Bombay High Court
Shri Chandmal Dongarmal Shelot And Shri ... vs Shri Shantilal Valchand Shelot And Ors. on 1 July, 2003
Equivalent citations: AIR2003BOM445, 2003(6)BOMCR670, AIR 2003 BOMBAY 445, (2003) 4 ALLMR 513 (BOM) (2003) 6 BOM CR 670, (2003) 6 BOM CR 670
Author: Ranjana Desai
Bench: Ranjana Desai
JUDGMENT Ranjana Desai, J.
1. Rule. By consent, Rule made returnable forthwith.
2. Mr. Shah, learned counsel for respondent 4 waives notice. Respondents 1 to 3 and 5 are served. AGP waives notice for respondent 6.
3. By consent, the petition is taken up for final disposal at the stage of admission.
4. In this Petition, the petitioners have challenged order dated 22nd March, 2001 passed by the Tahsildar, Khed, Pune.
5. Shortly stated the facts are as under:
Respondent 1 filed suit for partition being Regular Civil Suit No. 223 of 1971 in the court of Civil Judge, Junior Division, Khed, Rajgurunagar. This petition arises out of the Darkhast proceedings taken out in the said suit. The petitioners are the sons of one Dongarmal Shelot, who is original defendant 1 in the suit and respondent 3 in the present petition. Respondent 2 is original defendant 2. Respondent 4 is original defendant 3. For the sake of convenience, the parties are referred to in this judgment as per their status in Regular Civil Suit No. 223 of 1971.
6. The plaintiff and defendants 1, 2 and 3 are brothers and defendants 4, 5 and 6 are their sisters. The suit for partition was decreed on 19th June, 1987. The trial court held that the suit properties described in Schedules "A" and "B" are joint family properties of the plaintiff and defendants 1, 2 and 3. The plaintiff and defendants 1, 2 and 3 have 8/35th share each and defendants 4, 5 and 6 have 1/35th share each in the joint family properties. The court directed that the landed properties be partitioned through the Collector under Section 54 of the Code of Civil Procedure (the Code for short) an household properties and open space be partitioned through the Commissioner appointed in execution proceedings.
7. Defendant 1 filed Civil Appeal No. 877 of 1987 in the District Court, Pune. The District Court, Pune, modified the trial court's order. It directed that the plaintiff and defendants 1, 2 and 3 shall have 1/4th share each in the suit property and defendants 4, 5 and 6 will not get any share in it. With these modifications of the trial court's decree, the appeal was dismissed by the District Court by its order dated 7th October, 1994.
8. Defendant 4 filed Darkhast proceedings being Darkhast No. 21 of 1995 for partition on 28th April, 1995. Darkhast was sent to the Collector for execution and the Collector issued notice to the parties.
9. The petitioners' case is that they are purchasers of the shares of the plaintiff, defendant 1 and defendant 2. They have purchased these shares under the Sale Deeds dated 20th July, 1995 and 24th July, 1995. They are, therefore, owners of 3/4th share of the property and they are also ready to purchase the share of defendant 4 as per the law. It is further their case that defendant 1 had executed a power of attorney in favour of petitioner 1 for appearing in Darkhast proceedings.
10. According to the petitioners, the District Land Record Officer issued notices to the plaintiff, defendants 1 and 2 and intimated to them that the work of partition of the property will go on, on 9th November, 1995 as per the court's order. The petitioners then made an application to the Collector, Pune, on 11th December, 1995 requesting that they may be joined as parties to Darkhast proceedings. According to the petitioners, the Taluka Land Record Office, Khed, intimated to the petitioners that their application cannot be considered and the partition will be effected as per the court's order.
11. The petitioners then filed Misc. Application No. 15 of 1995 in Darkhast No. 21 of 1995 in the Court of Civil Judge, Junior Division, Khed. They prayed that their names may be inserted in the ownership column of the properties in Schedule "A" of Darkhast No. 21 of 1995 and Darkhast be proceeded with. By order dated 13th November, 2000, the learned Civil Judge, Junior Division, Khed, rejected the said application. He was of the opinion that it is the said application. He was of the opinion that it is the Collector who has to decide the question relating to the partition. In this behalf, he relied on Khemchand Shankar Chaudhari and Anr. v. Vishnu Hari Patil and Ors., . The petitioners then filed application before the Tahsildar, Khed, Rajgurunagar, Pune. In that application, they referred to the order dated 13th November, 2000 passed by the Civil Judge, Junior Division, Khed, rejecting their application and holding that it is the Collector who, under Section 54 of the Code, can take all steps for effecting partition and, therefore, only the Collector can consider their application. In view of this, the petitioners prayed that their application be considered. By order dated 22nd March, 2001, the Tahsildar, Khed, rejected the petitioners application stating that the partition can be effected, only as per the court's order and, therefore, no action can be taken on the petitioners' application. Being aggrieved by the said order, the petitioners have approached this court.
12. Mr. Singhavi, learned counsel for the petitioners contended that the petitioners are driven from one authority to another, When, in fact, as per law, their application deserves to be granted and it ought to have been granted by the Collector. He submitted that Section 54 of the Code has been missed by the Tahsildar. According to learned counsel, the revenue authorities ought to have impleaded the petitioners since they have purchased shares of the plaintiff, defendants 1 and 2. Mr. Shah, learned counsel appearing for the respondents contended that though it is true that the revenue officers have to effect partition after preliminary decree is passed, the impugned order, which has been passed by the competent authority, is under the provisions of Section 247 of the Maharashtra Land Revenue Code, 1966 and, hence the present petition is not tenable. An appeal is competent against the said order.
13. I have considered the rival submissions. In any opinion, the Tahsildar, Rajgurunagar, Khed, as well as the Collector, Pune, have overlooked Section 54 of the Code. The petitioners, in my opinion, had rightly approached the Collector, Pune, and the Collect, Pune, instead of considering the petitioners application, wrongly sent them to the court by his order dated 13th November, 2000. The learned Civil Judge, Junior Division, Khed, was right when he held that, under Section 54 of the Code, only the Collector has to take steps to effect the partition. The petitioners had thereafter approached Tahsildar, Khed. Again ignoring the provisions of Section 54 of the Code the Tahsildar rejected the application of the petitioners and held that the court alone can decide the petitioners' application.
14. Under Section 54 of the Code, after preliminary decree in a partition suit is passed and shares of the parties are determined by the court, further proceedings for effecting actual partition of the land assessed to revenue can only be carried out by the Collector. That is the mandate of Section 54 of the Code. Section 54 of the Code 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 sub-ordinate 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."
15. In this connection, it is also necessary to have a look at Section 85 of the Maharashtra Land Revenue Code. Section 85 of the Maharashtra Land Revenue Code, sofar as it is relevant for the present purpose, reads thus:
"85. Partition:- (1) Subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, a holding may be partitioned on the decree of a Civil Court or an application of co-holders in the manner hereinafter provided.
(2) If in any holding there are more than on co-holder, any such co-holder may apply to the Collector for a partition of his share in the holdings:
Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil suit.
(3) The Collector may, after hearing the co-holder divide the holding and apportion the assessment of the holding in accordance with the rules made by the State Government under this Code.
16. It is well settled that transferees during the pendency of a suit for partition of an estate assessed to payment of land revenue to the Government, which is the subject matter of the suit, have locus standi to appear before the revenue authorities in proceedings under Section 54 of the Code and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit in the civil court. It has been so held in Khemchand's case (supra). The relevant paragraph of the said case may be quoted.
"The transferees during the pendency of a suit for partition of an estate assessed to payment of land revenue to the Government, which is the subject matter of the suit, have locus standi to appear before the revenue authorities in proceedings under Section 54 of the Code and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit in the civil court."
Hence, if the petitioners claim that they have purchased the shares of the plaintiff and defendants 1 and 2 then they ought to be impleaded in Darkhast proceedings. This question admits of no debate.
17. Under Section 54 of the Code, the Collector can effect partition of an estate assessed to payment of land revenue. In the application made by the petitioners, they have made it very clear that they are not interested in the house property as mentioned in Scheduled "B". They are only interested in the suit lands which are mentioned in Schedule "A". They have also made it clear that they have accepted the decree as it is and they do not want to reopen the decree. In this connection, it is necessary to refer to a judgment of the learned Single Judge of this Court in Mannubai Nandgopal Pande v. Shivprasad Nandlal Pande and Ors. 1979 Mh. L.J. 252, where, while considering the relevant provisions of law, the court came to a conclusion that it will not be permissible to add a party to a suit for partition after preliminary decree if the addition requires the preliminary decree to be reopened to enable him to reagitate matters decided under the preliminary decree because such matters became final. However, he can be added if he has no objection to come on record subject to matters decided under the preliminary decree and it would be permissible to add him as party if the wants equities to be settled in his favour. The relevant paragraph of the said judgment reads as under:
"It will not be permissible to add a party to a suit for partition after preliminary decree if the addition requires the preliminary decree to be reopened to enable him to reagitated matters decided under the preliminary decree because such matters became final. He can however be added if he has no objection to come on record subject to matters decided under the preliminary decree. It would be permissible to add him as party if he wants equities to be settled in his favour as this has to be done under the final decree. He cannot however be allowed to be added if he wants to contest the whole suit on merits."
Since the petitioners do not want to reopen the decree and they are accepting the decree as it is and they only want equities to be settled in their favour they can be added as parties to the Darkhast proceedings.
18. The question is, if the petitioners make an application and that application is rejected, what would be the remedy. In this connection, it is necessary to have a look at Section 247 of the Maharashtra Land Revenue Code which provides for appeals and appellate authorities. Schedule E under this section states that against the orders of all officers in a Sub-Division subordinate to the Sub-Division Officer, the appellate authority is the Sub-Division Officer or such Assistant or Deputy Collector as may be specified by the Collector in this behalf and against the order of Collector, appeal lies to the Divisional Commissioner.
19. In Paygonda Survgonda Patil and Ors. v. Jingonda Surgonda Patil and Ors., , this Court has considered this question and held that a decision or order made by the Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner under Section 203 of the Bombay Land Revenue Code and is also revisable under Section 211 thereof.
20. A similar view has been taken by the Learned Single Judge of this Court in Kisan Bhikaji Dalvi, since deceased, through LRs. Mohan Kisan Dalvi v. Krishnabai Maruti Dalvi, 2000 (4) Mh. L.J. 485 where in somewhat similar fact-situation referring to Paygonda's case (supra) the Court has observed as under:
"If a partition suggested by the Collector is not as per the directions issued in the decree, or, there is any other challenge to such partition, suggested by the Collector, then the aggrieved party has to file an appeal against such an order of the Collector before the authority prescribed under the Land Revenue Code. The dispute regarding such a partition cannot be brought before the Civil Court."
21. In the same judgment, the learned Judge observed that against the order of the Collector, appeal has to be filed before the authority under the Land Revenue Code. In the facts of this case, the petitioners first approached the Collector. The Collector opined that it is only the Court which can deal with this issue. The Civil Judge, Junior Division, Khed, correctly held that it is the Collector who can decide this issue. Thereafter, the petitioners were driven to the revenue authorities. For the reasons best known to the petitioners, they approached the Tahsildar and not the Collector. The Tahsildar again held that, it is the Civil Court which can pass an appropriate order. Faced with this situation, the petitioners have approached this Court.
22. Since the order of Tahsildar is an appealable order, the petitioners will have to file an appeal before the Collector. In my opinion, by wrongly directing the petitioners from one authority to the another, a lot of time is already lost. Therefore, if the petitioners file an appeal before the Collector, the Collector will have to take it on his file; condone the delay and decide it in accordance with law. This has to be done as expeditiously as possible and at any rate within a period of three months from the date of filing of the appeal by the petitioners before the Collector. Hence the following order.
ORDER If the petitioners filed an appeal before the Collector, Rajgurunagar, Pune, against the order of Tahsildar, Khed (Pune) dated 22nd March, 2001 which is impugned in the petition, the Collector shall take the said appeal on file after condoning the delay and decide the same within a period of three months from the date of filing of the appeal by the petitioners in accordance with law.
Writ Petition is accordingly disposed of. Rule is made absolute in the aforesaid terms.