Remanding Authority Cannot Dictate Specific Modes of Allotment in Partition Proceedings to Lower Revenue Courts.

The petitioners challenged an order dated 26/12/2023 passed by the Additional Commissioner, Gwalior Division, which set aside previous revenue orders and remanded a partition dispute regarding Survey No. 494

The Tehsildar and Sub-Divisional Officer had originally conducted partition proceedings under Section 178 of the MP Land Revenue Code, which the Commissioner found flawed

The Commissioner remanded the matter but included a specific direction that the portion of land containing a school building and tube well must be allotted to the respondents

The petitioners contended that the school was non-existent and that such a specific direction prejudiced the independent adjudication of the partition

1. Whether a remedial order of remand by an appellate authority can contain specific directions on the merits of allotment that bindingly influence the lower authority's independent discretion

2. Whether the existence of a structure on joint property entitles a co-sharer to exclusive allocation of that specific portion during partition proceedings

The court primarily applied the principles governing partition under the Madhya Pradesh Land Revenue Code, specifically Section 178

It relied on the precedent Kesharsingh vs. Premkunwarbai (1992 RN 313), which establishes that partition cannot be effected by carving out specific portions in isolation; rather, the entire holding must be considered for equitable distribution

The court applied the principle that an appellate authority, while remanding a matter, should not make observations that prejudice the independent decision-making of the competent lower authority

The Court observed that while the Additional Commissioner’s decision to remand the matter for fresh adjudication was justified given the factual disputes, the inclusion of a specific mandate regarding the school and tube well was legally unsustainable

The Court reasoned that such a direction (ordering the Tehsildar to ensure the respondent receives the portion with the building) essentially decided the outcome of the partition before the local inquiry was completed

By citing Kesharsingh, the court emphasized that equitable distribution of the whole survey number is the priority, and a co-sharer cannot claim exclusive rights solely based on a construction they raised on joint land

Therefore, the Commissioner’s directive was found to be in violation of the principles of independent judicial/quasi-judicial application of mind

The Court upheld the order of remand but modified it by expunging the specific direction which ordered that the portion containing the building and tube well be allotted to the respondents

The competent authority was directed to decide the partition afresh, strictly on its own merits and in accordance with the law, without being influenced by the Commissioner’s previous remarks

The petition was disposed of with these modifications