Civil Revision Application No.1223 of 1996,Civil Revision Application No.5 of 1997

20th January, 1997

Petitioner Counsel: Shri K.H.DESHPANDE with S/Shri A.B.CHOUDHARI, A.S.CHANDURKAR and J.S.MOKADAM, Shri C.G. MADKHOLKAR
Respondent Counsel: S/Shri S.H.VODITEL, A.V.GUPTA and S.S.VODITEL, S/Shri S.S.AHMAD and M.AYYUB KHAN

Cases Cited:
AIR 1958 Bom 206 [Para 10]
AIR 1939 Bom 454 [Para 10]
AIR 1945 Bom 338 [Para 10,14]
AIR 1956 Bom 345 [Para 10]
AIR 1946 Nag 353 [Para 10]
1891 ILR 15 Bom 527 [Para 10]
AIR 1945 Oudh 1 [Para 10]
AIR 1945 Mad 336 [Para 11]
AIR 1965 Mys 46 [Para 11]
1951 Nag L.J. 40 [Para 13]
AIR 1983 SC 124 [Para 15]
1982 Mah LJ 757 [Para 15,16]
1990(1) SCC 193 [Para 15]
1994(5) SCC 380 [Para 15]
1996(1) SCC 597 [Para 17]

JUDGMENT

ORDER : These two revision applications arise from Special Darkhast No.414 of 1996 & MJC No.237/1978 filed by non-applicant Nos. 1 to 12, who are the legal heirs of deceased Azizul Haq, son of Hazi Abdul Bari. Special Civil Suit No.238 of 1973 was filed by Azizul Haq and eight others for partition of agricultural lands and house property as against Abdul Jalil and three others, the heirs of defendant No.1 Abdul Jalil and non-applicant Nos. 13 to 20 - while non-applicant No.21 is original defendant No.2. The original defendant No.3 was the present applicant No.1 Anandrao Ganpatrao Belkhode. It appears that during the pendency of the said suit, the applicant No.1 purchased Survey Nos. 47, 202, 205, 206/1-Kh and 206/1-K of mouza Jamtha, tahsil and district Nagpur, admeasuring 20.60 acres of agricultural land by sale-deed dated 25th February, 1974 from Abdul Jalil - original defendant No.2. Therefore, the applicant Anandrao was joined as defendant No.3 in Special Civil Suit No.238 of 1973. A preliminary decree in the said suit was passed on 20th April, 1978, wherein the Joint Civil Judge, Senior Division, Nagpur, declared that plaintiff Nos.2 to 6 and 8 to 10 shall have 7/32th share in the suit property and directed that the precept for partition by metes and bounds shall be sent to the Collector and the Commissioner shall be appointed for partition of the house property. In the present matter, we are concerned with partition of an agricultural land, which is required to be done by the Collector. It appears that thereafter M.J.C. No.237 of 1978 was filed by non-applicant Nos. 1 to 12 on the basis of the decree in Special Civil Suit No.238 of 1973 for appointment of the Commissioner and to partition the house property. However, due to the pendency of the proceedings in first appeal and second appeal, the execution of the said preliminary decree could not proceed till 1984 and, therefore, even though M.J.C. No.237 of 1978 was pending for partition of the house property, it could not be done till 1984 because of the stay orders from the superior Courts. It further appears that in 1978, the precept was sent to the Collector for partition of the agricultural land. However, that could not also proceed because of the stay orders. In any eventuality, in 1984, after the disposal of the second appeal, a preliminary decree became executable in respect of the agricultural estate and the house property.

2. It appears that two of the decree-holders, namely, plaintiff Nos. 3 and 6 compromised with the defendant on accepting the amount of Rs.5,769.23 Ps. each to the full and final satisfaction of their shares in the decree and accordingly an application was filed in M.J.C. No.237 of 1978 on 16th December, 1986 and the order accepting the compromise was passed; wherein, a decree was directed to be amended as per pursis Exhibit 53 and the proceedings were proceeded with. It appears that without amending the preliminary decree, however, the amended precept was sent to the Collector on or about 20th January 1987.

3. On 8th March, 1988, applicant No.1 (original defendant No.3) sold 6.05 acres of agricultural land from Survey No.206/1-Kh (new Survey No.135/1-K) to applicant No.2 and one Dr. Mukund Vaidya. However, Dr. Mukund Vaidya kept with him one acre of land while applicant No.2 got 5.05 acres of land from the said land. On 10th January, 1990, applicant No.2 sold two acres of land to one Shri Wakodikar out of Survey No.135/1-K and out of the remaining land, one acre land of that survey number was converted into non-agricultural use on 29th September, 1993 after following the procedure for conversion of the land into non-agricultural use. Thereafter, applicant No.2 leased out non-agricultural one acre land (Survey No.135/1-K) to applicant No.3 - Indrayani Paper Products Pvt. Ltd. - on 5th May, 1993 for a period of thirty years. On the said one acre of land, applicant No.3 constructed a factory with the plant and machinery and commenced production from January, 1994. Thus, the applicants claim interest in the land and locus to challenge the partition and to take part in the partition proceedings.

4. Second Revision Application No.5 of 1997 has been separately filed by applicant No.3 challenging the order passed below Exhibit 99 dated 5th November, 1996 in M.J.C. No.237 of 1978 by the Civil Judge, Senior Division, Nagpur. Civil Revision Application No.1223 of 1996 has been filed for quashing the execution and possession warrant issued in Special Darkhast No.414 of 1996 and further claiming the restoration of the land being Survey No.135/1-K (now Survey No.135/2) of mouza Jamatha, tahsil and district Nagpur. It is further prayed that the decree-holders/non-applicants to put back the entire machinery, material and all other articles described in the revision in the factory building, re-install the entire machinery and place them in the Working condition at the cost of the decree-holders/non-applicants by appointing a Commissioner or an independent person to assess the cost required for the said purpose and/or to direct the non-applicants/decree-holders to deposit a minimum sum of Rs.15 lacs in this Court. The applicants have made this prayer of restoration and damages in re-installation of the factory, because, as per the possession warrant issued in Special Darkhast No.414 of 1996 based on order in M.J.C. No.237 of 1978, the non-applicants/decree-holders have been put in possession of Gat No.135/2 on 26th November, 1996. The said possession warrant was executed by the Bailiff of the Civil Court with the assistance of the Tahsildar and the Police and, therefore, both these civil revision applications have been filed before this Court.

5. It is required to be mentioned that Special Darkhast No.414 of 1996 from which the disputed questions arise before this Court came to be filed in the peculiar circumstances and due to the haste on the part of the decree-holders. It may be recalled that M.J.C. No.237 of 1978 was pending and the said case was pertaining to the partition of the house property. However, on the repeated question to the parties as to what happened to the partition of the house property, as prayed in the said M.J.C., the parties were not in a position to say anything and, however, it is revealed from the submission of the learned counsel that the parities are not much interested in partition of the house property involved in the said suit. I am making reference to this aspect because it appears that when the same M.J.C. proceedings were pending before the Civil Judge, Senior Division, the Tahsildar proposed the partition of agricultural land wherein 8.78 acres of land out of Survey Nos. 48/1 and 47 was proposed to be allotted to the decree-holders. However, the Tahsildar reported the proposed partition to the Civil Judge because the Tahsildar wanted approval of the proposed partition by the Civil Judge before it finalised by the Tahsildar. Because of this report dated 31st August, 1991, the plaintiffs/decree-holders filed an application at Exhibit 83 in MJC No.237/78 for giving directions to the Tahsildar to the effect that the share of the plaintiffs can be demarcated out of Survey Nos. 203, 206/l-K and 206/l-kh instead of S.Nos.48/1 & 47 because, according to the decree-holders, the share of the plaintiffs admeasuring 8 acres and 78 ares can be allotted contiguously. Therefore, on 7th August, 1993, an order was passed that "Call for the reasons from the Tahsildar (Rural), Nagpur, in accordance with his report dated 31st August, 1991 in M.J.C. No.237 of 1978 of Mouza Jamtha. The Tahsildar is, however, directed to consider the proposal for allotment of 8.78 acres land to decree-holders out of Survey numbers proposed by the decree-holders. Decree-holders to furnish the legible copy of the application for sending the same to Tahsildar and the Tahsildar is directed to submit his report on or before 4th September, 1993." Accordingly, a letter was sent to the Tahsildar on 7th September, 1993. Thereafter, the Tahsildar did not probably accept the proposal. Therefore, the plaintiffs/decree-holders preferred an application at Exhibit 85 on 20th January, 1994 to issue directions to the Tahsildar that the land Survey No.206/l-kh - 3.78 acres and Survey No.206/L-k - 5 acres - totally 8.78 acres - be allotted to the heirs of the plaintiffs/decree-holders. The Civil Judge, Senior Division, Nagpur, by his order dated 7th March, 1994, allowed the said application at Exhibit 85 and issued directions to the Tahsildar to allot the land of 3.78 acres out of Survey NO.206/l-kh and 5 acres of land out of Survey No.206/l-K if the provisions of the Bombay Fragmentation of Consolidation Holdings Act are not infringed. Thus, it becomes clear that for the first time, the Civil Court passed an order effecting the partition and giving direction to allot a specific land to the share of the decree-holder only making it subject to the provisions of the said Bombay Fragmentation of Consolidation Holdings Act. It appears that on 31st October, 1996, the Tahsildar has sent a report and has informed that even though the directions have been issued, it is found that in Gat No.135/l-K (old Survey Nos.106/l-kh and 206/l-K) in 40 ares of land, there is applicant No.3 - paper Mill and rest of 40 ares of land is non-agricultural. So also in Gat No.135/2, there is Soni Tyres Private Limited and that permanent constructed building is there. On receipt of this report, the Civil Judge, Senior Division, on 5th November, 1996, passed an order "Received the report of Tahsildar along with 7/12 extracts and map. The precept was sent to the Collector long back. Now it is received. Nobody is present on behalf of JDR. Hence the report of Tahsildar and map etc. is accepted, and exhibited. Hence it is not necessary to keep this MJC pending. Hence this MJC is disposed of." Thus, it will be clear that M.J.C. No.237 of 1978, which was filed for partition of the house property by appointing a Commissioner came to be disposed of on a report of the Tahsildar, which was pertaining to the partition of the agricultural land. However, surprisingly, I find that the Tahsildar has sent second report on 19th November, 1996 which was filed on 21st November, 1996 in the Civil Court. This report received after the disposal of the M.J.C. as stated above. However, the Civil Court re-opened M.J.C. No.237 of 1978 on 21st November, 1996 without notice to the parties and passed the order that "M.J.C. was closed. However, today the Court has received revised report and the map from Tahsildar Rural (19-11-96). Hence the same is accepted and exhibited. The copies of the revised report have sent to D.H. Azizul Haque and Anandrao Belkhode (JDR) by Tahsildar. In view of this report, earlier report stands cancelled.

6. It appears that after the disposal of M.J.C. No.237 of 1978 on 5th November, 1996 on or about 8th November, 1996, Special Darkhast No.414 of 1996 was filed before the Civil Judge, Senior Division, Nagpur; wherein, a prayer was made to issue warrant of possession in favour of the decree-holders in respect of Survey No.135/l-Kh area 3.51 acres of mouza Jamtha, tahsil and district Nagpur, as per the schedule of property attached. It is pertinent to note that on 8th November, 1996, there was no second report received by Civil Court from the Tahsildar dated 19th November, 1996 and, therefore, there was no mention in the said darkhast of the second report mentioning Gat No.135/2 and in the facts and circumstances that could not have been also. On perusal of the xerox copy on the record, it appears that in the last column, words "as per new report, property is given new No.135/2" appear to have been inserted. As stated above, that must have been inserted sometime on 21st November, 1996 when the report was received by the Civil Court. It is appears that the said interpolation in the said darkhast appears to have been done without the permission of the Court initially, because at a later stage of the proceedings, an application was preferred by the decree-holders to allow the said amendment and the Court allowed it by holding that it is a technical error. It appears that in the proceedings of Special Darkhast No.414 of 1996, the Court has passed an order on 25th November, 1996 issuing a warrant of possession in respect of the suit property mentioned in the darkhast as per the revised report of the Tahsildar dated 19th November, 1996 along with the police help, etc. and as stated above, the possession has been taken. Thereafter, the applications at Exhibits 10 and 15 appear to have been filed challenging the execution and claiming restoration under Section 144 read with Section 151 of the Civil Procedure Code. Those applications were rejected on 6th December, 1996 and, therefore, the present civil revision applications have been filed.

7. In nutshell, the above facts will point out that the Tahsildar, who was executing the preliminary decree of partition of agricultural land, prepared the proposed partition and submitted it before the Civil Court prior to finalisation of the same by the Tahsildar on 31st August, 1991 and he has allotted survey Nos. 48/1 and 47 to the share of the plaintiffs/decree-holders and not Survey Nos. 206/l-K and 206/l-Kh , which are subsequently numbered as Gat No. 135. Thereafter, initially, directions to consider the request of the plaintiffs/decree-holders to allot land from Survey Nos. 206/l_k and 206/l-Kh was made and when it was not being accepted, the Civil Court has issued the directions on 7th March, 1994 to allot Survey No.206/l-K and 206/l-Kh - totally 8.78 acres. Even this was not accepted by the Tahsildar, as he reported the fact of non-agricultural conversion and erection of factories on these lands. But, however, it appears that being the directions issued by the Civil Court, the Tahsildar modified the report and submitted it to the Civil Court by his report dated 19th November, 1996. However, it is pertinent to note that the partition, thus, was effected by the Civil Judge, Senior Division, by his order dated 7th March, 1994 wherein the direction to allot a particular land to the share of the plaintiffs/decree-holders has been given by the Court. That direction was treated as final and on getting the report from the Tahsildar dated 19th November, 1996 that the land, as directed by the Civil Court, has been shown in the 7/12 extract in the names of the decree-holders, the decree-holders filed Execution Petition No.414 of 1996 and obtained the warrant of possession from the Civil Judge, Senior Division and obtained the possession of Gat No.135/2.

8. No doubt, the plaintiffs/decree-holders are praying to get the land of their share since 1978 and that the Court has passed a decree in their favour, however, the most important question involved in the present revision applications is to consider the validity of the execution of the preliminary decree of the partition and/or to allot in the share of the decree-holders in respect of the property, which is assessed to the land revenue. The above facts point out that even though the proceedings were pending before the Tahsildar, as contemplated under Section 54 of the C.P.C., still the proposal to allot Gat No.135/2 was not prepared by the Tahsildar on his own and was not equally finalised by the Tahsildar independently. The Tahsildar has proposed to give some other lands i.e. Survey Nos. 48/1 and 47, but the Civil Court issued a direction to issue the specific land and not only that but the Civil Court proceeded to deliver the possession of the said land when the Tahsildar prepared the 7/12 extract as per the direction of the Civil Court. Thus, the act of the partition of the property assessed to the land revenue has been performed by the Civil Court and so also the delivery of possession has been given by the Civil Court.

9. In my view, the whole proceedings so far as the partition and the delivery of land assessed to the land revenue are concerned in the present matter are misconceived and violative of the statutory provisions of the law. It is well settled view that in respect of the agricultural lands, which are assessed to the land revenue, if the partition is to be effected and /or a share has to be carved out as per the decree of the Court, it is the Collector or his subordinate gazetted officer, who can effect the said partition and deliver the possession of the share as per the decree of the Court. The provisions of Section 54 of C.P.C. are very much clear.

10. It is well settled view of this court from the reported cases that support me. In AIR 1918 Bom. 206 (Bhimanguada v. Hanmant Rungappa), it was held that the Civil Court has no jurisdiction to reopen a partition made by the collector and has no power to examine his work or to direct him to make a fresh partition. In AIR 1939 Bom. 454 (Jacinto v. Fernandez), it was held that when an order is made for partition of lands assessed to Government revenue, the Court makes an order decreeing partition and directing the parties to be put in possession and referring it to the Collector to carry out the partition. It was further held that when an order in that form is made, the Court's duties are finished, and it is for the Collector to partition the property and put the parties into possession. In AIR 1945 Bom. 338 (Ramabai Govind v. Anant Daji), it has been held that when making partition the Collector does not purport to make a final decree. He proceeds from division by metes and bounds to delivery of possession as in one proceeding, and not as if he was conducting two distinct proceedings, one equivalent to a proceeding in suit, and the other to a proceeding in execution. In my opinion, therefore, the decree made in the form of Order 20, Rule 18(1), technically must be classified as a final decree." Relying on AIR 1945 Bombay 338 ( Ramabai Govind v. Anant Daji), in AIR 1956 Bom 345 (Ningappa v. Abashkhan), it has been held that after a decree for partition of lands assessed to revenue has been passed, the court has nothing further to do with the decree. The Decree is to be executed and the partition is to be effected by the Collector. There cannot, therefore, be any executing proceedings before the Court in the case of such a decree. The present applications, which are said to have been made under Section 47 of the Civil Procedure Code, were, therefore, not maintainable. In AIR 1946 Nagpur 353 (Lachhiram Jasram v. Nanba Dhanaji), it has been held, "Section 54, read with Order XX, rule 18, authorises the civil Court only to declare the rights of the several parities interested in the property and places the execution of the decree entirely in the hands of the Collector. How the partition is to be made lies wholly within the authority of the Collector. The Civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with the property. In fact the suit terminates so far as the civil Court is concerned on the passing of the preliminary decree effecting any estate assessed to the payment of revenue to the Crown", as has been held in numerous cases, such as (1891) ILR 15 Bom 527 (Shrinivas Hanmant v. Gurunath Srinivas), AIR 1918 Bom 206 (Bhimanguada v. Hanmant Rungappa), AIR 1939 Bom 454 (Jacinto v. Fernandes), AIR 1945 Bom 338 (Ramabai Govind v. Anant Daji) and AIR 1945 Oudh 1 (Sher Bahadur Singh V. Ram Narain Singh).

11. The above expressed view of the Bombay and Nagpur High Courts along with other views have been approved by the Madhya Pradesh High Court in AIR 1974 M.P. 12 (Bhagwansingh v. Babu Shiv Prasad) and approving these above-referred decisions and interpreting Section 54 of the Civil Procedure Code, the Court has held that "A perusal of the aforesaid two provisions make it clear that the rule does not contemplate passing of a final decree. All that is required of a civil Court in a case for partition of an undivided estate assessed to the payment of land revenue to the Government, or for the separate possession of a share of such as estate, is to only pass a preliminary decree and declare the rights of the several parties who are interested in the property and nothing more and give direction for such partition or separation to be made by the Collector or any gazetted officer subordinate to the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of Section 54 of the Code. Thereafter, the execution has to be effected by the Collector. The reason is that the revenue authorities are more conversant and better qualified to deal with such matters than the Civil Court and interest of the Government with regard to the revenue assessed on the assets would be better safeguarded by the Collector executing the decree than by the Court. The partition contemplated by Section 54 is not confined to mere division of lands but includes also the delivery of the shares of the respective allottees. Thus, the Collector or his subordinate would be completely carrying out the partition. The Civil Court after passing of the preliminary decree for partition of an undivided estate assessed to the payment of land revenue becomes functus officio and it would have no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in accordance with the said decree." The Full Bench of the Madras High Court in AIR 1945 Madras 336 (Venkataraghava v. Venkata Hanumantha) has observed that "the Court retains complete control over the partition proceedings when it is a case of dividing immovable property which is not an estate assessed to land revenue, but where the partition is of an estate assessed to such revenue, the Court has no control over the Collector. The decree is transmitted to him to act in accordance with the rights of the parties declared therein and in accordance with the law for the time being in force relating to the partition or the separate possession of shares of such estate. ..." "He (Collector) has a statutory duty to perform and in performing it he is not under the control of the Court. He is not even required to report to the Court what he has done. When he has made the partition no order of the Court is necessary. Once the Court has sent the decree to the Collector for action under section 54, the matter passes entirely out of its hands." All the above-referred cases lay down ratio that once the preliminary decree has been passed, it is the Collector and his subordinate nominated gazetted officer, who is to effect the partition and deliver the possession of the share of the decree-holder in respect of the property assessed to land revenue and the Court has no control over the Collector. The learned counsel appearing for the non-applicants tried to rely on AIR 1965 Mysore 46 (N.R.Patil v. Kariappa) wherein it has been laid down that "when under Section 54 the Court has given directions to the Collector for the partition of the estate if that partition has not yet been made or commenced, the Court has power to recall the papers transmitted to the Collector if the papers have been wrongly transmitted or directed. Where, therefore, the Civil Judge did not issue instructions to the Collector in accordance with the consent order but issued some other kind of instruction at variance with that consent order, the Civil Judge had undoubtedly the power to recall those erroneous instructions before the partition is made by the Collector, if it was brought to his notice that those instructions contradicted the consent order, and even if he did not, the appellate Court, when it is brought to its notice that the Collector was asked to make a partition in a manner entirely at variance with the decree, has the power to reverse the order made by the Civil Judge and to direct the Civil Judge to issue the instructions prescribed by the decree or any subsequent order or other proceeding."

12. On the facts of this reported case, the ratio is not applicable because the directions which were sent to the Collector for partition of the land assessed to land revenue were otherwise than the decree or the consent order of the parties and, therefore, the precept communicated to the Collector by the Civil Court was completely erroneous and in order to correct the wrong precept, the transmitted papers were recalled. The facts and the ratio of the said case is not applicable to the facts of the present case.

13. In order to support the contention that the Civil Court can execute the preliminary decree passed in respect of the agricultural lands assessed to land revenue, the non-applicants relied on 1951 Nagpur Law Journal 40 (Sewakram v. Chunilal) where the Single Judge has held that "It is not ordinarily open to Civil Court to effect partition of revenue paying property. Section 54, Civil Procedure Code deals with a decree for partition of an undivided estate assessed to land revenue or for separate possession of a share of such estate and says that in those cases the partition shall be made by a Collector. A civil Court can however order partition even of revenue paying estate when the Collector refused to make such partition. This is not prohibited by Section 54, Civil Procedure Code because effect has to be given by the Court to the decree passed by it. If for some reasons or other, the Collector refuses to give effect to the decree, the Civil court must ex debito justiae itself do so." With great respect, the ratio of this case does not help the non-applicants. The first reason in the present matter is that the Collector and the Tahsildar have not refused to execute the preliminary decree in Special Civil Suit No.238 of 1978 and, therefore, as contemplated in this ratio, it was not open for the Civil Judge, Senior Division, to proceed with the execution of the decree. In order to point out that the Tahsildar has refused to execute the decree, the learned counsel for the non-applicants stated that the Tahsildar has made a reference to the Civil Judge, Senior Division, and that amounts to refusal and, therefore, the Civil Court was right in proceeding with execution of decree in the present case. It may be recalled that by report dated 31st August, 1991, the proposed partition was prepared by the Tahsildar allotting the land survey Nos. 48/1 and 47, totally admeasuring 8.78 acres to the decree-holders. However, before finalising the said partition, the Tahsildar has submitted it to the Civil Court for approval and for issuing the directions for delivery of possession. That report has given rise to the subsequent applications in the said proceedings as has been stated in the above paragraphs. By no stretch of imagination, this report of Tahsildar can be said to be refusal on the part of the Tahsildar or Collector to partition and deliver possession of land as per the preliminary decree passed in Special Civil Suit No.238 of 1973. Not only that, but it was an error on the part of the Tahsildar to make a report to the Civil Court to approve the partition and issue directions for the delivery of possession as is evident from the ratios cited above. On a receipt of this report dated 31st August, 1991, the Civil Court should have informed that no such approval or order from the Civil Court is necessary and the Tahsildar can proceed to finalise the proposed partition after following the procedure as prescribed in Section 85 of the Maharashtra Land Revenue Code and the rules thereunder. Firstly, it is the Tahsildar, who committed an error in sending the report dated 31st August, 1991 and secondly, it is the Civil Court, which committed a drastic intolerable error by issuing a direction to allow a specific land to the share of the plaintiffs by order dated 7th March, 1994. The Civil Court as discussed above was a functus officio after the precept was sent to the Collector for effecting the partition as per the preliminary decree and there were no circumstances which warranted any sort of interference in the act of partition, which was to be completed by the Collector or his subordinate gazetted officer under Section 54 of the Civil Procedure Code and read with Section 85 of the Maharashtra Land Revenue Code and the rules framed thereunder. It was none of the business of the Civil Court to give directions to give a contiguous land from Survey Nos. 206/1-K and 206/1-Kh to the Tahsildar. It is further pertinent to note that the Civil Court usurped illegally and in complete violation of the provisions of the law the jurisdiction of the Collector under Section 54 by entertaining the darkhast proceeding being No.414 of 1996 for issuing the possession warrant for delivery of Gat No.135/2. The Civil Judge, Senior Division has totally transgressed and overlooked the provisions of Section 54 of the Civil Procedure Code and nonetheless the law laid down by this Court from number of years, which is being cited and quoted in the judgment above. In any way, in the light of the discussion above made, I am of the view that the directions issued by the Civil Court on 7th March, 1994 below Exhibit 85 in M.J.C. No.237 of 1978 were bad and void in law. I further hold that the execution proceedings initiated on 8th November, 1996 bearing No.414 of 1996 were bad and nullity in law. Not only that, but the orders issued by the Civil Judge, Senior Division, for issue of warrant of possession in respect of the suit property are bad, illegal and void in law, because, as discussed above, once the Civil Court, being a functus officio, passed a decree in respect of the estate assessed to the land revenue and transmits it to the Collector becomes functus officio, and these orders, therefore, suffer from inherent lack of jurisdiction. Not only that, but it amounts to an illegal usurption of the jurisdiction by the Civil Court.

14. I am aware that in certain circumstances, the Civil Court may have a control over the proceedings. However, the said control is of the nature as has been observed in AIR 1945 Bombay 338 (Ramabai Govind v. Anant Daji), that is it is only if the Collector contravenes the decretal order, or transgresses the law or otherwise acts ultra vires, or refuses to carry out the decree, that his action is liable to be controlled and corrected by the Court, which passed the decree. However, I find that nothing has been pointed out by the non-applicant/decree-holders on the part of the Collector contravening the decretal order or transgressing the law or otherwise pointed out the acts of the Collector that are ultra vires so that the Civil Court should control the acts of the Collector. However, such control also does not permit the Civil Court to effect partition and deliver possession of land assessed to land revenue. But, the Court can, in that eventuality, point out contravention of decretal order or transgression of law or acts of ultra vires and ask to correct the same and collector thereafter shall proceed to effect partition as per Section 54 of the Civil Procedure Code and deliver possession. In case of refusal to carry out decree, Court can direct the collector to carry out decree as it is statutory duty. However, such control as referred to above would not allow the Civil Court to complete and effect the act of partition if estate assessed to land revenue and deliver possession, because the said act of partition of done by civil court would be in complete violation of statutory provisions of Section 54 of the Civil Procedure Code. Control cannot be equated to assumption of jurisdiction. However, apart from this control, there is no control over the acts of the Collector and he can give effect to the partition made by him without waiting for confirmation by the Court and deliver the possession of shares to the respective shares. No circumstances have been brought about on record so as to call for an interference by the Civil Court. On the contrary I find, as observed above, that the interference by the Civil Court by orders passed in M.J.C. No.237 of 1978 and Special Darkhast No.414 of 1996 was absolutely unwarranted, uncalled for and void in law.

15. Having found that the total proceedings and the orders passed by the Civil Court in respect of the execution of the preliminary decree of the agricultural lands assessed to land revenue involved in Special Civil Suit No.238 of 1973, the next question, which arises for consideration, is as to whether the land should be restored in the possession of the applicants as prayed. No doubt, the facts on record show that the possession of the factory site and other non-agricultural lands involved in execution that is Gat No.135/2 has been taken with the help of police and the photographs on record point out that the total machinery of the paper mill has been removed from the earth and thrown away from the site and in such manner the possession was obtained with the help of the police. The applicants therefore, were helpless to resist the said act of delivery of possession. As the said illegal act of taking possession from the plaintiffs is a product of the illegal usurption of the jurisdiction to execute the decree of partition of the land assessed to the land revenue, it is necessary to issue an appropriate relief so that the applicants will be restored to possession where they were prior to taking the possession from them and, therefore, the question of restoration arises. No doubt, in the present matter, applicant No.1 from whom the applicant Nos. 2 and 3 have purchased the property and the lease respectively are the transferees pendente lite including applicant No.1. However, that does not mean that while effecting an equitable partition of a land, they are not entitled to participate in t he said proceedings and protect their property. On the contrary, as has been held by the Supreme Court in AIR 1983 SC 124 (Khemchand Shankar v. Vishnu Hari), that the transferees during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to the Government which is the subject matter of the suit have locus standi to appear before the Revenue Authorities in proceedings under Section 54 and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit in the Civil Court. Therefore, the applicants were appropriate parties, who could have participated in the partition proceedings before the Collector or Tahsildar and could have probably protected their estate while effecting the said partition. One of the ways of protecting the said estate of the transferees is to get the lands of the transferees allotted to the share of the defendant against whom the proceedings for partition are going on and the said act of partition can be done without causing any prejudice to the plaintiffs' share. That all requires to be considered by the Collector or the Tahsildar while effecting the partition. I have made a reference to this aspect because the applicants could have pursuaded before the Tahsildar in a proceeding under Section 85 of the Mah. Land Revenue Code read with Section 54 of the Civil Procedure Code while effecting the partition and that would have been a proper legal course. I am aware that while effecting the partition, even though the Tahsildar is supposed to consider the claims of the transferees, that does not necessarily mean that the Tahsildar shall allot the lands of the transferees to the judgment-debtor and/or the transferee and that the Tahsildar has to decide on an equitable view of the partition. However, the said aspect is not before me in the present revision applications. However, I am making reference to it so as to point out a locus of the applicants to participate in the proceedings under Section 54 of the Civil Procedure Code, when the proceedings are before the Collector or the Tahsildar. However, such a transferee, who has a locus to participate in those proceedings under Section 54, has been dispossessed and the valuable properties have been dismantled because of the execution of the orders, which suffered from inherent lack of jurisdiction of the Civil Court as pointed out above. It requires that the applicants should be put in possession of the property till the decree passed in Special Civil Suit No.238 of 1973 pertaining to the agricultural lands assessed to land revenue is executed by the Collector and/or his subordinate gazetted officer as provided under Section 54 of C.P.C. However, in the present matter, the provisions of Section 144 of the Civil Procedure Code will not be applicable. The learned counsel appearing for the applicants concedes that the provisions of Section 144 of the Civil Procedure Code are not applicable to the facts and circumstances of the case, but the learned counsel submitted that under Section 151 of the Civil Procedure Code, the order of restoration of possession could be passed by this Court. In support of his contention, the learned counsel relied on 1982 Mh.L.J. 757 (Gulam Mohamed v. Akbarbhai) wherein the tenant in possession of the land, who was a party to the suit, was dispossessed while executing the decree of partition in respect of the agricultural land instead of granting symbolic possession to the decree-holder. The Court found that "in the facts and circumstances of the present case and with reference to established principles of law, in my opinion, it will have to be held that the applicant Rameshwar has obtained the possession of suit land under an order, which was without jurisdiction and, therefore, the tenant will be entitled to obtain the possession of the land under Section 136 of the Tenancy Act and thus the restoration was granted treating the order as without jurisdiction." The learned counsel also made a reference to 1990(1) SCC 193 (Sushil Kumar Mehta v. Govind Ram Bohra) wherein it has been held that where the Civil Court has no jurisdiction to pass a decree and if passed, the decree will not operate as res judicata and even if such a decree is executed during the pendency of the S.L.P., the Supreme Court will relieve the party from injustice from setting aside the execution always. It can also apply under Section 145 of the Civil Procedure Code. The learned counsel also relied on (1994) 5 SCC 380 (Kavita Trehan v. Balsara Hygiene Products). In para 16, the appellate Court has found that "the Law of Restitution encompasses all claims founded upon the principle of unjust enrichment. 'Restitutionary claims are to be found in equity as well as at law'. Restitutionary law has many branches. The law of quasi-contract is "that part of restitution which stems from the common indebitatus counts for money had and received and for money paid, and from quantum meruit and quantum valebant claims. Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court."

16. Thus, relying on these principles, it was submitted that even though the case of the applicants for restitution may not be covered under Section 144 of the Civil Procedure Code; still it may be considered under inherent power of the Court under Section 151 and the possession may be restored. The learned counsel also relied on 1982 Mh.L.J. 757 (Gulam Mohamed v. Akbarbhai) to point out that when the order is not under Section 144 but under Section 151 of the Civil Procedure Code, the appeal is not the remedy as provided in respect of Section 144 but can approach the High Court in its revisional power or in its power of superintendence conferred by Article 227 of the Constitution. The said case negatived the ground of the non-applicants/decree-holders that the applicants should have preferred an appeal, instead of filing these civil revisions applications. I find that the application for restoration by the present applicants cannot be an act under Section 144, but it has to be considered under Section 151 of the Civil Procedure Code. I, therefore, hold that the applicants are entitled for restoration in the interest of justice.

17. The next question that arises for consideration is the cost of the restoration because the applicants' machinery of a paper mill has been uprooted and thrown away and, therefore, the said machinery will have to be restored in the same position. However, before me, there is no material to assess the quantum of damages except a prayer that a sum of Rs.15 lacs be directed to be deposited by the non-applicants. However, the share of the non-applicants/decree-holders, as appears from the record, is 8.78 acres, which the plaintiffs/decree-holders are trying to get since 1978. The land has been transferred and factory has been erected during the pendency of the suit and the proceedings in the Civil Court and before the Tahsildar. Even the price of the share allotted to the plaintiffs, if sold, may not be sufficient to pay the damages and/or cost of re-erection of the factory of the applicants, because, I find that the claim of plaintiff Nos. 3 and 6 have been settled to Rs.5,769-23 Ps. each in the year 1987 approximately points out the value of share of non-applicants, even assuming price appreciation since 1987, and to ask the plaintiffs/decree-holders to pay the said cost, is to ask the plaintiffs/decree-holders to part with the share, which they are getting through decree. Not only that, but the plaintiffs-decree-holders may turn to be beggers if they are not possessed of any other property. Therefore, even though the applicants have suffered a loss by throwing away the plant and machinery at the time of execution, I am not inclined to grant the damages and/or cost of re-erection of the said factory from the plaintiffs/decree-holders. It is settled view that the court granting restitution and restoration shall have a pragmatic view and favour relief which is reasonable, fair and practicable and does not bring about unmeritted hardship to either party, 1996(1) SCC 597 (Kerala State Electricity Board v. MRF Limited). Therefore, even though restoration of possession is awarded, I am not inclined to grant damages as claimed in the petition.

18. One more aspect is important, that is, even though I am quashing the execution proceedings carried out by the Civil Court in M.J.C. No.237 of 1978 and Special Darkhast No. 414 of 1996, so far as the execution of the preliminary decree pertaining to the agricultural lands is concerned, however, the fact still remains that the said preliminary decree passed in Special Civil Suit No.238 of 1973 will have to be executed by the Collector and/or any gazetted subordinate officer as per the provisions of Section 54 of the Civil Procedure Code. While effecting the said partition, we cannot at this stage anticipate that the land in possession of the applicants will be maintained with the applicants by the Collector, because the Collector will have to carry out the partition of the agricultural lands, as provided in Section 85 of the Maharashtra Land Revenue Code read with the rules framed thereunder. While effecting the said partition, no doubt, the Collector is entitled to hear the applicants, but while effecting the equitable partition whether it will be appropriate to keep the property of the applicants with the applicants is a question to be independently decided and considered by the Collector or his subordinate gazetted officer. Therefore, at this stage, it cannot be anticipate (d) that while effecting the partition of the agricultural lands, the lands with the transferees/applicants will be maintained with them. No doubt, the report of the Tahsildar dated 31st August, 1991 points out that the proposed partition shows the allotment of Survey Nos. 48/1 and 47 to the share of the decree-holders. However, the said proposed partition will have to be finalised by the Collector or the Tahsildar after giving hearing to the parties and, therefore, it is likely to be modified. Therefore, even though, I am inclined to grant restoration of possession of the land of the applicants, I hold that it will be inappropriate for the applicant No.3 to again install the factory machinery on the said site and, therefore, even though, I am inclined to give a direction to restore the possession, I am not inclined to give a direction to erect the factory on the said site till the Collector has finalised the partition. If it is found, after the finalisation of the partition by the Collector, that the land in possession of the applicants/transferees is not allotted to the share of the decree-holders, then the applicants/transferees will be in a position to install the machinery on the said site. If the Collector, on hearing the parties, decides to allot the land in question again to the decree-holders, then the applicants will have to install their factory at some other place. In view of the above facts, the question of installation of the machinery of the plaintiffs on Gat No.135/2 will only arise if in the final partition, the said land is retained with the applicants/transferees.

19. In Civil Revision Application No.5 of 1997, the order under challenge, as stated above, is Exhibit 99 from M.J.C. No.237 of 1978; wherein the request was made to stay the order dated 7th March, 1994 passed below Exhibit 85 and further claiming an opportunity of hearing. However, as I have already observed that the order passed by the Civil Judge, Senior Division, below Exhibit 85 on 7th March, 1994 is bad in law, as the said order suffers from lack of jurisdiction with the civil court, it is further not necessary to stay the said order, as prayed. On setting aside the said order, I have directed the Collector to finalise the partition proceedings and, therefore, whatever objections as being claimed by Exhibit 99 or any other can be agitated by the applicants before the Collector in appropriate proceedings and, therefore, the said revision application is being also allowed.

20. Taking into consideration the overall problems in execution of the preliminary decree in Special Civil Suit No.238 of 1973, I proceed to pass the following order :-

-: O R D E R :-

(1) Both the civil revision applications are allowed.

(2) The order passed by the Civil Judge, Senior Division, Nagpur, on 7th March, 1994 below Exhibit 85 from M.J.C. No.237 of 1978 directing the Tahsildar to allot the land of 3.78 acres out of Survey No.206/l-Kh and 5 acres land out of Survey No.206.1/K, if the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, is hereby quashed and set aside. Further the order below Exhibit 99 from M.J.C. No.237 of 1978 is hereby set aside.

(3) The proceedings in Special Darkhast No.414 of 1996 on the file of the Civil Judge, Senior Division, Nagpur, from their inception to the delivery of possession, are hereby quashed and set aside.

(4) Non-applicants/decree-holders are directed to hand over possession of Gat No.135/2 of village Jamatha to the applicants.

(5) The Civil Judge, Senior Division, Nagpur, is directed to restore the possession of Gat No.135/2 of village Jamatha, tahsil and district Nagpur to the applicants within a period of fifteen days from the date of this judgment from the non-applicants/decree-holders.

(6) The applicants/transferees, even though restored in the possession of the property being Gat No.135/2, are hereby directed not to install the machinery of the factory till the partition is finalised by the Collector or his subordinate gazetted officer under Section 54 of the Civil Procedure Code read with Section 85 of the Maharashtra Land Revenue Code and the rules framed thereunder.

(7) The Collector and his subordinate gazetted officer are hereby directed to effect the partition of the agricultural lands covered in the preliminary decree in Special Civil Suit No.238 of 1973 considering the provisions of Section 85 of the Maharashtra Land Revenue Code and the rules framed thereunder and finalise the same after giving opportunity to the parties to the suit and the applicants and/or any other transferee of the said land, within a period of two months, independently of the directions issued by the Civil Court in M.J.C. No.237 of 1978 and/or Special Darkhast No.414 of 1996, and the Collector and his subordinate gazetted officer are further directed to place the decree-holders into possession of the said finally allotted agricultural land as immediately as possible thereafter.

Applications allowed.