Writ Petition No.2938 of 1990

5th November, 2004

Petitioner Counsel: Shri. P. N. KOTHARI
Respondent Counsel: Shri. M. B. PARATE,Shri. T. R. KANKALE

Cases Cited:
Bhavanji Vs. Khimji, 1993 Mh.L.J. 1035 [Para 13]
Khemchand Shankar Vs. Vishnu Hari, AIR 1983 SC 124 [Para 13]
Mahadu Vs. Appaji Gunbarao, 2003(1) ALL MR 1158=2003(2) Mh.L.J. 216 [Para 15]
Annasaheb Vs. Rajaram, 2001(3) Mh.L.J. 53 [Para 15]
Rachakonda Venkat Rao Vs. R. Satya Bai, 2003(7) SCC 452 [Para 15]

JUDGMENT

JUDGMENT :- The petitioners by this petition filed under Articles 226 and 227 of Constitution of India, challenge the order dated 30-8-1990 passed by the Additional Commissioner, Nagpur Division, Nagpur in Revision under Section 257 of the Maharashtra Land Revenue Code. In the said order, the Additional Commissioner has found that while effecting the partition by metes and bounds, Tahsildar has not considered the valuation of lands involved in the partition, as one of the facts governing the grant of shares. The Additional Commissioner has further found that said order also does not indicate the consideration of other relevant aspects like fertility and locational advantages. The Additional Commissioner has, therefore, remanded the matter back to the Tahsildar for fresh inquiry and order regarding carving out of shares for allotment to parties. The parties to this petition are descendants of one Bhagwandin Parate. He died intestate leaving behind him four sons viz., Bansilal, Bhaiyalal, Kunjilal and Babulal. According to parties, each son got ¼th share in the property left behind by deceased Bhagwandin. One son of Bhagwandin by name Bansilal expired in 1962 leaving behind him three sons. Petitioner No.1 & 2 in this petition are sons of deceased Bansilal. The other son of Bansilal by name Ramlal also expired and left behind him widow, who is respondent No.7 in this petition. Petitioners No.4, 5 and 6 are the sons of widow respectively of Bhaiyalal s/o Bhagwandin. Respondent No.2 is Babulal s/o Bhagwandin Parate and respondents No.3, 4 & 5 are sons of Babulal. Respondent No.6 is wife of Babulal.

2. The present petitioner No.1 Champalal filed a Civil Suit vide Special Civil Suit No.81 of 1964 for partition and separate possession of his 1/4th share. The said suit was decreed on 29-6-1971 by 2nd Joint Civil Judge, Senior Division, Nagpur, and the learned Civil Judge has held that petitioner No.1 is entitled to 1/16th share in the property. The said share as worked out was corrected by order dated 22-1-1980 to 1/4th. As the agricultural lands were also to be partitioned, the Civil Judge, forwarded a precept under Section 54 of Code of Civil Procedure to the Collector for that purpose. The Collector entrusted said job to Naib Tahsildar, Nagpur, who registered it as a Revenue Case No.1/SRV/43/80-81. He issued notices to all interested parties and invited proposals and objections. Ultimately Naib Tahsildar passed an order on 18-11-1983. The present respondent No.3 - Parimal @ Madanlal s/o Babulal Parate felt aggrieved by this order and preferred appeal before the Sub-Divisional Officer. The Sub-Divisional Officer quashed the order of Naib Tahsildar and remanded the case back to Tahsildar, Nagpur, with directions that he should go through the report of Naib Tahsildar and after giving opportunity of being heard to all concerned parties should pass appropriate orders. This order was passed by the Sub-Divisional Officer on 21-9-1984. Tahsildar, Nagpur, again issued notice and invited proposals for effecting partition. The other parties as also petitioner submitted their proposals and present respondent No.3 - Parimal @ Madanlal raised his objection. All parties were then heard by the Tahsildar and then he passed his order on 18-12-1986. As per this order, the Tahsildar proceeded with partition of agricultural property situated at Mouza Shivangaon, Sonegaon, Bhamti, Khamla, Giripeth and Kokardi. The Tahsildar gave 1/4th share each to four sons of deceased Babulal in all these agricultural lands. Respondent No.3 - Parimal @ Madanlal again felt aggrieved by the order of Tahsildar and he preferred an appeal before the Sub-Divisional Officer, Nagpur. The Sub-Divisional Officer found that the Tahsildar has acted on account of powers delegated to him by the Collector and appeal, therefore, did not lie before the Sub-Divisional Officer and dismissed the appeal. Respondent No.3 thereafter filed Revision vide Revenue Revision No.SRV/43/Bhamti-1/98-88 before the Additional Commissioner, Nagpur, under Section 257 of Maharashtra Land Revenue Code. This Revision has been filed by Respondent No.3 - Parimal @ Madanlal together with his father Babulal as applicants. The Additional Commissioner heard this revision and delivered final order therein on 30-8-1990. This order is challenged in the present petition on the ground that under the provisions of Maharashtra Land Revenue Code (Partition of Holding) Rules, 1967, (hereinafter referred to as Partition Rules), it is the assessment of holding which is relevant and not the valuation of market value of the property. It is further contended that present respondent No.3 - Parimal @ Madanlal has no locus and status to raise any objection in this respect. It is further alleged that no revision was maintainable under Section 257 of the Code before the Additional Commissioner and an appeal should have been filed and as such cognizance of matter taken in revisional jurisdiction by the Additional Commissioner is without jurisdiction and order is vitiated. Though, in petition, there are some other grounds raised, the counsel for the petitioners Shri. Kothari has argued only these three grounds.

3. Respondent No.3 appeared in person and argued the matter on his behalf and on behalf of Respondent No.2. Insofar as maintainability of revision is concerned, he points out that under Section 257, the Additional Commissioner, Nagpur Division, Nagpur, was competent to entertain the grievance in revision. He further states even if it is held that Revision is not maintainable and the order passed by Tahsildar is treated as an order passed by the Collector, still the appeal against such order would lie before the Additional Commissioner. Respondent No.3, therefore, contends that there is no prejudice whatsoever caused to the present petitioners in the matter. He states that appellate jurisdiction is wider and Respondent No.1 - Additional Commissioner has taken cognizance of the matter in revisional jurisdiction which is narrower in scope than the appellate jurisdiction. He argues that the scrutiny to be done in revisional jurisdiction can also be undertaken by the appellate authority in appellate jurisdiction and hence, the order dated 30-8-1990 passed by the Additional Commissioner cannot be faulted on this ground. About locus of Respondent No.3, Respondent No.3 states that he is party to the proceedings before the Tahsildar and notice to him was issued by Tahsildar. He, therefore, states that he has every locus to file his objections and to approach higher authorities if those objections are not properly decided. Respondent No.3 states that though his father Babulal did not file any objection before the Tahsildar still his father did not oppose the objections raised by him and therefore, his father was not opposing Respondent No.3. He contends that, therefore, role to be played by him is not limited to the status of his father Babulal. He contends that he has been acting in the interest of Babulal and his other sons and therefore, objections raised by him have been correctly construed by Respondent No.1. He further points out that the lands which are being divided in partition proceedings by Tahsildar have non-agricultural potential and many of them have come into the municipal limits of Nagpur Corporation. He states that therefore, division of these lands into four equal shares is not the correct partition. He states that location of all these four portions, availability of approach and the purpose for which these portions or lands are reserved in the development plan are definitely relevant while deciding that each party gets equal share in joint family property. He states that the Additional Commissioner has correctly appreciated this aspect and correctly found that merely physical division in four equal divisions is not sufficient as purpose of partition is to give each party property having approximately same value. He, therefore, states that there is no jurisdictional error or any error apparent on records and there is no scope for interference with the matter in writ jurisdiction.

4. It is to be placed on record that when the matter was taken up for final hearing, without going into the merits of the matter, the petitioners as also respondents were given opportunity to meet each other and to find out any amicable solution in the matter as according to parties there are some subsequent vital developments. Shri. Kothari, learned counsel for the petitioners and Respondent No.3, who is a legal practitioner, therefore, tried their best to find out some acceptable solution, however, the parties reported that no such solution could be reached and therefore, the matter was taken up for final hearing.

5. Though Shri. Kothari, restricted his argument to three grounds mentioned above, Respondent No.3 (Advocate M. B. Parate) pressed some other points. He contended that Tahsildar should have only separated 1/4th share as per the precept received by him and Tahsildar could not have divided property into four equal shares. He contends that remaining 3/4th portion should have been left joint and undivided by the Tahsildar. He further contends that the Tahsildar has not made any allowance for lands acquired by the Nagpur Improvement Trust from joint family property and also land sold should have been appropriately considered by the Tahsildar as subsequent transactions cannot prejudice the case of the present respondents. He further argues that Tahsildar should have only de-marketed shares and he had no power to ask parties to enter possession. He contends that it was the job of Civil Court to allot each individual his share as worked out by Tahsildar while passing final decree in the matter. He contends that the final decree can be executed in this manner only after its registration and due stamp duty is paid on it. He points out that there are certain plots of the family which are located at squares of main roads like junction of ring road or the corners and they have got great commercial potentiality. He points out that such plots and portions of land should have been distributed equally between the four branches of deceased Bhagwandin. He contends that Tahsildar has ignored this aspect and has conferred such valuable corner plots and commercial areas only upon one branch. He contends that thus, the Additional Commissioner was right in directing the Tahsildar to consider locational advantages also instead of dividing the lands into four equal shares.

6. The learned Assistant Government Pleader appearing for the Additional Commissioner, Nagpur Division, Nagpur, has supported the order passed by the Additional Commissioner. He points out that the Additional Commissioner has considered only the main features governing the partition and has directed the Tahsildar to pass appropriate order after taking into account the aspect of valuation of lands, its fertility and locational advantages etc. He contends that after remand, the petitioners as also respondents are free to place their grievances before the Tahsildar and the Tahsildar can appropriately deal with it. He contends that there is no jurisdictional error or any error apparent in the order passed by the Additional Commissioner and same cannot be interfered with in the writ jurisdiction.

7. Having heard the parties, it is apparent that the Revision was filed by present respondents No.2 & 3 challenging the order dated 27-11-1987 passed by the Tahsildar on various grounds. The present respondents No.2 & 3 have pointed out that Kunjilal s/o Bhagwandin and sons of deceased Bhaiyalal could not have made any application to Tahsildar after receipt of precept for separation of their shares also. In Revision, it is contended that Tahsildar could not have acted contrary to precept. It is further pointed out that Tahsildar could not have divided the entire property into four shares contrary to precept received by him. In revision, it is also pointed out that 32 acres of land was acquired by agricultural land ceiling authority and hence there could not have been equal property as said land was acquired from Kunjilal and Bhaiyalal. It is further alleged that Tahsildar did not call for any report from Inspector of Land Records and did not ascertain the market value of the property and also did not ascertain the factual position of these properties. According to revision applicants, some of the properties have been clandestinely sold by the petitioners to third parties.

8. The perusal of Revisional order dated 30-8-1990 which is impugned in this petition clearly reveals that the revisional authority has found that most relevant point regrading the valuation of land involved in the partition has not been discussed anywhere by the Tahsildar in his order. The revisional authority further finds that there is no consideration of fertility of each land and its locational advantages or its non-agricultural potentiality by the Tahsildar while making partition. The Additional Commissioner has found that this is a major flaw in partition done by the Tahsildar. The Additional Commissioner finds that the object behind the partition is not to allot equal share to each shareholder but as far as possible to allot each shareholder the property of equal value. The Additional Commissioner has further observed that area under acquisition should not be partitioned and the shareholders should be given equal share in such areas so that they receive equal amount of compensation. In view of these major flaws found by the Additional Commissioner, the Additional Commissioner thought it better to remand the matter to Tahsildar for fresh enquiry and fresh order regarding the partition. The Additional Commissioner has concluded that the partition itself is defective and therefore, it was necessary to remand the matter to Tahsildar. Thus, it is clear that the Additional Commissioner has applied his mind to the controversy and has found that the physical equal partition between the parties was not proper.

9. Shri. Kothari, learned counsel for the petitioners has raised objection that valuation is not prescribed as relevant norm nor consideration under the Partition of Holding Rules, 1967. He contends that Rule 85(5) requires productivity to be taken into consideration by Tahsildar and sub-rule 85(6) thereof says that total assessment of shares in such land cannot exceed the original assessment on entire land. However, from various maps produced on record by the parties, it is apparent that though the lands are stated to be agricultural land, still several of these lands have come within the area of Nagpur Municipal Corporation and many of these lands are put actually to non-agricultural use by some of the family members. Respondent no.3 has pointed out that two big halls for holding marriages and other similar functions have been constructed on corner plots. He also pointed out that plots which are located on the backside and therefore, do not have such locational advantages have been given to Respondent No.2 - Babulal. After the agricultural lands have come within the Municipal limits and have great non-agricultural potentiality or are shown in development plan for commercial purposes, these aspects assume importance because in that event merely mechanically dividing the land into four equal shares will not be sufficient. By such mechanical partition, each shareholder will not get property of equal value. It is thus apparent that no fault can be found with the reasoning given by the Additional Commissioner in his impugned order. The Tahsildar while dividing such lands is duty bound to look into the productivity or fertility, if the lands are being used for agricultural purpose and also look into the aspect of location of such land and its user in development plan so as to do justice between the parties. Thus, I do not find anything wrong with the reasoning given by the Additional Commissioner in his order dated 30-8-1990.

10. The Additional Commissioner has also taken care of the fact that some lands out of these lands are already acquired by the public authorities like Nagpur Improvement Trust. The parties can get the equal share in compensation awarded for such acquisition by the acquired bodies and if there is any dispute about distribution of such compensation, same can be taken care of by the Civil Court while passing final decree.

11. This petition is filed by some of the shareholders in joint family property who are aggrieved by the order passed by the Additional Commissioner. Respondents No.2 and 3 have not challenged that order. The scope of petition is, therefore, limited to the findings given by the Additional Commissioner while remanding the matter back to the Tahsildar for fresh inquiry. The other arguments advanced by Respondent No.3, therefore, cannot be gone into in this writ petition. Respondent no.3 is free to raise those objections before the Tahsildar at the time of fresh hearing and consideration of the matter by said Tahsildar.

12. About the tenability of revision or cognizance thereof by the Additional Commissioner under Section 257 of the Maharashtra Land Revenue Code, it is clear that the civil court forwards the precept for partition to the Collector and the Collector in turn authorises other revenue officers as required by rules to discharge the obligation. Thus, Tahsildar, Nagpur has acted in the matter as representative of the Collector and agent of Collector. Hence, the order passed by the Tahsildar on 18-12-1986 is in fact order of the Collector only and therefore, the Sub-Divisional Officer, Nagpur, was right in holding that the appeal against the said order lies before the Divisional Commissioner. This order of Sub-Divisional Officer dated 27-11-1987, therefore, was impugned in the revision filed before the Additional Commissioner under Section 257 of the Maharashtra Land Revenue Code by Respondent Nos.2 and 3. The appellate jurisdiction to be exercised by the Additional Commissioner will take into its fold the examination of controversy in narrower i.e. revisional jurisdiction also. Thus, Additional Commissioner has correctly taken cognizance of the matter in the revision. In any case, the impugned order dated 30-8-1990 could have been passed by the Additional Commissioner even in appellate jurisdiction. Hence, no prejudice is caused to the petitioners by said order and by the fact that it has been passed in Revisional jurisdiction. In fact, before the Sub-Divisional Officer, Nagpur, the petitioners have raised objection that the appeal lies before the Divisional Commissioner under Section 247 of the Maharashtra Land Revenue Code and, therefore, the SDO dismissed the appeal for want of jurisdiction. Thus, taking overall view of the matter, I do not find that any interest or right of present petitioners is adversely affected because of passing of impugned order by the Additional Commissioner. The said objection raised by the petitioners is, therefore, rejected.

13. Shri. Parate, appearing in person for himself and for respondent No.2 has relied upon the case in the case of Bhavanji Vs. Khimji reported at 1993 Mh.L.J. 1035 and Khemchand Shankar Vs. Vishnu Hari, reported at AIR 1983 SC 124. By the first judgment, the learned Single Judge of this Court has held that it is open to the parties to bring any further properties for partition in the appropriate proceedings before final decree is passed and the Court does not become functus officio in such circumstances. According to Respondent No.3, if other defendants in the suit wanted their shares to be separated, they ought to have applied to the Civil Court for appropriate directions in this respect and upon such direction from Civil Court only, the Tahsildar could have divided the property in four equal shares. However, in view of the directions issued by the Additional Commissioner and commented upon above, this point need not be examined by this Court in the present petition.

14. By the second ruling, the Hon'ble apex Court has found that a subsequent transferee from a shareholder has locus to appear before the revenue authorities under the provisions of Section 54 and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit and such transferee is representative in the interest of the party from whom he has acquired that interest. Again, as the matter is remanded back to the Tahsildar for fresh inquiry, this issue can also be considered by the Tahsildar and it is not necessary for this Court to examine it.

15. Shri. Parate has relied upon another judgment of this Court in the case of Mahadu Vs. Appaji Gunbarao reported at 2003(2) Mh.L.J. 216 : [2003(1) ALL MR 1158] to contend that the Civil Court does not become functus officio once it sends decree for execution. However, for the reasons given above, it is not necessary for this Court to consider that aspect. He relies upon the judgment in the case of Annasaheb Vs. Rajaram, reported at 2001(3) Mh.L.J. 53 to contend that the preliminary decree could not have been executed by the Tahsildar by directing the parties to take possession of their respective shares. However, this point is kept open as it is not within the scope of present petition at this stage. He has also relied upon the judgment in the case of Rachakonda Venkat Rao Vs. R. Satya Bai, reported at 2003(7) SCC 452 in support of this contention. As already stated above, the Additional Commissioner has allowed the revision after noticing major flaws in the process of partition and remanded the matter back for fresh consideration before the Tahsildar. Hence, it is not necessary for this Court to consider all these objections at this stage.

16. Respondent No.3 also wanted this Court to consider the fact that members in the family have not been given their due shares. For the reasons mentioned above, again this point cannot be gone into in the present petition.

17. In the circumstance, I do not find any merit in the writ Petition. The view taken by the Additional Commissioner is perfectly just and proper. Writ Petition, therefore, fails and is dismissed accordingly. There shall be no orders as to costs.

Petition dimissed.