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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4758 OF 2016
Latabai Subhashrao Dahake,
aged about 46 years, Occ. Household
Work, R/o. Warud, Tq. Warud,
Distt. Amravati. ... PETITIONER
...VERSUS...
Jayant Punjaji Takarkhede,
aged about 51 years, Occ. Cultivator,
R/o. Warud, Tq. Warud,
Distt. Amravati.... RESPONDENT
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Shri H.S.Chitaley, Advocate, for Petitioner
Shri A.D.Patil, Advocate for Respondent
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CORAM: R. K. DESHPANDE, J.
th DATE : 17 OCTOBER 2016 1] Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2] The challenge in this petition is to the order dated 15.06.2016 passed below Exh.18 by the trial Court appointing Court Commissioner in the final decree proceedings for partition of the property. The order further ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:36:37 ::: 2 wp4758.16.odt directs the Court Commissioner to deliver the possession of the suit property to the judgment debtor and the decree holder respectively.
2] On 22.08.2016, this Court had passed an order as under;
"The reliance is placed upon the decision of the Apex Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bub vrs. Sita Saran Bubna and ors, reported in AIR 2009 SC (Supp) 2863, to urge that the Commissioner, in case of house property has to be appointed to effect the partition by metes and bounds. Upon submission of the report by the Commissioner, the Court has to carry further the proceedings and hearing the parties upon the report of the Commissioner. In the present case, the Court has directly passed an order handing over the possession of the properties alongwith the order of appointment of Court Commissioner.
Issue notice for final disposal of the matter, returnable on 17.10.2016.
Service by R.P.A.D in addition to regular mode of service.
In the meantime, the possession of the petitioner over the property in dispute shall not be disturbed."
3] In response to the aforesaid order, the learned counsel Shri A.D.Patil has appeared for the respondent in the matter and raised a preliminary objection that there is a remedy of filing Civil Revision Application under Section 115 of Civil Procedure Code. He further submits that in terms of ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:36:37 ::: 3 wp4758.16.odt the decision referred to in the order passed by this Court, it is for the Court Commissioner to carry out the further proceedings by effecting the partition by metes and bounds and by delivering the possession to the respective parties.
4] In so far as the objection regarding maintainability of this writ petition is concerned, obviously the remedy under Section 115 of C.P.C is not available for the reason that if the petition is allowed, the proceedings before the trial Court shall proceed further and it shall not come to an end, as contemplated by proviso below Section 115 of C.P.C. Hence, the preliminary objection is rejected.
5] So far as the merits of the matter are concerned, the decision of the Apex Court cited supra has laid down the guidelines in paragraph 9.2 in regard to the immovable property and the partition. The said portion is reproduced below.
"9.2) In regard to immovable properties (other than agricultural lands paying land revenue), that is buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:36:37 ::: 4 wp4758.16.odt of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared."
6] Without following the aforesaid guidelines, the trial Court has passed an order directing the Court Commissioner to deliver the possession of the property to the parties concerned upon preparing the report. This is not the method which is contemplated by the aforesaid guidelines laid down by the Apex Court. After submission of the report by the Court Commissioner, the parties are to be given an opportunity to raise objection and thereafter the final decree ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:36:37 ::: 5 wp4758.16.odt proceedings can be concluded after hearing the parties. In view of above, the order impugned to the extent it directs the Court Commissioner to deliver the possession to the parties concern cannot be sustained and the same will have to be set aside.
7] In the result, the writ petition is allowed. The order passed by the executing Court below Exh. 18 on 15.06.2016 to the extent directing the Court Commissioner to hand over the possession to the parties concerned is hereby quashed and set aside. The trial Court to keep in mind the procedure prescribed under Order XXVI, Rules 13 and 14 of C.P.C read with the guidelines referred by the Apex Court which are reproduced above.
Rule made absolute in above terms. No order as to cost.
JUDGE Rvjalit ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:36:37 :::