Madhya Pradesh High Court
Madanlal (Died) Through Lrs. Aruna ... vs Commissioner on 20 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 20 th OF DECEMBER, 2023
MISC. PETITION No. 1149 of 2022
BETWEEN:-
1. MADANLAL (DIED) THROUGH LRS.
1-A ARUNA CHOUBEY W/O LATE SHRI MADANLAL
CHOUBEY, AGED ABOUT 65 YEARS, OCCUPATION:
HOUSEWIFE R/O KHIRIYA WARD BINA TEHSIL
BINA DISTRICT SAGAR (MADHYA PRADESH)
1-B LALIT CHOUBEY S/O LATE SHRI MADANLAL
CHOUBEY, AGED ABOUT 43 YEARS, OCCUPATION:
AGRICULTURIST R/O KHIRIYA WARD BINA
TEHSIL BINA DISTRICT SAGAR (MADHYA
PRADESH)
1-C SMT. ANITA SHUKLA W/O ANAND SHUKLA D/O
LATE SHRI MADANLAL CHOUBEY, AGED ABOUT
46 YEARS, OCCUPATION: HOUSEWIFE R/O
SITARAM COLONY CANT ROAD GUNA TEHSIL
AND DISTRICT GUNA (MADHYA PRADESH)
1-D MANISHA SHUKLA W/O ASHISH SHUKLA D/O
LATE SHRI MADANLAL CHOUBEY, AGED ABOUT
39 YEARS, OCCUPATION: HOUSEWIFE R/O JAMAT
MANDIR BARA DWARI NARSINGHGARH TEHSIL
NARSINGHGARH DISTRICT RAJGARH (MADHYA
PRADESH)
2. SURESH KUMAR CHOUBEY S/O LATE SHRI
BHAGIRATH CHOUBEY OCCUPATION:
AGRICULTURIST R/O JAWAHARWARD BINA
TEHSIL BINA DISTRICT SAGAR (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI SIDDHARTH GULATI - ADVOCATE)
AND
1. COMMISSIONER SAGAR DISTRICT SAGAR
(MADHYA PRADESH)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/22/2023
6:22:08 PM
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2. COLLECTOR S A G A R DISTRICT SAGAR M.P.
(MADHYA PRADESH)
3. SUB DIVISIONAL OFFICER (REVENUE) SAGAR
BINA DISTRICT SAGAR M.P. (MADHYA PRADESH)
4. TEHSILDAR SAGAR BINA DISTRICT SAGAR M.P.
(MADHYA PRADESH)
5. SMT. RAMBATI BAI W/O LATE SHRI
RAMNARAYAN CHOUBEY OCCUPATION: NIL R/O
ACHWAL WARD BINA TEHSIL BINA DISTRICT
SAGAR M.P. (MADHYA PRADESH)
6. SMT. RAMBATI BAI D/O LATE SHRI BHAGIRATH
CHOUBEY W/O B.B. SHARMA OCCUPATION: NIL
R/O PRATAP WARD KHURAI TEHSIL KHURAI
DISTRICT SAGAR M.P. (MADHYA PRADESH)
7. SMT. INDRA GURU D/O LATE SHRI BHAGIRATH
CHOUBEY W/O OMKAR PRASAD GURU
OCCUPATION: NIL R/O NEAR COLLECTOR
BANGLOW GOURAIYA BABA DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)
8. MANOJ KUMAR CHOUBEY S/O LATE SHRI
RAMCHARAN CHOUBEY OCCUPATION: NIL R/O
ACHWAL WARD BINA TEHSIL BINA DISTRICT
SAGAR M.P. (MADHYA PRADESH)
9. ASHOK KUMAR CHOUBEY S/O LATE SHRI
RAMCHARAN CHOUBEY OCCUPATION: NIL R/O
ACHWAL WARD BINA TEHSIL BINA DISTRICT
SAGAR M.P. (MADHYA PRADESH)
10. VANDANA D/O LATE SHRI RAMCHARAN
CHOUBEY OCCUPATION: NIL R/O ACHWAL WARD
BINA TEHSIL BINA DISTRICT SAGAR M.P.
(MADHYA PRADESH)
11. MEENA D/O SHRI RAMCHARAN CHOUBEY
OCCUPATION: NIL R/O ACHWAL WARD BINA
TEHSIL BINA DISTRICT SAGAR M.P. (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI PRADEEP DWIVEDI - PANEL LAWYER FOR RESPONDENTS
4/STATE AND SHRI ASHISH SHROTI - ADVOCATE FOR RESPONDENTS 5-
11 )
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/22/2023
6:22:08 PM
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This petition coming on for admission this day, th e court passed the
following:
ORDER
This misc. petition has been preferred by petitioners/defendants
challenging the order dtd. 03.02.2022 passed by Additional Commissioner,
Sagar Division, Sagar in case no.1074/A-27/2016-17 whereby learned
Additional Commissioner has reversed the order dtd. 07.02.2017 passed by
SDO as well as the order dtd. 08.03.2002 passed by Tahsildar and matter has
been remanded to Tahsildar for decision of the application under Section 178
of MP Land Revenue Code, 1959 (in short 'MPLRC') afresh.
2. Learned counsel for the parties concedes that in pursuance of the
judgment and decree of partition dtd.23.01.1999 affirmed vide judgment and
decree dtd.15.02.2000 passed in civil appeal by first appellate court and final
order dtd.06.04.2018 passed in SA No.580/2000, none of the parties has filed
any application for execution of decree of partition.
3. It is apparent on record that during pendency of second appeal
No.580/2000, in which stay order was passed on 13.07.2000 regarding
finalization of the partition proceedings, one of the defendants (Tulsa Bai) filed
an application under Section 178 of the MPLRC before the Tahsildar
suppressing the factum of pendency of second appeal and the order of stay
granted on 13.07.2000, resultantly the order of partition was passed on
08.03.2002, which by the impugned order dtd. 03.02.2022 has been set aside by
Additional Commissioner with the further direction to Tahsildar to decide the
application for partition afresh.
4. Learned counsel for respondents in support of his contention about
procedure for execution of such decree, placed reliance on an order of this
Court passed on 07.12.2023 in MP No.4734/2023 (at Jabalpur) (Smt.
Ushabai and Anr. vs. Sarubai and Ors.), para 15 of which is reproduced as
under :
"15. Taking into consideration the law laid down by
Supreme Court in the case of M/s Trinity Infraventures
Ltd. and Ors. Etc. (supra); Shub Karan Bubna @ Shub
Karan Prasad Bubna & Ors. (supra); Bikoba Deora
Gaikwad & Ors. (supra) and by Division Bench of this
Court in the case of Bhagwansingh (supra), it can be
said that in suit of partition of agricultural land, Civil
Court has only power to declare the shares of parties
and it has no other power and after exercising that
power, the Court becomes functus officio. After
declaration of shares by the Court, initial application
for an order for execution has to be made in the Civil
Court, who will send requisite papers to the
Collector/Revenue Authority but the actual execution
by effecting partition and delivery of possession is to
be made only by the Collector/Revenue Authority.
Hence, the Civil Court has no power to do this exercise
even if the parties agree to it."
5. In view of the aforesaid factual scenario and in view of the admitted
fact that till now no application for execution has been filed by any of the
parties to the suit, this petition deserves to be disposed off by setting aside the
orders dtd. 08.03.2002 passed by Tahsildar, order dtd. 07.02.2017 passed by
SDO and order dtd. 03.02.22 passed by Additional Commissioner, with the
further direction to the respondents 5-Rambati Bai, 8-Manoj Kumar, 9-Ashok
Kumar, 10-Vandana & 11-Meena (who are legal representatives/successors of
original plaintiff-Ramnarayan) to file application for execution before the
concerning civil/executing court for execution of the decree dtd. 23.01.1999
within a period of 30 days. If such application is not filed by respondents
5,8,9,10&11, then other defendants/parties to the decree may file application for
execution before the civil court after 30 days.
6. If such an application for execution of decree is filed by any of the
parties to the judgment and decree, the executing court shall proceed further
with the execution in accordance with law and in view of the provisions
contained in section 54 of the CPC as well as in accordance with the directions
already issued vide para 15 of the order dtd. 07.12.2023 in M.P.
No.4734/2023 (supra).
7. With the aforesaid observations, this misc. petition is disposed off.
8. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
ss
