Madhya Pradesh High Court
Mohd. Mehbub vs Mohd. Mateen on 16 December, 2021
Author: Vivek Agarwal
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No.29723/2018
Jabalpur, dated 16/12/2021
Shri Shiv Kumar Sharma, learned counsel for the
petitioner.
Shri Shobhitaditya, learned counsel for respondent
No.2.
Shri Janak Lal Soni, learned counself or respondents
No.4.
Smt. Sonali Biswas, learned Panel Lawyer for the
respondents No.5, 6 and 7.
Petitioner's contention is that Tahsildar, Circle No.2,
Tahsil, Huzur, Bhopal in Case No.29/v-27/2016-17 had
passed order dated 27/09/2017 accepting family partition
without obtaining signatures of the consenting party or
contesting party on the Phard Bataan. Being aggrieved of
this order passed by Naib Tahsildar, appeal was filed before
the Court of Sub Divisional Officer, Tahsil, Huzur, Distt.
Bhopal which was allowed by Sub Divisional Officer vide
order dated 09/02/2018. Against this order one Mohd.
Mateen had filed appeal before the Court of Commissioner
which has vide order dated 5/12/2019 despite recording a
finding that except for defendant No.1-Mohd. Mehboob, all
are in agreement with Phard Bataan but all the parties have
not signed as a token of agreement, has no material affect
and that cannot have impact on the proceedings of
partition.
Shri Shiv Kumar Sharma, learned counsel for the
petitioner has placed reliance on the judgment in the case
of Narendra Singh and another Vs. Ranjit and others,
1995 R.N. 230 and submits that if application was not
made inviting objections and so called partition deed is
not signed by all the joint holders, then such partition
deed is illegal.
Shri Shobhitaditya, learned counsel for respondent
No.2 and Shri Janak Lal Soni, learned counself or
respondents No.4, support the order of the Commissioner.
However, perusal of rules regarding partition of
holding under Section 178 of M.P. Land Revenue Code as
were notified on 6th January, 1960, in Rule 6 provides that
after partition has been completed, Tahsildar shall hear
any objection which the parties may make, and shall
either amend or confirm the partition. The partition shall
take effect from the commencement of agriculture year
next following the date of such amendment or
confirmation. In fact ratio of law is that if there is an
order purportedly passed on the basis of consent or
compromise, then that deed of compromise or the
Panchnama on the basis of which partition took place,
must be signed by all the concerned parties and in
absence of signatures of all concerned parties, it cannot be
said that it is a valid document.
Even the reasoning of Section 58 of Evidence is
that a fact may not need to be proved in any proceeding
which the parties thereto agree to admit at the hearing or
which before hearing, they agreed to admit by any writing
under their hands, or which they admitted by their
pleadings, even in that case the Court may, in its
discretion, even if such an admission has been made by
the parties, require the fact admitted to be proved
otherwise then by such admission.
It is well settled that a true and clear admission
would provide the best proof of the facts admitted and
that true and clear admission can be deduced only that the
signature on the Phard Batwaara and if signatures are
not, then it cannot be treated to be admission in terms of
Section 58 of Evidence Act. Thus, the impugned order
passed by the Commissioner is set aside. The order of
Sub Divisional Officer is given a seal of approval. The
matter is remanded to Naib Tahsildar, Tahsil, Huzur,
Distt. Bhopal to give opportunity of hearing to the parties
afresh and pass fresh order on its own merits.
In above terms, the writ petition is allowed and
disposed of.
(VIVEK AGARWAL)
JUDGE
TULSA SINGH
2021.12.17
10:06:18 +05'30'
