Supreme Court of India
Abdul Rejak Laskar vs Mafizur Rahman on 20 December, 2024
2024 INSC 1023
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14805 OF 2024
(arising out of SLP (C) No. 19226 of 2022)
ABDUL REJAK LASKAR …Appellant(s)
VERSUS
MAFIZUR RAHMAN & ORS. …Respondent(s)
JUDGMENT
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2024.12.20
17:00:31 IST
Reason:
J.B. PARDIWALA, J. :-
For the convenience of exposition, the present judgment is divided into the
following parts:
INDEX
A. FACTUAL MATRIX ……………………………………………………………………………….. 2
B. SUBMISSIONS ON BEHALF OF THE APPELLANT / PLAINTIFF ……… 10
C. SUBMISSIONS ON BEHALF OF THE RESPONDENTS / DEFENDANTS
……………………………………………………………………………………………………………….. 11
D. ANALYSIS …………………………………………………………………………………………….. 15
i. What is Partition? ………………………………………………………………………………….. 16
ii. Order XX Rule 18 of the CPC…………………………………………………………………. 22
iii. When does Section 154(1)(e) bar the jurisdiction of civil courts? ………………… 33
E. CONCLUSION ………………………………………………………………………………………. 41
SLP(C) No. 19226/2022 Page 1 of 41
1. Leave granted.
2. This appeal arises from the judgment and order passed by the Gauhati High
Court in Regular Second Appeal No. 243/2014 dated 22.08.2022, by which
the second appeal filed by the respondents herein (original defendants)
came to be allowed thereby setting aside the Judgment and order passed by
the First Appellate Court and restoring the Judgment and decree passed by
the Trial Court.
3. For the sake of convenience, the appellant – herein shall be referred to as
the original plaintiff and the respondents – herein shall be referred to as the
original defendants.
A. FACTUAL MATRIX
4. The facts giving rise to this appeal may be summarized as under.
a. It is the case of the appellant herein (original plaintiff) that sometime
in 1973, the respondents herein (original defendants nos. 1 and 2
respectively) acquired ownership of 02 katha and 10 lechas of land
of one Javed Ali by inheritance. Pursuant thereto, the respondent
nos. 1 and 2 respectively as joint owners took over possession of
their respective shares each admeasuring 01 katha and 05 lechas.
SLP(C) No. 19226/2022 Page 2 of 41
b. The respondent no. 1 herein vide two separate registered sale deeds
dated 18.05.1977 and 25.07.1977 respectively sold his entire 01
katha and 05 lechas of the land in Dag No. 787 of PP No. 127
situated in Nagaon to the appellant herein in the following manner:
i. Registered sale deed no. 3198/77 for 01 katha of
land.
ii. Registered sale deed no. 6292/1977 for 05 lechas
of land.
c. Possession over the said portion of the land was handed over to the
plaintiff. However, soon thereafter, defendant nos. 1 and 2 tried to
forcibly dispossess the plaintiff from the suit property.
d. Aggrieved by the forcible dispossession, the appellant herein
instituted Title Suit No. 67/1979 for confirmation of his right, title
and interest and declaration of possession over the suit land
admeasuring 01 katha 05 lechas covered by Dag. No. 787.
e. The Title Suit No. 67/79 instituted by the plaintiff came to be
decreed in favour of the plaintiff vide judgement and order dated
29.06.1981. Aggrieved by the same, the defendants preferred an
appeal against the judgment. The appeal came to be allowed and the
matter was remanded back to the Trial Court for fresh consideration
in light of the non-joinder of necessary parties.
SLP(C) No. 19226/2022 Page 3 of 41
f. Upon fresh trial subsequent to the aforesaid judgment, Title Suit No.
67/79 instituted by the plaintiff came to be dismissed by the court of
Munsif vide judgement dated 17.09.1990 holding that although the
appellant had acquired right, title and interest over the suit property
yet no effective decree could be passed due to non-joinder of
necessary parties.
g. In view of the aforesaid, the plaintiff herein preferred Title Appeal
No. 59/1990 before the Assistant District Judge, Nagaon, Assam
seeking to challenge the judgment and order passed by the court of
Munsif referred to above.
h. The Appellate Court vide order dated 20.04.1993 passed in Title
Appeal No. 59/1990 held that the appellant herein was entitled to a
decree for declaration of right, title and interest and also joint
possession of suit land along with other co-pattadars. However, the
Appellate Court held that as the appellant could not be delivered
possession of the suit land, he would be at liberty to seek appropriate
remedy, seeking partition of the suit land.
i. The defendants herein preferred Second Appeal No. 77 of 1993
before the Gauhati High Court which came to be dismissed vide
judgment and order dated 22.10.1998. As a result, the decree passed
by the first appellate court attained finality.
SLP(C) No. 19226/2022 Page 4 of 41
j. As the plaintiff was granted only joint possession of the suit property
vide order dated 20.04.1993, he instituted the Partition Case No.
45/99-2000 before the Additional Deputy Commissioner, Nagaon,
seeking imperfect partition of the suit land under the Assam Land
and Revenue Regulation, 1886 for short, “the Regulation, 1886”.
k. The Additional Deputy Commissioner vide his order dated
12.07.2004 declined to partition the suit land on the ground that the
plaintiff was not in actual possession of the land and there was no
consent from the other co-sharer of the land.
l. The plaintiff, in such circumstances referred to above, instituted
Title Suit No. 83 of 2004 before the Civil Judge Nagaon, praying for
delivery of a Khas possession of land measuring 01 kathas 05 lechas
to the appellant herein after partition of the land and also prayed for
appointment of a commissioner for effecting the partition. The
reliefs prayed for in the suit are as under:
“It is, therefore, prayed that
(ka) order may be passed for delivery of khas of land
measuring 1 katha 5 lechas described in the schedule (ka) of
the plaint to the plaintiff after partition of the land;
(kha) A commissioner may be appointed at the time of
partition for effecting partition;
(ga) Issue precept to the revenue authorities for correcting
the records and issue of separate patta in favour of plaintiff;
(gha) full cost of the suit may be decreed in favour of the
plaintiff;
(unga) any other relief/reliefs which are entitled by the
plaintiff under law and equity.”SLP(C) No. 19226/2022 Page 5 of 41
m. The defendants filed their written statements inter alia taking thestance that the civil court had no jurisdiction, and it is only the
revenue authority which has the jurisdiction to partition the land.
n. The Trial Court having regard to the pleadings of the parties framed
the following issues for its consideration:
“1) Whether there is any cause of action for the suit?
2) Whether the suit is maintainable in its present form?
3) Whether the suit is bad for non-joinder of necessary
parties?
4) Whether the plaintiff is entitled for partition of suit land
as per provisions of ALRR 1886?
5) Whether the TS 67/79 was decreed in favour of the
plaintiff?
6) Whether the plaintiff is entitled to a decree as prayed for?
7) To what other relief/reliefs the parties are entitled?”
o. The Civil Judge (Jr. Div.) No. 1 Nagaon, Assam vide its judgment
and order dated 16.07.2011 dismissed the Title Suit No. 83/2004
instituted by the plaintiff on the ground that the plaintiff was not
entitled to seek imperfect partition in view of the bar encoded in
Section 154(1)(e) of the Regulation, 1886.
p. The Trial Court while answering the issues nos. 5,6 and 7
respectively observed as under:
“Issue No 5:
26.This issue was framed to decide whether TS 67/79 was
decreed in favour of the plaintiff. This is a matter of records
and there is nothing to prove or disprove this fact. The Ld.
Counsel of the parties have not made any submissions in this
regard. It appears from the record that initially TS 67/79 was
decreed in favour of the plaintiff. Then it went to the firstSLP(C) No. 19226/2022 Page 6 of 41
appellate court. The case was again remanded back by the
appellate court. In the subsequent occasion the suit was
dismissed on the ground that the suit is bad for non-joinder
of parties and that no proper identification of the land could
be established by the plaintiff and hence no effective decree
could be passed.
This issue is decided negatively.
Issue No 6 & 7:
27. This suit is basically for partition of the suit land and for
issuance of precept. From the discussions made in issue No 4
it transpires that the plaintiff has failed to prove his
entitlement for partition. As such these two issues are decided
against the plaintiff.”q. In such circumstances referred to above, the plaintiff preferred Title
Appeal No. 30 of 2011 before the Civil Judge, Nagaon which came
to be allowed vide judgment and order dated 16.05.2014, holding
that as in the first round of litigation declaration of joint possession
had already been issued (vide order dated 20.04.1993 referred to
above), plaintiff was entitled to recovery of exclusive Khas
possession of his share of 01 kathas and 05 lechas by partition
thereof. Furthermore, a direction was issued to the Trial Court to
issue precept to the revenue authority to effect the partition. The
operative part of the order passed by the First Appellate Court reads
thus:-
“Appeal is allowed on contest. No cost. Judgment and
decree passed by the learned Munsif No.2, Nagaon in TS
83/04 dated 16-07-2011 is set aside. Suit of the plaintiff is
decreed. Plaintiff is entitled for partition of his share of 1
Katha 5 lechas of land in suit patta and recovery ofSLP(C) No. 19226/2022 Page 7 of 41
possession of his share of purchased 1 katha 5 lechas of land
and precept is to be issued to the revenue authority (collector)
to cause the partition. Trial Court shall issue precept.
Prepare decree accordingly.”r. The defendants being dissatisfied with the above filed Regular
Second Appeal No. 243 of 2014 before the High Court seeking to
challenge the judgment and order dated 16.05.2014 passed in TA
No.30 of 2011 referred to above.
s. The High Court formulated two substantial questions of law for its
consideration:
“A. Whether the plaintiff/respondent is entitled to get
partition of the land being under Section 97 of Assam Land
Revenue Regulation?
B. Whether the suit is barred under Section 154 of the Assam
Land Revenue Regulation?”t. The High Court allowed the Second Appeal filed by the defendants
and thereby quashed and set aside the Judgment and Decree passed
by the First Appellate Court. The High Court held that the Section
154(1)(e) of the Regulation, 1886 bars the civil court from
exercising its jurisdiction and further that the revenue court had
rightly rejected the prayer of partition under Section 97 as whoever
seeks partition of the land must be in possession of the land. The
High Court while allowing the Second Appeal observed in Paras 12,
13, 14, 15 and 16 respectively as under:-
SLP(C) No. 19226/2022 Page 8 of 41
“12. There is no doubt that a civil court is empowered to
decide the right of a person in respect of a property but
section 154(1)(e) of the Regulation of 1886 states that no civil
court shall exercise jurisdiction in case of claims of persons
to imperfect partition, except in cases in which a perfect
partition could not be claimed from, and being refused by the
revenue authorities on the ground that the result of such
partition would be to form a separate estate liable for an
annual amount of revenue less than 5 rupees.
13. It is an admitted fact that the revenue authorities refused
the prayer of partition made by Abdul Rejak Laskar. It was
rejected on the ground that he did not have possession over
the said 1.5 kathas of land. Under Section 97 of Regulation of
1886, whoever seeks partition of a land, he must be in
possession of that land. It is also an admitted fact that Abdul
Rejak Laskar is not in possession of that land and, therefore,
the revenue authorities rightly rejected his prayer for
partition.
14. Under the aforesaid premised reasons, the substantial
questions of law are answered accordingly.
15. Now, this court is of the opinion that the learned civil
judge erroneously reversed the judgment of the Civil Judge
(Jr. Division No. 1), Nagaon. Therefore, judgment and decree
dated 16.05.2014 passed by the Civil Judge, Nagaon, in Title
Appeal No.30/2011 arising out of the judgment and decree
dated 16.07.2011 passed by the Munsif No. 2, Nagaon in Title
Suit No. 83/2004 is set aside and quashed.
16. Further, the judgment and decree dated 16.07.2011
passed by the Munsif No.2, Nagaon in Title Suit No.83/2004
is affirmed.”
5. Being dissatisfied with the Judgment and order passed by the High Court,
referred to above, the plaintiff is here before this Court with the present
appeal.
SLP(C) No. 19226/2022 Page 9 of 41
B. SUBMISSIONS ON BEHALF OF THE APPELLANT /
PLAINTIFF
6. The learned counsel appearing for the appellant would submit that Section
97 of the Regulation, 1886 provides that a suit for imperfect partition would
be maintainable, inter alia, on two conditions stipulated therein being
satisfied:
a. The person seeking partition is in actual possession of the property
in respect of which he seeks partition, and;
b. Consent of the recorded co-sharers of land, holding in aggregate
more than one-half of the estate.
7. He submitted that since both these conditions were absent in the case of
the appellant herein, the Additional Deputy Commissioner, Nagaon held
that the imperfect partition suit was not maintainable before the Revenue
Authority. That being the position, the civil court would have jurisdiction
to entertain the appellant’s partition suit. He submitted that the jurisdiction
of the civil court under Section 154(1)(e) will be barred only if an imperfect
partition suit is otherwise maintainable under Section 97. In the facts of the
present case, where the ingredients for invoking the remedy of imperfect
partition under Section 97 are admittedly absent, the bar contained in
Section 154(1)(e) would not apply. He submitted that any other
SLP(C) No. 19226/2022 Page 10 of 41
interpretation of the said Regulation would render the appellant remedilessin seeking partition, even after having a decree of right, title and possession
in his favour.
8. The learned counsel further submitted that the Revenue Authorities are
competent to carry out perfect/imperfect partition of an estate only if all
the co-sharers give their consent for such amicable partition. However, if
there is any dispute with regard to the title or possession raised by any of
the co-sharers, the matter will be decided by the competent civil court
having jurisdiction over the matter.
C. SUBMISSIONS ON BEHALF OF THE RESPONDENTS /
DEFENDANTS
9. On the other hand, learned counsel appearing for the respondents submitted
that no error not to speak of any error of law could be said to have been
committed by the High Court in passing the impugned judgment and order.
He submitted that the claim of the appellant herein for imperfect partition
is barred under Section 154(1)(e) of the Regulation, 1886 which
categorically prohibits the civil courts from entertaining the claims for
imperfect partition of revenue paying estates except in those cases where a
perfect partition is refused by the revenue authorities under specific
conditions.
SLP(C) No. 19226/2022 Page 11 of 41
10.He further submitted that the civil court have been conferred jurisdiction
only on the fulfilment of the following conditions, namely:
a. Where a perfect partition could not be claimed from the revenue
authorities;
b. The claim for perfect partition has been refused by the revenue
authorities;
c. The bar to the claim or the refusal of the revenue authorities is
on the ground that the result of the partition would be to form a
separate estate liable for an annual amount of revenue less than
five rupees.
11.In the instant case, the claim for imperfect partition by the plaintiff was
refused by the revenue authorities on 12.07.2004 on the ground of non-
possession. Neither the claim was for perfect partition, nor the grounds for
refusal were as mentioned in Sections 154(1) and 154(2) respectively of
the Regulation, 1886.
12.In support of his aforesaid submissions, he relied on the judgment rendered
by the Single Judge of the High Court in Moimunnessa v. Faizur Rahman
& Ors. reported in (1987) 2 GLR 28 paras 4, 5 and 6 which unequivocally
held that the partition of revenue-paying estates must be conducted by the
Revenue Authorities under Section 54 of the Code of Civil Procedure, 1908
(hereinafter referred to as “CPC”).
SLP(C) No. 19226/2022 Page 12 of 41
13.The learned counsel also placed reliance on Section 4 of the CPC which
provides that in the absence of any specific provision to the contrary,
nothing in this Code shall be deemed to limit or otherwise affect any special
or local law now in force or any special jurisdiction or power conferred, or
any special form of procedure prescribed, by or under any law for the time
being in force.
14.He submitted that Section 54 of the CPC mandates that the partition of an
undivided estate assessed to revenue shall be conducted by the Collector
or a designated revenue officer. The appellant in the present case had
bypassed the established procedures by directly approaching the civil court
instead of appealing the Additional District Commissioner’s Order before
the proper forum, i.e., the Assam Board of Revenue. This procedural
violation is in direct conflict with the law already established in
Moimunnessa (supra).
15.He submitted that instead of appealing to the Assam Board of Revenue or
the Revenue Tribunal, the appellant filed yet another title suit knowing
fully well that no effective decree of partition could have been passed
because no proper identification of the land could be established by the
appellant.
SLP(C) No. 19226/2022 Page 13 of 41
16.He submitted that the proper authority which can demarcate any land is the
Revenue Authorities and not the civil court.
17.According to the learned counsel the judgment and decree dated
16.07.2011 passed by the Munsif No.2, Nagaon in Title Suit No. 83/2004
had rightly returned a finding upon examination of evidence that actual
possession is a precondition to succeed in a claim for a partition and that
the refusal by the revenue authority was for imperfect partition on the
ground of non-possession and not for a claim of perfect partition or for the
grounds mentioned in Section 154(1)(e) of the Regulation, 1886. Hence,
there was no question of lifting the bar on the jurisdiction of civil courts.
18.He also submitted that the suit land is an estate within the meaning of
Section 54 of CPC and the procedure prescribed therein is applicable in the
present case.
19.As per Section 97 of the Regulation, 1886, certain pre-conditions are
required to be fulfilled for a person claiming partition. From the lower
Court records as recorded in the order dated 16.07.2011 in TS 83/2004 as
well as the Final Judgment and Order dated 22.08.2022 in RSA No. 243 of
2014, it is evident the appellant did not meet these requirements, thereby
rendering the claim for partition untenable.
SLP(C) No. 19226/2022 Page 14 of 41
D. ANALYSIS
20.The short point that falls for our consideration is whether the High Court
committed any error in taking view that the suit filed by the appellant
herein was barred under Section 154(1)(e) of the Regulation, 1886 referred
to above.
21.Section 97 of the Regulation, 1886 reads thus:
“97. Persons entitled to partition.-(1) Every recorded of a
permanently settled estate and every recorded landholder of a
temporarily-settled estate may, if he is in actual possession of the
interest, in respect of which he desires partition, claim perfect or
imperfect partition of the estate :
Provided that-
(a) no person shall be entitled to apply for perfect partition if the
result of such partition would be to form a separate estate, liable
for an annual amount of revenue less than five rupees;
(b) no person shall be entitled to apply for imperfect partition of
an estate unless with the consent of recorded co-sharers holding
in the aggregate more than one half of the estate;
(c) a person may claim partition only in so far as the partition
can be effected in accordance with the provisions of this chapter.
(2) When two or more proprietors land-holders would be entitled
under sub-Section (1) to partition in respect of their respective
interests in the estate, they may jointly claim partition in respect
of the aggregate of their interests.”
22.Section 154(1)(e) of the Regulation, 1886 reads thus:
SLP(C) No. 19226/2022 Page 15 of 41
“154. Matters exempted from cognizance of Civil Court.-(1)
Except when otherwise expressly provided in this Regulation, or
in rules issued under this Regulation, no Civil Court shall
exercise jurisdiction in any of the following-
xxx xxx xxx
(e) claims of persons to imperfect partition, except in cases in
which a perfect partition could not be claimed from, and been
refused by, the revenue authorities on the ground that the result
of such partition would be to form a separate estate liable for an
annual amount of revenue less than five rupees.”i. What is Partition?
23.Partition is either perfect or imperfect. Perfect partition means division of
a revenue paying estate into two or more such estates each separately liable
for revenue assessed thereon. Imperfect partition means the division of a
revenue paying estate into two or more portions jointly liable for the
revenue assessed thereon entire estate.
24.Chapter VI of the Regulation, 1886 deals with the procedure for carrying
out “perfect partition” and “imperfect partition” of a revenue paying estate
on the basis of an application made before the Deputy Commissioner.
Section 100 of the Regulation, 1886, however, provides that when there is
objection as regards the question of title, the Deputy Commissioner will
stay his hand in the matter and such objection would be determined by a
civil court of competent jurisdiction.
SLP(C) No. 19226/2022 Page 16 of 41
25.Section 100 of the Regulation, 1886 is quoted hereinbelow:
“100. Objection on question of title.— (1) If an objection,
preferred as required under section 99 raises any question of
title which has not been already determined by a Court of
competent jurisdiction, the Deputy Commissioner shall stay his
proceedings for such time as, in his opinion, is sufficient to admit
of a suit being instituted in the civil court to try the objection.
(2) A Deputy Commissioner staying his proceedings under this
section shall make on order requiring the objector, or, if for any
reasons he deems it more equitable, the applicant, to institute
such a suit within the time fixed, and, in the event of such a suit
not being instituted within that time, may in his discretion,
disallow the objection, or dismiss the application, as the case
maybe.
(3) On a suit being instituted to try any objection under this
section, the Deputy Commissioner shall with reference to the
objection, be guided by the orders passed by the Civil Court in
the suit.”
26.Further, instruction No. 29 of the Part-III of the Executive Instructions
framed under the provisions of Assam Land Revenue Reassessment Act,
1936 clearly indicates that the partition of ejmali patta can be carried out
by the revenue authorities provided all the shareholders agree and give their
consent in writing by putting their signatures in the chitha or otherwise.
The said provision is quoted hereinbelow:
“29. If the shareholders of an ejmali patta wish to partition
amicably their land according to possession and point out the
new boundaries, the recorder will survey the boundaries as
pointed out, provided all of them agree and give their consent in
writing by putting their signatures in the chitha or otherwise. If
any co-sharer objects, or if there be dispute about possession,
the recorder will not effect the partition.”SLP(C) No. 19226/2022 Page 17 of 41
27.A bare reading of the provisions contained in Chapter VI of the Regulation,
1886 read with the Rules framed and the Executive Instructions issued
under the Assam Land Revenue Re-assessment Act, 1936, leaves no
manner of doubt that the Revenue authorities would be competent to carry
out perfect/imperfect partition of a revenue paying estate if and only if all
the co-sharers give their consent for such amicable partition, i.e., when the
application for such partition is made on mutual consent of the parties.
However, if there is any dispute as regards the title or possession raised by
any of the co-sharers, the Deputy Commissioner has to stay his hands on
such process of partition and leave the matter to be decided by a competent
civil court having jurisdiction over the matter. The said position also
becomes amply evident from the language employed in Order XX Rule 18
read with Section 54 of the CPC.
28.When a suit for partition is instituted seeking declaration of share and
separate possession by a co-sharer based on contesting claim of title, the
Revenue authorities cannot proceed to decide such a question as per the
scheme of the Regulation, 1886. However, the High Court under a serious
misconception of law appears to have taken a contrary view in the matter
by holding that it is the civil court which would have no jurisdiction to try
the suit once an application for partition is entertained by the revenue
authorities concerning the subject-matter of the suit.
SLP(C) No. 19226/2022 Page 18 of 41
29.Section 9 of the Civil Procedure Code, 1908 provides that whenever a
question arises before the civil court whether its jurisdiction is excluded
expressly or by necessary implication, the Court naturally feels inclined to
consider whether the remedy afforded by an alternative provision
prescribed by any special statute is sufficient or adequate. In cases where
exclusion of the civil court’s jurisdiction is expressly provided for, the
consideration as to the scheme of the statute in question and the adequacy
or sufficiency of the remedy provided for by it may be relevant but cannot
be decisive. Where exclusion is pleaded as a matter of necessary
implication such consideration would be very important and in conceivable
circumstances might become even decisive.
30.In Dhulabhai & Ors. v. State of M.P. & Anr. reported in (1968) 3 SCR
662, a Constitution Bench reviewed the entire case law on the question of
maintainability of civil suit and laid down seven propositions. Propositions
1 and 2 are relevant, which read thus:
“(1) Where the statute gives a finality to the orders of the special
tribunals the Civil Court’s jurisdiction must be held to be
excluded if there is adequate remedy to do what the Civil Courts
normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not
been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial
procedure.
(2) Where there is an express bar of the jurisdiction of the Court,
an examination of the scheme of the particular Act to find theSLP(C) No. 19226/2022 Page 19 of 41
adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil
court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular act to find out the
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that
all questions about the said right and liability shall be
determined by the tribunals so constituted, and whether remedies
normally associated with actions in Civil Courts are prescribed
by the said statute or not.”
31.In Secretary of State, Represented by the Collector of South Arcot v.
Mask & Company, reported in AIR 1940 Privy Council 105, their
Lordships of the Privy Council with regard to the jurisdiction of the civil
courts to entertain a suit observed as under:
“It is settled law that the exclusion of the jurisdiction of the Civil
Courts is not to be readily inferred, but that such exclusion must
either be explicitly expressed or clearly implied. It is also well
settled that even if jurisdiction is so excluded, the Civil Courts
have jurisdiction to examine into cases where the provisions of
the Act have not been complied with, or the statutory tribunal has
not acted in conformity with the fundamental principles of
judicial proceeding.”
32.The learned counsel appearing for the respondents invited our attention to
three provisions of the CPC. First, Section 4, secondly, Section 54 and
thirdly, Order XX Rule 18 of the CPC.
33.Section 4 of the CPC reads thus:
SLP(C) No. 19226/2022 Page 20 of 41
“Section 4. Savings.-
(1) In the absence of any specific provision to the Contrary,
nothing in this Code shall be deemed to limit or otherwise affect
any special or local law now in force or any special jurisdiction
or power conferred, or any special form of procedure prescribed,
by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the
proposition contained in sub-section (1), nothing in this Code
shall be deemed to limit or otherwise affect any remedy which a
landholder or landlord may have under any law for the time
being in force for the recovery of rent of agricultural land from
the produce of such land.”
34.The plain reading of the provision referred to above would indicate that
when anything in the CPC is in conflict with anything in the special or local
law or with any special jurisdiction or power conferred or in the special
form of procedure prescribed by or under any other law, the Code will not
(in the absence of any specific provision to the contrary) prevail so as to
override such inconsistent provisions. When there is no conflict between
the special or local law and the Code, the Code will apply.
35.Section 54 of the CPC reads thus:
“Section 54. Partition of estate or separation of share.-
Where the decree is for the partition of an undivided estate
assessed to the payment of revenue to the Government, 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 theSLP(C) No. 19226/2022 Page 21 of 41
time being in force relating to the partition, or the separate
possession of shares, of such estates.”
36.The plain reading of the above referred provision would indicate that the
same deals with a case in which a civil court can pass a decree but cannot
itself execute it. The execution has to be effected by the Collector. Civil
courts have under this Section, jurisdiction to try and decide suits for
partition or separate possession of share of estates assessed to payment of
revenue to Government but have no power to execute decree passed in such
suits. The decree that may be passed by the civil court would declare the
rights of the several parties interested in the property, but the decree should
direct the actual partition to be made by the Collector or any officer
subordinate to him authorized on that behalf.
ii. Order XX Rule 18 of the CPC
37.Order XX Rule 18 of the CPC reads thus:
“18. Decree in suit for partition of property or separate
possession of a share therein.- Where the Court passes a decree
for the partition of property or for the separate 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 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;
SLP(C) No. 19226/2022 Page 22 of 41
(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 right of the
several parties interested in the property and giving such further
directions as may be required.”
38.The aforesaid rule allows the court to determine the rights of parties with
respect to land in the civil court and to pass a preliminary decree, decree in
the rights of several parties interested in the property. When actual partition
is to be effected, in pursuance of the declaration of the rights of the parties
in land, the civil court has to refer the matter to the Collector or any officer
subordinate to him authorized to act on behalf of the Collector.
39.Sub-rule (1) refers to partition decrees relating to a “estate assessed to
Government revenue” referred to in Section 54 of the Code, while sub-rule
(2) deals with partition decrees relating to any other immovable property
or movable property.
40.In a suit for partition, the court may issue three types of decrees to put the
issue to rest: preliminary decree, composite decree (partly preliminary &
partly final), and final decree. The purpose of a suit for partition or
separation of a share is twofold:
SLP(C) No. 19226/2022 Page 23 of 41
a. First, declaration of plaintiff’s share in the suit properties under the
preliminary decree, and;
b. Secondly, division of his share by metes and bounds which would
take place under the final decree.
41.In a given case, the property may be put to sale and the proceeds would be
shared among the shareholders which can be termed a final decree. In a
partition suit, if the court is unable to make a division of property by metes
and bounds forthright without further inquiry, the court will initially pass
a preliminary decree. A preliminary decree for partition identifies the
properties to be subjected to partition, defines and declares the
shares/rights of the parties. The prayer relating to actual division by metes
and bounds and allotment is left for being completed under the final decree
proceedings.
42.In regard to immovable properties (other than agricultural lands paying
land revenue) – such as buildings, plots etc. or movable properties – where
the court can conveniently and without further enquiry make the division
without the assistance of any Commissioner, or where parties agree upon
the manner of division, the court will pass a composite decree comprising
the preliminary decree declaring the rights of several parties and also a final
decree dividing the suit properties by metes and bounds, in one judgment.
SLP(C) No. 19226/2022 Page 24 of 41
The composite decree is partly preliminary and partly final. The decree
declares the proportion of shares and divides the property, thereby settling
the partition to rest in one go.
43.Order XX Rule 18 CPC deals with decree in a suit for partition of property
or separate possession of a share therein. There are two decrees in a suit
for partition; a preliminary decree and a final decree. A preliminary decree
determines and declares the rights of parties and shares of all eligible
claimants, final decree carries out and effects partition by metes and
bounds of the property on the basis of preliminary decree. If an estate is
assessed to payment of revenue to the Government, Collector or his
nominee will effect partition. In other cases, however, Commissioner will
effect such partition.
44.This Court in Shankar Balwant Lokhande (Dead) by LRs. v.
Chandrakant Shankar Lokhande & Anr. reported in AIR 1995 SC 1211,
held that where a decree relates to any immovable property and the
partition or separation cannot conveniently be effected without further
inquiry, then the court should pass a preliminary decree declaring the rights
of parties having interest in the property. The court is also empowered to
give such directions as may be required. A preliminary decree in a partition
suit is a step in the suit which continues until the final decree is passed.
SLP(C) No. 19226/2022 Page 25 of 41
45.This Court in Venkata Reddy & Ors. v. Pethi Reddy reported in AIR 1963
SC 992 held thus:
“… A preliminary decree passed, whether it is in a mortgage suit
or a partition suit, is not a tentative decree but must, in so far as
the matters dealt with by it are concerned, be regarded as
conclusive. No doubt, in suits which contemplate the making of
two decrees, a preliminary decree and a final decree, the decree
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. The legislature in its wisdom has
thought that suits of certain types should be decided 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. …”
46.The character of decree passed under sub rules (1) and (2) of Order XX
Rule 18 of the CPC is the same. It is true that the decree passed under sub
rule (1) of Rule 18 is not described as preliminary and the decree under
sub-rule (2) is declared as preliminary, there is no real difference between
the two inasmuch as under both the provisions, the court determines and
declares the rights of parties and under both the sub rules, partition,
separation or division by metes and bounds has to be effected thereafter.
Whereas, under sub rule (1), Collector effects partition, under sub rule (2),
it is Commissioner appointed by the court who undertakes the said
exercise.
SLP(C) No. 19226/2022 Page 26 of 41
47.In regard to estates assessed to payment of revenue to the government
(agricultural land), the court is required to pass only one decree declaring
the rights of several parties interested in the suit property with a direction
to the Collector (or his subordinate) to effect actual partition or separation
in accordance with the declaration made by the court in regard to the shares
of various parties and deliver the respective portions to them, in accordance
with Section 54 of CPC. If the Collector takes action in the decree
appropriately, the matter will not come back to the court and the court will
not have to interfere in the partition, except attending any complaint of an
affected third party. While making the partition the Collector is bound by
declaration of the rights of the parties in the preliminary decree. But the
Court has no power to fetter the discretion of the Collector conferred under
the law. However, in regard to any issue on which the Collector is not
competent to decide, the civil court will have the power to dispose of. If
the Collector disregards the terms of the decree, the Court is entitled to
refer the case back to the Collector to re-partition the property. The
Collector must actually divide the estate in the manner he thinks best
keeping in mind the nature of the land as revenue paying entity and the
stipulations of the decree. The object of this provision is two-fold:
a. First, the revenue authorities are more conversant and better
equipped to deal with such matters than a civil court, and;
SLP(C) No. 19226/2022 Page 27 of 41
b. Secondly, the interest of the government in regard to the revenue
paying estate would be better safeguarded by the Collector than by
the civil court.
48.A preliminary decree is a stage where the rights of the parties are worked
out which are then to be finally adjudicated by passing of a final decree.
This Court in Venkata Reddy (supra) explained the concept of
“preliminary decree” and “final decree” in detail and observed thus:
“… A decision is said to be final when so far as the court
rendering it is concerned, it is unalterable except by resort to
such provisions of the code of Civil Procedure as permit its
reversal, modification or amendment. Similarly, a final decision
would mean a decision which would operate as res judicata
between the parties if it is not sought to be modified or reversed
by preferring an appeal or a revision or a review application as
is permitted by the Code. A preliminary decree passed, whether
it is in a mortgage suit or a partition suit, is not a tentative decree
but must, in so far as the matters dealt with by it are concerned,
be regarded as conclusive. No doubt, in suits which contemplate
the making of two decrees, a preliminary decree and a final
decree, the decree 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. The legislature in
its wisdom has thought that suits of certain types should be
decided 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 relevant to refer to
Section 97 of the Code of Civil Procedure which provides that
where a party aggrieved by a preliminary decree does not appeal
from it, he is precluded from disputing its correctness in any
appeal which may be preferred from the final decree. This
provision thus clearly indicates that as to the matters covered bySLP(C) No. 19226/2022 Page 28 of 41
it, a preliminary decree is regarded as embodying the final
decision of the court passing that decree.”
(Emphasis supplied)
49.A final decree is one which completely disposes of the suit and finally
settles all the questions in controversy between the parties and nothing
further remains to be decided thereafter. A preliminary decree in a partition
suit merely determines and declares the rights of the parties in the
properties and the extent to which they are entitled. It is the final decree
which ultimately divides the properties by metes and bounds and awards
separate possession of the properties to the claimants. The function of the
final decree is to restate and apply what the preliminary decree has ordered.
A final decree is thus based upon and controlled by preliminary decree. It
is settled legal position that final decree proceedings are in continuation of
preliminary decree proceedings and there is no executable decree unless
the final decree is passed. The final decree does not originate itself, but
flows from preliminary decree already passed in a suit determining and
declaring the rights and interests of the parties in the suit. The final decree
is not a decree in execution of preliminary decree but decree in a suit. It is
the final decree which is to be enforced.
50.The Privy Council in Guran Ditta L. v. T.R. Ditta reported in AIR 1935
PC 12 observed that a final decree neither relates to any substantive rights
SLP(C) No. 19226/2022 Page 29 of 41
of the parties nor decides or declares title to the property or shares of the
parties to the partition suit and till the final decree is passed, there is no
executable decree as envisaged by Order XX Rule 18 of CPC. This Court
in Muthangi Ayyana v. Muthangi Jaggarao & Ors. reported in (1977) 1
SCC 241 held that a final decree cannot go behind, amend or alter the
preliminary decree.
51.In the aforesaid context, we looked into one very lucid decision of the High
Court of Karnataka in the case of Ramagouda Rudregouda Patil v.
Lagmavva reported in 1984 SCC Online Kar 192 explaining the true
purport and scope of Section 54 of the CPC read with Order XX Rule 18
of the CPC. We may quote the relevant observations:
“7. It is now a well settled principle of law that in the case of the
execution of the decrees pertaining to partition and separate
possession of agricultural lands assessed to Revenue, the Civil
Court only declares the shares of the parties and the authority
concerned has to effect partition or division by metes and
bounds, as envisaged by Section 54 of C.P.C. Collector is the
authority concerned to effect partition. Once the papers were
sent to the collector, the Civil Court has no control over the
proceedings taken by the Collector. The Civil Court cannot direct
the Collector to effect partition in a particular manner after the
papers were sent to him. Therefore, Section 54 C.P.C. makes it
absolutely clear that the execution is not at all contemplated in
the case of decrees for partition and division of agricultural
lands. What the Civil Court has to do is to transmit the papers to
the Collector for actual partition and possession. Therefore, all
Execution Petitions are to be filed in the Civil Courts requesting
the Court to transmit the papers to the Collector for partition and
possession of agricultural lands. They are not, in any sense of the
term, execution petitions. They are only in the form of a request
to the Court to do its duty as enjoined on it by Section 54 C.P.C.
SLP(C) No. 19226/2022 Page 30 of 41
Therefore, the lower Appellate Court rightly held that the
execution petitions filed in such cases are only requests or
reminders to the Court to send the papers to the Collector to
effect the partition.
xxx xxx xxx
10. Under Section 54 and Order 20 Rule 18 C.P.C. the only duty
of the Collector, now called as the Deputy Commissioner, is to
effect partition or division by metes and bounds in accordance
with law if any for the time being in force, relating to partition or
separate possession of shares of such estate. The word ‘partition’
used in Section 54 or Order 20 Rule 18, in my opinion, means
that the partition is not confined to mere division of the lands
concerned into the requisite parts, but also includes the delivery
of shares to the respective allottees. To elaborate further, the
word ‘partition’ means actual division or partition by metes and
bounds and handing over possession of the shares to the parties.
11. As an instance of law relating to partition one will have to
refer to the provisions of the Prevention of Fragmentation and
Consolidation of Holdings Act and the Land Revenue Act and the
Rules. If the Collector thinks that actual division by metes and
bounds is not possible on account of the provisions of the
Prevention of Fragmentation and Consolidation of Holdings Act,
he will have to follow the procedure laid down by the Act in such
cases. In fact the Prevention of Fragmentation and
Consolidation of Holdings Act, lays down procedure in such
cases. Therefore, this is the law within the meaning of Section 54
C.P.C. relating to partition or separate possession of shares. The
law relating to partition in Section 54 or Order 20 Rule 18 C.P.C.
does not refer to the nature of the property to be divided.
Therefore, Section 54 C.P.C., in my opinion, does not enable the
Deputy Commissioner, to decide the question as to whether the
agricultural land in question is impartible or partible. That is the
duty of the Civil Court and not of the Deputy Commissioner.
12. This Court, in the decision in Ramachandra Srinivasa
Kulkarni v. Ramakrishna Krishna Kulkarni [1967 (1) Mys. L.J.
97.] has clearly stated:
“But the order made by the Collector in the case before us
concerned itself with an objection to the partition which wasSLP(C) No. 19226/2022 Page 31 of 41
directed by the Civil Court. That objection has been raised
before the Executing Court and had been over-ruled. An
appeal from that order had also been dismissed. All that the
Collector had, therefore, to do was to proceed to make a
partition and, it was entirely beyond his competence when
making a partition under Section 57 of the Code of Civil
Procedure, to listen to an objection which had been repelled
by the Civil Court which had the competence to adjudicate
upon it.”Hence, it is clear that it is not within the jurisdiction of the
Deputy Commissioner to consider the question as to whether the
lands are partible or impartible. That is the sole and exclusive
jurisdiction of the Civil Courts. The nature of the property viz.
whether it is partible or impartible, is not covered by the phrase
‘the law for the time being in force, relating to partition’ as
occurring in Section 54 C.P.C. Therefore, the order passed by
the Collector in the previous execution that the lands being
sanadi lands could not be partitioned, is also without
jurisdiction. It is a nullity in the eye of law. There is no necessity
to go in revision or appeal against such an order. That is also the
view taken by this Court in Ramachandra’s case [1967 (1) Mys.
L.J. 97.]. Therefore, the argument of Learned Counsel Sri
Ujjannavar that the order of the Collector in the previous
execution having not been challenged, barred the present
execution petition, cannot be accepted at all.
xxx xxx xxx
15. Sri Ujjannavar then urged that a decree passed in a partition
suit was not a preliminary decree and it amounts to saying that
the decree has become final. It is no doubt true that it has been
held by this Court in the decision in Ganapatrao Raojirao
Desai v. Balvant Krishnaji Desai [1965 (2) Mys. L.J. 768.] that:
“A decree passed under R. 18(1) of Or. XX directing partition
by the Collector cannot be said to be a preliminary decree.
So far as the Civil Courts are concerned it is final for all
purposes, though the partition of the property may remain to
be effected by the Collector. Sub-rule (1) of Rule 18 does not
contemplate any application to be filed by the parties for
sending the papers to the Collector.”SLP(C) No. 19226/2022 Page 32 of 41
The purport of the said expression used by this Court is that
though it cannot be said to be a preliminary decree, it became
final for all purposes so far as the Civil Courts are concerned.
Once a decree declaring the shares of the parties is passed by the
Civil Court, it has nothing more to do. It means that the case has
come to an end in the Civil Court and it does not amount a final
decree. Therefore, it cannot be considered to be a final decree as
understood in the Civil Procedure Code Therefore, the argument
of Learned Counsel Sri Ujjannavar that in the case of a final
decree the limitation would begin to run, holds no substance and
it is rejected.”
(Emphasis supplied)iii. When does Section 154(1)(e) bar the jurisdiction of civil
courts?
52.The learned counsel appearing for the appellant is right in his submission
that the jurisdiction of the civil court under Section 154(1)(e) would be
barred only if an imperfect partition suit is otherwise maintainable under
Section 97. He is right in his submission that to maintain a suit for
imperfect partition under Section 97, the appellant has to fulfill two
conditions stipulated therein.
a. First, the person seeking partition should be in actual possession of
the property in respect of which he seeks partition, and;
b. Secondly, the co-sharers may not be ready and willing to give their
consent and if the person seeking partition is not in actual possession
then no other remedy is available to him except to go before the civil
court and seek partition on the basis of his own title as a co-owner.
SLP(C) No. 19226/2022 Page 33 of 41
53.A reference in this connection may be made to a decision of the Calcutta
High Court in Musstt. Rukeya Banu & Ors. v. Musstt. Nazira Banu &
Ors. reported in AIR 1928 Cal 130, where it was pointed out that a
partition, whether perfect or imperfect, of revenue-paying properties must
be made by the Revenue authorities. This follows from a conjoint reading
of Sections 96 and 154(1)(e) of the Regulation, 1886 respectively.
However, the jurisdiction of the civil court to determine the right of the
parties to the property in dispute as well as shares to which they are entitled
has not been taken away by the Regulation in question, and it is for the
civil court to decide whether the property is or is not liable to partition. The
same view applies to other clauses of Section 154. The parties to a suit are
entitled to obtain a declaration from the civil court that they have got the
right to obtain from the revenue authorities a separation and allotment of
their shares in the estate according to their proportionate rights. It is the
civil court which will decide whether the plaintiff is entitled to seek
partition and to what extent. If it is found by the court that revenue paying
properties have to be partitioned among the parties, the court may declare
the share of each of the parties and leave them to go to the revenue
authorities for making the necessary performance. The relevant
observations from the said decision are reproduced hereinbelow:
“Lastly, the question of jurisdiction under the Assam Land
Revenue Regulation may be dealt with. It is quite true that underSLP(C) No. 19226/2022 Page 34 of 41
sec. 154(1)(e) read with sec. 96 of the Act, partition, whether
perfect or imperfect, of revenue-paying properties must be made
by the revenue authorities. But the jurisdiction of the Civil Court
to determine the rights of the parties to the property in dispute
as well as the shares to which they are entitled have not been
taken away by the regulation in question and the Civil Court
must also decide whether the property is liable to partition or
not; as in this case, whether there is a valid wakf which prevents
the parties from seeking a partition of the property. The Plaintiff
as well as the appealing Defendants are entitled to obtain a
declaration from the Civil Court that they have got the right to
obtain from the revenue authorities a separation and allotment
of their shares in the estate according to their proportionate
rights. It is further pointed out by the Appellants that all the
properties in suit are not revenue-paying properties. These must
be partitioned by the Civil Court. It is also alleged that the
parties are in possession of separate parcels of lands being only
shares in certain revenue-paying estates. These do not fall within
the provisions of the Assam Regulation. The moveable properties
should also be partitioned and the Court should also give an
opportunity to the Plaintiff for finding out whether there are any
other properties which are capable of being partitioned. The
actual partition of revenue-paying estates must necessarily be
made according to the provisions of the Assam Land Revenue
Regulation.”(Emphasis supplied)
54.The position of law on the issue has been explained by the High Court of
Gauhati itself in the case of Thanda Bala Choudhury and Anr. v.
Birendra Kumar Choudhury reported in 2002 SCC OnLine Gau 26
wherein the issue was regarding the jurisdiction of civil courts for
declaration of right, title and interest over the suit property when the case
SLP(C) No. 19226/2022 Page 35 of 41
for perfect partition had already been disposed of by the Deputy
Commissioner. The Court therein while elaborating on of the Regulation,
1886, held the following:
a. First, in cases where the distribution of land has been decided by
way of partition, civil courts have the jurisdiction to adjudicate upon
the title to the land. This is in consonance with various rulings that
conclude that Section 154 cannot deprive a man of his title to the
land. The Court held that mere partition of property in dispute by the
Revenue authorities does not confer any title on them and it is open
to civil courts to determine the right of the parties to the property.
b. Secondly, civil courts cannot exercise jurisdiction over matters of
perfect partition; only revenue courts are vested with the power to
decide on the same. The legal position pursuant to Section 154 as
well as Section 62 is that no bar exists over civil courts to declare
the rights over a suit property. Additionally, Section 62 specifically
vests a right upon parties to approach civil courts for declaration of
right, title and interest over the suit property. The relevant
paragraphs from the said decision are reproduced hereinbelow:
“7. A catena of judicial decisions has been referred by Mr.
Katakey to drive home his submission. In Dandiram Nath
and v. Mihiram Nath Chamua decided on 13.11.1953
reported in 1 Unreported cases (Assam) 255 this Court
speaking through Justice Sarjoo Prasad, C.J,SLP(C) No. 19226/2022 Page 36 of 41
categorically ruled that Section 154 cannot deprive a man
of his title to the land. The mere fact that the lands have
been distributed or revenue allotted will not confer any
title on them and it would be always to the Civil Court to
adjudicate upon the question of title irrespective of the
provisions of Section 154. Dealing with a case where the
Plaintiffs instituted suit for declaration of title and
confirmation of possession or in the alternative recovery
of possession, the Court in paragraph-3 of the said ruling
observed as follows:-
“3. On behalf of the appellants, however, it has been
argued that Section 154(1)(f) of the Assam Land and
Revenue Regulation is a bar to the institution of the
suit. Section 154 says that except where otherwise
expressly provided in this Regulation or in Rules
framed thereunder, no Civil Court shall exercise
jurisdiction in any of the matters enumerated in the
various clauses of the section, one of them being
Clause (f) which relates to the distribution of land
or the allotment of the revenue on partition. The
distribution of land or the allotment of the revenue
may very well stand, but I do not see how Section
154 can deprive a man of his title to the land. If the
defendants had no title thereto, then the mere fact
that the lands have been distributed or revenue
allotted, will not confer any title on them, and it
would be always open to the Civil Court to
adjudicate upon the question of title irrespective of
the provisions of Section 154. A reference in this
connection may be made to a decision of the
Calcutta High Court in “Mt. Rukeya Banu and Ors.
v. Mt. Nazira Banu and Ors. (1928 Cal. 130) where
it was pointed out that a partition, whether perfect
or imperfect, of revenue-paying properties must be
made by the Revenue authorities. This follows from
a perusal of Section 96 with Section 154(1)(e) of the
Assam Land and Revenue Regulation. But the
SLP(C) No. 19226/2022 Page 37 of 41
jurisdiction of the Civil Court to determine the right
of the parties to the property in dispute as well as
shares to which they are entitled has not been taken
away by the Regulation in question, and it is for the
Civil Court to decide whether the property is or is
not liable to partition. The same view applies to
other clauses of Section 154. In the circumstances, I
find no substance in the point urged by the learned
counsel for the appellant. In my opinion, the appeal
is without any merit and must be dismissed with
costs and the decision of the Court of Appeal below
should be maintained.”
8. In the case of “The State of Assam v. Sifat Ali and Ors.”
reported in AIR 1967 Assam & Nagaland Page-3, a
Division Bench of this Court also held that Section
154(1)(a) of the Regulation does not debar the civil court
from entertaining the suit based on title to property.
xxx xxx xxx
19. Keeping in view the above cited authorities relating to
the jurisdiction of Civil Court under Section 154 of the
Regulation and also on ordinary reading of the provisions
of Section 154 as well as Section 62 which is also a saving
clause as noted above, it can be safely said that the legal
position is well settled that Civil Court has the jurisdiction
to agitate upon the matter relating to title over the
property. It is correct that if any claim is made as regards
perfect partition, no Civil Court shall exercise its
jurisdiction as envisaged under Section 154(1)(d) of the
Regulation. Section 154 of the Regulation provides that
except where otherwise expressly provided in this
Regulation or in Rule framed thereunder, no civil court
shall exercise the jurisdiction in any matter mentioned in
the various clauses under the Section including Clause (d)
which relates to claim of person to perfect partition.
Revenue Court has been vested with the power to effect the
SLP(C) No. 19226/2022 Page 38 of 41
partition whether perfect or imperfect, of the revenue
paying properties. But at the same time, jurisdiction of the
Civil Court to determine the right of the parties to the
properties in dispute as well as the shares of which they
are entitled to has not been taken away by the Regulation.
In the instant case though the matter was earlier agitated
before the Revenue Court for effecting perfect partition,
the Petitioners, having failed to get adequate relief,
approached the Civil Court by filing suit in question for
declaration of right, title and interest over the suit land. In
such premises I do not find any reason how this Section
154 can debar the Petitioners claiming to the title of the
land in question from approaching the Civil Court.
Section 62 also clearly vests a right upon the person to
prefer a suit to the Civil Court for declaration of his right
to any property. Therefore, I find sufficient force in the
submission of the learned counsel for the Petitioner and
accordingly, I am disinclined to approve the views
expressed by the learned Civil Judge in the Impugned
orders, I am of the considered view that the Civil Court is
the absolute authority to adjudicate a dispute relating to
the title and interest over the immovable property.”
(Emphasis supplied)
55.The position of law with respect to the jurisdiction of civil courts to try
suits based on title to property has also been explained by the Gauhati High
Court in the decision rendered in the case of Ka Trily Tariang v. U.
Resdrikson Lyngdoh and Ors. reported in (1984) 2 G.L.R. 8. The High
Court inter alia observed that the jurisdiction conferred upon Revenue
authority does not prevent the civil court from adjudicating upon the right
SLP(C) No. 19226/2022 Page 39 of 41
to an asset when entitlement is claimed. The relevant observations are
reproduced hereinbelow:
“[…] In that case as well, the Commissioner acting under Rule
26 of the Settlement Rules had pass an order but the Plaintiffs
sued the State of Assam claiming his title to the property. The
plea of bar under Section 154(1)(a) was taken. Their Lordships
held that the provision did not preclude the civil court to
entertain suits based on title to the property. Declaration of title
to immovable property is out of bound for the Revenue court.
It can determine many controversies including those covered by
clauses (a) to (m) of Section 154(1) of the Regulation but the civil
court is the court competent to decide right, title and interest to
immovable property. A civil court cannot only declare title to the
property but it can also adjudicate that the Revenue Officer or
the courts acted beyond their jurisdiction resulting in a failure of
justice. In Dinesh Chandra Sarkar v. Harendra Biswas AIR 1972
Gau. 81, this Court has held that suit for declaration of right,
title and interest is not barred by Section 154(1) of the
Regulation. Dealing with the provisions of Section 154 of the
Assam Land and Revenue Regulation it was held that the matters
within the jurisdiction of the Revenue authorities or courts could
be decided by them but no such decision of a revenue court could
take away the jurisdiction of a civil courts, when a person having
a right to an asset claimed entitlement to it and sought
declaration of his right in the civil court notwithstanding the
provisions contained in Section 154(1)(a) of the Regulation.”
(Emphasis supplied)
56.Further, in the decisions rendered in the Daulatram Lakhani v. State of
Assam and Ors. reported in 1989 (1) G.L.J. 37 and Gauri Shankar
Agarwalla v. Madanlal Agarwalla and Ors. reported in 2010 SCC
SLP(C) No. 19226/2022 Page 40 of 41
OnLine Gau 465, the High Court of Gauhati itself has clarified that the
bar created by Section 154(1) does not preclude suits based on title to the
property from being within the jurisdiction of civil courts.
E. CONCLUSION
57.In view of the aforesaid, the appeal succeeds and is hereby allowed. The
impugned judgment of the High Court is accordingly set aside for not being
sustainable in law.
58.As a result, the order dated 16.05.2014 passed by the Civil Judge, Nagaon
is hereby restored.
59.Pending application(s), if any, stand disposed of.
……………………………J.
(J.B. Pardiwala)
……………………………J.
(R. Mahadevan)
NEW DELHI;
20th DECEMBER, 2024.
SLP(C) No. 19226/2022 Page 41 of 41