Allahabad High Court
Abdul Razak And Another vs State Of U.P. And Others on 5 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 286
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 30 Case :- WRIT - C No. - 69409 of 2009 Petitioner :- Abdul Razak And Another Respondent :- State of U.P. and Others Counsel for Petitioner :- Satyendra Kumar Singh,Chandra Prakash Misra Counsel for Respondent :- C.S.C.,Majahar Ali,Manish,Rajesh Kumar Tiwari Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioners and learned Standing Counsel for the State-respondents.
The present petition has been filed with the following reliefs:
"Issue, writ, order or direction in the nature of certiorari quashing the judgement and order dated 01.10.2009 passed by the respondent no. 2 in dismissing the Revision No. 251 and 263 of 1999 (Abdul Gafoor and others vs. Badrunissa and others) by the petitioners against the order dated 09.03.1998 passed by the respondent no. 2 in Case No. 199 and 200 passed in the proceedings under section 176 of the U.P.Z.A & L.R. Act. (Annexure'1' to the writ petition).
Issue, writ, order or direction in the nature of certiorari quashing the order dated 09.03.2008 passed by the respondent no. 3 in the Case No. 199 and 200 arising out of the proceeding under Section 176 of the U.P.Z.A. & L.R. Act. True copy of the order dated 09.03.1998 passed by the respondent no. 3 in the Case No. 199 and 200 (annexure '2' to the writ petition)."
The short question involved in the present petition is whether any limitation is prescribed for preparation of final decree when the preliminary decree has already been prepared.
The brief facts are that a Suit No. 15 was field under section 176 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act 1950) on 11.6.1964 and, after contest, the same was decreed on 17.2.1965 declaring the share of the petitioners and defendants no. 5 and 6. One another suit was filed by Abdul Gafoor, predecessor of the contesting respondents against the petitioner, however, the said suit being a Suit No. 16 was dismissed on 31.10.1964.
Challenging the said decree two appeals were filed on 17.2.1965. The Appeal No. 263 filed by Rozan and Gafoor challenging the judgement and order dated 17.5.2005 passed in Suit No. 16 was dismissed and the decree dated 17.2.1965 was affirmed. The appeal filed by Abdul and Seikh Rozan against the judgement and order dated 31.10.1964 passed by Trial Court in Suit No. 16 was allowed and the Suit No. 16 was decreed in respect of 2/9 share in the disputed holding. Thus, the question of entitlement of the petitioners and the contesting respondents were settled as the second appeal filed were dismissed, however, as no final decree was prepared. An application was filed by the petitioners for preparation of the final decree on 17.7.1996, however, the same was rejected on 9.3.1998 holding the said application for preparation of final decree as barred by limitation in the said order dated 9.3.1988, it was also observed that the petitioner should file a separate suit for the partition and possession according to the share. The said order dated 9.3.1988 was challenged by filing revisions, however, the said revisions were dismissed vide order dated 01.10.2009 and the finding or the reasoning given in the order dated 9.3.1988 was affirmed.
The counsel for the petitioners has argued that no limitation is applicable for preparation of final decree and he relies upon the judgement of the Supreme Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna, 2009 (9) SCC 689 wherein it was observed as under:
"8.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 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.
9. The following principles emerge from the above discussion regarding partition suits :
9.1) 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 Code. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of 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.
9.2) 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 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.
9.3) 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 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.
10. The three decisions relied on by the petitioner (referred to in para 3 above) are not relevant for deciding the issue arising in this case. They all relate to suits for mortgage and not partition. There is a fundamental difference between mortgage suits and partition suits. In a preliminary decree in a mortgage suit (whether a decree for foreclosure under Rule 2 or a decree for sale under Rule 4 of Order 34 of the Code), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non payment within the time stipulated is also specified. A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non payment of the amount. When the amount is not paid the plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the 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. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits. A suggestion for debate and legislative action
15. In so far final decree proceedings are concerned, we see no reason for even legislative intervention. As the provisions of the Code stand at present, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same). As noticed above, the Code does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution. "
He further relies upon the judgement of the Supreme Court in the case of Venu vs. Ponnusamy Reddiar (Dead) Through Legal Representatives and another, 2018 (15 Supreme Court Cases 254 wherein the Supreme Court has observed as under:
"3. In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree. Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree.
4. The matter is no more res integra. The Division Bench of the High Court of Calcutta in In Bhusan Chandra Mondal vs. Chhabimoni Dasi,[AIR 1948 CALCUTTA 363] considered the question when a preliminary decree was passed in a suit for partition in courts, the court consider the applicability of Article 181 of the Limitation Act, 1908 (in short 'the old Act') the court has laid down thus :
"(6) Article 181 is the residuary Article relating to applications. In a mortgage suit it has been held that the application for a final decree has to be made within 3 years by reason of Article 181,Limitation Act. But those decisions are not helpful because O.34 R.4 Civil P.C.expressly requires the mortageee to make an application for a final decree, either for foreclosure or for sale. In a suit for partition and/or accounts a party need not make an application for making the decree final. After the preliminary decree is in such a suit has been passed it is the usual practice for the plaintiff to make an application for the appointment of the Commissioner but there were no legal bar in the court appointing the commissioner suo motu and asking the plaintiff to deposit the commissioner's fee in Court. If he does not deposit the fees any other party to the suit can do so and take upon himself the carriage of the proceedings if the plaintiff and none of the other parties make the deposit the fact that the court would not be able to dismiss the suit is, however, another matter.
(7) We therefore do not see our way to accept the petitioner's contentions on this point also."
5. Similar is the view adopted by a Single judge of the High Court of Kerala in Laxmi & Ors. vs. A. Sankappa Alwa & Ors. [AIR 1989 KERALA 289] the logic given by the High Court of Kerala that the preliminary decree does not completely dispose of the suit. The suit continues till the final decree is passed. Suit is pending till the passing of the final decree. There is no necessity of filing an application to apply for the final decree proceedings by litigants, then there is an obligation on the court for drawing up a final decree. The court had held thus : "15.I turn to consider the question of obligation of the Court and the parties after a preliminary decree is given in a partition suit. I do not propose to discuss that matter elaborately. In my view a preliminary decree conclusively determines the rights and liabilities of the parties with regard to all or some of the matters in controversy in the suit although it does not completely dispose of the suit. Further proceedings await the suit to work out and adjust the rights of the parties. The Court cannot dismiss a suit for default when once a preliminary decree is passed in a partition suit. The parties to the suit have acquired rights or incurred liabilities under the decree. They are final, unless or until the decree is varied or set aside. The law being so, if the plaintiff does not take any steps after a preliminary decree is passed, the Court should adjourn the proceedings sine die with liberty to the parties concerned to end the torpor and suspended animation of the suit by activising it by taking appropriate proceedings. In Thomas v. Bhavani Amma, 1969 Ker LT 729, Krishna Iyer, J. observed :
"It is correct law that in a suit for partition, after the passing of a preliminary decree it is the duty of the Court to pass a final decree and what is called an application for final decree is but a reminder to the Court of its duty. If so, it is the Court's duty to give notice to the parties."
19.No rule provides for the filing of an application by the party for passing a final decree. The preliminary decree will not dispose of the suit. The suit continues. The position being so, it is more appropriate for the Court to adjourn the case sine die. It is difficult for me to say that there is an obligation on the part of the Court to "pass the final decree after necessary enquiries" as observed by Paripoornan, J. in 1985 Ker LT 940 (Sreedevi Amma v. Nani Amma).
20. I am of the opinion that an application for drawing up a final decree in a partition suit is in no way an application contemplated under the Limitation Act. It is a reminder to the Court that something which the Court is obliged to do has not been done and so, such an application, is not governed by any provision of the Limitation Act. When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an application in a pending suit and therefore the question of limitation does not arise.
6. Similar is the view taken by the Single Bench of High Court of Punjab & Haryana in Naresh Kumar & Anr. vs. Smt. Kailash Devi & Ors. [AIR 1999 Punjab and Haryana 102] in which reliance has been placed upon the decision of High Court of Madras in Ramanathan Chetty v. Alagappa Chetty [AIR 1930 Mad. 528] in which it was held that until final decree is passed in a partition suit, limitation will not come into play because the suit continues, till final decree is passed. Reliance is also placed on a decision of High Court of Peshawar in Faqir Chand v. Mohammad Akbar Khan [AIR 1933 Peshawar 101(2)], in which it has been observed that there is no obligation of a litigant to apply for final decree proceedings. As such there is no question of application of the limitation. Another decision of the High Court of Orissa had been referred in Sudarsan Panda vs. Laxmidhar Panda [AIR 1983 Orissa 121] in which also similar view had been taken."
The order dated 09.03.1998 and the order dated 01.10.2009 passed by respondent no. 2 are hereby quashed with directions to the court to prepare the final decree in furtherance of the preliminary decree prepared. The said exercise shall be completed as expeditiously as possible.
Learned counsel for the petitioners argues that during the pendency of the present petition certain parties have passed away, they may file appropriate application before the court concerned for substituting the legal heirs.
The writ petition is allowed in terms of the order passed above.
Order Date :- 5.3.2020 Puspendra