Brajendra Singh And Others vs Aditya Pratap Singh And Others

This petition is under Article 227 of the Constitution of India questioning the validity of the order dated 23.04.2019 (Annexure-P/5) whereby the

Additional Commissioner Rewa Division has rejected the appeal filed by the present petitioners on the ground of delay of 9 years as no sufficient

reason was assigned for condoning the delay.

The original dispute arose when Tehsildar decided the application filed by respondent No.2 under Section 178 of M.P. Land Revenue Code, 1959 and

Tehsildar vide order dated 14.09.2004 decided the same in pursuance to the judgment and decree passed by the Civil Court.

The order passed by the Tehsildar was further assailed by the present petitioners by filing an appeal before the SDO, who has dismissed the appeal

vide order dated 28.06.2010. The SDO in its order has examined the correctness of the order passed by the Tehsildar and observed that the

application under Section 178 has been allowed and partition done in pursuance to the judgment and decree passed by the Civil Court. He has also

examined that the Tehsildar has followed proper procedure and also issued notice to the respective parties and before the Sarpanch of the Gram

Panchayat and other villagers, the Fard Batwara Pulli was prepared.

The order passed by the Tehsildar was further assailed by respondent No.1 namely Aditya Pratap Singh. The said appeal was finally dismissed as

abated vide order dated 08.03.2019.

The learned counsel for the petitioners submits that the present petitioners have authorized Aditya Pratap Singh to file an appeal against the order of

SDO also on behalf of the present petitioners but it had been filed only in the name of Aditya Pratap Singh and the petitioners were not made aware

of such mischief. Therefore, they moved an application on 26.02.2019 under order 1 Rule 10 of CPC in the said pending appeal filed by Aditya Pratap

Singh but the Commissioner without deciding the said application passed an order dated 08.03.2019 dismissing the appeal as abated. Thereafter, the

petitioners have also challenged the order passed by the SDO by filing separate appeal and that appeal was dismissed by the Additional Commissioner

by the impugned order dated 23.04.2019 saying the appeal is barred by time and for the delay of 9 years, no proper explanation was given.

In the order passed by the Additional Commissioner, it is clearly mentioned that on 26.02.2019 an application had been moved for impleading the party

by the present petitioners through counsel namely Shri Rajesh Dwivedi, who had also filed an appeal on behalf of Aditya Pratap Singh and on the date

i.e. 08.03.2019 he was very much present before the Court and on his consent, the Additional Commissioner dismissed the appeal as abated but said

counsel did not apprise the Additional Commissioner about moving an application by the present petitioners under Order 1 Rule 10 CPC on

26.02.2019. Another appeal challenging the same order of SDO by the present petitioners had also been filed by the same counsel namely Rajesh

Dwivedi. It is surprising that when the SDO decided the appeal of the petitioners on 28.06.2010 they sat silent for almost 9 years and moved the

application all of a sudden on 26.02.2019 under Order 1 Rule 10 CPC. There was no explanation given as to how they woke-up and sought the

information regarding their pending appeal. The petitioners could have challenged the order of abatement saying that their application under Order 1

Rule 10 of CPC was pending and not decided but instead of doing so they preferred another appeal, which was rightly dismissed by the Commissioner

on the ground of delay. Even otherwise, from a perusal of the order passed by the SDO it is clear that the Tehsildar has allowed the application under

Section 178 of the Code and partitioned the property on the basis of judgment and decree passed by the Civil Court. The petitioners are also at liberty

to get the said judgment and decree set aside and can approach the authority if the decree is modified or reversed but the order passed by the

Additional Commissioner does not suffer from any patent illegality nor is a sign of exceeding.

With the aforesaid observations, the petition is dismissed.