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Prabhu Dayal and ors. Vs. the Sub-divisional Officer, Karvi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberC.M. Writ No. 1686 of 1956
Judge
Reported inAIR1958All673
ActsTenancy Laws; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 176, 182A, 182B and 182D; Code of Civil Procedure (CPC) , 1908 - Sections 54 - Order 20, Rule 18
AppellantPrabhu Dayal and ors.
RespondentThe Sub-divisional Officer, Karvi and ors.
Appellant AdvocateV.K.S. Chowdhary, Adv.
Respondent AdvocateG.P. Bhargava and ;N.D. Ojha, Advs. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
.....to judicial magistrate - held, mere use of the words' judicial magistrate' cannot deprive the sub divisional officer of the jurisdiction to partition the holding. (ii) application to munsif for transfer to collector - section 176 of u.p. zamindari abolition and land reforms act, 1951 - munsif should transmit record to collector for actual partition even though no application has been received. - - 2 and 3 had filed the suit in the court of the learned munsif the petitioners in the present writ petition made an application in that court stating clearly that they were agreeable for partition if two other plots, i. i am of opinion that in view of the fact that the extent of share was admitted by the parties and the parties mutually submitted to a partition and led no evidence, the..........application and to quash the proceedings arising from the application pending before the sub-divisional officer, karvi. (judicial magistrate, karvi). the grounds on which the petition is founded are that the learned sub-divisional officer or judicial magistrate had no jurisdiction to entertain the application and that no application for the preparation of the final decree having been made before the learned munsif the proceedings before the judicial magistrate were incompetent and not maintainable in law. 2. a counter-affidavit has been filed on behalf of respondents nos. 2 and 3 which is sworn by sheo sampat, one of the respondents in this case. it is mentioned in this affidavit that by virtue of notification no. 1756/i-a-1073-53 dated 11-6-1953 all sub-divisional officers.....
Judgment:
ORDER

Jagdish Sahai, J.

1. The respondents Nos. 2 and 3 i.e. Mahadeo and Sheo Sampati had filed a suit in the court of the Munsif of Banda being suit No, 241 of 1953 against the petitioners for partition of Bhumidhari holding measuring 50 bighas 13 biswas situated in village Hesta, pargana Karvi in the district of Banda. The learned Munsif passed a preliminary decree on 29-10-54 by which he held respondents Nos. 2 and 3 entitled to a half share in the said holding and to partition thereof.

On 26-4-1953 the respondents Nos. 2 and 3 made an application, a copy of which has been filed along with this petition and marked as annexuxe 'A', in the court of the Judicial Magistrate, Karvi, Revenue Department (Sigha Mal Mauza Hasta Pargana Karvi). In this application the petitioners were impleaded as opposite parties. It was said in the application that a suit had been filed between the parties in the Civil Court in respect of partition o the bhumidhari plot in which the Civil court had declared the respondents Nos. 2 and 3 to be entitled to half a share in the said holding and to partition thereof.

A copy of the decree of the learned Munsif was filed along with this application in the court of the Judicial Magistrate. The prayer in that application was that the shares of the applicants (the respondents Nos. 2 and 3 in this petition) be separated after actual partition and the Land be also apportioned. In this petition the prayer is for the issue of a writ of prohibition or any other suitable writ, order or direction forbearing the respondents from further proceedings with the aforementioned application and to quash the proceedings arising from the application pending before the Sub-Divisional Officer, Karvi. (Judicial Magistrate, Karvi).

The grounds on which the petition is founded are that the learned Sub-Divisional Officer or Judicial Magistrate had no jurisdiction to entertain the application and that no application for the preparation of the final decree having been made before the learned Munsif the proceedings before the Judicial Magistrate were incompetent and not maintainable in law.

2. A counter-affidavit has been filed on behalf of respondents Nos. 2 and 3 which is sworn by Sheo Sampat, one of the respondents in this case. It is mentioned in this affidavit that by virtue of notification No. 1756/I-A-1073-53 dated 11-6-1953 all Sub-Divisional Officers discharge the function of a Collector and the application made by the respondents Nos. 2 and 3 was properly made and is properly pending before the Sub-Divisional Officer, Karvi, respondent No. 1.

It is further alleged that the petitioners never raised any objection regarding the jurisdiction of the Sub-Divisional Officer who is respondent No. 1 in the present proceedings to proceed with the case before him. It is also stated in the counter-affidavit that under the law the final decree cannot be prepared by the Munsif, Banda, but would be prepared by the Sub-Divisional Officer and the proceedings pending before the Sub-Divisional Officer are proper and valid proceedings. In the counter-affidavit the allegation of the petitioners that they made an oral representation to the Sub-Divisional Officer, Karvi to the effect that he had no jurisdiction to proceed with the case has been controverted and it is stated that the same is untrue.

Similarly the allegation that the petitioners filed an application for the stay of the proceedings before the Sub-Divisional Officer, Karvi, has also been controverted. The petitioners' appeal before the learned Temporary Additional Civil Judge of Banda against the preliminary decree passed by the learned Munsif has also been dismissed with the result that the decree of the learned Munsif has been confirmed. It may be noticed that after the respondents Nos. 2 and 3 had filed the suit in the court of the learned Munsif the petitioners in the present writ petition made an application in that court stating clearly that they were agreeable for partition if two other plots, i.e. 23/1 and 23/2, were also included in the partition along with the plots in respect of which the suit had been filed.

The respondents Nos. 2 and 3 in the present proceedings made an endorsement on that application that they had no objection to that being done-and those plots were also included in the suit. After that the parties gave no evidence and the trial Court, i. e., the learned Munsif, held that the share of the plaintiff was one-half and directed that partition be carried out by the Collector on that basis I am reproducing below an extract from the judgment of the learned Munsif which is relevant for this case :

'The share of the plaintiff is not in dispute. The area under the partition is more than 61/2 acres and can be partitioned. In view of Act XX of 1954, U. P. Land Reforms (Amendment) Act the area for Bundelkhand has been reduced to 6 1/2 acres and further actual partition will be carried out by the Collector in accordance with certain procedure which may be prescribed. So this court cannot enter iota the manner in which partition may be effected.'

I have already mentioned above that the learned Temporary Additional Civil Judge, Banda, dismissed the appeal of the petitioners against the decree passed by the learned Munsif. The following passage from his judgment will show that the petitioners have been trying only to gain time and making frivolous objections with a view to delay the partition :

''On behalf of the appellants it is contended before me that the suit for partition was not maintainable as there was previous partition between the parties. I do not think this contention can prevail in the presence of the two applications dated 29-7-1954 and 14-10-1954. By these two applications the defendant himself submitted to the jurisdiction of the court and prayed for a partition.

The second contention of the appellants that the learned Munsif should have framed an issue about the maintainability of the suit also cannot prevail for the same reason.

'I am of opinion that in view of the fact that the extent of share was admitted by the parties and the parties mutually submitted to a partition and led no evidence, the order of the trial Court is perfectly correct and this appeal should be dismissed.'

Mr. V. K. S. Chowdhry, the learned Counsel for the petitioners has submitted that though under the provisions of Section 182-D of the U. P. Zamindari Abolition and Land Reforms Act the actual partition has got to be done by the Collector or a Sub-Divisional Officer, the Collector or the Sub-Divisional Officer has no jurisdiction to receive an application for partition and such an application must be received by them through the civil court.

In other words the complaint of Mr. Chowdhry is not that the Sub-Divisional Officer has no jurisdiction to actually partition the plots but only about the manner in which the application for partition has been received by that officer. I may here mention that though the application annexure 'A' had been addressed to the Judicial Magistrate, who is also the Sub-Divisional Officer, against the words Judicial Magistrate, the words 'Sigha Mal' (revenue department) have also been added.

The result is that, the application would be deemed to have been addressed not to the Judicial Officer or the Sub-Divisional Magistrate but to the Assistant Collector or the Sub-Divisional Officer. Mere use of the words 'Judicial Magistrate' will not deprive the Sub-Divisional Officer of the jurisdiction to partition the holding, firstly because it is merely a technicality as to how the application is addressed and, secondly, because the use of the words 'Sigha Mal' along with the words 'Judicial Magistrate' clearly indicate that the application was made to that officer on the revenue side, i.e., the Assistant Col-lector or the Sub-Divisional Officer, A judicial magistrate on the revenue side is no one else than an Assistant Collector. Now as regards the merits, Section 182-B of the U. P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as the Act, runs as follows :

'182-B: Except as provided in sections 178 to 182 the partition of a holding or the separation of the share therein of a bhumidar or mirdar shall be made by the Collector in accordance with the principles that may be prescribed.'

This section leaves no room for doubt that the parti-tion of the holding has got to be done by the Collector or the Sub-Divisional Officer, who is also a Collector for the purposes of this provision, There is nothing in the Act which says that after a decree in respect of a partition has been passed by a Civil Court an application has to be made to the same court and that application has got to be transferred to the Collector who then gets the jurisdiction to partition the holding and the Collector cannot himself entertain an application for actual partition after the Civil Court has decreed a suit for partition. Section 182-A of the Act reads as follows :

'182-A. : The provisions of section 54 and Order XX, Rule 18, Code of Civil Procedure, 1908, shall apply to a suit for partition of holding under section 176.'

It is admitted by Mr. V. K. S. Chowdhry, learned Counsel for the petitioners that section 182-A of the Act lays down that the provisions of section 54 and Order XX, Rule 18 of the Civil Procedure Code would apply to a suit for partition of a holding filed under Section 176 of the Act. It is not disputed in the present case that the suit which was filed in the court of the Munsif, Banda, was under Section 176 of the Zamindari Abolition and Land Reforms Act. Section 54 of the Civil Procedure Code runs as follows :

'54. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Crown 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 relating to the partition, or separate possession of shares, of such estate'.

This section clearly indicates that in a case of partition contemplated by section 54 partition shall be made by the Collector. Order 20, Rule 18, runs as follows :

'18. Where the Court passes a decree for the partition of property or for the separaite possession of a share therein, then,

(1) 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 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 in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.'

It is clearly mentioned in the decree of the learned Munsif that the area for Budelkhand has been reduced to 6 1/2 acres and, actual partition will be carried out by the Collector in accordance with the procedure which may be prescribed. It cannot, therefore, be denied that the decree passed by the learned Munsif is in conformity with the provisions of Order XX, Rule 18, of the Civil Procedure Code.

It has not been shown to me by Mr. Chowdhry as to under what provision of law the respondents Nos. 2 and 3 were required first to apply to the learned Munsif for actual partition of the holding, who in his turn was to transfer the application to the learned Sub-Divisional Officer for this same purpose, or even for transmitting the record to the Collector for actual partition. To my mind there is nothing in law to warrant the conclusion that unless an application is made to the Civil Court, the Collector would have no jurisdiction to partition.

After all section 182-B of the Act has riot been enacted without any purpose. If the only idea of enacting section 182-B of the Act was to lay down that the actual partition would be done by the Collector it was not necessary to enact that section because that intention is apparent both from section 54 as well as from Order XX, Rule 18, Civil Procedure Code, which has been made applicable to suits filed under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act by the provisions of Section 182-A and which expressly down that the actual partition would be done by the Collector.

To my mind Section 182-B of the Act has been specially enacted to enable the Collector to receive an application for actual partition if the civil Court does not transmit the record to the Collector for that purpose either on its, own initiative or on the application of 'the parties. When a court has been given a power to do something it must be held, if there is nothing to the contrary in the rules or the Act, that it has also the power to receive applications or initiate proceedings for doing that thing.

I have found nothing in the Act or the rules which takes away from the Collector the power to receive such applications. I am of the opinion that the correct legal position is that when a suit is filed for the partition of a holding under Section 170 of the Act, the Munsif is required to pass a decree declaring the rights of the several parties interested in the property but he should direct such partition to be made by the Collector.

He should after passing that decree transmit the record to the Collector for actual partition even though none of the parties may have made an application for that purpose. There is nothing in section 54 and Order XX, Rule 18, Civil Procedure Code or any other law which requires an application for transmitting the record being made even in cases which do not fall under the Act and were decided, or are to be decided under Section 54 and Order XX, Rule 18, Civil Procedure Code.

3. It was held by the Bombay High Court in the Full Bench case of Ramabai Govind v. Anant Daji, AIR 1945 Bom 338 (A) that there is no provision in the Code of Civil Procedure for making an application for transmitting the record to the Collector in a case covered by section 54 and Order XX, Rule 18, Civil Procedure Code. The Bombay High Court observed as follows :

'If, on the other hand, the decree be regarded as final, it is not executable by the Court, as already pointed out, and as the Code does not provide for an application to have it sent to the Collector, such an application, even if made in the form of a dar-khast application is not governed by Article 181 or any other Article of the Limitation Act.'

Usually such an application is made to the civil Court which passes the decree but that is done because there is a practice to do so and not because the law requires it. In the case of D. M. Jacinto v. J. D. B. Fernandez, AIR 1939 Bom 454 (B), it was held that the act of transmitting the record by the Court which passes the decree to the Collector in a case covered by Section 54 and Order XX, Rule 18, Civil Procedure Code, is not a judicial act but only a ministerial act, which is done not because the law requires it, but because that is the practice.

If the law required that an application had to be made to a civil Court for the transmission of the record for partition to the Collector then there would have been a provision to that effect somewhere and there would also have been a period of limitation prescribed for making such an application, but there are no such provisions. If the law did not require that being done in a case purely under Section 54 and Order 20, Rule 18, Civil Procedure Code, surely it cannot be held that even after the enactment of section 182-B of the Act, it was necessary for an application being made for the transmission of the record to the Collector for purposes of partition and if no such application is made the Collector would have no jurisdiction to partition the -land.

In my opinion, therefore, the learned Sub-Divisional Officer was quite competent to receive the application for actual partition. Even if that were not so, I would not have interfered in the matter in my writ jurisdiction because Mr. Chaudhry admits that the learned Sub-Divisional Officer to the exclusion of the civil Court is competent to partition the holding and his objection is not to the jurisdiction of the learned Sub-Divisional Officer, but to the manner in which the jurisdiction has been assumed by him. The case of the petitioners, is that the application should have been made to the learned Munsif who should have transferred it to tile Sub-Divisional Officer and should not have been entertained by the Sub-Divisional Officer directly.

It is conceded that the civil Court (the learned Munsif) could do nothing in the matter and all that it was required to do was to transfer the application for actual partition to the Collector or the Sub-Divisional Officer. That being so, even according to the contention of the learned Counsel for the petitioners the Sub-Divisional Officer has jurisdiction to partition the holding and no court to my mind would be justified in quashing those proceedings simply on the ground that the application has been received by him directly and not through the civil Court.

4. I, therefore, see no merits in this petition and dismiss it, but in the circumstances of the present case direct the parties to bear their own costs. The stay order is vacated.


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