Decided on January 20,1967

Paitram Appellant


R.J.BHAVE, J. - (1.) BY this petition under Article 226 of the Constitution, the petitioners seek a writ of certiorari for quashing all order dated 15th September 1965 passed by the Board of Revenue, Madhya Pradesh, in Revision No. 99 -I/1964.
(2.) THE petitioners had presented an application under section 178 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as the Code), before the Naib -Tahsildar Gharghoda, for partition of certain property alleged to have been held by them along with Mahingal Singh (respondent No.5) in Bhumiswami rights. It was claimed that the land belonged to the parties as members of the joint Hindu family and they had a right of partition. The respondent No.5, however, raised an objection that the land was recorded in his name; that he was solely entitled to the said land; and that the petitioners were not entitled to any partition. In other words, the respondent No.5 raised a question of title before the Naib -Tahsildar. The proviso to sub -section (1) of section 178 of the Code reads: "Provided that no such partition shall be nude, if any question of title is raised, until such question has been decided by a civil suit.  The contention of the respondent No.5, therefore, was that the Naib. Tahsildar could not proceed with the partition till the question of title raised by him was decided by the Civil Court.
(3.) THE Naib -Tahsildar, after considering the evidence produced by the parties, came to the conclusion that a genuine dispute as to title was raised by the respondent No.5 and that the proviso to section 178 (I) of the Code was attracted. He, therefore, held that the 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 petitioners. The Sub -Divisional Officer, Raigarh, however, set aside the order of the Naib Tahsildar on the ground that the objection raised by the respondent No. 5 was not genuine. The Commissioner, Bilaspur Division, also took the same view. The Board of Revenue, on consideration of the various facts on record, came to a contrary conclusion and held that a substantial question as to title was raised by the respondent No.5 and set aside the orders of the lower appellate Courts and restored that of the Naib -Tahsildar. The present petition is directed against the said order of the Board of Revenue.;

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