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2013 DIGILAW 569 (GAU)

Sardar Amarjit Singh v. Assam Board of Revenue

2013-08-14

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. This writ petition is directed against the judgment and order dated 12.08.2003, passed by the Assam Board of Revenue in Case No. 9 RA(J)/2002 and also the order dated 12.11.2007, passed by the Additional Deputy Commissioner, Jorhat in Misc. Case No. 11/1998. The matter pertains to partition of the particular property as per the decree of the Civil Court determining the respective shares of the petitioner and the respondent No. 3 in equal shares. According to the petitioner, he has been deprived of 50% of the suit land (17 Bigha 12 Katha 14 Lecha). It is the claim of the petitioner that he has been given only 2 Katha 16 Lecha of land and the rest of his share of land has been adjusted against the claim of the respondent No. 3 to the movable properties which according to the petitioner is in clear violation of Section 54 and Order XX, Rule 18(1) of the CPC. The facts involved in the case are as follows:-- The respondent No. 3 and two others as plaintiffs instituted a suit against the present petitioner and another for partition and separate possession of joint family properties both movable and immovable, left behind by the predecessor-in-interest of the parties late Mohan Singh. The respondent No. 3 is the wife of petitioner's elder brother (since deceased). In the meantime, some of the successors of the original owner late Mohan Singh have been died, the dispute with regard to his properties survives between the present petitioner and respondent No. 3 only. 2. The suit for partition was instituted in the Court of learned Assistant District Judge, Jorhat being T.S. No. 68/77. In the meantime, some of the successors of the original owner late Mohan Singh have been died, the dispute with regard to his properties survives between the present petitioner and respondent No. 3 only. 2. The suit for partition was instituted in the Court of learned Assistant District Judge, Jorhat being T.S. No. 68/77. The prayer in the suit was as follows:-- (a) the Defendant No. 1 be directed to render a true and faithful account of the dealings with joint family proportion including the Cinown business known as Jyoti Cinown since 28.11.1969 on which Mohan Singh died and payment to the plaintiffs their shares in the sumo found due upon taking of the accounts; (b) partition of the joint family properties inherited from late Surjan Singh and then from late Mohan Singh and into Jagadish Singh by mates and bounds in accordance with the shares of the portion and allotment to the plaintiffs of the shares in severally; (c) deliver khas possession of the plaintiffs share in the proportion by evicting the defendants therefrom; (d) decree the sums due to the plaintiffs against the defendants; (e) Cost of the suit against the defendants; and (f) any other relief deemed just and equitable. 3. In the partition suit, the plaintiffs claimed 2/3rd share of the suit land and immovable properties comprising about 18 Bighas of land and also a Cinema House known as Jyoti Cinema. The defendants contested the suit and the learned trial Court decreed the suit vide judgment and decree dated 20.01.1989 with the following order:-- Suit is decreed on contest with cost against the defendants. It is directed to make partition of the suit properties left by late Sardar Sujan Singh after his death equally in between the plaintiffs on the one hand and defendant No. 1 on the other hand taking into account of the landed properties sold by both the parties as alleged and defendant No. 1 is directed to render a true and proper accounts of the joint family properties of the parties including the Jyoti Cinema Hall since 28.11.1969, date of death of Sardar Mohan Singh, and to make payment of the amount due to the plaintiffs after proper accounting. It is also directed to appoint a Receiver of the joint family properties till the parties and till possession of respective share is delivered to the parties. It is also directed to appoint a Receiver of the joint family properties till the parties and till possession of respective share is delivered to the parties. Thus the suit is disposed of on contest with costs. 4. The aforesaid decree was put to execution in T. Ex. Case No. 03/1989. By Annexure-C order dated 08.12.1998, the Executing Court directed the parties to take steps before the Collector of the District for early disposal of the partition matter as per the terms of the decree. The Collector by its judgment and order dated 12.11.2001, discussing the matter in its entirety, determined the respective shares of the parties in terms of which the petitioner is liable to pay the decretal amount which according to the petitioner leads to his deprivation of his entitled share and as a result out of 18 Bighas of land, the petitioner was given only 2 Katha 16 Lecha and the rest was given to the respondent No. 3. 5. Being aggrieved by the said order dated 12.1.2001, the petitioner approached the Assam Board of Revenue by filing Revenue Appeal (Jorhat) No. 09/2002. The appeal having been dismissed vide judgment and order dated 12.08.2003, he filed the instant writ petition questioning the Role of the Collector, which according to the petitioner is hit by the provisions of Section 54 and Order XX, Rule 18 of the CPC. 6. I have heard Mr. D. Mazumdar, learned counsel for the petitioner and so also Mr. D. Baruah, learned counsel representing the respondent No. 3. I have also gone through the entire materials on record, including the LCR My findings and conclusion are as follows. 7. In the suit, the following were the issues:-- 1. Whether the properties mentioned in the Schedule 'B' and 'C' of the plaint belong to late S. Sujan Singh and whether the same devolved on his 3 sons i.e. Mohan Singh, Amarjit Singh and Jagadish Singh and his wife Smti Bichan Kaur? 2. Whether there was any gift in favour of any of the sons in respect of any of his properties absolutely; if so, what is the part of properties so gifted or transferred at all? 3. Whether the defendant No. 1 after the death of S. Sujan Singh and Mohan Singh acts as Kar (Manager) for and on behalf of the Plaintiffs and the Defendants? 4. 3. Whether the defendant No. 1 after the death of S. Sujan Singh and Mohan Singh acts as Kar (Manager) for and on behalf of the Plaintiffs and the Defendants? 4. Whether the business known as Jyoti Cinema landed properties, the houses as described in the plaint were managed by Defendant No. 1 and whether Rs. 500/- was paid per month for maintenance of the plaintiffs from out of the income of the properties in his hands? 5. Whether mutation allotting shares to the minor to the exclusion of the plaintiff No. 1 is valid in law? 6. Whether the partition case mentioned in the Jamabandi was with the knowledge and consent of the plaintiffs and whether the same can be binding on the plaintiffs? 7. Whether it was proper for defendant No. 2 to describe herself as natural guardian of plaintiffs 2 to 4? 8. Whether Defendant No. 2 by her application dated 09.09.1974 wanted the entire building in a part of which the present plaintiffs reside to be mutated in her name in the record of Municipal Board? 9. Whether Defendant No. 1 and 2 rendered any accounts of the business and properties involved in the suit to the plaintiffs? 10. Whether Defendant No. 1 and 2 tried their best to exclude the plaintiffs from their legitimate shares in the business and the properties inherited by late Mohan Singh from his father? 11. Whether the plaintiffs are entitled to 2/3rd share of the properties in the suit? 12. Whether on taking proper accounts, the plaintiffs are entitled to a decree for Rs. 60,000/-? 13. Whether it will be just and proper to appoint a Receiver for the suit properties till the same is properly divided and possession delivered? 15. Whether the plaintiffs have disposed any of the suit property during the pendency of the suit? Additional Issues:-- 1. Whether the plaintiffs and the defendants inherited the share of late Bishan Kaur also if so, to what extent? 2. Whether each of the plaintiffs and the defendants on any one of them is/are excluded from the said inheritance? 3. Whether the parties hereto are entitled to their respective share and to khas possession thereof? 8. While decreeing the suit, the learned trial Court answered the Issue Nos. 2. Whether each of the plaintiffs and the defendants on any one of them is/are excluded from the said inheritance? 3. Whether the parties hereto are entitled to their respective share and to khas possession thereof? 8. While decreeing the suit, the learned trial Court answered the Issue Nos. 9, 11, 12, 14 and 15, as follows:-- Issue No. 9 and 12: It appears from the evidence of the record that defendant No. 1 and 2 rendered no accounts of the properties including the business involved in this suit to the plaintiffs and defendants appear to have never though of it. Plaintiffs' claims Rs. 60,000/- as to be their due taking proper accounts of the income from the properties. But without taking proper accounts of all the properties left by S. Sujan Singh it cannot be ascertained what be the amount due to the plaintiffs. So plaintiffs claim to be entitled to Rs. 60,000/- cannot be accepted at this stage. Thus these issues are answered negative. Issue No. 11: Plaintiffs claim that 2/3rd of the properties left by late S. Sujan Singh is due to them. But from the evidence of the record it is clear that late S. Sujan Singh left behind after his death his wife, three sons and one daughter, Daughter was given her due share at the time of her marriage and she is not contesting the suit. Son S. Jagajit Singh died unmarried leaving nobody as his successor. Son Mohan Singh died leaving the plaintiffs. The wife of late S. Sujan Singh defendant No. 2 died leaving behind the plaintiffs and defendant No. 1. Thus naturally the properties left by S. Sujan Singh will devolved on the plaintiffs and defendant No. 1 i.e. there will be two equal parts of the properties and business of the late S. Sujan Singh. One part will go to the defendants of Mohan Singh (Plaintiffs) and the other part will go to defendant No. 1 Amarjit Singh. Thus, it is clear that plaintiff will get half share of the whole properties including the business left by S. Sujan Singh, not 2/3rd of the properties and that parties are entitled to their respective share (half of the properties) and to khas possession. Thus this issue is also answered in affirmative but not to the extent as claimed. Thus, it is clear that plaintiff will get half share of the whole properties including the business left by S. Sujan Singh, not 2/3rd of the properties and that parties are entitled to their respective share (half of the properties) and to khas possession. Thus this issue is also answered in affirmative but not to the extent as claimed. Issue No. 15: Selling of some of the common property by plaintiff No. 1 is denied by the plaintiffs but deposition of Sub-Registrar, Jorhat, defence Witness No. 2 asserts that two plots of land, 11 lechas and 2 kathas, were sold by the plaintiffs but not definite whether these were common properties. However, this issue is left to the receiver for decision at the time of division as cannot be ascertained whether common properties were sold. Issue No. 14: From the decision and discussion as discussed and as decided above it is held that Plaintiffs are entitled to half of the properties including the businesses left by S. Sujan Singh after his death and also entitled to an amounts due to them after proper accounts of the income from the business including the businesses of Jyoti Cinema Hall by a person suitable to the plaintiffs since the death of Mohan Singh on 28.11.1969. Decreeing the suit on contest with cost against the defendants, the learned trial Court passed the following order:-- Suit is decreed on contest with cost against the defendants. It is directed to make partition of the suit properties left by late Sardar Sujan Singh after his death equally in between the plaintiffs on the one hand and defendant No. 1 on the other hand taking into account of the landed properties sold by both the parties as alleged and defendant No. 1 is directed to render a true and proper accounts of the joint family properties of the parties including the Jyoti Cinema Hall since 28.11.1969, date of death of Sardar Mohan Singh, and to make payment of the amount due to the plaintiffs after proper accounting. It is also directed to appoint a Receiver of the joint family properties till the parties and till possession of respective share is delivered to the parties. Thus the suit is disposed of on contest with costs. The Executing Court vide its letter dated 08.12.1998 passed in Misc. It is also directed to appoint a Receiver of the joint family properties till the parties and till possession of respective share is delivered to the parties. Thus the suit is disposed of on contest with costs. The Executing Court vide its letter dated 08.12.1998 passed in Misc. (J) Case No. 2/1997 directed the parties to take steps before the Collector of the District for early disposal of the partition matter as per terms of the decree. While providing for the same, the Executing Court took note of all the relevant aspects of the matter and made the following direction:-- In execution of the first parties it has already been directed by order dated 28.01.1991 to send the relevant papers to the collector of the District for partition and it was practically sent on 09.01.1992 to the Collector for partition. This executing Court has nothing to do at present with the partition of the suit property. The opposite party/decree holder is therefore directed to submit all their claims as filed on this Misc. Case 22/97 arising out of T. Ex. 3/89 before the Collector of the District for adjudication. The petitioner/J.D. also can submit his respective claim before the Collector for partition. In execution of the 2nd party of the decree this executing Court to appoint a receiver for the entire suit property and to handover possession of the same to the appointed receiver to act as per direction of the Court as an officer of the Court. Now it is seen that in execution of the 2nd part the Court has already appointed a receiver as per decree by order dated 28.01.1991 in T. Ex. 3/89/Misc. 11/91. But by order dated 28.01.91 the Decree holder Piary Kaur was appointed receiver of the suit property in respect of the "Jyoti Cinema" only. By order dated 10.10.1996 if the said Receiver was appointed as receiver for the entire property there appears to be no illegality or irregularity such order shall be as per decree of the Court passed on 20.01.89 in T.S. 68/77. As such the Decree Holder Smt. Piary Kaur appears to be the Receiver of the entire suit property with effect from the date she was handed over possession of the entire suit property as shown in the Schedule of the warrant to the Bailiff dated 10.10.1996. As such the Decree Holder Smt. Piary Kaur appears to be the Receiver of the entire suit property with effect from the date she was handed over possession of the entire suit property as shown in the Schedule of the warrant to the Bailiff dated 10.10.1996. The Decree Holder Piary Kaur is not Holding the suit property as absolute owner as appears to be in the warrant to the Bailiff of the Court. The Decree Holder, Piary Kaur therefore shall act as Receiver of the suit property and shall have to perform all other duties under Order XL, Rule 3 of the CPC for the benefit of both the parties to the suit. She will have to see for development and protection of the suit property and maintain proper account in respect of the suit property from the date of the taking over charge and possession of the suit property. 9. After the aforesaid order of the Executing Court, the Collector by its order dated 12.1.2001, made the apportionment of the property as indicated therein which according to the petitioner is not tenable in law in terms of the aforesaid provisions of the CPC. The Assam Board of Revenue by its impugned Judgment and order dated 12.08.2003, passed in case No. 9 RS(J)/2002, having dismissed the appeal, the petitioner invoke the writ jurisdiction of this Court by filing the instant writ petition. 10. Pursuant to the direction vide order dated 08.12.1998 in Misc. (J) Case No. 22/1997, the parties to the suit put their claims and counter-claims before the Additional District Collector, Jorhat. The learned Revenue Board, narrating the facts in detail had dismissed the appeal. As noticed in the impugned judgment and order, after a series of appeal etc. the petitioner filed another petition before the learned Additional District Judge, Jorhat. The said petition was also dismissed by order dated 10.10.1996 with a cost of Rs. 1000/- for undue harassment to the respondent. Aggrieved by the said order, the petitioner had filed Civil Revision Petition No. 413/1996 before this Court, which was also dismissed with cost. Being not contend with the same, the petitioner again filed a suit being T.S. No. 60/1995 for declaration that the judgment and decree dated 20.01.1989 passed in T.S. No. 68/1977 was obtained by fraud. The suit was dismissed by order dated 10.09.1996 with penalty of Rs. 1125/-. 11. Being not contend with the same, the petitioner again filed a suit being T.S. No. 60/1995 for declaration that the judgment and decree dated 20.01.1989 passed in T.S. No. 68/1977 was obtained by fraud. The suit was dismissed by order dated 10.09.1996 with penalty of Rs. 1125/-. 11. After the aforesaid developments the petitioner again filed a petition before the learned Civil Judge, Senior Division, Jorhat, which was also dismissed by order dated 08.12.1998. By the said order, direction was issued for taking up the matter by the District Collector for partition of the joint family property between the parries and also to adjudicate the claims and counterclaims. Being aggrieved by the said order, the petitioner filed another Civil Revision Petition being CRP No. 102/1989 before this Court. The said petition was also dismissed. 12. According to the learned counsel for the petitioner, the Additional Deputy Collector, Jorhat, has gone beyond the decree while passing the impugned order. According to him, the respondent No. 3 has been given more share than what she is entitled to. Referring to the aforesaid provisions of CPC, Mr. Mazumdar, learned counsel for the petitioner submitted that the Collector acted beyond his jurisdiction in passing the impugned order. 13. Mr. Baruah, learned counsel for the respondent No. 3 on the other hand, submitted that since the Civil Court directed the Collector to partition the suit property, the Additional District Collector was within his power and jurisdiction, partitioned the suit property. According to him, the respondent had to sale some of the properties as the petitioner when he was as the caretaker did not pay the land revenue and Municipal Tax in respect of the suit property. 14. What is significant to note is that while decreeing the suit being T.S. No. 68/77 by the learned Additional District judge, Jorhat on 20.01.1989, direction was issued to make partition of the suit properly left by the predecessor in interest equally between the plaintiff and defendants, taking into account the landed properties sold by both the parties. The said judgment and decree has attained finality having upheld by the appellate Court. Thereafter, the Court by its order dated 08.12.1998, passed in Misc. (J) Case No. 22/1997, directed the parties to submit all the claims arising out of T. Ex. Case No. 03/1989 before the Collector of the District. The said judgment and decree has attained finality having upheld by the appellate Court. Thereafter, the Court by its order dated 08.12.1998, passed in Misc. (J) Case No. 22/1997, directed the parties to submit all the claims arising out of T. Ex. Case No. 03/1989 before the Collector of the District. Claims and counter-claims were filed by both the parties before the Additional District Collector, Jorhat, who after appropriate adjudication of the claims and counter-claims, came to the findings that the respondent was entitled to the amount mentioned therein. Time limit of 90 days was provided to pay the amount. It is on record that the respondent herein sold out some of the properties in order to maintain the Jyoti Cinema Hall when she took over the same as the owner. 15. The Additional District Collector, Jorhat has mentioned in his impugned order that valuation of the suit property was done as per the valuation assessed by the Registered Government Valuer, Government of India as the petitioner could not produce any acceptable value of the property to the contrary the Additional District Collector accepted the said valuation assessed by the Registered Government Valuer. In that view of the matter, it cannot be said that the order dated 12.11.2001, passed by the Additional District Collector, Jorhat is illegal and without jurisdiction. From the sequence of events narrated above, it appears that the petitioner has considerably delayed the matter. 16. Much has been emphasized on Section 54 and Order XX, Rule 18, CPC. As per Section 54, 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 estates. Order XX, Rule 18 Provides that "where the Court passes a decree for the partition of property or for the separate possession of a share therein, then-- (i) if and in so far 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 gazette subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54; (ii) if and in so far 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. 17. According to the petitioner, the Collector in exercise of his power under the said provision could not have taken into consideration the movable property i.e. the income from family business and also thereby adjusted the claim of respondent against 50% share of petitioner in the suit land as decreed by the Civil Court. The learned counsel for the petitioner has also referred to Order XXVI, Rules 13 and 14 of CPC, which reads as follows:-- 13. Commission to make partition of immovable property.--Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights ass declared in such decree. 14. Procedure of Commissioner.--(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. (3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit. 18. In support of the submission, Mr. Mazumdar, learned counsel for the petitioner, has placed reliance on two decisions, reported in AIR 1945 Mad 336 , (Shree Rajah Mantripragada Venkataraghava Rao Bahadur Zamindar Garu and others v. Sri Rajah Mantripragada Venkata Hanumantha Rao Bahadur Zamindar Garu (deceased) and others) and AIR 1985 Kant 82, (Ramagonda Rudregowda Patil and others v. Smt. Lagmarva and others). 19. The decisions have been referred to so as to submit that the Collector cannot go beyond the decree. In the instant case, what the Collector has done is in terms of the decree passed in the suit and the order of the Executing Court and not beyond that. The suit was for accounts, partition, Khas possession and for delivery of amount dues. As to what were the issues and the findings thereof and the eventual order of the learned trial Court has been noted above. The said judgment and decree has attained its finality. The Collector while passing the impugned order took note of all the attending facts and circumstances and the directions contained in the judgment and decree and also in the order of the Executing Court. This being the position, it cannot be said to be a case of making any deviation from the judgment and decree passed by the learned trial Court. 20. As per Section 54 of the CPC, the collector shall make the separation in accordance with law. The Collector having passed the order in terms of. This being the position, it cannot be said to be a case of making any deviation from the judgment and decree passed by the learned trial Court. 20. As per Section 54 of the CPC, the collector shall make the separation in accordance with law. The Collector having passed the order in terms of. the decree passed by the learned trial Court and the order of the Executing Court, it cannot be said to be a case of violation of the provisions of Section 54 of CPC. In the instant case, the Collector acted in reference to the decree and the order of the Executing Court determining the rights of the parties. Rules 13 and 14 of Order XXVI provides for commission to make partition of immovable property and the procedure thereof. The Collector having passed the order according to the rights as declared in the decree and having allotted the respective shares of the suit properties to the parties, there is no infirmity in the jurisdiction exercised by the ADC. The learned Board of Revenue has discussed the matter in detail and having attained at the particular finding based on facts and law, this Court exercising its jurisdiction under Article 226 of the Constitution of India, cannot set at naught the said findings, which upon independent evaluation found to be within jurisdictional ambit and scope of the decree and the order of the Executing Court referred to above. 21. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly, it is dismissed with vacation of the interim order that was passed on 01.10.2003. 22. Parties are directed to bear their own cost. Registry shall send down the LCR along with the copy of this judgment and order.