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2007 DIGILAW 1254 (PNJ)

Bhagwan Singh Alias Bhagwan Dass v. Sudesh Rani

2007-05-31

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. (31st May, 2007) Challenge in this revision petition is made to the order dated 25.7.2006 passed by the learned Additional Civil Judge (Sr. Division), Malerkotla, who while declining the objection petition filed by the respondent ordered to appoint Local Commissioner to demarcate the share of the parties in pursuance of the judgment dated 18.5.1993 (Preliminary decree). 2. Factual matrix in the background of the case is that some where in the year 1984-85 the plaintiffs filed an application for partition of the property measuring 19 kanal 17 marlas comprising of some constructed area as well as agricultural land bounded by the boundary wall situated in the municipal limits of Malerkotla on the assumption that the property was subject to payment of land revenue. The said application was contested by the defendants upto the level of Financial Commissioner, who while accepting the plea of the defendant that the Civil Court was the proper forum to partition before the Civil Court. Faced with the situation, plaintiff filed Civil Suit No, 608 dated 28.11.1988 which was decreed in favour of the plaintiffs (now decree holders) on 18.5.1993. While resiling from the previous plea raised before the Financial Commissioner, defendants-JDs raised the plea before the Civil Court that it had no jurisdiction to try the suit. The Civil Court, in its judgment dated 18.5.1993, while turning down the plea of the JDs and holding the jurisdiction of the Civil Court observed as under :- "The suit property i.e. Gair Mumkin Kothi as well as the agricultural land attached to it is one unit and lie Civil Court has got the jurisdiction to partition the same. The Civil Court, in its judgment dated 18.5.1993, while turning down the plea of the JDs and holding the jurisdiction of the Civil Court observed as under :- "The suit property i.e. Gair Mumkin Kothi as well as the agricultural land attached to it is one unit and lie Civil Court has got the jurisdiction to partition the same. Thus, in pursuance of the orders of Financial Commissioner after a lengthy litigation at the instance of the present defendants present plaintiffs have filed this suit for partition and seeking possession of their respective shares and now in the Civil Court, for which present defendants fight up to the Court of Financial Commissioner against the present plaintiffs and got the orders of their choice with regard to the jurisdiction of the Civil Court for the partition of the suit property, and now the same defendants have resiled form their previous assertion and pleas that this Court has got no jurisdiction for the purposes of partition, which amounts to the conduct of the present defendants nothing more than that of inequitable and amounts to inconsistent pleas in different courts relating to same cause of action, which cannot be entertained and as per a well established rule of justice, present defendants now cannot be permitted to approbate and reprobate with regard to jurisdiction of this Court and present defendants are estopped from raising the plea in this Court about the jurisdiction of this Court and as such in view of the land mark authority relied upon by the learned Counsel for the plaintiffs cited as 1973 P.L.J. 577 (supra). I am also in full agreement with the arguments and case law relied upon by the learned Counsel for the plaintiffs and I hold that the Court has got every jurisdiction to entertain try and decide the present suit. Accordingly, this issue is decided against the defendants and in favour of the plaintiffs. 3. I am also in full agreement with the arguments and case law relied upon by the learned Counsel for the plaintiffs and I hold that the Court has got every jurisdiction to entertain try and decide the present suit. Accordingly, this issue is decided against the defendants and in favour of the plaintiffs. 3. Now the preliminary decree of the Civil Court, after passing through a long channel became mature for taking the shape of the final decree, then the defendants again raised the question that since the property was subject to payment of land revenue, therefore, this Court has no jurisdiction to appoint Local Commissioner as it is in violation of Section 54 and Order 20 Rule 18 of C.P.C. and that in view of Section 54 and Order 20 Rule 18 C.P.C. the Court should have referred the matter to the Revenue Court for partitioning the property. 4. Before proceeding to decide the objection, it may be observed that judgment dated 18.5.1993, reveals that the land measuring 19 kanal 17 marlas comprised of Gair Mumkin Kothi and some cultivable area which is subject of lis is one compact unit situated within the municipal limits of Malerkotla, therefore, the same was rightly treated as property subject of partition by the Civil Court and the Revenue Court had no jurisdiction to try the same. The judgment debtors having lost before the Civil Court in this aspect have again raised the plea that the matter should have been referred to the Revenue Court for partitioning the shares. As a matter of fact, the land, over some portion of which houses or other buildings have been constructed, are not covered by the "estate" assessed for payment of land revenue, as such Civil Court has jurisdiction to partition such property. I find strength to my this view from the judgment delivered by this Court in case Kalyan Dass v. Som Nath and Ors., 1987 R.R.R. 48 : 1987 P.L.J. 4, wherein it was observed as under :- "5. The next contention raised was that property No. 6 should have been excluded from partition as such, as all the three Khasra numbers consists of agricultural land. According to the learned Counsel, simply because on one Khasra number buildings have been constructed did not mean that it ceased to be agricultural land and thus could be partitioned by the civil Court. According to the learned Counsel, simply because on one Khasra number buildings have been constructed did not mean that it ceased to be agricultural land and thus could be partitioned by the civil Court. I do not find any force in this contention either as estate assessed to the payment of revenue to the Government, do not cover land which have been built upon and have become house and factories and the civil Court has jurisdiction to partition this property in view of judgment of this Court in Rameshar Nath v. Jageshwar Nath and Ors., (1953) 55 P.L.R. 326." 5. In a suit for partition, there are normally two decrees : (i) a preliminary decree; and (ii) final decree. There might be a preliminary decree or more than one preliminary decree which would determine the share of the parties but it would not divide the. properties suitable to the co-shares. On passing of the final decree, after inquiry is held, as per directions contained in the preliminary decree, the share of the parties are determined first at the stage of preliminary decree and actual partition is effected as per the final decree. This fact also cannot be lost sight of that till the final decree is passed, the Court which passed the preliminary decree remains seized of the matter, meaning thereby that the Court which passed the preliminary decree is to pass the final decree. Any order passed between the preliminary decree and the final decree is an interlocutory in nature. It is well established that the Court should, as far as, may avoid multiplicity of suits by compelling the party to go in for fresh suits with respect to the property in question. There is also no dispute of the fact that after the matter is referred to the Revenue Court, then civil Court becomes functus officio, as such no papers can be referred; during the process of preparation of final decree and the matter would be referred to the Revenue Court after the final decree is passed demarcating the shares of the parties including the plaintiffs and the defendants for actual possession as per decree for partition. I It is equally settled that if the delivery of the possession is not effected, the final decree remains in executable. I It is equally settled that if the delivery of the possession is not effected, the final decree remains in executable. It is the scheme of the Code of Civil Procedure that the final decree passed in the civil suit must be executed. The scheme of the section does not refer to a preliminary decree but decree passed in Sub- rule (1) is not a preliminary decree but it is a final decree. It is due to this scheme, sub-rule (1) has been introduced and if the final decree is not executed, then the matter could be referred to the Collector for actual partition of the property. 6. I find strength to my this view from the judgment delivered in case Narasu and Ors. v. Narayan Krishanji and Ors., A.I.R. 1959 Mysore 233 wherein it was observed as under: "A decree passed under Rule 18 of Order XX directing partition by the Collector cannot be said to be a preliminary decree. So far as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-Rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "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 provisions of Section 54. This direction must be deemed to be a part of the decree. Any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under Sub-rule (1) of Rule 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial faction; nor is it required to pass any judicial order. 7. It may further be observed that the Court is still seeking assistance of the Revenue Authorities by appointing Local Commissioner of the Revenue Department for demarcation of the shares in the property. As such, the order passed by me learned Additional Civil Judge (Sr. 7. It may further be observed that the Court is still seeking assistance of the Revenue Authorities by appointing Local Commissioner of the Revenue Department for demarcation of the shares in the property. As such, the order passed by me learned Additional Civil Judge (Sr. Division), Malerkotla cannot be said to be in any way in violation of Section 54 or Order XX Rule 18 of C.P.C. 8. Consequently, finding no merits in the revision petition, the same is hereby dismissed.