Summary
The Supreme Court held that Section 154(1)(e) of the Assam Land and Revenue Regulation, 1886 did not bar a co-owner's civil suit for partition and recovery of his share of a revenue-paying estate where the revenue authority had refused partition because he lacked possession and his co-sharers' consent. Civil courts retain jurisdiction to declare rights and shares, while actual division is left to the Collector under Section 54 and Order XX Rule 18 CPC.
Issues
- Whether Section 154(1)(e) of the Assam Land and Revenue Regulation, 1886 barred a civil suit for partition and recovery of possession of the plaintiff's share, after the revenue authority refused imperfect partition because he was not in actual possession and lacked his co-sharers' consent.
- What role the civil court and the Collector respectively play in partitioning an estate assessed to land revenue under Section 54 and Order XX Rule 18 CPC.
Provisions considered
- Section 154(1)(e), Assam Land and Revenue Regulation, 1886The bar on civil courts entertaining claims to imperfect partition operates only where a claim for imperfect partition is otherwise maintainable before the revenue authorities under Section 97; it does not exclude a co-owner's suit founded on title when that remedy is unavailable. (¶¶ 20, 22, 52, 53, 54, 55, 56)
- Section 97, Assam Land and Revenue Regulation, 1886A recorded proprietor or landholder may claim partition before the revenue authorities only if in actual possession, and imperfect partition needs the consent of co-sharers holding over half the estate; absent these, the co-owner must sue in the civil court on his title. (¶¶ 21, 52)
- Section 100, Assam Land and Revenue Regulation, 1886Where an objection raises a question of title, the Deputy Commissioner must stay his proceedings to allow a civil suit; together with Chapter VI and the executive instructions, this shows that revenue partition proceeds only on consent and disputes of title or possession go to the civil court. (¶¶ 24, 25, 26, 27, 28)
- Section 54, Code of Civil Procedure, 1908A civil court may decree partition of an estate assessed to revenue, but the actual partition or separation of the share must be carried out by the Collector or his gazetted subordinate according to the applicable revenue law. (¶¶ 35, 36, 47)
- Order XX Rule 18, Code of Civil Procedure, 1908For a revenue-paying estate, the decree declares the parties' rights and directs the Collector to effect the partition; the Court explained preliminary, composite and final decrees and held that decrees under sub-rules (1) and (2) are of the same character. (¶¶ 37, 38, 39, 40, 41, 42, 43, 46, 47, 49)
- Section 4, Code of Civil Procedure, 1908The Code does not override inconsistent special or local law, absent a specific provision to the contrary, but applies where there is no conflict; relied on by the respondents. (¶¶ 33, 34)
- Section 9, Code of Civil Procedure, 1908Exclusion of civil court jurisdiction must be express or clearly implied; applying Dhulabhai, adequacy of the alternative remedy is relevant though not decisive where exclusion is express. (¶¶ 29, 30, 31)
Held
- Perfect partition divides a revenue-paying estate into separate estates each separately liable for revenue; imperfect partition divides it into portions that remain jointly liable for the revenue of the entire estate. (¶ 23)
- Under Chapter VI of the Regulation, read with the rules and executive instructions, revenue authorities may partition a revenue-paying estate only where all co-sharers consent; where a co-sharer disputes title or possession, the Deputy Commissioner must stay his hand and leave the question to the competent civil court. (¶¶ 24, 25, 26, 27, 28)
- Exclusion of civil court jurisdiction is not readily inferred and must be expressly stated or clearly implied, and even where excluded civil courts may examine non-compliance with the statute or departures from fundamental principles of judicial procedure. (¶¶ 29, 30, 31)
- Section 54 and Order XX Rule 18(1) CPC let a civil court try a suit for partition of an estate assessed to revenue and declare the parties' rights, but the actual division by metes and bounds, including delivery of shares, is to be made by the Collector, who is bound by the court's declaration; the civil court decides matters beyond the Collector's competence and may send the case back if the decree is disregarded. (¶¶ 36, 38, 47, 51)
- A preliminary decree in a partition suit conclusively declares rights and shares; the final decree flows from and cannot go behind it, and is the executable decree. Decrees under sub-rules (1) and (2) of Order XX Rule 18 have the same character, the difference being only that the Collector, rather than a court-appointed commissioner, effects partition under sub-rule (1). (¶¶ 40, 41, 43, 45, 46, 48, 49, 50)
- The bar in Section 154(1)(e) applies only where a claim to imperfect partition is otherwise maintainable before the revenue authorities under Section 97; a co-owner not in actual possession, or without his co-sharers' consent, has no remedy except a civil suit for partition on the basis of his title. (¶ 52)
- The Regulation does not take away the civil court's jurisdiction to determine the parties' rights and shares in a revenue-paying estate and whether it is liable to partition; the court may declare the shares and leave actual partition to the revenue authorities. The High Court misconstrued the law in holding the suit barred. (¶¶ 28, 53, 54, 55, 56, 57)
Result
Appeal allowed; the High Court's judgment in the second appeal set aside and the first appellate court's decree of 16.05.2014, entitling the appellant to partition and recovery of his share with a precept to the Collector to effect partition, restored; pending applications disposed of.