Jogendra Singh vs Anup Singh

S.K. Gangele, J.—Heard. The petitioners have filed this petition against the orders dt. 7.2.2013 (Annexure P/1) and dt. 24.1.2013 (Annexure P/2).

2.The respondents submitted an application for partition of agricultural land of survey Nos. 179, 180, 181, 196/2, 196/3(b) and 255 total area 13.697 hectare situate at village Chhailbagh, Tahsil and District Ashok Nagar. Patwari submitted partition before the Tahsildar. Thereafter, the Tahsildar ordered for publication on 29.11.2011. The case was fixed on 15.12.2011. On the aforesaid date, Patwari submitted the partition report and the same was accepted by the Tahsildar vide order dt. 15.12.2011. It is mentioned in the order that there was no objection on publication about partition, hence, it is accepted.

Against the aforesaid order, the petitioners preferred an appeal before the SDO, Ashok Nagar. The SDO observed that the land is of co-ownership of the appellants and respondents. The case was listed on 29.11.2011 before the Tahsildar. Thereafter, a memorandum of settlement was ordered to be published and the case was listed on 15.12.2011. On the aforesaid date, the Tahsildar accepted the partition but the counsel for the petitioners noted the date as 23.12.2011. SDO further observed that it was not possible to publish the memorandum and pass the order on the same date 15.12.2011. There were no signatures of co-sharers in the memorandum and publication of date was also not mentioned in the memorandum and the publication was not published as per the provisions of Section 178 of M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code). Hence, the order was illegal and thereafter the SDO allowed the appeal vide order dt. 25.7.2012. Against the aforesaid order, an appeal was filed by one respondent Anup Singh before the Commissioner, Gwalior Division, Gwalior. The Commissioner vide order dt. 24.1.2013 set aside the order of Tahsildar. It is upheld in the revision by the Board of Revenue vide order dt. 7.2.2013.

Section 178 of M.P. Land Revenue Code 1959 prescribes partition of holdings. In accordance with Section 178(2) of the Code, the Tahsildar after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code. Rules have also been made under the Code. In accordance with Rule 2 of the Rules, it is obligatory on the part of Tahsildar to issue notices in Form-A on the co-tenure holders requiring them to appear before him. Thereafter, the Tahsildar can reject the application after hearing the co-tenures holders, however, if he does not reject the application, he shall proceed, after determination the partition either personally or through such agency. After completion of partition, the Tahsildar shall hear objections which the parties make and shall either amend or confirm the partition in accordance with the rules.

From the perusal of the partition proceedings before the Tahsildar, it is clear that Tahsildar has not followed the rules made u/s 178 of the Code. In such circumstances, in my opinion, the SDO has rightly set aside the order of mutation passed by the Tahsildar and remanded the matter back to the Tahsildar. Consequently, the petition is allowed. The impugned orders dt. 7.2.2013 (Annexure P/1) and dt. 24.1.2013 (Annexure P/2) are hereby quashed. The order passed by the SDO is hereby upheld. No order as to costs.