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Tripura High Court · body

2016 DIGILAW 14 (TRI)

Nitish Ranjan Debroy v. Subrata Chatterjee

2016-01-22

S.C.DAS

body2016
JUDGMENT : This is a petition under Article 227 of the Constitution of India seeking quashing of order dated 26.03.2015 passed by learned Civil Judge, Senior Division, Kailashahar, under Unakoti Judicial District passed in Case No.T.S. 06 of 1986. 2. Lower Court records received. 3. Heard learned senior counsel, Mr. A. K. Bhowmik, assisted by learned counsel, Mr. R. Datta for the petitioners and learned counsel, Mr. G. K. Nama on behalf of respondent Nos.1 to 4 and learned counsel, Mr. D.C. Roy on behalf of respondent No.5. 4. Undisputed rather admitted facts are that T.S. No.06 of 1986(a suit for partition) instituted by predecessor of respondent Nos.1 to 4 against the predecessors of the present petitioners, was decreed by judgment and decree dated 16.09.1999 passed by learned Civil Judge, Senior Division, Kailashahar, North Tripura. The operative part of the judgment, which was reflected in the decree, reads as follows:- “6. In view of the discussion made above, I am of the opinion that T.S. 10/84 should be dismissed on contest without cost and T.S. 6/86 should be decreed in favour of Dipankan Chatterjee and others for partition of the shares came to them by Ext. ‘D’ to the extent to the share of Sakhila Khatun, Islam Haji Sukkur, Baby Sukkur and Sabi Sukkur i.e. Dipankar Chatterjee & others are entitled to get 4687/100000 + 10938/100000 + 5469/100000 + 5468/100000 portion in the suit land. Hence T.S. 10/84 brought by Nishi Rn. Deb Roy is dismissed on contest without cost and T.S. 6/86 brought by Dipankar Chatterjee and others is decreed and t he plaintiffs Dipankar Chatterjee and others are entitled to get 4687/100000 + 10938/100000 + 5469/100000 + 5468/100000 portion in the suit land and Minaz Haji Sukkur is entitled to 10938/100000 portion in the suit land and the parties are to make amicable partition within 60 days from the date of preliminary decree. Prepare preliminary decree accordingly. If the parties fail to cause amicable partition in terms of preliminary decree within the stipulated time given above, survey commissioner will be appointed on the prayer of either party to cause partition in terms of preliminary decree. On receipt of report of survey commissioner final decree will be prepared.” 5. The appeal filed by the defendants was dismissed by the first appellate Court. The second appeal filed by the defendants was also dismissed. On receipt of report of survey commissioner final decree will be prepared.” 5. The appeal filed by the defendants was dismissed by the first appellate Court. The second appeal filed by the defendants was also dismissed. The judgment and decree passed by the trial Court reached finality. The parties to the suit could not make partition of the property in terms of the preliminary decree. 6. It is also an undisputed rather admitted position that during pendency of the first appeal, Nishi Ranjan Debroy, the sole defendant died. The plaintiffs on 08.01.2007 filed an application before the trial Court under Order 1 Rule 10 of CPC praying for adding the legal heirs of Nishi Ranjan Debroy, i.e., the present petitioners, as party in the suit in place of Nishi Ranjan Debroy. Thereafter on 12.02.2007 Minaz Haji Sukkur, respondent No.5 herein, filed an application for passing final decree and the trial Court fixed both the petitions for order on a subsequent date. On 28.02.2007 another application was filed by the plaintiffs under Order 20 Rule 18 of CPC. All those petitions were taken up for order on 20.03.2007. 7. By order dated 20.03.2007 the Court directed substitution of legal representatives as per petition filed under Order 1 Rule 10(2) of CPC and at the same time allowed the petition filed under Order 20 Rule 18 read with Sections 54 and 151 of CPC and directed execution of the decree through the Collector of North Tripura District, Kailashahar. On 24.03.2015 the present petitioners filed an application before the learned Civil Judge, Senior Division, i.e. the trial Court, praying for recalling order dated 20.03.2007 on the ground that they were not heard while passing the order and that the decree should be executed as per the observation/direction of the trial Court in the decree i.e. by appointing a survey commissioner and not through the Collector of the District. By impugned order dated 26.03.2015 the trial Court rejected that application filed by the present petitioners and hence, this revisional application. 8. Learned senior counsel, Mr. By impugned order dated 26.03.2015 the trial Court rejected that application filed by the present petitioners and hence, this revisional application. 8. Learned senior counsel, Mr. Bhowmik argued that in the year 2007, i.e., on the date of passing of the order dated 20.03.2007, first appeal filed by the predecessor of the present petitioners was pending before the appellate Court and order dated 20.03.2007 itself shows that the predecessor of the petitioners died during pendency of the appeal and the petitioners were not substituted and no notice was served on them. The petitioners who stepped to the shoes of their father got a right to be heard and that has been curtailed by the trial Court. No notice was served on them after they were substituted by order dated 20.03.2007 and the trial Court passed a composite order directing substitution as well as allowing petition under order 20 Rule 18 read with Section 54 of CPC. Since the petitioners were not heard, that order cannot be enforced. 9. The second submission made by learned senior counsel, Mr. Bhowmik is that there was a specific direction in the preliminary decree that if the parties fail to cause amicable partition within the stipulated 60 days as fixed in the preliminary decree, survey commissioner should be appointed on the prayer of either of the party and on receipt of the report of the survey commissioner final decree should be prepared. While that decree has got finality, the trial Court now cannot give a different direction to execute the decree through the Collector of the District. 10. Learned counsel, Mr.Nama and Mr.Roy have submitted that the petitioners are the legal heirs of sole defendant, Nishi Ranjan Debroy and they were already on record after the death of Nishi Ranjan Debroy during pendency of the first appeal. So, they have knowledge about the order passed by the trial Court and so, there is no infirmity in the order. It is also argued by learned counsel for the respondents that by preliminary decree the trial Court decided the right of parties to the suit in respect of their shares to the property and the mode of execution is to be decided by the trial Court to its convenience and that in no way amount to change of the preliminary decree. 11. 11. A careful examination of the lower Court records show that on 20.03.2007, i.e., the date of passing the impugned order directing substitution of the legal representatives of deceased defendant, Nishi Ranjan Debroy and directing execution of the decree through Collector, North Tripura District was passed in absence of the present petitioners. The impugned order of the trial Court dated 20.03.2007 itself shows that by the same order Court allowed substitution of deceased Nishi Ranjan Debroy by the present petitioners, who are the legal heirs of Nishi Ranjan Debroy and as per that order the names of the petitioners were incorporated as defendants in the plaint. After substitution no notice was sent to the petitioners. However, by the same order the petition filed under Order 20 Rule 18 read with Section 54 of CPC was disposed of. So, it is evident that the said petition was disposed of without hearing the petitioners, i.e., the defendants, and, therefore, order dated 20.03.2007 cannot stand in the eye of law. 12. The next argument advanced by learned senior counsel, Mr. Bhowmik is that while passing final decree the trial Court cannot go beyond the preliminary decree, which was affirmed by the appellate Court and in the second appeal by the High Court. It is apparent that on 20.03.2007 the first appeal filed against the decree was not disposed of. Second appeal was disposed of much later. 13. The question is whether the trial Court can pass any order in respect of mode of execution of the partition decree while passing final decree? This Court is of considered opinion that by a preliminary decree in a partition suit a trial Court is required to decide the right of the parties in respect of their shares to the property in dispute and the question of mode of execution does not require to be mentioned in the preliminary decree itself since it will come later on. However, there is no bar if such a mention is made. However, there is no bar if such a mention is made. What is required by law is that the trial Court will decide the share of the parties to the suit property and direct partition between the parties as per the share determined amicably within a specific time frame and if the parties fail to make amicable partition in terms of the decision of the Court regarding their share, either on the application of the parties to the suit or the Court suo moto may pass a final decree. A partition suit is to be treated as pending till the final decree is passed by the Court for decision of the Court. 14. The Supreme Court in the case of Shub Karan Bubna @ Shub Karan V. Sita Saran Bubna & ors., reported in (2009) 9 SCC 689 , has observed that partition by metes and bounds is a ministerial or administrative act requiring physical inspection, measurement, calculation etc., whereas determination of share of the parties to the property is a judicial decision which is the vital part of preliminary decree. In para 7 of the judgment the Court held thus :- “7. In a suit for partition or separation of a share, the prayer is not only for declaration of the plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds? In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject-matter of the final decree under Rule 18(2).” 15. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject-matter of the final decree under Rule 18(2).” 15. I have quoted hereinbefore the operative part of judgment passed by the trial Court and following that part decree was prepared. A bare reading of the judgment and decree clearly show that the Court decided the share of the parties and directed preparation of preliminary decree and also directed the parties to have amicable partition in terms of the decree within sixty days. Thereafter in the last paragraph the trial Court observed that if the parties fail to cause amicable partition then a survey commissioner will be appointed and taking into account the report of the survey commissioner final decree will be passed. This part of the judgment and decree of the trial Court, in my considered opinion, is the option of the trial Court/executing Court while making execution of the decree. The vital part of the decree is the decision of the Court in respect of particular share of the parties to the property and that part cannot be changed while passing the final decree by the trial Court and by the executing Court. Mode of execution may be different, but must be according to law. A decree of partition may be executed either appointing a survey commissioner or through Collector if it is a revenue paying estate. Admittedly, the subject matter of the suit is a tea estate for which partition has been sought. 16. Section 54 of CPC prescribes thus:- “54. Partition of estate or separation of shares 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.” 17. Order 20 Rule 18 of CPC prescribes thus:- “18. Order 20 Rule 18 of CPC prescribes thus:- “18. 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 a share therein, then, - (1) 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 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 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.” 18. There is nothing wrong if a trial Court or a Court to which a partition decree is sent for execution decide to execute the decree through Collector of the District if it is a revenue paying estate. The Supreme Court in the case of Shub Karan Bubna (supra) considering various previous judgments of that Court in para 18 (18.1 and 18.3) has observed thus:- “18.1. In regard to estates assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of government in regard to revenue. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible.) Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby. .......... ........... .......... ............ .......... ............ ....... 18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.” 19. The suit property is a revenue paying estate. So, while passing final decree if the trial Court and/or execution Court passes any direction to the Collector to execute the decree in terms of the share determined by the Court in preliminary decree, which got finality, I find nothing wrong and it cannot be termed that the preliminary decree thereby has been changed. So, while passing final decree if the trial Court and/or execution Court passes any direction to the Collector to execute the decree in terms of the share determined by the Court in preliminary decree, which got finality, I find nothing wrong and it cannot be termed that the preliminary decree thereby has been changed. Mere observation of the trial Court in the judgment and preliminary decree that in case of failure of the parties to have an amicable partition within a specific time a survey commissioner should be appointed and in terms of the report of the survey commissioner final decree shall be passed, cannot be a embargo for the trial Court and/or execution Court in directing another mode of execution of the decree in its finality according to law. 20. Order dated 20.03.2007 since was passed in absentia of the petitioners (defendants), who were supposed to be arrayed as defendants in the suit in view of the petition filed by the plaintiffs, cannot stand in the eye of law and so, the trial Court would allow the petition filed by the petitioners and recall that order as prayed by the petitioners and would pass an appropriate order after hearing both side. 21. Accordingly, in view of the discussions made above, both orders dated 20.03.2007 and 26.03.2015 are set aside. The parties are directed to appear before the trial Court on 22.02.2016. On that day the trial Court shall pass appropriate order on the petition filed by Minaz Haji Sukkur for final decree and the petition filed by the plaintiffs under Order 20 Rule 18 read with Section 54 of CPC. 22. The revisional application accordingly, stands disposed of. 23. Send back the lower Court records along with a copy of this judgment.