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2018 DIGILAW 1271 (RAJ)

Mohanlal Balai v. Pannaram Balai

2018-05-14

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT Sanjeev Prakash Sharma, J. - Both the writ petitions are being decided by this common order as the parties are common and the question involved is also common. 2. The first writ petition relates to challenge to the preliminary decree of partition passed by the learned trial court which was challenged by the petitioner before the learned Revenue Appellate Authority and then before the learned Board of Revenue. Both the courts below have rejected contention of the petitioner. 3. Similarly, the appeal against the final decree under challenge in the second writ petition also met the same fate. 4. The facts which require to be noted are that a preliminary decree was passed on 30/08/2002 on the basis of a compromise arrived at between the parties. The compromise was attested before the Court. One of the co-tenant Kana Ram was not present, who however, moved an application under Order 1 Rule 10 CPC and taking note of the contents of the application, wherein he supported the settlement, the preliminary decree was passed. 5. It appears that on account of death of the plaintiff as well as defendant no.1 an amended preliminary decree was passed on 30/04/2008 on the basis of the said compromise itself and thereafter final decree of partition was also passed in compliance of the compromise arrived at between the parties. 6. Learned counsel for the petitioner challenges the same stating that the signatures of father of the petitioner were forged and the settlement was not properly attested as all the parties had not signed the same. The Revenue Appellate Authority has rejected the contention of the petitioner on both the counts. Taking note of the Kana Ram application moved under Order 1 Rule 10 CPC, as noted above, it has reached to the conclusion that the preliminary decree was passed on the basis of a compromise which cannot be objected to. 7. As regards the final decree, counsel for the petitioner submits that in terms of Order 20 Rule 18 CPC and in view of the objections raised by the petitioners, the matter should have been referred to the concerned Tehsildar for division of the property by meets and bounds. The same was in view of Section 54 CPC. Section 54 CPC reads as under:- "54. The same was in view of Section 54 CPC. Section 54 CPC reads as under:- "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 estates." 8. It is submitted that the procedure has not been followed for passing the final decree. 9. Per-contra, learned counsel for the respondents submits that the appeal itself was not maintainable against the preliminary decree which was a consent decree in view of the bar contained under Section 96(3) and therefore, the appeal was even otherwise not maintainable. While supporting the order passed by the Revenue Appellate Authority and the Board of Revenue, learned counsel also points out that while the preliminary decree was passed on 30/08/2002 and the final decree was passed on 22/08/2008, the petitioner preferred appeal before the Revenue Appellate Authority on 15/09/2015 and the same was highly belated and suffered from latches. The Revenue Appellate Authority has taken note of the contention and has rightly rejected appeal of the petitioner on limitation too. The contention of the petitioner with regard to Order 20 Rule 18 CPC, which provides as under:- "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." 10. Accordingly, he submits that since the decree was a compromise decree, the partition would be in accordance with the compromise and not in terms of Section 54 CPC. 11. Having noted the submissions, this Court finds that the appellate authority, while passing the preliminary decree, has taken into its consideration the fact that all the parties to the partition suit were present before the Court and the compromise was attested in the Court and therefore, it cannot be said that father of the petitioner had not signed the consent settlement. 12. As regards Mr. Kana Ram, who had not originally attested the settlement, submitted an application before the Court accepting the settlement. The said fact was also noted by the Revenue Appellate Authority and the preliminary decree has been upheld. 13. Thus, all the contentions, which are essentially factual in nature, have been taken into consideration while passing the order in appeal by the Revenue Appellate Authority. The Board of Revenue in second appeal has also taken into consideration the aforesaid aspect and upheld the preliminary decree. 14. As regards the final decree, this Court finds that the final decree was required to be in terms of the preliminary decree taking into consideration the fact that there was a compromise on record and thus, in the light of the compromise, the contentions of the petitioner that the rights of several parties were to be declared independent of the compromise, are not made out. The contention of the petitioner of implementing Order 20 Rule 18 CPC in light of the compromise arrived at between the parties, is not made out. Once the parties have accepted to divide or accept their share by means and wounds in terms of the compromise, there is no occasion for declaring independently of the said compromise the rights of the parties by referring the matter to the Collector. In the circumstances, the contention of the petitioner regarding final decree cannot be substantiated and the same is rejected. 15. In the circumstances, the contention of the petitioner regarding final decree cannot be substantiated and the same is rejected. 15. The other contention raised by learned counsel for the respondents regarding maintainability of the appeal in terms of Section 96(3) CPC is concerned, since the objection was not taken at the appellate stage or before the Board of Revenue, the same does not require consideration at this stage. 16. Taking into consideration the limited scope available with this Court under Article 226 & 227 of the Constitution of India, keeping in view the observations made by the Supreme Court in the case of Raj Kumar Bhatia Vs. Subhash Chander Bhatia : 2017(14) SCALE 355 , this Court does not find any reason to warrant interference with the judgment passed by the Court below. 17. Consequently, both the writ petitions are accordingly dismissed.