WP(C) 2384/2008 HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) By means of this writ petition, the petitioners have put to challenge the judgme nt and order dated 8.4.2008 passed by the learned Member, Assam Board Revenue, G uwahati in Case No.46RA(DBR)/06 directing the Deputy Commissioner, Dhubri to dis pose of the prayer for partition made by the applicants, who are the respondent s herein, in terms of the judgment and decree dated 14.11.1988 passed in Title S uit No.10.1975. By the impugned judgment and order, the particular Khatian issu ed, which was also put to challenge, has been held to be not as per the Assam T enancy Act, 1971 and consequently, the same has been cancelled. Being aggrieved , the petitioners have filed the instant writ petition. 2. Late Nidhu Rani Khullar brought a suit during her lifetime against one Bechu Kumar and others being Title Suit No.10/1975 in the Court of the learned A ssistant District Judge, Dhubri praying for a decree of partition and khas poss ession. It appears that initially, the suit was dismissed as not maintainable, b ut on appeal, being F.A. No.88/1979, this Court by judgment and order dated 3.8. 1987 held the suit to be maintainable. Accordingly, the suit was remanded to th e Court of the learned District Judge, Dhubri to decide the same in accordance w ith law. 3. The aforesaid suit was decreed by judgment and order dated 14.11.1988 a nd the same became final in absence of any appeal against the same. Be it stated here that the applicants in the appeal before the Assam Board of Revenue are th e Respondents No.1 to 10 in the writ petition, the legal heirs of Late Nidhu Ran i Khullar being her sons and daughters. Referring to the claim of the plaintiff for partition of her share of the land in question, it was held that the plain tiff was entitled to a decree of partition in respect of her share of the land. Accordingly, the suit for partition was decreed on contest with costs against t he contesting defendants and without costs against others. A preliminary decree was directed to be drawn and accordingly, same was also drawn. 4. After the aforesaid judgment and decree, Nidhu Rani Khullar, the predece ssor-in-interest of the applicants before the revenue board applied for partitio n before the Deputy Commissioner-cum-Collector. The petition, in due course, w as transferred to the Settlement Officer for necessary action, who in turn forwa rded the same to the Assistant Settlement Officer. It is on record that the nam e of the predecessor-in-interest of the applicants before the Board of Revenue i.e. Late Nidhu Rani Khullar was mutated as the rightful owner of the plot of l and. After her death, the legal heirs namely, the applicants before the Assam B oard of Revenue, who are the respondents herein, got their names mutated in resp ect of the said plot of land. 5. From the materials on record, it appears that the Assistant Settlement O fficer by his order dated 27.5.1993 passed in the aforesaid petition, registere d and numbered as Case No.3/92-93 granted the partition prayed for making the sa me effective from 1st April, 1994. The order was passed under Regulation 116 of the Assam Land & Revenue Regulation. It was the grievance of the respondents that the official respondents instead of performing the partition in letter and spirit through physical process, issued the order on 27.5.1993 only showing gran ting of the imperfect permission. According to the respondents, the order was n ot in strict compliance of Section 116A of the Regulation as the same was not f ollowed by physical handing over of the land in issue, if necessary, by evictin g the occupants, if any. The respondents were further aggrieved by the action of the Assistant Settlement Officer in granting Rayati Khatian in favour of one A towari Kumarini, since deceased and represented by the petitioners. 6. It is in the aforesaid facts and circumstances, the respondents filed an application under Section 151 of the Assam Land & Revenue Regulation, 1986 befo re the Assam Board of Revenue praying for giving effect to the partition in res pect of the land in question by handing over physical possession of the land to them. Further prayer made in the application was to cancel the Rayati Khatian No .856 granted in the name of Late Atowari Kumarini, the Respondent No.7 in the ap plication. 7. The Assam Board of Revenue, upon hearing the parties and in consideratio n of the materials on record having passed the impugned judgment and order dated 8.4.2008 with the direction to the Deputy Commissioner, Dhubri to dispose of th e partition prayer of the respondents taking into account the judgment and decre e dated 18.11.1988 passed in Title Suit No.10/1975 and also having cancelled Kha tian No.816, the petitioners have filed the instant writ petition making a chall enge to the same. 8. I have heard Mr. T.C. Khatri, learned Sr. counsel assisted by Mr. P.Maha nta, learned counsel for the petitioners as well as Mr. B. Chakraborty, learned counsel appearing for the respondents. I have also gone through the records of the Assam Board of Revenue and I have also given my anxious consideration to t he submissions made by the learned counsel for the parties and the materials on record. 9. Mr. Khatri, learned counsel for the petitioners referring to the provisi ons of Section 54, Order 20, Rule 18 (1) and (2) of the Code of Civil Procedure submits that no effect could be given to the preliminary decree passed in the aforesaid suit. He has also referred to the decision of the Apex Court as r eported in (2007) 2 SCC 355 (Hasham Abbas Sayyad v. Usman Abbas Sayyad). 10. On the other hand, Mr. B. Chakraborty, learned counsel appearing for th e respondents, who were the applicants before the Board of Revenue, submitted th at the writ petition is misconceived and not maintainable. He submits that the judgment and decree passed in 1988 having attained its finality and the order of the Assistant Settlement Officer passed wayback in 1993 (27.5.1993) having n ot been put to challenge, the said decree and order cannot be put to challenge i ndirectly by way of filing the writ petition in the year 2008. He has placed rel iance on the decision of the Apex Court reported in AIR 1963 SC 992 (Venkata Red dy v. Pethi Reddy) 11. As noticed above, the learned District Judge, Dhubri by his judgment and decree passed on 14.11.1988 in Title Suit No.10/75 granted the partition in res pect of the share of land of the plaintiff. The said judgment and decree has at tained its finality there being no challenge to the same. Thereafter, the Assis tant Settlement Officer by his aforesaid order dated 27.5.1993 granted the parti tion making the same effective from 1st April, 1994. The order was passed unde r Regulation 116 of the Regulation notifying the partition. The said order has a lso attained its finality there being no challenge to the same. The present peti tioners were very much party to the said proceeding. 12. The application before the Assam Board of Revenue was filed for effect ive implementation of the partition. The Board of Revenue in appreciation of th e facts and circumstances involved has allowed the prayer of the applicants/resp ondents with the direction to the Deputy Commissioner, Dhubri to act upon the p artition as per law and according to the judgment and decree dated 18.11.1988 pa ssed in Title Suit No.10/75. The land in question having been partitioned, the Khatian issued in respect of the same subsequent to the judgment and decree an d the order passed by the Assistant Settlement Officer has also been cancelled. 13. The decision on which Mr. Khatri, learned counsel for the petitioners h as placed reliance , has no application to the facts and circumstances involved in this case. In the said decision, i.e. Hasham Abbas Sayyad, the Apex Cour t held that it is the final decree and not the preliminary decree, unless and un less the final decree is a part of the preliminary decree, can only be execute d. The short question which arose for consideration of the Apex Court was as to whether the property in suit would be put to auction sale without initiating a formal final decree proceeding. It was in such circumstances the Apex Court hav ing noticed that the possession of the property had not been delivered to the a uction purchaser and that the suit property was a residential house held that t he auction sale was wholly illegal and that the auction purchaser could otherw ise be compensated on monetary terms. 14. In the aforesaid case before the Apex Court, a preliminary decree was p assed. An application, purportedly a special ’darkhast’ was filed by the Respon dent No.1 who had filed the suit for partition. The Respondent No.2 was his bro ther. The advocate Commissioner appointed was of the opinion that the property was made impartible. Thereafter, a proposal was mooted that the property be pu t on sale in between the co-sharers. There was objection to the report. The learned trial Judge held that it was no t necessary to initiate the final decree proceeding and the special ’darkhast’ filed by the Respondent No.1 was treated to be an application therefor. It was i n such circumstance, the short question which arose before the Apex Court was as to whether the property in suit could be put on auction sale without initia ting by formal final decree proceeding. The Apex Court held that what can be e xecuted is a final decree and not the preliminary decree, unless and until the f inal decree is a part of the preliminary decree. 15. The ’decree’ has been defined in Section 2 (2) of the Code of Civil Pr ocedure as follows :- 2(2) ’decree’ means the formal expression of an adjudication which, so far as r egards the Court expressing it, conclusively determines the rights of the partie s 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 i nclude - a) any adjudication from which an appeal lies as an appeal from an order, o r 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 adjudicatio n completely disposes of the suit. It may be partly preliminary and partly final . 16. Section 54 of the Civil Procedure Code. reads as follows :- 54. Partition of estate or separation of share.- Where the decree is for the p artition of an undivided estate assessed to the payment of revenue to the Gover nment, or for the separate possession of a share of such an estate, the partitio n of the estate or the separation of the share shall be made by the Collector o r 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 par tition, or the separate possession of shares, of such estate. 17. Order 20 Code of Civil Procedure provides as to when a judgment is said to be pronounced. Rule 7 thereof provides that a decree, although prepared at a later date, shall relate back to the date of the judgment. A civil Court, in a suit for partition, may pass a preliminary decree in terms of Order 20 Rule 18 of the Civil Procedure Code, whih reads as under. Decree in suit for partition of property or separate possession of a share the rein.- Where the Court passes a decree for the partition of property or for th e separate possession of share therein, then - (1) If and insofar as the decree relates to an estate assessed to the payme nt of revenue to the Government, the decree shall declare the rights of the seve ral parties interested in the property, but shall direct such partition or separ ation 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 insofar as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be co nveniently made without further inquiry, pass a preliminary decree declaring t he rights of the several parties interested in the property and giving such furt her directions as may be required. 18. In the instant case, unlike the aforesaid case before the Apex Court, t he preliminary decree drawn by the learned District Judge was in the form of fin al decree. The suit was instituted by the predecessor-in-interest of the respo ndents, inter alia, for partition of her share in respect of the land in questio n. While answering the issue framed in the suit, the learned District Judge he ld that the plaintiff had the right, title and interest to the extent of 2 kath as of land. As regards the claim for partition of her share of the land, repell ing the contention of the contesting defendants that the suit for partition di d not lie as per the provision of the Assam Land & Revenue Regulation, the lear ned District Judge, upon a reference to the judgment of this Court in aforesaid FA No.88/1979 in which it was held that the jurisdiction was with the learned D istrict Judge, held that the plaintiff was entitled to a decree of partition in respect of her share of land forming subject matter of the present dispute. It i s in this context, the judgment and decree dated 14.11.1988 passed in Title Suit No.10/75 will have to be understood. 19. As noted above, the said judgment and decree has attained its finality and the respondents approached the authority under the Assam Land & Revenue Regu lation for effecting the partition. As per the said judgment and decree, althoug h order for effecting partition was passed by the Assistant Settlement Officer v ide his order dated 27.5.1993 but there being no effective follow up action, the respondents approached the Assam Board of Revenue by filing the application und er Regulation 151 of the Regulation praying for the aforementioned direction. En tertaining the application, the Assam Board of Revenue has passed the impugned j udgment and order in terms of the orders already holding the field. Although t he Assistant Settlement Officer issued the proclamation of partition in terms of the aforesaid judgment and decree, but there being no action under Regulation 116A, the applicants/respondents approached the Assam Board of Revenue for com pliance with the provisions of Regulation 116A. Regulation 116A reads as follow s :- 116. Proclamation of partition.- On completion of a partition the Deputy Commi ssioner shall publish a proclamation of the fact at his office and at some consp icuous place on each of the new estates or in the estate of which they originall y formed part, and the partition shall take effect from the beginning of the agr icultural year next after the date of the proclamation. 116-A. Procedure to be followed by Deputy Commissioner in giving effect to the p artition. As soon as may be after the date on which the partition takes effect under the last preceding section, the Deputy Commissioner shall deliver to the s everal sharers possession of the separate lands allotted to them, and for this p urpose may, if necessary, summarily eject any proprietor or landholder who may r efuse to vacate the same. 20. In Venkata Reddy (supra), the short question before the Apex Court was a s to whether the preliminary decree for partition, which was affirmed finally by the High Court of Madras can be regarded as a final decision. As in the instan t case, the competence of the Court was not in question. What, however, conte nded was that in a partition suit only the decision which can be said to be a fi nal decision is the final decree passed in the case and that since the final dec ree proceedings were still going on when the amending Act came into force, the particular provision was not applicable. It was held that where a decision is embodied in the judgment, which is followed by a decree, the finality must natu rally attached to itself in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. 21. If the argument made by the learned counsel for the petitioners, upon a reference to the decision in Hasham Abbas Sayyad (supra) is to be accepted, it would mean that no finality is attached to the judgment and decree dated 14.11. 1988 passed by the learned District Judge, Dhubri in Title Suit No.10/75. A de cision is stated to be final when, so far as the Court rendering it is concern ed. It is unalterable except by resorting to such provision of C.PC as permitte d its revision, modification or amendment. Similarly, the final decision would mean a decision which would operate as a res judicata between th e parties, if it is not sought to be modified or reversed by preferring an appea l or a revision or a review application as have been permitted by the Code. 22. In Venkata Reddy (supra), it has been observed thus - &.A preliminary decree passed, whether it is in a mortgage suitor a partition s uit, is not a tentative decree but must, in so far the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate s the making of two decrees a preliminary decree and a final decree - the decr ee which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. Th e Legislature in its wisdom has thought that suits of certain types should be de cided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be rel evant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary does not appeal from it, he is preclu ded from disputing its correctness in any appeal which may be preferred from th e final decree. This provision thus clearly indicates that as to the matters co vered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree. 23. In the instant case, the decree passed in 1988 has attained its finalit y. The applicants/respondents sought for implementation of the same by approach ing the authority prescribed under the Regulation. Although the Assistant Settle ment Officer issued proclamation under Regulation 116, no action having been tak en towards effective implementation as provided for under Regulation 116A, they approached the Assam Board of Revenue by filing application for appropriate d irection. The Board of Revenue appreciating the facts and circumstances has issu ed the aforesaid direction to the Deputy Commissioner, Dhubri, which cannot be s aid to be opposed to law. 24. The direction of the Assam Board of Revenue is in terms of the finality arrived at by virtue of the aforesaid judgment and decree. The question for det ermination before the Board was as to whether the applicants/respondents were en titled to execution of partition under Regulation 116A on the basis of the judgm ent and decree passed in the aforesaid title suit and as to whether Khatian No.8 16 issued in the name of Atowari Kumarini was liable to be cancelled. The Board upon a detail discussion of the matter has passed the impugned judgment and or der directing the Deputy Commissioner, Dhubri to act as per the provisions of th e Regulation. It has also cancelled the Khatian which even otherwise could not h ave been granted at a time when the judgment and decree and the order of the As sistant Settlement Officer were in operation. 25. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed leaving the parties to bear their own costs . 26. The Deputy Commissioner, Dhubri shall now proceed with the matter in ac cordance with law towards effective implementation of the partition in question.