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2008 DIGILAW 669 (GAU)

Amar Nath Kumar v. Mrinal Kanti Khullar

2008-09-09

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the petitioners have put to challenge the judgment and order dated 8.4.2008 passed by the learned Member, Assam Board Revenue, Guwahati in Case No. 46RA(DBR)/06 directing the Deputy Commissioner, Dhubri to dispose of the prayer for partition made by the applicants, who are the respondents herein, in terms of the judgment and decree dated 14.11.1988 passed in Title Suit No. 10.1975. By the impugned judgment and order, the particular Khatian issued, which was also put to challenge, has been held to be not as per the Assam Tenancy Act, 1971 and consequently, the same has been cancelled. Being aggrieved, the petitioners have filed the instant writ petition. 2. Late Nidhu Rani Khullar brought a suit during her lifetime against one Bechu Kumar and others being Title Suit No. 10/1975 in the Court of the learned Assistant District Judge, Dhubri praying for a decree of partition and khas possession. It appears that initially, the suit was dismissed as not maintainable, but an appeal, being F.A. No. 88/1979, this Court by judgment and order dated 3.8.1987 held the suit to be maintainable. Accordingly, the suit was remanded to the Court of the learned District Judge, Dhubri to decide the same in accordance with law. 3. The aforesaid suit was decreed by judgment and order dated 14.11.1988 and the same became final in absence of any appeal against the same. Be it stated here that the applicants in the appeal before the Assam Board of Revenue are the respondents No. 1 to 10 in the writ petition, the legal heirs of Late Nidhu Rani Khullar being her sons and daughters. Referring to the claim of the plaintiff for partition of her share of the land in question, it was held that the plaintiff was entitled to a decree of partition in respect of her share of the land. Accordingly, the suit for partition was decreed on contest with costs against the contesting defendants and without costs against others. A preliminary decree was directed to be drawn and accordingly, same was also drawn. 4. After the aforesaid judgment and decree, Nidhu Rani Khullar, the predecessor-in-interest of the applicants before the revenue board applied for partition before the Deputy Commissioner-cum-Collector. Accordingly, the suit for partition was decreed on contest with costs against the contesting defendants and without costs against others. A preliminary decree was directed to be drawn and accordingly, same was also drawn. 4. After the aforesaid judgment and decree, Nidhu Rani Khullar, the predecessor-in-interest of the applicants before the revenue board applied for partition before the Deputy Commissioner-cum-Collector. The petition, in due course, was transferred to the Settlement Officer for necessary action, who in turn forwarded the same to the Assistant Settlement Officer. It is on record that the name of the predecessor-in-interest of the applicants before the Board of Revenue i.e. Late Nidhu Rani Khullar was mutated as the rightful owner of the plot of land. After her death, the legal heirs namely, the applicants before the Assam Board of Revenue, who are the respondents herein, got their names mutated in respect of the said plot of land. 5. From the materials on record, it appears that the Assistant Settlement Officer by his order dated 27.5.1993 passed in the aforesaid petition, registered and numbered as Case No. 3/92-93 granted the partition prayed for making the same effective from 1st April, 1994. The order was passed under Regulation 116 of the Assam Land and Revenue Regulation. It was the grievance of the respondents that the official respondents instead of performing the partition in letter and spirit through physical process, issued the order on 27.5.1993 only showing granting of the imperfect permission. According to the respondents, the order was not in strict compliance of Section 116-A of the Regulation as the same was not followed by physical handing over of the land in issue, if necessary, by evicting the occupants, if any. The respondents were further aggrieved by the action of the Assistant Settlement Officer in granting Rayati Khatian in favour of one Atowari Kumarini, since deceased and represented by the petitioners. 6. It is in the aforesaid facts and circumstances, the respondents filed an application under Section151 of the Assam Land and Revenue Regulation, 1986 before the Assam Board of Revenue praying for giving effect to the partition in respect of the land in question by handing over physical possession of the land to them. Further prayer made in the application was to cancel the Rayati Khatian No. 856 granted in the name of Late Atowari Kumarini, the respondent No. 7 in the application. 7. Further prayer made in the application was to cancel the Rayati Khatian No. 856 granted in the name of Late Atowari Kumarini, the respondent No. 7 in the application. 7. The Assam Board of Revenue, upon hearing the parties and in consideration of the materials on record having passed the impugned judgment and order dated 8.4.2008 with the direction to the Deputy Commissioner, Dhubri to dispose of the partition prayer of the respondents taking into account the judgment and decree dated 18.11.1988 passed in Title Suit No. 10/1975 and also having cancelled Khatian No. 816, the petitioners have filed the instant writ petition making a challenge to the same. 8. I have heard Mr. T.C. Khatri, learned senior counsel assisted by Mr. P. Mahanta, learned Counsel for the petitioners as well as Mr. B. Chakraborty, learned Counsel appearing for the respondents. I have also gone through the records of the Assam Board of Revenue and I have also given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. 9. Mr. Khatri, learned Counsel for the petitioners referring to the provisions of Section 54, Order XX, Rule 18(1) and (2) of the Code of Civil Procedure submits that no effect could be given to the preliminary decree passed in the aforesaid suit. He has also referred to the decision of the Apex Court as reported in (2007) 2 SCC 355 (Hasham Abbas Sayyad v. Usman Abbas Sayyad). 10. On the other hand, Mr. B. Chakraborty, learned Counsel appearing for the respondents, who were the applicants before the Board of Revenue, submitted that the writ petition is misconceived and not maintainable. He submits that the judgment and decree passed in 1988 having attained its finality and the order of the Assistant Settlement Officer passed way back in 1993 (27.5.1993) having not been put to challenge, the said decree and order cannot be put to challenge indirectly by way of filing the writ petition in the year 2008. He has placed reliance on the decision of the Apex Court reported in AIR 1963 SC 992 (Venkata Reddy v. Pethi Reddy). 11. As noticed above, the learned District Judge, Dhubri by his judgment and decree passed on 14.11.1988 in Title Suit No. 10/75 granted the partition in respect of the share of land of the plaintiff. He has placed reliance on the decision of the Apex Court reported in AIR 1963 SC 992 (Venkata Reddy v. Pethi Reddy). 11. As noticed above, the learned District Judge, Dhubri by his judgment and decree passed on 14.11.1988 in Title Suit No. 10/75 granted the partition in respect of the share of land of the plaintiff. The said judgment and decree has attained its finality there being no challenge to the same. Thereafter, the Assistant Settlement Officer by his aforesaid order dated 27.5.1993 granted the partition making the same effective from 1st April, 1994. The order was passed under Regulation 116 of the Regulation notifying the partition. The said order has also attained its finality there being no challenge to the same. The present petitioners were very much party to the said proceeding. 12. The application before the Assam Board of Revenue was filed for effective implementation of the partition. The Board of Revenue in appreciation of the facts and circumstances involved has allowed the prayer of the applicants/respondents with the direction to the Deputy Commissioner, Dhubri to act upon the partition as per law and according to the judgment and decree dated 18.11.1988 passed in Title Suit No. 10/75. The land in question having been partitioned, the Khatian issued in respect of the same subsequent to the judgment and decree and the order passed by the Assistant Settlement Officer has also been cancelled. 13. The decision on which Mr. Khatri, learned Counsel for the petitioners has placed reliance, has no application to the facts and circumstances involved in this case. In the said decision, i.e. Hasham Abbas Sayyad, the Apex Court held that it is the final decree and not the preliminary decree, unless and unless the final decree is a part of the preliminary decree, can only be executed. The short question which arose for consideration of the Apex Court was as to whether the property in suit would be put to auction sale without initiating a formal final decree proceeding. It was in such circumstances the Apex Court having noticed that the possession of the property had not been delivered to the auction purchaser and that the suit property was a residential house held that the auction sale was wholly illegal and that the auction purchaser could otherwise be compensated on monetary terms. 14. It was in such circumstances the Apex Court having noticed that the possession of the property had not been delivered to the auction purchaser and that the suit property was a residential house held that the auction sale was wholly illegal and that the auction purchaser could otherwise be compensated on monetary terms. 14. In the aforesaid case before the Apex Court, a preliminary decree was passed. An application, purportedly a special 'darkhast' was filed by the respondent No. 1 who had filed the suit for partition. The respondent No. 2 was his brother. The advocate Commissioner appointed was of the opinion that the property was made impartible. Thereafter, a proposal was mooted that the property be put on sale in between the co-sharers. There was objection to the report. The learned trial Judge held that it was not necessary to initiate the final decree proceeding and the special 'darkhast' filed by the respondent No. 1 was treated to be an application therefor. It was in such circumstance, the short question which arose before the Apex Court was as to whether the property in suit could be put on auction sale without initiating by formal final decree proceeding. The Apex Court held that what can be executed is a final decree and not the preliminary decree, unless and until the final decree is a part of the preliminary decree. 15. The 'decree' has been defined in Section 2(2) of the Code of Civil Procedure as follows: 2(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 completely disposes of the suit. It may be partly preliminary and partly final. 16. Section 54 of the Civil Procedure Code, reads as follows: 54. 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 completely disposes of the suit. It may be partly preliminary and partly final. 16. Section 54 of the Civil Procedure Code, reads as follows: 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 estate. 17. Order XX, Code of Civil Procedure provides as to when a judgment is said to be pronounced. Rule 7 thereof provides that a decree, although prepared at a later date, shall relate back to the date of the judgment. A civil Court, in a suit for partition, may pass a preliminary decree in terms of Order XX, Rule 18 of the Civil Procedure Code, which reads as under: 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 share therein, then: (1) If and insofar 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 insofar 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 preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. 18. 18. In the instant case, unlike the aforesaid case before the Apex Court, the preliminary decree drawn by the learned District Judge was in the form of final decree. The suit was instituted by the predecessor-in-interest of the respondents, inter alia, for partition of her share in respect of the land in question. While answering the issue framed in the suit, the learned District Judge held that the plaintiff had the right, title and interest to the extent of 2 kathas of land. As regards the claim for partition of her share of the land, repelling the contention of the contesting defendants that the suit for partition did not lie as per the provision of the Assam Land and Revenue Regulation, the learned District Judge, upon a reference to the judgment of the Court in aforesaid FA No. 88/1979 in which it was held that the jurisdiction was with the learned District Judge, held that the plaintiff was entitled to a decree of partition in respect of her share of land forming subject-matter of the present dispute. It is in this context, the judgment and decree dated 14.11.1988 passed in Title Suit No. 10/75 will have to be understood. 19. As noted above, the said judgment and decree has attained its finality and the respondents approached the authority under the Assam Land and Revenue Regulation for effecting the partition. As per the said judgment and decree, although order for effecting partition was passed by the Assistant Settlement Officer vide his order dated 27.5.1993 but there being no effective follow up action, the respondents approached the Assam Board of Revenue by filing the application under Regulation 151 of the Regulation praying for the aforementioned direction. Entertaining the application, the Assam Board of Revenue has passed the impugned judgment and order in terms of the orders already holding the field. Although the Assistant Settlement Officer issued the proclamation of partition in terms of the aforesaid judgment and decree, but there being no action under Regulation 116-A, the applicants/respondents approached the Assam Board of Revenue for compliance with the provisions of Regulation 116-A. Regulation 116-A reads as follows: 116. Although the Assistant Settlement Officer issued the proclamation of partition in terms of the aforesaid judgment and decree, but there being no action under Regulation 116-A, the applicants/respondents approached the Assam Board of Revenue for compliance with the provisions of Regulation 116-A. Regulation 116-A reads as follows: 116. Proclamation of partition.-On completion of a partition the Deputy Commissioner shall publish a proclamation of the fact at his office and at some conspicuous place on each of the new estates or in the estate of which they originally formed part, and the partition shall take effect from the beginning of the agricultural year next after the date of the proclamation. 116-A. Procedure to be followed by Deputy Commissioner in giving effect to the partition. As soon as may be after the date on which the partition takes effect under the last preceding section, the Deputy Commissioner shall deliver to the several sharers possession of the separate lands allotted to them, and for this purpose may, if necessary, summarily eject any proprietor or landholder who may refuse to vacate the same. 20. In Venkata Reddy (supra), the short question before the Apex Court was as to whether the preliminary decree for partition, which was affirmed finally by the High Court of Madras can be regarded as a final decision. As in the instant case, the competence of the Court was not in question. What, however, contended was that in a partition suit only the decision which can be said to be a final decision is the final decree passed in the case and that since the final decree proceedings were still going on when the amending Act came into force, the particular provision was not applicable. It was held that where a decision is embodied in the judgment, which is followed by a decree, the finality must naturally attached to itself in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. 21. If the argument made by the learned Counsel for the petitioners, upon a reference to the decision in Hasham Abbas Sayyad (supra) is to be accepted, it would mean that no finality is attached to the judgment and decree dated 14.11.1988 passed by the learned District Judge, Dhubri in Title Suit No. 10/75. 21. If the argument made by the learned Counsel for the petitioners, upon a reference to the decision in Hasham Abbas Sayyad (supra) is to be accepted, it would mean that no finality is attached to the judgment and decree dated 14.11.1988 passed by the learned District Judge, Dhubri in Title Suit No. 10/75. A decision is stated to be final when, so far as the Court rendering it is concerned. It is unalterable except by resorting to such provision of C.P.C. as permitted its revision, modification or amendment. Similarly, the final decision would mean a decision which would operate as a res judicata between the parties, if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as have been permitted by the Code. 22. In Venkata Reddy (supra), it has been observed thus: ...A preliminary decree passed, whether it is in a mortgage suitor a partition suit, is not a tentative decree but must, in so far the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplates the making of two decrees a preliminary decree and a final decree-the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The Legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree. 23. In the instant case, the decree passed in 1988 has attained its finality. The applicants/respondents sought for implementation of the same by approaching the authority prescribed under the Regulation. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree. 23. In the instant case, the decree passed in 1988 has attained its finality. The applicants/respondents sought for implementation of the same by approaching the authority prescribed under the Regulation. Although the Assistant Settlement Officer issued proclamation under Regulation 116, no action having been taken towards effective implementation as provided for under Regulation 116-A, they approached the Assam Board of Revenue by filing application for appropriate direction. The Board of Revenue appreciating the facts and circumstances has issued the aforesaid direction to the Deputy Commissioner, Dhubri, which cannot be said to be opposed to law. 24. The direction of the Assam Board of Revenue is in terms of the finality arrived at by virtue of the aforesaid judgment and decree. The question for determination before the Board was as to whether the applicants/respondents were entitled to execution of partition under Regulation 116-A on the basis of the judgment and decree passed in the aforesaid title suit and as to whether Khatian No. 816 issued in the name of Atowari Kumarini was liable to be cancelled. The Board upon a detail discussion of the matter has passed the impugned judgment and order directing the Deputy Commissioner, Dhubri to act as per the provisions of the Regulation. It has also cancelled the Khatian which even otherwise could not have been granted at a time when the judgment and decree and the order of the Assistant Settlement Officer were in operation. 25. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly, it is dismissed leaving the parties to bear their own costs. 26. The Deputy Commissioner, Dhubri shall now proceed with the matter in accordance with law towards effective implementation of the partition in question. Petition dismissed.