Rajendra vs Subedar Singh

NEUTRAL CITATION NO. 2026:MPHC-GWL:26267
1 WA-3029-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
st
ON THE 31 OF AUGUST, 2026
WRIT APPEAL No. 3029 of 2026
RAJENDRA AND OTHERS
Versus
SUBEDAR SINGH AND OTHERS
Appearance:
Shri R.K.Soni - Advocate for the appellants.
Shri Ankur Maheshwari - Advocate for respondents No.1 to 7.
ORDER
Per: Justice Anuradha Shukla
This Writ Appeal has been preferred under Section 2 (1) of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal)
Adhiniyam, 2005 challenging the order dt.21.07.2026 passed by the Writ
Court in W.P.No.3056/2014 (Subedar Singh and others Vs. State of M.P. and
others) allowing the writ petition filed by respondents No.1 to 7 of present
appeal.
2. The writ petition was preferred by respondents No.1 to 7 to get the
impugned order (Annexure P/1) set aside, which was passed on 03.02.2014
by the Board of Revenue in Revision No.648-1/04 confirming the order of
Additional Commissioner, Chambal Division, Morena passed on 28.02.2004
in case No.331/2000-2001/Appeal.
3. The facts necessary for decision of this appeal are that respondents
Signature Not Verified
Signed by: SANJEEV
KUMAR PHANSE
Signing time: 9/8/2026
5:34:58 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:26267
2 WA-3029-2026
Subedar Singh and others filed an application under Section 178 of

M.P.Land Revenue Code for seeking partition of joint land bearing survey
No.519, 534, 537, 538, 545/1, 545/2, 1077 and 1222 measuring 11 Bighas 1
Biswa. Bhogiram, father of present appellants and Harimohan were the
respondents in that case. Vide order dt.02.07.1999, the Tehsildar allowed the
application and passed the order of partition of land in question. Admittedly,
this order was challenged in the Court of S.D.O. Joura in case No.7/99-2000
by Bhogiram through his L.Rs. and Pritam S/o Harimohan, however, under
the order passed on 20.8.2001, the appeal was dismissed. The Additional
Commissioner, Chambal Division, Morena, vide Annexure P/2, allowed the
appeal registered at No.331/2000-2001/appeal and the matter was remanded
with a direction to provide opportunity of hearing to the L.Rs. of Bhogiram
and to decide it afresh on merits. Under Annexure P/1 the Board of Revenue
dismissed the revision preferred against said order of Additional
Commissioner, Chambal Division, Morena.
4. The Writ Court allowed the petition preferred by respondents
Subedar Singh and others after holding that the appellants were duly
represented before the the Tehsildar, on the occasion of recommencement of
the proceedings partition and it was also of the view that not only their
counsel was present there before the Court of the Tehsildar, but he also noted
the next date of hearing, therefore, no occasion arrived for the the Tehsildar
to issue any fresh notice to the appellants.
5. Assailing this order of Writ Court, the appellants have preferred the
appeal on the ground that after the decision of second appeal bearing
Signature Not Verified
Signed by: SANJEEV
KUMAR PHANSE
Signing time: 9/8/2026
5:34:58 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:26267
3 WA-3029-2026
S.A.No.74/2006, the proceedings pending before the the Tehsildar got

revived but without giving any notice to the appellants, the Tehsildar fixed
the date of hearing as 14.05.1999. Further, the counsel for the appellants was
not present before the Court of the Tehsildar and an order passed in the
absence of appellants without even giving them any opportunity of hearing
was bad in law. The partition carried out by the Tehsildar was, thus, not fair
and proper. The Writ Court wrongly set aside the order of Additional
Commissioner without considering the fact that appellants were never given
any opportunity of hearing. Accordingly, a request has been made to allow
the appeal.
6. Per contra, respondents No.1 to 7, who had filed the Writ Petition,
are supporting the impugned order of the Writ Court by claiming that there
was due representation of appellants before the Court of the Tehsildar and
their counsel had noted the next date of hearing, therefore, the question of
not giving any opportunity of hearing does not arise.
7. Learned counsel for the parties have been heard and record has
been perused.
8. The impugned order in para 8 observes that an application under
Section 178 of the M.P. Land Revenue Code was filed in the year 1993
before the Tehsildar for seeking partition and in the same year Civil Suit
No.25-A/1993 was instituted, as a result of which the partition proceedings
before the Tehsildar were kept in abeyance. The order further observes that
the civil suit was dismissed on 12.05.1999 and this fact was taken note of by
the Court of the Tehsildar on 14.05.1999 in the presence of counsel for both
Signature Not Verified
Signed by: SANJEEV
KUMAR PHANSE
Signing time: 9/8/2026
5:34:58 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:26267
4 WA-3029-2026
the parties, namely; Shri Rambabu Gupta and Shri Rajaram Singh Sikarwar.

The Court of the Tehsildar on that date recommenced the proceedings,
obtained the signatures of the counsel on the order sheet and posted the case
for hearing on 29.05.1999, however, on that date the counsel for appellants
remained absent and an ex parte order was passed on 02.07.1999.
9 . The facts discussed above are in conformity with the documents
available on record. Civil Appeal No.19-A/2002 was decided by First
Additional District Judge, Morena on 28.11.2005 and, in para 9 of this
judgment, the appellate court has taken note of the fact that the civil suit was
initially decided on 12.05.1999 and was challenged in Civil Appeal No.20-
A/1999, which was decided vide judgment dt.25.09.2001 and under it the
case was remanded back to the trial Court to frame some additional issues
and decide the suit afresh after recording the evidence regarding them. In
compliance of this direction, the civil suit was decided second time on
08.05.2002, against which Civil Appeal No.19A/2002 was filed. It appears
that after the initial dismissal of the civil suit, the proceedings before the
Court of the Tehsildar recommenced and no stay order was obtained either
during the afresh trial conducted in compliance of remand order or even after
the institution of civil appeal No.19-A/2002. Thus, the proceedings before
the Court of the Tehsildar suffered from no illegality, having recommenced
in the presence of counsel for both parties, however, at a later stage, the
counsel for appellants failed to appear and represent his client in the
proceedings.
10. In view of these facts, the Writ Court was justified in holding that
Signature Not Verified
Signed by: SANJEEV
KUMAR PHANSE
Signing time: 9/8/2026
5:34:58 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:26267
5 WA-3029-2026
the proceedings of partition were recommenced after due notice to the

appellants and if at later stage they decided not to participate in the
proceeding, they cannot voice any grievance regarding the violation of the
principles of natural justice. Even if their counsel did not intimate them
about recommencement of partition proceedings, they were very well aware
of the dismissal of their civil suit on 12.05.1999 and it was incumbent on
then to enquire about the future course of the case relating to partition of
property, which was stayed only till the decision of the civil suit.
11. In their appeal before S.D.O. Joura District Morena, appellants
raised the ground that Shri Rajaram Singh Sikarwar was not their counsel,
however, from the facts narrated by said appellate authority in its order
marked as Annexure P/4, it cannot be disputed that the Vakalatnama of
Advocate Rajaram Singh Sikarwar was available on the record of the Court
of the Tehsildar and this Vakalatnama was never withdrawn by the
appellants. Accordingly, the learned Writ Court has appropriately held that
appellants were duly represented by their counsel Shri Rajaram Singh
Sikarwar when the proceedings were re-initiated by the Court of the
Tehsildar to accomplish the proceeding of partition.
12. The factual error surfaced for the first time, when the Additional
Commissioner, Chambal Division, Morena, in his order, marked as
Annexure P/2, observed that the recommencement of partition proceedings
was without any notice to the appellants. The Court was of the opinion that a
formal notice was required to be given to the appellants but it failed to take
note of the fact that the counsel for the appellants was already before the
Signature Not Verified
Signed by: SANJEEV
KUMAR PHANSE
Signing time: 9/8/2026
5:34:58 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:26267
6 WA-3029-2026
Court of the Tehsildar on 14.05.1999 when the partition proceedings were

revived before that revenue Court. This order makes no discussion on why
the presence of advocate Shri Rajaram Singh Sikarwar should not be treated
as valid presence on behalf of the appellants. Thus, the order of Additional
Commissioner had no reasoning, whatsoever, to justify the rehearing of
partition proceedings and similar is the complexion of the order passed by the
Board of Revenue as it too failed to make any discussion on the same fact.
13. In view of aforesaid, we are of the opinion that the learned Writ
Court was legally correct and justified in quashing the order of Additional
Commissioner (Annexure P/2) and of Board of Revenue (Annexure P/1) and
thereby upholding the orders passed by SDO (Annexure P/4) and also of the
Tehsildar (Annexure P/3). Consequently, this writ appeal fails and the
impugned order of the Writ Court is upheld.
14. Writ Appeal is accordingly dismissed.
(G. S. AHLUWALIA)
(ANURADHA SHUKLA)
JUDGE
JUDGE
SP

Signature Not Verified
Signed by: SANJEEV
KUMAR PHANSE
Signing time: 9/8/2026
5:34:58 PM