Punjab-Haryana High Court
Pritam Singh vs Surjit Singh And Ors. on 2 November, 1988
ORDER
1. This judgment will dispose of C. R. Nos. 2798 of 1979 and 1985 of 1981. The facts in the Judgment are being given from C. R. No. 2798 of 1979. The following pedigree table will be helpful in appreciating the facts of the case:--
Daropadi = Prabh Singh (Gurdial Singh Pritam Singh Jiwan Singh (Petitioner) Died in trial =Kulwant Kaur Died during Court R-3 (w/ d) Pendency of Died two the revision =Kishan Kaur months back widow R-6 Surjit Singh Jogindar Harjit Kaur Satinder Sinqh Rajinder Kuar R-1 Singh R-2 R-4 R-5 R-7 Gurgian Singh Harbans Singh Five daughters (Impleaded as petitioners vide order dated 4-11-1981 of this Court.)
2. Briefly the facts are that Pritam Singh, Jiwan Singh and Gurdial Singh were the owners of land measuring 1072 Bighas 19 Biswas situated in village Phalauli along with the shares in Shamilat Deh. Gora Deh. Abadi Deh. one well for drinking water and one for irrigation. Kholas end one house in the same village. Pritam Sinah and Jiwan Singh filed a suit for possession of their 2/3rd share in the said property and for recovery of the amount of share of future profits in the land. The suit was decreed by the District Judge on 25-12-2006 B.K. (8th April. 1950) regarding the properties. However, there is no mention in the decree with regard to the relief of recovery of share of profits in the land. Gurdial Singh went up in appeal in the Pepsu High Court which was dismissed on 30th January, 1953. The decree-holders then filed an application for execution of the decree on 25th March, 1953, in the Court of the District Judge praying that the land be got partitioned by the Collector that the costs be realised by attachment of the land of the share of the Judgment-debtors and that the future profits be ascertained and recovered from them. The District Judge sent a request to the Collector to partition the land. He, however, consigned the execution file to the record office in a report from the Collector.
3. The petitioner filed an application praying that the Judgment-debtor be directed to furnish security the amount of mesne profits. It was stated in the application that the decree for partition was passed by the trial Course as far back as 2000 BK and the same was confirmed by the Pepsu High Court on 30th January 1953. Nothing has been paid by the judgment-debtor to the decree-holders during this period. Consequently the above said prayer was made. The application was contested by the Judgment-debtors who denied their liability to pay any mesne profits to the petitioners.
4. The learned trial Court held that the decree dt. 25-12-2006 B. k. were not a preliminary decree and therefore the petitioners could not claim any mesne profits. It was further held that the mesne profits were not awarded by the trial Court and therefore also they could not claim the same. The application was consequently dismissed. Pritam Singh decree-holder came up in revision to this Court.
5. During the pendency of the revision petition. the petitioner and Smt. Kulwant Kaur respondent No. 3 died. The legal representatives of the petitioner were brought on the record. However; no application was made for deletion of the name of Smt. Kulwant Kaur.
6. The first question that arises for determination is whether the decree dt. 25-12-2006 (B.K.) is a preliminary decree or a final decree. The contention of the learned counsel for the petitioners is that the decree was for partitioning of the properties and therefore it is to be treated as a preliminary decree. He urges that the final decree will he passed after the properties have been Partitioned. On the other hand the learned counsel for the respondents. has argued that the plaintiffs sought partition of the agricultural land regarding which only a declaration can be given by the civil Court and thereafter the property is to be partitioned by the revenue authorities. He submits that now nothing is to be done by the civil Court and consequently the decree is a final decree.
7. I have given my thoughtful consideration to the arguments of the learned counsel. In order to determine the issue it is necessary to read O.20, R. 18 and S. 54 of Civil P. C. which are us under:--
Order 20 Rule 18:
"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 an 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 declaration the rights of the several parties interested in the property and giving such further directions as may be required." Section 54:
"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 Govt 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."
From a reading of the Rule and the section it is apparent that if the decree relates to the land assessed to land revenue, the Court entitled to declare the share of the respective parties and direct the Collector to partition the same and to deliver the possession to different owners. With regard to the other properties the Court may give further direction for partitioning it if the same cannot be partitioned without further inquiry. In the present case the properties in dispute are not only the agricultural land subject to land revenue but also Shamilat Deh. Gora Deh. Abadi Deh. wells Kholas and a house. Regarding the Abadi Deh, well which are not situated in agricultural land the house and the Kholas there cannot be any dispute that the decree is a preliminary decree as such property do not fall within clause (1) of R. 18 ibid. The main dispute is as to whether the decree regarding the agricultural land will be treated as a preliminary decree or a final decree. It is true that the after the decree containing the declaration regarding rights of the parties, everything is to be done by the Collector and latter the intimation is to given by him to the Civil Court that the needful has been done. However, till the land is partitioned and possession delivered the Civil Court has got control over the proceedings before the Collector and can pass such orders which are deemed proper to effect the partition.
8. In the above view, I am fortified by the observations of Bombay High Court in Parashuram Raiaram Tiwari v. Hirabai Rajaram Tiwari AIR 1957 Bom 59. That was also a suit for partition. It was held there that the plaintiff was entitled to recover possession of 1/8th share in the properties which inter alia contained agricultural land. The partition of the lands was ordered to be done by the Collector or any of his gazetted subordinates and that of the other properties by the Commissioner to be appointed by the Court in execution proceedings. It was also directed that the copy of the decree would be forwarded to the Collector. Later one of the defendants. who had 1/8th share died and the plaintiff made an application that after his death his share was augmented to 1/7th and, therefore the decree be amended and his share be determined as 1/7th instead of 1/8th. A dispute was raised that he could not apply for change of share after the passing of the preliminary decree. It was held by a Division Bench that until there was e final decree in a partition suit the suit was deemed to be pending and thus the application by the plaintiff was made in a pending suit. It was also held that the plaintiff was entitled to claim his augmented share in the family property. From the above observations, it is evident that the decree with regard to both the of properties was treated as a preliminary decree. These observations were affirmed by the Supreme Court in Phoolchand v. Gopal Lal. AIR 1967 SC 1470. There also a similar question was raised in Parashuram Rajaram Tiwari's case (AIR 1957 Bom 59) (supra). K. N. Wanchoo. J., speaking for the Court, followed the Bombay case and observed that if an event transpired after the preliminary decree which necessitated a change in shares the Court could and should do so: and if there was a dispute in that behalf the order of the Court deciding that dispute and making variation m shares specified in the preliminary decree already passed was a decree in itself. which would be liable to appeal. It was further observed that this could however be only done so long as the final decree had not been passed. The above view was followed by the Karnataka High Court in A. Thakurdas v. A. Venilal. AIR 1977 Kant 60 and Shivaramaiah v. Mallikarjunaiah AIR 1978 Kant 76. In Shivaramaiah case (supra) the property in dispute also included agricultural land. The learned Bench observed as follows (at pp. 79-80) "If the scheme of the two provisions under O. 20, R. 18(l) and under O. 20 R. 18 (2) is analysed it will be clear that the essential nature character of both the types of the decree is the same. Though the decree passed under O. 20. R. 18 (1) is not described is a preliminary decree. whereas the decree passed under O. 20. R. 18 (2) is a preliminary decree in our opinion. so far as the essential character of the two decrees is concerned there is no real difference. The decrees falling under both the clauses of O. 20. R. 18 merely declare the rights of the parties in the two types of properties. The decrees passed under both the clauses contemplate partition or separation to be made to enable the parties to realise the fruits of the decree. This is done by passing a final decree if the decree for partition is made under O. 20. R. 18 (2) in respect of properties other than those in respect of which revenue is available to the Government. The same object is achieved in respect of the partition decree made under O. 20. R. 18 (1) by sending the said decision to the Deputy Commissioner for effecting partition in respect of the estate assessed to payment of the land revenue to the Government. There is no bar for making more then one preliminary decree under O. 20. R. 18 (2) of the C.P.C. We do not find any such bar for passing more than one decree under O. 20 R. 18 (1) of the C.P.C. either. One of the reasons given by the Supreme Court is that if then is need for alteration of the shares before the final decree is made there is no reason why the same should not be done by passing appropriate further preliminary decree and that then is no reason why the parties should be driven to a fresh suit. Same thing can be said with equal Justification in regard to decrees made under O. 20. R. 18 (1) as well......... We hold that if after the decree is made under O. 20, R. 18 (1) of the C.P.C. and before the Deputy Commissioner effects partition, any party who has been allotted a share dies, necessary adjustment of the shares and the resolution disputes arising in that behalf can be made by the Civil Court. The Civi1 Court can make appropriate adjustment and draw a further preliminary decree modifying the shares of the parties consequent upon the devolution of interest resulting from the death of parties of the parties the suit."
9. The learned counsel for the respondents made a reference to Ramabai Govind v. Anant Daji. AIR 1945 Bom 338 (FB), and Keshao Raahunath Deosant v. Waman Keshao Deosant. AIR 1971 Bom 26. In the former case a decree for partition of the lands subject to land revenue was passed. An application was filed to send the papers under O. 22, R. 18 (1) of Civi1 P. C. to the Collector. The question arose whether the application was governed by Article 181 or Article 182 of the Limitation Act. 1908. The Bench held that the application was in the form of a darkhast application and was not governed by any Article of the Limitation Act. In Keshan Raphunath Deosant's case (supra). the question was as to whether a Commissioner could be appointed for effecting parities of an estate assessed to land revenue. It was held the Court could not appoint a Commissioner for that purpose. From the above facts it is evident that both the cases are distinguishable and therefore the counsel cannot derive any benefit from the observations therein. From the above discussion, it emerges that if a suit for possession by partition of agricultural land subject to land revenue and other properties is filed the decree regarding agricultural land under O. 20. R. 18 (1) of the Code will be treated as a preliminary decree till it is partitioned and its possession is delivered by the revenue authorities. Therefore, the decree for partition of the agricultural land in the present case is a preliminary decree.
10. The second question that arises for determination is whether in a suit for partition by one or more tenants-in common. if the preliminary decree is silent about mesne profits. can these be granted by the Court suo motu or on the application of the plaintiff.
11. The learned counsel for the petitioners has contended that the plaintiff did not claim the mense profits in the suit and therefore he can make an application for the same after the passing of the preliminary decree in the execution Court. To fortify his argument he made a reference to two Full Bench Judgments. namely Babburu Basavayya v. Babburu Gurayayya. AIR 1951 Mad 938 and Indradeo Prasad Singh v. Sheonath Prasad Singh. AIR 1980 Pat 201.
12.·I have considered the argument of the learned counsel. With the assistance of the parties. I went through the plaint and the preliminary decree passed by the trial Court as well as the decree of the High Court. The learned counsel for the petitioners is wrong in assuming that no prayer was made in the plaint for future mesne profits. The plaintiff has specifically claimed mesne profits in clause "Cora" of para 23 of the plaint which is in Punjabi. The Court decreed the suit of the plaintiff for possession of the property as mentioned in paragraph 23 (Cora) of the plaint, on 25-12-2006 (B.K). No relief regarding mesne profits was granted by it. Therefore I am of the view that this prayer was disallowed by the trial Court. In appeal filed by Gurdial Singh" the decree of the trial Court was affirmed by the High Court vide its Judgment and decree dt. 30th January, 1953. It may be highlighted that no appeal was filed against the decree of the trial Court by the plaintiff. It is well settled that if a prayer of the plaintiff is declined by a Court he cannot make a similar prayer in execution proceedings. In the present case as the plaintiff made a prayer for future mesne profits in the plaint and the same had been declined he cannot now claim the mesne profits in execution of that decree. In the above view. I get support from the observations in Munshi Banesh Prasad v. Jalpa Shankar Varma, AIR 1960 Pat 260. wherein it was held that where in a suit for possession the plaintiff expressly claimed future mesne profits but neither the Judgment nor the decree allowed the claim for mesne profits expressly or by implication. it must be deemed to have been refused and therefore, the plaintiff is not entitled to make an application for ascertainment of mesne profits under O. 20. R. 12 of Civil P. C.
13. In Babburu Basavavva's case (AIR 1951 Mad 9381 (FB) (supra) it was observed that in a suit for partition the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can hr effected. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. O. 20. R. 18. Civil P. C. does not prohibit the Court from. issuing such directions after the state of a preliminary decree. The mere fact that the preliminary decree does not direct an inquiry into profits subsequent to the date of the suit does not preclude the parties from applying for or the Court from awarding such profits by its final decree. It was further held that this inquiry can be ordered either as part of the preliminary decrees itself or subsequently as a step towards the passing of the final decree and in either case the result of the inquiry has to be incorporated in the final decree. The above case is distinguishable. It is evident from the facts of the said case that no praver was made in the plaint for recovery of mesne profits and therefore the question of declining that prayer did not arise. It is not necessary to decide in this case the question that if in a suit for partition by a tenant-in-common. no prayer is made in the plaint regarding the future mesne profits can the same be granted by the executing Court before passing of the fina1 decree. The question before the Full Bench of the Patna High Court in Indradeo Prasad Singh's case (AIR 1980 Pat 201) (supra) was also the same which was before the Ful1 Bench of the Madras High Court. The facts of both the cases are different and the counsel for the petitioners cannot derive any benefit from them
14. After taking into consideration the facts of the case. I am of the opinion that the executing Court cannot determine the mesne profits in execution proceedings at the request of the petitioners.
15. Now, I advert to C. R. No. 1985 of 1981. Pritam Singh made an application for appointment of a Local Commissioner for partitioning the properties except the agricultural land. The application has been dismissed. inter alia on the ground that the decree has been sent to the Collector for execution regarding all the properties in dispute and that the matter whether the decree constitutes a preliminary or a final decree is the subject-matter of the revision petition in the High Court.
16. The question arises whether the decree with regard to the properties which are not subject to payment of the land revenue is a preliminary decree or not. O. 20. R. 1 of the Code. has already been reproduced above. It is ev1dent from clause (2) of the said Rule that if the decree is. regarding immovable properties other than agricultural land or movable properties and if the partition or separation cannot be conveniently made without further inquiry. the decree will be a preliminary decree." In the present case. the plaintiff had filed a suit for possession through partition of the land measuring 715 bighas biswas being 2/3rd share out of 1072 bighas 19 biwas including share in Shamilat Deh. Gora and Abadi Deh. Kholas and wells for possession of 2/3rd share of a residential site situated in village Philauli bounded as under:--
East--Vacant site West--Gorewala well North--Fields in dispute South--Fields in dispute.
and for declaration that the plaintiffs were owners of 2/3rd share of 42 bighas 5 biswas of land comprised in Khewat Nos. 7. 14, 15 and 17. and for some other reliefs. The suit of the plaintiffs was decreed regarding the reliefs given in clause "Cora" of para 23 of the plaint. as already stated above. From a reading of the above prayer. it is clear that some of the properties. the partition of which has been sought are not subject to land revenue. In this situation. the decree regarding such properties will be considered a preliminary decree under O. 20. R. 18(2) of the Code. The details of the Kholas have fully been given in the plaint. Normally. Abadi Deh is also not subject to payment of land revenue and the area situated therein is to be partitioned by the Civil Court. Therefore I am of the opinion.that the trial "Court has to partition the properties which are not subject to land revenue. The question. which of the properties are subject to payment of land revenue and which are not shall be gone into by the trial Court after allowing the parties to lead evidence. It shall thereafter proceed to partition the properties in accordance with law.
17 For the aforesaid reasons. I dismiss.Civi1 Revision No. 2798 of 1979 and allow Civil Revision No. 1985 of 1981 and remand the case to the trial Court to decide the matter afresh. In view of the partial success of the case. I leave the parties to bear their own coats.
18. Order Accordingly.