"3 IN THE HIGH COURT OF CHHATTISGARH AT: BILASPUR •ie !5Bi PETITIONER: RESPONDENTS: & .^s ^-- -<r> o <S\uliy> *' W.P.No. 35"^ QF 2005 Prem Sagar Suryawanshi, aged 28 years, son of late Shri Samey Lal Suryawanshi, residents of village Parsada, Post Office Tifra, Tehsil & Dista-ict Bilaspur (C.G.) VERSUS ^^^1 ^•'£:"]^1.Bi "^ ••c\' 4. Stat'e of Chhattisgarh through the Secretary, Revenute department, Raipur (Chhattisgarh) 2. Tehsildar, Bilaspur, district Bilaspur (C.G.) Sub Divisional Officer, Bilaspur, district Bilaspur (Chhattisgarh) 4. Board of Revenue, State of Chhattisgarh, at Bilaspur (Chhattisgarh) 5. Sukh Sagar Suryawanshi, aged 35 years, son oflate Shri Mohan Lal Suryawanshi, 6. Bhagwat Prasad Suryawanshi, aged 48 years, P son oflate Shri Mohan Lal Suryawanshi, No. 5 and 6 are residents of village Parsada, P.0. Tifra, Tehsil aad district Bilaspur (Chhattisgarh) 7. Geeta Prasad Suryawanshi, aged 38 years, son of late Shri Mohan Lal Suryawanshi, Patwari, posted at village Saragbundiya, Tehsil Champa, district Janjgir-Champa (CUhattisgarh) 8. Smt. Chhedin Bai Siuyawanshi, aged 40 years, wife of Shri Lakhan Lal Suryawanshi, i-esident of village Ramtala, P.0. Sendari, Tehsil and district Bilaspur (Chhattisgarh) 9. Smt. Laxmin Bai Suryawanshi, aged 32 years, wife of Shri Ram Phal Siiryawanshi, resident of village Bharari, P.0. Ranigaon, Tehsil Kota, district Bilaspur (Chhattisgarh) WRIT PETmON UNDER ARTICLE 226/227 OF THE CONSTITUTION OF ENDIA FOR ISSUANCE QF WRTT IN THE NATURE OF CERTIORARI, MANDAMUS. PROHIBITION AND FOR SUITABLE WRIT. ORDER, DIRECTION. loner most humbly and respectfully begs to submit as '^ ::I..B.isiB^*aU.-"<* -3^ •^^ic^, WStWS, 'W-f^W^: U3-y<UB . STi^?! "17??S'( 1 %! i^" (I^tBOT vj"^'_<i ". J ^ I. 1 -^^ ^Tf^ ^J,'ff-:Ja^^ '^+^'~^SWT^ L?^F-.' '^T^I^'^TH '^^T^T?? T^^ Tf-T^^^ DMSIQN BENCH HON'BLE SHRI A.K. PATNAIKJ CJ. & HON'BLE SHRIVIJAYl^JHA&SyRIVASTAVA, J. 02.05.2M5 v Heard Mr. Somnath Ver^ia, leamed counsel for the petitioner amj Mr. Somesh Bajaj, leamed py; Govt. Advocate for the State of ChhatBsgarh / respondents 1 to $. 1 The petltioner flled an japplication under Sectron 17% of the Chhattisgarti Land Revenue Cotje, 19S9 (iw short "the Code") lor partiSon of holding before the Revenue registered as Revenue Case notices to the respondents 5 to Court of Tahsitdar Bitaspur which was No.6A-27/2(»1. The Tahsildar issued 9, and ttiereafter allowed the application for partition by an order dated ? dated 21.08.2001, respondente) Dhflsional OfRcer, Bllaspur whtet< NQ.100/A-27/20)2-2003 and the] the Tahslldar should have stayeij 2005, but the said appeal wss sj 1.08.2001. ^grieved by ttie safd order 5 to 9 flted an appeal before the Sub- has rsgistered as Revenue Appeal Case Sub-Dhflsional Officer Bilaspur held that the partition case before him for a period of three months in accordance wjth the proviso to Section 178 of the Code as a question of title had be^n raised by respondents 5 to 9 and accordingly quashed the order d^ted 21.08.2001 passed by tte Tahsildar Bilaspur. ^grieved, the petiUt^ier filed an appeal before the Revenue Board at Bitaspurwhteh is numb^red as Second Appeal No.34/A-27/2CXM- Iso dismissed by ttie Revenue Board by >0,000. '1"^'!T^ ^^ :yfFyi ^~^f: HiNfli! V!fi*<!'!W ^, ?.A36.3 S^fs or. W^SVVS CwS-SSVp) t?<rt:;-^i^ •^K-',; -.-=:••':-,; _^ j -:^. ^w^- ^J^'S'"' .L.-_.^. ...^^-«,..^---. ....,,.»-.,.^.———•-••—'—'-—---•u-:-'"""--" order dated 26.10.2004. Aggrieved, the petitoner has flted this petltion underArticle 226 ofths Constitutfon of India. ^ Mr. Venna, leamed counsel appearing for the petiUoner submitted that the Revenue Board whiteidtemissing ttie app^l of ths pafitioner has relled upon tfie provisk)ns ofjSecUon 49 of the Code amended by the Chhatbsgarh Land Revenue Qode (Amendment) Act, 2003 by which the eartier provisions of Section 49 of the Code which enabled the appellate authority to remand the case for disposal has been done away wth and it has been provided in Section 49 of the Code that no ordw passed by the appellate authority shalt havethe effect of remanding the case for disposat by any Revsnue OfBcer subordjnate to it. I. Mr. Verma submitted ttiett as a result of impugned orders passed by the Sub-DMsional OfRcer as weH as the Revenue Board, the p^itioner will not have any remedy of partittoi) in respect of a joint hoMing. We are unabte to agree with Mr. Verma, leamed counssl appearing for the pstltioner. Sech'on 1 78 ojf the Code is quoted herefn bslow: "178. PartUon of hotdiog.- (1) If in any holding, whteh has been assessed fbr purp<»se of agriculture under section 59, there are more than one Bhumisvrami any such Bhuminswami mayappl^to a Tahslkfar for a partitkm of his share in the hokling: | Provided that if qny question of title is raised ttie Tahsitdar shall stey the pijoceeding before him for a period of \».,- 'y'?-~4F;_'7R ^s.-r^——; o ^^ '^^T^-il^l^. ?$'<'U^:ai^> ii:^1;ii=?ly. oj^.^6..3.S:L^,^ s^t^ "ly^ (^^^'^ ftree months to facilitate e institutton of a chrit suit for determinatton of the qu^stion of tftle. (1-A) If a chril sujt is fited within the period specified in the proviso to sub-sedion (1), and stay order is obtained from e civit court, Ww Tahsildar shall stay his proceedir^s pending the dsciapn of; the civ!i court. tf no civll suit fe fited within the sakl period, ihe shall vacate the stay order and proceed to partitfon ttle holding in accordance with ttie entries in e record of rjghts. (2) The TahsiMar, may, after hearing the co-tenure holders, divide the holdhwi and apportion the assessment of the hokling in accordar?ce wiUi the rules made under this Code." I It would be clear from a plain reading of SecBon 178(1) <rf the Code quoted above that if any hotding, which has been assessed for the purpose of agriculfaire under SecUon 59 of the Code there are more than one Bhumiswami any such Bhjumiswami may apply to a Tahsitdar for a partition of hfe share in the holding. But ttie proviso to Section 178(1) of Code mak it clear that if any questton of titte is raised, the Tahsiklar shall stey fte proceeding befcre him for a period of three months to facilitate institufion of a civit suft for determination cf fte quesUon of tiUe. All that fte Sub-CHvisionat Offiter, Bitespur has held in his order dated 20.09.2004 is at slnce a quesfaon of titte has been raised, the Tahsiklar should havs stayed e proc^sding before him for a period of three months to facilitate the instituUon of cMI suit fbr determinaUon of the ^ t.-ful 3-'^^)T!wR, WSTWTe, -Rffi133y LO,flub.3S"Ll^^ •1S fSi.fts'Sn -^- question <rf title and since the jTahsildar has not stayed the proceeding before him for partition, although ttie questign of tiUe had besn raised, he set aside the order dated 21.08.2001 passed by the Tahsildar but by the said order dated 20.09.2004, the Sub-Divisional CTiGer BUaspur has not dismissed the application of ttie petitioner for partitton. The result is at the application of the petittoner for partition still remains pending before the Tahsildar Bilaspur and in dase a ch/il suit is ffled within a period of three months by respondents 5 to 9 and a stay order obtained from fte cwil Court, the Tahsildar has to stay hfs proceeding pending decision by the dvil Court. In case no civilISuit is filed within the sakl period of thres months, e Tahsitdar shall proceed to partition the holding in accontence with the enfries in the record o^ rights as would be eviclent of sub-Section (1-A) of Ssction 178 of the Code. We are thus of the viewithat this writ peWon flted by the petiUoner is misconceived and we are not inclined to interfere with the impugned orders passed by the Sub-Divisional Oflteer, Bitaspur and we dispose of flTe-writ^etition with the aforesaid obsenrations. Sd/- chief Justice Sd/- V.K-Shrivastava Judge