Kishorilal vs Brijlal And Others

Sanjay Dwivedi, J

By the instant petition filed under Article 227 of the Constitution of India, the petitioner is challenging the order dated 22.12.2020 (Annexure-P/1)

passed by the Additional Commissioner, Narmadapuram Division, Hoshangabad (MP), whereby a second appeal preferred by the petitioner under

Section 44(2) of the Madhya Pradesh Land Revenue Code, 1959 (in short the 'Code 1959') was dismissed by the Appellate Authority affirming the order passed by the Sub Divisional Officer, Multai, District Betul on 04.08.2017.

As per the facts of the case, respondent No.1 namely Brijlal moved an application under Section 178 of the Code 1959 before the Tahsildar, Tahsil

Multai, District Betul, for partition of his parental land bearing khasra Nos.47, 159, 161, 248, 249, 250, 273 and 276 total area measuring 49.86 acres and khasra Nos.277 and 45, total area measuring 3.66 acres. The Tahsildar, in turn, vide order dated 17.03.2016 (Annexure-P/6) had allowed the said application in pursuance to partition (batwara) took place on 04.06.1995 according to which, the parties were in possession and as such, directed that separate revenue record be created and name of respondent No.1 be recorded in the same.

The said order of the Tahsildar was assailed by the petitioner by filing an appeal before the Sub Divisional Officer and, in turn, vide order dated

04.08.2017 the appeal preferred by the petitioner was dismissed by the Appellate Authority saying that the order passed by the Tahsildar on

17.03.2016 is reasoned one and the same does not call for any interference. Thereafter, a second appeal was also preferred before the Additional

Commissioner, Narmadapuram Division, Hoshangabad mentioning therein that in a civil suit preferred before the trial Court, a decree was passed in favour of the plaintiffs, but the Authority has passed the order of partition which is not in consonance with the partition decree passed in the civil suit.

The Appellate Authority after considering the contentions of the parties, arrived at a conclusion that the judgment and decree passed by the civil Court was assailed by the petitioner by filing an appeal and in the said appeal, no interim order was passed by the Court staying the operation of the judgment and decree. It is also observed by the Appellate Authority that the Tahsildar in its order dated 17.03.2016, took note of the decree passed by the civil Court in Civil Suit No.77-A/2011 and thereafter, approved the partition. However, it is also observed by the Appellate Authority that if in a pending appeal, the judgment and decree passed in the civil suit is modified or is set aside then the orders of the Revenue Authorities would be modified accordingly. It is observed by the Commissioner that the order passed by the civil Court is binding upon the Revenue Authorities and if any change is made in the order passed in a pending appeal, the order of the Revenue Authorities would be modified accordingly. Considering the aforesaid aspect, the second appeal preferred by the petitioner has also been dismissed.

After considering the submissions made by learned counsel for the petitioner and also perusing the record, I do not find any infirmity in the orders passed by the Revenue Authorities. The Commissioner (Revenue) has rightly observed that if any order is passed in a pending appeal in which judgment and decree passed in Civil Suit No.77-A/2011 is sub judice, the orders passed by the Revenue Authorities would be modified accordingly because the order passed by the civil Court is binding effect over the orders passed by the Revenue Authorities.

Since the Tahsildar passed the order taking note of the judgment and decree of the civil Court and thereafter, the Appellate Authorities after taking note of the said fact, have also observed that while passing the order on an application filed under Section 178 of the Code 1959, no illegality was committed by the Tahsildar and the partition was in consonance with the decree passed in civil suit, therefore, the petition appears to be without any

substance.

Accordingly, the petition filed by the petitioner being sans merit, is hereby dismissed.