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Ningappa Balappa and ors. Vs. Abashkhan Gouskhan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 33 of 1955
Judge
Reported inAIR1956Bom345
ActsCode of Civil Procedure (CPC), 1908 - Sections 47, 54 and 151 - Order 20, Rule 18 and 18(1); Tenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 89(2)
AppellantNingappa Balappa and ors.
RespondentAbashkhan Gouskhan
Appellant AdvocateR.A. Jahagirdar and ;R.R. Jahagirdar, Advs.
Respondent AdvocateK.G. Datar, Adv.
Excerpt:
.....powers of the court under section 151 of the civil procedure code, when it is not alleged that he had acted contrary to any law relating to partition ; b) the suit filed by the plaintiff was pending when the bombay tenancy and agricultural lands act, 67 of 1948 came into force in 1948, though the decree was passed subsequently - it was held that as the rights given to the plaintive by the decree had been accrued to him on the date of suit, he was entitled to execute it a if the act had not been passed -his right, therefore, must prevail over any rigs acquired under the act, after its commencement - .....application (ex. 88) to the court. they stated in that application that they were tenants of the suit lands since before the institution of the suit and that they could not, therefore, be evicted from the lands in view of the provisions of the bombay tenancy and agricultural lands act, 1948. they, therefore, prayed that the papers should be called for from the collector & that an order should be made directing the collector to deliver only symbolical possession of the lands to the respondent-plaintiff, without disturbing the actual possession of these appellants.on the same day, 11-1-1955, another application ex. 89 was made by the 14 appellants in letters patent appeal no. 33 of 1955, in which they alleged that some of the suit lands had been leased to them after the date of the suit......
Judgment:

Chainani, J.

1. The facts giving rise to these two appeals are briefly these: In Suit No. 336 of 1947 the respondent-plaintiff obtained a decree for partition and separate possession of his share in several agricultural lands. This decree was passed in 1949. It was confirmed in appeal by the High Court, on 22-1-1952. On 5-11-1952, the papers were sent to the Collector under Section 54, Civil P. C. for effecting Partition of the lands.

On 11-1-1965, appellants 1 to 11 in First Appeal No. 292 of 1955 made an application (Ex. 88) to the Court. They stated in that application that they were tenants of the suit lands since before the institution of the suit and that they could not, therefore, be evicted from the lands in view of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.

They, therefore, prayed that the papers should be called for from the Collector & that an order should be made directing the Collector to deliver only symbolical possession of the lands to the respondent-plaintiff, without disturbing the actual possession of these appellants.

On the same day, 11-1-1955, another application Ex. 89 was made by the 14 appellants in Letters Patent Appeal No. 33 of 1955, in which they alleged that some of the suit lands had been leased to them after the date of the suit. They made a similar prayer as was made in Ex. 88 for an order to the Collector to deliver only symbolical possession of the lands to the respondent-plaintiff.

Both these applications were rejected. Against the orders passed on these applications F. A. No. 292 of 1955 was filed by all the 25 persons who claimed to be tenants. This appeal came up for admission before Bavdekar J. He admitted the appeal of appellants 1 to 11 and dismissed the appeal of the other tenants. Against his order dismissing the appeal of the other tenants, Letters Patent Appeal No. 33 of 1955 has been filed.

2. As I have stated, the decree passed in the suit was a partition decree directing partition of the suit lands. Section 54, Civil P. C., provides that where the decree is for partition of lands assessed to the payment of revenue, the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law for the time being in force relating to partition.

Order 20 Rule 18 provides that where the Court passes a decree for the partition of property, then 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.

It has been held by this Court in 'Jacinto v. Fernandez' AIR 1939 Bom 454 (A) that where a Court has passed a decree for partition of lands assessed to Govt. revenue the Court's duties are finished as soon as the decree is passed and that it is for the Collector to carry out the partition and put the parties into possession.

It was also observed in that case that in forwarding the papers to the Collector to carry out the partition directed by the decree, the Court performs only a ministerial Act. This decision has been approved by a Full Bench of this Court in 'Ramabai Govind v. Anant Daji' AIR 1945 Bom 338 (B), Lokur, J. observed:

'As pointed out by Beaumont C. J. in 'Jacinto v. Fernandez', (A) 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 'Dev Gopal v. Vasudev Vithal' 12 Bom 371 (C), the Court is not deprived of its judicial control of its decree. But that 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 AIR 1939 Bom 454 (A) described the order directing the partition of the lands assessed to Government revenue to be effected by the Collector as a final decree'.

3. Weston J. also agreed with this view and at pp. 343, 344 he observed 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.

4. According to these decisions, therefore, 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, C. P. C. were therefore, not maintainable.

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 refuses to execute the decree. See the cases cited at p. 223 of Sir Dinshaw Mulla's Code of Civil Procedure, 12th Edition.

In this case, it is not alleged that the Collector has acted or intends to act contrary to the decree or any law relating to partition. What is alleged is that the Collector might act contrary to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.

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.

6. Mr. Jahagirdar for the appellants has urged that even if the present applications cannot lie under Section 47, they may be treated as applications under Section 151. So far as appellants 1 to 11 in First Appeal No. 292 of 1955 are concerned, their case is that they have been cultivating the lands since prior to the date of the suit. They were not parties to the suit.

They cannot also be said to be representatives of the Judgment-debtor; for, the lands are said to have been leased to them before the date of the suit. They are, therefore, really strangers to the suit and it is not open to them to make an application either under Section 47 or under Section 151, Civil P. C.

7. As regards appellants 1 to 14 in Letters Patent Appeal No. 33 of 1955, the lands are said to have been let to them after the date of the suit. They can, therefore, be said to be representatives of the judgment-debtor within the meaning of Section 47.

But we do not think that even they can invoke the Inherent powers of the Court under Section 151 when it is not alleged that the Collector has acted or intends to act contrary to the terms of the decree or contrary to any law relating to partition.

All that is alleged is that the Collector proposes to deprive them of their possession of the lands, contrary to the terms of the Bombay Tenancy and Agricultural Lands Act, 1948, Mr. Jaha-girdar has relied on Calicut Bank Ltd. v. Radhalakshmi : AIR1945Mad65 and Mt. Aziz Fatma v. Mukund Lal : AIR1932All480 in which certain rights had been acquired during the pendency of the suit under the local rent control and tenancy laws.

He has also relied on the decision of this Court in First Appeal No. 144 of 1951 (Bom) (F). In that case the attention of the Court does not appear to have been invited to Section 89(2), Bombay Tenancy and Agricultural Lands Act, 1348. This section saves all rights in respect of which a suit was pending at the date of its commencement.

Section 89(2)(b) of the Act provides that save as expressly provided in this Act, nothing in this Act snail affect or be deemed to affect any right, title or interest acquired before the commencement of the Act and any legal proceeding or remedy in respect of any such right, title or interest shall be continued and disposed of as if this Act was not passed.

The suit filed by the respondent-plaintiff was pending when the Act came into force in December 1948, though the decree was passed subsequently. The rights given to the respondent-plaintiff by the decree however had accrued to him on the date of the suit. He is, therefore, entitled to execute the decree as if the Act had not been passed.

His rights must, therefore, prevail over any rights acquired under the Act after its commencement; for if the Act had not been passed the decree-holder would have been entitled to obtain possession from all persons brought on the lands by the Judgment-debtor after the date of the suit.

The rights, If any, acquired by the appellant in Letters Patent Appeal No. 33 of 1955 by their leases cannot, therefore, affect the right of the respondent-plaintiff to obtain possession of his share in the suit lands, which had accrued to him before the commencement of the Bombay Tenancy and Agricultural Lands Act, 1948.

8. Both the appeals must, therefore, fall andare dismissed with costs.

9. Appeals dismissed.


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