IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8405 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT ======================================================== 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO --------------------------------------------------------- RAVATSINH RANUBHA Versus V S SINHA OR HIS SUCCESSOR & OTHERS. ---------------------------------------------------------- Appearance: MR RJ OZA for Petitioners Mr. Sudhansu S. Patel, AGP for Respondent No. 1 NOTICE SERVED for Respondent No. 2, 3/AA, 8/A- 8/B, 9/A-9/D. Mr. Chetan Pandya for MR SV RAJU for Respondent No. 3(b) 4(c) & 4(b). Mr. J.T. Trivedi, for Respondents No. 3 & 4. SERVED BY AFFIX.(N) on Respondent No. 5/A-5/B,6/A-7 ----------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT Date of decision: 19/09/2000 ORAL JUDGEMENT After the Court of the Civil Judge (S.D.) at Bhavnagar on 31-12-1970 passed the decree in Special Civil Suit No. 1 of 1969 declaring the shares of the parties in the undivided properties and directing the Collector under Section 54 of the Civil Procedure Code to partition the lands assessed to payment of revenue to Government, and put the parties in possession of the portions of the land falling to their respective shares, the Collector for the District of Bhavnagar on 16th May 1986 as per the settlement arrived at amongst the parties divided the lands and directed the Mamlatdar to hand over the possession of the land. The order was challenged in Revision. The Additional Chief Secretary, Revenue Department (Appeal) at Ahmedabad on 23-5-1990 allowing the Revision set aside the order of the Collector (Respondent No.2) dated 16th May 1986 and directed the Collector to act as if he was the Commissioner appointed within the meaning of the Civil Procedure Code and complete the work of partition within a period of two months. By this application under Article 226 & 227 of the Constitution of India, the order passed in revision is called in question with a prayer for issuance of a writ of mandamus or certiorari or any other appropriate writ quashing and setting aside the order passed in revision on 23rd May 1990, and also directing the respondent No.2 to determine the mesne profit, etc.,. 2. Necessary facts may be stated. The petitioners are the brothers. Kuvarsang Narbha is their uncle. They were having the ancestral undivided properties, namely building, building-lands, agricultural-lands etc., at Madhuvan and Zazmer of Talaja Taluka in Bhavnagar District. The petitioners' father died around 1955. At that time they were minors. Their uncle Kuvarsang Narbha was managing their affairs. Their uncle sold certain agricultural lands to the father or husband of respondents No.3 to 9 as the case may be, through whom they are claiming. The petitioners after attaining majority, because of the dissension that had arisen with their uncle, decided to have the partition of the Hindu Undivided Family properties and have their respective shares. A notice was then given to their uncle and those who had purchased the agricultural lands, but when they paid no heed the petitioner No.1 filed the suit being Special Civil Suit No. 1 of 1969 in the Court of the Civil Judge (SD), Bhavnagar for partition, 1/6th share in the properties and mesne profit against Respondents Nos. 1 to 8 joining his brothers the petitioners Nos. 2 & 3 as defendants Nos. 9 & 10. The then learned Civil Judge (SD), Bhavnagar on 31st December 1970 passed the preliminary decree. The Court held that Kuvarsang Narbha, the uncle of the petitioners (joined as defendant No.1) was having 1/2 share while the petitioners were jointly having 1/2 share, i.e individually they were having 1/6th share. In view of Section 54 of the Civil Procedure Code he sent the decree to the Collector, Bhavnagar, for effecting the partition of the agricultural lands assessed to payment of land revenue to Government and put the respective parties into the possession of the portions of the lands falling to their respective shares etc. After a long time on 16th May 1986 the Collector divided the properties keeping several-land laws in mind and directed the Mamlatdar at Talaja to hand over the possession of the lands fallen to the share of the respective parties. He divided the lands keeping in mind the settlement arrived at amongst the parties after the court passed the preliminary decree. The purchasers of the agricultural lands, namely opponents No. 2 to 8 were allowed to retain 1/2 share and rest of the portions of the lands were divided. The heirs and legal representatives of deceased Lakha Sura and Chotha Sura the opponents No. 3 & 4, Bhimubha Jatubha and Makubha Jatubha the opponents No. 5 & 6 preferred the appeal before the Secretary, Revenue Department (Appeals), Ahmedabad. On 17th March 1990, after the Collector passed the order, more particularly described as final decree, the appeal was then converted into Revision because the Additional Secretary was of the view that appeal was not competent in law as there was no provision in law for the same. He therefore keeping Section 211 of Bombay Land Revenue Code in mind (for short, "the Code"), converted the appeal into the Revision. On 23rd May 1990, the revision was allowed observing that Collector was appointed as the Commissioner by the Court of the Civil Judge (SD) and therefore the Collector had to act in accordance with Order 26 Rules 13 & 14 of the Civil Procedure Code. The Collector was therefore under an obligation to prepare the report and send it to the court passing the decree. It was then for the Civil Court to decide, if at all the objections were filed by the parties as to whether to accept the report or to modify or alter the same, or even quash the same. Instead of sending the report to the Civil Court when the Collector had passed the final decree, it was not in consonance with the provisions of law. It is against this order, the present application is filed for the issuance of appropriate writ and quashing the order passed in Revision. 3. It is the contention of the learned advocate representing the petitioners that the Collector, to whom under Section 54 of the Civil Procedure Code the copy of the decree was sent for effecting the partition of the lands assessed to payment of land revenue, was virtually exercising the powers flowing from the Civil Procedure Code or the decree itself, and not under the Code. The Revision which was converted from the appeal was therefore not at all maintainable before the Additional Chief Secretary, Ahmedabad. If at all some of the parties had a grievance against the order of the Collector relating to the division of the agricultural lands, the Civil Court ought to have been moved for appropriate order, and after the order was passed the party feeling aggrieved could have preferred the appeal before this Court keeping the provisions of Civil Procedure Code in mind. In fact, against the order of the Collector, initially the Civil Court was moved but the Civil Court held that the order of the Collector was just and proper, and thereafter the Revision in question was preferred which was not at all consistent with law. If at all any thing remained to be done by the Collector and was not being done, in accordance with the decree, the Civil Court was the only authority to direct the Collector to complete his work under Section 54. In this regard, my attention is drawn to the decision of the Supreme Court in the case Chintaman Vs. Shankar and Others - (1999) 1 S.C.C. 76. Placing reliance on the decision of the Bombay High Court in the case of Ningappa Balappa and others Vs. Abashkhan Goushkhan - AIR 1956 Bombay 345, it is the further submission of the petitioners' learned advocate that it is not the case that after the decree for partition of land assessed to land revenue has been passed, the Court becomes functus officio or powerless. No doubt, the decree in that case is to be executed and partition is to be effected by the Collector, but the Court is not entirely deprived of controlling the action taken by the Collector. In view of such decision, Revision before the Revenue Authority in the hierarchial set-up was not at all competent. If at all there was any grievance, the Civil Court ought to have been moved for remedying the grievance and if any of the parties was not satisfied with the eventual order of the Civil Court, the Appeal or Revision ought to have been preferred before this Court, but when that procedural remedial measures are not resorted to and the Revision not competent in law was filed, it would be most appropriate for this Court to quash the order passed in Revision holding that the Revision was not at all maintainable. The ld. advocate has then drawn my attention to the decision of the Mysore High Court in the case of Ramachandra Shamarao Kulkarni Vs. Prahlad Krishnaji Kulkarni and others - AIR 1964 Mysore 31 wherein it is held that when the partition of the properties assessed to payment of revenue to Government is made, the decision of the Collector cannot be considered to be the decision within the meaning of the Code and it is not subject to an appeal to any revenue authority under Section 203 of the Code. 4. In reply to such contention, Mr. J.T. Trivedi, the ld. advocate representing the respondents No. 3 & 4 placing reliance on the decision rendered in the case of Mohd. Yunus Vs. Mohd. Mustaqim and others - AIR 1984 S.C. 38 submits that the jurisdiction of the High Court under Article 227 or even under Article 226 of the Constitution is very limited. This Court cannot correct the error apparent on the face of the record, much less the error of the law committed by the lower forum. The Court does not act as an appellate Court or Tribunal, and it has not to review or reweigh the evidence and to correct the errors of law in the decision challenged. He therefore on this count urges to reject the application holding that the jurisdiction being limited the Court cannot correct the errors of law even if there be any. 5. Mr. Pandya, the ld. advocate representing the respondents No. 3(b), 4(b) & 4(c), submits that the Collector is a Revenue Officer; and even if the decree for partition of the agricultural lands subject to land revenue is sent to him for partition, he would be dividing the land and putting the parties into the possession of the portions of the land fallen to their respective shares keeping applicable land laws in mind and so he will be functioning as the Revenue Officer. Hence appeal against the decision of the Collector has to be filed under Section 203 of the Code, or Revision has to be preferred under Section 211 of the Code. When accordingly the procedure is required to be followed and no error of law has been committed, this Court has no justifiable reason to interfere with the orders exercising the jurisdiction under Article 226 or 227 of the Constitution of India. He also supported aforesaid contention raised by the learned advocate, Mr. J.T. Trivedi. 6. Mr. Sudhansu Patel, the learned AGP for the opponents No. 1 & 2 has supported the impugned orders and accepting the contentions raised by the ld. advocates representing the other opponents he urges to dismiss this petition. 7. First of all I may deal with the writ jurisdiction of this Court when the parties have raised the contention in that regard. No doubt, as held in the case of Mohd. Yunus vs. Mohd. Mustaqim (supra), the jurisdiction of this Court under Article 226 and 227 is supervisory, but the duty of this Court is to see that the lower Forums or the Tribunals function within the limits of their jurisdiction. This Court cannot correct the error apparent on the face of the record, much less an error of law. As this Court does not act as the appellate Court or Tribunal, it would be beyond its competence to review or reweigh the evidence upon which the determination of the lower Court or Tribunal purports to be based, or to correct the errors of law in the decision. It may be stated that writ jurisdiction can be exercised not only in the cases when there is jurisdictional error or the procedural error inclusive of omission to act in conformity with the principles of natural justice, but also in the cases where the fundamental rights are violated, or enforcement of a legal right is necessary, or the authority disregarding the facts and materials on record, has arbitrarily passed the order leading to miscarriage of justice, or it has decided on extraneous consideration, or has passed the order in bad faith, or the order is perverse or unreasonable or absurd, or where interference in the interest of justice is necessary so as to do complete justice, or the question of consideration of statutory provisions is involved, or constitutional point is raised, or question relating to statutory duty or obligation is involved, or compliance or implementation of the order is difficult or injurious or confusing or embarrassing or places the party between the devil and the deep sea. 8. In the case on hand, the issue relating to the interpretation of Section 54 Civil Procedure Code along with Rule 18 Order 20, C.P. Code as well as applicability of Section 203 & 211 of the Code is raised, and the same being the question with regard to the consideration of statutory provisions as well as relating to the statutory duty or obligation, and also in respect of the jurisdiction of the Court & other Forums as to which of the hierarchial set-up for redressal of the grievances is competent and is required to be moved, this Court does acquire the writ jurisdiction to dissect the merits of the issue, interfere with the order if found necessary, and pass appropriate order. 9. In the case on hand, a preliminary decree for partition of the properties both agricultural lands and other properties came to be passed by the then learned Civil Judge (SD) at Bhavnagar. The copy of the decree was then sent to the Collector, Bhavnagar for effecting the partition of the agricultural lands subject to assessment of land revenue and putting the parties into the possession of the land fallen to their respective share. This has been done because of the provision of Section 54 of the Civil Procedure Code. In view of the rival contentions, the questions (1) whether the decree passed is in the eye of law the preliminary decree or the final decree so far as it relates to the division of the property (land) subject to assessment of revenue (2) whether the Collector is the revenue officer and against his decision qua partition of the land subject to assessment of land revenue appeal or revision would lie before the Revenue Authority in hierarchial set-up under the Code or before the Civil Court passing the decree under C.P. Code, (3) what is the control of the Civil Court passing the decree, and (4) whether the Collector to whom the decree is sent u/s. 54 C.P. Code for partitioning the agricultural land subject to land revenue has to pass final decree or make any report to the Court arise for determination. In order to decide the questions, firstly relevant provisions of C.P. Code may be stated. "54. Partition of estate or separation of share. "Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates." One should not miss to note, Rule 18 of Order 20, C.P. Code helpful to decide whether the decree passed for partition of the agricultural lands subject to assessment of land revenue is the final decree or a preliminary decree, and that provision is couched in the words as under : "18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,__ (1) if and 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 several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required." It may be mentioned here, that one must not overlook the definition of the decree given vide Section 2(2) Civil Procedure Code which runs as under : "2.(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include___ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.___ A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. In view of such provisions and especially explanation to Sec. 2(2) and Sub-Rule (2) to Rule 18, Order 20 which provide to pass preliminary decree qua the properties other than properties assessed to the payment of revenue to Government, the decree passed directing to partition the agricultural land will be the final decree as the Civil Court has nothing further to do in the matter, which is required to be done when properties other than agricultural land are ordered to be partitioned. After the decree directing the Collector to partition the agricultural lands subject to land revenue is passed, the Civil Court has even not to execute the decree; the Collector has to partition and put the concerned parties into the possession of the portions fallen to their share. The Civil Court has then not to even adjudicate any issue. Hence by passing the decree qua agricultural lands the suit is finally & completely disposed of. The decree passed ordering to partition the properties both agricultural as well as non-agricultural properties, will be the final decree so far as it relates to agricultural lands subject to land revenue, while it will be the preliminary decree so far as it relates to the properties, not assessed to the payment of revenue to Government. 10. Necessary case laws, some of which are cited by the parties, throwing light on the proposition may be referred to though in view of above clear provisions no case-law is required to be referred to. The Bombay High Court had an occasion to deal with the question in D.M. Jacinto and another Vs. J.D.B. Fernandes - 1939 Bombay 454 = 41 Bom.L.R. 921. Keeping Rule 20, Order 18, Civil Procedure Code in mind, it is held that when the decree is sent to the Collector for carrying out the partition of the agricultural land and subsequently the application is filed by the parties to the Court to send the decree and papers to the Collector, the same does not amount to execution. In that regard, it is further observed that when the decree is passed by the Court, its duties are finished and it is for the Collector to partition the property and put the parties into possession. When decree, may be a preliminary decree, is passed in a partition suit but agricultural lands are to be divided, the same would be a final decree as the actual partition of the agricultural lands is to be carried out by the Collector and nothing further in this regard is required to be done by the Court. In the case of Ramabai Govind Vs. Anant Daji - AIR (32) 1945 Bombay 338, the question was relating to limitation. In that connection, it is held that after the decree for partition of revenue paying land is passed, the application to send the papers to the Collector is not governed by Article 181 or 182 of the Limitation Act. In that decision, it is observed at Page 340 that the decree passed will not fall within the definition of a preliminary decree as given in the Explanation to Section-2 sub-section (2), Civil Procedure Code and referring to a decision of the Calcutta High Court in 57 Calcutta 1013, it is observed that in fact no other final decree is ever passed after decree is once passed under R. 18(1) O.20, C.P. Code. A preliminary decree cannot for ever remain a preliminary decree, but contemplates a final decree upon which the decree-holder may take out execution. The Collector cannot make a final or first decree in a Civil Suit for partition, and yet the Civil Court is not required by the Code to pass any further decree or to make its decree final at any stage. Upon this footing the first and final decree to be passed by the Court would be a final decree. In Ramagouda Rudregowda Patil and others Vs. Smt. Lagmavva and others - AIR 1985 Karnataka 82, it is made clear that after the decree is passed for effecting the partition of the estate subject to assessment of land revenue and the decree is sent to the Collector for effecting the partition and handing over the possession to the concerned parties, the jurisdiction of the Collector remains confined only to the partition of the lands i.e., actual division by metes and bounds and handing over the possession of a share. Whether the concerned land is partible or impartible can be determined by the Court and not the Collector. It is also made clear that the decree so far it relates to the agricultural land would remain to be a preliminary decree and not a final decree. 11. Out of these three authorities first two support the view I have taken hereinabove. Whenever in a partition suit the decree for division of the agricultural lands subject to land revenue is passed, the same would be the final decree as the actual partition is to be carried out by the Collector and nothing further is required to be done by the Civil Court, and no direction remains to be issued. As discussed hereinbelow the Civil Court may have a limited control over the Collector, but that does not relate to basic feature of partition of the land as per decree and putting the parties into the