Gujarat High Court
Dinbandhu Dinanath Prajapati vs Devenbhai Mafatlal Patel on 1 July, 2024
NEUTRAL CITATION
C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23710 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 23710 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DINBANDHU DINANATH PRAJAPATI
Versus
DEVENBHAI MAFATLAL PATEL & ANR.
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
DR. SHAILESH R. PATEL(6044) for the Respondent(s) No. 1
MR RAINISH S SIKLIGAR(11442) for the Respondent(s) No. 2
VIRAL K SHAH(5210) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/07/2024
CAV JUDGMENT
1. The instant petition under Article 227 of the Constitution Page 1 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined of India is filed seeking following reliefs:
"(A) The Hon'ble Court may be pleased to quash and set aside the impugned order dated 04.11.2022 passed in application below Exh.5 in Civil Misc. Application No.208 of 2022, annexed at Annexure-A to the petition.
(B) Pending final hearing and disposal of this petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned order dated 04.11.2022 passed in application below. Exh.5 in Civil Misc. Application No.208 of 2022, annexed at Annexure-A to the petition. "
2. Brief facts of the case are as under:
2.1 That an agreement to sale dated 27.07.1979 was executed between the petitioner's father Dinanath Poonamchand Prajapati and Samubhal Kanjibhai Patel whereby Samubhal Kanjibhai Patel agreed to sale land bearing survey No.497 admeasuring 6 Acres and 37 Gunthas and land bearing survey No.499 admeasuring 3 Acres and 00 Gunthas to the father of the petitioner. thereafter registered sale deed no. 1965 dated 31.03.1980 was executed by Samubhal Kanjibhal with respect to land bearing survey no. 497 admeasuring Acre 4.24 guntha with old survey no. 464 admeasuring Acre 10.00 guntha paiki Acre 6.37 guntha and survey no. 499 admeasuring Acre 3.00 gunthas in favour of Dinanath Poonamchand. However, it is stated in the sale deed that there is a mistake in the measurement of survey no. 497 and process is going on for correcting the same. Therefore, the seller allotted the full and Page 2 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined actual possession of the land admeasuring Acre 6.37 gunthas of land bearing survey no. 497 to the father of the present petitioner. In view of the re-survey taking place in the year 1992-93, old survey no. 499 and 497 merged to form new survey no. 320.
2.2 That Dinanath Poonamchand passed away on 07.04.2000.
Mutation entry no. 2390 dated 03.05.2000 whereby the name of legal heirs of Dinanath Poonamchand namely; Pravinaben wd/o Dinanath Poonamchand, Dinbandhu Dinanath (petitioner herein) and Deepikaben Dimpleben Dinanath was entered. Pravinaben wd/o Dinanath Poonamchand passed away on 22.04.2011. It is required to be stated that before she passed away, Pravinaben executed a registered will dated 31.08.2010, whereby she bequeathed her share in favour of the petitioner 2.3 That the respondent No.2 herein i.e. the sister of the petitioner challenged the aforesaid Will by way of Regular Civil Suit No.210 of 2012 before the Additional Senior Civil Judge, Surat and also sought partition of the suit property. That in the meantime, Legal Heirs of Lakhiben wd/o Gandabhal Devabhal executed a registered sale deed dated 05.05.2017 in favour of respondent no.1 Devanbhai Mafatial Patel allegedly with respect to some portion of survey no. 320.
2.4 In the meantime, Regular Civil Suit No.210 of 2012 came to be finally heard and vide judgment and order dated 29.04.2022, after hearing both the parties, learned 19th Additional Senior Civil Judge, Surat was pleased to partly allow Page 3 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined the suit and was pleased to pass the preliminary decree holding that the respondent No.2- Dipikaben is entitled to 1/3rd share and necessary effect of the order of the trial Court is to be given effect and 1/3rd share is required to be earmarked and separated and possession of the said 1/3rd share is given to the respondent No.2-Dipikaben. It was also directed that for the implementation of the preliminary decree and copy of the order be sent to the Collector as per Section 54 of the Act read with Order XX Rule 18 of the Code of Civil Procedure and the Collector shall depute authorized officer for implementation of the preliminary decree. Accordingly, preliminary decree was drawn for its implementation.
2.5 Respondent No.1 preferred an application for recall of the judgment and order dated 29.04.2022 passed in Regular Civil Suit No.210 of 2012 being Civil Misc. Application No. 208 of 2022. The respondent No.1 herein also filed application below Exh.5 seeking injunction/stay against the implementation of the judgment and decree.
2.6 Petitioner, as well as, the respondent No.2 herein objected to the grant of any relief in the said recall application by filing replies, inter alia, pointing out the correct factual position and also pointing out that the said application is not all maintainable and only remedy for the respondent No.1 is to prefer substantive suit seeking his title over the land.
2.7 However, the learned trial Court vide impugned order dated 04.11.2022 has partly allowed the injunction application Page 4 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined and has directed to maintain ' status quo' in respect of the land in question bearing revenue survey No.320 paiki admeasuring 5463.24 Sq.Meters. On an application filed by the petitioner, the said order has been stayed upto 24.11.2022 to enable the petitioner to challenge the same before higher forum.
2.8 Thus, in background of the above facts, the present petition is filed.
3. Heard learned Advocate Mr.Dipen Desai for the petitioner and learned Advocate Mr.Viral K Shah, for the respondents.
4. Submission of learned Advocate Mr.Desai for the petitioner is to the effect that the learned trial Court has no jurisdiction to entertain the recall application under Section 151 of the Code of Civil Procedure, 1908 (for short "CPC"). He would further submit that the respondent No.2 is not party to the proceedings of RCS No.210 of 2012 which was taken place between the plaintiff against his brother. He would further submit that in the said suit which was for the partition of the disputed properties, trial court has passed the preliminary decree of declaring one-third share of the plaintiff and two-third share of the defendant and in exercise of jurisdiction vested under Section 54 read with O.20 R.18 of the CPC has referred the preliminary decree to the Collector for giving effect to the partition decided at between the parties.
4.1 Learned Advocate Mr.Desai would further submit that respondent filed application under Section 151 of the CPC Page 5 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined invoking inherent jurisdiction of civil court to recall the preliminary decree passed between the plaintiff and defendant. This procedure is completely foreign to the CPC. He would further submit that the Court cannot exercise any jurisdiction under Section 151 of the CPC to recall the preliminary decree that to at the instance of the third party which is not party to the suit proceedings and therefore serious error has been committed by the trial court. He would further submit that trial court has not only entertained the recall application by separately registering it as a recall application no.208 of 2022; but has also entertained the application at Exh.5 in the said recall application and granted status-quo order and thereby stayed its own hand after passing the preliminary decree; this is somewhat unusual and uncalled for. He would submit that the trial court after passing the preliminary decree cannot re-look at the decree under the guise of exercise of power under Section
151. 4.2 Learned Advocate Mr.Desai would further submit that Section 151 of the CPC is not the substantive provision conferring the right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. He would submit that if the suit is pending for hearing, the Court can exercise the power under Section 151 to do justice but such power cannot be exercised to reopen the preliminary decree which is already passed and sent to the Collector for partition. He would further submit that inherent power under Section 151 is a power limited Page 6 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined in that regard. He would further submit that the Court can exercise power at the most under Section 151 to do justice only between the parties unless same is expressly provided; it cannot exercise power under Section 151 at the instance of the third party to stay the preliminary decree.
4.3 Learned Advocate Mr.Desai would further submit that there is no provision in the CPC which permits the Court to stay its own decree. He would submit that in the present case the Court who has passed the preliminary decree exercised power available with the appellate Court and stayed its own decree as if he is an appellate court to his own judgment and decree. This is impermissible in law.
4.4 Learned Advocate Mr.Desai would further submit that if it is believed by the present respondent that some fraud has been played upon him; and the preliminary decree passed in suit is affecting his right, he can prefer appeal under Section 96 of the CPC; but filing of application under Section 151 of CPC before the same Court to recall the preliminary decree at the instance of the third party is totally a procedure unknown to the CPC. He would therefore submit that trial court has committed serious, patent and jurisdictional illegality in entertaining the recall application under Section 151 of the CPC as well as passing the interim order restraining its own hand from execution of the preliminary decree.
4.5 In support of his submissions, learned advocate Mr.Desai would rely upon the following case law.
Page 7 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined (01) Ram Prakash Agarwal & Anr. vs. Gopi Krishan (Dead Through Lrs.) [(2013) 11 SCC 296] .
(02) My Palace Mutually Aided Co - operative Society vs. B. Mahesh & Ors., 2022 SCC Online SC 1063 .
4.6 By making above submissions, he would submit to allow this petition and to quash and set aside the impugned order.
5. On the other hand, learned Advocate Mr.Viral K Shah for the respondent would submit that the plaintiff and defendant of RCS No.210 of 2012 have not only played fraud upon the respondent; but also upon the Court and obtained the preliminary decree. He would further submit, respondents, who are parties to the suit before learned trial court have suppressed material facts before the court and pleaded that their father were holding 40200 square meters of land being a disputed land. However, father of respondent was holding 30755 sq mtr of land means father of respondent was holding his land less than what is pleaded.
5.1 Learned Advocate Mr.Shah would further submit that in other words, the disputed land also include the land belongs to and owned by respondent; but in order to grab the land of the respondent, the parties without putting proper and correct pleading and documentary evidence obtained the preliminary decree for partition of the land which also include the land ad- measuring 5463.25 square meters belongs to and owned by the respondent. Since this preliminary decree comes to the Page 8 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined knowledge of the present petitioner, they preferred the recall application before the trial court under Section 151 of the CPC and the trial court has heard both the parties on the issue and believed that some fraud has been played and therefore restrained the execution of the preliminary decree. So, there is no illegality in the impugned order.
5.2 Learned Advocate Mr.Shah would further submit that at earlier point of time Mr.Dinbandhu Dinanath who is defendant in the suit had filed RCS No.112 of 2017 claiming the ownership about the immovable property against various defendants. The said suit was rejected. Another suit being Suit No.5962 of 2021 is moved by Mr.Dinbandhu against the respondent and other person claiming that he is the owner of the entire disputed land and the said suit is also pending for hearing. In this circumstances, learned Advocate Mr.Shah submits that, sister and brother respondent herein played fraud and obtained the preliminary decree in collusion with each other. Thus, it is a fraudulent decree. The court can stay such fraudulent decree in any subsequent proceedings. He would further submit that in view of provision of O.23 R.3, 3(a), Section 96(3) of the CPC and O.43 R.1(2) and 2, the same Court can entertain the recall application. In support of his submissions, learned Advocate would rely upon the decision in case of Late Chhotabhai Nathabhai Patel vs. Dilipbhai Shantilal Thanki [2024 (1) GLH 114] .
5.3 He would further submit that fraud avoids all judicial acts. He would further submit that in the present case the Page 9 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined brother-sister duo has played fraud upon the Court to get advantage to their credit. He would further submit that once the fraud is established, it can be set to nullity in any subsequent proceedings. He would refer to the decision in case of S.P. Chengalvarya Naidu (Dead) by L.R.s vs. Jagannath (Dead) by L.R.s & Ors., [1994 (1) GLH 81] . He would also refer to the decision in case of United India Insurance Company Limited vs. Rajendra Singh [2000 (3) SCC 581] to submit that no court or tribunal can be regarded as powerless to recall its order that it was obtained by committing fraud or misrepresentation. Remedy to move for recalling the order on the basis of only discovered facts amounting to fraud cannot be foreclosed in any such situation. Thus, he would submit that the recall application is maintainable. The trial court has rightly exercised the power to restrain the execution of the preliminary decree and no interference is warranted in the impugned order.
5.4 By making the above submissions, he would urge to dismiss this petition.
6. Regard being had to the rival submissions made by learned advocates for both the sides, the centric issue arises as to whether the non-party to the suit can prefer an application under Section 151 of the CPC and that too after passing of a preliminary decree to recall the decree?
7. Let refer section 151 of the CPC as under:-
Page 10 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined "151. Saving of inherent powers of Court .-
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court."
8. The CPC is not exhaustive, the simple reason being that the legislature is incapable of contemplating of all the possible circumstances, which may arise in future litigation, and consequently, for providing the procedure for them. The principle is well-established that when the CPC is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debite justitite for doing real and substantial justice between the parties. Thus, the court has in many cases where the circumstances so require acted upon the assumption of the possession of an inherent power to act ex debito justitiae, and to do real and substantial justice for the administration, for which alone, it exists. Albeit, the power, under section 151 of CPC relates to matters of procedure, it does not give any special rights to the party. If the ordinary rules of procedure either resulted in injustice or lack of remedy in a procedure, they can be broken in order to achieve the ends of justice. All inconveniences which may arise during the administration of justice cannot have a remedy under the procedural law. It is, therefore, the duty of a Court to apply Section 151 of CPC.
9. Section 151 of the CPC however does not confer any Page 11 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined power, but only indicates that there is a power to make such order as may be necessary for achieving the ends of justice and also to prevent an abuse of the process of the court. "The inherent power," as observed by the Supreme Court in Raj Bahadur Ras Raja v Seth Hiralal, AIR 1962 SC 527 has not been conferred on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it".
10. In case of Durgesh Sharma vs Jayshree [AIR 2009 SC 285], the Apex Court emphasized that inherent power under CPC should not be used in violation of specific permission.
11. Yet, in another decision in case of Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati [AIR 1965 SC 364] , the Apex Court explained that CPC is designed to address procedural matters in civil trials. It grants court certain hidden power to deal with unforeseen situation during proceedings, but this inherent power of the court can only be invoked when no specific or explicit provision in the CPC. If there is specific provision, the court cannot use its inherent power.
12. The court has sufficient power under section 151 of the CPC to make such orders as may be necessary for the ends of justice, but the power must be exercised with caution and due diligence with the object to prevent miscarriage of justice or to prevent the abuse of the process of court. The limits within which this power is to be exercised has been summed up by the Hon'ble Supreme Court in the case of Nawabganj Sugar Mills Co Ltd v UOI AIR 1976 SC 1154. In paragraph 6 of the Page 12 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined judgment, His Lordship Krishna Iyer, J (as he then was) approvingly quoted a passage from Benjamin Cardozo's, the nature of the judicial process, which is as under:
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. Wide enough in all conscience is the field of discretion that remains."
13. This Court in case of Indian Oil Corporation Limited vs. Prakash Trading Company [2014 (3) GLR 1990] has laid down the principle for exercising the inherent power under Section 151 of the CPC. Relevant observations made in paragraph 10 reads thus:
"10. Recently, Section 151 of CPC was considered by the Supreme Court in the case of Ram Prakash Agarwal & Anr. v. Gopi Krishan (Dead Through LRs.) and Ors., reported in (2013) 11 SCC 296. In that case, party had applied under Order 9 Rule 13 read with Section 151 of CPC for setting aside the judgment and decree passed earlier by the trial court. That application was rejected by the trial court. Against that, party had filed a writ petition before the High Court which came to be allowed. The party, who had applied for setting aside the Page 13 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined decree passed by the trial court, was a third party and not the party to the suit, his writ petition allowed by the High Court. In further appeal before the Supreme Court, the Supreme Court had considered the earlier cases and was pleased to allow the said appeal. Relying on Ram Prakash Agarwals case (supra), following principles can be laid down for considering an application under Section 151 of CPC:
(1) Section 151 is not a substantive provision. That being so, it does not confer any right to any person to get relief of any kind.
(2) It is procedural provision.
(3) Its importance lay in the fact that it would be activated when complaint is about conducting of cases inconsistent to or in violation of principles of justice and equity. In all those cases, none of the gaps or any kind of deficiency in the procedural provision would come in the way of the Court.
(4) Save in cases of fraud committed upon the Court, two conditions may be taken note of (1) Section 151 can be invoked in a pending suit and it cannot be invoked in dispose of suit and (II) Invocation should not be by the third party and it should be the party to the proceedings.
(5) Inherent powers cannot be used to re-open the settled matters.
(6) To that extent Le. inability of Court to re-open the settled matters, it can be said that Legislature has abrogated the Page 14 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined powers of the Court.
(7) Inherent powers cannot be invoked or exercised in contravention of or in conflict with or upon ignoring the express and specific provisions of law.
(8) It should be consistent with general principles of law and with the intention of the Legislature.
(9) In exceptional cases, it can be invoked while exercising powers under Order 9 Rule 13.
(10) Fraud vitiates everything and no technical procedural barrier would come in the way of the Court when it is a case of practicing fraud upon the Court. Inherent powers may be exercised to undo the result achieved by practicing fraud upon the Court. In those cases, length and breadth of power knows no limit.
(11) Similarly, the Court can resort to inherent powers to rectify any mistake committed by Court.
(12) Similar to the original jurisdiction of the trial court, the appellate court can also exercise power under Section 151 of the CPC.
(13) If it is a case of committing fraud upon the party - as distinct from practicing fraud upon the Court - then proper and correct course for the aggrieved party is to file an appeal or to challenge such order or decree in independent and separate suit, and not application under Section 151."Page 15 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024
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14. In Ram Prakash Agarwal & Anr. vs. Gopi Krishan (Dead Through Lrs.,) & Ors., (2013) 11 SCC 296 , the Hon'ble Apex Court in regards to the scope and applicability of Section 151 of the CPC has observed in paragraph 13 and 28.2 thus.
"13. Section 151 CPC is not a substantive provision that confers the right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. The court can do justice between the parties before it. Similarly, inherent powers cannot be used to re-open settled matters. The inherent powers of the Court must, to that extent, be regarded as abrogated by the legislature. A provision barring the exercise of inherent power need not be express, it may even be implied. Inherent power cannot be used to restrain the execution of a decree at the instance of one who was not a party to suit. Such power is absolutely essential for securing the ends of justice, and to overcome the failure of justice. The Court under Section 151 CPC may adopt any procedure to do justice, unless the same is expressly prohibited.
XXX XXX XXX 28.2 Inherent powers under Section 151 CPC can be exercised by the Court to redress only such a grievance, for which no remedy is provided for under CPC; "
15. Another Judgment which could be pressed into service is in case of My Palace Mutually Aided Co - operative Society vs. B. Mahesh & Ors., (supra) . Relevant observations made in Page 16 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined paragraph 24 to 29 reads thus:
"24. We have heard the learned Senior counsel on either side, perused the entire material on record. Though several grounds have been raised, the first ground taken is that the High Court erred in exercising jurisdiction under Section 151 of the CPC, when alternate remedies exist under the CPC. Second ground is that the Senior Judge on the Bench, who appeared for one of the parties, ought not to have heard the matter.
25. In response to the first leg of challenge, i.e., on the procedural aspect, we may note that the recall application was filed under Section 151 of the CPC against the final decree dated 19.09.2013. It is in this context that we must ascertain whether a third party to a final decree can be allowed to file such applications, by invoking the inherent powers of the Court under Section 151 of the CPC.
26. Section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction and utilize the same to meet the ends of justice or to prevent abuse of process. Although such a provision is worded broadly, this Court has tempered the provision to limit its ambit to only those circumstances where certain procedural gaps exist, to ensure that substantive justice is not obliterated by hyper technicalities. As far back as in 1961, this Court in Padam Sen v. State of U.P., AIR 1961 SC 218, observed as under:
"8. ...The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise Page 17 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code." (emphasis supplied)
27. In exercising powers under Section 151 of the CPC, it cannot be said that the civil courts can exercise substantive jurisdiction to unsettle already decided issues. A Court having jurisdiction over the relevant subject matter has the power to decide and may come either to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional court, the same is binding on the parties until it is set aside by an appellate court or through other remedies provided in law.
28. Section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law. Such inherent power cannot override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC.
29. The respondents in the present case had access to recourse under Section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, Page 18 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined and the final decree passed by the High Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under Section 96 of the CPC, for the respondents. Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party. Section 96 of the CPC reads as under:
96. Appeal from original decree .(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed [ten thousand rupees.]"
16. In background of the above settled proposition of law, if we go through the application filed by the respondent herein before the trial Court, the pleadings therein indicate that petitioner has not filed the application by citing provisional paucity or insufficiency of procedural provision to get substantial justice. The relief claimed by the petitioner in the Page 19 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined said petition could be read as under:
"(a) The respondents herein, in collusion with each other, by filing Regular Civil Suit No.210/2012 and mentioning falsely therein that the land admeasuring 40200.00 Sq.
Mts. is under their ownership and thereby, hiding crucial facts before the Hon'ble Court in the preliminary decree and hiding the order passed by the revenue authority having competent jurisdiction regarding the area, committed breach and fraud with the Hon'ble Court, therefore, by modifying the said order and preliminary decree, kindly declare that the said decree is executable only for the land admeasuring 34736.75 Sq. Mts. of the original plaintiff - respondents herein.
(b) Kindly declare that the land admeasuring 5463.25 Sq.
Mts. out of 40200.00 Sq. Mts. of New Revenue Survey No.320, Old Revenue Survey No.497 and 499 of Moje Village: Vesu belongs to the applicant and the applicant is the legitimate owner and actual occupier of the said land and therefore, no one is entitled or having right to part with the land admeasuring 5463.25 Sq. Mts. of the applicant.
(c) Kindly declare that the preliminary decree passed in the matter of Regular Civil Suit No.210/2012 does not apply to any part or portion of land admeasuring 5463.25 Sq. Mts. of the applicant. Moreover, kindly declare that the order and preliminary decree passed in the matter of Regular Civil Suit No.210/2012 is not binding to the applicant in any manner and it does not create any Page 20 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined lacuna in the ownership and possession of land admeasuring 5463.25 Sq. Mts. of the applicant.
(d) The respondents herein, in collusion with each other, by filing Regular Civil Suit No.210/2012 and mentioning falsely therein that the land admeasuring 40200.00 Sq. Mts. is under their ownership and thereby, hiding crucial facts before the Hon'ble Court in the preliminary decree and hiding the order passed by the revenue authority having competent jurisdiction regarding the area, committed breach and fraud with the Hon'ble Court, therefore, kindly restrain the respondents that either themselves or through their persons, they shall not create interruption or obstruction regarding the land admeasuring 5463.25 Sq. Mts. belongs to the applicant and as there is no right, title or interest of respondents or any other person in the land admeasuring 5463.25 Sq. Mts. of the applicant, they shall not deal with or manage the said land or part or portion thereof in any manner or shall not create any third party right, title or interest or shall not enter into any agreement, document, transaction or deed with any third party or shall not execute any document with the third party alienating possession thereof or shall not act in a manner frustrating the rights or ownership / possession of the land admeasuring 5463.25 Sq. Mts. of the applicant and original plaintiffs - the respondents herein themselves or through their persons shall not create any interruption or obstruction to enter the name of applicant as an absolute and exclusive owner and occupier in any record regarding the land admeasuring 5463.25 Sq. Mts. or to deal with Page 21 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined the same or to obtain any kind of permission thereof or to make construction thereon or to cultivate the same. Further, kindly pass permanent injunction order against the respondents that they shall not make any change or mutation except to enter the names of the applicant in any records of the land admeasuring 5463.25 Sq. Mts. belongs to the applicant or they shall not get the names of the respondents or any third party mutated in any manner on the basis of order or decree obtained fraudulently in Regular Civil Suit No.210/2012 by way of cheating and fraud with the Hon'ble Court or they shall not take any action including partition on the basis of the decree or shall not take any action to obtain final decree. Moreover, kindly pass an order to send a yadi of this order to the Collector, Surat and the Deputy Collector, City Prant or the concerned officer for implementation thereof.
(e) Kindly pass any other and further relief you may deem fit in view of the facts of this recall application.
(f) Kindly grant the cost of this recall application from the respondents."
17. What could be discerned that the recall application under Section 151 of the CPC essentially filed for reopening of the preliminary decree and send the party prior to the stage of passing of preliminary decree. Respondent has asked relief of Declaration and permanent injunction. These remedy can be asked under provision of Specific Relief Act by filing appropriate proceedings. It could be noticed that in fact by filing Page 22 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined application under Section 151 of CPC, respondent has asked relief akin to relief which can be asked in suit.
18. It is undisputed that by passing preliminary decree, the court has settled the dispute between the party to the suit. In present case, the recall application is filed by the person who is not party to the suit. The recall application is moved with the averments of fraud. There is no cavil that fraud vitiate all acts, technical provision would not come in way of court to set a naught the relief obtained by fraud, when the case of practicing fraud upon the court is settled or set. In that circumstances, the inherent power may be exercised to undo the result achieved by practicing fraud upon the court. But, if fraud is played upon the party, they have to resort to the provisions available under the law to challenge same. They cannot invoke the inherent power of court. Going through the record, it clearly indicates that RCS No.210 of 2012 filed between the brother and sister was tried by the concerned court on merits. Both the parties were at variance in the dispute. The trial court had framed the issue at Exh.46. As many as 06 issues were framed upon the pleadings of the party and after permitting both the party to lead the evidence and after appreciating the evidence on record in context of the judgment of the Higher court, learned civil judge has passed the preliminary decree in the said suit after almost ten years declaring the shares of the party in disputed property and sent it for partition in view of Section 54 read with O.20 R.18 of the CPC to the Collector. In no sense, the judgment and decree passed in suit can be termed as result of fraud played upon Court. In recall application, the Page 23 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined petitioner pleaded that subject matter of the Regular Civil Suit No.210 of 2012 is agricultural land, it also includes the agricultural land held and possessed by the respondent. This material fact has been suppressed during the proceedings of the suit to obtain preliminary decree. Hence, preliminary decree seems to be obtained by playing fraud; it is legally and factually incorrect. Recall application has been moved with this contention. Thus, it indicates that petitioner to the recall application indicates that fraud was played upon him. To challenge such fraud, recourse under Section 96 of the CPC is available to the respondent - petitioner. Section 96 of the CPC reads as under:
"96. Appeal from original decree .-
(1)Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2)An appeal may lie from an original decree passed ex parte . (3)No appeal shall lie from a decree passed by the Court with the consent of parties.
(4)No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.]"
19 Phrase "any party" used in section 96 of the CPC give recourse to the respondent - petitioner to challenge preliminary decree passed in RCS No.210 of 2012 if, such preliminary decree affects his right or interest; but recall application under the guise of section 151 is not maintainable. In considered opinion of this court, learned trial court, failed to understand Page 24 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined its inherent power under section 151 of CPC by entertaining recall application which is essentially filed with motive to adjudicate right. The learned trial court's approach to entertain recall application and also to pass stay order in interim application is patently illegal proceedings. Doubtless that, learned trial court has committed jurisdictional error.
20. Another issue arises is that can a civil court entertain any such application after sending the preliminary decree for partition of the agricultural land assessed for Land Revenue under Section 54 read with O.20 R.18 of the CPC to the Collector. Section 54 of the CPC 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."
21. Section 54 is parimateria or a reproduction of section 265 of the Code of Civil Procedure, 1882 with a verbal alterations. Where a decree has been passed for partition or for of a share of an estate of the description mentioned in this section, the proper authority to effect partition or to deliver the possession of the share is the Collector. The Court passing preliminary Page 25 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined decree in a subject matter which is assessed for payment of land revenue become functus officio. Section 54 does not talk about a final decree. All that is required of a civil court in a case for partition or to deliver possession case for partition of an undivided estate assessed to payment of land revenue of government or for the separate possession of a share in such an estate is to pass a preliminary decree and to declare a right of the party and to give direction for such partition or separation to be made by the collector. Thereafter, the execution is to be effected by the Collector. The civil court, after passing such decree for partition, becomes functus officio and has no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in passing such accordance with preliminary decree but the partition intended to be left to the Collector has some impact upon the revenue and the revenue records.
22. The court after drawing the preliminary decree becomes functus officio in relation to the decree for partition passed by it and all further proceedings for execution of such decree have to be carried out by the concerned revenue officer. The court is prevented from acting as an executing court for the purpose of execution of decree for partition. Not only, once the preliminary decree is drawn, the rights of the parties are settled, it cannot be unsettled by the same court, allowing the recall application on record. Once becomes functus officio at the most, the civil court can direct the Collector to execute the decree and to make partition if the revenue officer are not proceeding further. The civil court can also act if the petitioner do not want to reopen Page 26 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined the decree; but they are expecting the decree as it is and they only want to equity to be settled in their favour.
23. The Madhya Pradesh High Court had an occasion to examine this issue in case of Bhagwansingh vs. Babu Shiv Prasad & Anr., AIR 1974 MP 12 wherein after surveying the authorities on record in paragraph 5 to 8 has vividly discussed, issue as under:
"5. Having heard learned counsel for both the parties, we are of the opinion that the contention advanced by the learned counsel for the appellant has substance and as such must be accepted. We shall first like to refer to the relevant provisions of the Code of Civil Procedure before dealing with the point involved in the present case. Rule 18(1) of Order XX of the Code reads as under "R. 18. 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."
Section 54 of the Code reads as under:
"54. 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 Page 27 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined 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."
A perusal of the aforesaid two provisions make it clear that the rule does not contemplate passing of a final decree. All that is required of a civil Court in a case for partition of an undivided estate assessed to the payment of land revenue to the Government , or for the separate possession of a share of such an estate, is to only pass a preliminary decree and declare the rights of the several parties who are interested in the property and nothing more and give direction for such partition or separation to be made by the Collector or any gazetted officer subordinate to the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of Section 54 of the Code. Thereafter, the execution has to be effected by the Collector. The reason is that the revenue authorities are more conversant and better qualified to deal with such matters than the Civil Court and interest of the Government with regard to the revenue assessed on the assets would be better safeguarded by the Collector executing the decree than by the Court. The partition contemplated by Section 54 is not confined to mere division of lands but includes also the delivery of the shares of the respective allottees. Thus, the Collector or his subordinate would be completely carrying out the partition. The civil Court after passing of the preliminary decree for partition of an undivided estate assessed to the payment of land revenue becomes Page 28 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined functus officio and it would have no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in accordance with the said decree.
6. We are supported in our view by a series of decisions of this Court as well as of other High Courts also. In Munawarali v. Taiyabali, AIR 1920 Nag 204, it has been held that under Section 54 of the Code the Collector has not only to make allotment of shares but to complete the partition by delivery of possession. In Mohamad Abdul Rahim v. Parashram, AIR 1927 Nag 300 it has been held that the Collector when partitioning the estate in accordance with Section 54 of the Code has power to give the shares to the respective allottees. Parbhudas Lakhmidas v. Shankarbhai, (1887) ILR 11 Bom 662, has been relied upon. In Lachhiram Jasram v. Nanba Dhanaji. AIR 1946 Nag 353 it was held as under :
"......Sec. 54, read with O. 20, R. 18, authorises the civil Court only to declare the rights of the several parties interested in the property and places the execution of the decree entirely in the hands of the Collector. How the partition is to be made lies wholly within the authority of the Collector. The Civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with the property. In fact the suit terminates so far as the civil Court is concerned on the passing of the preliminary decree affecting any estate assessed to the payment of revenue to the Crown as has been held in numerous cases, such as Shrinivas Hanmant v. Gurunath Shrinivas. (1891) ILR 15 Bom 527; Bhimanguada v. Hanmant Rungappa, AIR 1918 Page 29 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined Bom 206; Jacinto v. Fernandes, AIR 1939 Bom 454; Ramabai Govind v. Anant Daji, AIR 1945 Bom 338 and Sher Bahadur Singh v. Ram Narain Singh, AIR 1945 Oudh 1."
In Dharam Singh Satawansingh v. Densingh Sitaram, AIR 1950 Nag 102 it has been held as under:
"Partition of land revenue paying estate has to be made by a Collector under Section 54, Civil P.C., or by a revenue officer under Chap. 11, C.P. Land Revenue Act, 1917. A Civil Court has no jurisdiction or power to effect a partition of land revenue paying estate or to reopen a partition already made by a Collector or revenue officer. The duty of a Civil Court is to give effect to the partition made by a Collector or a revenue officer in exercise of the cowers vested in him. The power to deliver possession in accordance with the partition made is quite distinct from the power to effect a partition. A Collector or a revenue officer effecting a partition has the power to deliver possession in pursuance of the partition. The existence of the power is necessary to complete the partition.
"These provisions have been the subject of numerous decisions. A reference may be made to some of the decided cases. In (1891) ILR 15 Bom 527 and ILR 42 Bom 689: (AIR 1918 Bom 206) it was held that a civil Court has no jurisdiction to re- open a partition made by the Collector and has no power to examine his work or to direct him to make a fresh partition. In AIR 1939 Bom 454 : (186 Ind Cas 119) it was held that when an order is made for partition of lands assessed to Government revenue, the Court makes an order Page 30 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined decreeing partition and directing the parties to be put in possession and, referring it to the Collector to carry out the partition. It was further held that when an order in that form is made, the Court"s duties are finished, and it is for the Collector to partition the property and put the parties into possession. To the same effect are the decisions in Chandumal v. Haaz, AIR 1943 Sind 7, AIR 1945 Oudh 1: (1944 OWN 416) and AIR 1946 Nag 353: (224 Ind Cas 353). In AIR 1943 Sind 7:
(ILR (1942) Kar 162). it was held that the Court is bound by the terms of the Civil P.C., and has no power so to fetter the discretion of the Collector as to overrule the powers that are conferred upon him under Section 54 and Order 20, Rule 18 of the Code, in AIR 1945 Oudh 1: (1944 OWN 416), it was held that where a civil Court passes a decree for partition, it should be presumed that the procedure, prescribed in Order 20. Rule 18, has, been adopted and that in the case of immovable property assessed to land revenue, the civil Court has no further jurisdiction in the matter. In Lachhiram Jasram v. Nanba Dhanaji, AIR 1946 Nag 353: (224 Ind Cas 353) it was held that Section 54, read with Order 20. Rule 18, authorises the civil Court only to declare the rights of the several parties interested in the property and places the execution of the decree entirely in the hands of the Collector; how the partition is to be made lies wholly within the authority of the Collector; and the civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with the property. In a recent case, nkataraghaya Rao v. Venkata Hanumantha Rao, ILR (1946) Mad 10: (AIR 1945 Mad 336) (FB), it was held that a Court which has passed a decree for partition to which Section 54, Civil P.C., applies and has sent it to the Collector for the purposes of effecting the partition has Page 31 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined no power to hear objections to the partition made by the Collector or his subordinate or to modify the partition; the Collector when acting under Section 54 has a statutory duty to perform and, in performing it he is not under the control of the Court; he is not even required to report to the Court what he has done; when he has made the partition no order of the Court is necessary, and once the Court has sent the decree to the Collector for action under Section 54, the matter passes entirely out of its hands."
In Mst. Hironda v. Mst. Anti, Civil Revn. No. 820 of 1969, D/- 8-7-1970: 1970 MPLJ (SN) 91 it has been held that the Civil Court, when disposing of a suit for partition relating to revenue paying lands, has only to declare the shares of the parties and has no other power in the matter. That power having been exercised and the papers having been sent to the Collector for effecting actual partition, the Court becomes functus officio. The Court thereafter could not entertain any application in relation to that matter either for ascertainment of mesne profits or for delivery of possession etc. In AIR 1945 Bom 338, it has been held as under:
".........When making partition the Collector does not purport to make a final decree. He proceeds from division by metes and bounds to delivery of possession as in one proceeding, and not as if he was conducting two distinct proceedings, one equivalent to a proceeding in suit, and the other to, a proceeding in execution. See : (1887) ILR 11 Bom 662. In my opinion, therefore, the decree made in the form of Order 20, Rule 18(1), technically must be classified as a final decree."Page 32 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024
NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined In Ningappa Balappa v. Abashkhan Goushkhan, AIR 1956 Bom 354, relying upon AIR 1945 Bom 338 (UB), it has been held that after a decree for partition of lands assessed to revenue has been passed, the Court has nothing further to do with the decree. The decree is to be executed and the partition is to be effected by the Collector. There cannot, therefore, be any execution proceedings before the Court in the case of such a decree. The present applications, which are said to have been made under Section 47, Civil Procedure Code, were, therefore, not maintainable. In Muppanna v. Channappa, AIR 1964 Mys 169, it has been held that the powers and functions of the Collector under Section 54 are analogous to the powers and functions of the civil Court in the final decree proceedings for partition of properties other than an estate. Thus, it is clear that in the present case the Civil Court had no jurisdiction to pass a final decree after the partition was effected by the Collector and to execute the decree so far as the revenue paying lands are concerned.
7. The learned counsel for the respondent on the other hand relied upon Tikaram Khupchand v. Hansraj Hazarimal, AIR 1954 Nag 241 for his contention that the jurisdiction of the civil Court is not ousted. But the decision in that case cannot be made applicable to the facts of the present case and as such the said authority is not relevant at all. In that case, the matter was referred to arbitration regarding the partition of revenue paying lands and it was open to the arbitrators to divide the estate in such a way that the payment of revenue is not divided, i.e., by allotting the entire items of land to one party or the other. In those circumstances, all that the Court had to do in such cases is to hear the objections to the award Page 33 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined and either to set it aside or to pass a judgement of the award. The arbitrators are not governed by Section 54 of the Code of Civil Procedure which is a section binding on the Court. In passing judgement on award, the Court does not pass a decree of partition of an undivided estate. That has been achieved by the award itself and all that the Court does is that the Court passes judgement in terms thereof. The other case relied upon by the learned counsel for the respondent is Kanhaiya v. Mst. Lilabai, 1970 MPLJ 76. In that case, the Court was required to consider whether under Section 178 of the M.P. Land Revenue Code, 1939 the jurisdiction of the civil Court is ousted and it was held that under Section 178 of the M.P. Land Revenue Code, the Tahsildar can divide the holding physically and partition the land but he has no right to allot the holding to one party and direct payment of compensation to other. That function is that of the Civil Court. From this point of view also, the proper interpretation is that it is an enabling provision and has not the effect of ousting the jurisdiction of the civil Court. Thus, the above citation is not at all relevant as interpretation of Order XX, Rule 18, read with Section 54 of the Code of Civil Procedure was not involved at all in that case.
8. From the aforesaid discussion we come to the conclusion that although in the instant case a final decree was actually passed and even though it was not challenged by the appellant, that would not in any way preclude the appellant from raising the present objection that the civil Court had no jurisdiction to pass the final decree and execute the same after the matter was referred to the Collector under Order XX, Rule 18 read with Section 54 of the Code. The civil Court had become functus officio and it was not competent to pass a final Page 34 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined decree which it did in terms of the partition effected by the Collector."
24. This Court in Ravatsinh Ranubha Versus V.S.Sinha Or His Successor [2001 (2) GLR 1679] also decided this issue and held in paragraph 9 to 13 as under:
"9. In the case on hand, a preliminary decree for partition of the properties both agricultural lands and other properties came to be passed by the then learned Civil Judge (SD) at Bhavnagar. The copy of the decree was then sent to the Collector, Bhavnagar for effecting the partition of the agricultural lands subject to assessment of land revenue and putting the parties into the possession of the land fallen to their respective share. This has been done because of the provision of Sec. 54 of the Civil Procedure Code. In view of the rival contentions, the questions (1) whether the decree passed is in the eye of law the preliminary decree or the final decree so far as it relates to the division of the property (land) subject to assessment of revenue, (2) whether the Collector is the revenue officer and against his decision qua partition of the land subject to assessment of land revenue appeal or revision would lie before the Revenue Authority in hierarchical set-up under the Code or before the Civil Court passing the decree under C.P.Code, (3) what is the control of the Civil Court passing the decree, and (4) whether the Collector to whom the decree is sent u/S. 54 C.P.Code for partitioning the agricultural land subject to land revenue has to pass final decree or make any report to the Court arise for determination. In order to decide the questions, firstly relevant provisions of C.P.Code may be stated.
["54. Partition of estate or separation of share ["Where the Page 35 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined 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." ] One should not miss to note, Rule 18 of Order 20, C.P.Code helpful to decide whether the decree passed for partition of the agricultural lands subject to assessment of land revenue is the final decree or a preliminary decree, and that provision is couched in the words as under:
["18. 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 Sec. 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."] It may be mentioned here, that one must not overlook the definition of the decree given vide Sec. 2(2) Civil Procedure Code Page 36 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined which runs as under:
["2.(2) "decree" means the formal expression of an adjudication which, so far as [regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, but shall not include -
[(a) any adjudication from which an appeal lies as an appeal from an order, or [(b) any order of dismissal for default.
[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.] In view of such provisions and especially explanation to Sec. 2(2) and sub-Rule (2) to Rule 18, Order 20 which provide to pass preliminary decree qua the properties other than properties assessed to the payment of revenue to Government, the decree passed directing to partition the agricultural land will be the final decree as the Civil Court has nothing further to do in the matter, which is required to be done when properties other than agricultural land are ordered to be partitioned. After the decree directing the Collector to partition the agricultural lands subject to land revenue is passed, the Civil Court has even not to execute the decree; the Collector has to partition and put the concerned parties into the possession of the portions fallen to their share. The Civil Court has then not to Page 37 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined even adjudicate any issue. Hence by passing the decree qua agricultural lands the suit is finally and completely disposed of. The decree passed ordering to partition the properties both agricultural as well as non-agricultural properties, will be the final decree so far as it relates to agricultural lands subject to land revenue, while it will be the preliminary decree so far as it relates to the properties, not assessed to the payment of revenue to Government.
10. Necessary case laws, some of which are cited by the parties, throwing light on the proposition may be referred to though in view of above clear provisions no case-law is required to be referred to. The Bombay High Court had an occasion to deal with the question in D. M. Jacinto & Anr. V/s. J.D.B. Fernandes - 1939 Bombay 454 = 41 Bom. L.R. 921. Keeping Rule 20, Order 18, Civil Procedure Code in mind, it is held that when the decree is sent to the Collector for carrying out the partition of the agricultural land and subsequently the application is filed by the parties to the Court to send the decree and papers to the Collector, the same does not amount to execution. In that regard, it is further observed that when the decree is passed by the Court, its duties are finished and it is for the Collector to partition the property and put the parties into possession. When decree, may be a preliminary decree, is passed in a partition suit but agricultural lands are to be divided, the same would be a final decree as the actual partition of the agricultural lands is to be carried out by the Collector and nothing further in this regard is required to be done by the Court. In the case of Ramabai Govind V/s. Anant Daji - AIR (32) 1945 Bombay 338, the question was relating to limitation. In that connection, it is held that after the decree for partition of revenue paying land is passed, the application to send the Page 38 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined papers to the Collector is not governed by Art. 181 or 182 of the Limitation Act. In that decision, it is observed at page 340 that the decree passed will not fall within the definition of a preliminary decree as given in the Explanation to Sec. 2, sub-
sec. (2), Civil Procedure Code and referring to a decision of the Calcutta High Court in 57 Calcutta 1013, it is observed that in fact no other final decree is ever passed after decree is once passed under Rule 18)1 Order 20, C.P. Code. A preliminary decree cannot for ever remain a preliminary decree, but contemplates a final decree upon which the decree-holder may take out execution. The Collector cannot make a final or first decree in a Civil Suit for partition, and yet the Civil Court is not required by the Code to pass any further decree or to make its decree final at any stage. Upon this footing the first and final decree to be passed by the Court would be a final decree. In Ramagouda Rudregouda Patil & Ors. V/s. Smt. Lagmavva & Ors. - AIR 1985 Karnataka 82, it is made clear that after the decree is passed for effecting the partition of the estate subject to assessment of land revenue and the decree is sent to the Collector for effecting the partition and handing over the possession to the concerned parties, the jurisdiction of the Collector remains confined only to the partition of the lands, i.e. actual division by metes and bounds and handing over the possession of a share. Whether the concerned land is partible or impartible can be determined by the Court and not the Collector. It is also made clear that the decree so far it relates to the agricultural land would remain to be a preliminary decree and not a final decree.
11. Out of these three authorities first two support the view I have taken hereinabove. Whenever in a partition suit the decree for division of the agricultural lands subject to land revenue is Page 39 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined passed, the same would be the final decree as the actual partition is to be carried out by the Collector and nothing further is required to be done by the Civil Court, and no direction remains to be issued. As discussed herein below the Civil Court may have a limited control over the Collector, but that does not relate to basic feature of partition of the land as per decree and putting the parties into the possession of the land falling to their share. Such control will not therefore make the decree preliminary. In the decision of Ramagouda Rudregouda (supra), the Karnataka High Court does state that once the decree declaring the shares of the parties is passed, the Civil Court has nothing more to do, meaning thereby the case has come to an end. The decree viewing from such angle will be final for the Civil Court is the observation made referring its earlier decision in Raojirao Desai's case wherein it is held that so far as Civil Court is concerned, the decree passed under Rule 18(1), Order 20, C.P. Code directing partition by the Collector is final and not preliminary; but to negative the contention raised that the period of limitation qua execution would begin to run in the case of a final decree, it is held that for the Civil Court after a decree is passed it has nothing further to do in the matter and the case comes to an end; however the decree cannot be termed a final decree. It is not elucidated how it cannot be termed to be the final, and would remain to be preliminary though the Court has nothing further to do. It is therefore not possible to assign dissenting reasons. However, it may be stated that it is not made clear when the Court will have to pass final decree if the decree passed declaring the shares of the parties and sent to Collector under Sec. 54, C.P. Code for partition and delivery of possession qua the estate assessed to the payment of revenue to the Government is the preliminary Page 40 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined decree. In my view, when C.P. Code does not in such case provide for a final decree, the decree passed under Rule 18(1), Order 20 C.P. Code should be treated to be final. With respect therefore the view taken by the Karnataka High Court cannot be accepted. Even otherwise also, the view of the Karnataka High Court being contrary to the Bombay High Court's view in above- stated two decisions cannot be accepted. It may be stated that the decisions of the Bombay High Court, rendered prior to 1-5- 60, the day on which Guj. State & High Court of Guj. came into being, owing to bifurcation of then bilingual State of Bombay are to be treated to be the decisions of this Court and the same have to be, keeping the law of binding precedent in mind esteemed. The decisions of the Bombay High Court show correct position of law and there is no justifiable reason to differ and refer the issue to a larger Bench. As per the Bombay decisions, the contrary view cannot prevail. The Court has, after passing the decree, a little control over the Collector's performing his function after the receipt of the decree and that also shows that the decree passed must be treated to be the final decree. I may refer the decision regarding Courts' control over the Collector after the decree is passed, and sent to Collector under Sec. 54, C.P. Code for partition and delivery of possession.
12. The High Court of Bombay in the case of Bhimangauda Konapgauda Patil V/s. Hanmant Rangappa Patil - 20 Bom. L.R. 411 = AIR 1918 Bombay 206 = 42 Bombay 689, has held qua Sec. 54 of the Civil Procedure Code that when the Collector acting under Sec. 54 of the Civil Procedure Code effects partition, it is not open to the Civil Court to entertain any application seeking reopening of the partition because the policy of Sec. 54 is that the Legislature thought that the Collector would be better qualified than the Court to carry out such Page 41 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined partition. The policy would be defeated if the appeal is allowed permitting to reopen the partition made by the Collector. Regarding execution of the decree qua the agricultural land subject to the land revenue the Bombay High Court in Timmanna Parmeshwar Bhat V/s. Govind Ganpati Bhat & Ors.
- AIR 1926 Bombay 258 has laid down that once the Collector executes the partition, the Court cannot send the case again to the Collector for repartition. It is also held that the Collector must follow the terms of the decree. If he disregards the terms of the decree and divides the property not in conformity with the terms of the decree, the Court is entitled to interfere. The Collector has no power to read the decree together with the judgment so that he can partition the land in a manner which is not contemplated by the decree. The High Court of Sind had an occasion to deal with the question in the case of Chandulal Jasumal & Ors. V/s. Hafiz s/o. Din Muhammad & Ors. AIR (30) 1943 Sind 7. What is held therein is that the act of effecting the partition under Sec. 54, and Rule 18, Order 20 C.P. Code is a ministerial work of the Court. The Collector therefore cannot disregard the terms of the decree. He cannot divide the property in contravention of the terms of the decree, and if he does so the Court is entitled to refer the case back to the Collector, to partition the property in accordance with the terms of the decree. The Collector cannot alter the decree. The Court cannot dictate to the Collector the manner in which the estate shall be partitioned or divided. The Collector must divide the estate in accordance with the rights declared in the decree, but in the manner he thinks best bearing in mind the need and the convenience of the land as a revenue paying entity. So far as shares are concerned, the Collector is bound by declaration of the rights of the parties. The Collector has also to esteem the Page 42 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined preferential right declared qua particular piece of property. The Court has no power to fetter the discretion of the Collector to overrule the powers conferred upon the Collector under Sec. 54 and Order 20, Rule 18, C.P. Code. The High Court of Madras in Sree Rajah Mantripragada Venkataraghava Rao Bahadur, Zamindar Garu & Ors. V/s. Sri Rajah Mantripragada Venkata Hanumantha Rao Bahadur, Zamindar Garu (deceased) & Ors. - AIR (32) 1945 Madras 336, has when occasion arose laid down that when the Collector under Sec. 54 of the Civil Procedure Code partitions the agricultural lands subject to the Government revenue, the Civil Court has no power to hear the objection because once the Court sends the decree to the Collector for action under Sec. 54, the matter passes entirely out of its hands and Court has no right to interfere. The Court has no power to examine his work or direct him to make a fresh partition and even cannot direct to modify the partition. In the case of Dharam Singh Satawansingh V/s. Deosingh Sitaram - AIR (37) 1950 Nagpur 102, what is observed is that the partition of land revenue paying estate has to be made by the Collector under Sec. 54 of the Civil Procedure Code or by any other Revenue Officer, the Civil Court has no jurisdiction or power to effect the partition of the land revenue paying estate or reopen the partition already made by the Collector or the Revenue Officer. The duty of the Court is to give effect to the partition made by the Collector or the Revenue Officer, but the power to deliver the possession in accordance with partition made is quite distinct from a power to effect the partition. The Collector effecting the partition has the power to deliver the possession so as to complete the partition, but if that is not done a party can approach the Civil Court with a suit to recover the possession in accordance with the partition effected by the Collector or the Page 43 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined Revenue Officer. The High Court of Bombay, in Ningappa Balappa & Ors. (supra) has laid down that after the decree for partition of the land assessed to land revenue has been passed, the Court has nothing further to do with the decree. The decree is to be executed and the partition is to be effected by the Collector. There cannot be therefore any execution proceeding before the Court. However, the Court is not entirely deprived of controlling the action taken by the Collector, but this control is very limited. The Court has to exercise with limited control only if the Collector contravenes the decretal order or transgresses the law relating to partition or refuses to execute the decree. The duty of the Court comes to an end when it passes the decree and when no execution proceeding can lie before the Civil Court, it is not open to the Court to entertain an application under Sec. 47 and give direction to the Collector qua the manner in which the decree is to be executed. The High Court of Madhya Pradesh, in Bhagwansingh V/s. Babu Shiv Prasad & Anr. - AIR 1974 M. P. 12, while dealing with the issue has held that when the Court passes the preliminary decree for partition and transfers the decreeto the Collector for effecting the partition, the Civil Court becomes functus officio, and if subsequently final decree is passed by the Court it is without jurisdiction and not enforceable. The Supreme Court, in the case of Khemchand Shankar Choudhary & Anr. V/s. Vishnu Hari Patil & Ors. - AIR 1983 S.C. 124 has held that once the decree for partition is passed and the same is sent to the Collector for effecting the partition of the agricultural land and thereafter the property is transferred, the transferees during the pendency of the partition can appear and claim equitable partition even though they were not the parties to the suit in the Civil Court. The Collector has not to in that case fold the Page 44 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined hands and return the papers to the Civil Court. If there is no dispute regarding the transferees, the Court may proceed to make allotment of the property in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they had no locus standi. Where there is no dispute in such a case and the Collector makes an equitable partition he would neither be violating a decree nor transgressing any law. The High Court of Bombay, in the case of Dev Gopal Savant V/s. Vasudev Vithal Savant - 12 Bom. 372, has held that when the preliminary decree is passed with regard to the estate subject to land revenue the execution thereof is entirely in Collector's hand, but that does not deprive the Court of a judicial control of its decree, as for instance, if it should appear to have been obtained by fraud or surprise, or if the Collector acts in a bad faith or contravenes the command of the Court or transgresses the law. If it is alleged that the Collector made objectionable partition, it would not be a ground for the Court to interfere. In the case of Shrinivas Hanmant V/s. Gurunath Shrinivass - 15 Bombay 527, it is held that the Collector is not subject to Superintendence of the Court or revisional jurisdiction of the Court. The Court has no power to examine the work of the Collector or direct him to make fresh partition. It is also made clear that the Collector cannot refuse to carry out the decree. In the case of Purushottam V/s. Balkrishna - 28 Bombay 238, it is made clear that the Court has the power to set aside wholly or partly a partition made by the Collector, in execution of a decree sent to him under Sec. 265, C. P. Code, 1882 (now Sec. 54) if it is found that the Collector has contravened the decretal command or has acted ultra vires because action of the Collector is subject to the control and correction of the Court. In the case of Ramachandra Dinkar Page 45 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined V/s. Krishnaji Sakharam - AIR 1915 Bombay 279 = 40 Bombay 118 what is made clear is that the Collector should be treated to be the agent of the Civil Court and therefore the Court has a power to correct the mistake made by the Collector in carrying out partition. In Ningappa Balappa's case (supra), it is made clear that after the decree for partition of land assessed to revenue is passed, the Court has nothing further to do with the decree. The decree is to be executed and partition is to be effected by the Collector. Execution proceedings can never be before the Court. It is also made clear that the Court has a limited control which is to be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition, or refuses to execute the decree.
13. A perusal of Secs. 54 & 2(2), as well as Rule 18, Order 20 Civil Procedure Code, and the above stated pronouncements or these provisions, make it clear that whenever a preliminary decree in the partition suit is passed and the copy thereof is sent to the Collector under Sec. 54 of the Civil Procedure Code for effecting the partition of the properties assessed to land revenue, nothing further is required to be done by the Civil Court in the matter. The Civil Court cannot direct to reopen the partition, or after partition is effected the Court cannot send the case again to the Collector. The Court can neither dictate how to partition the estate assessed to the payment of revenue to the Government, nor hear objections qua partition and possession to be given. The Collector is also not under the superintendence of the Court. However, the Court is not powerless; it has limited control over the Collector to whom the decree is sent for effecting partition under Sec. 54 C.P. Code and put the parties into the possession of the land fallen to their respective shares. If the Collector disregards the decree, or alters the decree or Page 46 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined alters the rights and obligations of the parties under decree, or does not divide the estate in confirmity with the decree, or refuses to esteem the decree, or acts in bad faith, or acts as the Appellate Authority over the Civil Court, or decides the question determinable only by the Civil Court, the Civil Court on being moved can pass appropriate order, correct the mistake made relating to the subject falling within limited control and issue appropriate direction. It may be stated that if the Collector is acting contrary to the direction of a decree or is not putting the sharers in the possession or there is a confusion and correct interpretation of the decree is not possible and some explanatory note is necessary or the properties in the meanwhile are sold and transferees are not heard by the Collector, or their claim is also not considered by the Collector or a question regarding devolution or any other issue arises for which the Collector is not competent to decide, the Civil Court will have the power to dispose of the application in that regard and give to the Collector an appropriate direction. Such limited control indicates that the decree in partition suit passed relating to the estate assessed to the payment of revenue to Government is the final decree, and not the preliminary decree. The view taken in Ramagouda Rudregouda's case (supra) is for the above-stated provisions and reasons is with respect not appealing."
25. What appears in the present case is that respondent who is non-party to the suit or not a party to the suit, preferred the recall application to the civil court which has passed the preliminary decree with a prayer to recall the preliminary decree. As stated herein above, the civil court after passing the preliminary decree in RCS No.210 of 2012 and sent it for Page 47 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined partition to the Collector in view of Section 54 read with O.20 R.18 of the CPC becomes functus officio, to entertain the application. The trial court has committed serious error not only in entertaining the recall application; but passing status quo order staying its own preliminary decree from the execution which is serious jurisdictional error committed by the court below. The court having become functus officio cannot entertain any further application against the preliminary decree and set the clock back prior to the preliminary decree. Hence, the petition deserves merits.
26. As far as the decision on which learned advocate Mr.Viral Shah has relied upon in case of S.P. Chengalvarya Naidu (Dead) by L.R.s (supra) which holds that when fraud is played upon the court, it can be challenged in any court in collateral proceedings. No assistance is received from the said proposition of law. In the present case, the respondent has failed to prove that fraud was played upon the court.
27. The decision in case of United India Insurance Company Limited vs. Rajendra Singh (supra) is concerned it was a case where fraud was played upon the court in MACP. The petitioner though had not received any injury had produced false certificate on record to obtain award. Since it was a plaint fraud on the tribunal it was held that recall petition is maintainable. The fact of that case is different.
28. The decision in case of Late Chhotabhai Nathabhai Patel vs. Dilipbhai Shantilal Thanki (supra) relied upon by learned Page 48 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/23710/2022 CAV JUDGMENT DATED: 01/07/2024 undefined advocate Mr.Viral Shah to contend that the petitioner had no other legal provision / remedy available except to approach the same court for reopening of the preliminary decree. This judgment was delivered in context of O.23 R.3 read with O.23 R.3A read with O.43 R.1A(2) of CPC in regards to challenge of consent decree. In the present case, there is no consent decree. The court has adjudged the issue and passed the preliminary decree. If it is adversely affecting the respondent, the remedy is available by way of an appeal under Section 96 of the CPC.
29. For the foregoing reasons, the petition succeeds. Impugned order is quashed and set aside. The respondent is given liberty to seek appropriate remedy as may be permissible under the law. This court clarifies that merits and de-merits of the recall application has not been examined.
30. Connected CA does not survive and stands disposed of accordingly. R & P be sent back to the court below.
FURTHER ORDER After pronouncement of the judgment, learned advocate Mr. VK Shah requests to stay the order for a further period of four weeks so as to enable him to approach the higher forum. In view of the fact that the learned trial Court is considered as coram non judice to pass interim order as well as opportunity is granted to the respondents to conduct the appropriate proceedings before appropriate forum, the request is declined.
(J. C. DOSHI,J) sompura/shekhar barve Page 49 of 49 Downloaded on : Mon Jul 01 21:11:36 IST 2024