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Husseinsab Imamsab Ballekkai and anr. Vs. Veerabhadrappa Mallappa Guledgud and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 46 of 1972
Judge
Reported inAIR1975Kant13; ILR1974KAR969; 1974(2)KarLJ56
ActsCivil Procdeure Code, 1908 - Sections 2, 47, 54 and 151 - Order 21, Rule 90; Partition Act, 1893 - Sections 2 and 8; Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947; Bombay Land Revenue Code - Sections 203; Karnataka Land Revenue Act, 1964
AppellantHusseinsab Imamsab Ballekkai and anr.
RespondentVeerabhadrappa Mallappa Guledgud and ors.
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateS.D. Chatre, Adv.
Excerpt:
- labour & services. dismissal from service: [subhash b adi, j] articles of charges against the respondent regarding obtaining employment by producing false transfer certificate enquiry report finding of disciplinary authority that the charges is proved order of dismissal-challenge to delay in completing the enquiry proceedings reinstatement without back wages pleaded against held, a person, who practices fraud for achieving his object, cannot perpetuate much less on the ground of delay. even one acquires certain rights, they get vitiated once it is proved that the acquisition by means of fraud. the allegation of fraud having been proved, there is no justification for the labour court to set aside the punishment. further, the gravity of the charge cannot be ignored,..........bijapur on 21st march, 1961 for effecting partition, in terms of the said decree.3. the assistant commissioner who was competent to divide the lands, found that one of the lands could not be divided without contravening the provisions of the bombay prevention of fragmentation and consolidation of holdings act, 1947. he accordingly reported the matter to the civil court. on 23rd september, 1961. the court directed the sale of the land among the share-holders and to pay the sale proceeds to the petitioners as per their share. undisputed-ly, the court directed the sale under section 2 of the partition act. 1893. the sale was finally held by the assistant commissioner on 20th october, 1967 in which respondent 2 was the highest bidder. on the 20th november. 1967 the petitioners.....
Judgment:
ORDER

1. This petition under Article 227 is directed against the order made by the Karnataka Revenue Appellate Tribunal in Appeal No. 384 of 1970 (MLR) and it arises in this way.

2. The petitioners obtained a decree in the partition suit No. 291 of 1946 from the court of the Civil Judge, J. D., Bagalkot. The decree declared 7/24th share to the petitioners in the undivided estate assessed to the payment of land revenue. The said decree was transmitted to the Deputy Commissioner. Bijapur on 21st March, 1961 for effecting partition, in terms of the said decree.

3. The Assistant Commissioner who was competent to divide the lands, found that one of the lands could not be divided without contravening the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. He accordingly reported the matter to the Civil Court. On 23rd September, 1961. the Court directed the sale of the land among the share-holders and to pay the sale proceeds to the petitioners as per their share. Undisputed-ly, the Court directed the sale under Section 2 of the Partition Act. 1893. The sale was finally held by the Assistant Commissioner on 20th October, 1967 in which respondent 2 was the highest bidder. On the 20th November. 1967 the petitioners filed an application before the Assistant Commissioner, under Order XXI, Rule 90 read with Section 151 C. P. C. for setting aside the sale contending that it was vitiated by material irregularities in publishing or conducting the sale. The Assistant Commissioner rejected the application on merits. On 22nd March, 1968, he confirmed the sale.

4. The petitioners aggrieved by the order of the Assistant Commissioner, appealed before the Deputy Commissioner under Section 203 Bombay Land Revenue Code. The Deputy Commissioner, dismissed the appeal holding that it was not maintainable. Their further revision petition to the Karnataka Revenue Appellate Tribunal was also dismissed on the same ground.

5. The question that falls for decision is whether the sale held by the Dy. Commissioner or any one of his gazetted subordinates, pursuant to an order of a Civil Court made under Section 2 of the Partition Act. 1893 could be set aside by the officer who conducted the sale. If this question is answered in the negative. then the Assistant Commissioner had no jurisdiction to entertain the petitioners' application for setting aside the sale and the question relating to the maintainability of the appeal before the Deputy Commissioner need not be considered.

6. Mr. Narayana Rao urged that the sale was held in the course of the division of the estate under Section 54, Civil P. C. and therefore, the Assistant Commissioner who conducted the sale was competent to entertain the application to set aside the sale. In support of his contention, he relied upon the following two decisions, in Muppanna HalapPa v. Channappa Halappa, (1963) 2 Mys LJ 346 -(AIR 1964 Mvs 169) and in Ganapatrao Raojirao v. Balavant Krishnaji. (1965) 2 Mys LJ 768 (FB).

7. In Mupanna Halappa's case (1963) 2 Mys LJ 346 = (AIR 1964 Mys 169), the facts were these: A decree for partition was transmitted to the Collector under Section 54, Civil Procedure Code for effecting partition. The Collector effected the partition and fixed a day for delivery of the share allotted to the plaintiff. One of the parties to the decree, moved the Civil Court with a petition under Section 47. Civil Procedure Code, complaining that the partition effected by the Collector was unequal and contrary to the terms of the decree. The Civil Court dismissed that petition on merits. The matter finally came before this Court in an execution Second Appeal. One of the questions urged in the appeal related to the jurisdiction of the Civil Court to entertain the application against the order of the Deputy Commissioner made under Section 54, Civil P. C. This Court observed that the proceedings before the Deputy Commissioner are neither proceedings in a suit nor in an execution, but are independent proceedings before a Tribunal not subordinate in any manner to the Court passing the decree. It was further observed that if the Collector acts in contravention of the law or disregards the terms of the decree, his action could always be corrected by appeal or revision to his higher authorities if such appeal or revision is permissible under the law. The same was the view taken, by this Court in Ganapatrao Raojirao's case (1965) 2 Mys LJ 768 (FB). It was also observed therein that the Deputy Commissioner while performing his function under Section 54, has no inherent jurisdiction under Section 151 and he is not a Court constituted under the Civil Procedure Code. It was also observed that if the decree was transmitted when the Bombay Land Revenue Code was in force, the order made by the Deputy Commissioner would be appealable to the Divisional Commissioner under Section 203 of the Bombay Land Revenue Code, but no such right of appeal is provided for an aggrieved party under the Karnataka Land Revenue Act, 1964.

8. The principles stated in these two decisions are of no assistance for decision of the question before me. I am not concerned with the action taken by the Assistant Commissioner under Section 54, C. P. C. Section 54 does not confer power on the revenue officials to sell the decretal properties on any ground. It is only the Civil Court, under Section 2 of the Partition Act could direct a sale of the property to which the decree relates, if it is of the opinion that a division of the property cannot reasonably or conveniently be made and the distribution of the sale proceeds would be more beneficial for all the share-holders.

9. From these facts and law, it Is clear that the sale held by the Assistant Commissioner was at the direction of the Civil Court and not by the power conferred on him under Section 54. Civil Procedure Code, It might be that that sale was held by the Assistant Commissioner who was competent to divide the land under Section 54. It is authorised by Section 2 of the Partition Act. and an order made thereunder amounts to a decree within the meaning of Section 2, Civil Procedure Code. That is evident from Section 8, Partition Act. Therefore, the sale held pursuant to the direction of the Court, could not have been challenged before the Assistant Commissioner, or before any one of his superiors. The Application filed by the petitioner under Order XXI, Rule 90. Civil Procedure Code, must therefore, be held to be not maintainable before the Assistant Commissioner.

10. At this stage Mr. Narayana Rao. urged that the petitioners may be permitted to file their application to set aside the sale before the Civil Court.

11. Suffice it to state, that no specific sanction is required for the petitioners to file any such application. If they file any application before the Civil Court, it is for that Court to consider the same in accordance with law.

12. In the result, the petition fails and is dismissed. No costs.

13. Petition dismissed.


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