IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 550 OF 2004 APPEAL NO. 550 OF 2004 APPEAL NO. 550 OF 2004 Sou.Bharpaidevi Jaykisan Agarwal, Adult, Occ.: Household, residing at B-302, Preet Apartment, Pune- Bombay Road, Pune. .... Appellant. (Org.Defendant No.2.) Versus. 1. Smt.Lilabai Raghunath alias Gajanan Katke, Age: 35 years, Occ.: Household residing at Hatwalan, Tal: Daund, Dist. Pune. 2. Shri Dagdu Laxman Katke, Adult, Occ.: Agriculture, residing at 55, Katkewadi, Under Wagholi, Tal.: Haveli, Dist. Pune. .... Respondents. (No.1-Org.Plaintiff & No.2-Org.Defendant No.1) Shri A.V.Anturkar for the Appellant. Smt.Suhasini Mutalik for Respondent No.1. CORAM CORAM CORAM ; ABHAY S. OKA, J. ; ABHAY S. OKA, J. ; ABHAY S. OKA, J. DATED DATED DATED : 26th Aug., 2004. : 26th Aug., 2004. : 26th Aug., 2004. ORAL ORAL ORAL JUDGMENT. JUDGMENT. JUDGMENT. 1. Heard learned Counsel appearing for the Appellant and the Respondent No.1. The following substantial questions of law arise in the Appeal: : 2 : (i) Whether the Appellate Court committed an error by not framing the points of determination as required by Rule 31 of Order XLI of the Code of Civil Procedure, 1908? (ii) Whether the Appellate Court committed an error by holding that once the Civil Court passes a preliminary decree for partition in respect of immoveable property assessed to the payment of revenue to the Government, the Civil Court becomes functus officio and the Civil Court lacks jurisdiction to give further directions to the authority under section 54 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") which implements the decree of partition? The Second Appeal is admitted on the aforesaid substantial questions of law. By consent of the Counsel appearing for parties, the appeal is forthwith taken up for final disposal. FACTS. 2. With a view to appreciate the submissions, it will be necessary to refer to the facts of the case in brief. : 3 : The Appellant herein is the original Defendant No.3 in a suit for partition filed by the Respondent No.1 herein. The suit was filed in the year 1984. During the pendency of the suit the original Defendant No.1 who is Respondent No.2 herein, sold the land bearing Gat No.526 which was the subject matter of the suit, to one Balu Dhondiba Katke and the said Balu sold the said property bearing Gat No.526 during the pendency of the suit to the Appellant who is the Defendant No.3. The suit for partition filed by the Respondent No.1 was decreed. It was held that the Respondent No.1 and 2 have 1/2 share each in the suit property and it was directed that the decree shall be sent to the Collector as required by section 54 of the said Code for effecting partition. In the decree it was directed that "If practicable the land sold to Defendant No.3 out of block No.526 be allotted to the share of Defendant No.1". The decree directed that in so far as the house property was concerned, the same shall be partitioned by appointing a Court Commissioner. It appears that after the decree was sent to the Collector, by sending a letter, the Collector sought certain clarification from the learned trial Judge. After hearing the parties, the learned trial Judge by Judgment and Order dated 27th March 1997 purported to give necessary clarification. The operative part of the said Judgment and Order reads thus: : 4 : 1. The darkhast be sent to the Collector with direction that about 9 R’s of area from block No.526/1 allotted to the present D.H. which is in occupation of various co-owners viz. Balu Dhondibha Katake, Tarabai Gajanan Katake, Vasant Sakharam Jadhav, Saraswati S.More and Shashikala Dnyandeo Tupsunder. 2. The Collector is further directed to allot 21 R’s of land from Block No.441 and 10 R’s from Block No.471 which is in possession of J.D.No.1 to the present D.H. by keeping intact the share of J.D.No.3 as per his sale deeds as observed in judgment RCS No.235/84. 3. The Collector is further directed to report compliance of this partition before 2nd week of June, 1997. The said order was challenged by the Respondent No.1 by preferring an Appeal to the District Court. The said Appeal was allowed by the impugned Judgment and Order and the order of the trial Court was set aside. Being aggrieved by the said Judgment and Order, this Second Appeal is preferred by the Defendant No.3. : 5 : ARGUMENTS. 3. The learned Counsel appearing for the Appellant relied upon two judgments of the learned Single Judges of this Court for contending that the Judgment and Decree of the Appellate Court is vitiated as a result of failure of the Appellate Court to frame points for determination as required by Rule 31 of Order XLI of the said Code. He relied upon a Judgment of the learned Single Judge of this Court reported in AIR 1985 Bombay page 98 (Smt.Anita H.Harretto v/s. Abdul Wahid Sansullah). He relied another Judgment reported in 2003(4) Mah.L.J. page 833 (Janardan Nago Patil v/s. Ramanand Ramdas Mishra). He submitted that in the Judgment in the case of Smt.Anita (Supra) this Court deprecated the practice of framing points for determination as framed by the Appellate court in the present case. He therefore submitted that only on this ground the Judgment will have to be set aside. 4. He further submitted that the Appellate Court has committed another error by holding that once a decree for partition to which section 54 of the said code is applicable is passed by the Civil Court, the Court becomes functus officio and the Court has no jurisdiction to give further directions to the Collector who is empowered to effect partition as per the decree. : 6 : He submitted that the law laid down by this court is very clear on this aspect. This Court has held that there is a very limited power vesting in the Court even after passing such decree. Even after action is taken under section 54 of the said Code, the Civil Court retains very limited control over the Decree and the Civil Court can step in and give appropriate directions if the Collector contravenes the decretal order or transgresses the law relating to partition or refuses to execute the decree. He submitted that there is a difference of opinion between the two learned Single Judges of this Court on this aspect. He submitted that one view which is taken is that such limited control can be exercised in the same proceedings by invoking section 47 of the said Code. He referred upon the Judgment of the another learned Single Judge of this Court reported in 2003 (1) All M.R. page 1016 (Prakash Nathyaba Bhosale v/s. Laxman Genba Bhosale) in which it is held that the Court after passing decree to which section 54 of the said Code is applicable retains control which is limited in nature. However, the limited control which can be exercised by the Civil Courts can be only by way of independent suit. He submitted that once it is found that the Court retains limited control, the matter will have to be remanded to the Appellate Court as the Appellate Court has proceeded on the footing that once decree is passed to which section 54 of the Code is : 7 : applicable, the Civil Court ceases to have any control over the decree. He submitted that the matter will have to be remanded to the Appellate Court to find out whether the order passed by the trial Court on 27th March 1997 can be justified by establishing that the Collector has contravened the decretal order or transgressed law relating to partition. He submitted that the said issue cannot be decided by this Court in a Second Appeal. 5. The learned Counsel appearing for Respondent No.1/original Plaintiff pointed out that the only issue which was decided by the Appellate Court was whether the trial Court could have issued directions which had the effect of modifying the original decree for partition. She submitted that only the said issue was considered by the Appellate Court and has been decided and therefore, there is no failure of justice even if a specific point for determination is not framed. She further submitted that in paragraph 10 of the Judgment, the District Court has considered the effect of the order passed by the trial Court and the Court has come to the conclusion that the said order could not have been passed by the trial Court. She has placed reliance on several Judgments which are referred to in the later part of this Judgment. : 8 : MAINTAINABILITY OF THE APPEAL BEFORE THE DISTRICT COURT. 6. Before I deal with the submissions canvassed by both the learned Counsel, it is to be noted here that one of the submissions made before the Appellate Court was that the appeal was not maintainable. The said objection is raised in this Second Appeal. There is an order made on 18th June 1997 by the learned Addl. District Judge holding that the appeal was maintainable. There is no specific challenge to the order dated 18th June 1997 in this Second Appeal. By the said order the learned Additional District Judge held that the order passed by the trial Court was in the nature of final Decree and therefore, the Appeal was maintainable. The Appellant cannot contend that the appeal in the District Court was not maintainable without specifically challenging the order dated 18th June 1997. EFFECT OF THE ORDER OF THE TRIAL COURT. 7. By the Judgment and Order dated 27th March 1997 passed by the trial Court, a direction was given to allot the property purchased by the Appellant during the pendency of the suit to her share. By clause 1 of the order, the learned trial Judge directed that a specific portion out of block No.526/1 should be allotted to the decree holder i.e. Respondent No.1 which was in : 9 : occupation of various co-owners. In so far as the effect of the order passed by the trial Court is concerned, it is very clear. The trial Court directed that a particular area out of block No.526/1 should be allotted to the Respondent No.1 and the property purchased by the Defendant No.3/Appellant should be kept intact so that it can be allotted to her share. But it is pertinent to note that by the decree which was passed by the learned trial Judge it was directed that as far as possible efforts should be made to allot the property purchased by the Appellant to her share i.e. to the Defendant No.1. However, there was no direction given to allot the said property to the Appellant under any circumstances. Obviously such mandatory direction could not have been given while passing a Decree for partition as while effecting partition by metes and bounds, equities are required to be adjusted and there are various other aspects which are required to be taken into account. It was purely the function of the Collector to decide which portion of the property should be allotted to the share of the Respondent No.1 and the Appellant. The original Decree of Partition directs that the property purchased by the Appellant should be allotted to her share if it was practicable. It is to be noted here that the Collector sought clarification from the Civil Court on the ground that the names of certain other persons were entered in the Revenue : 10 : Records in respect of the suit properties. While giving clarification by passing the order impugned before the Appellate Court, the learned trial Judge directed that the portion of the suit properties which are in possession of the other co-owners who were not the parties to the suit should be allotted to the share of Respondent No.1/Plaintiff and share of the Appellant should be kept intact as per the sale deed executed in her favour. Thus the said order passed by the trial Court amounts to modification of the operative part of the Decree of partition passed by the trial Court. As per the Decree passed originally only direction was that if practicable the land sold to the Appellant may be allotted to the share of the Defendant No.1 through whom the Appellant was claiming. The subsequent order directs that the share of the Appellant as per the Sale Deed shall be kept intact. POWER OF THE COURT PASSING DECREE FOR PARTITION. 8. The first question to be decided is whether the Civil Court retains any power over the Decree of Partition after the Decree is sent for effecting partition to the Collector and if yes, what is the extent of the said power. As far as the position of law is concerned, it seems to be very clear to me. In a Judgment reported in AIR 1956, Bombay, page 345 (Ningappa Vakaooa & ors. v/s. Abashkhan Gouskhan) a : 11 : Division Bench of this Court held that : "5. It is true 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 refused to execute the decree. See the cases cited at p.228 of Sir Dinshaw Mulla’s Code of Civil Procedure, 12th Edition." The learned Counsel for the Appellant contended that the learned Single Judge of this Court in a Judgment reported in 1997 (1) All M.R. page 557 (Anandrao s/o.Ganpatrao Belkhode & ors. v/s. Azuzul Haq s/o.Hazi Abdul Bari & Ors.) has taken a contrary view. A perusal of the Judgment of the learned Single Judge shows that he has not taken a contrary view. In paragraph No.14 of the Judgment, the learned Judge has referred to in detail to the Judgment of this Court reported in AIR 1945 Bombay page 338 (Ramabhai Govind v/s. Anant Daji) and stated that he was aware that in certain circumstances the Civil Court may have control over the proceedings. The learned Judge also recorded that the said control is a limited control as reflected in the : 12 : said Judgment of this Court. The learned Judge noted that it is only if the Collector contravenes the decretal order or transgresses the law or refuses to carry out the decree, such action is liable to be controlled and corrected by the Court which passed the decree. After holding that the power of the Court is subject to the aforesaid limitation the learned Judge held that the control as referred to above would not allow the Civil Court to complete and effect the act of partition of the estate assessed to land revenue and deliver possession, because the said act of partition, if done by the Civil Court, would be in complete violation of statutory provisions of section 54 of the Code. 9. The learned Counsel for the Appellant also relied upon two other Judgments of the learned Single Judge reported in 2000(2) All M.R. page 508 (Kisan Bhikaji Dalvi since deceased through LRs. v/s. Krishnabai Maruti Dalvi) and 2000(3) All M.R. page 105 (Apparao Bapurao Mane v/s. Shivaji Bapurao Mane & ors.). A perusal of the said Judgments shows that the specific issue regarding the existence of power in the Civil Court to issue direction after the decree is passed to which section 54 of the Code is applicable did not really come up for consideration before the learned Single Judge when the said two Judgments were delivered. : 13 : 10. The view of this Court seems to be very consistent which is reflected from the recent Judgment of another learned Single Judge of this Court reported in 2003(1) All M.R. page 1158 ( Mahadu alias Mahadeo Baji Bhosale v/s. Appaji Gunbarao @ Ganpatrao Bhosale (since deceased) & ors.). The learned Single Judge followed the law laid down by a Division Bench of this Court in the case of Ningappa (supra). Thus the law on this point appears to be that after a Civil Court passes a decree to which section 54 of the Code is applicable, the Court is not entirely deprived of controlling the action taken by the Collector. However, the scope of the said power to control the action of the Collector is very limited. The said power can be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition. The said power can be exercised in one more contingency when the Collector refuses partition of the property as per the decree. 11. In so far as the reliance placed by the learned Counsel for the Appellant on the other Judgment of the learned Single Judge reported in 2003(1) All M.R. page 1016 (Prakash Nathyaba Bhosale v/s. Laxman Genaba Bhosale) is concerned, it must be noted that the said Judgment also takes the same view as regards the powers : 14 : retained by the Civil Court after passing the decree of partition. The learned Single Judge has further held that the limited control is to be exercised by the Civil Court by way of an independent suit and not by invoking section 47 of the Code. However, once it is established that there is a power vesting in the Civil Court, which is a limited power as stated above, it is not necessary in this Second Appeal to go into the question as to in which proceedings such power can be exercised. WHETHER THE ORDER OF THE TRIAL COURT WAS LEGAL? 12. So far as the merits of the decision of the Appellate Court are concerned, it is true that the Appellate Court has proceeded on the footing that the Civil Court is powerless to pass any order after the decree is passed to which section 54 of the Code is applicable. To that extent the Appellate Court has committed a clear error. 13. The learned Counsel appearing for the Respondent No.1 relied upon paragraphs 9 and 10 of the impugned judgment of the Appellate Court and stated that the Appellate Court has clearly understood the nature of the order passed by the trial Court and therefore, the ultimate final order passed is correct. : 15 : 14. The learned Counsel appearing for the Appellant submitted that once it is found that the Civil Court has limited control over the decree, whether the Civil Court was well within its powers to pass the order or not cannot be decided in the Second Appeal and for that purpose the appeal should be remanded to the Appellate Court. In so far as this contention is concerned, reference will have to be made to section 103 of the Code. Section 103 confers specific powers on the High Court to determine any issue necessary for disposal of the Appeal which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100. The only condition precedent for exercise of such power is that the evidence on record must be sufficient to enable the Court to determine the issue. In the present case, it is not the case of both the parties that evidence is required to be led in the matter for the purpose of determining the said issue. 15. The suit was filed by the Respondent No.1 in January 1984. The decree was passed in the year 1992. The decree attained finality and till the year 2004 partition has not been effected as per the decree. Therefore, this is a fit case where powers under section : 16 : 103 should be exercised by this Court. 16. I have already dealt with the operative part of the direction given by the trial Court. The effect of the said direction is that the trial Court has directed that a particular specified portion from block No.526/1 should be allotted to the Respondent No.1 in the partition and the Appellant shall be allotted property which was purchased by her during the pendency of the appeal. Thus the order passed by the trial Court virtually effects the partition which could have been effected only by the Collector by exercising power under section 54 of the Code. The facts of the case and perusal of the order dated 27th March 1997 passed the trial Court clearly show that there was no question of Collector contravening the decretal order or transgressing law relating to partition. This was also not a case where the Collector had refused to execute the decree. All that the Collector did was to seek a clarification. In the process of giving clarification, the trial Court has passed order dated 27th March 1997. The original Decree of the trial Court directs that the property purchased by the Appellant during the pendency of suit shall be allotted to the share of the Defendant No.1 if practicable. The question whether it was practicable to allot the said property to the Appellant or to the Defendant No.1 could have been decided only by : 17 : the Collector at the time of effecting partition under section 54. The Civil Court could not have decided the said question. Thus the order passed by the trial Court was unsustainable and deserved to be set aside. Therefore, the final conclusion of the Appellate Court is correct when the Appellate Court set aside the order passed by the trial Court. EFFECT OF NOT FRAMING A SPECIFIC POINTS FOR DETERMINATION. 17. This takes me to the consideration of main submission made by the learned Counsel for the Appellant based on Order XLI Rule 31 of the Code. It is necessary to refer to the Judgment of the learned Single Judge of this Court in the case of Smt.Anita (supra). In para 16 of the judgment, the learned Single Judge of this Court noted that the Appellate Courts were framing points for determination in a very casual manner and instances of the manner in which the points were being framed are given in paragraph 16. In paragraph 17 the learned Single Judge considered the scope of Rule 31(a) which reads thus: "17. This manner ignores that O.41 R.31(a) requires the appellate court to state in its judgment the points that arise for determination after the arguments are : 18 : advanced. Asking such vague questions as mentioned above will not lead to the pronouncement of a well considered and reasoned judgment. Imagine a Court of first appeal being confronted with the judgment where an issue is framed as to whether the suit of the plaintiff should be decreed. All concerned will be at sea if a suit is decided on an issue framed in that manner. As early as in Mhasu v/s.Davalat, (1905) 7 Bom.L.R. 174, dealing with a similar provision in the earlier Civil Procedure Code it has been pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination was to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latter. The points which must arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost textbook knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. It is not sufficient to state the : 19 : point to be determined in