•^-v/-^^v^^^i^^^ c BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR tC.G.[ WRIT PETITION [227] N0. - 6^°^ OF 2010 PETITIONER PLAINTIFF RESPONDENTS DEFENDANTS VERSUS ^--l. ,< /^-y^f' ^y' ''Ja! ^^v' ^^^ "2. 3. 4. ^®' ^? ^ ^' :?'^' /^^M'SS^ ^'^> •e^ v. 5. ^' ""'^ f»ia 6. 7. 8. Dharnidhar S/o Jhagru, aged 65 years, Caste - Kolta, R/o village - Chhote Hardi, Tahsil - Pussore, District - Raigarh (C.G.) Buddhadev S/o Jhagru, aged about 50 years Khemanidhi S/o Jhagru, aged about48 years, Gunnidhi S/o Jhagru, aged about 46 years, Pandav S/o Jhagru, aged about 40 years, respondents No. l to 4 all of by caste - Kolta, R/o - Village Chhotehardi, Tahil - Pussore, District - Raigarh (C.G.) Padmavati, W/o Gopinath, aged about 53 years, R/o village - Padigaon, Tahil - Pussore, District - Raigarh (C.G.) Jashowanti W/o Kheersagar Gupta, aged about 52 years, R/o Village - Tetla, Tahil - Pussore, District - Raigarh (C.G.) Shuruwali W/o Vikrilal, aged about 48 years, R/o village Saraipali, Tahsil 8s District - Raigarh (C.G.) Vallabhi W/o Ani Gupta, aged about 32 years, R/o village - Badehardi, L Tahil - F>ussore, District - Raigarh (C.G.) 9. Doleshwari W/o Jhagru, aged about 72 years, R/o village - Chhotehardi, Tahil - F'ussore, District - Raigarh (C.G.) ^ 10. The State of Chhattisgarh, Through : The Collector, Raigarh District - Raigarh (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR ISSUENCE OF WRIT OR WRITS, ORDER OR ORDERS, DIRECTIQS OR DIRECTIONS UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. ^-. HIGH COURTOF CHHATTISGARH AT BILASPUR Writ Pstition (227) No. 6503 of 2010 PETiTIONER RESPONDENTS Dharnidhar Versus Buddhadev and others. WRITPETITtON UNDER ARTiCLE 227 OF THE CONSTJTUiON t 1^~ (SB: Hon'bie Mr. N.K. Agarwal. J.) Present : Mr. Santosh Kumar Tiwari.couhsei for the petitioner. Mr. Abhishek Saraf, counsei forrespondents No. 1 to 9. Ms. Sunita Jain, PL for the State/respondent No. 10. (11.05.2011) 1. With ths consent ofthe parties, the matter is heard finally. 2. Respondents No. 1 to 9 have.fiied an application under Ssction 178 of the Chhattisgarh Land Revenue Code before the Tahslldar, Pussour, Oistrict Raigarh. Plaintiffherein .appeared inthe proceedings and raised the question oftitie. The Tahsildarstayed fhe proceedings for three months. Within three months plaintiff preferred a suit before the First Civjl. Judge, Ciass II, Raigarh seeking relief of declaration and permanent injunction aiong with an application undsr Order 39 rule 1 and 2 for grant of temporary injunction.for staying the .proceedings pending before the Tahsildar under Section 178 of the Chhattisgarh Land Revenue Code. The trial Court altowed plajntlff's application and sta^ed the proceedings before the Tehsildar against which respondents preferred a misc.appeal before fhe 4 Addltional District Judge (F.T.C.), Raigarh. The First Appetlate Court vide impugned order dated 23.9.2p10 allowed the respondents' appeat and dismissed the plaintiffs temporary injunction applicatlon. The instant petition filed under Article 227 ofthe Constitutjon of India calls in question the legality and propriety of the order dated 23,9.2010 passed by4 Additional DistrictJudge, (F.T.C.), Raigarh. ..:l{t^' l'Sk. "T^ -^•-fS-"~ ^feY.'-:SF-!?'- <:: 3. Learned counsel for the petitioner would submit, the trial Court has rightly -granted stay in petitioner's favour and the learned Appeilate Court went wrong in setting aside the above order and in dismissing the plaintiffs application for grant of stay order/temporary injunction. 4. On tha other hand, Shri Abhishek Saraf, learned counsel for the respondents No. 1to 9 supported the judgment impugned. 5. I have heard learned counsel for the parties and perused materiai available on record including judgment impugned. 6. Section 178 ofthe Chhattisgarh Lsnd Revenue Coda reads under:- "178. Partition of hoiding.- (1) If in any holding, which has been assessed for purpose ofagriculture under Section 59, there are more than one Bhumiswami ariy such Bhumiswami may apply to a Tahsildar for a partitionof his share in the holding: [ Provided that if any question of title is raised the Tahsildar shall stgy the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the civii court, the Tahsildar shall stay his proceedings pe.nding the decision of the Civil Court. tf no civil suit is filed^within the said period, he shat! vacate the stay order and proceed to partition the holding In accordance with the entries in the record of rights;] (2) The Tahsildar, may, after hearing the co- tenure holders, divide the holdlng and apportion the assessment of the holding in accordance with the rules made under this Code. .XXX] i XX X] X X X] he as -^fi'3_ ^ |.,,)S<zsa'-»s^ I)?'".;..,;;*"., ' '"?> y / i 'usy^ i •023-it J ff '^'^^1" ^i' ^. i. Expianation I. For purposes of this section any co- sh.arer of the holding of a Bhumiswam! who has obtained a declaration of his title in such hoiding from a competent Civil Court shall be deemed to bea co-tenure holder of such holding." 7. In the above section it is provided that one of the Bhumiswami may apply to a Tahsildar for partition of his share in the hojding. Where any question of t'rtie is raised, the Tahsildar shall stay the proceedings before him for a period of three months to facilitate the institution of a civil suit and to obtain stay order and if no stay order is obtained from the Civil Court, Tahsidar may proceed to partltion the holding according to the entries in the record of rights. 8. ln the instant case, as per the petitioner he is oniy the son of the deceased Jhagru and in possession of the sult land entitled for hatf share in the su'rt land whereas as per the respondents they all are entitled for equal share in the property. This dispute is. to be resolved by the Civil Court and till then if the proceedings before the Tahsildar, Pussor, District Raigarh is , not stayed, the plaintlff may suffer te loss. 9. In these circumstances, this Court is of the view that the First Appeiiate Court has exceeded in exereising its jurisdiction in setting aside the sta.y order granted by the trial Court and in dismissing the piaintiff's application .for grant ofstay order. 10. For the reasons mentif' ^d above, the petition is ailowed, the impugned orderdated 23-9-2010 isset aside and the proceeding before the Tahsildar is stayed till the decision of the Civil Suit. 11. It is expected that the trial Court shail decide the case at the 'eariiest. 12. Petition is a.ccording!y allowed. No order asto costs. Sd/- N.K. Agrawal Judge /