The fall out of above discussion is that in cases of contravention of provisions of law or transgression of law or non-enforce-ability of the decree for partition on account of events occurring subsequent to the passing of such decrees or in relation to the similar such grievances, the limited control which can be exercised by the Civil Courts can be only by way of an independent suit. Indeed the Civil Court would be entitled to entertain such grievances only by way of an independent suit. The bar for suit under Section 47 of C.P.C. could be applicable only in cases where the question can be determined by the Court executing the decree. Once it is clear that the Civil Court, is not the Court executing the decree for partition of the estate which is subject to the assessment for payment of revenue to the Government, the bar provided under Section 47 of C.P.C. for an independent suit by the parties to the decree cannot come in the way of the party approaching the Court with such suit regarding the grievance in relation to the execution of the partition decree. Undoubtedly, the scope of such suit will be subject to the other laws which may bar the jurisdiction of the Civil Court to entertain the suit. For example, in cases of the questions to be determined under the said Act, certainly the Civil Courts will have no jurisdiction to entertain any suit in that regard. It will be exclusively for the competent authority under the said Act to decide those issues in view of the provisions of Sections 36-A and 36-B of the said Act read with the decision of the Apex Court in Shavantabai Maruti Kalhatkar (supra).
40. Reverting to the facts of the case in hand, the contention regarding Watap-takta being contrary to the decree and fact of acquisition of the property subsequent to the issuance of decree, having not been considered by the Tahsildar, and the said issues being directly relating to the execution of the decree passed in the suit, certainly can be raised by the aggrieved party by filing a suit and not by way of an application under Section 47 of Code of Civil Procedure. It cannot be disputed that if subsequent to the declaration of the shares in the properties which were subject-matter of the suit for partition, some of properties were acquired by the Government and ignoring the said fact of acquisition of properties, the revenue authorities proceeded to partition the properties, certainly such a partition will be contrary to the decree, inasmuch as that some of the parties may not get the properties according to the declaration of their shares. Such a grievance can certainly be looked into by the Civil Court if brought to the notice by filing a proper suit in that regard. Similar is the case as regards the ground of the violation of the provisions of the said Act.
Prakash Nathyaba Bhosale vs Laxman Ganaba Bhosale on 8 August, 2002
Equivalent citations: AIR 2003 Bom 41, 2003 (1) BomCR 218
Bench: R Khandeparkar
1. Heard the learned advocates for the parties and perused the record. Rule. By consent the rule is made returnable forthwith.
2. Pursuant to the decree dated 21st September. 1979 RCS No. 76/74 declaring the share of the parties, the matter was referred to Tahsildar for partition of the properties. Thereupon partition suggested by the Tahsildar was objected to by the plaintiff Nos. 1 to 3 and the original defendant Nos. 1 and 3 in the said suit. The said objections were overruled by the Tahsildar by an order dated 25-3-1988, Aggrieved by the said order, the plaintiff Nos. 1 to 3 and the defendant Nos. 1 and 3 preferred an appeal to S.D.O., Phaltan Sub-Division, being Appeal No. 3 of 1988 which came to be allowed by an Order dated 28th June, 1990. The same was challenged by the defendant No. 2 by filing Second R.T.S. Appeal No. 2 of 1990 before the Additional Collector, Satara, who by order dated 30th April. 1993 dismissed the said Second Appeal. Thereupon, the defendant No. 2 filed Revision Application No. 213 of 1993 before the Additional Commissioner, Pune, who allowed the same by Order dated 30th May, 2000 and set aside the orders passed by the S.D.O. and the Additional Collector and confirmed the order of the Tahsildar.
3. It is an undisputed fact that the petitioner was not made party to any of the proceedings before the Revenue Authorities while dealing with the matter pertaining to the partition of the properties consequent to the decree dated 21st September, 1979 in R.C.S. No. 76 of 1974. It is the case of the petitioner that he came to know that the said proceedings before the Revenue Authorities only after actual execution had commenced on the basis of Additional Commissioner's Order dated 30th May, 2000. The petitioner, therefore, filed R.C.S. No. 528 of 2001 for a declaration that the partition table prepared by the Tahsildar is illegal for various reasons including that it is contrary to the decree passed by the Civil Court as well as in contravention of provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred as "the said Act"). The petitioner also prayed for temporary injunction which was allowed by the trial Court by its Order dated 20th March, 2001. The same was challenged by the respondent No. 1 therein, in Misc. Civil Appeal No. 55 of 2001 and the lower appellate Court by its Order dated 30th April, 2002 allowed the same and set aside the order of the trial Court holding that proper remedy for the petitioner is in the form of an appropriate application before the Executing Court under Section 47 of the Code of Civil Procedure, 1908 (hereinafter called as "C.P.C.")
4. Thereupon, the petitioner filed an application under Section 47 read with Section 151 of C.P.C. being Exhibit 64 in Reg. Darkhast No. 19 of 1985 pending before the Court of Civil Judge, J. D. Khandala. The said execution proceedings were in relation to the said decree dated 21st September. 1979 in R.C.C. No. 76 of 1974. While opposing the said application, the respondent No. 1 also filed an another application being Exhibit 79 in the same Darkhast proceedings. While rejecting the objections to the proposed partition of the properties in terms of suggestion by the Tahsildar under order dated 25th March, 1988, the Executing Court allowed the application Exh. 79 filed by the respondent No. 1 and dismissed the Application Exh. 64 of the petitioner by impugned order dated 26th June, 2002. Hence, the present petition.
5. The objection to the execution of the decree in terms of the suggestion by the Tahsildar under order dated 25th March, 1988 is twofold. Firstly, it is the case of the petitioner that the Watap-takta suggested by the Tahsildar is not in accordance with the decree of the Civil Court inasmuch as that the area shown in the decree and the one shown in the Watap-takta is different and some of the properties which were subject-matter of the decree of the Civil Court have been acquired for rehabilitation of the flood affected people subsequent to the passing of the said decree and this aspect has not at all been taken into consideration by the Tahsildar while drawing the Watap-takta. Secondly, the division of the properties as suggested under Watap-takta is contrary to the provisions of the said Act. On the other hand, it is contended on behalf of the respondent that no proceedings under Section 47 of C.P.C. are maintainable in view of the provisions of law contained in Section 54 read with Order 20, Rule 18 of C.P.C. and therefore no fault can be found with the impugned order.
6. Under the impugned order, the lower Court has held that as per the provisions of Maharashtra Land Revenue Code, 1966, hereinafter referred as 'the said Code', the Collector and Revenue Authority under the said Code have exclusive jurisdiction to execute a decree for partition regarding the immovable properties which are assessed to for revenue to the Government and all the objections to the execution of the decree for partition of the suit properties are to be dealt with by the revenue authorities under the said code, at the original stage as well as on an appeal, and no application under Section 47 of C.P.C. is maintainable in that regard.
7. The point for consideration which arises in the matter, therefore, is whether the Civil Court can entertain an application under Section 47 of C.P.C. objecting to the partition suggested or carried out by the Revenue Authority pursuant to the decree for partition by the Civil Court to which the provisions of Section 54 of C.P.C. apply and sent to the Revenue Authority under Order 20. Rule 18 of C.P.C. to give effect to same? If not, what is the remedy?
8. The provisions relating to the partition of immovable properties subjected to the assessment for payment of revenue to the Government are comprised under Section 54 and Order 20. Rule 18 of C.P.C. Section 54 provides that when the decree for partition of an undivided estate is assessed to the payment of the revenue to the Government for or separate possession of share of such an estate, the partition of the estate or separation of the estate shall be made by the Collector or any Gazetted Officer subordinate to the Collector deputed by him in that behalf in accordance with law in force relating to the partition or separate possession of the share in such estate. Under Order 20. Rule 18 of C.P.C. when the Court passes a decree for partition of the property or for separate possession of a share therein then in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any Gazetted Officer subordinate to the Collector deputed by him in that behalf, in accordance with the declaration and with the provisions of Section 54.
9. Section 85 of the said Code deals with the subject of partition of the properties. Sub-section (1) thereof provides that subject to the provisions of the said Act. a holding may be partitioned by the decree of a Civil Court or in an application by holders in such manner as provided in the said Code. In terms of Sub-section (2) when any question as to title is raised in such proceedings then no partition should be made out until such question is decided by a Civil Suit. Under Sub-section (3) thereof, the Collector is empowered, after hearing the co-holders, to divide the holding and apportion the assessment of the holding of the property in accordance with rules made by the State Government under the said Code. The rules made in that regard are called as 'Maharashtra Land Revenue (Partition of Holdings) Rules, 1967, hereinafter referred as 'the said Rules".
10. In terms of the said Rules, a co-holder can file an application under Section 85(1) of the said code with necessary details as required under the Rule 2 thereof. Under Rule 3 thereof, the Collector is empowered to issue notices and proclamation regarding such request for partition of the holding and the procedure to be followed in that regard is also provided thereunder. After hearing all the parties appearing before it, the Collector may, in terms of Rule 4, either reject the application for partition if the applicant is unable to disclose any interest in the holding in respect of which the application was filed or in case whether applicant's title to the holding is disputed, direct the applicant to get the question of his title decided by the Civil Court. In case the application is not rejected, the Collector may proceed to effect the partition in terms of Rule 5 thereof. The assessment of the holding has to be distributed in proportion to the shares of the co-holders and in the manner provided under Rule 6 thereof. The Rule 7 provides for the procedure before confirmation of the partition. Rule 8 speaks of recovery of expenses of partition, Rule 9 provides that when any holding is ordered to be partitioned under the decree or order of a Civil Court, the provisions of Rules 5, 6 and 7 shall apply as they apply in relation to the partition of a holding on the application of a co-holder. Further Rule to provides that no holding shall be partitioned under the provisions of the said Rules if such partition results in creating a holding less in extent then the standard area determined by the State Government under the provisions of the said Act.
11. Section 247(1) of the said code provides that in the absence of any express provisions of the said Code or 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 No. 1 of Schedule 'E' of the said code or any other law for the time being in force, to the officer specified in Column No. 2 of that Schedule, whether or not such decision or order may itself have been passed on appeal from the decision or order of the officer specified in Column No. 1 of the said Schedule, provided that in no case the number of appeals shall exceed two, Under Schedule "E" S.D.O., Asst. as well as Dy. Collector as may be specified by the Collector in that behalf are specified to be the appellate authority in relation to the orders passed by the officers subordinate to S.D.O. As regards the order passed by S.D.O., Asst. or Dy. Collector are appealable to Collector or such Asst. or Dy. Collector who may be invested with powers of the Collector by the State Government in that behalf and the appeals against the orders of Collector and of Asst./Dy. Collector invested with the appellate powers of the Collector can be subjected to appeal to Divisional Commissioner and that of a person exercising powers conferred by Section 15 of the Code to such officer as may be specified by the State Government in that behalf, Section 257 of the said Code provides for power of the State Government and of certain other revenue officers to call for and examine the records and proceedings of the subordinate officers. Section 259 provides that whenever in the said Code it is so provided that the decision or order shall be final or conclusive, such provision shall mean that no appeal lies from any such decision or order alone but it shall be lawful to the State Government alone to modify, amend or revise any such decision or order under the provisions of Section 257. In other words, whenever any decision or order is specified to be final or conclusive, then it would not be subjected to an appeal but the State Government is empowered to exercise revisional powers in respect of such decisions and orders.
12. Other relevant provisions of law to be considered in the matter of partition of the properties subjected to the assessment for payment of revenue to the Government are those of the said Act. Section 8 of the said Act provides that no land in any local area shall be transferred or partitioned so as to create a fragment. Section 8AA(1) provides that where by transfer, decree, succession or otherwise, two or more persons are entitled to shares in an undivided agricultural land in any local area for which standard areas have been fixed, and the land has to be partitioned among them, such partition shall be effected so as not to create a fragment. Sub-section (2) thereof provides for the procedure to be followed for such partition to be made either by the Court or the Collector. Sub-section (3) thereof provides that where a partition is effected in execution of a decree all questions relating to the partition of the land and apportionment of the compensation shall be decided by the Court executing the decree or by the Collector effecting the partition, as the case may be, in accordance with the provisions of Sub-section (2). Further in terms of Section 31(1), notwithstanding anything contained in any law for the time being in force, no holding allotted under the said Act, nor any part thereof shall save as otherwise provided in the said Section 31 can be transferred, whether by way of sale including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue as well as recoverable as arrears of land revenue or for sums recoverable as arrears of land revenue or by way of gift, exchange, lease or otherwise, or can be sub-divided whether under a decree or order of a Civil Court or any other competent authority or otherwise, so as to create a fragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed. Besides Section 9 declares that transfer or partition of any land contrary to the provisions of the said Act shall be void. Section 3GA(1) of the said Act bars the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the said Act required to be settled, decided or dealt with by the State Government or any Officer or authority. Section 36B(1) provides that the suits involving issues required to be decided under the said Act are to be stayed and such issues are to be referred to the competent authority for determination.
13. After perusal of the relevant provisions of the law, it would be worthwhile to scan through various judicial pronouncements relevant for the decision in the matter.
14. In 'Krishnaji Narayan & Co. v. Damodar Parashram' reported in (1903) 5 Bom LR 648 while rejecting the contention that the Collector having once made a partition, had no jurisdiction to re-open the same, it was held that there is nothing to prevent a Collector from revising a partition for mistake or other cause before he has passed final orders and returned the proceedings to the Court, and that assuming, moreover, that the Collector was wrong in re-opening the partition be has made, it is the executing Court which can hear objections to it.
15. In Ganoji v. Dhondu reported in (1890) ILR 14 Bom 450, it was held that under certain circumstances, the Court which has sent a decree for partition to a Collector under Section 265 of Code of Civil Procedure, 1882, can go into objections raised to the Collector's execution.
16. In Shrinivas Hanumant v. Gurunath Shrinivas reported in (1891) ILR 15 Bom 527, it was held that the power given to the Collector under Section 265 of Civil Procedure Code, 1882, to effect a partition was not in any way made subject to the superintendence of the Civil Courts or to a revision by the Civil Courts; and that when the Collector has made a partition under Section 265, the Court has no power to examine his work or to direct him to make a fresh partition.
17. In Jacinto v. Fernandez reported in AIR 1939 Bombay 454, it was held that when an order is made for partition of lands assessed to Government revenue, the Court makes an order decreeing partition and directing the parties to be put in possession and referring it to the Collector to carry out the partition. It was further held that when an order in that form is made the Court's duties are finished, and it is for the Collector to partition the property and put the parties into possession.
18. In Chandumal v. Hafiz, reported in AIR 1943 Sind 7, it was held that the Court is bound by the terms of the Civil Procedure Code and has no power so to fetter the discretion of the Collector as to overrule the powers that are conferred upon him under Section 54 and Order 20. Rule 18 of the Code.
19. In Sher Bahadur Singh v. Ram Narain Singh reported in AIR 1945 Oudh 1 (FB), it was held that where a Civil Court passes a decree for partition, it should be presumed that the procedure prescribed in Order 20, Rule 18 has been adopted and that in the case of immovable property assessed to land revenue, the Civil Court has no further jurisdiction in the matter,
20. In Venkataraghava Rao v. Venkata Hanumantha Rao, reported in AIR 1945 Madras 336 (FB), it was held that a Court which has passed a decree for partition to which Section 54 of C.P.C. applies and has sent it to the Collector for the purposes of effecting the partition has no power to hear objections to the partition made by the Collector or his subordinate or to modify the partition; the Collector when acting under Section 54 has a statutory duty to perform and, in performing it, he is not under the control of the Court; he is not even required to report to the Court what he has done; when he has made the partition no order of the Court is necessary; and once the Court has sent the decree to the Collector for action under Section 54, the matter passes entirely out of its hands.
21. The Full Bench of this Court in 'Ramabai Govind v. Anant Daji', reported in AIR 1945 Bombay 338, while agreeing with the decision in Uacinto v. Fernandez (AIR 1939 Bombay 454), (supra) held that "As pointed out by Beaumont C.J., in 41 Bom LR 921 : (AIR 1939 Bombay 454) 'Jacinto v. Fernandez', when an order in the form prescribed in Order 20, Rule 18(1) is made, the Court's duties are finished, though as held in (1888) ILR 12 Bom 371 'Dev Gopal v. Vasudev Vithal at page 376, the Court is not deprived of its judicial control of its decree. But the control is very limited. It is only if the Collector contravenes the decretal order, or transgresses the law or otherwise acts ultra vires, or refuses to carry out the decree, that his action is liable to be controlled and corrected by the Court which passed the decree. Apart from this limited control, the Collector can give effect to the partition made by him, without waiting for confirmation by the Court, and deliver possession of the shares to the respective sharers. Thus, the Court having nothing further to do with the decree passed by It under Order 20, Rule 18(1). Beaumont C.J. in 41 Bom LR 921 : AIR 1939 Bom 454, described the order directing the partition of the lands assessed to Government revenue to be effected by the Collector as a final decree." It was further held that though the Collector was bound by the decision of the Court, he could not be said to be a ministerial officer of the Court.
22. It is also necessary to take note of the following ruling of the Full Bench in "Ramabai Govind" (supra), while dealing with the issue regarding classification of preliminary decrees :--
"In Rule 1 in Chapter 12 of volume 1 of the Manual (at page 145, 1940 Edn.), preliminary decrees are divided into two classes those in which further action for final decrees has to be taken forthwith by the Courts suo motu without any application from the party and those in which subsequent proceedings for passing final decrees do not arise as a matter of course. The former are directed to be treated as pending and shown as such in the monthly returns and the records of such suits are to be retained in the original Court until final decrees are passed therein, while the latter are to be treated as disposed of as shown as such in the monthly returns and the record should "be fowarded to the record keeper of the District court and may be called for when subsequently required. The partition decree under Order 20, Rule 18(2), is included in the former clause of preliminary decrees and one under Order 20, Rule 18(1) is included in the latter clause, to be noted, of preliminary decrees. These instructions are being followed ever since the Civil Procedure Code 1908 was enacted and a partition decree, whether under Sub-rule (1) or Sub-rule (2) is classed as a preliminary decree."
23. In Lachhiram Jasram v. Nanba Dhanaji, reported in AIR 1946 Nagpur 353, it was held that Section 54 read with Order 20, Rule 18, authorises the Civil Court only to declare the rights of the several parties interested in the property and places the execution of the decree entirely in the hands of the Collector; how the partition is to be made lies wholly within the authority of the Collector; and the Civil Court is functus officio after it declares the shares of the parties and beyond that is not concerned with the property.
24. In 'Dharam Singh v. Deosingh Sitaram', reported in AIR 1950 Nagpur 102, it was held that partition of land revenue paying estate has to be made by a Collector under Section 54 of Civil Procedure Code or by a revenue officer. A Civil Court has no jurisdiction or power to effect a partition of land revenue paying estate or to re-open a partition already made by a Collector or revenue officer. The duty of Civil Court is to give effect to the partition made by a Collector or a revenue officer in exercise of the powers vested in him. The power to deliver possession in accordance with the partition made is quite distinct from the power to effect a partition. A Collector or a revenue officer effecting a partition has the power to deliver possession in pursuance of the partition.
25. Following the Full Bench decision, the Division Bench of this Court and after referring other decisions of our High Court in 'Ningappa Balappa v. Abashkhan Gouskhan', , it was observed that (para 4) :
"According to these decisions, after a decree for partition of lands assessed to revenue has been passed, the Court has nothing further to do with the decree. The decree is to be executed and the partition is to be effected by the Collector.
There cannot, therefore, be any executing proceedings before the Court in the case of such a decree. The present applications, which are said to have been made under Section 47 of C.P.C. were therefore, not maintainable."
Referring to the facts before the Division Bench it was observed that it has been held in several cases that the Court is not entirely deprived of controlling the action taken by the Collector. But this control is very limited. It is to be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition or refuses to execute the decree. Considering the facts of the case that there were no allegations that the Collector had acted or intended to act contrary to the decree or any law relating to partition, and the allegations were to the effect that the Collector might act contrary to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, it was observed that :--
"But, as the Court's duties came to an end when it passed the decree and as no proceedings in execution can be taken by it, it is not open to the Court to entertain an application under Section 47 and give directions to the Collector in regard to the manner in which he should execute the decree."
26. The Apex Court in Shevantabai Maruti Kalhatkar v. Ramu Rakhamaji Kalhatkar, disapproving the interference
by the Civil Court in the decision of the competent authority under the said Act in relation to the validity of some direction, held that Section 36A of the said Act clearly bars jurisdiction of the Civil Court to settle, decide or dealt with any question which is by or under the said Act required to be entitled, decided or dealt with by the State Government or any officer or authority, and therefore the Civil Courts have no jurisdiction to go behind the decision of the competent authority under the said Act.
27. The learned single Judge of this Court in Annasaheb Rajaram Nagane v. Rajaram Maruti Nagane, dealing with
the issue as to whether the preliminary decree for partition can be made effective without there being a final decree has held thus (at P. 309 of AIR):
"........ .The decree in question was preliminary with respect to the lands assessable to revenue, all further proceedings were required to be taken before the Collector or any Gazetted Officer subordinate to him, to whom the powers were delegated by the Collector as per Section 54 read with Order 20, Rule 18 of Civil Procedure Code. When the matter goes before the Collector, he has to pass final decree by coming to the conclusion, how the land should be partitioned between the parties and then he has to execute the decree actually by putting the parties in possession of the respective portion allotted to them. The Civil Court has no say in the matter as to how the land is to be partitioned between the parties, so as to say, for preparing final decree. So, it was obligatory on the part of the Civil Court to transfer papers to the Collector for effecting partition as per declaration made in the judgment. All further proceedings with respect to such decree are required to be taken up by and before the Collector."
28. Considering the statutory provisions and judicial pronouncements referred to above, it is amply clear that in a suit for partition, once the Court passes the decree declaring shares of the parties in an undivided estate assessed to the payment of revenue to the Government, and orders division and separate possession of such estate in accordance with the shares so declared, then the Court is enjoined to direct such partition or separation be effected by the Collector or any Gazetted Officer subordinate to the Collector deputed by him in that behalf. Further in order to give meaningful effect to such declaration and directions issued in terms of Section 54 read with Order 20, Rule 18(1) of Code of Civil Procedure, the Court is further enjoined to send the relevant papers to the concerned Collector or Gazetted Officer. The decision of the learned single Judge in Annasaheb v. Rajaram ease (supra) is very clear in that regard. Once the papers are transmitted to the revenue officer, the Court passing the decree for partition under Order 20, Rule 18(1) of Code of Civil Procedure becomes functus officio in relation to the decree for partition passed by it and all further proceedings for the execution of such decree are to be carried out by the concerned revenue officer. The jurisdiction of the revenue officer would include power to hear all the objections which may be raised by the parties to the decree for partition of the estate. Undoubtedly, the jurisdiction of the Civil Court to entertain the grievance of the parties in relation to the contravention of the decree or transgression of law and acts being otherwise ultra vires or refusal by the revenue office to give effect to the decree, is not curtailed. Certainly such acts of the revenue officer in relation to the execution of the decree could be subjected to the scrutiny by the Civil Court. However, the question which arises is what is the method and procedure to be adopted for such scrutiny? Can it be by taking resort to Section 47 of Code of Civil Procedure?
29. Section 47(1) of Code of Civil Procedure provides that all the questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or the satisfaction of the decree shall be deter -minted by the Court executing the decree and not by a separate suit. Undoubtedly, the conditions necessary for application under the said section are: (i) The question must relate to the execution or discharge or satisfaction of the decree; (ii) It must arise between the parties to the suit in which the decree was passed or their representatives; and (iii) it must be for determination of such questions by the Court executing the decree.
30. Once it is clear that pursuant to the decree for partition is issued, the Court ceases to have any further function in the matter and all further proceedings relating to the execution of such decree are to be carried out by the revenue officer, it is evident that the execution proceedings for such decree would arise before the revenue officer and not before the Civil Court. Apparently, the revenue authorities carrying out the function of execution of such decree are different from "the Court executing the decree" referred to in the Section 47 of C.P.C. The Civil Court is not the executing Court for the purpose of execution of the decree for partition of the estate which is subject to the assessment for payment of revenue to the Government. Being so, the question of approaching the Civil Court under Section 47 of C.P.C. with the grievance regarding non-compliance of such decree or acts in contravention thereof or in violation of law by the revenue officer in the course of execution of such decree does not arise at all. After issuance of the decree under Order 20, Rule 18(1) of C.P.C., the limited control that is left with the Civil Court is clarified by the Full Bench of this Court in 'Ramabai' ease (AIR 1945 Bom 338) (supra). However, it is nowhere laid down in any of the judicial pronouncements brought to my notice that the said control can be exercised under the provisions of law contained in Section 47 of C.P.C. The contention that such grievance can be raised in the proceedings under Section 47 of Code of Civil Procedure before the Civil Court is to be rejected as being devoid of substance. Though the Full Bench of this Court and some other decisions refer to the limited judicial control by Civil Court even after the decree for partition under Order 20. Rule 18 of C.P.C. none of those decisions speaks of the mode of exercise of such control being under Section 47 of C.P.C. The Civil Courts, therefore, cannot have jurisdiction to entertain any such grievance under Section 47 of Code of Civil Procedure. In fact, the ruling of the Division Bench in Ningappa v. Abashkhan (supra) in this regard is very clear, wherein it has been held that:--
"But, as the Court's duties came to an end when it passed the decree and as no proceedings in execution can be taken by it, it is not open to the Court to entertain an application under Section 47 and give directions to the Collector in regard to the manner in which he should execute the decree."
Certainly, however, this would not mean that the jurisdiction of the Civil Court to entertain such grievance is totally barred.
31. Certainly, the provisions of Order XXI of C.P.C. would not be attracted in such cases as the execution of a decree is not by the Civil Court. Being so, neither the provisions of Section 47 nor those of Order XXI of C.P.C. can be of any help in such cases.
32. Reference can also be made to Section 151 of C.P.C. which provides that "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prove abuse of the process of the Court". However, while considering the scope of the powers of the Court under this section one has to bear in mind the decision of the Apex Court in Nainsingh v. Koonwarjee, , wherein it was
held that (Para 4):
"Under the inherent power of Courts recognised by Section 151, C.P.C., a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does not contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. Further, the power under Section 151 of the Code cannot be exercised as an appellate power."
Therefore, once it in clear that the Civil Court cannot deal with the matter pertaining to the execution of the decrees passed in the partition suits in relation to the estate which are subjected to revenue to the Government, it is evident that the matters pertaining to the execution of such decrees cannot be dealt with under the exercise of inherent powers under Section 151 of C.P.C. Undoubtedly, therefore, it can be said that the grievance relating to refusal of the revenue officer to execute the decree and therefore direction for the execution to be carried out in terms of the decree i.e. as per the declaration of shares under Order 20, Rule 18 of C.P.C. can be entertained by the Civil Court in exercise of its inherent jurisdiction to pass order under Section 151 of C.P.C. for compliance of the said declaration, i.e., for execution of the decree in accordance with the terms thereof.
33. As already seen above, the execution of a decree in the suit for partition of the properties subject to Government revenue is to be executed by the Collector or the revenue officer appointed for that purpose. The execution of such decrees has to be in accordance with the provisions of law referred to above. The orders and this proceedings in that regard before such revenue officers are subject to appeal and revision under the said Code and the said Act. Even, thereafter, if it is found that the acts of the revenue officers in relation to the execution of such a decree are in contravention of the decretal order or transgression the law or otherwise ultra vires or the revenue officer refuses to execute the decree, then such action would be definitely subject to judicial review by the Civil Court. But, how? The question as to what is the procedure to be followed for such action still remains unanswered.
34. The Apex Court while dealing with the scope of Section 9 of C.P.C., in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, , has held that ;
"One of the basic principles of law is that every right has remedy. Ubi jub ibi remedium is the well known maxim. Every civil suit is cognizable unless it is barred. ...... .The language used is simple but explicit and clear, It is structured on the basic principle of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred what is meant by it is explained further by widening the ambit of the section by use of the word "shall" and the expression, "all suits of a civil nature; unless expressly or impliedly barred". ......... Each word and expression casts an obligation on the Court to exercise jurisdiction for enforcement of right. The word "shall" makes it mandatory. No Court can refuse to entertain a suit if it is of description mentioned in the section."
35. In Smt. Ganga Bai v. Vijay Kumar, ,
the Apex Court has held that "there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolours the claim, that the law confers no such right to sue."
36. It is also well settled that the Civil Courts are empowered to entertain suits where the provisions of the statute have not been complied with or where the statutory bodies act de hors the powers conferred upon them under the statute under which such statutory bodies are created. The decision of the Apex Court in Dhulabhai v. State of Madhya Pradesh, is very clear in that
regard.
37. Their Lordship of Privy Council in Secretary of State v. Mask and Co. has held that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied and that even if the jurisdiction is so excluded, the Civil Courts will have the jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal does not act in conformity with the fundamental principles of judicial procedure.
38. The Apex Court in Firm Seth Radha Kishan (deceased) represented by Hari Kishan v. Administrator Municipal Committee, Ludhiana, has held that (Para 7) :
"A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions."
39. The fall out of above discussion is that in cases of contravention of provisions of law or transgression of law or non-enforce-ability of the decree for partition on account of events occurring subsequent to the passing of such decrees or in relation to the similar such grievances, the limited control which can be exercised by the Civil Courts can be only by way of an independent suit. Indeed the Civil Court would be entitled to entertain such grievances only by way of an independent suit. The bar for suit under Section 47 of C.P.C. could be applicable only in cases where the question can be determined by the Court executing the decree. Once it is clear that the Civil Court, is not the Court executing the decree for partition of the estate which is subject to the assessment for payment of revenue to the Government, the bar provided under Section 47 of C.P.C. for an independent suit by the parties to the decree cannot come in the way of the party approaching the Court with such suit regarding the grievance in relation to the execution of the partition decree. Undoubtedly, the scope of such suit will be subject to the other laws which may bar the jurisdiction of the Civil Court to entertain the suit. For example, in cases of the questions to be determined under the said Act, certainly the Civil Courts will have no jurisdiction to entertain any suit in that regard. It will be exclusively for the competent authority under the said Act to decide those issues in view of the provisions of Sections 36-A and 36-B of the said Act read with the decision of the Apex Court in Shavantabai Maruti Kalhatkar (supra).
40. Reverting to the facts of the case in hand, the contention regarding Watap-takta being contrary to the decree and fact of acquisition of the property subsequent to the issuance of decree, having not been considered by the Tahsildar, and the said issues being directly relating to the execution of the decree passed in the suit, certainly can be raised by the aggrieved party by filing a suit and not by way of an application under Section 47 of Code of Civil Procedure. It cannot be disputed that if subsequent to the declaration of the shares in the properties which were subject-matter of the suit for partition, some of properties were acquired by the Government and ignoring the said fact of acquisition of properties, the revenue authorities proceeded to partition the properties, certainly such a partition will be contrary to the decree, inasmuch as that some of the parties may not get the properties according to the declaration of their shares. Such a grievance can certainly be looked into by the Civil Court if brought to the notice by filing a proper suit in that regard. Similar is the case as regards the ground of the violation of the provisions of the said Act.
41. In the facts and circumstances, therefore, no fault can be found with the impugned order dismissing the application filed under Section 47 of Code of Civil Procedure. Hence, the petition fails and the rule is hereby discharged with no order as to costs.
42. At this stage, the learned counsel for the applicant prays for continuation of the interim relief for a period of four weeks. Accordingly, interim relief to remain in force for a period of four weeks from today.
Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar/ Personal Assistant of this Court.
Certified Copy expedited.
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