Writ Petition No.6924 of 2009

21st November, 2009

Petitioner Counsel: Mr. R. N. DHORDE,Mr. R. L. KUTE
Respondent Counsel: Mr. V. D. HON,Mr. S. N. KENDRE

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard by consent. The learned counsel for the petitioner seeks leave to delete the respondent Nos.8 to 15. Leave granted at the risk of the petitioner.

By way of present petition, the petitioner challenges the order dated 25th August, 2009 passed by the respondent No.1 thereby dismissing the appeal filed by the present petitioners.

In a suit filed by the respondent Nos.6 and 7, bearing R.C.S. No.196/1990, the learned Civil Judge (Senior Division) Kopargaon, passed a decree on 5/1/1995, decreeing the suit, thereby holding that the original plaintiffs were entitled to half share in the suit property. The original defendant Nos.1, 2 and 5, being aggrieved thereby, preferred R.C.A. No.60/1995. The said appeal was partly allowed, thereby the decree came to be modified to some extent, as there was a compromise decree between the defendant Nos.1 to 3 and defendant No.5, whereby, the share of the defendant No.4 was given to the defendant Nos.1, 2 and 5. A Second Appeal challenging the said judgment and order, bearing Second Appeal No.503/2006 was dismissed on 20/6/2007. A special leave petition, preferred thereagainst was also dismissed.

2. In pursuance to the decree passed by the appellate court, the proceeding for effecting partition was initiated by the respondent authorities and accordingly, the Tahsildar had prepared a draft partition. A notice was issued on 25/6/2007, to the petitioners to remain present for handing over possession. Being aggrieved thereby, the petitioners preferred an appeal before the learned Appellate Court bearing RTS Appeal No.215/2007. The same was dismissed. Further appeal before the Honourable Minister challenging the same was also dismissed. Being aggrieved thereby, the present petition.

3. Shri. R. N. Dhorde, learned counsel appearing on behalf of the petitioners submits that the Additional Commissioner, so also, the Honourable Minister have not taken into consideration that the notice issued by the Tahsilder dated 25th August, 2009 was dehors the provisions of law. He submits that since the procedure as prescribed under Section 85 of the Maharashtra Land Revenue Code (hereinafter referred to as "the Code") read with the provisions of the Maharashtra Land Records (Partition of Holdings) Rules, 1967, (hereinafter referred to as "the Rules") was not complied with, the Appellate court and the Honourable Minister ought to have set aside the order passed by the Tahsildar.

4. Shri. Hon, learned counsel appearing for the respondent Nos.6 and 7 on the contrary submits that decree in favour of the said respondents had achieved finality upto the Apex Court. It is submitted that though the partition has been done in accordance with law, the present petitioners, so as to deprive the respondents of the fruits of decree, are putting one objection after another only to protract the proceedings. He submits that there is no merit in the petition and the same deserves to be dismissed.

5. Shri. More, the learned AGP supports the impugned order He submits that since the competent civil court has passed a decree which has achieved finality, the authorities of the Revenue Department, are only required to do the ministerial work and effect partition and that the same has been done in accordance with law.

Section 85 of the Code, reads thus :

"85. Partition : (1) Subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, a holding may be partitioned on the decree of a civil court or an application of co-holders in the manner hereinafter provided.

(2) If in any holding there are more than one co-holder, any such co-holder may apply to the Collector for a partition of his share in the holding :

Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil suit.

(3) The Collector may, after hearing the co-holder divide the holding and apportion the assessment of the holding in accordance with the rules made by the State Government under this Code.

(4) deleted

(5) Expenses properly incurred in making partition of a holding paying revenue to the State Government shall be recoverable as a revenue demand in such proportion as the Collector may think fit from the co-holders at whose request the partition is made; or from the persons interested in the partition."

It would be also relevant to refer to Rules 5, 6, 7 and 9 of the said Rules, which read thus :-

"5. Mode of effecting partition : If the Collector does not reject the application, he shall proceed to effect the partition either personally or through such agency as he may appoint. So far as practicable, whole survey numbers or sub-division of survey numbers shall be allotted and recourse to further division as far as possible, be allotted to each party and care should be taken to ensure that the productivity of the area allotted to each party is in proportion to his share in the holding."

"6. Apportionment of assessment : The assessment of the holding shall be distributed in proportion to the shares held, in the holding by the co-holders, so however, that when the total assessment of all the sub-divisions of any survey number in such holding falls short of, or exceeds, the whole assessment of that survey number, the difference shall be equitably distributed over the sub-divisions, by addition or deduction in the assessment so as to make the total equal to the assessment of the patent survey numbers."

"7. Procedure before confirmation of partition : After the partition has been completed, the Collector shall hear any objections which the parties may make, and shall either amend or confirm the partition. The partition shall take effect from the commencement of the agricultural year next following the date of such amendment or confirmation of the partition."

"9. Partition under decree of civil court : When any holding is ordered to be partitioned under decree or order of a civil court, the provisions of rules 5, 6 and 7 shall apply in relation to partition of a holding on the application of a co-holder."

6. Perusal of sub-section (3) of Section 85 of the Code would reveal that the Collector, prior to dividing the holding and apportioning the assessment of the holdings, is required to give hearing to the co-holders. It is also to be noted that division and apportionment of the assessment of holding has to be done in accordance with the Rules made by the State Government.

The said Rules have been made by the State Government, by exercising the Rule making powers under the Code. From the perusal of Rule 9 it is clear that when partition under a decree of a civil court is to be effected, the provisions of Rules 5, 6, 7, which provide for the procedure to be followed in relation to partition of a holding on the application of a co-holder, are required to be followed. Perusal of Rule 5 would reveal that while effecting partition, as far as practicable whole survey numbers or sub-division of survey numbers, are to be allotted to one party. It also provides that a care should be taken to ensure that the productivity of the area allotted to each party is in proportion to his share in the holding.

Perusal of Rule 6 would reveal that the assessment of holding is to be distributed in proportion to the shares held in the holding by the co-holders. It is also to be ensured that the total assessment of all the sub-divisions of any survey number in such holding falls short of, or exceeds, the whole assessment of that survey number, the difference shall be equitably distributed over the sub-divisions, by addition or deduction in the assessment so as to make the total equal to the assessment of the patent survey numbers.

Perusal of Rule 7 would reveal that after the partition is completed,the Collector shall hear objections, if any, which the parties may make, and shall either amend or confirm the partition. It is also provided that the partition shall take effect from the commencement of the agricultural year next following the date of such amendment or confirmation of the partition.

7. Perusal of the entire scheme would, therefore, reveal that effecting partition is not only a ministerial act. The authorities are required to see that the partition is done in an equitable manner, so as to ensure that the productivity of the area allotted to each party is in proportion to his share in the holding. It is also to be noted that before the final partition is effected, the Collector is required to hear the objections, if any of the parties have, regarding the partition which is completed. Though in the affidavit-in-reply it is stated that the procedure as prescribed has been followed and though the learned AGP Shri. More and Shri. Hon, appearing for the respondents strenuously urged the court to accept the submission that the rules have in fact been followed, perusal of the material placed on record would reveal that the rules have not been followed by the authorities. It could be seen that after the partition was completed by the Taluka Inspector of Land Record, he has sent the same for approval of the Collector in the month of October, 2006. The Collector, vide communication dated 9/11/2006, had directed the Tahsildar to sanction the partition chart repared by the TILR and thereafter, to take steps for giving possession to the parties. Thereafter, immediately notices have been issued on 20/11/2006 and 25/6/2007 for handing over the possession.

8. It can thus clearly be seen that though the partition chart has been prepared by the TILR, the provisions of Rule 7 which requires a hearing to be given to the parties, before the Collector confirms the partition, has not been followed.

9. As already discussed hereinabove, Sub-Section (3) of Section 85 of the Code, mandates hearing by the Collector, before dividing holding and apportioning the assessment of the holding, the said Section also mandates following the procedure in accordance with law and the rules framed by the State Government.

10. As already discussed hereinabove, effecting partition even under a decree of a civil court is not an empty formality but the Rules have been framed so as to ensure that the partition is done in an equitable manner by taking into consideration the productivity of the area to be allotted to each of the parties in proportion to his share in the holding.

11. In that view of the matter, I find that the notice issued by the Tahsildar on 25/06/2007, which has been confirmed by the Additional Commissioner and the State Government, is inconsistence with the provisions of Section 85 of the Code and Rules 7 and 9 of the said Rules.

In the result, the said notice will have to be quashed and set aside. However, since the parties are litigating since 1990 and in order to give an end to the proceedings between the parties, the petitioner No.2, on behalf of both the petitioners has filed an undertaking to this court to the effect that he will appear before the Collector for raising his objection to the partition chart prepared by the TILR. He has also stated that after the Collector, decides the objections and passes an order either amending or confirming the partition made by the TILR, he would hand over possession of the land allotted to the share of the respondent Nos.6 and 7, within a period of 2 weeks from the receipt of the order passed by the Collector. The said undertaking is taken on record and marked "X" for identification.

12. In the result, the petition is allowed by quashing and setting aside the notice dated 25/6/2007 issued by the Tahsildar, the order passed by the respondent No.2 dated 28/2/2008 and the order passed by the Honourable Minister dated 25/8/2008.

The matter is remitted back to the respondent No.3 for hearing the objections of the parties to the partition chart prepared by the TILR in accordance with Section 85 read with Rule 7 of the Rules. The learned AGP states that the Sub-Divisional Officer, who exercises powers of the Collector in view of Section 7 of the Code, would hear the objections raised by the parties, in accordance with law and decide the same.

The petitioners and the respondent Nos.6 and 7 are directed to appear before the Sub-Divisional Officer, Sangamner, on 3rd of December, 2009 at 11.00 a.m.. Since both the parties have the partition chart prepared by the TILR, they shall also submit their written objections, if any, on the same day. The SDO, Sangamner shall decide the objections raised by the parties, after giving them an opportunity of hearing on or prior to 31/1/2010. On orders being passed by the SDO either amending or confirming the partition chart, the petitioners shall hand over the peaceful and vacant possession of the land allotted to the respondent Nos.6 and 7, or before 26/2/2010.

Rule made absolute in above terms. There shall be no orders as to costs.

Authenticated copies be supplied to the parties to act upon.

Petition allowed.