Unrecorded Claimant Cannot Seek Partition Under Section 178 MPLRC, Must Approach Civil Court: MP High Court
The Madhya Pradesh High Court at Jabalpur held that a person not recorded as Bhumiswami in revenue records has no right to apply for partition under Section 178 of the MPLRC, 1959, and must instead assert title before a civil court.
The High Court of Madhya Pradesh at Jabalpur, in a writ petition arising from a revenue partition dispute, has quashed orders passed by the Naib Tehsildar and the Board of Revenue that had allowed a partition application filed by a person not recorded as Bhumiswami in the revenue records. Justice Deepak Khot, sitting singly, held that revenue authorities have no jurisdiction to adjudicate questions of title, and that the burden of approaching a civil court lies on the person asserting an unrecorded claim — not on the person objecting to it. The judgment settles a recurring confusion about who must file a civil suit when a title dispute arises during partition proceedings under Section 178 of the Madhya Pradesh Land Revenue Code, 1959.
The Partition Dispute and Its Procedural Journey
The respondent, Shubhkaran Vaishya, applied to the Tehsildar for partition of a holding under Section 178 of the Madhya Pradesh Land Revenue Code, 1959 (the Code of 1959). The petitioner, Shiv Kumar Vaishya, objected, contending that the respondent was not recorded as a Bhumiswami in the revenue records and therefore had no standing to file such an application.
On that objection, the Tehsildar stayed the proceedings for three months under the proviso to Section 178(1), directing the petitioner to file a civil suit before a competent civil court. When no civil suit was filed within that period, the Tehsildar resumed the proceedings and passed an order dated 15 May 2008 (Annexure P/1) allowing the partition application.
The petitioner appealed. The appellate authority allowed the appeal vide order dated 31 July 2008 (Annexure P/2). The respondent then filed a second appeal, which was dismissed on 19 June 2009 (Annexure P/3). Undeterred, the respondent preferred a revision before the Board of Revenue, Gwalior. The Board allowed the revision by order dated 7 December 2012 (Annexure P/4), restoring the Tehsildar's original order. It was this order that the petitioner challenged before the High Court in Writ Petition No. 504 of 2013.
The Legal Question: Who Bears the Burden of Filing a Civil Suit?
The central question before the court was whether a person not recorded as Bhumiswami in the revenue records can apply for partition under Section 178 of the Code of 1959, and, when a title dispute arises, who must approach the civil court — the applicant asserting an unrecorded claim, or the objector denying that claim.
Counsel for the petitioner argued that Section 178 permits only a Bhumiswami to apply for partition. Since the respondent was not recorded as such, the Tehsildar had no jurisdiction to entertain the application. When the petitioner raised this objection, the Tehsildar wrongly directed the petitioner to file a civil suit. It was the respondent, asserting a positive claim to title, who ought to have sought a declaration from the civil court.
Counsel for the respondent took a different position. The statute uses the word “Bhumiswami” and not “Recorded Bhumiswami,” which, it was argued, means any person claiming to be a Bhumiswami may apply. On this reading, the person objecting to the application should be directed to file a civil suit for a declaration that the applicant is not a Bhumiswami. Reliance was placed on coordinate bench decisions in Virendra Singh v. Krishnapal Singh (2020) 3 MPLJ 348 and Baiju v. Mulayam Bai 1965 RN 465.
How the Court Reasoned
Justice Khot reproduced Section 178 of the Code of 1959 in full. Sub-section (1) provides that where a holding has more than one Bhumiswami, any such Bhumiswami may apply to the Tehsildar for partition of his share. The proviso states that if any question of title is raised, the Tehsildar shall stay proceedings for three months to facilitate institution of a civil suit for determination of that question. Sub-section (1-A) further provides that if a civil suit is filed within that period and a stay is obtained from the civil court, the Tehsildar shall keep his proceedings in abeyance; if no civil suit is filed, he shall vacate the stay and proceed to partition in accordance with the entries in the record of rights.
The court held that the question of who must file the civil suit is not res integra. Revenue authorities have no jurisdiction to decide title. Only a civil court can do so. When a person who is not recorded as Bhumiswami asserts that he has a share in a joint holding, he is making a positive claim to title. That positive claim must be established before a civil court. It is not for the person objecting — who is merely denying the unrecorded claimant's title — to seek a negative declaration.
The court drew on Virendra Singh v. Krishnapal Singh (supra) for the proposition that two conditions must be satisfied before the Tehsildar stays partition proceedings: a civil suit must have been filed, and a stay order must have been obtained from the civil court. Both are necessary. The court read Baiju v. Mulayam Bai (supra) as addressing a different situation — one where the joint holding was admitted by all parties, so the court treated possession by one co-tenant as possession on behalf of all. That factual premise was absent here.
Justice Khot also drew on the law laid down in Jitendra Singh v. State of Madhya Pradesh 2021 SCC OnLine 802, which itself surveyed a long line of Supreme Court decisions from Balwant Singh v. Daulat Singh (1997) 7 SCC 137 onwards. The consistent position is that entries in revenue records neither create nor extinguish title, and have only a fiscal purpose. Title can only be decided by a competent civil court on the basis of evidence.
Applying these principles, the court found that the Tehsildar had exceeded his jurisdiction in two respects: first, by entertaining an application from a person not recorded as Bhumiswami; and second, by directing the objecting party — rather than the claimant — to file a civil suit. The Board of Revenue compounded the error by confirming the Tehsildar's order.
Outcome
Justice Khot quashed the order of the Naib Tehsildar dated 15 May 2008 (Annexure P/1) and the order of the Board of Revenue dated 7 December 2012 (Annexure P/4). The order of the appellate authority dated 31 July 2008 (Annexure P/2), which had allowed the petitioner's appeal, was affirmed.
The respondent was granted liberty to file a civil suit before the competent civil court for asserting his right and share in the property. The writ petition was disposed of accordingly.