Madhya Pradesh High Court
Devakabai vs State Of M.P. on 27 January, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 27th OF JANUARY, 2025
WRIT PETITION No. 7299 of 2023
DEVAKABAI
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Jayant Prakash Patel - Advocate for petitioner.
Shri Pradeep Singh -Government Advocate for the State.
Shri Ashutosh Tiwari - Advocate for respondent No.2.
ORDER
Petitioner has filed this petition under Article 226 of the Constitution
of India challenging notice issued to petitioner by Upper Tahsildar,
Makroniya District Sagar wherein petitioner was informed to give possession
of 1/4th part to respondent No.2 as per decree of Civil Court dated
03.09.2003.
2. Learned counsel appearing for petitioner submitted that respondent
No.2 had filed a Civil Suit bearing No.16-A/02 for partitioning ancestral
house, well and putting him in possession. Suit was decreed and trial Court
directed petitioner/plaintiff is entitled for getting possession over 1/4th part
of Khasra Nos.221/3, 222/3, well which is shown in green colour. Appeal
against decree was dismissed vide judgment and decree dated 30.06.2005.
Respondent No.2 filed an application for putting him in possession over the
land in accordance with decree. Nayab Tahsildar, Sagar vide its order dated
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13.08.2020 held that Kashidas had already sold the property inherited by him
and he is entitled only for 90 sqft of land, and therefore, it is not practically
possible to do partition and put respondent No.2 is in possession as per
judgment and decree passed by trial Court. Said order was challenged in
appeal before SDO. SDO also held that matter has already been concluded
and order is not appealable and dismissed the appeal. Respondent No.2 again
raised the issue before Collector, Sagar and also before Commissioner.
Claims of respondent No.2 was dismissed upto Commissioner. In view of
same, Nayab Tahsildar has committed an error of law in again issuing notice
to petitioner i.e. Annexure-P/11. Proceedings have become final and closed
proceedings cannot be reopened.
3. Learned counsel appearing for respondents submitted that Revenue
Authority has not complied with the judgment and decree passed by the Civil
Court. On directions of Collector dated 13.01.2022, Additional Tahsildar
constituted a team of six members for spot inspection and for partition. Team
submitted its report. Thereafter, Additional Tahsildar Makroniya District
Sagar has passed order dated 01.10.2023 for partitioning remaining part of
disputed property and to give possession to respondent No.2. Notice has been
issued pursuant to order and no error has been committed, hence petition be
dismissed.
4. Heard counsel for the parties.
5. On going through the records of case, it is found that notice has
been issued for partitioning the land as per judgment and decree of Civil
Court. Nayab Tahsildar in its order dated 13.08.2020 gave specific finding
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that 1/4t h part of land which falls in share of respondent No.2 is 8991 sqft.
Respondent No.2 had sold the land by Registered sale deed dated
28.05.2005, 21.05.2007, 10.05.2002. On basis of said finding, he had already
sold part of land by registered sale deed dated 28.05.2005, 21.05.2007,
10.05.2002. After selling the land, possession of only 90 sqft of land is to be
given to respondent No.2. Giving possession of said land was not practically
feasible therefore, execution case was closed. SDO in appeal has dismissed
the case holding that said order is not appealable. Since judgment and decree
has already been executed by Nayab Tasildar and he has specifically stated
that it is not possible to give possession of 90 sqft of land to respondent
No.2 and has closed his case, therefore, repeat application for giving
possession by respondent No.2 is not maintainable.
6. In view of aforesaid, writ petition is allowed. Notice issued by
Upper Tahsildar dated 24.02.2023 vide Annexure-P/11 is quashed.
(VISHAL DHAGAT)
JUDGE
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