Bombay High Court
Concord Co-Operative Housing ... vs Amedmal Bhatwada (Deceased) Thr. ... on 25 April, 2023
Bench: S. V. Kotwal
2023:BHC-AS:12448
1 cra-285-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
[1] CIVIL REVISION APPLICATION NO. 285 OF 2022
Concord Co-operative Housing Society
and others ....Applicants
Versus
Amedmal Bhatewada (deceased)
Chandrakala Shantilal Lunawat
and others ....Respondents
.....
WITH
[2] WRIT PETITION NO. 6701 OF 2022
Irshad Ishaque Shaik ..Petitioner
Versus
Amedmal Indrabhan Bhatewada
(since deceased)Through LR and others ..Respondents
......
WITH
[3] CIVIL REVISION APPLICATION NO. 406 OF 2022
Yashcon Urban Development LLP ..Applicant
Versus
Amedmal Indrabhan Bhatewada (deceased)
Through LR and others ..Respondents
.....
WITH
[4] WRIT PETITION (STAMP) NO. 13161 OF 2022
Venkatesh Landmark
through its Partners ..Petitioner
Versus
Amedmal Indrabhan Bhatevada (deceased)
Through LRs and others ..Respondents
.....
WITH
INTERIM APPLICATION NO.17880 OF 2022
IN
CIVIL REVISION APPLICATION NO. 285 OF 2022
........
WITH
INTERIM APPLICATION NO.30238 OF 2022
IN
WRIT PETITION NO.6701 OF 2022
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WITH
INTERIM APPLICATION NO.17863 OF 2022
IN
WRIT PETITION NO.6701 OF 2022
......
WITH
INTERIM APPLICATION NO.30237 OF 2022
IN
WRIT PETITION [ST] NO.13161 OF 2022
WITH
INTERIM APPLICATION NO.17861 OF 2022
IN
WRIT PETITION [ST] NO.13161 OF 2022
......
WITH
INTERIM APPLICATION NO.3302 OF 2023
IN
CIVIL REVISION APPLICATION NO.406 OF 2022
__________
Mr. G.S. Godbole, Senior Advocate i/b. Shivraj R. Patne, a/w. Shon
Gadgil for the Applicants in CRA/285/2022, for Respondent
Nos.6(A) to (G), for Respondent Nos.6(I) to (L) in CRA/406/2022,
for Respondent Nos.6 to 17 in WP/6701/2022; and for Respondent
No.8 in WP/ST/13161/2022.
Mr. S. M. Gorwadkar, Senior Advocate i/b. Umesh Mankapure for
the Petitioner in WP/6701/2022.
Mr. Anil Anturkar, Senior Advocate a/w. Sugandh Deshmukh, Irvin
D'Souza, Vaibhav Thorve, Harshvardhan Suryavanshi, for
Petitioner in WP/ST/13161/2022.
Mr. R. D. Soni i/b. Karan Parmar for the Applicant in
CRA/406/2022, for Respondent No.9 in WP/ST/13161/2022, for
Respondent No.7 in CRA/285/2022 and for Respondent No.19 in
WP/6701/2022.
Mr. Virag Tulzapurkar, Senior Advocate i/b. Hitanshu Jain for
Respondent Nos.4.1 to 4.7 in WP/6701/2022, for Respondent
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Nos.4(A) to 4(G) in WP/ST/13161/2022, and for Respondent
Nos.4(a) to 4(g) in CRA/285/2022.
Mr. Surel Shah, Advocate i/b. Chaitanya Nikte for Respondent
Nos.1 & 5.1 to 5.6 in WP/6701/2022, for Respondent Nos.1(A),
5(A) to 5(F) in WP/ST/13161/2022, and for Respondent No.1 in
CRA/285/2022.
Mr. Mayur Khandeparkar, Advocate i/b. Sumedh Ruikar for
Respondent Nos.2.1 to 2.8 & 3.1 in WP/6701/2022, for
Respondent Nos.2(A) to 2(H) & 3(A) in WP/ST/13161/2022 and
for Respondent Nos.2(a) to 2(h) and for Respondent No.3(a) in
CRA/285/2022.
__________
CORAM : SARANG V. KOTWAL, J.
RESERVED ON : 18th APRIL, 2023
PRONOUNCED ON: 25th APRIL, 2023
JUDGMENT:
1. All these matters are decided by this common judgment
because all the parties agree that all these matters involve common
questions of law and are based on the common history regarding the
facts and the disputed facts. In all these matters, notices were
issued for final disposal. All the parties were duly served with such
notices and learned Counsel appearing before me agree that the
matters can be decided finally at this stage.
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2. I have heard Shri G.S. Godbole, learned Senior Counsel
for the Applicants in CRA No.285/2022, Shri S. M. Gorwadkar,
learned Senior Counsel for the Petitioner in WP No.6701/2022,
Shri Anil Anturkar, learned Senior Counsel for the Petitioner in
WP(St) No.13161/2022, Shri R. D. Soni, learned counsel for the
Applicant in CRA No.406/2022, Shri Virag Tulzapurkar, learned
Senior Counsel, Shri Surel Shah, and Shri Mayur Khandeparkar,
learned counsel , for the respective contesting Respondents.
3. C.R.A. No.285/2022 is preferred by Concord Co-operative
Housing Society and its Chairman & Treasurer. The society claims
to be the owner of the property.
4. Writ Petition (Stamp) No.13161/2022 is filed by
Venkatesh Landmark, through its Partners, who are developing the
property by making construction on the property.
5. C.R.A. No.406/2022 is filed by Yashcon Urban
Development LLP, through its Partner. The Applicant claims to be
owner of a part of the subject properties.
6. Writ Petition No.6701/2022 is filed by one of the
members of the Concord Co-operative Housing Society.
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7. The contesting Respondents, in all these matters, claim to
be the legal heirs of one Amedmal Indrabhan Bhatewada. In all
these matters, the Applicants/Petitioners have challenged the order
dated 27.4.2022 passed by the 10th Jt. Civil Judge, Senior Division,
Pune in Civil Misc. Application No.1658/2021. In C.R.A.
No.285/2022, further prayers are made for permission to file
certain documents which were not available at the time of passing
of the impugned order in the Court of 10 th Jt. Civil Judge, Senior
Division, Pune.
Subject properties :
8. The dispute is about the following properties :
a] Land bearing Survey No.214, Hissa No.1/1 admeasuring
00 Hectare 97 Ares + pot kharaba 0 Hectare 02 Ares,
assessed Rs.0.94, situated at village Lohegaon, Taluka-
Haveli, District-Pune.
b] Land bearing Survey No.214, Hissa No.1/4 admeasuring 1
Hectare 15 Ares, assessed Rs.1.06/-, situated at village
Lohegaon, Taluka-Haveli, District-Pune.
(Both these properties together are hereinafter referred to as
'the subject properties').
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9. Brief history and facts:
i. The subject properties were originally owned by one Bapu
Kashiba Devkar. He died on 27.3.1939. After that, those
subject properties were held by his heirs Shankar Bapu
Devkar and Kisan Bapu Devkar. Their names were entered
by Mutation Entry No.1942.
ii. Amedmal filed Small Causes Suit No.4658/1935 against
Shankar Bapu Devkar for recovery of money. The suit was
decreed.
iii. Darkhast No.560/1937 was filed by Amedmal for executing
the decree in Suit No.4658/1935, in which half undivided
share of Shankar was attached and was put up for sale in
execution.
iv. On 19.12.1939, Amedmal Bhatewada purchased Shankar's
share in the subject properties in the Court auction. His
name was added in the Other Rights column in the record of
rights by Mutation Entry No.2027, but, it was without
possession.
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v. On 20.1.1940, the sale was confirmed by the Executing
Court and the Sale Certificate No.65/1940 was granted to
the decree holder Amedmal.
vi. On 1.9.1940, Mutation Entry No.2027 was made on the
basis of the sale certificate and Amedmal's name was
recorded in Other Rights column.
vii. In 1944, Amedmal Bhatewada filed a suit for partition
bearing Civil Suit No.955/1944 against Shankarao Devkar
and Kisan Devkar (hereinafter referred to as 'the said suit').
viii. The suit was decreed vide the judgment and order dated
27.10.1945 (hereinafter referred to as 'the said decree'). By
the said decree, Amedmal Bhatewada was declared to be the
owner of the half share of the subject properties.
ix. It is mentioned in the memo of the C.R.A. No.285/2022 that
Amedmal Bhatewada filed Execution Application
No.292/1946 for execution of the said decree dated
27.10.1945. It is mentioned in the memo that it appears that
the said execution was disposed of on 2.7.1946 for non-
filing of the extract.
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x. In 1947, Amedmal Bhatewada filed another Execution
Application bearing No.1150/1947 for recovery of money
and for demanding actual physical partition and separate
possession by metes and bounds by sending the precept to
the Collector or his subordinate officer under the provisions
of the Code of Civil Procedure, 1908 (for short, 'C.P.C.').
Till this point, the facts are more or less undisputed. However,
subsequent to that, the parties are at variance in respect of some
important facts.
xi. According to the Applicants and the Petitioners, on
11.1.1948, a compromise was arrived at between Amedmal
Bhatewada and the Devkars; and Rs.200/- were paid as full
and final relinquishment of all his claims to Amedmal
Bhatewada by the Devkars in complete satisfaction of the
decree or claims under the decree. A receipt was also issued
by Amedmal Bhatewada acknowledging the receipt of
money from the Devkars.
The heirs of Amedmal Bhatewada are seriously disputing this fact
of compromise.
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xii. The memo of the C.R.A further mentions that on 19.2.1948,
further payments were made by Devkars and were
acknowledged by Amedmal Bhatewada in his letter-cum-
receipt dated 19.2.1948. According to the Applicants, the
letter records that all the claims were completely satisfied.
xiii. On 15.7.1948, a purshis at Exhibit-8 was filed by the decree
holder Amedmal Bhatewada in the Execution Application
No.1150/1947 stating that he did not wish to pursue the
said Execution Application any longer.
The contesting Respondents are disputing this fact as well.
xiv. According to the Applicants/Petitioners, by the order dated
15.7.1948, the Execution Application No.1150/1947 was
disposed of as per the said purshis at Exhibit-8.
xv. On 25.2.1963, Amedmal Bhatewada passed away.
xvi. There is no dispute that the subject properties were included
within the Municipal limits of Pune Municipal Corporation
vide Government Notification No.PMC/1160/2205/C dated
3.3.1962.
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xvii. Shankar Devkar, Kisan Devkar and Chandu Kisan Devkar
sold an area admeasuring 2 Acres 18 Gunthas out of Survey
No.214/1/1 and an area admeasuring 2 Acres 34 Gunthas
out of Survey No.214/1/4 to Meherjibhai Kawasjibhai
Paleya vide a sale deed dated 21.8.1967 bearing registration
No.1606 of 1967.
xviii. Meherjibhai Paleya sold some area from the subject
properties to Jumana Zakiuddin Rangwala, Shirin Halala,
Durriya Rangwalla, Fakhruddin Fida Ali Jinwalla and
Fatema Jinwala by the sale deed dated 3.8.1973.
xix. On 27.12.2006, Concord Co-operative Housing Society
purchased some area from the subject properties from the
aforementioned Jumana Rangwala, Fatema Jinwala and
others by a registered sale deed bearing No.9272/2006. The
name of the society was entered in the revenue record by
Mutation Entry No.24916.
xx. The Applicant Society then made an application challenging
the Mutation Entry No.2027 by which the name of Amedmal
Bhatewada was entered in the Other Rights column. On
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3.7.2014, Sub-Divisional Officer, Haveli allowed the
Applicant Society's application and ordered deletion of
name of Amedmal Bhatewada from the record of rights.
Pursuant to the said order, on 7.10.2014 Amedmal
Bhatewada's name was deleted from the record of rights
vide Mutation Entry No.41228. This Mutation Entry is
challenged by the heirs of Amedmal Bhatewada in the
separate proceedings.
xxi. In the year 2018, Ameya Jain, Lavina Jain, and Prismi Jain
purchased some piece of the land from the Applicant
Society. They, in turn, sold that piece of land, which
according to the contesting Respondents is 39.73 Ares, to
M/s. Yashcon Urban Development LLP. C.R.A. No.406/2022
is filed by said Yashcon Urban Development LLP.
xxii. After more than 76 years, the contesting Respondents i.e.
Respondent Nos.1 to 5 in C.R.A. No.285/2022 preferred
Civil Misc.Application No.1658/2021 under Section 54 of
Code of Civil Procedure (for short, 'C.P.C.') before the
learned Civil Judge, Senior Division, Pune for sending the
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copy of the decree dated 27.10.1945 to the District
Collector, Pune for compliance. This application was
allowed by the impugned order dated 27.4.2022 passed by
the 10th Jt. Civil Judge, Senior Division, Pune. This order is
impugned in all these matters before this Court.
Submissions on behalf of the Applicants/Petitioners:
10. Shri Godbole, learned Senior Counsel argued for the
Applicants in C.R.A. No.285/2022. Shri Godbole submitted that
the Applicants, in Civil Misc. Application No.1658/2021 before the
10th Civil Judge, Senior Division Pune, have not established that
they have any locus to prefer the said application. They have
nowhere established that they are the legal heirs of the decree
holder Amedmal Bhatewada. He submitted that the vital
documents were not available when the learned Civil Judge, Senior
Division decided their application. He invited my attention to the
copies of the documents which are annexed to C.R.A.
No.285/2022. According to Shri Godbole, the following
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documents were not available when the impugned order was
passed. Those documents are as follows :
i. The noting in the Darkhast No.292/1946 recording that the
extract was not produced by the decree holder.
ii. Directions to the Collector or any officer appointed in that
behalf for partition of the property by metes and bounds and
for giving possession to the decree holder Amedmal
Bhatewada from the Defendants. In the same application, it
was further prayed that the cost of the execution be taken
from the judgment debtor under Order XX Rule 12 of C.P.C..
That Execution Application was under Order XXI Rule 11 of
C.P.C..
iii. The order dated 19.11.1947 in Execution Application
No.1150/1947 issuing notice to the Defendant under Order
XXI Rule 22 of C.P.C..
iv. The order dated 11.2.1948 in the same Darkhast Application
mentioning that the judgment debtor was absent and it was
sent to the Collector for partition. The next noting shows
that the Darkhast was disposed of as per the purshis filed at
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Exhibit-8. This order was passed on 15.7.1948. The purshis
referred to in that order was dated 15.7.1948 in which it was
mentioned by the Plaintiff that he did not want to proceed
with the execution proceedings at that point and that the
Darkhast be disposed of with cost to be paid by the
Defendant. Said Darkhast was disposed of as per Exhibit-8 by
the order dated 15.7.1948.
. Copies of these documents are annexed to C.R.A.
No.285/2022. The translation of some of the documents which
were originally in modi script were provided by the Applicants and
these copies are annexed to the C.R.A.
11. Shri Godbole submitted that all these documents were not
before learned Civil Judge, Senior Division, Pune when he heard
and decided the said application and, therefore, it would be
appropriate if the matter is remanded back again before the same
Judge to decide it by taking into consideration copies of all these
documents.
12. Shri Godbole further submitted that proviso to Section
85(2) of the Maharashtra Land Revenue Code (for short, 'MLRC')
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provides that where any question as to title is raised, no such
partition shall be made until such question is decided by a civil
suit. Therefore, the Collector was not empowered to decide the
issue regarding the title. In the present case, the title of the alleged
legal heirs is seriously in dispute which the Collector is not
empowered to decide. He further submitted that the judgments
dealing with Section 54 of C.P.C. are in respect of the cases where
the original Plaintiff himself has made an application for sending
the precept. In the present case, there is a material difference as
the application for sending the precept is filed by the alleged legal
heirs of the original Plaintiff and not by the Plaintiff himself. The
appropriate Civil Court at some point of time will have to decide
who are the legal heirs of the original Plaintiff i.e. Amedmal
Bhatewada.
13. He further submitted that Rule 4 of the Maharashtra Land
Revenue (Partition of Holdings) Rules, 1967 (for short, 'MLR
Rules') is important. According to Shri Godbole, whenever the
Applicant's title to the holding is disputed, the Collector has to
reject the application under Rule 4 of MLR Rules.
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14. He further submitted that the purshis at Exhibit-8 in the
Darkhast in the year 1948 and other companion documents in the
nature of receipts are themselves in the nature of certification of
satisfaction of the decree. He further submitted that the learned
Judge, in his impugned order, has treated the proceedings as
execution proceedings as he has referred to Order XXI Rule 2 of
C.P.C.. Once it is treated as execution proceedings, then it is barred
by limitation and the application should not have been entertained
by the Court.
15. He further submitted that the scope in the Writ Petition as
well as in the Civil Revision Application is limited with reference to
the impugned order. In the present case, the important documents
were not seen by the Court as they were not before the Court when
the impugned order was passed and, therefore, at the revisional
stage or while deciding the Writ Petition under Article 227 of the
Constitution, it would not be proper to examine the effect of those
documents and, therefore, it would be appropriate if the matter is
remanded back before the same Court for consideration of the
issue afresh by taking into consideration those documents. In
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support of this contention, he relied on the judgment of the Delhi
High Court in the case of Chelaram Chopra (through L.Rs) Vs. Ramo
Devi & Ors.1; and on the observations of the Hon'ble Supreme Court
in the case of Nawal Kishore Tulara Vs. Dinesh Chand Gupta and
others2.
16. Shri Anturkar, learned Senior Counsel appeared for the
Petitioners in Writ Petition (Stamp) No.13161/2022. He submitted
that the Petitioners are caught in the fight between the Applicants
in C.R.A.No.285/2022 and the purported legal heirs of Amedmal
Bhatewada. The Petitioners were granted the development rights
by M/s. Concord Co-operative Housing Society and the
construction on the said land has progressed substantially. Many
flat purchasers have purchased the flats; about 92 flat purchasers
have already entered into agreements for purchase of the flats; and
at a very belated stage the purported legal heirs of Amedmal
Bhatewada have approached the Court. Thus, the interest of the
Petitioners and the flat purchasers is seriously affected.
1 passed in RFA no.704/2002 decided on 5.7.2010 (Delhi High Court)
2 (2001) 6 SCC 110
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17. Shri Anturkar submitted that, in a partition suit when a
preliminary decree is passed, the suit continues till the final decree
is passed. In the year 1963, the original plaintiff Amedmal
Bhatewada had died. As per Order XXII Rule 3 of C.P.C., if the legal
representatives of the sole Plaintiff do not make any application to
be made parties to the suit, within the prescribed time, the suit
must abate. In the present case, the limitation provided for
bringing the legal heirs of the Plaintiff on record as provided under
Article 120 of the Limitation Act which could not be more than
maximum 90 days, has already expired and, therefore, the suit has
abated and no further proceedings can be taken by the contesting
Respondents who claimed to be the legal heirs of Amedmal
Bhatewada.
18. Shri Anturkar's next submission was that, even otherwise,
once the Maharashtra Regional and Town Planning Act, 1966 (for
short, 'MRTP Act') was brought into force, its provisions overrides
all other acts. Section 2(7) of the MRTP Act refers to sub-division
of the plot and, therefore, the Collector was not empowered to
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effect partition after the Planning Authority took control of the
lands which included the subject properties.
19. Shri Anturkar submitted that Section 54 of C.P.C.
mentions the word "estate" and it deliberately does not use the
words "property or the land". The word "estate" is defined under
Section 2(8) of the MLRC.
20. He further submitted that Order XXIII Rule 1 provides
that, any time after institution of a suit, the Plaintiff could abandon
the suit or could abandon part of his claim. In the present case, the
impugned order passed on 15.7.1948 shows that the Plaintiff had
abandoned his claim and, therefore, no further right remains with
the original plaintiff Amedmal Bhatewada and consequently with
the legal heirs of Amedmal Bhatewada. He submitted that Order
XXIII Rule 4 of C.P.C. provides that nothing in the Order XXIII
applies to any proceedings in execution of a decree or order. He
submitted that if the proceedings are treated as execution of the
decree then the application made by the legal heirs of Amedmal
Bhatewada is barred by limitation; and if it is not treated as an
execution but only continuation of the suit then the claim of the
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original Plaintiff stands abandoned by the Plaintiff himself as is
indicated in the order dated 15.7.1948.
21. Shri Gorwadkar, learned Senior Counsel for the Petitioner
in Writ Petition No.6701/2022 supported the contentions of Shri
Godbole and Shri Anturkar. He submitted that this Petitioner's
objection was not considered by the Court while deciding the
application in which the impugned order was passed. The
Applicants before the Court had not approached the Court with
clean hands. There was concealment of material facts as important
documents were not produced before that Court. If the Applicants
were the legal heirs of the original Plaintiff they should have
produced the necessary documents in the suit and the darkhast
before learned Judge. Section 47 of C.P.C. provides that all
questions arising between the parties to the suit in which the
decree was passed relating to the execution are to be determined
by the Court executing the decree and not by a separate suit.
Therefore, it was necessary for the said Court to have determined
the disputed questions before passing any order. In this case, it is
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not even decided that the Applicants before the said Court were the
legal heirs of the original Plaintiff.
22. He relied on Order XXII Rule 10 of C.P.C. which provides
the procedure in case of assignment before the final order is
passed. In this case, since the Petitioners had acquired the rights
through assignment, they were required to be added as parties by
leave of the Court. In this case, not only were they not made
parties but they were not even heard. The title of the legal
representatives of the original Plaintiff is seriously disputed and
only the Court could have decided that issue. He relied on the
judgment of this Court in the case of Khemchand Shankar Choudhari
and another Vs. Vishnu Hari Patil and others3. According to him, this
judgment provides that the subsequent purchasers have locus in
the proceedings and they are required to be heard. In this case,
they were not heard.
23. Learned counsel Shri Soni appeared in C.R.A.
No.406/2022 for the Applicant, who was the purchaser of part of
the property. He submitted that in the application for precept the
3 1983(2) Bom. C.R. 294
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original Defendants were not present. All the Respondents in the
said application were mainly the purchasers of the subject property.
The application for precept could have been filed by the original
Plaintiff or the original Defendant or their legal representatives.
The alleged legal heirs could have filed separate suit for
cancellation of the sale-deeds in respect of the subject properties,
but since their remedies were barred by limitation, they have
adopted this method of approaching the Court. They have not
approached the Court with clean hands.
24. He submitted that the Applicants in C.R.A. No.406/2022
were shown as parties in the proceedings in which the impugned
order was passed, however, they were not heard at all. This is clear
violation of principles of natural justice. He emphasized that the
Collector ultimately cannot decide the title. Therefore, sending the
precept to the Collector is meaningless. He further submitted that
along with the application, the purported legal heirs of Amedmal
Bhatewada also filed application vide Exhibit-5 for stay. He
submitted that if their stand was that it was only an application for
administrative action, then filing of the said application for stay
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goes against their stand. There was no possibility or requirement of
filing a stay application in an application filed only for
administrative acts.
Submissions on behalf of the contesting Respondents :
25. Learned Senior Counsel Shri Tulzapurkar, Shri Mayur
Khandeparkar and Shri Surel Shah appeared for the contesting
Respondents, who had filed application before the learned Civil
Judge, Senior Division in which the impugned order was passed.
26. Shri Tulzapurkar made the following submissions :
i. The application vide Civil Misc. Application
No.1658/2021 was not made in execution of the decree.
The decree passed in the suit did not dispose of the suit
but the suit is still pending. The decree that was passed
was only a preliminary decree and the final decree was
not yet passed. After the preliminary decree was passed
the Court becomes functus officio.
ii. Sending precept to the Collector is only an administrative
order. It is not in the nature of execution of the decree.
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Shri Tulzapurkar invited my attention to Section 54 and
Order XX Rule 18 of C.P.C..
iii. Irrespective of the alleged receipts, the Applicants, the
Petitioners or anybody else does not get title over the
property without any registered sale deed executed by the
original Plaintiff Amedmal Bhatewada; because the sale
certificate did stand in his name. The preliminary decree
declared his right and, therefore, that right could not be
taken away from him without any registered sale deed
executed by him or on his behalf.
iv. The impugned order does not decide the rights of the
parties and there is no adjudication of any rights. It was
only a ministerial direction to send the papers to the
Collector to effect the partition as per the provisions of
Section 54 of C.P.C.. The application was not in execution
of the partition decree but was an application only to
bring to the notice of the Court that the papers were
required to be sent as directed by the preliminary decree.
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v. In law, such an application itself was not necessary. It was
the Court's own duty to send the precept to the Collector.
Therefore, there was nothing wrong in reminding the
Court to perform its duty. There is no force in the
contention that these Respondents have not established
that they were the legal heirs of Amedmal. At the stage of
filing of the application that issue was not relevant as the
Court was only reminded of its duty to send the precept.
vi. In such cases notice to the other side is not necessary.
There is no force in the submission that principles of
natural justice are violated as all the parties were not
heard before passing of the impugned order; because no
adjudication was sought against them in that application.
It was just a reminder to the Court. The application itself
was not necessary.
vii. There is no limitation prescribed under any law for
reminding the Court to perform its duty.
viii. There is no question of res judicata if successive
applications are made reminding the Court to take steps
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26 cra-285-22.odt
in accordance with Section 54 of C.P.C.. Therefore, the
order dated 15.7.1948 does not affect the present
proceedings.
ix. Partition suit remains pending even till today as only the
preliminary decree is passed. The suit concludes only
when the final decree is passed for possession by metes
and bounds and when possession is given to the decree
holder. The Collector was empowered to decide all these
issues while effecting such partition pursuant to the
precept received by him under Section 54 of C.P.C..
x. The right accrued in favour of the Plaintiff Amedmal
Bhatewada because of the purchase in the auction and
since he was granted the sale certificate in respect of the
subject properties. The right was not a result of the
partition suit but it existed even prior to filing of the
partition suit. In filing the partition suit, the Plaintiff was
only exercising his right to get the subject properties
partitioned and to get the possession. His right, title and
interest therefore were never taken away from him.
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27 cra-285-22.odt
Hence, the Applicants or the Petitioners could not have
interfered with his rights.
xi. There was no registered document in respect of the
subject properties executed by the original Plaintiff any
time after he became owner of the half share of the
subject properties.
xii. Shri Tulzapurkar in support of his contentions relied on
the following judgments. The ratio of these judgments
and their effect will be discussed at the appropriate stage
in this judgment :
i. Ramrathibai wd/o Sivnath Pardeshi Vs. Surajpal Bhulai
Chaudhari and others4
ii. Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita
Saran Bubna and others5
iii. Annasaheb Rajaram Nagane and another Vs. Rajaram Maruti
Nagane and others6
iv. Bikoba Deora Gaikwad and others Vs. Hirabai Marutirao
Ghorgare and others7
v. Venu Vs. Ponnusamy Reddiar (Dead) through Legal
Representatives and another 8
4 1996(2) Mh.L.J. 40
5 (2009) 9 SCC 689
6 2001(3)Mh.L.J. 53
7 (2008) 8 SCC 198
8 (2018) 15 SCC 254
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28 cra-285-22.odt
vi. Dhansukhbhai Fakirbhai Patel Vs. Fakirbhai Dayabhai Patel
and others9
vii. Arun Ashruba Mhaske Vs. Atmaram Dattu Mhaske and
others10
viii. Kattukandi Edathil Krishnan and another Vs. Kattukandi
Edathil Valsan and others11
27. Shri Mayur Khandeparkar supported these submissions
and added his own submissions as follows :
i. Under Order XXI Rule 2 sub-rule (3), a payment or
adjustment which has not been certified or recorded as such
shall not be recognized by any Court executing the decree. In
this case, the reliance by the Applicants on the alleged
receipts executed by Amedmal Bhatewada in favour of the
Devkar's has no meaning because such payment or
adjustment was not certified by the decree holder to the
executing Court and, therefore, those receipts could not be
taken into consideration at all.
ii. Till the year 2014, the entries in the revenue record retained
Amedmal Bhatewada's name. The Mutation Entry deleting
9 2006(1) Mh.L.J. 116
10 2007(4) Mh.L.J. 157
11 2022 SCC OnLine SC 737
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29 cra-285-22.odt
his name is challenged in different proceedings but it did
indicate that Amedmal Bhatewada's right was never
extinguished.
iii. The rights of the parties are crystallized at the stage of
passing of the preliminary decree and, therefore, there was
no further requirement to bring the legal heirs of the original
Plaintiff on record after his death. Therefore, the suit does
not abate under Order XXII Rule 3 of C.P.C. as was argued by
Shri Anturkar.
iv. Shri Khandeparkar relied on the following judgments :
I. Ramabai Bhratar Govind Hage Vs. Anant Daji Hage12
II. Saiyad Dawarali Jafarali Vs. Bai Jadi, daughter of Ghanchi
Vararshidas Nathubhai, deceased by her heir Ghanchi
Naranlal Shivlal, having died pending appeal by his heirs
Modi Vadilal Narandas and others13
III. Badamo Devi and others Vs. Sagar Sharma14.
v. He further relied on the Rules framed under the powers
conferred under sub-section (2) of Section 328 of the MLRC
i.e. the MLR Rules. He submitted that the procedure which
12 1944 SCC OnLine Bom 51
13 1940 SCC OnLine Bom 18
14 (1999) 6 SCC 30
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30 cra-285-22.odt
the Collector has to follow pursuant to the precept issued
under Section 54 of the C.P.C., is provided under the said
MLR Rules.
Brief reference to the impugned order :
28. Before considering the submissions made by rival
parties, a brief reference to the observations made in the impugned
order is necessary. Learned Judge noted the brief history and
submissions of the parties. Learned Judge observed that the letter
or adjustment of decree dated 27.10.1945 was not certified before
the Court as required by Order XXI Rule 2 of C.P.C. and, therefore,
in view of Order XXI Rule 2(3) of C.P.C. and in view of the law laid
down by the Hon'ble Supreme Court in the case of Badamo Devi,
such adjustment which was not certified by the Court can not be
considered and recognized by the Court. Learned Judge rejected
the contention that the properties are now changed from
agricultural to non-agricultural lands and, therefore, Section 54 of
C.P.C. was not applicable. According to him, he could not go
behind the decree. He further observed that in view of the law laid
down in the case of Annasaheb Nagane notice was not required to be
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31 cra-285-22.odt
issued to any of the parties and no determination was to be made
in respect of rights of the parties. He finally held that the precept
was required to be sent to the Collector, Pune and accordingly the
order was passed on 27.4.2022.
Reasons and conclusion :
29. Since important provisions of C.P.C. are referred to by
the parties, it would be advantageous to reproduce them at one
place as follows :
"2. Definitions.--In this Act, unless there is anything repugnant in
the subject or context,--
XXXXX
(2) "decree" means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within
section 144, but shall not include--
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation. A decree is preliminary when
further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication
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32 cra-285-22.odt
completely disposes of the suit. It may be partly preliminary
and partly final;"
"54. Partition of estate or separation of share.- Where the
decree is for the partition of an undivided estate assessed to
the payment of revenue to the Government, or for the separate
possession of a share of such an estate the partition of the
estate or the separation of the share shall be made by the
Collector or any gazetted subordinate of the Collector deputed
by him in this behalf, in accordance with the law (if any) for
the time being in force relating to the partition, or the separate
possession of shares, of such estates."
*******
"Order XX
18. Decree in suit for partition of property or separate
possession of a share therein .-- Where the Court passes a
decree for the partition of property or for the separate
possession of a share therein, then,--
(1) if and in so far as the decree relates to an estate assessed
to the payment of revenue to the Government, the
decree shall declare the rights of the several parties
interested in the property, but shall direct such partition
or separation to be made by the Collector, or any
gazetted subordinate of the Collector deputed by him in
this behalf, in accordance with such declaration and
with the provisions of section 54;
(2) if and in so far as such decree relates to any other
immovable property or to movable property, the Court
may, if the partition or separation cannot be
conveniently made without further inquiry, pass a
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33 cra-285-22.odt
preliminary decree declaring the rights of .the several
parties, interested in the property and giving such
further directions as may be required."
"ORDER XXI
2. Payment out of Court to decree-holder. - (1) Where any
money payable under a decree of any kind is paid out of
Court, or a decree of any kind is otherwise adjusted in whole
or in part to the satisfaction of the decree-holder, the decree-
holder shall certify such payment or adjustment to the Court
whose duty it is to execute the decree, and the Court shall
record the same accordingly.
(2) The judgment-debtor or any person who has become
surety for the judgment-debtor also may inform the Court of
such payment or adjustment, and apply to the Court to issue a
notice to the decree-holder to show cause, on a day to be
fixed by the Court, why such payment or adjustment should
not be recorded as certified ; and if, after service of such
notice, the decree-holder fails to show cause why the
payment or adjustment should not be recorded as certified,
the Court shall record the same accordingly,
(2A) No payment or adjustment shall be recorded at the
instance of the judgment-debtor unless--
(a) the payment is made in the manner provided in rule 1;
or
(b) the payment or adjustment is proved by documentary
evidence; or
(c) the payment or adjustment is admitted by, or on behalf
of, the decree-holder in his reply to the notice given
under sub-rule (2) of rule 1, or before the Court."
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34 cra-285-22.odt
3) A payment or adjustment, which has not been certified
or recorded as aforesaid, shall not be recognised by any
Court executing the decree."
"ORDER XXII
3. Procedure in case of death of one of several plaintiffs
or of sole plaintiff.-- (1) Where one of two or more plaintiffs
dies and the right to sue does not survive to the surviving
plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving
plaintiff dies and the right to the sue survives, the Court, on
an application made in that behalf, shall cause the legal
representative of the deceased plaintiff to be made a party and
shall proceed with the suit.
(2) Where within the time limited by law no application is
made under sub-rule (1), the suit shall abate so far as the
deceased plaintiff is concerned, and, on the application of the
defendant, the Court may award to him the costs which he
may have incurred in defending the suit, to be recovered from
the estate of the deceased plaintiff."
"ORDER XXVI
13. Commission to make partition of immovable
property.-- Where a preliminary decree for partition has
been passed, the Court may, in any case not provided for
by section 54, issue a commission to such person as it
thinks fit to make the partition or separation according to
the rights as declared in such decree."
*******
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35 cra-285-22.odt
Rules 4, 5, 6, 7, 8 and 9 of the MLR Rules :
"4. Power of Collector to reject application for
partition: If after hearing the applicant the co-holders and
any other persons who appear, the Collector is of opinion
that the applicant has no interest in the holding in respect
of which the application is made, or the applicant's title to
the holding is disputed he shall reject the application and
where the applicant's title to the holding is disputed, direct
the applicant to get the question of his title thereto decided
by a Civil Court.
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 to 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.
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36 cra-285-22.odt
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.
8. Recovery of expenses of partition.--Expenses of
partition shall be recoverable by the Collector from the
parties in the manner provided in subsection (5) of Section
9. Partition under decree of Civil Court.-- When any
holding is ordered to be partitioned under decree or order
of a Civil Court, the provisions of Rules 5, 6 and 7 shall
apply as they apply in relation to partition of a holding on
the application of a co-holder."
30. At the outset it needs to be noted that there is no dispute
that the decree relates to an estate assessed to the payment of the
revenue to the Government. Therefore, the main thrust of the
argument of Shri Tulzapurkar, Shri Khandeparkar and Shri Shah
was that issuing precepts under Section 54 read with Order XX
Rule 18(1) of C.P.C. was not in the nature of execution of the
decree but was only a reminder to the Court for performing its duty
in sending the precepts to the Collector and for that purpose the
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37 cra-285-22.odt
Limitation Act was not applicable and there was no limitation for
making such application.
31. The first judgment relied in support of this proposition
was in the case of Ramrathibai Pardeshi. The issue before a Single
Judge Bench of this Court in this case was whether an application
filed under Section 54 of C.P.C. on 15.2.1992 for sending the
precept to the Collector having jurisdiction over the subject matter
for partition of the agricultural land i.e. estate assessed to land
revenue to Government, pursuant to the decree passed on 9.1.1947
was an application for execution of the decree and, therefore,
barred by limitation under Article 182 of the Limitation Act, 1908
or under any Article of the Limitation Act, 1963 or under Section
48 of the C.P.C., as was existing prior to 1.1.1964.
After discussing all these provisions, ultimately it was held
that an application which was made by the Applicant for issuance
of the precept to the Collector cannot be said to be an application
for execution of the decree. Such an application is only a request
to the Court to do the ministerial act and was neither covered by
Section 48 of C.P.C. as was existing prior to 1.1.1964 nor covered
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by Article 182 of the Limitation Act, 1908. The application was
made by the Applicant therein on 15.2.1992, therefore, it was not
covered by any of the provisions contained in the Limitation Act,
1908 or the Limitation Act, 1963 or Section 48 of the C.P.C. as was
existing prior to 1.1.1964. After discussing various judgments, it
was noted that the application made to the Court which passed the
decree for partition of the land assessed to the revenue, for
issuance of precept to the Collector is not and cannot be said to be
an application for execution of the decree. In that case, such an
application was made almost after 45 years after passing of the
decree. It was held that, it was neither barred by any law of
limitation nor was prohibited under any law. It was held that, no
principle of equity can be made applicable when Law of Limitation
does not bar making such an application beyond any period.
32. Shri Tulzapurkar then relied on the judgment in the case
of Shub Karan Bubna decided by the Hon'ble Supreme Court. In
this judgment also a reference was made to Section 54 of C.P.C. and
Order XX Rule 18 of C.P.C.. The observations of the Hon'ble
Supreme Court are very important in the context of the present
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case and, therefore, it is advantageous to reproduce the exact
paragraph from the said judgment. The important paragraph is
paragraph-18, which reads thus :
"18. The following principles emerge from the above discussion
regarding partition suits:
18.1. In regard to estates assessed to payment of revenue to
the government (agricultural land), the court is required to pass
only one decree declaring the rights of several parties interested
in the suit property with a direction to the Collector (or his
subordinate) to effect actual partition or separation in accordance
with the declaration made by the court in regard to the shares of
various parties and deliver the respective portions to them, in
accordance with Section 54 of Code. Such entrustment to the
Collector under law was for two reasons. First is that Revenue
Authorities are more conversant with matters relating to
agricultural lands. Second is to safeguard the interests of
government in regard to revenue. (The second reason, which was
very important in the 19th century and early 20th century when
the Code was made, has now virtually lost its relevance, as
revenue from agricultural lands is negligible). Where the
Collector acts in terms of the decree, the matter does not come
back to the court at all. The court will not interfere with the
partitions by the Collector, except to the extent of any complaint
of a third party affected thereby.
18.2. 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
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Commissioner, or where parties agree upon the manner of
division, the court will pass a single decree comprising the
preliminary decree declaring the rights 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.
18.3. As the declaration of rights or shares is only the first
stage in a suit for partition, a preliminary decree does not have
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the effect of disposing of the suit. The suit continues to be
pending until partition, that is division by metes and bounds,
takes place by passing a final decree. An application requesting
the court to take necessary steps to draw up a final decree
effecting a division in terms of the preliminary decree, is neither
an application for execution (falling under Article 136 of the
Limitation Act) nor an application seeking a fresh relief (falling
under Article 137 of Limitation Act). It is only a reminder to the
court to do its duty to appoint a Commissioner, get a report, and
draw a final decree in the pending suit so that the suit is taken to
its logical conclusion."
33. In the present case, the category No.18.1 mentioned
hereinabove is squarely applicable and, therefore, there can only be
one decree and the matter does not come back to the Court at all.
. The clear observations of the Hon'ble Supreme Court in
Shubh Karan Bubna's case show that in the case of estates assessed
to payment of revenue to the Government, the Court is required to
pass 'only one decree' and in respect of the immovable properties
which cannot be conveniently divided without further inquiry there
is a procedure for preliminary decree and final decree. In either
case, the Limitation Act does not apply and an application can be
made only as a reminder to the Court to do its duty.
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In the present case, it is undisputed that the land is
assessed to payment of the revenue to the Government and,
therefore, the first part of the observation of the Hon'ble Supreme
Court applies and only one decree is necessary which was already
passed by the Court in the year 1945.
34. In this very context it would be advantageous to refer to
the case of Ramabai Govind. This is a Full Bench judgment of this
Court. Even in this judgment, the provisions of Order XX Rule 18,
Order XXVI Rules 13 & 14 and Section 54 of the C.P.C. were
considered in the context of the earlier judgments.
. Lokur, J. in his judgment mentioned that the Collector
cannot pass a final decree or any other decree in civil suit for
partition; and yet the Civil Court is not required by the Code to
pass any further decree or to make its decree final at any stage.
Upon this footing the first and only decree to be passed by the
Court would be a final decree. A reference was made to the case of
Jacinto Vs. Fernandez, (1939) 41 Bom.L.R. 921 . When an order in the
form prescribed in Order XX rule 18(1) is made, the Court's duties
are finished; but as held in the case of Dev Gopal Savant Vs. Vasudev
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Vithal Savant, (1941) 43 Bom.L.R. 971, the Court was not deprived of its
judicial control of its decree but that control is very limited. It is
only if the Collector contravenes the decreetal order, or
transgresses the law or otherwise acts ultra vires, or refuses to
carry out the decree, that his action is liable to be controlled and
corrected by the Court which passed the decree. In Jacinto's case,
Beaumont C.J. described the order directing the partition of the
lands assessed to the Government revenue to be effected by the
Collector as a final decree. In the conclusion, Lokur, J. observed
that the Limitation Act is not applicable whether such decree is
taken to be preliminary or final. Rajadhyaksha, J. agreed with
Lokur, J. and observed that whether the decree for partition under
Order XX Rule 18(1) of C.P.C. is regarded as preliminary or final;
there was no bar of limitation to the application being sent to the
Collector in order that he may carry out the directions given in the
decree. Weston, J. also reached the same conclusion but he
specifically held that he agreed with the ratio in Jacinto's case that
the decree in the form of Order XX Rule 18(1) of C.P.C. must be
regarded as a final decree.
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35. In the same judgment of Ramabai Govind, it was observed
thus :
" ...... But in the case of a decree under Order XX,
Rule 18(1), of the Code of Civil Procedure, the Court is not
even now expressly required to pass any further decree. When
the Court passes a preliminary decree under Sub-rule (2), it
appoints a Commissioner under Order XXVI, Rule 13, to
effect a partition, after receiving his report, the Court is to
pass a final decree under Order XX, Rule 14(3). There is no
corresponding provision in the Code that after making a
partition the Collector should report to the Court in order that
it may pass a final decree. In fact no other final decree is ever
passed, after a decree is once passed Under Order XX, Rule
18(1). A preliminary decree cannot for ever remain a
preliminary decree, but contemplates a final decree upon
which the decree-holder may take out execution, a term
which in decrees for partition of property must include
delivery of possession. The Collector cannot pass a final or
indeed any other decree in a civil suit for partition, and yet
the Civil Court is not required by the Code to pass any further
decree or to make its decree final at any stage. Upon this
footing the first and only decree to be passed by the Court
would be a final decree. As pointed out by Beaumont C.J. in
Jacinto v. Fernandez, when an order in the form prescribed in
Order XX, Rule 18(1), is made, the Court's duties are finished
though as held in Dev Gopal Savant v. Vasudev Vithal Savant
I.L.R (1887) Bom. 371, the Court is not deprived of its
judicial control of its decree. But that control is very limited.
It is only if the Collector contravenes the decretal order, or
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transgresses the law or otherwise acts ultra vires, or refuses to
carry out the decree, that his action is liable to be controlled
and corrected by the Court which passed the decree. Apart
from this limited control the Collector can give effect to the
partition made by him, without waiting for confirmation by
the Court, and deliver possession of the shares to the
respective sharers. Thus the Court having nothing further to
do with the decree passed by it Under Order XX, Rule 18(1),
Beaumont C.J., in Jacinto v. Fernandez, described the order
directing the partition of the lands assessed to Government
revenue to be effected by the Collector as a final decree.
If on this line of reasoning the decree be regarded as
final it must be recalled that not every final decree is capable
of execution. A merely declaratory decree, though final, is by
its very nature, incapable of execution. So too is a decree
under Order XX, Rule 18(1), of the Code of Civil Procedure.
It merely declares what are the shares of the parties in the suit
lands assessed to Government revenue, and by whom the
partition is to be effected, but it does not embody a direct
order to the Collector or to the judgment-debtor to do
anything. From this point of view it is merely declaratory. It
is true that Section 54 appears in the Civil Procedure Code
under the heading "Procedure in execution." That section may
have been placed there only to show that such a decree is
incapable of execution by the Court, and that if a party wants
a partition effected as directed by the decree, it is only the
Collector who can effect it. For that purpose he must request
the Court to send the decree to the Collector. The sending of
the decree to the Collector is only a ministerial act and not
execution of the decree. ......"
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. This particular observation was relied on in the case
of Ramrathibai Pardeshi.
36. In Venu's case it was held that a preliminary decree for
partition crystallized rights of parties seeking partition to the extent
declared and equities remained to be worked out in final decree
proceedings. Till final decree is passed, no question of limitation
arises against right to claim partition as per preliminary decree. In
that case, there was a reference to the appointment of a Court
Commissioner and in that case the application for execution of the
decree for partition crystallized rights of the parties.
37. Thus, all these judgments suggest that as per Order XX
Rule 18(1) of C.P.C. such decree is final decree. There is a definite
difference between Order XX Rule 18 sub-rule (1) and Order XX
Rule 18 sub-rule (2) of C.P.C.. In sub-rule (1) there is a reference
to the 'decree'; whereas in sub-rule (2) there is a reference to a
'preliminary decree'. In the same Rule, in two different sub-rules,
in respect of two different properties viz., in respect of an estate
assessed to the payment of revenue to the Government only the
word 'decree' is used; and in respect of any other immovable
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property where the partition cannot be conveniently effected
without further inquiry, the word used is 'preliminary decree'. This
difference has some significance which is elaborated in the
judgments of Shub Karan Bubna and Ramabai Govind.
. In the present case, it is quite clear that Order XX Rule 18
sub-rule (1) of C.P.C. is applicable and not Order XX Rule 18 sub-
rule (2) and, therefore, the decree passed in this present case
cannot be described as 'a preliminary decree'.
38. In the case of Annasaheb Nagane, it was again held that the
step taken by the decree holder by making an application to the
Court in the case of decree in a partition suit was not an
application for execution but it could only be treated as a request
to the Court to send the necessary papers to the Collector for
effecting partition under Section 54 of the C.P.C.. Such an
application is nothing but a request to the Court to discharge its
ministerial duty. Importantly, it was observed that in view of this,
even no notice to any of the parties to the application was
necessary as it was not a petition seeking any adjudication of any
of the rights of the parties. It was also observed that dismissal of
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the first execution application could not operate as res judicata
because the step taken by the decree holder just to remind the
Court of its duty can hardly be said to be anything attracting the
provisions of Section 11 of C.P.C..
. In the present case before this Court, the argument was
that at the first instance the Darkhast was rejected for non-
production of the extract in the year 1946. Thereafter even in the
year 1947, the Darkhast was closed because the Plaintiff-decree
holder did not want to take any further steps. Therefore, it was
argued that now further procedure was barred; but this judgment
makes it clear that such earlier order would not operate as a bar
and fresh application reminding the Court to take steps under
Section 54 of C.P.C. was always permissible.
39. Shri Tulzapurkar relied on the judgment of a Division
Bench of this Court in the case of Paygonda Surgonda Patil Vs.
Jingonda Surgonda Patil15. In paragraph-17 of that judgment, it was
held that the higher revenue authority i.e. the Commissioner had
jurisdiction to entertain an appeal or a revision against any order of
15 1967 Mh.L.J. 880
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the Collector passed in proceedings relating to the execution of a
decree for partition of revenue paying lands passed by a Civil
Court. Arun Mhaske's case makes reference to MLR Rules
mentioned hereinabove. It was observed that the partition of these
lands has to be effected by the Collector or his subordinate officer
in accordance with these Rules. The Civil Court determines the
shares and putting the decree holder in possession is duty of the
Collector. Ordinarily the Civil Court after passing the decree
becomes defunct so far as putting the decree holder in actual
possession.
40. Shri Godbole submitted that Rule 4 of the MLR Rules
provides that the Collector shall reject the application when the
Applicant's title to the holding is disputed. However, Rule 9 thereof
does not refer to Rule 4 at all and moreover this application is not
filed by any Applicant before the Collector but the Civil Court has
sent the precept to him after the holding was ordered to be
partitioned. The Application referred to in Rule 4 is the
Application of a co-holder made under Rule 2. Rule 4 is not
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applicable when the holding is ordered to be partitioned under
decree of a civil Court.
41. A reference was made by Shri Khandeparkar to the MLR
Rules, as mentioned earlier. Rule 9 thereof provides that Rules 5, 6
and 7 shall apply when any holding is ordered to be partitioned
under decree or order of a Civil Court. Rule 5 provides for the
mode of effecting partition. The Collector is expected to effect the
partition either personally or through such agency as he may
appoint. He is expected to take precautions mentioned under that
Rule 5. Thereafter the assessment of the holding is to be distributed
in proportion to the share held by the co-holders and the difference
can be equitably distributed over the sub-divisions. Rule 7 is
important because it provides that if the partition is completed, the
Collector shall hear any objections which the parties may make,
and shall either amend or confirm the partition. This means that
the Collector has to first complete the partition and then hear the
objections and make suitable amendment to the partition which he
has already made. Thus, this is the next stage after the precept is
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sent to him under Section 54 read with Order XX Rule 18(1) of
C.P.C. .
42. In the case of Kattukandi Krishnan, recently the Hon'ble
Supreme Court made a reference to the difference between a
preliminary and a final decree. It was observed that the preliminary
decree merely declares the rights and shares of the parties and
leaves room for some further inquiry to be held and conducted
pursuant to the directions made in the preliminary decree and after
the inquiry having been conducted and rights of the parties being
finally determined, a final decree incorporating such determination
needs to be drawn up. Making observations on the practice
followed, the Hon'ble Supreme Court made some suggestions and
issued some directions for early disposal of the suits and to get the
relief quickly and effectively.
43. In answer to Shri Anturkar's argument that since the suit
continues after the preliminary decree and since the legal heirs of
the original Plaintiff were not brought on record within the
limitation period, the suit stands abated; Shri Mayur Khandeparkar
relied on the ratio of the judgment in the case of Saiyad Jafarali. In
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that case, the reference was made to Order XXII Rule 4 of C.P.C.. It
was in respect of the death of the original Defendant. It was
observed that the rights of the parties are crystallized by the
preliminary decree and, therefore, Order XXII Rule 4 does not
apply to a case in which a preliminary decree has been passed. The
language of Order XXII Rules 3 & 4 of C.P.C. in respect of the
Plaintiff and the Defendant respectively is similar. Therefore, this
ratio applies in case of death of the Plaintiff as well, because in
either case, the rights of the parties are crystallized by the
preliminary decree. Shri Khandeparkar therefore submitted that if
the decree in the present case is treated as a final decree then there
is no question of continuation and hence abatement of the suit
and; even if it is treated as a preliminary decree, the rights are
crystallized after the preliminary decree and, therefore, death of
the sole Plaintiff does not mean that the suit abates if the legal
heirs are not brought on record, within the limitation period.
In view of this, the submission made by Shri Anturkar that
the suit has already abated cannot be accepted.
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44. Shri Anturkar submitted that the Collector cannot effect
partition once the Planning Authority is appointed in respect of the
area in which the land is situated. He relied on Section 2(7) of the
MRTP Act which defines 'development'. Though the definition of
'development' in the Act also includes subdivision of any land, it is
for the purpose of development of the land for carrying out all
building, engineering, mining or other operations over or under
the land. It is different from partition of the land pursuant to the
decree regarding the suit property. And, therefore, it will not affect
the powers of the Collector under Section 54 of C.P.C..
45. The above discussion shows that the application under
Section 54 of C.P.C. read with Order XX Rule 18(1) of C.P.C. is not
in the nature of execution but is only a reminder to the Court to do
its duty. Therefore the earlier applications styled as Execution
Applications in the year 1946 and 1947 do not come in the way of
the contesting respondents in this Civil Revision Application/Writ
Petitions. The payment made by Shankar and Kisan to the original
Plaintiff is disputed. In any case, it is not further recorded in any
Court proceedings specifically by the original Plaintiff Amedmal
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Bhatewada giving up his right in the property. At this stage, it only
remains a matter of interference and no conclusion can be reached
in these proceedings. There are no steps taken under Order XXI
Rule 2 of C.P.C. In any case, this aspect is outside the scope of the
order passed by the learned Civil Judge, Senior Division, Pune
which is impugned in this particular case.
46. Taking this line further, once it is held that earlier
applications styled as Darkhast or Execution Application in the
year 1946 and 1947 are not really execution applications; it was
always open for the decree holder or any other person including
his legal heir to remind the Court to perform its duty by sending
the precept to the Collector. Therefore, Shri Godbole's submissions
that the documents which were not before the Court are vital
documents; is not material. These documents do not make any
difference in the present case. It was the duty of the Court to send
the precept to the Collector which was done by learned Judge by
passing the order. The learned Judge was not required to consider
these documents or adjudicate any issue including locus of the
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parties at that stage. He was not even required to hear any parties
at that stage.
47. It cannot be overlooked that, at present some
construction is made on the suit properties and many flat
purchasers have paid their hard earned money for purchasing the
flats. In the fight for ownership of the land, they are unfortunately
getting adversely affected. Fortunately both the sides have shown
sensitivity to the issue. Shri Khandeparkar submitted that there is
still sufficient open land available and, therefore, the Collector can
effectively make partition without affecting the structure. In this
context, it is not necessary to make any further comment except
expressing hope and trust that the Collector at an appropriate stage
will keep the interest of the flat purchasers in his mind in giving
effect to the precept sent to him. It is clarified that the Collector
shall act in accordance with law by following due procedure.
48. Thus, from the above discussion it is clear that learned
Judge has not committed any illegality or irregularity in passing
the impugned order. He has exercised his jurisdiction properly. The
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order is in conformity with the provisions and the procedure under
the law.
49. With the result, C.R.A. No.285/2022, W.P. No.6701/2022,
C.R.A. No.406/2022 & W.P.(St.) No.13161/2022 are dismissed. In
view of dismissal of these matters, the Interim Applications do not
survive and are disposed of.
(Sarang V. Kotwal, J.)
50. At this stage, learned Senior Counsel Shri Godbole prays
that the interim relief granted vide order dated 24.6.2022, which is
in operation till today, be continued for a reasonable period. The
contesting Respondents opposed this prayer.
51. Considering that the said relief is operating since
24.6.2022 till today, I see no harm in extending the said relief for a
further period of four weeks from today. Hence, the relief granted
vide order dated 24.6.2022 to continue for a further period of four
weeks from today.
(Sarang V. Kotwal, J.)
Deshmane (PS)
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