Abdul Rejak Laskar v. Mafizur Rahman & Ors.

nds for refusal were as mentioned in Sections 154(1) and 154(2) respectively of the Regulation, 1886.

12Copy pinpoint12. 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”).

13Copy pinpoint13. 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.

14Copy pinpoint14. 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).

15Copy pinpoint15. 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.

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16Copy pinpoint16. He submitted that the proper authority which can demarcate any land is the Revenue Authorities and not the civil court.

17Copy pinpoint17. 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.

18Copy pinpoint18. 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.

19Copy pinpoint19. 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.

D. ANALYSIS

20Copy pinpoint20. 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.

21Copy pinpoint21. 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;

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(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.”

22Copy pinpoint22. Section 154(1)(e) of the Regulation, 1886 reads thus: “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?

23Copy pinpoint23. 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.

24Copy pinpoint24. 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.

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25Copy pinpoint25. 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.”

26Copy pinpoint26. 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.”

27Copy pinpoint27. 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

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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.

28Copy pinpoint28. When a suit for partition is instituted seeking declaration of share and separate possession by a co-sharer based on contesting cl