1997 Supreme(Bom) 33
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Mhase S.B., J.
Anandrao Ganpatrao Belkhode others .... Applicants.
Versus
Azizul Haq Hazi Abdul Bari deceased by L.Rs. others.... Non-applicants.
Civil Revision Application Nos. 1223 of 1996 5 of 1997, decided on 20-1-1997.
Advocates appeared :
K.H. Deshpande with A.B. Choudhari, A.S. Chandurkar J.S. Mokadam in C.R.A. No. 1223 of 1996, for applicants.
S.H. Voditel, A.V. Gupta S.S. Voditel in C.R.A. No. 1223 of 1996, for non-applicants Nos. 1 to 12.
S.S. Ahmad M. Ayyub Khan in C.R.A. No. 1223 of 1996, for non-applicants Nos. 13 to20.
C.G. Madkholkar with A.B. Choudhari J.S. Mokadam in C.R.A. No. 5 of 1997, for applicants.
Headnote:Section 54, Order XX Rule 18-Maharashtra Land Revenue Code, Section 85-Land assessed to land revenue-Partition suit of agricultural land-Civil Court passes the preliminary decree-Collector empower to effect partition and allot share-Civil Court functus officio after passing decree-Grant of special land by Civil Court lacks jurisdiction.-It is well-settled view that in respect of the agricultural lands, which are assessed to the land revenue, if the partition is to be effected and/or a share has to be carved out as per the decree of the Court, it is the Collector or his subordinate Gazetted Officer, who can effect the said partition and deliver the possession of the share as per the decree of the Court. The provisions of Section 54 of Civil Procedure Code are very much dear. 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. 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 Collector to finalise the partition proceedings and, therefore, whatever the objections as being claimed by Exhibit 99 or any of her, can be agitated by the applicants before the Collector in appropriate proceedings and, therefore the said revision application is being also allowed.
Section 85-See Civil Procedure Code, Section 54, Order XX, Rule 18.
JUDGMENT - MHASE S.B., J.:---These two revision applications arise from Special Darkhast No. 414 of 1996 and MJC No. 237/1978 filed by non-applicants Nos. 1 to 12, who are the legal heirs of deceased Azizul Haq, son of Hazi Abdul Bari. Special Civil Suit No. 238 of 1973 was filed by Azizul Haq and eight others for partition of agricultural lands and house property as against Abdul Jalil and three others - The heirs of defendant No. 1 Abdul Jalil and non-applicants Nos. 13 to 20 while non-applicant No. 21 is original defendant No. 2. The original defendant No. 3 was the present applicant No. 1 Anandrao Ganpatrao Belkhode. It appears that during the pendency of the said suit, the applicant No. 1 purchased Survey Nos. 47, 202, 205, 206/1-Kh and 206/1-K of mouza Jamtha, tahsil and district Nagpur, admeasuring 20.60 acres of agricultural land by sale deed dated 25th February, 1974 from Abdul Jalil - original defendant No. 2. Therefore, the applicant Anandrao was joined as defendant No. 3 in Special Civil Suit No. 238 of 1973. A preliminary decree in the said suit was passed on 20th April, 1978, wherein the Joint Civil Judge, Senior Division, Nagpur, declared that plaintiffs Nos. 2 to 6 and 8 to 10 shall have 7/32th share in the suit property and directed that the precept for partition by metes and bounds shall be sent to the Collector and the Commissioner shall be appointed for partition of the house property. In the present matter, we are concerned with the partition of an agricultural land, which is required to be done by the Collector. It appears that thereafter M.J.C. No. 237 of 1978 was filed by non-applicants Nos. 1 to 12 on the basis of the decree in Special Civil Suit No. 238 of 1973 for appointment of the Commissioner and to partition the house property. However, due to the pendency of the proceedings in first appeal and second appeal, the execution of the said preliminary decree could not proceed till 1984 and, therefore, even though M.J.C. No. 237 of 1978 was pending for partition of the house property, it could not be done till 1984 because of the stay orders from the superior Courts. It further appears that in 1978, the precept was sent to the Collector for partition of the agricultural land. However, that could not also proceed because of the stay orders. In any eventuality, in 1984, after the disposal of the second appeal, a preliminary decree became executable in respect of the agricultural estate and the house property.
2. It appears that two of the decree-holders, namely, plaintiffs Nos. 3 and 6 compromised with the defendant on accepting the amount of Rs. 5,769.23 Ps. each to the full and final satisfaction of their shares in the decree and accordingly an application was filed in M.J.C. No. 237 of 1978 on 16th December, 1986 and the order accepting the compromise was passed; wherein, a decree was directed to be amended as per pursis Exhibit 53 and the proceedings were proceeded with. It appears that without amending the preliminary decree, however, the amended precept was sent to the Collector on or about 20th January, 1987.
3. On 8th March, 1988, applicant No. 1 (original defendant No. 3) sold 6.05 acres of agricultural land from Survey No. 206/1-Kh (new Survey No. 135/1-K) to applicant No. 2 and one Dr. Mukund Vaidya. However, Dr. Mukund Vaidya kept with him one acre of land while applicant No. 2 got 5.05 acres of land from the said land. On 10th January, 1990, applicant No. 2 sold two acres of land to one Shri Wakodikar out of Survey No. 135/1-K and out of the remaining land, one acre land of that survey number was converted into non-agricultural use on 29th September, 1993 after following the procedure for conversion of the land into non-agricultural use. Thereafter, applicant No. 2 leased out non-agricultural one acre land (Survey No. 135/1-K) to applicant No. 3 - Indrayani Paper Products Pvt. Ltd. on 5th May, 1993 for a period of thirty years. On the said one acre of land, applicant No. 3 constructed a facto
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