CHAMPALAL BANSILAL PARATE Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) THE petitioners by this petition filed under articles 226 and 227 of Constitution of India challenge the order dated 30-8-1990 passed by the Additional Commissioner, Nagpur Division, Nagpur in revision under section 257 of the Maharashtra Land Revenue Code. In the said order, the Additional Commissioner has found that while effecting the partition by metes and bounds, Tahsildar has not considered the valuation of lands involved in the partition, as one of the facts governing the grant of shares. The Additional Commissioner has further found that said order also does not indicate the consideration of other relevant aspects like fertility and locational advantages. The Additional Commissioner has, therefore, remanded the matter back to the Tahsildar for fresh inquiry and order regarding carving out of shares for allotment to parties. The parties to this petition are descendants of one Bhagwandin Parate. He dies intestate leaving behind him four sons viz. , Bansilal, Bhaiyalal, Kunjilal and Babulal. According to parties, each one got % share in the property left behind by deceased Bahgwandin. One son of Bhagwandin by name Bansilal expired in 1962 leaving behind him three sons. Petitioners No. 1 and 2 in this petition are sons of deceased Bansilal. The other son of Bansilal by name Ramlal also expired and left behind him widow, who is respondent No. 7 in this petition. Petitioners No. 4, 5 and 6 are the son of widow respectively of Bhaiyalal s/o Bhagwandin. Respondent No. 2 is Babulal s/o Bhagwandin Parate and respondents No. 3, 4 and 5 are sons of babulal. Respondent No. 6 is wife of Babulal.

(2.) THE present petitioner No. 1 Champalal filed a Civil Suit vide Special civil Suit No. 81 of 1964 for partition and separate possession of his 1/4th share. The said suit was decreed on 29-6-1971 by 2nd Joint Civil Judge, senior Division, Nagpur, and the learned Civil Judge has held that petitioner no. 1 is entitled to 1/ 16th share in the property. The said share as worked out was corrected by order dated 22-1-1980 to 1/4th. As the agricultural lands were also to be partitioned, the Civil Judge, forwarded a precept under section 54 of Code of Civil Procedure to the Collector for that purpose. The Collector entrusted said job to Naib Tahsildar, Nagpur, who registered it as a revenue Case No. 1/s. R. V. 43/80-81. He issued notices to all interest parties and invited proposals and objections. Ultimately Naib Tahsildar passed an order on 18-11-1983. The present respondent No. 3 Parimal @ Madanlal s/o babulal Parate felt aggrieved by this order and preferred appeal before the sub-Divisional Officer. The Sub-Divisional Officer quashed the order of Naib tahsildar and remanded the case back to Tahsildar, Nagpur, with directions that he should go through the report of Naib Tahsildar and after giving opportunity of being heard to all concerned parties should pass appropriate orders. This order was passed by the Sub-Divisional Officer on 21 -9-1984. Tahsildar, nagpur, again issued notice and invited proposals for effecting partition. The other parties as also petitioners submitted their proposals and present respondent No. 3 Parimal @ Madanalal raised his objection. All parties were then heard by the Tahsildar and then he passed his order on 18-12-1986. As per this order, the Tahsildar proceeded with partition of agricultural property situated at Mouza Shivangaon, Sonegaon, Bhamti, Khamla, Giripeth and kokardi. The Tahsildar gave '/4th share each to four sons of deceased Babulal in all these agricultural lands. Respondent No. 3 Parimal @ Madanlal again felt aggrieved by the order of Tahsildar and he preferred an appeal before the sub-Divisional Officer, Nagpur. The Sub-Divisional Officer found that the tahsildar has acted on account of powers delegated to him by the Collector and appeal therefore, did not be before the Sub-Divisional Officer and dismissed the appeal. Respondent No. 3 thereafter filed revision vide Revenue revision No. S. R. V. /43/bhamti - 1/98-88 before the Additional Commissioner, nagpur, under section 257 of Maharashtra Land Revenue Code. This revision has been filed by respondent No. 3 Parimal @ Madanlal together with his father Babulal as applicants. The Additional Commissioner heard this revision and delivered final order therein on 30-8-1990. This order is challenged in the present petition on the ground that under the provisions of Maharashtra land Revenue Code (Partition of Holding) Rules, 1967, (hereinafter referred to as Partition Rules ). It is the assessment of holding which is relevant and not the valuation of market value of the property. It is further contended that present respondent No. 3 Parimal @ Madanlal has no locus and status to raise any objection in this respect. It is further alleged that no revision was maintainable under section 257 of the Code before the Additional Commissioner and an appeal should have been filed and as such cognizance of matter taken in revisional jurisdiction by the Additional Commissioner is without jurisdiction and order is vitiated. Though in petition, there are some other grounds raised, the Counsel for the petitioners Shri Kothari has argued only these three grounds.

(3.) RESPONDENT No. 3 appeared in person and argued the matter on his behalf and on behalf of respondent No. 2 in so far as maintainability of revision is concerned, he points out that under section 257, the Additional Commissioner, Nagpur Division, Nagpur, was competent to entertain the grievance in revision. He further states even it is held that revision is not maintainable and the order passed by Tahsildar is treated as an order passed by the Collector, still the appeal, against such order would be before the Additional Commissioner. Respondent No. 3 therefore, contends that there is no prejudice whatsoever caused to the present petitioners in the matter. He states that appellate jurisdiction is wider and respondent No. 1 Additional Commissioner has taken cognizance of the matter in revisional jurisdiction which is narrower in scope than the appellate jurisdiction. He argues that the scrutiny to be done in revisional jurisdiction can also be undertaken by the Appellate authority in appellate jurisdiction and hence, the order dated 30-8-1990 passed by the Additional Commissioner cannot be faulted on this ground. About locus of respondent No. 3. Respondent No. 3 states that he is party to the proceedings before the Tahsildar and notice to him was issued by Tahsildar. He, therefore states that he has every locus to file his objections and to approach higher authorities it those objections are not property decided. Respondent No. 3 states that though his father Babulal did not file any objection before the Tahsildar still his father did not oppose the objections raised by him and therefore, his father was not opposing respondent No. 3. He contends that, therefore, role to be played by him is not limited to the status of his father Babulal. He contends that he has been acting in the interest of babulal and his other sons and therefore, objections raised by him have been correctly construed by respondent No. 1. He further points out that the lands which are being divided in partition proceedings by Tahsildar have non-agricultural potential and many of them have come into the municipal limits of nagpur Corporation. He states that therefore, division of these lands into four equal shares is not the correct partition. He states that location of all these four portions availability of approach and the purpose for which these portions or lands are reserved in the development plan are definitely relevant while deciding that each party gets equal share in joint family property. He states that the Additional Commissioner has correctly appeared this aspect and correctly found that merely physical division in four equal division is not sufficient as purpose of partition is to give each party property having approximately same value. He, therefore, states that there is no jurisdictional error or any error apparent on records and there is no scope for interference with the matter in writ jurisdiction.