1 wp 4606.2008.sxw srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4606 OF 2008 Mrs. Chitra R. Golande & Ors. .. Petitioners vs Bapu Soma Golanda @ Bapu .. Respondent Mr. Anil V. Anturkar i/b S.B. Deshmukh, Advocate for the Petitioners. Mr. G.S. Godbole i/b Jai V. Kanade, Advocate for the Respondent. CORAM: A.S.OKA,J DATE: 4th September, 2009. P.C. 1 Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent. The petition arises out of a suit for partition of immovable property. This petition under Article 227 of the Constitution of India is filed for challenging an order passed in execution. A final decree application was filed before the trial court. A prayer was made before the trial court for a direction under section 54 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the said Code’) for forwarding the matter to the Collector for effecting partition as the property subject matter of the decree for partition was subject to payment of revenue assessment. The said application 2 wp 4606.2008.sxw was contested by the present petitioners by contending that parties to the suit had entered into an agreement relating to land survey No. 11 and 12 of village Mhalunge, Taluka Mulshi, District Pune, in favour of one C.P. Setumadhavan. It is stated that as far as land survey No. 11 is concerned, a layout has been sanctioned by the Collector and 65 plots have been sold out of the layout plots to various purchasers who have constructed buildings thereon. Therefore, a prayer was made that the request for passing an order under section 54 of the said Code be rejected. However, the said application was allowed and the papers were ordered to be sent to the Collector in accordance with section 54 of the said Code. 2 The learned counsel appearing for the petitioners has invited my attention to the definition of the word “estate” under section (2)(8) of the Maharashtra Land Revenue Code, 1966. He placed reliance on a decision of the Punjab High Court in the case of Rameshwar Nath Vs. Jageshwar Nath and others, (AIR 1953 PUNJAB 250) and submitted that the words “estate assessed to the payment of revenue to the Government” do not cover lands which have been built upon and have become houses or factories. He submitted that in the present case, on the layout plots there is a construction of buildings/structures and therefore, a part of the suit property cannot be said to be an estate assessed to the payment of revenue within the meaning of section 3 wp 4606.2008.sxw 54 of the said Code. He, therefore, submitted that the trial court was not justified in passing the impugned order by which papers were sent to the Collector for effecting partition of suit properties. The learned counsel appearing for the respondent invited my attention to the decision of the Punjab High Court and pointed out that in the case before the said High Court the petitioner had expressly agreed that the partition of the properties shall be made by the Commissioner. Considering the definition of the “land” under Section 2(16) of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as ‘the said Code of 1966’) he submitted that the land will include buildings thereon. 3 I have given careful consideration of the submissions. It will be necessary to consider section 54 of the Code of Civil Procedure which reads thus: “54. Partition of estate or separation of share. - Where the decree is for the partition of an undivided estated 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 4 wp 4606.2008.sxw relating to the partition, or the separate possession of shares, of such estates.” 4 The definition of the “estate” under Section 2 (8) of the said Code of 1966 reads thus: “estate” means any interest in lands and the aggregate of such interests vested in a person or aggregate of persons capable of holding the same;” 5 The definition of the “land” under section 2 (16) of the said Code of 1966 reads thus: “land” includes benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth, and also shares, in, or charges on, the revenue or rent of villages, or other defined portions of territory; 6 Therefore, the “estate” had been defined under the said Code to mean any interest in the lands. The land includes things attached to the earth, permanently fastened to the earth and also shares herein. Under the provisions of the said Code of 1966, in view of section 64 thereof, the land revenue is payable even in respect of the lands which are permitted to be used for non- agricultural use. In the reply filed by the petitioners to the application for passing an order under section 54 of the said Code, it is contended that 5 wp 4606.2008.sxw subsequent to the decree of partition, layout plots were made on a part of the suit property which have been sold to the third parties which have been constructed upon. It is not the case of the petitioners that the land revenue is not payable in respect of the lands which are converted into layout plots. 7 A reliance was placed on decision of Lahore High Court in the case of Vir Bhan and another Vs. Sham Singh, etc. (AIR 1944 Lahore 455). It was sought to be contended that the status of the land on the date on which partition was sought to be effected will have to be considered. 8 On plain reading of the definition of “estate” read with the definition of “land” under the said Code of 1966, it is obvious that the “estate” includes an interest in the buildings and structures. The subsequent permission to use the land for non-agricultural use has no effect on applicability of section 54 of the said Code as it is nobody’s case that the lands subject matter of the partition are not subject to payment of land revenue to the Government. Under section 64 of the said Code of 1966, even the agricultural lands converted into non- agricultural use are subject to payment of Land Revenue. The decision of Punjab High Court has no application. That even as of today the lands are assessed to revenue payable to the government. 9 In the circumstances, the view taken by the Trial Court is legal. No interference is called for with the impugned order. Writ Petition is rejected. 6 wp 4606.2008.sxw 10 The learned counsel appearing for the petitioners prays for continuation of ad-interim relief. The said prayer is opposed by the learned counsel appearing for the respondent. For a period of 8 weeks, ad-interim order to continue. However, partition proceedings can go on. Judge.