aside the order of Sub Divisional Officer. 8. Considering the above, it reflects that the Board of Revenue has properly appreciated the fact and impact of the order of Additional Commissioner and rightly set aside the same and did not set aside the order of Sub Divisional Officer. Since the order of Additional Commissioner is set aside, the order of Sub Divisional Officer is automatically restored and the Tahsildar has to comply with the direction of Sub Divisional Officer. 9. Accordingly, I do not find any infirmity and illegality in the order passed by the Board of Revenue. The Board of Revenue has rightly observed that once the oral partition is admitted and the parties have been put in possession in pursuance to the said oral partition, the Tahsildar was not competent to get the fresh partition done, but he could only give the separate number to the persons and direct for maintaining the separate account as per the oral partition. Thus, the order of Sub Divisional Officer is rightly maintained and the Tahsildar has to comply with the direction issued by the Sub Divisional Officer. 10. The petition being without any substance, is hereby dismissed.