Thakur Prasad Vs. Smt. Kishora - Court Judgment

Sinha, J.

1. This revision has come to us on a reference made by a learned single Judge of this Court.

2. Smt. Kishora (hereafter to be called, the opposite party) filed a suit under Section 176 of the U. P. Zamindari Abolition and; Land Reforms Act (hereafter to be called the Act), in the Court of Munsif Allahabad in the year 1955, for partition of Bhumidhari and Sirdari plots, against Thakur Prasad (hereafter to be called the applicant). The suit was decided on 31st July 1961 and a preliminary decree for partition was passed in favour of the opposite party. An appeal filed against that decree was dismissed by Civil Judge, Allahabad on 8th May 1962 and the second appeal filed in this Court was dismissed on 28th of August 1968. Thereafter, on 30th of November 1971, the opposite party filed an application in the Court of Munsif Allahabad for preparation of final decree. Relying on a decision of this Court in the case Balbodh v. Mahabir, (1970 All LJ 11'45), the Munsif Allahabad came to the conclusion that the preliminary decree obtained by the opposite party was without jurisdiction and not executable. The application for preparation of final decree was, therefore, rejected. Against that order the opposite party filed a civil revision in the Court of District Judge, Allahabad. The revision came up for 'hearing before the II Additional District Judge and he vide his judgment dated 27th March 1972 allowed the same and directed the Munsif to proceed according to law with the preparation of the final decree. Aggrieved against the aforesaid order, the applicant filed the present revision.

3. The main contention raised before the learned Single Judge was that in view of the amendments made in the relevant provisions of the Act by U. P. Land Reforms (Amendment) Act 1958, it was not within the jurisdiction of the Civil Court to pass a final decree. Reliance for this contention was placed before the learned Single Judge on a decision of this Court in case Nathu Singh v. Dular Singh, (1970 All LJ 923). After elaborately examining the relevant provisions contained in the Act, the learned Single Judge felt that the decision of this Court in case Nathu v. Dular Singh (supra), required reconsideration and hence the reference.

4. As before the learned single Judge, it was pressed before us, as well, on behalf of the applicant that after the commencement of the U. P. Land Reforms (Amendment) Act, 1958 (Act No. XXXVII of 1958), no jurisdiction was at all left with the Civil Court to pass a final decree, and consequently the order passed by the II Additional District Judge was erroneous.

5. In order to appreciate the argument raised on behalf of the applicant, it will be necessary to make a reference to the relevant provisions contained in the Act.

6. Section 176 of the Act provides for the division of a holding of a Bhumidhar or Sirdar. In the year 1955, when the suit was filed no forum for trial of suits under Section 176 of the Act was mentioned in Schedule II thereof with the result that the jurisdiction for trying such suits lay with the Civil Court. The suit was accordingly filed in the Court of Munsif Allahabad. By the U. P. Land Reforms (Amendment) Act, 1'954, Sections 182-A and 182-B, were introduced in the Act. These sections, as they then read, were as follows:

'182-A. The provisions of Section 54 and Order XX, Rule 18, Code of Civil Procedure, 1908, shall apply to a suit for partition of a holding under Section 176.'

'182-B. Except as provided in Sections 178 to 182, the partition of a holding or the separation of the share therein of a Bhumidhar or Sirdar, shall be made by the Collector in accordance with the principles that may be prescribed.'

7. It may be added here that even after the amending Act of 1954 the jurisdiction to try suits under Section 176 of the Act, continued to remain with the Civil Court Thereafter, came the U. P. Land Reforms (Amendment) Act, 1956 by which the Legislature inter alia, amended Schedule II of the Act to insert a new entry at serial No. 16, providing that suit for partition of a holding of a Sirdari under Section 176 shall lie in the Court of an Assistant Collector First Class. The jurisdiction to try a suit under Section 176 of the Act, in so far as it concerned Sirdari plots, was thus transferred to a revenue Court but the jurisdiction to try a suit under the same provision for Bhumidhari plots continued to remain with the Civil Court The jurisdiction of the Civil Court, in regard to the suits pending on the date of the commencement of the amending Act was, however, preserved by a saving clause.

8. Thereafter, came the U. P. Land Reforms (Amendment) Act, 1958, which deleted Section 182-A (quoted earlier) and made some minor amendments in Section 182-B which thereafter reads as follows:

'Subject to the provisions of Sections 178 to 182 the division of a holding or the separation of the share therein of a Bhumidhar or Sirdar shall be made by the Court in accordance with the principles that may be prescribed.'

9. By the same Act, Schedule II of the Act was also amended to provide that the suits under Section 176 for the Division of a holding of a Bhumidhar orSirdar shall lie in the Court of an Assistant Collector First Class. Jurisdiction of the Civil Court to try pending suits under Section 176 of the Act for partition of Bhumidhari holdings was, however, preserved by this Act also through a saving clause contained in Section 87 thereof.

10. The suit giving rise to the present revision having been filed in the year 1955, and the amending Acts of 1956 as well as 1958, having preserved the jurisdiction of the Civil Court to try pending suits of this nature, it could not be said that Munsif lacked inherent jurisdiction to try the suit But even if the amending Acts of 1956 and 1953 did not preserve the jurisdiction of the Civil Court, the decree passed by the Munsif cannot be assailed on that ground because it has become final between the parties having been upheld by the District Court in First Appeal and by this Court in IInd Appeal. The only question for consideration is whether the Munsif has jurisdiction to pass a final decree in the suit. According to the learned counsel the Munsif has no jurisdiction to pass a final decree, and for this he mainly relied on Section 182-B of the Act which has, already been quoted by us earlier.

11. Before the commencement of the U. P. Land Laws (Amendment) Act, 1958, the word used in Section 182 was 'Collector' with the effect that actual partition or separation of a Bhumidhar or Sirdar could not be made by a Civil Court. By the amending Act 1.958, the word 'Collector' was substituted with the word 'Court'. Now, the expression 'Court' should include a revenue as well as Civil Court. The fact that the legislature substituted the word 'Collector' with the word 'Court' is of some significance. If the intention of the Legislature were that the division of separation of share of Bhumidhar or Sirdar should not be done by any agency other than 'Collector' or 'a revenue Court', the Legislature could conveniently use the words .'Collector' or the 'the revenue court'. It may not be out of place to mention that -the expression 'revenue court' has been defined in the Land Revenue Act, 1901, which definition reads as follows:

' 'Revenue Court' means all or any of the following authorities (that is to say) the Board and all members thereof, Commissioners', Additional Commissioners, Collectors, Additional Collectors, Assistant Collectors, Settlement Officers, AssistantSettlement Officers, Record Officers, Assistant Record Officers and Tehsildars.'

12. Presumably, the Legislature while passing the 1958 Act felt that some suit under Section 176 of the Act for division of Sirdari or Bhumidhari holdings may yet be pending before a Civil Court and it intended that, in so far as the suits pending in the Civil Court were concerned, the actual division or separation of shares should also be made by the Civil Courts, while actual division and separation of shares in suits for division of Sirdari holdings filed after the enactment of 1956 Act, and in suits for division of Bhumidhari holdings filed after the enactment of 1958 Act, should be done by the revenue Court. In other words, the Legislature, while passing the 1'958 Act intended that the work of actual division and separation of share in Bhumidhari holdings should be made by the Court seized of the case on the date of commencement thereof. Now, if that were the intention of the Legislature, it could not be achieved by retaining the word 'Collector' in Section 182-B or even by substituting it with the words 'revenue court'. As opposed to this the word 'Court' was all embracing and, by substituting the word 'Collector' with the word 'Court' in Section 182-B, the Legislature could easily achieve the aforesaid purpose without leaving any ambiguity in it Therefore, the fact that the word 'Collector' in Section 182-B was substituted with the word 'Court' therein, by the amending Act of 1958, cannot be explained on any hypothesis except that the Legislature desired that the work of actual division or separation of Zamindari holdings should be made by the Courts in which such suits may be pending on the date of the commencement of the Act.

13. Learned counsel for the applicant urged with some vehemence that the word 'Court' used in Section 182-B, should be construed to mean 'revenue court'. We have, however, already said that the expression 'revenue court' has been defined as such in the Land Revenue Act and there is no reason why the Legislature should not have used that expression if it desired that the expression 'Court' should be construed to mean 'revenue court' only. Needless to say that the expression 'Court' has not been defined either in the Land Revenue Act or in the U. P. Zamindari Abolition and Land Reforms Act, and, consequently, that word should fee assigned its ordinarymeaning. The contention raised cannot, therefore, be accepted.

14. The question that then arises for consideration is whether the suit which has given rise to this revision was pending before the Civil Court when the amending Act of 1958 came into force. We have already pointed out earlier that the suit was decided by the Munsif on 31st July 1961'. It is further worthy of notice that the Munsif passed only a preliminary decree for partition. Since the Munsif had only passed a preliminary decree, his jurisdiction over the case did not exhaust with it, for, the suit yet remained pending for preparation of final decree, which alone could give the relief that was asked for in the case. According to our interpretation of the word 'Court' occurring in Section 182-B, therefore, it was the Court of Munsif, Allahabad, which had the jurisdiction to act under that section in order to divide and separate the share of the opposite party in the holding forming subject-matter of the suit.

15. We may now refer to the decision of this Court in case Natihu Singh v. Dular Singh, 1970 All LJ 923 (supra) which has led to this case being referred to us and on which reliance has been strongly placed by learned counsel for the applicant. What happened in that case was that a decree for partition of Bhumidhari holdings was passed on February 17, 1958, declaring that each of the parties were entitled to a half share in holdings. The record was then sent to the revenue Court for preparation of final decree viz. division and separation of share. After the scheme of partition was prepared by the S. D. O., papers were sent back by him to the Munsif. An objection to the Qura was filed before the Munsif by the defendant and the Munsif dismissed the objections saying that, in suit under Section 176 of the Act, he was required only to pass a decree declaring the rights of the parties and that actual partition had to be effected by the Collector. Notwithstanding that view, however, the Munsif directed the preparation of the final decree in accordance with the scheme of partition received from the S. D. O. Against that order, an appeal was filed and the case was remanded to the Munsif. The Munsif then sent the record again to the Collector for preparation of Quras and Assistant Collector thereafter prepared Quras and made a final decree partitioning the plots between the parties. One of the parties then went in appeal tothe Additional Commissioner who took the view that the final decree should have been passed by the Civil Court itself and that the Assistant Collator should have returned the record back to the Civil Court for want of jurisdiction. When the record reached back the Court of City Munsif an objection was raised that he had no jurisdiction to pass the final partition decree and that the record be sent to the Collector for that purpose. The Munsif rejected the objection and it was that order which came up in revision before this Court.

16. While deciding the revision, this Court considered the legal position obtaining before the commencement of 1958 Act in respect of suits under Section 176 of the Act, the position after the commencement of the said Act, and the effect of the Act on the suits which were pending when the Act came into force, and ruled as follows:

(1) Before the commencement of the amending Act 1958, a suit under Section 376 for division of Bhumidhari holding was to lie in Civil Court and the Civil Court was to pass a decree declaring the rights and share of the parties as provided in Order XX, Rule 18 (2). Thereafter, actual partition and separation of share was to be done by the Collector.

(2) After the commencement of the amending Act of 1958, a suit for partition of Bhumidhari plots lies in the revenue Court which has to declare the rights and share of the parties and then to finally partition the holding and separate the shares, and

(3) Because of Section 87 (1) of the amending Act of 1958, any Civil Court which entertained the suit shall continue, even after the commencement of that Act, to exercise jurisdiction and pass a decree declaring the rights and shares of the parties. With that jurisdiction of the Civil Court in the suit is exhausted and the Civil Court does not have the power to actually partition the holding and separate the shares; that work is done by, the Collector.

17. Now, so far as the first proposition of law is concerned, there can be no quarrel with it. We have already mentioned earlier that, though, necessary amendment was made in Schedule II of the Act through the amending Act 1956 to confer jurisdiction on an Assistant Collector to try a suit for partition of Zamindari holding, the jurisdiction to try a suit for partition of a Bhumidhari holding continued to remain with the Civil Court. Whether or not a Bhumidhari holding constituted 'an Estate' within the meaning of Section 54 of the Code of Civil Procedure and Order XX, Rule 18, Civil P. C, those provisions of the Code of Civil Procedure were made applicable to a suit under Section 176 of the Act by Section 198-A thereof. Consequently, what the Civil Court had to do was to pass a decree declaring the rights and shares of the parties, and then send the papers to the Collector for partition and separation of shares. We, therefore, agree with that proposition.

18. As for the second proposition of law, since the amending Act of 1958 also amended Schedule II of the Act, and expressly conferred jurisdiction on an Assistant Collector also to try a suit under Section 176 of the Act, for partition of Bhumidhari holdings, it is obvious that thereafter a suit for partition of Bhumidhari plot had to be filed in a revenue Court, and, further, in view of the language used in Section 182-B, it is that Court which had also to partition the holding and separate the shares. We, therefore, agree with the second proposition of law laid down in that case as well.

19. Coming to the third proposition, it is worthy of notice that no preliminary decree was passed in that case. On the contrary, the Court had passed a decree under Order XX, Rule 18 (1) declaring the shares of the parties. A perusal of Order XX, Rule 18 (1) would reveal that when the Court acts thereunder it makes a final declaration of the rights and shares of the parties, and with it the jurisdiction of the Court is exhausted, and the remaining work of partitioning the holding on the spot is to be done by the Collector, as provided in that very provision. There can consequently be no manner of doubt about the fact that when a Court acts' under Sub-rule (1) of Rule 18 of Order XX, it passes a final decree and nothing remains pending before the Civil Court thereafter. That being so, it could be said that partitioning in such a case can be done only by a revenue Court.

20. In the case before us, however, Munsif Allahabad did not pass a final decree as envisaged in Sub-rule (1) of Rule 18 of Order XX. On the contrary, he proceeded under Sub-rule (2) of Rule 18 of Order XX and passed a preliminary decree -- fact which is abundantly clear from the operative portion of the judgment which reads as follows:--

'The suit of the plaintiff for partition of her 1/2 share in plots detailed at the foot of the plaint is decreed with full costs. Let a preliminary decree be prepared accordingly.'

21. Possibly, the Munsif felt that a Bhumidhari holding did not constitute 'Estate' within the meaning of Section 54 and Order 20, Rule 18 (1), Civil P. C., and Section 198-A, which made those provisions applicable to suits under Section 176, having been repealed, he thought he had to act under Sub-rule (2) of Rule 18 of Order XX, and the Munsif accordingly passed a preliminary decree. Whether the Munsif acted rightly or wrongly in passing the preliminary decree cannot be agitated in the present revision because the preliminary decree has become final between the parties, having been upheld even by this Court in second appeal.

22. It will thus appear that the factual position in the present case is widely different from that in the case of Nathu Singh v. Dular Singh, (1970 All LJ 923) (supra). The last proposition of law laid down in that case therefore does not apply to the facts of this case, nor can it be argued on the basis of that case that the Munsif did not have the jurisdiction to partition the holding and separate the shares under Section 182-B.

23. To sum up, since the Munsif passed only a preliminary decree in this case under Order XX, Rule 18 (2), Civil P. C., the jurisdiction of the Munsif did not exhaust. On the contrary the case continued to remain pending on the file of the Munsif. Therefore, on the interpretation of Section 182-B as made by us earlier, it is the Munsif who has to partition the holdings and separate the shares of the plaintiff respondent, and thereby to pass a final decree.

24. No other contention having been raised, we find that there is no scope for any interference in this revision.

25. The revision accordingly fails and is hereby dismissed with costs.