ORDER
K.K. Lahoti, J.
1. The petitioner has challenged the order dated 27-3-2004 by Additional Commissioner, Hoshangabad Division, Bhopal by which the Additional Commissioner without deciding the application filed by the petitioner under Section 52 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as ‘the Code’) has fixed the case for hearing on 29-5-2004. Contention of the petitioner is that respondent No. 4 challenged the partition order of Tehsildar dated 8-6-1978 before Sub Divisional Officer, after a period of near about 23 years. The aforesaid order was set aside by the SDO vide order dated 5-9-2003 on the ground that respondent No. 4 Imratlal is of unsound mind and without allotting any share to him, the Tehsildar has passed the order of partition.
2. Learned Counsel for the petitioner submits that the order of partition was challenged by Imratlal after 23 years, he was present in the Court and has signed the proceedings. In the circumstances, if the partition order was challenged after 23 years and SDO set aside the order, then, the Additional Commissioner ought to have stayed the aforesaid order. The Commissioner has not properly exercised his jurisdiction, in not considering the application filed by the petitioner under Section 52 of the Code. Contending aforesaid, learned Counsel for the petitioner submits that operation of the order may be stayed.
3. From the perusal of order by Tehsildar (Annexure P-4), it is apparent that there were 4 co-owners, namely, Nandram, Badri Prasad, Shobharam and Imratlal. They are the brothers. Joint application was filed by the three brothers before the Tehsildar for partition and on 8-6-1978, Tehsildar accepting the contention of the applicants that the land of Imratlal be kept jointly with the three brothers and thereafter partitioned the entire land amongst them, namely, Nandram, Shobharam & Badri Prasad, without allotting any share to Imratlal, who was/is admittedly of unsound mind. When Imratlal was of unsound mind, it was the duty of the Tehsildar to take care of his interest. When the aforesaid three brothers made a submission that the land be kept with them, then the Tehsildar ought to have allotted proper share to Imratlal and ought to have appointed some guardian to take care of the interest of Imratlal. But, on the contrary, his share has been merged and divided in the share of other three brothers and in fact no share has been allotted to him,
4. The aforesaid order is apparently illegal and void. When Imratlal was of unsound mind then the Court ought to have appointed his guardian and ought to have taken care of his interest. The Tehsildar failed to discharge his duties in this regard. The SDO has rightly set-aside the order of partition and remitted the matter back. Merely the order of the Tehsildar was challenged after 23 years will not make any difference when the order of Tehsildar was illegal and void. In the circumstances, I do not find any jurisdictional error in the order of SDO and the SDO has rightly remitted the matter to Tehsildar to decide the matter afresh. In the circumstances, I do not find any necessity to continue the appeal filed before the Additional Commissioner. Consequently, the appeal filed by the petitioner before the Additional Commissioner is dismissed and the Tehsildar is directed to decide the matter afresh in accordance with law, with the following directions :–
“The Tehsildar shall take care of the interest of Imratlal, who is of unsound mind and will see that a proper person shall be appointed as guardian of Imratlal and thereafter to proceed with case and shall pass appropriate order in this regard.”
5. With the aforesaid directions, this petition stands finally disposed of with no order as to costs.