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2021 DIGILAW 100 (MP)

Jhanak Singh v. Laxman Bajaj

2021-02-03

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This petition filed under Article 227 of the Constitution of India has been filed against the order dated 01.05.2020 passed by the Additional Commissioner, Bhopal Division Bhopal in Case No. 271/Appeal/2019-2020 by which the order dated 29.06.2019 passed by S.D.O. Sehore in Appeal No. 0132/Appeal/2017-2018 has been affirmed. 2. The case of the petitioner in short is that the petitioner filed an application under Section 178 of the Madhya Pradesh Land Revenue Code, 1959 (in short "the Code") for partition of agricultural lands bearing Survey Nos. 46 area 3.30 acres, 51/1 area 7.60 acres, 51/3 area 3.57 acres and 51/5 area 2.88 acres total area 17.35 acres situated at village Jharkhed, Sehore. It is the case of the petitioner that he has 30% share in the property whereas respondent No. 2 has 20% share. Respondent No. 3 has 30% share and remaining 20% shall fell to the share of Smt. Rameshwari W/o Ramsingh and Yashwant Singh S/o Ram Singh which was sold to respondent No. 1 by registered sale deed dated 09.11.2004. 3. On an application filed by the petitioner under Section 178 of MPLR Code, the Tehsildar issued an advertisement and a fard batwara was obtained and after recording the statements of the parties and on the basis of consensus, an order of partition dated 27.9.2017 was passed. 4. Respondent No. 1 being aggrieved by the order of Tehsildar preferred an appeal before the Court of S.D.O. (Revenue) District Sehore which was registered as Appeal No. 0132/Appeal/2017-2018 and the said appeal was allowed by the S.D.O. by order dated 29.06.2019, thereby setting aside the order dated 27.09.2019 passed by the Tehsildar. 5. Being aggrieved by the order of S.D.O., petitioner preferred an appeal before the Additional Commissioner, Bhopal Division Bhopal which too has been dismissed by the impugned order. 6. Challenging the orders passed by the S.D.O. as well as the Additional Commissioner, Bhopal Division Bhopal, it is submitted by the counsel for the petitioner that the petitioner and respondents No. 2 and 3 are real brothers whereas the respondent No. 1 is the purchaser from the widow of deceased brother of the petitioner. Respondent No. 1 had purchased the undivided share of 20% of Rameshwari Bai widow of Ram Singh (brother of the petitioner). Respondent No. 1 had purchased the undivided share of 20% of Rameshwari Bai widow of Ram Singh (brother of the petitioner). It is submitted by counsel for the petitioner that he has no objection to the sale deed executed by Rameshwari Bai in favour of respondent No. 1 but it is clear from the sale deed that Rameshwari W/o Ram Singh and Yashwant Singh S/o Ram Singh had sold their undivided share of 20% and no specific piece of land was sold. It is further submitted that various civil and revenue litigations have taken place between the parties and the petitioner had filed a civil suit for declaration of title and permanent injunction whereas respondent No. 1 had filed his counter claim and in Regular Civil Appeal No. 39-A/2016 by judgment and decree dated 21.12.2016 passed by the District Judge, Sehore, the civil suit filed by the petitioner as well as the counter claim filed by respondent No. 1 was dismissed. However, it was also observed that the judgment and decree passed by the appellate court shall not have any effect on the rights of the parties to get the land partitioned from the revenue authorities. It is submitted that inspite of dismissal of the civil suit of the petitioner and counter claim of the respondent No. 1, the authorities have come to the conclusion that in view of the facts that both the parties have executed various sale deeds therefore it is clear that the oral partition had already taken place. It is submitted that this finding of the revenue authorities is contrary to the judgment and decree passed by the Civil Court. 7. Per contra, the petition is vehemently opposed by counsel for the respondent No. 1. It is submitted by counsel for respondent No. 1 that all the parties including the petitioner have sold various specific pieces of land which clearly indicates that oral partition had already taken place. So far as the sale deed executed in favour of the respondent No. 1 is concerned, it is specifically mentioned that the specific piece of land which is in possession of the seller i.e. Rameshwari W/o Ram Singh and Yashwant Singh S/o Ram Singh, has been sold. Thus, it is clear that vide sale deed dated 09.11.2004 (Annex. R/2), the specific piece of land was sold to respondent No. 1. Thus, it is clear that vide sale deed dated 09.11.2004 (Annex. R/2), the specific piece of land was sold to respondent No. 1. I have heard learned counsel for the parties at length. 8. The S.D.O. in its order date 29.6.2019 has given the following findings which have not been disputed and challenged by the petitioner :- ^^Ádj.k esa layXu nLrkostksa ls ;g Kkr gks tkrk gS fd lg[kkrs dh Hkwfe dk uke dsoy jkes'ojh ckbZ ,oa ;loar flag tks fd jkeflag ds okfjl gS ds }kjk Á'uk/khu Hkwfe;ksa ls vius fgLls ,oa dCts dk foØ; fd;k x;k oju~ ÁfrvihykFkhZ }kjk Hkh vU; yksxksa dks Hkwfe dk foØ; fd;k x;k gSA Ádj.k esa layXu jftLVMZ foØ; i=ksa dh Nk;kÁfr ds voyksdu ls ;g Li"V gksrk gS fd lg[kkrs dh Hkwfe dk fcuk caVokjk djk;s igyk foØ; Lo;a ÁfrvihykFkhZ >udflag }kjk fnukad 19-12-2003 dks fd;k x;k] ftlesa mlus 0-006 gs- Hkwfe jftLVªh }jk /kuohj flag dks foØ; dhA blh Ádkj nwljk foØ; >udflag }kjk fnukad 03-07-2004 dks 35 xqf.kr¾1050 oxZQqV Hkwfe lqjs'k] eqds'k] jkds'k firk nsohyky dks jftLVªh }kjk foØ; dh >udflag }kjk rhljh foØ; fnukad 07-02-2005 dks fd;k x;k ftlesa mlds }kjk vkseÁdk'k dq'kokgk firk rqylhjke dks 10 xqf.kr 35¾350 oxZQqV Hkwfe foØ; dh xbZA blds ckn Hkh >udflag }kjk vkseÁ'k ds lkFk la;qDr #i ls NksVsyky firk uUuwyky dks 12 xqf.kr 35¾420 oxZQqV Hkwfe fnukad 23-03-2006 dks foØ; dh xbZA jkes'ojh ckbZ ,oa ;'koar flag }kjk y{e.k ctkt dks ckn Hkwfe dk foØ; fnukad 09-11-2004 dks fd;k gSA blls ;g Li"V gks tkrk gSA fd Á'uk/khu Hkwfe ds lg[kkrsnkjksa }kjk vius&vius dCts okyh Hkwfe dks foØ; ds iwoZ vkilh caVokjk dj fy;k x;k FkkA blh vkilh caVokjs ,oa dCts ds vk/kkj ij jkeflag ds okfjlksa }kjk vihykFkhZ y{e.k ctkt dks Hkh okn Hkwfe dk foØ; fd;k x;kA** 9. Thus, it is clear that the petitioner himself had sold 0.006 hectares of land to Dhanveer Singh by registered sale deed dated 19.12.2003. Similarly, another registered sale deed was executed by the petitioner on 03.07.2004 in favour of Suresh, Mukesh and Rakesh of 1050 sq.ft. The third sale deed was executed by the petitioner on 07.02.2005 in favour of Omprakash Kushaha of 350 Sq.ft of land. The fourth sale deed was executed by the petitioner alongwith Omprakash to chhotelal by registered sale deed dated 23.03.2006 of 420 Sq.ft. The third sale deed was executed by the petitioner on 07.02.2005 in favour of Omprakash Kushaha of 350 Sq.ft of land. The fourth sale deed was executed by the petitioner alongwith Omprakash to chhotelal by registered sale deed dated 23.03.2006 of 420 Sq.ft. When attention of counsel for the petitioner was drawn towards this factual finding of fact than he admitted that it is true that the petitioner has also executed four sale deeds in favour of four different purchasers but verbally submitted that he has merely sold his share and not any specific piece of land. When the counsel for the petitioner was directed to point out from his pleadings as well as to whether he has filed the copies of sale deeds in order to dislodge the findings of fact recorded by the S.D.O. (Revenue) Sehore District Sehore than it was fairly conceded by the counsel for the petitioner that neither he has pleaded in the writ petition that the sale deed executed by the petitioner were not in respect of any specific piece of land nor he has filed the copies of the sale deeds in order to dislodge the findings of fact recorded by the S.D.O. (Revenue) Sehore District Sehore. In order to come to a conclusion that an oral partition had already taken place between the parties, the S.D.O. (Revenue) Sehore District Sehore has relied upon the sale deeds executed by the petitioner and he has not tried to controvert the said findings. Therefore, this court is left with no other option but to draw an adverse inference against the petitioner that he himself has executed four different sale deeds in favour of four different purchasers for a specific piece of land. If an oral partition had not taken place between the parties than there was no occasion for the petitioner to sell specific piece of land forming part of the joint property. 10. The contention of counsel for the petitioner that in the sale deed dated 09.11.2004, the joint boundaries of the entire property have been mentioned and, therefore, it should be presumed that the sellers, namely, Rameshwari Bai and Yashwant had sold their 20% share and not a specific piece of land is concerned, the same cannot be accepted. 11. 10. The contention of counsel for the petitioner that in the sale deed dated 09.11.2004, the joint boundaries of the entire property have been mentioned and, therefore, it should be presumed that the sellers, namely, Rameshwari Bai and Yashwant had sold their 20% share and not a specific piece of land is concerned, the same cannot be accepted. 11. As already pointed out that since the petitioner himself had sold four pieces of land out of the joint property, therefore, it is clear that an oral partition had already taken place and it is clear from the impugned sale deed dated 09.11.2004 that the sellers had sold that piece of land which was in their possession. The relevant part of the sale deed reads as under :- ^^4-----------------------------------------------blfy, ge foØsrkx.k vius LokfeRo o vkf/kiR; LoRo gd vf/kdkj o fgLls rFkk dCts dh Hkwfe [k-u- 46] jdck 1-335 gs- yxkuh 10&12 #i;s esa ls cnnj jdck 0-267 gsDVs;j yxkuh 2&03 #i;s vflafpr nks Qlyh; Hkwfe fLFkr xzke >j[ksM+k rglhy o ftyk flgksj d`f"k Á;kstu gsrq bl nLrkost foØ; i= ds }kjk foØ; dh tk jgh gSA** 12. Thus, it is clear that the land which was in possession of the sellers was sold to the respondent No. 1. 13. It is the case of the petitioner that the joint property has not been partitioned and, therefore, he had moved an application under section 178 of the MPLRC for partition of the property but at the same time he himself has admitted that he has also executed atleast four sale deeds in favour of four different purchasers. Thus, the petitioner by his own conduct is estopped from claiming that the property in question was never partitioned otherwise there was no occasion for the petitioner to execute atleast four sale deeds in favour of four different persons. The conduct of the petitioner itself shows that an oral partition had taken place between the parties and after the partition the parties had started selling the agricultural piece of land which had fallen to their share. 14. It is also the contention of the respondent No. 1 that the petitioner is unnecessarily moving the applications again and again and similar application which was already dismissed and which was affirmed upto the stage of High Court. 14. It is also the contention of the respondent No. 1 that the petitioner is unnecessarily moving the applications again and again and similar application which was already dismissed and which was affirmed upto the stage of High Court. The Naib Tehsildar, Circle Doraha, District Sehore even after taking the note of first round of litigation allowed the application filed by the petitioner. 15. No jurisdictional error could be pointed out by the counsel for the petitioner. Accordingly this petition fails and is hereby dismissed.