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Nagjiram Vs. Mangilal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Case No. 42 of 1972
Judge
Reported inAIR1977MP8
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 178(1)
AppellantNagjiram
RespondentMangilal and ors.
Appellant AdvocateR.C. Pandey, Adv.
Respondent AdvocateC.M. Mehta, Adv. for Respondent No. 1
Cases Referred(viii) Gangaram v. Kanhaiyalal
Excerpt:
- - clearly enough the revenue authorities have no jurisdiction to give any such direction. 9. the learned counsel further appealed to us that the applicant desirous of partition who as a recorded bhumiswami has a good case prima facie should not be relegated to the unnecessary botheration and expense of a civil suit. 11. to put it differently, section 178 (1) of the code along with its proviso means that it will operate effectively when there is no dispute of title: the revenue authority has no jurisdiction to enter into any such question, whether the question of title raised is genuine or bogus, strong or weak, bona fide or mala fide......shall be made, if any question of title is raised, until such question has been decided by a civil suit. (2) the tahsildar may, after hearing the co-tenure holders divide the holding and apportion the assessment of the holding in accordance with the rules made under this code. explanation i.-- for purpose of this section any co-sharer of the holding of a bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding.' 2. in paitram's case (1968 jab lj 304) (supra), paitram and others applied to the naib tahsildar under section 178 of the code for partition of certain property alleged to have been held by them along with mahingpalsingh in bhumiswami rights. it was claimed that the land.....
Judgment:

Shiv Dayal, C.J.

1. A Division Bench has referred this case to us to 'resolve the controversy' between Paitram v. Board of Revenue (1968 Jab LJ 304) and Gangaram v. Kanhaiyalal (1971 Jab LJ 819). Those cases were decided by two different Division Benches. In both of them the question was what the Tahsildar can do and how he should proceed with an application for partition made before it under Section 178 (1) of the Madhya Pradesh Lend Revenue Code. 1959 (hereinafter referred to as the Code) when any question of title is raised. Section 178 of the Code reads as follows:--

'Section 178 Partition of holding:--

(1) if in any holding which has been assessed for the purpose of agriculture under Section 59, there are more than one Bhumiswami, any such Bhumiswami mayapply to a Tahsildar for a partition of his share in the holding :

Provided that no such partition shall be made, if any question of title is raised, until such question has been decided by a civil suit.

(2) The Tahsildar may, after hearing the co-tenure holders divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code.

Explanation I.-- For purpose of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding.'

2. In Paitram's case (1968 Jab LJ 304) (supra), Paitram and others applied to the Naib Tahsildar under Section 178 of the Code for partition of certain property alleged to have been held by them along with Mahingpalsingh in Bhumiswami rights. It was claimed that the Land belonged to the parties as members of a joint Hindu family and that the applicants had a right of partition. However. Mahingpalsingh raised an objection that the land was recorded in his name, that he was solely entitled to that land and that the applicants were not entitled to any partition. His contention was that the Revenue Officer could not proceed with the partition until the question of title raised by him was decided by a Civil Court. It appears that the Naib-Tahsildar recorded the evidence and 'after considering the evidence produced by the parties' came to the conclusion that a genuine dispute as to title was raised by Mahingpalsingh, so that the proviso to Section 178 (1) of the Code was attracted. He, therefore, held that partition could not be effected till the question of title was decided by the Civil Court. In this view of the matter he dismissed the application of the applicants. On appeal the Sub-divisional Officer set aside the order of the Naib-Tahsildar on the ground that the objection raised by Mahingpalsingh was not genuine. In Second Appeal the Commissioner also took the same view. However, the Board of Revenue on a consideration of various facts on record came to a contrary conclusion and held that a substantial question of title was raised by Mahingpalsingh and setting aside the order of the appellate Court, restored that of the Naib-Tahsildar. The applicants, Paitram and others invoked the jurisdiction of the High Court under Article 226 of the Constitution. Dixit, C. J. and Bhave, J. held that

(i) the language of the proviso is plain.

(ii) that there is no warrant for reading the words 'genuine' or 'bogus' along with the word 'raised'.

(iii) to decide the question whether the plea of title raised is genuine or bogus is to decide the question of title itself.

(iv) Ordinarily, it is not the function of Revenue Courts to decide the question of title, it is exclusively the function of Civil Courts.

(v) The Naib-Tahsildar was in error in dismissing the application, he should have adjourned the case enabling the parties to raise the question of title before the Civil Court.

(vi) Mahingpalsingh, who raised the question of title, should have been directed to institute a civil suit within a time to be fixed by the Naib-Tahsildar.

(vii) If Mahingpalsingh did not take the matter to the Civil Court within a reasonable time, the Revenue authorities could proceed to effect the partition.

(viii) If the dispute was got decided, partition could be effected in the light of the decision of the Civil Court.

3. For the reasons that we are going to state presently, we respectfully concur in (i), (ii), (iii), (iv), (v) and (viii), but we respectfully disagree in (vi) and (vii).

4. In Gangaram's case 1971 Jab LJ 819 (supra), Bhagirath, father of Kanhaiyalal, made an application before the Tahsildar under Section 178 of the Code asking for a partition by metes and bounds, setting out the particulars of the plots in the original holding and their total area in regard to which there was no dispute. He wanted the demarcation of a half share by metes and bounds in his favour. The lands were recorded in joint holding of Bhagirath and Gangaram. Later on the lands were being cultivated in different parcels by the parties separately. However, Gangaram entered appearance in the partition case before the Tahsildar end contended that this was on the basis of a final private partition by metes and bounds between the parties. The Tahsildar held that it was a civil dispute and that the partition could not proceed until the party interested got it decided in an appropriate Court. Thepoint to note is that the Tahsildar did not direct which party should go to the Civil Court, nor did he fix any time limit. Aggrieved by the Tahsildar's order, Bhagirath and, after him Kanhaiyalal himself went up in appeal and revision. Eventually, the Board of Revenue in revision, set aside the orders of the lower Courts and remanded the case to the Tahsildar with the direction-

'the non-applicant should be asked to get the question of title decided by the Civil Court within three months after which the partition case may be disposed , of according to law.'

In other words, it was the defendant who would be required to move the Civil Court, presumably for a declaration that the holding had already been partitioned and, if he did not move the Civil Court within three months, or if having moved it could not obtain a decree, that the holding had already been partitioned, the Tahsildar would proceed with the partition. Gangaram approached the High Court by a writ petition. The Division Bench (Krishnan and Oza JJ.) held that:

(i) if a party wants a change to be effected in the status quo, it is for him to establish that the conditions justifying the action of the appropriate Tribunal are there,

(ii) If the existence of such conditions is not patent or admitted, he should get them established by an appropriate procedure. It is not for the party who recites the prayer for the change to go to the appropriate authority or tribunal and get a decision that the condition justifying the change do not exist.

(iii) It was not Gangaram, but Kanhaiyalal, who wanted change in the status quo.

(iv) The party seeking a partition has to get a clearance from the Civil Court to the effect that there has been no partition.

(v) It was entirely a matter of form whether the applicant's application (under Section 178) before the Tahsildar is to be dismissed or be kept pending for a reasonable time to enable him to get a decision. The proceedings could be taken up after the 'dispute' was decided by the Civil Court.

5. In the present case, Mangilal, respondent, made en application under Section 178 of the Code to the Naib-Tahsildar for partition of land on the allegations that it was a joint holding (No. 33) consisting of survey Nos. 95, 107 and 199 ofhimself and Nagjiram in Bhumiswami rights. Although before consolidation proceedings there had been a private partition, yet no formal partition had been effected. He, therefore, claimed a partition by metes and bounds according to the procedure prescribed by law. Nagjiram resisted the said application contending that he was in long possession and that Mangilal has no right to a partition. The Naib-Tahsildar found that there was a question of title raised, which had to be decided by the Civil Court and directed the applicant, Mangilal, to get the dispute determined by the Civil Court. Stage by stage the matter reached the Board of Revenue, which directed Nagjiram to institute a civil suit within three months from the date of that order and go on seeking extension of time from the Tahsildar. In cast he did not institute the civil suit, the Tahsildar would proceed to effect the partition. Aggrieved by the order of the Board of Revenue, Nagjiram filed this writ petition. The Division Bench has referred to us the entire case.

6. As we reed Section 178 of the M.P. Lend Revenue Code, 1959, we find that

(1) any of the Bhumiswami of any holding (which has been assessed for the purpose of agriculture) may apply to the Tahsildar for a partition of his share: it is only a Bhumiswami, who can apply for a partition under this section.

(2) the proviso is as plain and unambiguous as it can be. Its wording, meaning and intention are all plain and simple. The proviso can be analysed thus,

(a) the proviso is attracted as soon as any question of title is raised.

(b) when a question of title is raised, the Revenue authorities shall not proceed with partition, and

(c) the Revenue authorities shall proceed with partition when such question of title, which is raised, has been decided by a civil suit.

7. A question of title is raised within the meaning of this proviso when the applicant's right to partition is disputed. The first ingredient is unqualified. It comes into play both when the question of title is genuine or bogus, strong or weak, bona fide or mala fide. The second requirement of the proviso is that the Revenue authorities have just to stay their hands as if they will literally shut up the case to be reopened when the question of title has been decided by acivil suit. The proviso does not empower or authorise the Revenue authorities to give any direction either as to the person who should go to the civil court or as to the reason to be given for such direction or as regards the time within which a party should approach the Civil Court, nor the consequences of non-compliance with any such direction given by any Revenue authority. Clearly enough the Revenue authorities have no jurisdiction to give any such direction. All that they have to do is to tell the parties that they could not proceed with the partition proceeding unless the question of title raised has been decided by a civil suit. That is all. It will then be up to that party which wants the revenue proceedings for partition to be reopened, to file the civil suit. However, it is not for the Revenue authorities either to direct or to advise such party to institute a civil suit. If such party is desirous that the partition proceeding be reopened, it will bring a civil suit. If it does not, there is no consequence except that the proceedings for partition before the Revenue authorities will be abortive. It cannot be dismissed on merits for the inaction, that is for not going before the civil Court.

8. Shri Chandmal Mehta, learned counsel for Mangilal, strenuously argues that unless the course adopted in Paitram's case (1968 Jab LJ 304) (supra) is followed, the section will be rendered otiose because then in every case the defendants in order to defeat the application for partition will just raise any kind of flimsy or frivolous dispute of title. In such a case the Revenue authorities could not blindly and mechanically stop the partition proceedings. There should be an application of the mind to see the nature of the dispute and whether prima facie there is any worth in it.

9. The learned counsel further appealed to us that the applicant desirous of partition who as a recorded Bhumiswami has a good case prima facie should not be relegated to the unnecessary botheration and expense of a civil suit. Either the ' Revenue authorities should on a prima facie finding reject the objection and proceed with the partition proceedings, if for instance, the revenue record is completely in favour of the applicant, or, at any rate, it is the defendant, who should be asked to obtain a declaration from the Civil Court, as was the course approved in Paitram'scase (1968 Jab LJ 304) (supra). Whatever force there may be in Shri Mehta's argument, he wants us to say all that by the process of interpretation of Section 178. In our opinion, we cannot in the garb of interpretation make any law or amend the section. Our province is limited to laying down the law as it is, and not to lay down the law as it should be, although it is not. It is the first principle of interpretation of statutes that the Court must interpret the law according to the intention of the Legislature and the intention of the Legislature must be seen deposited in the language of the statute itself. It is not permissible for a Court to interpret a law according to a supposed intention of the Legislature or to add words to the section when its wording is plain and unambiguous. It is for others to amend the law or to make a new law.

10. As regards the third ingredients of the proviso it is necessarily implicit in the language of the law that the Court will not proceed with the partition, that is to say, the proceeding will remain in abeyance until the dispute is decided by the Civil Court If nobody takes the dispute to the Civil Court, the proceeding will be abortive. But, there is no question of 'dismissal' within the meaning of the term as accepted in the law. It would be a different matter if the Revenue authorities consign the case to the records because of the indefiniteness of time to be taken in disposal of the civil suit in all its stages. Even then it did not amount to dismissal of the application. There will be no question of res judicata.

11. To put it differently, Section 178 (1) of the Code along with its proviso means that it will operate effectively when there is no dispute of title: otherwise it will operate only when the dispute of title is decided by the civil suit.

12. On ultimate analysis it must be held that the Revenue authorities have no jurisdiction,

(a) to proceed with partition proceedings when a question of title is raised, or

(b) to dismiss the proceeding when a question of title is raised, or

(c) to give any direction to any party to institute a civil suit, much less to fix any time for that purpose.

13. Shri Mehta has referred to us corresponding provisions, Sections 161 to 169 in the C.P. Land Revenue Act, 1917. Here, Section 169 alone need be reproduced, which is as under:

'Section 169. (1) If the objection raises any question of title or of proprietary fight, or any other question which it is essential to decide finally before the partition can be proceeded with, and such question has not already been determined by a Court of competent jurisdiction, the Deputy Commissioner may--.

(a) decline to grant the application until the question in dispute has been determined by a competent Court, or has been settled by a lawful compromise or award, or

(b) require any party to the case to institute within six months a suit in the Civil Court for the determination of such question, or to have it settled within six months by a lawful compromise or award or

(c) Proceed to enquire summarily into the merits of such question, and pass orders thereon.

(2) If the proceedings have been postponed under Sub-section (1), Clause (b), and-

(a) if such party complies with the requisition, the Deputy Commissioner shall deal with the case in accordance with the decision of the Civil Court or the compromise or award, or

(b) if such party fails to comply with the requisition, the Deputy Commissioner shall decide the question against him.

(3) If the Deputy Commissioner proceeds under Sub-section (1), Clause (c), his order shall not be subject to appeal or revision, but any party may, within six months from the date of such order, institute a suit in the Civil Court to have the order set aside, and the decision of such Court shall be binding on the Deputy Commissioner, but subject to the result of such suit, if any, the order of the Deputy Commissioner shell be conclusive.'

This section is not in par: materia with Section 178 of the M. P. Land Revenue Code, 1959. There Clauses (b) and (c) of Sub-section (1) enacted quite different provisions. So also Clause (ii) of Sub-section (1) of Section 69 of the Madhya Bharat Land Revenue and Tenancy Act 1950, contemplated a partition even when there was no agreement between all the recorded co-tenants and permitted a subsequent civil suit. Section 44 of the Indore Land Revenue and Tenancy Act No. 1 of 1931 was in line with Section 178 of the M.P. Land Revenue Code, 1959. Thus, the provisions of the Madhya Bharat Act and the Central Provinces Act can be of no assistance in interpreting the meaning, scope and effect of Section 178 of the Code.

14. It is a consistent policy of the law as manifesting the different provisions of the M. P. Land Revenue Code, 1959, that determination of the questions of title is the province of the Civil Court and not of the Revenue authorities (See for instance Ramgopal v. Chetu, 1976 Jab LJ 278 = (AIR 1976 Madh Pra 160) (FB)).

15. The conclusions we have reached may now be summed up thus :

(i) When there are more Bhumiswamis than one, to any holding (which has been assessed for the purpose of agriculture) every one of them has the right to apply to the Tahsildar for a partition of his share.

(ii) the proviso to Section 178 (1) of the Madhya Pradesh Land Revenue Code, 1959, is attracted as soon as any question of title is raised. The Revenue authority has no jurisdiction to enter into any such question, whether the question of title raised is genuine or bogus, strong or weak, bona fide or mala fide.

(iii) When a question of title is raised, partition shall not be made and the Revenue authority shall stay its hands to await the decision of the Civil Court.

(iv) The Revenue authority has no jurisdiction to give any direction to any particular party to institute a civil suit, much less to fix any time for that purpose.

(v) The application for partition will in such case remain in abeyance until the question of title is decided. The Revenue authority may for statistical purpose consign the proceeding to the record room to be recalled when the decision of the Civil Court is received. The application for partition cannot be dismissed.

(vi) When the decision of the Civil Court is received, the Revenue authorities shall proceed to make the partition having regard to the decision of the Civil Court.

(vii) Paitram v. Board of Revenue (1968 Jab LJ 304) was not correctly decided in so far as it was held that a direction ought to be given to one of the parties.

(viii) Gangaram v. Kanhaiyalal (1971 Jab LJ 819) was not correctly decided in so far as it was held that the party seeking partition must necessarily go to theCivil Court All that the Revenue authority can do is to tell the parties that since a question of title is raised, it would not proceed with the partition proceedings. The Revenue authority must stop on that point and leave the parties to take recourse to the civil suit. Naturally, that party will go to the Civil Court, who wants the partition proceeding to be proceeded with and completed. However, it is not for the Revenue authority to advise either of the parties or to give any direction to either of them to institute a civil suit.

16. Since the entire case has been referred to us, applying the above principles, we quash the order of the Board of Revenue and the other Revenue authorities and direct that the case shall go back to the Naib-Tahsildar to proceed with Mangilal's application in the light of this order. The parties shall bear their own costs. The amount of security deposited by the petitioner shall be refunded to him.

17. Before we leave this case we desire to say that as argued by Shri Chandmal Mehta a great hardship is likely to result to a bona fide applicant, who has a just claim for partition and who is entered in the revenue records as a Bhumiswami, if the proviso to Section 178 stands as it is. We quite see that every clever defendant, who may be in possession of the entire holding, would just raise any flimsy or frivolous dispute as to the applicant's title, thereby to defeat or delay the partition proceedings. It will not he a reasonable law that the applicant should be pushed to the Civil Court to seek a declaration of his title or to get his share determined even when the entries in the Revenue record fully support his case, nor will it be a just law that the Tahsildar should enter into any inquiry or record a finding to the effect in whose favour there is a prima facie case, and determine which of the parties should approach the Civil Court for a declaration of title. The Tahsildar should not be required to enter into a controversy regarding title which may involve the application of the mind in the light of various civil enactments. Having regard to the sanctity of the revenue record the Tahsildar would have, but for the proviso, ordinarily proceeded to make the partition according to the revenue record, and the party who would be adversely affected if the partition were made according to the revenue record,would have gone to the Civil Court. Therefore, we think that a course just and fair to all concerned would have been this : As soon as a question of title is raised, the Tahsildar should make an order staying the proceedings before him. If no civil suit is instituted within a certain specified time from the date of the stay order, the Tahsildar should proceed to make the partition in accordance with the entries in the revenue records. This, however, we cannot say by way of interpretation of the section. We have our own limitations. The Court must not arrogate to itself the functions of the Legislature. Our function is merely to interpret the law according to the principles of interpretation of statutes and to enforce the law as it is. The Legislature can in no time redress the visible hardship by a simple amendment.


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