Delhi District Court
Surender Kumar Gupta vs Mahender Kumar Gupta on 15 April, 2013
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ACJ-ARC (WEST), THC, DELHI
M No. 1/13
Date of Order: 15.04.2013
SURENDER KUMAR GUPTA ... PETITIONER
Versus
MAHENDER KUMAR GUPTA ... RESPONDENT
Order on application under Section 54 r.w. Section 151 CPC 1 Vide this order, I shall dispose off application U/s 54 CPC read with section 151 CPC, filed by applicant/defendant Mahinder Kumar Gupta. 2 The said application has been filed against DDA and MCD and it has been submitted in the application that though on 26.12.12, the office of DDA allowed the partition of suit property bearing no. 11 Birbal Road, Bhajan Pura Extension New Delhi and declared the son of the defendant as owner of half of the property and though on 09.01.13 MCD allowed mutation of the property in favour of the son of the applicant/defendant in respect of the share of the property, the request of the applicant/defendant for conversion of lease hold property to free hold was not considered nor allowed by concerned official of DDA and MCD, nor they have furnished any reason to dis-allow the same. Thus, it has prayed in the application that the officials of DDA and MCD be directed to allow the request of conversion from lease hold to free hold, of the share of defendant/applicant in the suit property. 3 In reply to the said application, DDA has submitted that DDA was not the party to the suit or proceedings in which the partition of the proceedings took place and it was submitted by DDA that as per the policy of DDA, conversion can only be allowed in respect of the entire property and not part thereof. Thus, it has been stated by DDA that if all the owners of property jointly apply for conversion from lease hold to free hold then DDA can process the said application but conversion cannot be allowed in respect of part of the property.
M No.1/13 Page 1 of 64 MCD in reply to said application submitted that as per clause 4. 4. 3 of MPD-2001, sub-division of plot is not permitted and for this reason, the application cannot be allowed.
5 There are two questions before the Court. Firstly, whether Section 54 is applicable to the proceedings and whether the application under Section 54 is maintainable? Secondly, whether this Court can direct MCD and DDA for conversion of property from lease hold to free hold, when the property which was partitioned was actually lease hold and the decree of partition both preliminary and by metes and bound has attained finality? 6 Whether Section 54 is applicable to the proceedings and whether the application under Section 54 is maintainable? 6.1 In order to decide this issue, it would be appropriate to reproduce Section 54 and the same is reproduced as under:
"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".
6.2 The applicant/defendant has relied upon judgment titled as Ramachandra Shamarao Kulkarni Vs. Prahlad Krishnaji Kulkarni, AIR 1964 Kant 31, it has been observed by Hon'ble Karnataka High Court in para 8 of the judgment as under:
"In my opinion, every partition made in pursuance of a preliminary decree for partition, is, a partition made under the provisions of the Code of Civil Procedure although in the case of a land assessed to the payment of land revenue to the Government, the Collector is me designated instrument though whom the partition by metes and bounds has to be made. The submission that a partition directed by Rule 18 of Order XX of the code of Civil Procedure and which has to be made by the Collector under Section 54 of the Code of Civil Procedure, is a partition made under the provisions of the Lana Revenue Code as to fall within the provisions of Section 203 of that Code does not to my mind appears to rest on a correct interpretation of the provisions or section 54 of the Code of Civil procedure. Nor am I disposed to agree with the submission made by Mr. Srinivasa Iyer that in the course of a partition made by M No.1/13 Page 2 of 6 a Collector under Section 54 of the Code of Civil Procedure, he makes some decision or order which can be the subject matter of an appeal under Section 203 of the Bombay Land Revenue Code. It is true that if a Collector is directed to make a partition under Section 54 of the Code of Civil Procedure, he can make that partition in a manner which appears to him to be equitable and proceed to deliver possession to the parties of their shares in such property without being even under a duty to make any report to Court about it and without being obliged to seek the approval of the Court to the partition made by him, although in almost all cases, it is clear that the partition so made by the Collector is generally reported to the Court which directed him to make that partition. But Such partition to be made by him does not, to my mind, involve the rendering of any decision or the making of any order by the Collector.
The decision on all questions in dispute between the parties would have all been by then settled by me preliminary decree made by the Civil Court and what is entrusted to the Collector under Rule 18(1) of Order XX of the Code of Civil procedure is the bringing into effect the terms of the preliminary decree and the distribution of the property between the parties to the litigation in accordance with the declaration made by the preliminary decree. It may be that for that purpose, there should be an application of the mind of Controller as to the most appropriate and reasonable method by which such distribution can be made. But, it is I think gong too far to suggest that by reason of any such application or the mind by him any decision or order comes into being such a would fall within Section 203 of the Bombay Land Revenue Code. All that the Collector does is to give effect to the provisions of the preliminary decree and for that purpose he is no more than a person statutory entrusted with that duty by Section 54 of the Code of Civil Procedure. In my opinion, a partition made by We Collector being no proceeding under the Land Revenue Code and not being a decision or order within the meaning of those expressions occurring in Section 203 of the Bombay Land Revenue Code, cannot be made the subject matter of an appeal to any of the revenue authorities under that section."
6.3 In judgment titled as Rajender Kishan Gupta Vs. Prem Chand Gupta & Ors, CM(M) No. 234/2009, filed by applicant/defendant, it has been observed by Hon'ble High Court of Delhi as under:
"I also do not see any practical difficulty in following the aforesaid course. Under Section 54 read with Order XX Rule 18 of the CPC, where the decree is for 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 to that collector deputed by him in this behalf in accordance with law for the time being in force relating to partition, or the separate possession, shares, of such an estate. The civil Court before which the decree is filed for partition is then required to direct such partition or separation to be made by the collector or his subordinate in accordance with the declaration as to shares. It thus cannot be said that the execution poses any problem."M No.1/13 Page 3 of 6
6.4 Thus, it is clear from the aforesaid judgments as well as from other judgments titled as Dattatraya V. Mahadaji, 16 B 528; Kisan Bhikaji Dalvi Vs. Krishnabai Maruti Daivi, 2000 AIHC 3690 (3692) (Bom), Prakash Nathyaba Bhosale V. Laxman Ganaba Bhosale, AIR 2003 Bom 41, that Section 54 is applicable to the Estate assessed to the payment of revenue to the government and not to other estate and in case of such estate, the Civil Court has got no power to effect partition of the estate by metes and bound. Where the share is to be divided is assessed to land revenue, the division has to be done only by Deputy Commissioner and not by the Commissioner appointed by the Court. Once Civil Court passes preliminary decree for partition of agricultural land assessed for land revenue and sends copy thereof to the Collector, nothing remains to be done on the part of the Civil Court.
6.5 Thus, it is clear that section 54 under which the present application has been filed is only applicable to land assessed to land revenue and it shall not be applicable to the land in question as the land in question is a land which was perpetually leased out by Delhi Improvement Trust in favour of M/s Bhagwan Dass and sons on 27.06.1956.
6.6 The words "estate assessed to the payment of revenue to the Government" are only referable to an 'estate' which pays a lump sum revenue to Govt. and do not cover lands which have been built upon [Rameshwar V. Jageshwar, A 1953 P 250]. Land or immovable property rateably assessed for revenue is not estate as contemplated under S. 54 of CPC.
6.7 Hence, in view of the aforesaid judgments, this Court has no reservation in holding that the application under consideration which has been filed U/Sec. 54 of the CPC is not maintainable in the present case.
M No.1/13 Page 4 of 67 Whether this Court can direct MCD and DDA for conversion of property from lease hold to free hold, when the property which was partitioned was actually lease hold and the decree of partition both preliminary and by metes and bound has attained finality? 7.1 It has been prayed by the applicant in the application that this Court may direct DDA and MCD to convert the property from lease hold to free hold.
7.2 Admittedly, the partition took place of a lease hold property and as the partitioned property was lease hold, hence, this Court cannot direct that the nature of the partitioned property be changed from lease hold to free hold.
7.3 The conversion has to take place as per the policies of the concerned authorities and if the concerned authorities denied such conversion, then this Court under the present proceedings for partition cannot direct them to change the nature of property from lease hold to free hold.
7.4 Thus, as such the prayer clause is beyond the scope of proceedings before this Court.
7.5 It was argued by Ld. counsel for applicant that in number of cases, the DDA has been directed to sub-divide the property by the Hon'ble High Court and judgments in this regard were also placed on record. However, all those judgments are under the writ jurisdiction of the Hon'ble High Court and this Court cannot exercise the said jurisdiction as this Court is a civil Court dealing with the suit for partition, having absolutely no power to issue writs. 8 Accordingly, the application U/sec. 54 r.w. Section 151 CPC filed by applicant/defendant is dismissed.
9 File be consigned to record room Announced in the open court On this 15th day of April, 2013 (S.P.S. Laler) ACJ/ARC(West) Tis Hazari, Delhi M No.1/13 Page 5 of 6 M No. 1/13 15.04.2013 Pr. None for plaintiff.
Applicant/Defendant in person.
Vide separate order, application U/sec. 54 r.w. Section 151 CPC filed by applicant/defendant is dismissed.
File be consigned to record room.
(S. P. S. LALER) ACJ/ARC(W)15.04.2013 M No.1/13 Page 6 of 6