Khajabhai s/o. Abdula Sahab Lukade & others vs Mohammed Ishaq s/o. Abdullasaheb Lukade & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 317

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Khajabhai s/o. Abdula Sahab Lukade others.... Petitioners.
Versus
Mohammed Ishaq s/o. Abdullasaheb Lukade others.... Respondents.
Writ Petition No. 670 of 1984, decided on 12-7-1991.
Advocates appeared:
V.G. Mete, for petitioners.
Miss. Namrata Ranade, holding with S.A. Deshmukh, for respondent No.1.
S.K. Barlota, Asst. Govt. Pleader, for respondent Nos. 4 to 8.

Headnote:Section 54-Execution of partition decree-Sent to Revenue Officer Objections to proposed partition raised-Extent of jurisdiction of Revenue officer in dealing with such objections.
       When Tahsildar or any other Officer subordinate to the Collector is entrusted with the job of execution of partition decree or directs the District Inspector of Land Record or any Officer subordinate to him to measure the land and submit a report proposing the partition, such Cadastral Surveyor or the measurement officer is nothing more than a Commissioner appointed under Order 26 Rule 13 of the Code of Civil Procedure. Report of the measuring Officer is to be considered by the Tahsildar or the Officer executing the partition under section 54 and he has to apply his mind, Tahsildar is not merely a Post Office whereby the Communicates of the Collector is to be sent to the District Inspector of Land Record For the purposes of execution of a partition decree involving an estate subjected to the land revenue, Tahsildar steps into the shoes of the Civil Court executing the decree. Therefore, such Officers are under a bounden duty to apply their mind to report about the proposed partition and they cannot refuse to exercise the jurisdiction vested in them. It is true that normally a report to the commissioner in a partition decree need not be interfered into because the report is based on local enquiry. But the jurisdiction vested in the Court which is in the cases like the case at hand, is with the Tahsildar or the Revenue Officer and this jurisdiction cannot be delegated to the measuring Inspectors. In the instant case, I the Tahsildar simply said that he had no powers to do anything. Therefore he had failed to exercise jurisdiction vested in him by law. He should have considered the objections of the petitioner on merit and given a decision. Since the Tahsildar which is the first Court which was competent to consider the objections of the petitioner has failed to exercise the jurisdiction vested in him, it would not he necessary to direct the petitioner to avail of the remedy of second appeal to the Collector to which he would otherwise entitled to. It is necessary to direct the Tahsildar to consider the objections put forth by the present petitioner.
       Civil Procedure Code 1908, Section 54 & Maharashtra Land Revenue Code, 1966, S. 247 (1)-Decree for partition sent to collector for execution who forwarded matter to Tahsildar-Tahsildar passed order pursuant to proceedings for execution of decree-Order passed by Tahsildar cannot be presumed to proceedings for execution of decree-Order passed by Tahsildar cannot he presumed to be that of collector himself-Tahsildar or any other Revenue Officer executing petition decree would be revenue officer-Tahsildar subordinate to such Divisional officer-Appeal against order of Tahsildar before sub-divisional officer maintainable as provided in schedule read with Sec. 247 of Code, 1966.
       Civil Procedure Code, Section 54 & Maharashtra Land Revenue Code, 1966-Section 247-Petition decree involving estate assessed to and revenue Order passed by Revenue officer in execution of said decree-Would be subject to right of appeal before revenue authorities under relevant provisions of Code 1966.
       Section 247.
       See Civil Procedure Code, 1908, Section 54.
       Section 247 (1).
       See Civil Procedure Code, 1908, Section 54.

JUDGMENT - N.P. CHAPALGAONKER, J.:---A decree for partition passed in Regular Civil Suit No. 144/1981 and sought to be executed in Regular Darkhast No. 14/1983 was sent to the Collector, Osmanabad, for execution under the provisions of section 54 of the Code of Civil Procedure, 1908. Since some of the property involved was assessed to the payment of revenue to the Government, Collector, Osmanabad, was pleased to sent it to Tahsildar, Paranda. Tahsildar, Paranda, directed the District Inspector of Land Record, Osmanabad, to measure the lands and submit a report about proposed partition. Lands were accordingly measured and a report was submitted. A grievance was put forth by the petitioner that all the fertile land is allotted to the share of the respondent whereas he is given the land of inferior quality. But this objection was rejected by Tahsildar, Paranda by his order dated 30th April, 1984, on the ground that the contentions raised by the petitioners are not within his competence and directed that the plaintiff should be put in possession of the share allotted to him.

2. It appears that an appeal bearing No. 1984-ROR-490 was filed by the present petitioners before the Sub-divisional Officer, Bhoom. This appeal came to be dismissed by the Sub-divisional Officer on the count that since Tahsildar was passing an order in a matter which originally Collector is authorized to deal, order passed by the Tahsildar under the delegated powers will have to be presumed to be that of the Collector himself and Sub-Divisional Officer being subordinate to the Collector, is not competent to hear the appeal and the appeal is not maintainable. This order of the Sub-Divisional Officer, Bhoom, dated 1st June, 198 came to be challenged before the Addl. Commissioner, Aurangabad. It was submitted by the petitioners before the learned Addl. Commissioner that since the order of the Tahsildar is taken to be order of the Collector, they are approaching the Addl. Commissioner as an appellate authority. Learned Addl. Commissioner noticing that the Sub-Divisional Officer, Bhoom, had dismissed the appeal, took a view that since the appeal was decided by the Sub-Divisional Officer, a second appeal could have been filed before the Collector under the provisions of Maharashtra Land Revenue Code, 1966. He did not notice that the appeal is not decided on merits. But finding that the appeal is maintainable to the Collector, rejected the revision as untenable.

3. I heard Shri V.G. Mete, learned Counsel for petitioners; Miss, Namrata Ranade, holding for Shri S.A. Deshmukh, for respondent No. 1; and Shri S.K. Barlota, learned Assistant Government Pleader, for respondent Nos. 4 to 8. There was no appearance for respondent Nos. 2 and 3 who are served.

4. Following points arise for my consideration :

(i) When an order passed by Tahsildar in execution of a Civil Court decree, whether the order can be said to be that of the Collector himself for the purpose of remedies?

(ii) What is the extent of jurisdiction of a Revenue Officer while executing the decree sent to him under section 54 in respect of the objections to the proposed partition?

5. First I will consider the question raised about the remedies available to the petitioner. Provision in section 54 of the Code of Civil procedure, 1908, that a gazetted Officer subordinate to the Collector can be asked by the Collector to execute the decree, do not indicate that any order passed by such an Officer would be that of the Collector. Section 247(1) of the Maharashtra Land Revenue Code, 1966, reads thus :---

"In the absence of any express provisions of this Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column 1 of the schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that schedule whether or not such decision or order may itself have been passed on ap

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