Madhya Pradesh High Court
Mehmud Khan vs Maksud on 24 March, 2022
Author: Sunita Yadav
01
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 24th OF MARCH, 2022
MISC. PETITION No. 1699 of 2017
Between:-
MEHMUD KHAN S/O LATE SHRI ABDUL
HAMID , AGED ABOUT 59 YEARS,
OCCUPATION: AGRIL. SHEOPUR (MADHYA
PRADESH)
....PETITIONER
(BY SHRI P.C. CHANDRIL, ADVOCATE)
AND
1. MAKSUD S/O SHRI HAZI REHMATULLAH
IMAM BADA (MADHYA PRADESH)
2. LATE MAHILA HAFIZAN DECEASED THR.
LRS ZAMIL S/O LATE KHALILURREHMAN
OCCUPATION: NA IMAM BADA, SHEOPUR
(MADHYA PRADESH)
3. LATE MAHILA HAFIZAN DECEASED THR.
LRS PAPPU @ RIYAZ S/O LATE
KHALILURREHMAN OCCUPATION: NA
IMAM BADA, SHEOPUR (MADHYA
PRADESH)
4. MAHILA NOORJAHAN WD/O HUSAINA
DECEASED THR SIKANDAR KHAN S/O
LATE SHRI HUSAINA OCCUPATION: NA
KISHORE PURA, GHOSI MOHALLA, KOTA
(RAJASTHAN)
5. MAHILA NOORJAHAN WD/O HUSAINA
DECEASED THR NIZAMUDDIN @ BALLU
S/O LATE SHRI HUSAINA OCCUPATION: NA
KISHORE PURA, GHOSI MOHALLA, KOTA
(RAJASTHAN)
6. MAHILA NOORJAHAN WD/O HUSAINA
02
DECEASED THR NISAR S/O LATE SHRI
HUSAINA OCCUPATION: NA KISHORE
PURA, GHOSI MOHALLA, KOTA
(RAJASTHAN)
7. MAHILA NOORJAHAN WD/O HUSAINA
DECEASED THR SMT. KAMAR QURESHI
W/O SAKEEL QURESHI D/O LATE SHRI
HUSAINA OCCUPATION: NA BARODA
ROAD, SHEOPUR (MADHYA PRADESH)
8. MAHILA NOORJAHAN WD/O HUSAINA
DECEASED THR SMT. NISHSHO W/O PAPPU
D/O LATE SHRI HUSAINA OCCUPATION: NA
WARD NO. 112 KASBA SHEOPUR (MADHYA
PRADESH)
9. SHARIF ALIAS NATTHU S/O HAZI
REHMATULLAH OCCUPATION: NA
SHEOPUR (MADHYA PRADESH)
10. SMT. CHHOTI BAI W/O ABDUL HAMID
OCCUPATION: NA SHEOPUR (MADHYA
PRADESH)
11. SMT. ALAMARA W/O MOHAMMAD KHALID
OCCUPATION: NA SHEOPUR (MADHYA
PRADESH)
12. SMT. ASMA W/O ABDUL HAMID
OCCUPATION: NA SHEOPUR (MADHYA
PRADESH)
13. LATE ABDUL RASHID DECEASED THR. LTS
UBEJ AFZAL S/O LATE ABDUL RASHID ,
AGED ABOUT 60 YEARS, OCCUPATION: NA
KANDEL BAZAR (MADHYA PRADESH)
14. LATE ABDUL RASHID DECEASED THR. LTS
UBEJ AFZAL S/O LATE ABDUL RASHID ,
AGED ABOUT 60 YEARS, OCCUPATION: NA
KANDEL BAZAR (MADHYA PRADESH)
15. LATE ABDUL RASHID DECEASED THR. LTS
NAVED S/O LATE ABDUL RASHID , AGED
ABOUT 45 YEARS, OCCUPATION: NA ANTA
03
(RAJASTHAN)
16. TASLIM D/O LATE ABDUL RASHID , AGED
ABOUT 50 YEARS, OCCUPATION: NA ANTA
(RAJASTHAN)
17. WASIM S/O LATE ABDUL RASHID , AGED
ABOUT 48 YEARS, OCCUPATION: NA
LAKHERI (RAJASTHAN)
18. RUBI D/O ABDUL RASHID , AGED ABOUT 40
YEARS, OCCUPATION: NA CHAWANI
CHAURAHA (RAJASTHAN)
(BY SHRI ANURAJ SAXENA, ADVOCATE )
....RESPONDENTS
...............................................................................................
This petition coming on for hearing this day, the court passed
the following:
ORDER
The present petition has been filed under Article 227 of the
Constitution of India assailing the order dated 30.08.2017 passed in
case No.2A/96x08 Execution by Civil Judge, Class-I, Sheopur (M.P.).
2. The brief facts giving rise to present petition are that a suit for
partition with respect to the agricultural land filed by the decree
holder respondents No. 1 to 3 against the petitioner and respondents
no. 4 to 9 decreed by the court of Civil Judge Class-I, Sheopur (M.P.)
vide judgment dated 28.05.2000 whereby it held 1/5th share of Abdul
Hamid, Sharif alias Nattha, Abdul Rashid all sons of Rehmatullah and
1/10th share of decree holder Hafizan, Norrjahan, and it was further
held that the parties will be entitled to have possession of the land in
accordance with their share and also passed the decree of means profit
@ Rs.5,000/- per year, on filing the appeal, the appellate court set
aside the decree of means profit. Thereafter, the decree holder filed
execution before the court below and the same has been numbered as
Case No. 2A/96x08 Execution. Petitioner/judgment debtor filed an
application u/S.54 CPC r/w Order 26 Rule 13 of CPC and Order 31
Rule 35 of CPC stating therein that at this stage, possession cannot be
given which was dismissed by the order impugned.
3. Learned counsel for the petitioner argued that the order
impugned is manifestly illegal and without jurisdiction. No final
decree has been passed in the case, therefore, the question of filing
any execution proceeding by the decree holder does not arise. Hence,
the execution application filed by the plaintiff/decree holder is not
maintainable and the same deserves to be dismissed. The court below
without considering the prayer of the petitioner dismissed the
application vide order impugned, therefore, the same deserves to be
dismissed. He has further argued that suit of the plaintiff/decree
holder/respondent was with respect to the agricultural land. For
partition of the agricultural land, only revenue authority Tehsidlar is
empowered u/S.178 of MP Land Revenue Code and the civil court
has no jurisdiction for the same. The trial Court as well as the
appellate court can only declare the share of parties in the suit
property. So far as the division of the suit land is concerned, an
application u/S. 178 of MP Land Revenue Code should have been
filed before the Tehsildar. In such circumstances, the execution court
has no jurisdiction to issue warrant for possession.
4. On the other hand, learned counsel for the respondents
submitted that the impugned order is in accordance with settled
principle of law and need not to be interfered with.
5. Heard learned counsel for the parties and perused the material
available on record.
6. On perusal of record, it reveals that the suit filed by the
plaintiff/decree holder/respondent was with respect to the agricultural
land, therefore, civil Court can only declare the share of parties in
respect to the suit property. As per the provisions of Section 178 of
M.P. Land Revenue Code for partition of agricultural land, the
appropriate authority is Tehsildar who is empowered under the said
provision for partition of the holdings. It is also pertinent to mention
here that in the present case, final decree of partition has not been
prepared by the trial court and without any final decree, execution
proceeding in respect to the delivery of possession has been started
which is against the procedure prescribed by law. Without any final
decree of partition of land and without any proposed batankan and
objections thereof, final batankan cannot be carried out. In view of
the above, the arguments of learned counsel for the petitioner is found
to be valid that without any final decree, the question of filing any
execution proceeding by the decree holder does not arise.
7. Consequently, the order impugned is found to be against the
settled principle and prescribed procedure of law.
8. Therefore, present petition is allowed and the order impugned
dated 30.08.2017 passed by Civil Judge, Class-I, Sheopur (M.P.),
report of Tehsildar, Circle-3, Premsar, Tehsil Sheopur (M.P.), dated
04/12/2017 and the paper proceedings of Revenue Inspector, Circle-3,
Premsar, Tehsil Sheopur (M.P.), dated 30/11/2017 are hereby set
aside.
(SUNITA YADAV)
vpn JUDGE
VIPIN KUMAR
AGRAHARI
2022.03.29
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
12:06:09
+05'30'
