[Cites 3, Cited by 0]
Madhya Pradesh High Court
Sumita Vaisya vs Deevan Singh on 17 March, 2026
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL: 9559
1 W.P.No.47849 of 2025
25 & W.P.No.4986 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
ON THE 17TH OF MARCH, 2026
WRIT PETITION No. 47849 of 2025
SUMITA VAISYA
Versus
DEE
DEEWAN SINGH AND OTHERS
Appearance:
Shri Vivek Kumar Mishra - Advocate for petitioner in W.P.No.47849/2025.
Shri YPS Rathore - Advocate for respondent No.1.
Respondents No.2 to 7 are proforma parties.
Shri Dharmendra Nayak - Government Advocate for respondent No.8/State.
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WITH
WRIT PETITION No.4986
No of 2025
GAYATRI KOUSHIK
Versus
DEEWAN SINGH AND OTHERS
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Appearance:
Shri Pawan Kumar - Advocate for petitioner in W.P.No.4986/2025.
Shri YPS Rathore - Advocate for respondent No.1.
Respondents No.2 to 7 are proforma parties.
Signature Not Verified
Signed by: ANAND KUMAR
Signing time: 18-03-2026
10:24:46
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL: 9559
2 W.P.No.47849 of 2025
25 & W.P.No.4986 of 2025
Shri Dharmendra Nayak - Government Advocate for respondent No.8/State.
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ORDER
1. With the consent of the parties, the matter is finally heard.
2. W.P.No.47849/2025 was initially filed under Article 227 of the
Constitution of India
ndia and was registered as M.P.
M.P.No.2104/2024.. Subsequently,
vide order dated 28.02.202
.2025, the petition was permitted to be converted into a
writ petition under Article 226 of the Constitution of India whereas,
W.P.No.4986/2025, was initially filed under Article 227 of the Constitution
of India
ndia and was registered as M.P.
M.P.No.930/2024.. Subsequently, vide order
dated 05.02.2025,, the petition was permitted to be converted into a writ
petition under Article 226 of the Constitution of India.
3. Since both the writ petitions are challenging the same order dated
30.01.2024 passed by the Additional Commissioner, Gwalior Division,
Divisio
Gwalior, in Case No.133/23-24/Appeal,
No.133/23 24/Appeal, for the sake of brevity, the facts from
W.P.No.47849/2025 are taken into consideration.
4. The brief facts of the case leading to the filing of the petition,
petition as
discernible
ible from records, are as under:
4.1. The respondent No.1
No.1, Deevan Singh, being the son of late Shri Hakim
Singh, as per the Khasra record (Annexure P/3)
P/3), was the co-owner
owner of land
bearing Survey No.142/1/Min
No.142/1/Min-1,, total admeasuring 1.077 hectares, out of
which, 0.358 hectares was equally falling with the share of respondent No.1,
Divan Singh, and his brother Ramchitra Singh. Respondent No.1, Deevan
D
Singh, executed a registered power of attorney dated
dated 07.12.2007 in favour of
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL: 9559
Harikishan s/o late
ate Shri Hakim Singh as regards his share of 0.183 hectare of
land forming part of Survey No.141/Min.
No.141/Min. On the strength of the registered
power of attorney,, the attorney holder got a sale deed dated 05.01.2008
(Annexure P/5) executed in favour of Shri Abhishek Sharma
Shar and Shri
Rajkamal Thakur, wherein total 0.209 hectare of land was sold,, out of which,
deed 183 आरे of land belonging to the share of
as per the recital of the sale deed,
respondent No.1, Deevvan Singh, was sold. Subsequently, vide registered sale
deed (Annexure P/6), the land in question was sold to one Govindkrishan
Kaushik and Smt. Gayatri Kaushik
Kaushik, from whom the petitioner herein has
purchased the land vide Annexure P/8, i.e., registered sale deed dated
30.01.2020.
4.2. It appears that the respondent No.1, D
Deevan Singh,
Singh moved an
application under Section 178 of the Madhya Pradesh Land Revenue Code,
1959, seeking partition of land bearing Survey No.142/1/1
No.142/1/1, which came to be
rejected by the Tahsildar vide order dated 02.03.2022 on the ground that as
per the Patwari report, the respondent No.1 had already sold his land which is
divided in small plots and therefore, the partition is not possible. The
aforesaid order dated 02.03.2022 was thereafter challenged by the respondent
No.1 in an appeal before the Sub-Divisional
Sub Officer,
r, Gwalior, District
Gwalior, which was rejected vide order dated 12.04.2023. The respondent
No.1 thereafter preferred a second appeal against the order passed by the Sub
Sub-
Divisional Officer on 24.12.2022 which came to be allowed vide order dated
30.01.2024, and the matter has been remanded to the Tahsildar for holding
the proceedings of partition afresh. It is this order which is under challenge in
the present petition.
5. Learned counsel appearing for the petitioner submits that once, the
respondent No.1 had executed a registered power of attorney in favour of
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL: 9559
Harikishan, who executed
xecuted the sale deed (Annexure P/5) in respect of the land
in question landholding of respondent No.1, i.e., 183 आरे
stion including the entire landholding
and the land has thereafter changed many hands, the application
pplication for partition
filed by the respondent No.1 was rightly rejected by the Tahsildar on the
ground that the respondent No.1 has already disposed of the lands of his
share, which was converted into small plots,
plots and therefore, partition
p of the
share of respondent No.1 is not possible. The aforesaid order was rightly
affirmed by the first appellate authority; however, the second appellate
authority, without appreciating the facts of the case
case, has remanded the matter.
He submits that even upon
upo remand, no fruitful purpose would be served
served, as
the landholding of the respondent No.1 already stands sold out.
6. On the other hand, learned counsel appearing for the respondent No.1
submits that the sale deed (Annexure P/5) dated 05.01.2008 does not dispose
of the entire landholding
holding of share of the respondent No.1
No.1, as the respondent
No.1 is having his share in other lands also
also, as Hakim Singh was succeeded
by six legal heirs, including respondent No.1. Therefore,
herefore, the second appellate
authority has rightly
ly remanded the matter for deciding the partition
proceedings afresh. He further submits that the power of attorney (Annexure
P/4) is a forged
ed document,
document and respondent No.1 has also filed a written
complaint to the police authorities in the said regard. By placing reliance on
the order passed by this Court in the case of Anant Singh and another v.
Govind and others,, reported in 1991 RN 99,, he submits that a writ petition
under Article 226 of the Constitution of India is not maintainable against an
order of remand, and therefore, the present petition deserves to be dismissal.
7. No other point has been pressed by the learned counsel appearing for
the parties.
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8. Heard the learned counsel appearing for the parties and perused the
records.
9. Though
ugh the petition is pending since the year 2024, however, inspite of
there-being
being notice, no reply on facts has been filed by the respondent No.1.
Merely an application seeking vacation of the interim order has been filed.
The Khasra entry (Annexure
Annexure P/3)
P/3 indicates
dicates that the share of the respondent
No.1 was determined alongwith one Ramchitra in equal proportion out of
o the
total holding of 0.358 hectare in respect of land bearing Survey
No.142/1/Min-1. The registered sale deed (Annexure P/5) dated 05.01.2008
indicates
dicates that on the strength of power of attorney said to have been executed
by the respondent No.1 (Annexure P/4)
P/4), the entire share of the respondent
No.1 in aforesaid land, i.e., 183 आरे has been sold to Shri Abhishek Sharma
and Shri Rajkamal
kamal Tahkur. The subsequent sale deeds placed on record as
Annexures P-6, P-7, and P-8
P indicate that the land has changed hands on
more than two occasions.
casions. Once, the entire share
shareholding
holding of the respondent
No.1 stood sold by sale deed dated 05.01.2008, the order passed by tthe
Tahsildar on 22.03.2022 on the basis of report submitted by the Patwari
indicating that on account of land of his share being sold by the respondent
No.1 and subsequently divided into small plots
plots, partition of share of land of
respondent No.1 is not possible,
pos cannot be faulted with. The same was rightly
affirmed by the first appellate authority.
10. The second appellate authority
authority, by taking into consideration the Khasra
entry in the year 2013
2013-2014, has held that the respondent No.1,
No.1 alongwith
Shri Ramchitra Singh,, was having an equal share in 0.358 hectare of land,
forming the basis for issuing the direction of remand vide order dated
30.01.2024
.01.2024 impugned in the present writ petition
petition, however,
owever, a perusal of
paragraphs 7 and 8 of the order passed by the second
ond appellate authority does
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL: 9559
not indicate that the effect of alienation of the land belonging to the share of
respondent No.1, as considered by the Tahsildar and first appellate authority
and as reflected in the sale deeds placed on record, has been taken into
consideration while passing the order of remand. No documents has been
filed by the respondent No.1 to rebut the reasoning assigned by Tahdilar in
order dated 02.03.2022, ttherefore, the judgment in the case of Anant Singh
(supra), relied
ed upon by the respondent No.1, has no applicability in the given
facts and circumstances of the case
case, as even on remand, the factual position
remains the same,, i.e., no land of the shareholding of respondent No.1
remains to be partitioned. In view whereof
whereof, the order dated 30.01.2024 passed
by the Additional Commissioner, Gwalior Division, Gwalior, in Case
No.133/23-24/Appeal
24/Appeal does not sustain judicial scrutiny and is accordingly
quashed, the
he present petition stands allowed.
11. In view of the above consideration, connected W.P.No.4986/2025 also
stands allowed.
12. Pending application (s), if any, shall stand closed.
(AMIT SETH)
JUDGE
AK/-
