Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(Bom) 1050

HIGH COURT OF BOMBAY
Sarang V. Kotwal, J
Concord Co-operative Housing Society – Appellant
Versus
Amedmal Bhatewada (deceased) – Respondent
CIVIL REVISION APPLICATION NO. 285 OF 2022 | WRIT PETITION NO. 6701 OF 2022 | CIVIL REVISION APPLICATION NO. 406 OF 2022 | WRIT PETITION (STAMP) NO. 13161 OF 2022

Advocates:
For the Appellants/Petitioners: G.S. Godbole, S. M. Gorwadkar, Anil Anturkar, R. D. Soni, Virag Tulzapurkar, Surel Shah, Mayur Khandeparkar
For the Respondents: G.S. Godbole, S. M. Gorwadkar, Anil Anturkar, R. D. Soni, Virag Tulzapurkar, Surel Shah, Mayur Khandeparkar

The Court affirmed that sending precepts for estate partition under Section 54 CPC is a ministerial act, not execution; thus, not subject to limitation.

Headnote:(A) Code of Civil Procedure, 1908 - Section 54 and Order XX - Application for partition of estate assessed to revenue - Dispute over ownership and compliance with decree - Court ruled that sending precepts to the Collector for partition is a ministerial act, not execution and not subject to limitation. (Paras 27, 36, 48)

(B) Legal heirs - Challenged the applicants' claims as legal heirs of the decree holder without producing essential documents - Court concluded that title disputes prevent execution without civil adjudication. (Paras 10, 12, 24)

Facts of the case:
The dispute involves properties originally owned by Amedmal Bhatewada and claims arising from execution of a decree dated 27.10.1945 for partition, questioned by legal heirs regarding their entitlement and compliance with previous Court orders. (Paras 6, 7, 8, 9, 26)

Findings of Court:
The 10th Jt. Civil Judge appropriately ruled that sending precepts to the Collector is a ministerial action. There was no substantive adjudication of rights made in the application that necessitated hearing all parties. (Paras 28, 48)

Issues: The key issues addressed were the legal status of the applicants as heirs, the nature of the decree's compliance, and whether the execution of partition was barred by limitation. (Paras 17, 29)

Ratio Decidendi: The Court reasoned that executing precepts under Section 54 CPC does not constitute execution of a decree but rather a reminder of the Court's ministerial duty to assist in the execution process, hence, limitation does not apply. (Paras 31, 45)

Result: All Applications and Petitions dismissed.

Table of Content
1. common questions of law established. (Para 1 , 2)
2. ownership claims of involved parties. (Para 3 , 4 , 5 , 6 , 8)
3. background on compromise disputes. (Para 9 , 10 , 12 , 13)
4. legal implications surrounding the original plaintiff's death. (Para 16 , 20 , 21 , 22)
5. nature of decree in partition cases. (Para 29 , 30 , 32)
6. procedure for partition under section 54 c.p.c. (Para 39 , 40 , 41 , 42 , 46)
7. final judgment and extension of interim relief. (Para 49 , 50)

JUDGMENT:

1. All these matters are decided by this common judgment because all the parties agree that all these matters involve common questions of law and are based on the common history regarding the facts and the disputed facts. In all these matters, notices were issued for final disposal. All the parties were duly served with such notices and learned Counsel appearing before me agree that the matters can be decided finally at this stage.

2. I have heard Shri G.S. Godbole, learned Senior Counsel for the Applicants in CRA No.285/2022, Shri S. M. Gorwadkar, learned Senior Counsel for the Petitioner in WP No.6701/2022, Shri Anil Anturkar, learned Senior Counsel for the Petitioner in WP(St) No.13161/2022, Shri R. D. Soni, learned counsel for the Applicant in CRA No.406/2022, Shri Virag Tulzapurkar, learned Senior Counsel, Shri Surel Shah, and Shri Mayur Khandeparkar, learned counsel , for the respective contesting Respondents.

3. C.R.A. No.285/2022 is preferred by Concord Co-operative Housing Society and its Chairman & Treasurer. The society claims to be the owner of the property.

4. Writ Petition (Stamp) No.13161/2022 is filed by Venkatesh Landmark, through its Partners, who are developing the property by making construction on the property.

5. C.R.A. No.406/2022 is filed by Yashcon Urban Development LLP, through its Partner. The Applicant claims to be owner of a part of the subject properties.

6. Writ Petition No.6701/2022 is filed by one of the members of the Concord Co-operative Housing Society.

7. The contesting Respondents, in all these matters, claim to be the legal heirs of one Amedmal Indrabhan Bhatewada. In all these matters, the Applicants/Petitioners have challenged the order dated 27.4.2022 passed by the 10th Jt. Civil Judge, Senior Division, Pune in Civil Misc. Application No.1658/2021. In C.R.A. No.285/2022, further prayers are made for permission to file certain documents which were not available at the time of passing of the impugned order in the Court of 10th Jt. Civil Judge, Senior Division, Pune.

Subject properties :

8. The dispute is about the following properties :

a] Land bearing Survey No.214, Hissa No.1/1 admeasuring 00 Hectare 97 Ares + pot kharaba 0 Hectare 02 Ares, assessed Rs.0.94, situated at village Lohegaon, Taluka– Haveli, District–Pune.

b] Land bearing Survey No.214, Hissa No.1/4 admeasuring 1 Hectare 15 Ares, assessed Rs.1.06/-, situated at village Lohegaon, Taluka–Haveli, District–Pune.

(Both these properties together are hereinafter referred to as ‘the subject properties’).

9. Brief history and facts :

i. The subject properties were originally owned by one Bapu Kashiba Devkar. He died on 27.3.1939. After that, those subject properties were held by his heirs Shankar Bapu Devkar and Kisan Bapu Devkar. Their names were entered by Mutation Entry No.1942.

ii. Amedmal filed Small Causes Suit No.4658/1935 against Shankar Bapu Devkar for recovery of money. The suit was decreed.

iii. Darkhast No.560/1937 was filed by Amedmal for executing the decree in Suit No.4658/1935, in which half undivided share of Shankar was attached and was put up for sale in execution.

iv. On 19.12.1939, Amedmal Bhatewada purchased Shankar’s share in the subject properties in the Court auction. His name was added in the Other Rights column in the record of rights by Mutation Entry No.2027, but, it was without possession.

v. On 20.1.1940, the sale was confirmed by the Executing Court and the Sale Certificate No.65/1940 was granted to the decree holder Amedmal.

vi. O

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