IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Civil Revision Petition No. 118/2009 1. Md. Iman Ali, 2. Md. Abdul Basar, Both are sons of Late Ahmed Ali, 3. Msstt. Khadja Khatoon, Wife of Late Abdul Haque. 4. Msstt. Abjan Nessa, Wife of Late Ahmed Ali, All are residents of Village Jaypur, Mouza-Ghilajari District: Barpeta (Assam). - Petitioners/Judgment Debtors. -VERSUS- 1. Md. Abdul Mazid, 2. Md. Abdul Kaddus, Both are sons of Late Ahmed Ali, Residents of Village Jaypur, Mouza-Ghilajari 3. Msstt. Abjan Nessa, Wife of Hanif Ali, Resident of Village Hilapakuri, Mouza-Howli District: Barpeta (Assam). - Opposite Parties/Decree Holders. BEFORE HON BLE MR JUSTICE HRISHIKESH ROY For the Petitioners: For the Opposite Parties: Mr. D. Mazumdar, Sr. Advocate. None. Date of hearing & judgment: 22.01.2015. JUDGEMENT AND ORDER (ORAL) The petitioners were the defendants in the partition case i.e. T.S. No.11/2004, which was allowed by the learned Civil Judge, Jr. Divn. No.1, Barpeta on 9.9.2005 (Annexure-3). The plaintiffs claim to the extent of their share on the suit land was granted by specifying the area for each of the
2 parties. There was no challenge the judgment and consequently the decree became executable. 2. But although the undivided estate was assessable to Govt. revenue, in which case the Collector is expected to make the partition, direction was issued by the learned trial Judge to the revenue authorities to effect the partition and issue separate dag and patta numbers in favour of the plaintiff. The Court s decree was also accordingly drawn up with similar direction to the Revenue Authorities. 3. When the decree was put to execution in the T. Ex. Case No.1/2006, the decree holder prayed for issuing a precept to the Revenue Authorities for issuing a separate patta and for delivery of possession of his share of the land and accordingly the executing Court i.e. the 1 st Civil Judge (Jr. Divn.), Barpeta on 2.1.2006 issued the precept as prayed for by the decree holder. 4. But the manner of executing the decree was challenged by the Revision Petitioners (judgment debtors) through their objection dated 20.2.2009, where they specified that the judgment debtors Iman Ali and Abdul Basar have dwelling houses in the suit land and therefore those can t be demolished for effecting the partition since the houses are to be protected under Section 110 of the Assam Land & Revenue Regulations, 1886 (hereinafter referred to as the Revenue Regulation ). But the decree holder in their response claimed that only after partition of the land and determination of the respective share, steps for the existing houses should be taken. After considering the rival submission, the Executing Court through the impugned order dated 23.3.2009 (Annexure-7), rejected the judgment debtors application and directed the Revenue Authorities to demarcate the decreetal land. 5. The revision petitioners (judgment debtors) are represented by Mr. D. Mazumdar, learned senior counsel. However none is present for the opposite parties (decree holders). 6. The senior counsel refers to the provisions of Section 110 of the Revenue Regulation to project that when the dwelling house of a sharer is included in the estate assigned to another, in making partition of the land occupied by the dwelling house in possession of the concerned co-sharer should be allowed to be retained on condition of paying reasonable ground rent to the sharer into whose portion, the building area may fall. Section 54
3 of the C.P.C. is cited by the counsel to project that where a decree is passed for partition of an undivided estate assessed to land revenue, the partition of the estate and the separation of the share should be made by the Collector or a Gazetted Officer deputed by him. Similar role for the Collector is envisaged in partition property assessed to Govt. revenue, under Order XX Rule 18(1) of the C.P.C. 7. Section 2(2) of the C.P.C. defines decree as formal expression of an adjudication and in the event when further proceedings have to be taken before the suit is completely disposed of, it is a preliminary decree and after complete adjudication, the preliminary decree becomes the final decree under explanation to the definition section. 8. If we consider that this was a suit for partition of revenue payable estate, the formal partition ought to have been done by the Collector. But unfortunately while decreeing the suit, the Revenue Authorities were specifically directed to carry out the exercise by ignoring the Collector s role under the Act. 9. But since there was no challenge to the judgment/decree of the Trial Court, the executing Court despite the specifications made under Section 54 and Order XX Rule 18 of the C.P.C., overlooked the Collector and ordered the Revenue Authorities to demarcate the share of the plaintiff. But in the process, the standing dwelling houses of the judgment debtors were proposed to be demolished to vacate the estate, by overlooking the right of the judgment debtors to retain his dwelling house, as is provided under Section 110 of the Revenue Regulation. 10. Before proceeding any further, it may be appropriate now to extract the relevant provisions of the Revenue Regulations and the C.P.C.:- Assam Land & Revenue Regulations, 1886 Rule when building of one sharer is included in estate assigned to another:- 110. (1) If, in making a partition, it is necessary to include in the estate assigned to one sharer the land occupied by a dwelling house or other building in the possession of another co-sharer, that other co-sharer shall be allowed to retain it with any buildings thereon, on condition of his paying a reasonable ground-rent for it to the sharer into whose portion it may fall. (2) The limits of the land, and the rent to be paid for it, shall be fixed by the Deputy Commissioner.
4 Code of Civil Procedure, 1908 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (1). (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 section 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: 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. Order XX, Rule 18. Decree in suit for partition of property or separate possession of a share therein Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the right of the several parties, interested in the property and giving such further directions as may be required. 11. The provision of Section 110 of the Revenue Regulation was incorporated to protect the possession of a dwelling house by a co-sharer, in the event the house area falls to the share of another during a partition exercise. Therefore law does not envisage demolition of standing building and a co-sharer is entitled to retain possession of his building by paying reasonable ground rent for it to the sharer into whose share the house area may fall. Of-course the limits of the land and the rent to be paid for it are to
5 be fixed by the Dy. Commissioner under Sub-Section 2 of Section 110 of the Revenue Regulation. 12. When partition of the Govt. revenue paying estate is to be made under Section 54 of the C.P.C., it is the responsibility of the Collector or his nominee to bifurcate the share. When decree is passed in a suit for partition under Order XX Rule 18 of the C.P.C., the decree should not only declare the right(s) of the parties but should further direct the partition or separation to be made by the Collector or his nominee, in accordance with the provisions of Section 54 of the C.P.C. 13. If we give reasonable meaning to the provisions of Section 54 & Order XX Rule 18 of the C.P.C., it is clear that further proceedings by the Collector was needed to be taken before the partition case could be effectively concluded and therefore in this case, a preliminary decree should have been drawn up by the Court and only after the requisite exercise is carried out by the Collector under Section 54 of the C.P.C., the preliminary decree can be made final. 14. The Court is informed by the learned Senior counsel for the petitioner that the Collector while exercising powers under Section 54, issues notice to all interested parties and hears objection and after considering the same, a Saham (apportionment of shares) is issued and on this basis, the partition of revenue paying estate is made. If we consider this practice of preparation of Saham by the Collector, it is apparent that in a partition suit for revenue paying estate, the Court should prepare a preliminary decree and only when the Collector carries out his exercise under Section 54 of the C.P.C. and Section 110 of the Regulation, the partition is actually affected. 15. While examining the provisions of Section 54 of the C.P.C., a Five Judges Bench of this Court in Amar Nath Kumar vs. Mrinal Kanti Khullar reported in 2012 (1) GLT (FB) 716 opined that Section 54 of the C.P.C. applied to decree passed by the Civil Court and the revenue paying estate can be partitioned by the Collector or his nominee, in accordance with the Civil Court decree. 16. In view of the special provision of Section 54 of the C.P.C., the decree contemplated under Sub-Rule (1) of Rule 18 Order XX is actually in the nature of a preliminary than a final decree, as further proceedings are left to be done by the Collector.
6 17. In the case in hand, the Executing Court without discussing the provisions of Section 54 & Order XX Rule 18 of the C.P.C., on the basis of which the judgment debtors raised objection, mechanically directed the Revenue Officials to demarcate the decretal land for affecting the partition decree and this, according to me, was not the correct procedure. Perhaps the Executing Court may have been constrained by the specific direction given to the Revenue Authorities in the judgment and decree drawn up by the trial Court. 18. In view of above, the impugned order(s) dated 23.3.2009 and 2.1.2006 in the T. Ex. Case No.1/2006 are quashed. Consequently since the decree holders in their response filed on 19.3.2009 had admitted the existence of dwelling house in the un-partitioned estate, the partition of the said estate is directed to be carried out in accordance with Section 110 of the Revenue Regulation to protect the dwelling house of the judgment debtors subject to appropriate terms, under law. As the directions issued to the Executing Court stand quashed, the matter is remanded back to the Executing Court for it to direct that the required exercise is to be done by the Collector or his nominee in accordance with Section 54 of the C.P.C. But notice must be issued and hearing be afforded to all parties before affecting the partition. It is ordered accordingly. 19. With the above direction, the case stands allowed without any order on cost. The Registry should return back the LCR alongwith a copy of this order. Barman. JUDGE
7 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Civil Revision Petition No. 118/2009 1. Md. Iman Ali & others. - Petitioners/Judgment Debtors. -VERSUS- 1. Md. Abdul Mazid & others. - Opposite Parties/Decree Holders. BEFORE HON BLE MR JUSTICE HRISHIKESH ROY For the Petitioners: For the Opposite Parties: Mr. D. Mazumdar, Sr. Advocate. None. Date of hearing & judgment: 22.01.2015. FR NFR JUDGE