Madhya Pradesh High Court
Mahesh Chandra Yadav vs Sanjeev Singh Thakur on 6 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:10024
1 WP-2726-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 6 th OF MAY, 2025
WRIT PETITION No. 2726 of 2025
MAHESH CHANDRA YADAV
Versus
SANJEEV SINGH THAKUR AND OTHERS
Appearance:
Shri Chandra Pratap Singh Kushwah - Advocate for the petitioner.
Shri Ravi Choudhary - Advocate for the respondent [R-1].
ORDER
The instant petition under Article 226 of the Constitution is preferred
against the order dated 18.10.2024 passed by learned Additional Commissioner
Gwalior, Division Gwalior in Case No.27/2024-25/Appeal whereby while
allowing the appeal preferred by the present respondent No.1 the order passed by
the SDO dated 15.02.2024 was set aside whereby order dated 18.03.2020 effecting
the partition between the predecessor-in-title of the present petitioner and the
respondents was set aside.
2. Learned counsel for the petitioner has argued before this Court that under
the garb of correction in the village map, the present respondents No.1 and 2 is
trying to grab the land of the petitioner, who had purchased it from the other co-
tenure holders Suman Gupta W/o Rajendra Gupta and Rajendra Gupta S/o Late
Mohanlal Gupta in the year 2023.
3. Learned counsel for the petitioner has also argued that earlier vide order
dated 18.03.2020 a partition had taken place between the present respondents No.
1 and 2 and the other co-sharers and on the basis of the said partition an
NEUTRAL CITATION NO. 2025:MPHC-GWL:10024
2 WP-2726-2025
application for correction in the village map was moved alleging that after the
partition proceedings out of the survey No.163/1/1 the present respondents No. 1
and 2 had received certain share, which was recorded in the revenue records as
163/1/1/min-4 admeasuring 2.914 hectares, but the min. was wrongly inserted,
therefore, the present application was moved, which was allowed by Tehsildar
vide order dated 7.8.2020.
4. Learned counsel further submitted that being aggrieved by the aforesaid
order an appeal was preferred by the present petitioner which was numbered as
6/Appeal/2023-24 in which the learned SDO found that the order of partition itself
suffers from patent illegality and perversity, therefore, the same is required to be
set aside and matter is required to be remitted back to Tehsildar for fresh
adjudication on the question of partition, which was an incorrect proposition in
light of the judgment passed by the Apex Court in the matter of Yashoda vs.
Sukhwinder Singh & others, reported in AIR 2022 SC 4623 , wherein it has been
held by quoting another judgment in the matter of A.V. Papayya Sastry and others
vs. Govt. of A.P. and others , reported in (2007) 4 SCC 221 that a judgment,
decree or order obtained by playing fraud on the court, tribunal or authority is a
nullity and non est in the eyes of law and such a judgment, decree or order by the
first court or by the final court has to be treated as nullity by every court, superior
or inferior and it can be challenged in any court, at any time, in appeal, revision,
writ or even in the collateral proceedings and as the present proceedings were
collateral proceedings, therefore, the order dated 18.03.2020 whereby partition
was effected between the predecessor-in-title of the petitioner and the respondents
was rightly quashed.
5. Learned counsel for the petitioner has further argued that the Additional
NEUTRAL CITATION NO. 2025:MPHC-GWL:10024
3 WP-2726-2025
Commissioner without considering the aforesaid legal position has allowed the
second appeal and had set aside the order passed by SDO dated 15.02.2024
holding that since in the said appeal the order under challenge was dated 7.8.2020
whereby directions were issued to correct the village map and as the order dated
18.03.2020 was never under challenged in the First Appeal before the SDO,
adjudicating upon the said order and setting it aside was perverse. Apart from the
aforesaid on other grounds also the appeal was wrongly allowed and the order
passed by the SDO was illegally set aside which deserves to be quashed. On the
basis of the aforesaid arguments, learned counsel for the petitioner has submitted
that the present petition be allowed and the order passed by the Additional
Commissioner dated 18.10.24 be set aside and that the order passed by the SDO be
restored and Tehsildar may be directed to conduct the proceedings of partition
fresh in the light of said order.
6.On the other hand, learned counsel for the respondents by placing reliance
in the matter of Hariprakash Sharma vs. State of M.P. passed in
W.P.No.17985/2020 dated 13.01.2021 and Mrs. Akella Lalitha vs. Sri Konda
Hanumantha Rao and Anr. passed by the Apex Court in Civil Appeal Nos.6325-
6326 of 2015 dated 28th July, 2022 has argued that since the order dated
18.03.2020 was never challenged before the SDO by the petitioner, setting it aside
is a grave illegality which has been committed by the SDO which was corrected
by the Additional Commissioner thus the order impugned cannot be faulted with.
It was further argued that it is well settled proposition that a decision of the case
cannot be based on the grounds outside the pleadings of the parties and it is the
case pleaded that has to be found and the Court without an amendment of the
plaint is not entitled to grant relief not asked for and no prayer can ever been made
to amend the plaint so as to incorporate it in alternative case and as in the present
NEUTRAL CITATION NO. 2025:MPHC-GWL:10024
4 WP-2726-2025
case no relief of quashment of the order dated 18.03.2020 passed in favour of the
predecessor-in-title of the petitioner and the respondents No. 1 and 2 was made
nor any amendment was made in the appeal, the very finding of the learned SDO
setting aside the order dated 18.03.2020 and not touching the order which was
under challenge was a perverse order.
7. Learned counsel for respondents has also argued that there are material
suppression of the facts by the petitioner as admittedly the land was purchased by
him in the year 2023 by some other tenure holders and the aforesaid facts were not
brought before the appellate authorities at any point of time and since there was a
clear suppression the writ in such conditions is not liable to be entertained.
8. On the basis of the aforesaid arguments, learned counsel has submitted
that the present petition being devoid of merits be dismissed.
9. Heard learned counsel for the parties and perused the record.
10. Admittedly, the basic order under challenge before the Sub Divisional
Officer was dated 7.8.2020 whereby directions were issued by Tehsildar to correct
the village map. Nowhere the order dated 18.03.2020 by which partition had taken
place between respondents No. 1 and 2 and predecessor-in-title of the present
petitioner was challenged by any party, thus there was no occasion for learned
SDO to have gone into the legality or illegality of the said order in absence of any
challenge and he should had confined its order to the order dated 7.8.2020 by
which the village map was directed to be corrected.
11.Thus when the very order dated 18.03.2020 was not under challenge
setting it aside by the SDO in proceedings conducted against some other order was
per se illegal and same has rightly been set aside.
12.Though this Court finds that the order passed by the SDO dated
15.02.2024 was per se illegal on account of it quashing the order dated
NEUTRAL CITATION NO. 2025:MPHC-GWL:10024
5 WP-2726-2025
18.03.2020, which not under challenge and not dealing with the order dated
7.8.2020 which was made subject challenge in the said appeal, this Court deems it
expedient to relegate the matter back to the SDO for deciding the appeal afresh
confining itself to the grounds of challenge so far as order dated 7.8.2020 is
concerned.
13.The order passed by the Additional Commissioner to the extent of
quashing the order dated 15.02.2024 is sustained but is remitted to the SDO as
directed aforesaid.
14. With the aforesaid direction, this petition stands disposed of.
(MILIND RAMESH PHADKE)
JUDGE
Van
