Abdul Rejak Laskar v. Mafizur Rahman & Ors.

aim 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.

29Copy pinpoint29. 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.

30Copy pinpoint30. 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

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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 the 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.”

31Copy pinpoint31. 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.”

32Copy pinpoint32. 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.

33Copy pinpoint33. Section 4 of the CPC reads thus: “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

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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.”

34Copy pinpoint34. 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.

35Copy pinpoint35. 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 the time being in force relating to the partition, or the separate possession of shares, of such estates.”

36Copy pinpoint36. 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

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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

37Copy pinpoint37. 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; (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.”

38Copy pinpoint38. 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.

39Copy pinpoint39. 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.

40Copy pinpoint40. 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:

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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.

41Copy pinpoint41. 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 fur