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1982 DIGILAW 1112 (ALL)

Raj Narain Singh v. Rajpati Singh

1982-09-27

R.S.VERMA

body1982
JUDGMENT R.S. Verma, M. - Rajpati Singh had filed a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act against Raj Narian Singh in the court of Shri Anirudh Upadhya, Assistant Collector, Ist Class, Basti. That suit was decided on June 30, 1977, the shares of the parties were declared and it was ordered that a preliminary decree be prepared accordingly. Against that, Raj Narain Singh defendant No. 1, filed an appeal in the court of Commissioner, Gorakhpur Division. The appeal ultimately reached the court of Shri Chandan Gopal, learned Additional Commissioner, who had taken view in an earlier case that in partition suits preliminary decrees are not to be prepared in view of a Circular Letter of the Board of Revenue. In the contest of this, the appellant filed an application that if the appeal was not maintainable, his appeal may be treated as a revision. The Circular Letter of the Board of Revenue(No. 530/12-76-E/74, dated January 24, 1980. The learned Additional Commissioner was shown 1973 R.D. 357 (H.C.) and 1976 R.D. 15, in which it had been held that a partition suit consists of two stages; at first stage the shares of the parties are determined and a preliminary decree is passed; and in the second stage a final decree is prepared dividing the holding in accordance with Rules 156 and 157 of the U.P. Zamindari Abolition and Land Reforms Rules. The learned Additional Commissioner felt difficulty as to what to do in the case and so he referred the matter to this Board for its opinion. 2. The first question, which arises in this context, is whether such a reference can be made at all by him. I have gone through the provisions of the U.P. Zamindari Abolition and Land Reforms Act and do not find that the Commissioner's court has got any power to refer any case to the Board for its opinion. This is a novel procedure adopted by Shri Chandan Gopal, learned Additional Commissioner. When the matter was before him as to whether an appeal or a revision lay against the preliminary decree, the matter ought to have been decided by him according to law and according to his opinion about the law. The order passed by him in such a case could be right or wrong, but that is quite another matter. When the matter was before him as to whether an appeal or a revision lay against the preliminary decree, the matter ought to have been decided by him according to law and according to his opinion about the law. The order passed by him in such a case could be right or wrong, but that is quite another matter. The fact is that it was he who had to pass the order in such a situation. The reference made by him is incompetent and even if this court gives any opinion, it will not be binding on any court of law. 3. In the U.P. Tenancy Act, Section 289 provided that in case of certain doubts a civil or revenue court, as the case may be, may submit the record with statement of the reasons for its doubt to the High Court. Even then, there was no provision to refer such cases to the Board of Revenue. However, in the U.P. Zamindari Abolition and Land Reforms Act there is no such provision to refer cases to the Board of Revenue in case any doubt arises in the mind of the subordinate court. At this state, it would also be relevant to note that Section 293 of the U.P. Tenancy Act empowered the Board of Revenue to make rules with the previous sanction of the State Government, but no such power has been given to the Board of Revenue in the U.P. Zamindari Abolition and Land Reforms Act or U.P. Land Revenue Act. All the fuel-making powers under the U.P. Zamindari Abolition and Land Reforms Act and U.P. Land Revenue Act vest in the State Government and that is also subject to the provision that such rules, after they are made, be laid before each House of the State Legislature, while it is in session, for a total period of not less than thirty days comprised in its one session or two or more successive sessions. 4. Now, we may take the Board's Circular Letter No. 530/12/76-E/74 dated January 24, 1980 wherein it was stated that in a case under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act preparation of preliminary decree before the final decree was against the Rules. I do not know as to why preparation of preliminary decree before the final decree is against Rules and if it is so, against which Rules. I do not know as to why preparation of preliminary decree before the final decree is against Rules and if it is so, against which Rules. Such Circular Letters have no binding force and they are only in the nature of guidance given by senior officers to junior officers. Their validity and effectiveness is limited to that only and does not go beyond, so as to bind the courts of law in deciding cases and matters according to law laid down by the statue. Whenever a conflict arises between the law and the rulings interpreting the law on the one hand, and circular letters, on the other hand, the clear course to be adopted by courts of law is to act and proceed according to the provisions of law, completely ignoring the other advisory opinions given by howsoever high authority. In the instant case, the circular letter of the Board, referred to above, does not lay down the correct position of law and will have to be ignored in deciding cases under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. 5. The law is so clear on the point regarding preparation of preliminary decree and final decree in certain cases that it does not require any elaborate reasoning. Section 2(2) Code of Civil Procedure lays down that a decree may be either preliminary or final. The same section mentions an Explanation that a decree is 'preliminary' when further proceedings have to be to be taken before the suit can be completely disposed of; it is final when such adjudication completely disposes of the suit. It is common knowledge that partition suits require firstly determination of the notional shares of the parties in the land in suit and after such declaration a preliminary decree is passed and thereafter actual shares of the parties are determined and a final decree is prepared. The formal declaration of the shares of the parties is very important and right of appeal is there against such a declaration. If that declaration about the notional shares of the parties is not challenged, then it will become final and after the preparation of the final decree, it cannot be challenged in any court of law. The formal declaration of the shares of the parties is very important and right of appeal is there against such a declaration. If that declaration about the notional shares of the parties is not challenged, then it will become final and after the preparation of the final decree, it cannot be challenged in any court of law. Section 97 of the Code of Civil Procedure lays down that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing the correctness in any appeal which may be preferred from the final decree. Rule 157 of the U.P. Zamindari Abolition and Land Reforms Rules lays down that before making a division the court shall (a) determine separately the share of the plaintiff and each of the other co-tenure-holders, (b) record which other co-tenure-holders (b) record if any, of the co-tenure-holders, wish to remain joint; (c) make valuation of the holding or holdings in accordance with the rent-free applicable to each plot in the holding, and (d) determine separately the value of the share of the plaintiff and each of the other co-tenure-holders. Such a declaration is absolutely necessary because unless the shares of the parties are finally determined actual division of the holding cannot be effected on the spot. When such a declaration is made, it is incorporated in preliminary decree and the party who feels aggrieved by such a declaration has every right to go in appeal against that. This preliminary declaration made by the courts about notional shares of the parties is, upon preparation of a decree in accordance with that termed as preliminary decree. Such a preliminary decree must be prepared in all cases of partition and the circular letter of the Board of Revenue that preparation or preliminary decree is against law is not correct. 6. I know that my opinion expressed in the case will not be in law, binding on the court of the learned Additional Commissioner who will have the discretion to proceed with the case as he thinks fit but as the matter has come up before this court, opinion has to be given. To repeat, what I have stated above, the administrative orders are advisory orders passed by senior officers or by higher courts. They will not have the effect of changing the law. To repeat, what I have stated above, the administrative orders are advisory orders passed by senior officers or by higher courts. They will not have the effect of changing the law. The law can be gathered from the statute itself and other rulings given by superior courts while interpreting those statutes. 7. The result is that this file be returned to the learned Additional Commissioner without any delay and that he will decide the case according to law.