Page No.# 1/7 vs Abdul Sattar Kha And 12 Ors
2021 Latest Caselaw 2835 Gua

                                                               Page No.# 1/7

GAHC010124062018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP(IO)/219/2018

         ABIRUDDIN KHA AND 4 ORS.
         S/O- LT MONGAL KHA, R/O- VILL- KHUDNABARI, MOUZA- KHARIZA
         BIJNI, P.S. SHARBHOG, DIST- BARPETA, ASSAM

         2: ASIMUDDIN KHA
          S/O- LT MONGAL KHA
          R/O- VILL- KHUDNABARI
          MOUZA- KHARIZA BIJNI
          P.S. SHARBHOG
          DIST- BARPETA
         ASSAM

         3: HAZRAT ALI
          S/O- LT MONGAL KHA
          R/O- VILL- KHUDNABARI
          MOUZA- KHARIZA BIJNI
          P.S. SHARBHOG
          DIST- BARPETA
         ASSAM

         4: IMAN ALI
          S/O- LT MONGAL KHA
          R/O- VILL- KHUDNABARI
          MOUZA- KHARIZA BIJNI
          P.S. SHARBHOG
          DIST- BARPETA
         ASSAM

         5: HASSEN ALI
          S/O- LT MONGAL KHA
          R/O- VILL- KHUDNABARI
          MOUZA- KHARIZA BIJNI
          P.S. SHARBHOG
          DIST- BARPETA
                                                              Page No.# 2/7

ASSA

VERSUS

ABDUL SATTAR KHA AND 12 ORS.
S/O- LT SAHED ALI KHA, R/O- VILL- BAGURIGURI PATHAR, P.O.
SUKUNBARI, P.S. SARBHOG, DIST- BARPETA, ASSAM, PIN- 781301

2:SAMIR KHA
 S/O- LT SAHED ALI KHA
 R/O- VILL- BAGURIGURI PATHAR
 P.O. SUKUNBARI
 P.S. SARBHOG
 DIST- BARPETA
ASSAM
 PIN- 781301

3:BADSA KHA
 S/O- LT SAHED ALI KHA
 R/O- VILL- BAGURIGURI PATHAR
 P.O. SUKUNBARI
 P.S. SARBHOG
 DIST- BARPETA
ASSAM
 PIN- 781301

4:ON THE DEATH OF IDRISH ALI KHAN HIS LEGAL HEIRS
 BARPETA

4.1:HANIF ALI KHAN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

4.2:GADU ALI KHAN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

4.3:BISHU AZLI KHAN
                                 Page No.# 3/7

S/O- LT IDRISH ALI KHAN
R/O- VILL- BOGORIGURI PATHER
MOUZA- KHARIJA BIJNI
P.S. SORBHOG
DIST- BARPETA
ASSAM
PIN- 781317

4.4:AMZAD ALI KHAN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

4.5:MAZAM ALI KHAN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

4.6:SHAJAHAN KHAN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

4.7:NITU
 D/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

4.8:YARASN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
                                 Page No.# 4/7

P.S. SORBHOG
DIST- BARPETA
ASSAM
PIN- 781317

4.9:SAMIRAN
 S/O- LT IDRISH ALI KHAN
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

5:AYZAL
 S/O- KALA MONDAL
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

6:SAMSUL MONDAL
 S/O- KALA MONDAL
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

7:ZAKIR HUSSAIN
 S/O- KALA MONDAL
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
 PIN- 781317

8:ZAKIR HUSSAIN
 S/O- KALA MONDAL
 R/O- VILL- BOGORIGURI PATHER
 MOUZA- KHARIJA BIJNI
 P.S. SORBHOG
 DIST- BARPETA
ASSAM
                                                 Page No.# 5/7

             PIN- 781317

            9:SAHIRAN NESSA
            W/O- LT SAHED ALI
             R/O- VILL- BOGORIGURI PATHER
             MOUZA- KHARIJA BIJNI
             P.S. SORBHOG
             DIST- BARPETA
            ASSAM
             PIN- 781317

            10:TARABANU
             D/O- LT SAHED ALI
             R/O- VILL- BOGORIGURI PATHER
             MOUZA- KHARIJA BIJNI
             P.S. SORBHOG
             DIST- BARPETA
            ASSAM
             PIN- 781317

            11:JAHURA KHATUN
             D/O- LT SAHED ALI
             R/O- VILL- BOGORIGURI PATHER
             MOUZA- KHARIJA BIJNI
             P.S. SORBHOG
             DIST- BARPETA
            ASSAM
             PIN- 781317

            12:JAMALA KHATUN
             D/O- LT SAHED ALI
             R/O- VILL- BOGORIGURI PATHER
             MOUZA- KHARIJA BIJNI
             P.S. SORBHOG
             DIST- BARPETA
            ASSAM
             PIN- 781317

            13:MOFZAL AKAND
             S/O- LT RAMJAN AKAND
            VILL- KHUDNABARI
             MOUZA- KHARIJA BIJNI
             P.S. SORBHOG
             DIST- BARPETA
             PIN- 78131

Advocate for the Petitioner   : MR. A C SARMA
                                                                                      Page No.# 6/7

Advocate for the Respondent : MR. N DHAR (R4.1-R4.6)




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                            ORDER

Date : 12-11-2021

Heard Mr. J. Ahmed, the learned counsel appearing on behalf of the petitioners and Mr. N. Dhar, the learned counsel appearing on behalf of the respondent 4(a) to 4 (f) as well as Mr. A. Mobaraque, the learned counsel appearing on behalf of the Defendant Nos. 1 to 3, 10 and 11.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 08/05/2018 passed in Misc. (J) Case No. 14/2016 arising out of Title Suit No. 6/1995, whereby the Court below issued a precept to the Revenue Authority to do the needful as per the judgment and decree dated 29/05/1999, which was confirmed by this Court vide the judgment and decree dated 18/09/2013 passed in RSA No. 104/2003.

3. A perusal of the judgment and decree dated 29/05/1999 passed in Suit No. 6/1995 would go to show that the Court below after declaring the right, title and interest of the plaintiffs to the extent of 14 bighas 4 kathas 0 lechas under Dag No. 662 of Patta No.160 had directed an issuance of precept to the concerned Revenue Authority to get the land partitioned with separate units. This judgment and decree, in fact, taking into account that the land in question is a revenue paying estate and the provision of Order XX Rule 18(1) of the Code of Civil Procedure, 1908, is applicable, and as such, it is preliminary decree. This preliminary decree has been confirmed by the First Appellate Court as well as by this Court. It is no longer res integra that a preliminary decree cannot be put into execution and in that regard, the judgment of the Supreme Court rendered in the case of Shankar Balwant Lokhande (Dead) Vs. Chandrakant Shankar Lokhande reported in (1995) 3 SCC 413, and more particularly paragraph 12 and 13 are quoted here-in-below:

"12. As to Maksudan's case (supra), we state that it had not been correctly decided. Limitation does not begin to run from the date when direction is given to pass final decree. Mere giving of direction to supply stamped paper for passing final decree does Page No.# 7/7

not amount to passing a final decree. Until the final decree determining the rights of the parties by metes and bound is drawn up and engrossed on stamped paper(s) supplied by the parties, there is no executable decree. In this behalf, it is necessary to note that s.2(a) of the Bombay Stamp Act, 1958, as amended by the local Act, provides that a decree of civil. court is required to be stamped as per Article 46 in Schedule-1. Section 34 thereof lays down that "no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped". Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order 20 Rule 18(2), attracting residuary Article 182 of the old Limitation Act. Contrary views of the High Courts, are not good law. A Division Bench of the Andhra Pradesh High Court in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao, AIR 1960 AP 54, correctly decided the question of law which held that the limitation begins to run only after a final decree is engrossed on stamped papers.

13. Accordingly, the appeals arc allowed. The judgments and orders of the High Court arc set aside and that of the trial court stands confirmed. The trial court is directed first to pass the final decree and then to engross the same on the stamped papers already supplied by the appellants; if further stamped papers be needed, reasonable time would be given to supply the same. The final decree would then be drawn thereon. The court would, thereafter, proceed with the execution of the final decree in accordance with law."

4. In view of the above judgment of the Supreme Court and the law laid therein that the impugned order passed directing to issue the precept by the Trial Court in terms with the preliminary decree passed by the Trial Court in the partition suit is not liable to be interfered with.

5. The petitioner shall be always at liberty to raise necessary pleas in consonance with the preliminary decree passed by the Trial Court before the Revenue Court.

6. The instant petition stands dismissed. No costs.

JUDGE

Comparing Assistant