The term "co-holder" in section 61(3) of the Land Revenue Code, 1968 is of wide import and includes all affected persons, including tenants on the land. The authority effecting the partition is bound to hear all co-holders in respect of their rights.

Headnote:
PARTITION OF LAND - LAND REVENUE CODE, 1968, SECS. 61(3), 2(16), 2(24) - VALIDITY - HEARING OF CO-HOLDERS - INTERPRETATION OF CO-HOLDER - APPLICABILITY OF SECTION 61(3) - LEAVE TO APPEAL - LIMITATION - SECTION 61(3) OF THE LAND REVENUE CODE, 1968 - HEARING OF CO-HOLDERS - SCOPE AND APPLICABILITY - INCLUDES ALL AFFECTED PERSONS INCLUDING TENANTS ON THE LAND - AUTHORITY EFFECTING THE PARTITION IS BOUND TO HEAR ALL OF THEM IN RESPECT OF THEIR RIGHTS.
Fact of the Case:

Petitioners challenged the order of the Administrative Tribunal dismissing their applications for leave to appeal against the order of the Deputy Collector partitioning a survey number without hearing them. Petitioners claimed to be co-holders of the property and argued that they were entitled to be heard under section 61(3) of the Land Revenue Code, 1968. The tribunal rejected the applications on the ground that the petitioners were not co-holders at the time of the partition.
Finding of the Court:

The court found that the petitioners were co-holders of the property and should have been heard before the partition order was passed. The court held that the term "co-holder" in section 61(3) of the Land Revenue Code, 1968 is of wide import and includes all affected persons, including tenants on the land. The court also held that the authority effecting the partition is bound to hear all co-holders in respect of their rights.
Issues: 1. Whether the petitioners were co-holders of the property and entitled to be heard under section 61(3) of the Land Revenue Code, 1968? 2. Whether the term "co-holder" in section 61(3) of the Land Revenue Code, 1968 includes tenants on the land?
Ratio Decidendi: 1. The court held that the petitioners were co-holders of the property based on the fact that their names were entered in the Record of Rights in relation to the property, albeit in pencil and with a note that the entry was yet to be finalized. 2. The court held that the term "co-holder" in section 61(3) of the Land Revenue Code, 1968 is of wide import and includes all affected persons, including tenants on the land. The court reasoned that an immovable property cannot be partitioned without hearing all the co-owners, including tenants, since each co-owner has an undivided right over every centimetre of land.
Final Decision: The court quashed the order of the Administrative Tribunal and allowed the petitioners' applications for leave to appeal against the order of the Deputy Collector.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:--- The petitioners challenge the judgment and Order dated 29-4-97 passed by the Administrative Tribunal in Miscellaneous Applications No. 32/94, 33/94 and 42/94. By the impugned order, the Administrative Tribunal has dismissed the applications filed by the petitioners seeking leave to file appeal against the Order dated 16-8-1989 of the Deputy Collector at Panaji in relation to Survey No. 280/1 situated at Caranzalem.

2.The facts in brief relevant for the decision are that the petitioners purchased certain area of land from Patriarcado das Indias Orientais during the period from 1980 to 1990 in different pieces of land. Simultaneously, respondent No. 1 also purchased certain area from Patriarcado das Indias Orientais by deed dated 9-11-88. Thereafter by an application dated 17-4-1989 the respondent No. 1 applied for partitioning of the holdings and allotment of separate survey number for the pieces of land purchased by her and which was otherwise forming part of the plots of land bearing Survey Nos. 280/1 and 256/1. Necessary order in that regard was passed on 16-8-89, but the petitioners were not heard in the matter before passing the said order. In fact, it is the contention of the petitioners that they were never notified about the said proceedings initiated by the respondent No. 1 and they learnt about the same only after receipt of summons in Civil Suit No. 39/94/D filed by the respondent No. 1 against the petitioner No. 2. Having learnt about the same, the petitioners obtained certified copy of the said order and thereafter filed the applications before the Administrative Tribunal on 16-3- 1994 for leave to appeal against the said order of the Deputy Collector in the said partition proceedings. The tribunal, after hearing the parties, dismissed the said applications on the ground that admittedly the petitioners were not co-holders of the survey numbers when Patriarcado das Indias Orientais sought partition of the plots and therefore in view of provisions contained in section 61 of the Land Revenue Code, 1968, the petitioners were not required to be heard.

3.Upon hearing Mrs. A. Agni, the learned Advocate for the petitioners and Mr. M.B. D'Costa, the learned Advocate for the respondent No. 1 and on perusal of the records, it is seen that the name of the original petitioner No. 1 was very much available in the Record of Rights in relation to the property in question from 3-4-1989 i.e. prior to the passing of the order by the Deputy Collector in the partition proceedings. Moreover, the name of the petitioner No. 2 came to be entered in the occupants column of the Record of Rights of the property in question sometimes on 5th October, 1989. Moreover, the entry in favour of the original petitioner No. 1 was initially in pencil with a note that the said entry was yet to be finalised.

4.It is the contention of Advocate A. Agni that in terms of section 61(3) of the Land Revenue Code, 1968 the authority acting thereunder is duty bound to hear all the co-holders of the property before passing any order for partition and once it is not in dispute that the petitioners were not heard in the matter even though they are co-holders, the petitioners were entitled for leave to appeal against the order of the Deputy Collector within the period of limitation commencing from the date of knowledge of the said order. She placed reliance upon the judgment of the Apex Court in the matter of [Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd. (In Liquidation)]1, reported in A.I.R. 1971 S.C. 374.

5.On the other hand, it is the contention of the learned Advocate Shri D'Costa that the hearing of the co-holders contemplated under section 61(3) of the Land Revenue Code is restricted to those persons whose names figure in the occupants' column of the Record of Rights in relation to the concerned property and undisputedly the names of the petitioners were not figuring in the said records in relation to the pr

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Judicial Analysis