Yadav Shivram Timade vs Ramchandra Shivram Timade And ...
2017 Latest Caselaw 5830 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                  WRIT PETITION NO. 4463 OF 2015


             Yadav Shivram Timade,
             Aged about 53 years, Occ : Cultivation
             R/o. Ankhoda, Tah-Chamorshi,
             Dist. Gadchiroli.                                                              .....PETITIONER

                           ...V E R S U S...

        1]  Ramchandra Shivram Timade,
              Aged about 45 years, Occu. Cultivation
              R/o Ankhoda, Tah-Chamorshi,
              Dist. Gadchiroli.

        2]  Divakar Shivram Timade.
              Aged about 35 years. Occu. Cultivation,
              R/o-Ankhoda, Tah-Chamorshi,
              Dist. Gadchiroli.

        3]  Prakash Shivram Timade.
              Aged about 34 years. Occu. Cultivation.
              R/o-Ankhoda, Tah-Chamorshi,
              Dist. Gadchiroli.                               ...... RESPONDENTS.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri V. N. Morande, Advocate for the Petitioner.
        Shri N. R. Bhishikar, Advocate for the Respondents.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 10 AUGUST, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

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        02]                Rule.   Taken   up   for   hearing   forthwith   by   consent   of

        counsel for the parties. 



        03]                The   subject   matter   of   the   present   petition   concerns

partition of the suit property between the parties to the suit. The

main grievance of the petitioner, who holds 1/4 th share in the suit

property, is that the Court has straightaway passed a decree for

division of the property by metes and bounds after demolishing the

house constructed by the petitioner thereon, that is to say, without

directing any inquiry contemplated under Rule 18 Sub Rule (2) of

Order XX of the Code of Civil Procedure. An application made to

the Court by the petitioner for directing an inquiry under Sub Rule

(2) of Rule 18 of Order XX was rejected by the Court.

04] The short facts of the case may be noted as follows :

The subject matter of the suit is a piece of land bearing

plot No.71 and admeasuring 20 x 14 meters and lying or being at

Mouza - Ankhoda. The plaintiff had constructed a house in a part of

this plot and the remaining part of the land was open. It was

originally the plaintiff's case that he was the owner of this property

and had constructed a house and allowed his brothers, who are

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respondent nos.1 to 3 to the present petition, to occupy the house;

that sometime later, the permission to occupy the house was

withdrawn and possession of the house was demanded by the

petitioner. Upon the respondents' refusal to do so, the petitioner

filed Regular Civil Suit No.88 of 2017 (new Suit No.102/2008) for

possession of the property. The defendants filed written statement

and counter claim in the suit. The defendants claimed that the suit

land was an ancestral family property of the plaintiff and the

defendants and the defendants were entitled to the partition

thereof. The suit was decreed by the Civil Judge Junior Division,

Chamorshi and the counter claim of the defendants was dismissed.

When the matter was carried by the respondents herein in appeal,

the Lower Appellate Court by its judgment and decree dated 17 th

August, 2011 allowed the appeal and dismissed the suit and

allowed the counter claim of the defendants, holding each of the

parties, namely, the plaintiff (petitioner herein) and defendants

(respondent Nos.1 to 3 herein) to be entitled to 1/4 th share each in

the suit property. The defendants - decree holders, thereafter, filed

execution proceeding before Civil Judge Junior Division, Chamorshi

being Regular Darkhast No.02 of 2012. In this application, the

decree holders sought demolition of the plaintiff's house in the suit

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property and vacant separate possession of 1/4 th share each of the

decree holders. The learned Civil Judge Junior Division,

Chamorshi, without taking any say of the judgment debtor

(plaintiff), allowed the application by issuing a possession warrant.

On the same day, another order was passed, directing the

Maharashtra State Electricity Board to discontinue electric supply to

the house of the plaintiff so as to enable demolition thereof. The

plaintiff - judgment debtor, thereafter, moved an application for

dismissal of the execution proceedings. It was his case before the

executing court that the order of demolition of his house and

physical division of the property as vacant land as between the co-

owners was passed without any further inquiry as contemplated

under Sub Rule (2) of Rule 18 of Order XX of the Code of Civil

Procedure. This application was rejected by the executing court

vide order dated 10th July, 2014. The judgment debtor, thereafter,

filed another application purportedly under Order XX Rule 18 of

the Code of Civil Procedure and also under Order XXI Rules 99 to

101, etc. of the Code, seeking inter alia an inquiry under Order XX

Rule 18(2) and directions for restoration of the electric supply to

the judgment debtor's house. The executing court, vide its order

dated 25th June, 2015, rejected the application, holding that these

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issues had already been considered by the court while considering

the earlier applications which are referred to above. It is the

grievance of petitioner herein that as a result of rejection of his

objections, his residential house, which is anyway not the subject

matter of the decree, is likely to be demolished. In the premises, the

petitioner approaches this Court under Articles 226 and 227 of the

Constitution of India.

05] The record of the present case indicates that the decree

of partition was passed by the Appeal Court, determining 1/4 th

share of each of the parties. This decree evidently was a

preliminary decree of partition within the meaning of Order XX

Rule 18 of the Code of Civil Procedure. The land in the present

case not being assessed to the payment of revenue to the

Government, the Court did not have an option to simply declare the

rights of the party/parties interested in the property and direct

partition to be made by the Commissioner. The Court has been

granted, under Order XX Rule 18(2) of the Code, an option to pass

a preliminary decree declaring the rights of the several parties

interested in the property and giving further directions, as may be

required, if it is of the view that partition or separation of shares of

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the parties cannot be conveniently made without further inquiry.

In the present case, there being simply a preliminary decree

declaring the rights of the several parties interested in the property,

there is no indication of any inquiry by the Court with a view to

determine the methodology of partition or separation of shares. If

such be the case, it is necessary for the Court to issue further

directions with a view to consider physical partition or separation of

shares. Particularly in a case like this where the property is

constructed upon by one of the co-sharers, it was incumbent on the

Court to make an inquiry as contemplated under Sub-Rule (2) of

Rule 18 of Order XX of the Code of Civil Procedure; such property

cannot be conveniently partitioned and shares of the co-owner

separated without further inquiry. In the present case, without any

final decree of partition, without any inquiry as to the modalities of

the partition, an application was straightaway moved before the

executing court for effecting partition by appointing a

Commissioner. The executing court appears to have appointed a

Commissioner for effecting the partition and whilst doing so,

directed demolition of the house constructed by the plaintiff. This

approach particularly denies the plaintiff as a shareholder

interested to the extent of at least one moiety in the property to

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apply for a direction of sale of the property instead of its physical

division, as contemplated by Section 2 of the Partition Act, 1893

and thereafter, undertake to buy the share of other shareholder at a

valuation.

06] The impugned orders of the executing Court passed on

Exhs.24, 25,46 and 65, thus, cannot be sustained. These orders are

all on the footing that no inquiry is necessary after passing of a

preliminary decree. For the reasons more particularly discussed

above, this fundamental basis is clearly flawed and the orders,

accordingly, cannot stand.

07] Rule is accordingly made absolute by quashing and

setting aside the orders passed by Civil Judge Junior Division,

Chamorshi on Exhs.24, 25, 46 and 65 in Regular Darkhast No.02 of

2012 and directing the Court of Civil Judge Junior Division,

Chamorshi to hold an inquiry into the matter of modalities of

partition, including the convenience of physical partition or

separation. At this inquiry, it will be open to any of the parties to

apply for sale of the property under Section 2 of the Partition Act,

1893 and thereafter, offer to buy the share of other shareholder at a

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valuation under Section 3 of the Partition Act, 1893. The petition is

disposed of in the above terms.

08] In view of this Court having quashed and set aside the

order of the Civil Judge Junior Division, Chamorshi on Exh.24, the

Maharashtra State Electricity Board shall forthwith reinstate the

electric supply of the petitioner's house at Plot No.71 at Mouza -

Ankhoda.

JUDGE PBP