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2011 DIGILAW 137 (JK)

Onkar Singh & Ors. v. State & Ors.

2011-03-25

HASNAIN MASSODI

body2011
1. Ms. Parwati widow of Wazir Mehar Singh through Wazir Mansa Ram on 6.4.1961 instituted a suit for partition of the property detailed in the plaint against Wazir Beli Ram and others. The suit was registered as Civil Original Suit No. 1/1961. The preliminary decree was passed on 19.3.1964 and a commission issued for effecting partition by metes and bounds to the extent of the plaintiff's share out of the suit property detailed in Annexure-A to the preliminary decree. The commis­sioners went on spot and carried out mandate of their commission and on 14.3.1972 submitted their report/partition plan. The commissioners opined that a chunk of land measuring 6 kanals and 4 marlas comprising khasra No. 2 estate Nawabad, though part of the joint property between the parties, had not found mention in the suit property and that the said plot of land must be included in the suit property while effecting partition. The High Court on 26.4.1974 on application of the plaintiff for final decree, after hearing counsel for the parties, passed a final decree for separation of 1/5 share of the plaintiff by partition of the suit property mentioned in Annexure-A to the final decree. The court while giving details of the property allotted to the plaintiff as per the partition plan included plot of land measuring 6 kanals 4 marlas khasra No. 2 estate Nawabad (hereinafter referred to as 'disputed land') in the total of 81 kanals and 4 marlas allotted to the plaintiff out of 406 kanals andlS marlas falling within limits of khasra No. 1 at Nawabad. The Annexure-A to the order dated 26.4.1974 as also to the judgment and final decree, however, did not make mention of the 'disputed land'. Tehsildar Jammu vide mutation order No. 1418 dated 30.9.1997, in execution of the final decree dated 26.4.1974 attested mutation of "disputed land" measuring 6 kanal and 4 marlas in favour of Wazir Mansa Ram who on demise of the original plaintiff, was substituted as plaintiff vide order dated 20.11.1969. Shri Om Parkash Dalmotra - respondent No. 6 herein claiming to be lessee of the "disputed land", questioned the mutation order No. 1418 to the extent it related to the "disputed land" before Director Land Records, Jammu with the powers of Settlement Officer. Shri Om Parkash Dalmotra - respondent No. 6 herein claiming to be lessee of the "disputed land", questioned the mutation order No. 1418 to the extent it related to the "disputed land" before Director Land Records, Jammu with the powers of Settlement Officer. The challenge thrown to the mutation order succeeded and vide order dated 21.10.2004 the mutation order in question 1 was modified and "disputed land" deleted from its operation. However, in the meantime the "disputed land" was transferred by Shri Wazir Mansa Ram vide sale deed dated 1.6.2001 in favour of petitioner No. 3 herein consequent where upon mutation order No. 2762 came to be passed in favour of petitioner No. 3 on 2.1.2003. The aforesaid mutation order was also questioned before Director Land Records with powers of Settlement Officer, through medium of an appeal. The appeal was allowed and mutation order set aside vide order dated 8.1.2005 on the ground that the "disputed land" having not been included in the schedule of joint property set out in the plaint nor included in the preliminary decree and Annexure - A to the final decree, was not subject to the partition. 2. The order of Director Land Records with powers of Settlement Officer dated 8.1.2005 was assailed by the petitioners before the Settlement Commissioner. How­ever, appeal was dismissed vide order dated 10.11.2005 and a revision before the Financial Commissioner against the order of Settlement Commissioner, dated 10.11.2005 met the same fate and was dismissed vide order dated 6.10.2006. 3. The petitioners throw challenge to the judgment and order dated 6.10.2006 of the Financial Commissioner (Revenue) Jammu - respondent No. 1 herein as also judgment and orders dated 10.11.2005 and 18.1.2005 passed by Joint Settlement Commissioner with the power of Settlement Commissioner and the Director Land records Jammu with the power of Settlement Officer whereby mutation order No. 1418 dated 30.9.1997 and mutation order No. 2762 dated 2.1.2003 have been set aside. 4. Put briefly, the case set up by the petitioners primarily is that the respondent No. 1 while passing the impugned judgment and order dated 6th October 2006 has erroneously assumed role of an appellate Court and made an effort to examine legality or otherwise of the judgment/decree dated 26.4.1974 in Civil Original Suit No. 1/1961 as also the order dated 2.5.1975 of the Division Bench of this Court. It is urged that the impugned order on this ground alone being void ab initio and without jurisdiction is liable to be quashed. It is urged that the disputed land was rightly included by the Commissioners in the suit property on their noticing that the details of suit property mentioned in civil original suit no.1 of 1961 were copied from suit No. 36/Civil 14 Phagun 2009 Smvt, titled Wazir Shiv Ram and others v. Wazir Thakur Dass and others and that the "disputed land" acquired by the Wazir family from Mandir Peer Kho in exchange of land measuring 7 kanals and two marlas given by the Wazir family to the Mandir Peer kho, was for the said reason not included in the property detailed in Civil Original Suit 1 of 1961. It is pleaded that the details of the property joint and un partitioned between the parties were prepared by the commissioners with the help of the record and the shajra prepared by the Patwari. The court while passing the final decree on 26.4.1974 is said to have rightly acted upon the report/partition plan of the commissioners and in body of the judgment included the "disputed land" in the joint property and allotted to the plaintiffs. The petitioners allege to have been denied opportunity of being heard by the Financial Commissioner (Revenue) Jammu and other Revenue Officers while deciding the appeals/revisions. The petitioners have set out in detail, the history of acquisition of the disputed land by the Wazir family and the mode and manner in which the disputed land has been dealt with by the Wazir family after is acquisition. 5. The revision is opposed by the respondent 4 to 6 on the grounds that as the disputed land was not included by the original plaintiff in the joint property partition whereof was sought and rightly not mentioned in the preliminary decree as also Annexure-A detailing the property, subject to the partition, to the final decree, the respondents were right in interpreting that the "disputed land" was not included in the final decree and thus not subject to partition or to be mutated in favour of the petitioners in execution of the final decree. As regards facts, the respondents have denied that the "disputed land" was ever given in exchange by Mandir Peer Kho to Wazir family in lieu of land measuring 7 kanals and 2 marlas comprising survey No. 391 estate Nawabad. It is pointed out that the "disputed land" was state land in occupation of Mandifr Peer kho as tenants thereof; that its ownership was transferred to Mandir Peer Kho vide order of the Revenue Minister dated 15.4.1958 and that pursuant to the order, mutation order No. 401 was passed on 16.5.1958. It is pleaded that the question of Mandir Peer kho having given the disputed land to the Wazir family before 1958 (1923-24 AD) thus would not arise. 6. The respondents dispute the claim set up by the petitioners to the disputed land on the basis of exchange, pointing out that the land measuring 7 kanals and 2 marls comprising khasra No. 391 estate NaWabad said to have been given by the Wazir family to Mandir Peer Kho in exchange of the "disputed land" was, included in memorandum of partition executed by Wazir Thakur Dass defendent Mo. 24 in.the suit No. 1 of 1961) in favour of his sons and grand sons and that mutation No. 684 dated 19.3.19.64 was attested on the basis of said memorandum of partition. It is pleaded that had the plot of land 7 kanal and 2 marlas comprising khasra No. 391 estate Nawabad given in exchange by the Wazir family to Mandir Peer Kho in lieu of the disputed land, the so called exchanged land could not have been part of the memorandum of partition executed on 10.5.1958. 7. I have gone through the pleadings and have heard Ld. Counsel for the parties. 8. The fate of present writ petition hinges on answer of following questions: 1) Whether mention of "disputed land" in the body of judgment dated 26.4.1974 has the effect of including the "disputed land" in the suit property and making it subject to the partition, notwithstanding the plaintiff having not included the disputed land in the subject matter of the suit and the disputed land not mentioned in the preliminary decree as also Annexure-A to the final decree. 2) Whether the respondents 1 to 3 while dealing with the appeals/revisions arising out of mutation order No. 1418 of 30.9.1997 and 2762 of 2.1.2003 acted beyond jurisdiction in commenting on the scope of final decree dated 26.4.1974. 3) Whether the petitioners were not given fair and adequate opportunity by the respondent No. 1 to 3 while dealing with/hearing and deciding revisions/appeals arising out of mutation order No. 1418 and 2762 9. Let us make an effort to find answer to the above questions in the light of law governing the subject. 10. Every suit revolves around has at its core 'subject(s) in dispute' and the person who commences the suit requires the court to render final decision upon "such subject(s) in the suit. Order 2 Rule 1CPC obliges a plaintiff to frame his suit in such a manner so as to afford ground for final decision upon the "subject(s) in dispute" in the suit. Order 2 Rule 2 makes it mandatory for the plaintiff to include "whole of the claim which the plaintiff is entitled to make in respect of the cause of action in the suit" and sounds a caution to the plaintiff that in the event he omits or relinquishes to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. In the circumstances judgment rendered after trial, relates to and governs "subjects in dispute" projected in the plaint The judgment cannot govern a subject that is not in dispute. Similarly a decree - preliminary or final- is formal expression of adjudication which deter­mines the rights of the parties with regard to all or any of the "matters in contro­versy" in the suit. The use of words and expressions "matters in controversy" in the suit in section 2(2) CPC or "subjects in dispute" in Order 2 Rule 1 CPC or "whole of the claim" which the plaintiff is entitled to in Order 2 Rule 2 make it abundantly clear that judgment and decree in the suit govern the subject matter of the suit projected by the plaintiff and nothing beyond. In case the plaintiff at his choice has decided not to include a claim or subject in the suit, he cannot expect final decision on such subject from the court and if the court inadvertently includes such subject within the sweep of its final decision, the decision would be ineffective and inconsequential as regards such subject. In the present case Ms. Parwati- plaintiff in Civil Original Suit no. 1/1961- did not for one or the other reason include the disputed land i.e. land measuring 6 kanals and 4 marlas comprising survey no. 2 estate Nawabad, in the "subjects in dispute." In other words Mst. Parwati did not claim that the "disputed land" was part of the joint property liable to be partitioned nor did she claim partition of the said property. A§ in terms of Order 2 Rule 1 CPC, the judgment and decree conclusively determine the rights of the parties with regard to "matters in controversy in the suit" the final judgment in the present case would not cover the "disputed land" not included in "subjects in dispute" set out in the suit. In the circumstances merely because the commissioners appointed for partition of the suit property found that the "disputed land" also was part of the joint property between the parties and ought to have been subjected of the partition, would not in any manner change the complexion of the matter or bring the "disputed land" within the fold of the suit and the sweep of the judgment decree in the suit. So viewed, a mere mention of the "disputed land" in the judgment dated 26.4.1974 will not make the decree operational as regards the "disputed land." This, however, is only one aspect of the matter. 11. Let us now shift focus to the developments subsequent to commencement of the suit. It is admitted case of the parties that the preliminary decree dated 19-3-1964 whereby the. commissioners were asked to effect partition by metes and bounds to the extent the plaintiffs share out of the suit property detailed in annexure-A to the preliminary decree, did not make mention of the "disputed land". It was only after the commissioners submitted their report/partition plan on 14 March 1972 and opined that the disputed land though not mentioned in the suit was nevertheless part of the joint property, that the "disputed land" found mention in judgment dated 26-4-1974. It was only after the commissioners submitted their report/partition plan on 14 March 1972 and opined that the disputed land though not mentioned in the suit was nevertheless part of the joint property, that the "disputed land" found mention in judgment dated 26-4-1974. Whether the preliminary decree dated 19-3-1964 could be varied, changed or modified so as to include within its fold and bring within sweep of the final decree the property not mentioned in the preliminary decree is a question that calls for an answer. It is well settled law that in a partition suit the final decree cannot amend or go behind the preliminary decree on a matter deter­mined by the preliminary decree. Reference in this regard may be made to following observation of the Supreme Court in Venkata Reddy and others v. Pethi Reddy, AIR 1963 SC 992 (V 50 C 148): "A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as 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 is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decree - a preliminary decree and 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. No doubt, in suits which contemplate the making of two decree - a preliminary decree and 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 The circumstances that further proceedings are required to be taken for procuring the relief to which a party is held entitled by a decision is no test for not regarding that decision as final." 12. The principal has been followed in all the following cases: AIR 2003 Karnataka 104 Smt. Prema v. Nanje Gowda and others AIR 1995 SC 2492 , Assistant Commissioner, Gadag Sub-Division, Gadag v. Mathapathi Basavannewwa and others AIR 1977 SC 292 Muthangi Ayyana v. Muthangi Jaggarao and others AIR 1965 SC 1055 (V 52 C169) Gyarsi Bai and others v. Dhansukh lal and others. 13. In a suit for partition the preliminary decree determines the rights of the parties as on that date, and is final decision as regards these rights between the parties. Once the preliminary decree is passed, the proceedings so far as the declaration of the rights or interest of the parties in the subject matter of the suit property claimed to be joint and un-partitioned is concerned, come to an end as the preliminary decree so far as matters covered by it are concerned is the final decision of the court between the parties. It has been held that while preliminary decree settles the rights of the parties, the final decree only works out those rights. In the case in hand, the preliminary decree did not include the "disputed land" nor did it make the disputed land liable to partition between the parties, nor determine rights of the parties qua the disputed land. The preliminary decree dated 193.1964 was final decision not only as regards the rights of the parties but also the subject matter i.e. the property in respect of which such rights were determined. The preliminary decree dated 193.1964 was final decision not only as regards the rights of the parties but also the subject matter i.e. the property in respect of which such rights were determined. So viewed, there was no scope for addition of the disputed land to the list of immovable properties furnished by the plaintiff and set out in the preliminary decree. Accordingly, mere mention of "disputed land" in the commissioner's report or even in the judgment dated 26.4.1974 would not widen the scope of preliminary decree or bring within its fold the properties that neither the plaintiff found necessary to include in the "subjects in dispute" nor was included in the preliminary decree. It is pertinent to point out that though the "disputed land" found mention in the judgment dated 26-4-1974, it is not included even in the final decree inasmuch as it did not: find place in annexure-A to the final decree that details the property to be partitioned between the parties. Viewed thus, mention of "disputed land" in the body of the judgment does not by itself make the "disputed land" subject to the partition between the parties. The answer to question no. 1 thus is in negative. 14. The next question is whether the respondents 1 to 3 over stepped their jurisdiction by holding that final decree dated 26-4-1974 did not relate to the "disputed land". It is insisted by learned counsel for the petitioners that respondents 1 to 3 while dealing with the appeals/revisions arising out of mutation numbers. 1418 of 30-09-1997 and 2762 of 02-01-2003 ought to have asked the party opposing inclusion of "disputed land" in property subjected to partition to seek clarification of the judgment dated 26-4-1974 from the court that passed the judgment, instead of embarking on an exercise to explore and comment upon scope of the judgment dated 26-4-1974. It is insisted that the respondents by dealing with the ambit and scope of the judgment dated 26-4-1974 have exceeded their jurisdiction and that the judgments and orders dated 18-1-2005, 10-11-2005 and 06-10-2006 rendered by respondents 1 to 3 were liable to be quashed. It is insisted that the respondents by dealing with the ambit and scope of the judgment dated 26-4-1974 have exceeded their jurisdiction and that the judgments and orders dated 18-1-2005, 10-11-2005 and 06-10-2006 rendered by respondents 1 to 3 were liable to be quashed. There is, however, no substance in argument advanced by learned counsel for the petitioner, for the reason that the preliminary decree dated 19-3-1964 determining rights of the parties in respect of the "subjects of dispute"/subject matter of the suit i.e. joint and un-partitioned estate of the parties was free from any ambiguity and so was annexure-A to the final decree dated 26-4-1974. The respondents 1 to 3 rightly sought guidance from the preliminary and final decree and adjudicated upon the controversies projected in the appeal/revision arising out of mutation numbers 1418 of 30-09-1997 and 2762 of 02-01-2003. There was no reason for respondents 1 to 3 to push the parties to any further litigation on the subject that had made rounds of law courts for more than four decades. Respondents 1 to 3 therefore followed outcome of the suit as regards rights of the parties over the subject matter of the suit as determined by the court. Respondents 1 to 3 while disposing of the appeals/revision arising out of mutation nos. 1418 of 30-09-1997 and 2762 of 02-01-2003 in no manner made an endeavour to rewrite the preliminary or final decree, offend or violate the mandate of the preliminary decree dated 19.03.1964 and final decree dated 26-4-1974 and cannot be said to have exceeded or over-stepped their jurisdiction. The case projected by the petitioners in this regard is thus devoid of any substance. 15. The ground urged in the petition that respondents 1 to 3 while dealing with/hearing the appeals/revisions arising out of mutation nos. 1418 of 30-09-1997 and 2762 of 02-01-2003 denied a fair, reasonable and adequate opportunity to the petitioners to project their case, does not sound convincing. The father of petitioners 1 and 2 succeeded in getting the "disputed land" mutated in his favour vide mutation no. 1418 dated 30-09-1997 and had a fair and full opportunity to defend the mutation order before the appellate authority for next seven years tiU.itwas set aside vide order dated 21 October 2004 by Director Land Records, Jammu, with powers of settlement officer. 1418 dated 30-09-1997 and had a fair and full opportunity to defend the mutation order before the appellate authority for next seven years tiU.itwas set aside vide order dated 21 October 2004 by Director Land Records, Jammu, with powers of settlement officer. The father of petitioners 1 and 2 thereafter transferred the "disputed land" in favour of petitioner no. 3 vide sale deed 01-6-2001 and facilitated its mutation in favour of petitioner no. 3 vide mutation no. 2762 of 02-01-2003. The petitioners defended mutation order no. 2762 of 02-01-2003 before the appellate authority i.e. Director Land records, Jammu, with powers of settle­ment officer for next two years till it was set aside vide order dated 8-1-2005 before the Settlement Commissioner. The petitioners prosecuted the appeal before the Settlement Commissioner that was dismissed on 10-11-2005. The petitioners ques­tioned order dated 10-11-2005 of the Settlement Commissioner before the Financial Commissioner and the Revision was dismissed on 06-10-2006. The petitioners thus had full, fair and adequate opportunity to project their case in different fora and at no point of time such opportunity was denied to the petitioners. The record available on the file does not point to any circumstance(s) that would persuade the court to opine that the petitioners were denied fair and adequate opportunity by the respondents 1 to 3 to project and prosecute their case or defend the case set up against them. Learned counsel for the petitioners has not been able to point to any circumstance reflected in the record to make out a case of denial of fair and reasonable opportunity by the respondents. 16. For the reasons discussed above, the writ petition is meritless and bound to fail. The writ petition is accordingly dismissed with all CMPs. Interim direction, if any, shall stand vacated.