The petition is allowed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of BHANWARLAL V. TOOFAN SINGH through HON’BLE JUSTICE PRANAY VERMA
FACTS OF THE CASE
The facts of the case are that the petitioners made an application under Section 178 of M.P. Land Revenue Code, 1959 for partition of the lands in dispute before the Additional Tehsildar, Maksi, District Ujjain. The application was allowed by the Additional Tehsildar and the partition as prayed for was permitted and order in that regard was passed in Namantaran Panji No.5 on 15.06.2005. Being aggrieved by the order aforesaid the respondents preferred an appeal under Section 44 (1) of the Code, 1959 before the Sub Divisional Officer, Shajapur. Since the same was barred by time by about 11 years they filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal. By order dated 29.08.2017 the application under Section 5 of the Limitation Act was rejected by the Sub Divisional Officer and the appeal itself was also consequently dismissed as barred by time. Being aggrieved by the said order the respondents preferred Second Appeal under Section 44 (2) of the Code, 1959 before the Additional Commissioner which has been allowed by him by the impugned order by holding that the partition order passed by the Additional Tehsildar was illegal and had been passed by him by violating the rules as regards partition and various other irregularities were also committed by him.
The appeal preferred by the respondents before the Sub Divisional Officer had been dismissed by him as barred by time upon rejection of their application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the same. The appeal had not been dismissed on merits. Thus, the only question for consideration before the Additional Commissioner was as to whether the Sub Divisional Officer had rightly refused to condone the delay. If he had come to the conclusion that the Sub Divisional Officer had erred in refusing to condone the delay, then the only course available to him would have been to remand the matter back to the Sub Divisional Officer for decision of the First Appeal on merits. If he had come to the conclusion that the Sub Divisional Officer had rightly refused to condone the delay and had correctly dismissed the appeal as barred by time, he ought to have dismissed the appeal. In any case he had no jurisdiction whatsoever to have himself entered into the merits of the case and to have considered the legality and validity of the partition order passed by the Additional Tehsildar. In doing so he has exercised jurisdiction not vested in him. The order passed by him hence cannot stand judicial scrutiny and is consequentially set aside. The petition is allowed. The matter is remanded back to the Additional Commissioner to re-hear the parties and to proceed further in accordance with law and in view of the observations as made here-in-above. There shall be no orders as to costs.
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JUDGEMENT REVIEWED BY SHREYA NIDHI