Uttarakhand High Court
WPMS/418/2020 on 14 September, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 14TH DAY OF SEPTEMBER, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 418 of 2020
BETWEEN:
Smt. Darshani Ghildiyal & others. ....Petitioners
(By Mr. S.K. Jain Senior Advocate, assisted by Mr. Siddhartha
Jain, Advocate)
AND:
Shri Deepak Jyoti Ghildiyal & others...Respondents
(By Mr. M.C. Kandpal, Senior Advocate, assisted by Mr. Aditya
Singh, Advocate for respondent nos. 1 to 3 and Mr. Navnish
Negi, Advocate for respondent no. 7)
JUDGMENT
Petitioners are legal representatives of late Brij Nandan Ghildiyal. Brij Nandan Ghildiyal filed a partition suit before learned Civil Judge (Senior Division), Pauri Garhwal, which was registered as Civil Suit No. 29 of 2000. During pendency of the suit, Brij Nandan Ghildiyal died and petitioners were substituted in his place.
2. Learned trial Court passed a preliminary decree in the said suit on 02.04.2012 holding that all the four sons of late Anusuya Prasad Ghildiyal (father of late Brij Nandan Prasad Ghildiyal) will get 1/4th share in the family property.
23. After passing of the preliminary decree, petitioners moved an application under Order 26 Rule 13 C.P.C. for issuing a commission to make partition as per the rights declared in the preliminary decree. Trial Court appointed an Advocate Commissioner, who submitted his report on 15.01.2016
4. Thereafter, report was also called from Deputy Nazir. Based on the report submitted by Deputy Nazir, learned trial Court passed an order on 30.09.2019 directing the Deputy Nazir to prepare Kurras in respect of remaining 0.099 hectare land and hand over possession of such remaining land to petitioners. Respondent nos. 1 to 6 challenged the said order by filing revision under Section 115 C.P.C., which was allowed by learned Additional District Judge, Kotdwar, vide judgment dated 01.02.2020, and the order passed by trial Court was set-aside. The said judgment is challenged by petitioners in this writ petition.
5. It is settled position in law that either of the parties to a partition suit can move an application for preparation of a final decree and defendant can also move such application for preparation of final decree. By mere passing of a preliminary decree, a partition suit is not disposed of. A preliminary decree declares rights or shares of the parties to the partition suit. Once shares are declared by a preliminary decree, a further inquiry still remains to be done for actual 3 partitioning the property, and placing the parties in separate possession of the divided property.
6. Rule 18 of Order XX CPC deals with decree in a partition suit, which is reproduced below:-
"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."
7. In the case of Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689, Hon'ble Supreme Court has held as under:-
"5. "Partition" is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few 4 among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.
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 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).
8. The question is whether the provisions of the Limitation Act are inapplicable to an application for drawing up a final decree.
9. Rule 18 of Order 20 of the Code of Civil Procedure ("the Code", for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below:
"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 insofar 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 5 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 insofar 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. The terms "preliminary decree" and "final decree" used in the said Rule are defined in the Explanation to Section 2(2) of the Code and read thus:
"Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
11. Section 54 of the Code dealing with partition of estate or separation of share, relevant for the purposes of Rule 18(1) reads thus:
"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."
12. Rule 13 of Order 26 of the Code dealing with commissions to make partition of immovable property, relevant for the purposes of Rule 18(2) reads thus:
"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 as declared in such decree."
13. We may now turn to the provisions of the Limitation Act, 1963. Section 3 of the Act provides that subject to Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. The term "period of limitation" is defined as the period of limitation 6 prescribed for any suit, appeal or application by the Schedule to the Act [vide clause (j) of Section 2 of the Act]. The term "prescribed period" is defined as the period of limitation computed in accordance with the provisions of the said Act.
14. The Third Division of the Schedule to the said Act prescribes the periods of limitation for applications. The Schedule does not contain any article prescribing the limitation for an application for drawing up of a final decree. Article 136 prescribes the limitation for execution of any decree or order of civil court as 12 years when the decree or order becomes enforceable. Article 137 provides that for any other application for which no period of limitation is provided elsewhere in that division, the period of limitation is three years which would begin to run from the time when the right to apply accrues.
15. It is thus clear that every application which seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil court, unless otherwise provided, will be subject to the law of limitation. But where an application does not invoke the jurisdiction of the court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation. Such an application in a suit which is already pending, which contains no fresh or new prayer for relief is not one to which the Limitation Act, 1963 would apply.
16. These principles are evident from the provisions of the Code and the Limitation Act and also settled by a series of judgments of different High Courts over the decades (see for example, Lalta Prasad v. Brahma Din [AIR 1929 Oudh 456] , Ramabai Govind v. Anant Daji [AIR 1945 Bom 338] , Abdul Kareem Sab v. Gowlivada S. Silar Saheb [AIR 1957 AP 40] , A. Manjundappa v. Sonnappa [AIR 1965 Mys 73] , Sudarsan Panda v. Laxmidhar Panda [AIR 1983 Ori 121] , Laxmi v. A. Sankappa Alwa [AIR 1989 Ker 289] ). We may also draw support from the judgments of this Court in Phoolchand v. Gopal Lal [AIR 1967 SC 1470] , Hasham Abbas Sayyad v. Usman Abbas Sayyad [(2007) 2 SCC 355] and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare [(2008) 8 SCC 198] .
17. Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the 7 preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property. Be that as it may.
18. The following principles emerge from the above discussion regarding partition suits:
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 the Code. Such entrustment to the Collector under law was for two reasons. First is that the Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of the 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.
18.2. In regard to immovable properties (other than agricultural lands paying land revenue), that is, buildings, plots, etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division.
In such cases, normally a Commissioner is appointed (usually an engineer, draughtsman, architect, or lawyer) to physically examine the property to be divided and suggest the manner of division. The 8 court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
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 the 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."
8. Learned counsel for petitioners contends that since petitioners alone had moved application for final decree and defendants in the partition suit had not filed any such application, therefore, learned trial Court was justified in passing the order dated 30.09.2019, whereby Deputy Nazir was directed to hand over possession of the remaining land to petitioners.
9. Learned counsels for respondents however contend that respondents' share is also 9 there in the joint holding, and without demarcating their share; possession of the entire land, which is now available cannot be given to the petitioners. It is an admitted position that all the four co- sharers in the joint holding have sold land by means of different sale deeds to other persons.
10. Learned counsel for petitioners contends that some co-sharers have sold more land than what comes to their share, therefore, they are not entitled to any share in the remaining land. However, learned counsel for respondents dispute this fact and they submit that their share is still there in the suit property, and they further contend that petitioners have also sold their share and now nothing is due to them.
11. It is settled that a decree in a partition suit enures to benefit of all the co-owners and therefore it is sometimes said that there is really no judgment-debtor in a partition decree. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds.
1012. In view of the said legal position, learned Revisional Court was justified in interfering with the order passed by learned trial Court, as learned trial Court had directed for handing over the entire remaining land to the plaintiff in the partition suit. There would be nothing left to be given to the defendants in the suit, if the order passed by learned trial Court was carried out.
13. Learned counsel for petitioners contends that since defendants in the suit had not moved any application under Order 26 Rule 13 CPC, therefore, learned trial Court was justified in passing order only in favour of petitioners. The said contention cannot be accepted. In a partition suit, any party can move application for preparation of final decree and separate application by each of the party is not needed; while, preparing final decree, Court is required to divide the holding, by metes and bounds.
14. In such view of the matter, this Court does not find any reason to interfere with the judgment dated 01.02.2020 passed by learned Additional District Judge, Kotdwar.
15. Learned counsel for respondents points out that earlier report submitted by Commissioner/ Deputy Nazir is silent as regards valuation of the suit property. Without ascertaining valuation of the land, partition cannot be effected by metes and bounds.
1116. Writ petition is, accordingly, disposed of with a request to learned trial Court to appoint a Commissioner to measure entire land, which was subject matter of the suit, including the internal roads and to ascertain valuation of the holding, including the portions, which have been sold out, and allot Kurras to the share-holders as per their respective share, after taking into account the land already sold by them.
17. This Court hopes and expects that entire exercise shall be completed within four months from the date of production of certified copy of this judgment.
(MANOJ KUMAR TIWARI, J.) Navin 12