Ranjit Kumar Chakraborty Vs. Jiban Chandra Chakraborty and ors. - Court Judgment

Excerpt:
- 1. heard mr. b. das, learned senior counsel, assisted by mr. r.b. sinha, learned counsel for the petitioner. also heard mr. a.c. bhowmik, as well as mr. d.k. biswas, learned counsel for the respondents. 2. 'we, all are kings in our kingdom' - is the inner concept of modern democratic governments ruled by people through the system of adult franchise. during monarchism the kings/rulers are the sovereign in all respects and the rest are the subjects (prajas). in order to manage the vast area under the kingdom the rulers started settling the land/immovable properties with individual on receipt of one time nazrana (premium) and subject of payment of lump sum annual non-ratebly assessed or agreed revenue (khazna) and the land/immovable property so settled was called 'estate' belonging to the estate holder commonly recognised as zaminder/jaigirdars and the likes, having been authorised under the arrangement to resettle the estate property partwise by inducting individual riyots (prajas) on receipt of one time salami (price) and subject to payment of periodically ratebly assessed revenue by way of cash payment, or share of crops or rendering manual labours and this way the riyots acquired possessery occupancy right heritable but not transferable without the approval of the estate holders. the provision of section 54 of the cpccontemplates to deal with the matter relating to partition of such estate and not the individual property belonging to riyots. 3. after adoption of india's constitution on 26.01.1950 almost all the provincial government stated enactment of land reforms legislations of which the u.p. zamindery absolution act was probably the pioneer. the status of the estate holder are legally termed as 'intermederies' in the several land reforms act and their status of being estate holders ceased to be operative and the estate holder's right stood vested in the government by operation of related provisions of the land reforms act which have been brought under the 9th schedule of the constitution of india and all land holders irrespective of status/strature, zaminders or prajas became the land owners/land holders with equal status having absolute right of ownership heritable of course subject to lawfully enforced restriction the right of transfer also. 4. the provision of section 54 of the cpc has no way applicable to such land or property belonging to the aforesaid land holders. in modern set up of ours a new concept of estate develops. the state government having identified some considerable large area declares it to be industrial estate, agri-farmery estate, plantation estate, fishery estate and the likes. the state governments through its administrative machinery use to give allotment of land piecewise to the individual or corporate body for promoting and developing industry, agri-farming (including horticulture, seri-culture, pisciculture) forestry and sometime for housing scheme, treating the right of occupation, enjoyment of usufruct, sometime heritable but having no absolute transferable right. in fact the absolute ownership remains with the government and the aforesaid class of estate is not subject to partition but may be distributable being governed by the related rules and regulations and thus section 54 of the cpc is not applicable to such estate. 5. in the present suit a homestead land with building structure thereon are sought to be partitioned among the legal heirs inherited the same from the ancestor and for this purpose the plaintiff brought the title suit bearing no. t.s. 103(p)/1994 before the learned trial court (civil judge, senior division) court no. 2, agartala, west tripura) and the preliminary decree was passed determining the shares to be allotted to the parties to the suit by way of partition. thereafter the plaintiff pre-decree holder applied for drawing up a final decree for identification of demarcated shares allotted to the parties and the learned trail court, as agreed bythe parties (except the defendant no. 5, shri arabinda chakraborty) appointed a survey commissioner to draw up demarcation showing allotment of respective shares pursuant to preliminary decree by preparing hand sketch map so as final decree could be passed to be followed by physical partition by metes and bounds. 6. this being the position, the stage of execution is yet awaited, final decree not yet passed and thus the question of execution of a partition decree does not arise. 7. since the appointment of survey commissioner as referred above was ordered as agreed by the parties, (defendant no. 5 has not challenged it). the term 'estate' has not been defined either in civil procedure code or in general clauses act. the learned counsel for the petitioner referred the court fees act. section 7(v)(d) of the court fees act some reference of the term 'estate' is available. for convenience, the relevant clause is re-produced below:-'(d) where the land forms part of an estate paying revenue to government, but is not a definite share of such estate and is not separately assessed as abovementioned - the market-value of the land: ***** an explanation is appended below of the aforesaid clause which runs as follows:- ' explanation - the word 'estate', as used in this paragraph, means any land subject to the payment of revenue, for which the proprietor or a framer or ryot shall have executed a separate engagement to government, or which, in the absence of such engagement, shall have been separately assessed with revenue.' 8. now, from the aforesaid statutory definition though relating to payment of court fees, it appears that engagement with the government by the estate holder is required to determination the payment of revenue and in absence of such engagement the estate must be separately assessed with revenue. as has already been discussed above, in my considered view, the land or immovable property ratably assessed for revenue is not the estate as contemplated under section 54 of the c.p.c. 9. in view of the legal position and factual matrix discussed above, 1 am of the considered opinion that individual land or immovable property enjoyed separately or jointly subject to payment ofstatutory revenue is not covered by the provision of section 54 of the c.p.c.10. in the result, the petition stands dismissed with no order as to costs.