Madhya Pradesh High Court
Matadin vs The State Of Madhya Pradesh on 1 August, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 27351 of 2019
MATADIN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri N K Gupta with Shri YPS Rathore - Advocate appeared for
the petitioner.
Shri Sanjeev Tiwari - Advocate for the respondent [R-5].
Shri Ravindra Dixit - GA appearing on behalf of State.
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Reserved on 29/07/2025
Delivered on 01/08/2025
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ORDER
1. The instant petition under Article 226 of the Constitution of
India is directed against the order dated 12.09.2019 passed by an
Additional Commissioner, Gwalior in Second Appeal No.235-
2019-20 preferred under Section 44(2) of MPLRC, whereby the
appeal has been dismissed as not maintainable in the light of
provisions under Section 46 of the MPLRC.
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2. The petitioner is further aggrieved by the order dated
24.06.2019 passed by SDO, Gwalior in First Appeal No.28/2017-
18, whereby the first appeal was dismissed on the ground of
limitation.
3. Facts necessary for adjudication are that the petitioners are
real brothers and sisters and Class-1 legal heirs of late Shri Ram
Avtar Singh Gurjar and Respondent no.5 and 7 are brothers of late
Shri Ram Avtar Singh Gurjar and other brother late Sardar Singh
has died and his legal heirs are on record and respondents no.8, 9,
10, 11 and 12 are legal heirs of another brother late Shri Gulab
Singh and respondent no.13 who has died was the daughter of late
Gulab Singh whose legal heirs are on record.
4. Late Shri Ram Avtar Singh Gurjar was exclusive owner and
possession holder of land bearing Survey No.300/1 (area ad-
measuring 0.648 hectare), Survey No.421/6 (area ad-measuring
0.627 hectare) and Survey No.425/4 (area ad-measuring 0.690
hectare), total area ad-measuring 1.965 hectare situated at Village-
Bhatkhedi, Patwari Halka No.77, Tehsil and District-Gwalior
(M.P).
5. The brothers of late Shri Ram Avtar Singh Gurjar were alive
in the year, 2010 except Gulab Singh and in the same year his
brothers Sardar Singh, Chandan Singh and Bharat Singh and legal
heirs of late Shri Gulab Singh by playing fraud, moved an
application before Tehsildar, Gwalior alleging that the land in
question is of joint holding and late Shri Ram Avtar Singh has no
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objection if the land is partitioned between all. In the said
application allegedly late Shri Ram Avtar Singh was stated to have
signed, but in actuality he had never filed any application for
partition and had never signed it and by forged and fabricated
signatures of late Shri Ram Avtar Singh the said partition was
carried out in Namantran Panji. No notices were issued to the
present petitioners who were legal heirs of late Shri Ram Avtar
Singh which created doubt about the genuineness of the
proceedings.
6. Along with the application of partition of the holdings one
affidavit of late Shri Ram Avtar Singh was also filed which did
not bear any date and there was no verification of the signatures
of late Shri Ram Avtar Singh and, thereafter, another affidavit of
late Shri Ram Avtar Singh was filed in the proceedings which was
notorized after the partition had taken place in the namantran
panji in five equal shares which further created doubt and
indicated that on the basis of forged and fabricated documents the
said namantran panji was got prepared.
7. The aforesaid fact of partition came to the knowledge of the
petitioners when they obtained the copy of khasra on 18.09.2017.
Immediately, thereafter, they preferred first appeal before the
SDO, Gwalior along with an application for condonation of delay
which was supported by an affidavit, but after hearing the matter,
the SDO dismissed the appeal as time barred. Being aggrieved by
the dismissal of the first appeal, the petitioner preferred second
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appeal before the Additional Commissioner, but the said appeal
was also dismissed ignoring the mandatory provisions
contemplated in Section 44 (3) of Code holding it to be not
maintainable under the provisions of Section 46 of the Code since
all the revenue authorities have committed gross error of law
while not entertaining the litigation of the petitioners which had
caused great prejudice to them, thus, the petitioners are left with
no other option, but to take the shelter of this Hon’ble Court by
filing present petition under Article 226 of the Constitution of
India had sought relief of the quashment of the said orders.
ARGUMENTS.
8. Learned counsel for the petitioner had submitted that as per
Section 46(b) of Code no second appeal would lie from an order
passed in first appeal against an order passed under the provisions
of sub-Section (1) of Section 131, Section 134, Section 173,
Section 234, Section 239, Section 240, Section 241, Section 242,
Section 244 and Section 248 and as per sub-Section (a) of Section
46 even when an application for condonation of delay on the
grounds specified in Section 5 of the Limitation Act is
allowed/rejected, no appeal shall lie, but as herein case neither the
order passed by the First Appellate Authority was under the
Sections mentioned in sub-Section (b) of Section 46 nor the
application under Section 5 of the Limitation Act was simplicitor
rejected rather as a consequence of the rejection of the
application, the entire appeal was dismissed, thus, filing of second
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appeal was not barred.
9. Learned Sr. Counsel while further referring to provisions of
sub-Section-2 of Section 44 has argued that second appeal shall
lie against every order passed in first appeal under this Code or
the rules made thereunder and further as per sub-section-3 of
Section 44 a second appeal would lie on twin conditions: (1) if the
original order has in the first appeal been varied or reversed
otherwise than in a matter of cost; or on any of the following
grounds as mentioned in Clause-(b) (i), (ii), (iii) and as the SDO
had failed to determine material issue of law, therefore, the order
was contrary to law and the second appeal was very well
maintainable.
10. Learned Sr. Counsel has further argued that the partition in
the namantran panji alleging it to be a consented order passed in
presence of father of the petitioners, who had signed the
application/affidavit as well as the namantran panji were all
forged and as there was an element of fraud involved in getting
the partition effected, the second appeal should have been
entertained and the order passed by the first appellate authority as
well as the Tehsildar should had been set aside. It was, thus,
prayed, that the present petition requires to be allowed and while
setting aside the order passed by the Additional Commissioner,
the matter needs to be remanded back for fresh adjudication and
apart from that the order of SDO dated 24.06.2019 and the order
passed by Tehsildar in namantran panji of partition be also set
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aside.
11. On the other hand, learned counsels for the respondents had
submitted that as per Section 44(3)(a) second appeal shall lie only
if the original order in the first appeal has been varied or reversed,
but herein case the original order i.e. namantran panji was not
reversed rather the first appeal itself was dismissed on the ground
of limitation. Thus, when the provisions of sub-section 3(a) of
Section 44 were not fulfilled, the second appeal was not
maintainable. Further it was argued that the term “or” used after
sub-section 3(a) would not mean that even if the order is not
reversed, a second appeal would lie, as Clause (b) only deals with
the grounds on which the second appeal would lie, but when the
petitioners could not overcome the very rider of sub-section 3
Clause (a), the question of going to the grounds of appeal and
maintaining the second appeal would not be permitted.
12. On merits, it was argued that so far as the contention of the
Counsel for the petitioners that late Shri Ram Avtar Singh had
never signed any application or had not signed the namantran
panji or his own affidavits and the signatures which are appended
thereupon are not of late Shri Ram Avtar Singh is concerned, in
contradistinction of the aforesaid fact no admitted signatures of
late Shri Ram Avtar Singh has been placed before this Court or
were placed before the lower Courts which could have
demonstrated that late Shri Ram Avtar Singh had never signed the
documents or had never sworn in the affidavits, but in absence
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thereof creating such disputed question of facts are of no
consequence and no relief on its basis can be claimed by the
petitioners. It was, thus, prayed that the present petition be
dismissed.
13. To bolster his submissions he had placed reliance in the
matter of Khyaliram vs. State of M.P and Ors reported in 2021(3)
MPLJ 520.
14. Heard the counsels for the parties and perused the record.
CONCLUSION:-
15. To appreciate the controversy certain provisions of MPLRC
are required to be analyzed. Section 44 which deals with appeals
and appellate authorities provides under sub-Section 2 and 3 as
under:-
(2) Save as otherwise provided, a second appeal
shall lie against every order passed in first appeal
under this Code or the rules made thereunder – (a)
by the Sub-Divisional Officer or the Deputy
Survey Officer or the Collector or the District
Survey Officer – to the Commissioner; (b) by the
Commissioner – to the Board.
(3)The second appeal shall lie only -(a) if the
original order has in the first appeal been varied
or reversed otherwise than in a matter of
cost;or(b)on any of the following grounds and no
other, namely:-(i) that the order is contrary to law
or, usage having the force of law; or (ii) that the
order has failed to determine some material issue
of law, or usage having force of law; or (iii) that
there has been a substantial error or defect in the
procedure as prescribed by this Code, which may
have produced error or defect in the decision of
8the case upon merits.
16. Further Section 46 of the Code provides that no
appeal lies against certain orders. For reference it is
quoted herein below:-
46. No appeal against certain orders:-
Notwithstanding anything contained in section
44,- (a) no appeal shall lie from an order – (i)
allowing or rejecting an application for
condonation of delay on the grounds specified in
section 5 of the Limitation Act, 1963 (No. 36 of
1963); or (ii) rejecting an application for review;
or (iii) allowing or rejecting an application for
stay; or (iv) of an interim nature; or (v) passed
under the provisions of sections 29, 30, 104, 106,
114-A, 127, 146, 147, 150, 152, 161, 207, 208,
210, 212, 213, 215, 220 and 243; and
(b) no second appeal shall lie from an order
passed in first appeal against an order passed
under the provisions of sub-section (1) of section
131, section 134, section 173, section 234, section
239, section 240, section 241, section 242, section
244 and section 248.
17. Herein case the second appeal has been dismissed by the
Additional Commissioner on the ground that it is hit by the
provisions of Section 46 as quoted above. Section 46 provides
that upon rejection of application under Section 5 of the
Limitation Act no appeal shall lie and further no appeal would lie
against rejection of an application for review or an application of
interim nature or orders passed under the provisions of Sections
29, 30, 104, 106, 114-A, 127, 146, 147, 150, 152, 161, 207, 208,
210, 212, 213, 215, 220 and 243 which implies that whenever an
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order on the original side with regard to the aforesaid is the
passed, no appeal would lie and further as per Clause (b) of
Section 46 no second appeal shall lie from an order passed in first
appeal against an order passed under the provisions of Sections
mentioned therein. Thus, when none of the eventualities existed,
the dismissal of the second appeal on this ground by the learned
Additional Commissioner is not sustainable, but this Court finds
that Section 44 of the Code also provides certain riders for
maintainability of Second Appeal, the first one is under Section
3(a) of Section 44, whereby only if the original order is reversed
or is varied in first appeal that a second appeal would lie or if their
existed certain grounds as mentioned in Clause (b) of sub-
Section-3 of Section 44. Clause (b) of sub-Section-3 of Section 44
provides that if the order passed in first appeal is contrary to law
or usage having the force of law; or that the order has failed to
determine some material issue of law, or usage having force of
law; or that there has been a substantial error or defect in the
procedure as prescribed by this Code, which may have produced
error or defect in the decision of the case upon merits then only
the second appeal shall lie, but herein case firstly the order in first
appeal has not been varied or reversed and secondly no ground as
mentioned under Clause (b) (i), (ii), (iii) have been pointed out by
the learned Sr. Counsel demonstrating that the order passed by the
first appellate authority was contrary to law or had failed to
determine some material issue of law or there was substantial
10
error or defect in the procedure as prescribed by the Court. Thus,
when none of the eventualities existed, the contention of the
learned Sr. Counsel for the petitioner that the second appeal
would be maintainable is baseless.
18. Since the petitioner has a remedy of revision against the
order passed by the SDO, which liberty has already been granted
by the Additional Commissioner, this Court doesn’t find any
reason to interfere with the orders passed by the SDO or Tehsildar.
19. The petition being sans merit is hereby dismissed.
(Milind Ramesh Phadke)
Judge
chandni/
CHANDNI
Digitally signed by CHANDNI NARWARIYA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH AT GWALIOR,
2.5.4.20=4a0af498d89b2d94b5abcc1b46
14d98feabd8b78228e0ec6eab9a0bd4e62
NARWARI
2c09, ou=HIGH COURT OF MADHYA
PRADESH BENCH AT GWALIOR,CID –
7022823, postalCode=474001,
st=Madhya Pradesh,
YA
serialNumber=8c306c586aaa43d19976f0
7886865f6fac4a246eee6bccd256acdfce3
dcf944f, cn=CHANDNI NARWARIYA
Date: 2025.08.01 14:31:34 +05’30’
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