Abdul Rejak Laskar v. Mafizur Rahman & Ors.

Issue for consideration

The High Court held that the s.154(1)(e) of the the Assam Land and Revenue Regulation, 1886 bars the civil court from exercising its jurisdiction; whether the High Court committed any error in taking view that the suit filed by the appellant herein was barred u/s.154(1)(e) of the Regulation, 1886.

Held

The jurisdiction of the civil court u/s.154(1)(e) would be barred only if an imperfect partition suit is otherwise maintainable u/s.97 – To maintain a suit for imperfect partition u/s.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 – 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. 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 – Further in various decisions of Gauhati High Court, it is clarified that the bar created by s.154(1) does not preclude suits based on title to the property from being within the jurisdiction of civil courts – The impugned judgment of the High Court is accordingly set aside for not being sustainable in law. [Paras 52, 53-57]

Partition – Perfect or imperfect:

Partition is either perfect or imperfect – Perfect partition means division of a revenue paying estate into two or more such

Assam Land and Revenue Regulation, 1886 – Chapter VI, s.100 – Perfect partition and imperfect partition:

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. [Para 24]

Code of Civil Procedure, 1908 – s.4 – When CPC is in conflict with Special or Local law:

The plain reading of the said provision 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. [Para 34]

Code of Civil Procedure, 1908 – s.9 – Jurisdiction of Civil Court:

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

Code of Civil Procedure, 1908 – s.54 – Partition of estate or separation of share:

The plain reading of the s.54 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. [Para 35]

Code of Civil Procedure, 1908 – Or.XX, Rule 18 – Decree in suit for partition of property or separate possession of a share:

The said 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 – 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. [Paras 38, 39]

Suit – Partition – Types of decrees issued by the Court:

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 two-fold: 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. [Para 40]