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Madhya Pradesh High Court

Lalsingh vs The State Of Madhya Pradesh on 27 March, 2018

          THE HIGH COURT OF MADHYA PRADESH
                      W.P. No. 18069/2017
     Lalsingh Bhilala & others. V/s. State of M.P. & another.
1
Indore, dated : 27.03.2018
             Shri A.S. Garg, learned senior counsel with Shri
Ms. Megha Jain, learned counsel for the petitioners.
             Shri Rahul Sethi, learned counsel for the
respondent No.1, State.
             None for the respondent No.2 though duly
served.
             With consent, heard finally.
                          ORDER

The petitioners have filed the present petition being aggrieved by order dated 3.10.2017 passed by Sub Divisional Officer (SDO), Barwani, by which, the learned SDO has stayed the order dated 31.8.2017 passed by the Tehsildar.

2. Facts of the case, in short, are that the petitioners had filed a suit for partition in respect of some agricultural land belonging to their family against the respondent No.2. Vide judgment and decree dated 23.11.1994, the suit was dismissed. Thereafter, the present petitioners filed first appeal before the Additional District Judge, Barwani. Vide judgment and decree dated 23.7.1998, the learned first appellate Court allowed the appeal and decreed the suit declaring that the appellant and defendant No.1 are entitled for 1/6th share in the suit property and the plaintiff is also entitled for possession of his share after the partition and THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

held that for purposes of partition, the case be sent to Collector, Barwani. Thereafter, the defendants preferred S.A. No.384/1998 before this Court and this Court vide judgment dated 14.8.2013 dismissed the said second appeal, meaning thereby that the judgment and decree passed by the learned first appellate Court has attained finality.

3. Thereafter, the petitioners filed an application before the Collector, Barwani for partition and possession in compliance of the judgment and decree passed by the first appellate Court. The Tehsildar vide order dated 2.6.2014 directed the Revenue Inspector and Halka Patwari, Gram Pendra to divide the land bearing Survey No.21/3, 25, 42 and 45 on the spot in six equal parts.

4. Thereafter, petitioners made a complaint to the Collector on 22.9.2015 that the revenue authorities are not complying with the order of District Court as well as of the High Court, therefore, the possession of the land be handed over to them and mutation be also done in their favour. The Tehsildar, Barwani vide letter dated 31.5.2016 informed the SDO that the partition was done u/s. 178 of the M.P. Land Revenue Code (MPLRC), therefore, the possession cannot be granted u/s. 38 of the MPLRC. Thereafter, vide order dated 31.8.2017, Tehsildar Barwani allowed the application u/s. 38 of the MPLRC and directed the Revenue Inspector to issue a letter for handing over the possession to the plaintiff.

THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

Being aggrieved by the aforesaid, the respondent No.2 filed an appeal before the SDO, who has entertained the appeal and granted stay in favour of respondent No.2. Hence, the present petition before this Court.

5. Shri Garg, learned senior counsel appearing for the petitioners, submits that the appeal before the SDO is not maintainable against the order passed by the Tehsildar. The Tehsildar has passed the order in compliance of the judgment and decree passed by the learned first appellate Court and affirmed by the High Court. The order of partition has already been passed on 2.6.2014 and partition-deed has been prepared on 7.1.2016, therefore, the Tehsildar has not committed any error while passing the order u/s. 38 of the MPLRC, hence the impugned order dated 3.10.2017 is liable to be set aside and the respondent No.1 be directed to comply with the order passed by the learned first appellate Court.

6. Shri Sethi, learned counsel appearing for respondent No.1 submits that the petitioner has preferred an application u/s. 38 of the MPLRC, which has been decided vide order dated 31.8.2017, therefore, the SDO has rightly entertained the appeal u/s. 44 of the MPRC and hence, the petition deserves to be dismissed.

7. I have heard the learned counsel for the parties and perused the record.

THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

8. The petitioner/plaintiffs filed the civil suit claiming 1/6th share in the suit property. Vide judgment and decree dated 23.11.1994, the suit was dismissed. Thereafter, the appeal preferred by the petitionesr/plaintiffs was allowed and the decree was passed in his favour granting 1/6 th share and it was held that the plaintiff as well as the defendants are entitled to take possession of their respective share.

9. The first appellate Court has passed the preliminary decree and directed the parties to apply for execution before the Collector, Barwani for the purposes of partition. Since the entire land is an agricultural land, therefore, the provisions of Order 20 Rule 18 of the C.P.C. would apply as the decree relates to an estate assessed to the payment of revenue to the Government.

10. As per Order 20 Rule 18 of the C.P.C., where the Court passes a decree for partition of property or for the separate possession of a share and the property 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 subordinate officer for partition and separation in accordance with provisions of Section 54 of the MPLRC. Therefore, after the passing of the preliminary decree, the Collector is required to do partition or separation of the estate in terms of THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

the decree. The Collector cannot proceed for handing over the possession. After ascertaining the share, the Collector is required to submit the report to the Civil Court for drawing final decree.

11. The Tehsildar vide letter dated 31.5.2016 informed the SDO that the petitioners have filed an application u/s. 38 of the MPLRC for handing over the possession and the same cannot be done without initiating proceeding u/s. 250 of the MPLRC, but later on, the Tehsildar himself vide order dated 31.8.2017 has directed for handing over the possession. Since the Tehsildar has passed the order u/s. 38 of the MPLRC, therefore, in the opinion of this Court, the SDO has rightly entertained the appeal u/s. 54 of the MPLRC.

12. Shri Garg, learned senior counsel appearing for the petitioners, submits that the petitioners filed an application under a wrong provision of law. The Collector is competent to execute the decree passed by the Civil Court, therefore, the matter may be remitted back to the revenue authorities to proceed for handing over the possession to the petitioners.

13. As on today, there is a preliminary decree in favour of the petitioners. The final decree has not been placed on record, therefore, it cannot be held that the final decree has been passed. The Collector has submitted the THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

report and thereafter, the final decree would be passed. The apex Court in the case of Shanker Balwant Lokhande (Dead) through L.Rs. V/s. Chandrakant Shankar Lokhande : (1995) 3 SCC 413, has held that until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition. The preliminary decree had only declared the shares of the parties and properties were liable to the partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Para 8 and 10 of the aforesaid judgment are reproduced below :-

"8. It has been seen that after passing of preliminary decree for partition, the decree cannot be made effective without a final decree. The final decree made in favour of the first respondent is only partial to the extent of his 1/6th right without any demarcation or division of the properties. Until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of 1/6 th and 5/6th shares of the first respondent and the appellants so as to entitle the party to make an application for execution of the final decree.

THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to the partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, no Commissioner was appointed and no final decree had been passed relating to all."

14. In case of Venkata Reddy V/s. Pethi Reddy :

AIR 1963 SC 992, the apex Court has given the meaning of the word "final decree" vis-a-vis "preliminary decree" and held that the decree would be executable, would be a final decree. The apex Court in the aforesaid case, has held as under :-

"It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a Court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended". Therefore, if the reason given by THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. 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 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 decree does not appeal from it, he is precluded from disputing its THE HIGH COURT OF MADHYA PRADESH W.P. No. 18069/2017 Lalsingh Bhilala & others. V/s. State of M.P. & another.

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.

15. In view of the foregoing discussion, in the considered opinion of this Court, the SDO has rightly entertained the appeal and granted the stay. The petition has no merit and deserves to be and is hereby dismissed with no order as to costs. Order accordingly.

( VIVEK RUSIA ) JUDGE Alok/-

Date: 2018.04.05 16:49:54 +05'30'