Arun Ashruba Mhaske vs Atmaram Dattu Mhaske And Ors.
2007 Latest Caselaw 265 Bom

ORDER

S.B. Deshmukh, J.

1. Heard learned Counsel for the respective parties.

2. Rule. By consent, Rule made returnable forthwith and the petition is taken up for final disposal.

3. Resume of the relevant facts, may be summarised as follows:

(A). Present respondents 1 to 6 were the plaintiffs in Regular Civil Suit No. 208 of 1976 ("RCS") filed for partition and separate possession of the suit properties. Present respondents 7 and 8 are original defendants 1 and 2 and, present petitioner is the original defendant No. 6, present respondent No. 9 is the original defendant No. 3, present respondent 10 is the original defendant No. 4 and present respondent No. 1 is the original defendant No. 5. Parties hereinafter, for the sake of convenience, are being referred to their status in the RCS.

(B). Learned Civil Judge J.D. Beed ("trial Court") after recording evidence decreed the suit by its judgment and decree dated 10-8-1983. Subject-matter of the suit is undisputedly agricultural lands. This judgment and decree was challenged in Regular Civil Appeal No. 293 of 1983 ("RCA") in the court of learned District Judge, Beed ("first appellate Court"). Said RCA, after hearing the parties, was allowed on 5-9-1992 and decree passed by the trial Court came to be modified. This modification resulted into reduction of share granted in favour of the plaintiffs by the trial Court.

(C). Aggrieved by this reduction of share, plaintiffs filed Second Appeal No. 44 of 1993 in this Court. According to Shri Chapalgaonkar, learned Advocate, said appeal is admitted by this Court but the plaintiffs have not moved this Court for stay, during pendency of the second appeal, since they are interested in getting their shares, demarcated and possession thereof.

(D). The modified decree passed by the first appellate court, in due course of time, was sent to the Collector for execution.

(E). Application Exhibit 39/D was filed by the plaintiffs (decree holders) in R.D. No. 83 of 1992, contending therein that they have filed second appeal in the High Court and that there is no stay or any reason to stop execution of the decree and therefore, they seek execution of the decree against judgment debtors 4 and 5 in terms of the report of the District Inspector of Land Records ("DILR"). The plaintiffs, therefore, in the said application prayed for issuance of warrant for possession in terms of Exhibit 34. The executing Court (Civil Court), by its order dated 26-6-2000, directed issuance of possession warrant of the suit property as proposed by the DILR. This order is subject matter of the present writ petition.

4. It is not in dispute that the decree passed by the Civil Court pertains to agricultural lands assessible to land revenue. It is also not in dispute that this decree is to be executed by the Collector or his subordinate officer in accordance with Section 54 of Civil Procedure Code ("CPC"). Section 85 of the Maharashtra Land Revenue Code, 1966 ("Code of 1966") is relevant and it reads as:

85. Partition. -- (1) Subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, a holding may be partitioned on the decree of a Civil Court or an application of co-holders in the manner hereinafter provided.

(2). If in any holding there are more than one co-holder, any such co-holder may apply to the Collector for a partition of his share in the holding:

Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a Civil Court.

(3)...

(4)...(Deleted)...

(5)...

4A. Bare perusal of Section 85(1) of the Code of 1966 shows that a holding may be partitioned on the decree of a Civil Court or an application of co-holders in the manner hereinafter provided. A co-holder also can apply to the Collector for partition of his share in the holding which is further clarified under Section 85(2) of the Code of 1966. However, proviso to Section 85(2) prohibits the Collector from such partition of the agricultural land in case of raising a question of title by any of the parties. Title, as per this proviso to Sub-section (2) has to be decided by the Civil Court. Other contingency considered by Sub-section (1) of Section 85 is regarding effecting a partition in accordance with the decree passed by the Civil Court. The partition is not confined to mere division of lands in question into the requisite parts but includes delivery of shares to their respective shareholders. When there is a decree of Civil Court, it is to be executed by the Collector or any Gazetted/subordinate officer deputed by him in this behalf in accordance with the law relating to the partition. Once the decree is sent to the Collector, the Civil Court's duty is over and the Civil Court has very limited power in this respect. However, if the Collector contravenes the decretal order or transgress the decree or otherwise acts as ultra vires or refused to implement the directions or decree passed by the Civil Court, then such action of the Collector is liable to be controlled and corrected by the Civil Court which passes the decree. The Collector cannot refuse to carry out the decree or order of partition made by the Civil Court for effecting the actual partition of the agricultural lands. The Collector or his subordinate officer is required to divide the holding and apportion the holdings in accordance with the Rules, namely; Maharashtra Land Revenue (Partition of Holdings) Rules, 1967 ("Rules of 1967"). The work of effecting the partition as per decree is done by the Cadastral Surveyor. Mode of effecting such partition is provided under the Rules of 1967. Sub-rule (9) lays down that when any holding is ordered to be partitioned under a decree or order of the Civil Court, the provisions of Rules 5, 6 and 9 shall apply, as they apply in relation to partition of holding on the application of a co-holder. These Rules are important in such process of effecting the partition in accordance with the decree passed by the Civil Court. Rules 5, 6 and 7 of the Rules of 1967 read as under:

5. Mode of effecting partition. -- If the Collector does not reject the application, he shall proceed to effect the partition either personally or through such agency as he may appoint. So far as practicable, whole survey numbers or sub-division of survey numbers shall be allotted and recourse to further division as far as possible, be allotted to each party and care should be taken to ensure that the productivity of the area allotted to each party is in proportion of his share in the holding.

6. Apportionment of assessment. -- The assessment of the holding shall be distributed in proportion to the shares held, in the holding by the co-holders, so however that when the total assessment of all the subdivisions of any survey number in such holding falls short of, or exceeds, the whole assessment of that survey number, the difference shall be equitably distributed over the sub-divisions by addition or deduction in the assessment so as to make the total equal to the assessment of the parent survey number.

7. Procedure before confirmation of partition. -- After the partition has been completed, the Collector shall hear any objections which the parties may make, and shall either amend or confirm the partition. The partition shall take effect from the commencement of the agricultural year next following the date of such amendment or confirmation of the partition.

It is also apropos to refer Order XX, Rule 18(1) of CPC. The partition of the agricultural lands, thus, ultimately has to be effected by the Collector or his subordinate Gazetted officer in accordance with the provisions laid down under Section 54, Order XX, Rule 18(1) of CPC, Section 85 of the Code of 1966 and Rules of 1967. Thus, the Civil Court is determining the entitlement/shares of the parties to the suit property and execution of this decree putting the decree holder in actual and physical possession is the legal obligation cast upon the Collector and his subordinate officers. Ordinarily, Civil Court after passing the decree becomes defunct so far putting the decree holders in actual and physical possession of the property.

5. In the case at hand, it appears that application Exhibit 39/D seems to have been moved by the plaintiffs/decree holders seeking issuance of warrant under Order XXI, Rule 35 of CPC. The provisions laid down under Order XXI, Rule 35, in fact, does not apply for possession of the agricultural land. To that extent and on the premises of facts and circumstances obtaining in this case, in my view, the Civil Court does not have jurisdiction to entertain such an application. Thus order impugned in this petition needs to be quashed and set aside.

6. While passing this order, cognizance of the facts needs to be taken by this Court that the suit is filed in 1976, it came to be decreed on 10-8-1983 and said decree stands modified by the first appellate court on 5-9-1992. In this background, the Collector and his subordinates have to complete the proceedings for effecting partition, in accordance with the provisions of law and without wasting any more time.

7. In the result, Writ Petition is allowed. The order passed by the Civil Judge (J.D.) Beed, below Exhibit 39/D dated 3-5-2000 is quashed and set aside. Rule is accordingly made absolute, however, with no order as to costs.