Back
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
S.B.DESHMUKH, J.
Arun Ashruba Mhaske ..Petitioner
Versus
Atmaram Dattu Mhaske & others ..Respondents
WRIT PETITION NO. 1275 OF 2005
Decided on: 15.3.2007
Advocates appeared
Petitioner : Shri M.M.Patil,
Respondents 2 to 8 : Shri S.G.Chapalgaonkar,
Respondents 1 & 9 : Dead,
Respondents 10 & 11 : Served.
When there is a decree of Civil Court, it is to be executed by the Collector of any Gazetted/subordinate officer deputed by him in this behalf in accordance with the law relating to the partition. Once the decree is sent to the Collector the Civil Courts duty is over and the Civil Court has very limited power in this respect. However if the Collector contravenes the decretal order or transgress the decree or otherwise acts as ultra vires or refused to implement the directions or decree passed by the Civil Court then such action of the Collector is liable to be controlled and corrected by the Civil Court which passes the decree. The Collector cannot refuse to carry out the decree of order of partition made by the Civil Court for effecting the actual partition of the agricultural lands. The Collector or his subordinate officer is required to divide the holdings and apportion the holdings in accordance with the Rules, namely : Maharashtra Land Revenue (Partition of Holdings) Rules, 1967. The partition of the agricultural lands, thus ultimately has to be effected by the Collector or his subordinate Gazetted officer in accordance with the provisions laid down under Section 54, Order XX, Rule 18(1) of Civil Procedure Code, Section 85 of the Code of 1966 and Rules of 1967. Thus the Civil Court is determining the entitlement/shares of the parties or the suit property and execution of this decree putting the decree holder in actual and physical possession is the legal obligation cast upon the Collector and his subordinate officers. Ordinarily Civil Court after passing the decree becomes defunct so far putting the decree-holders in actual and physical possession of the property.
Civil Procedure Code, 1908 - Section 54, Order XX, Rule 18(1), Order XXI, Rule 35 - Execution of decree - Suit for partition of agricultural land - Warrant issued under Order XXI, Rule 35 - Challenged - Once decree sent to Collector - Civil Court’s duty over - Refusal of Collector to implement decree passed by Civil Court - Such action of Collector to be corrected by Civil Court - Order XXI, Rule 35 not applicable for possession of agricultural land - Civil Court have no jurisdiction to entertain such application - Writ petition allowed - Impugned order quashed and set aside. - When there is a decree of Civil Court, it is to be executed by the Collector or any Gazetted/ subordinate officer deputed by him in this behalf in accordance with the law relating to the partition. Once the decree is sent to the Collector, the Civil Court’s duty is over and the Civil Court has very limited power in this respect. However, if the Collector contravenes the decretal order or transgress the decree or otherwise acts as ultra vires or refused to implement the directions or decree passed by the Civil Court, then such action of the Collector is liable to be controlled and corrected by the Civil Court which passes the decree. The Collector cannot refuse to carry out the decree or order of partition made by the Civil Court for effecting the actual partition of the agricultural lands.
In the case at hand, it appears that application Exhibit 39-D seems to have been moved by the plaintiff/decree holders seeking issuance of warrant under Order XXI, Rule 35 of CPC. The provisions laid down under Order XXI, Rule 35, in fact, does not apply for possession of the agricultural land. To that extent and on the premises of facts and circumstances obtaining in this case, in High Court’s view, the Civil Court does not have jurisdiction to entertain such an application. Thus order impugned in this petition needs to be quashed an d set aside.
Civil Procedure Code, 1908 - Order XXI, Rule 35 - Jurisdiction of Civil Court. - Since provisions laid down under Order XXI, Rule 35 not applicable for possession of agricultural lands hence Civil Court not have jurisdiction to entertain an application moved under Order XXI, Rule 35 of Code.
In the case at hand, it appears that application Exhibit 39/D seems to have been moved by the plaintiffs/ decree holders seeking issuance of warrant under Order XXI, Rule 35 of the CP C. The provisions laid down under Order XXI, Rule 35 in fact does not apply for possession of the agricultural land. To that extent and on the premises of fact and circumstances obtaining in this case in Court’s view, the Civil Court does not have jurisdiction to entertain such application. That the thus order impugned in this petition needs to be quashed and set aside.
Maharashtra Land Revenue Code, 1966 - Section 85 - Maharashtra Land Revenue Rules, 1967, Rules 5,6 and 9 - Civil Procedure Code, 1908, Order XX, Rule 18(1), Order XXI, Rule 35 - Partition of holding - Power of Civil Court - Partition includes delivery of shares to their respective share holders - Decree of Civil Court - To be executed by Collector or any Gazetted/Subordinate Officer deputed by him - Civil Court’s duty over - Civil Court has very limited power in respect of - Action of Collector to be controlled and connected by Civil Court which passed decree. - A holding may be partitioned on the decree of a Civil Court or an application of co-holders in the manner hereinafter provided. A co-holder also can apply to the Collector for partition of his share in the holding which is further clarified under Section 85(2) of the Code of 1966. However, proviso to Section 85(2) prohibits the Collector from such partition of the agricultural land in case of raising a question of title by any of the parties. Title, as per this proviso to sub-section (2) has to be decided by the Civil Court. Other contingency considered by sub-section (1) of Section 85 is regarding effecting a partition in accordance with the decree passed by the Civil Court. The partition is not confined to mere division of lands in question into the requisite parts but includes delivery of shares to their respective share-holders. When there is a decree of Civil Court, it is to be executed by the Collector or any Gazetted/Subordinate Officer deputed by him in this behalf in accordance with the law relating to the partition. Once the decree is sent to the Collector, the Civil Court’s duty is over and the Civil Court has very limited power in this respect. However, if the Collector contravenes the decretal order or transgresses the decree or otherwise acts as ultra vires or refuses to implement the directions or decree passed by the Civil Court, then such action of the Collector is liable to be controlled and corrected by the Civil Court which passed the decree. The Collector cannot refuse to carry out the decree or order of partition made by the Civil Court for effecting the actual partition of the agricultural lands. The Collector or his subordinate officer is required to divide the holding and apportion the holdings in accordance with the Rules, namely : Maharashtra Land Revenue (Partition of Holdings) Rules, 1967 ("Rules of 1967"). The work of effecting the partition as per decree is done by the Cadastral Surveyor. Mode of effecting such partition is provided under the Rules of 1967, sub-rule (9) lays down that when any holding is ordered to be partitioned under a decree or order of the Civil Court, the provisions of Rules 5, 6 and 9 shall apply, as they apply in relation to partition of holding on the application of a co- holder. These Rules are important in such process of effecting the partition in accordance with the decree passed by the Civil Court.
Maharashtra Land Revenue Code, 1966 - Section 85(2) - Question of title - Agricultural land - Partition of - Section 85(2) of Code prohibits Collector from partition of agricultural land, where question of title raised by any of parties - Only Civil Court is competent Court to decide question of title. - Proviso to Section 85(2) prohibits the Collector from such partition of the agricultural land in case of raising a question of title by any of the parties. Title as per this proviso to sub-section (2) has to be decided by the Civil Court.
Maharashtra Land Revenue (Partition of Holdings) Rules, 1967 - Rules 5, 6 and 9 - Partition of agricultural land - Procedure for - Partition as per decree done by Cadastral Surveyor - Holding ordered to be partitioned under a decree or order of Civil Court - Provisions of Rules 5, 6 and 9 attracted - As they attracted to partition of holding on application of a co-holder. - The work of effecting the partition as per decree is done by the Cadastral Surveyor. Mode of effecting such partition is provided under the Rules of 1967. Sub-rule (9) lays down that when any holding is ordered to be partitioned under a decree or order of the Civil Court, the provisions of Rules 5, 6 and 9 shall apply, as they apply in relation to partition of holding on the application of a co- holder.
1. Heard learned counsel for the respective parties.
2. Rule. By consent, Rule made returnable forthwith and the petition is taken up for final disposal.
3. Resume of the relevant facts, may be summarised as follows :-
(A). Present respondents 1 to 6 were the plaintiffs in Regular Civil Suit No.208 of 1976 ("RCS") filed for partition and separate possession of the suit properties. Present respondents 7 and 8 are original defendants 1 and 2 and, present petitioner is the original defendant No.6, present respondent No.9 is the original defendant No.3, present respondent 10 is the original defendant No.4 and present respondent No.1 is the original defendant No.5. Parties hereinafter, for the sake of convenience, are being referred to their status in the RCS.
(B). Learned Civil Judge J.D. Beed ("trial Court") after recording evidence decreed the suit by its judgment and decree dated 10.8.1983. Subject matter of the suit is undisputedly agricultural lands. This judgment and decree was challenged in Regular Civil Appeal No.293 of 1983 ("RCA") in the court of learned District Judge, Beed ("first appellate Court"). Said RCA, after hearing the parties, was allowed on 5.9.1992 and decree passed by the trial Court came to be modified. This modification resulted into reduction of share granted in favour of the plaintiffs by the trial Court.
(C). Aggrieved by this reduction of share, plaintiffs filed Second Appeal No.44 of 1993 in this Court. According to Shri Chapalgaonkar, learned Advocate, said appeal is admitted by this Court but the plaintiffs have not moved this Court for stay, during pendency of the second appeal, since they are interested in getting their shares, demarcated and possession thereof.
(D). The modified decree passed by the first appellate court, in due course of time, was sent to the Collector for execution.
(E). Application Exhibit 39/D was filed by the plaintiffs (decree holders) in R.D.No.83 of 1992, contending therein that they have filed second appeal in the High Court and that there is no stay or any reason to stop execution of the decree and therefore, they seek execution of the decree against judgment debtors 4 and 5 in terms of the report of the District Inspector of Land Records ("DILR"). The plaintiffs, therefore, in the said application prayed for issuance of warrant for possession in terms of Exhibit 34. The executing Court (civil court), by its order dated 26.6.2000, directed issuance of possession warrant of the suit property as proposed by the DILR. This order is subject matter of the present writ petition.
4. It is not in dispute that the decree passed by the Civil Court pertains to agricultural lands assessible to land revenue. It is also not in dispute that this decree is to be executed by the Collector or his subordinate officer in accordance with Section 54 of Civil Procedure Code ("CPC"). Section 85 of the Maharashtra Land Revenue Code, 1966 ("Code of 1966") is relevant and it reads as :-
"85. Partition :- (1) Subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, a holding may be partitioned on the decree of a Civil Court or an application of co-holders in the manner hereinafter provided.
(2).If in any holding there are more than one co-holder, any such co-holder may apply to the Collector for a partition of his share in the holding : . Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil court.
(3). ....................
(4). .....(Deleted)......
(5). ...................."
4A. Bare perusal of Section 85(1) of the Code of 1966 shows that a holding may be partitioned on the decree of a civil court or an application of co-holders in the manner hereinafter provided. A co-holder also can apply to the Collector for partition of his share in the holding which is further clarified under Section 85(2) of the Code of 1966. However, proviso to Section 85(2) p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
