Whether a tribal can sale his land to tribal without permission of collector?

 While the previous approval of the State Government is not

contemplated if the transfer is between tribal and tribal or if the

transfer is between tribal and non-tribal and is by lease, or mortgage for period not exceeding five years, the previous sanction of the Collector is a must.

In the teeth of the provisions of Section 36(2) of the Code, which

do not make any distinction based on the status of the purchaser or transferee, it is not possible to accept the submission that if the transfer is between tribal and tribal, the previous sanction of the Collector shall not be necessary. Such submission militates against the plain language of the statutory provisions and if accepted will be destructive of the legislative intent which is to protect the tribals from exploitation.

The fact that the transferee is also a tribal does not necessarily

eliminate the possibility that the transferer tribal may be exploited or may be at the receiving end of the bargain. The Legislature has in its wisdom not exempted tribal to tribal transfer from the requirement of previous sanction from the Collector. Presumably, the Legislature was conscious of the fact that a tribal is vulnerable and could possibly be exploited or induced to part with the agricultural land even by a fellow tribal who is in a more dominating position in life. It is precisely to prevent such exploitation that the previous sanction of the Collector is statutorily mandated. {para 14}

15. I see no error in the view taken concurrently by the Tahsildar and the Additional Collector. The view is consistent with the legislative mandate.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 1556 OF 2022

Vijay Anandrao Moghe  Vs  The Additional Collector/Sub-Divisional Officer, 

CORAM : ROHIT B. DEO, J.

DATED : 11 th APRIL, 20 22

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Whether Collector must impose ten times penalty for deficit stamp duty?

According to Section 40(1)(b) if the Collector is

of opinion that such instrument is chargeable with duty

and is not duly stamped, he shall require the payment

of the of the proper duty or the amount required to

make up the same, together with a penalty of the five

rupees; or, if he thinks fit, an amount not exceeding

ten times the amount of the proper duty or of the

deficient portion thereof. The statutory scheme of

Section 40(1)(b) as noticed above indicates that when

the Collector is satisfied that instrument is not duly

stamped, he shall require the payment of proper duty

together with a penalty of the five rupees. The

relevant part of Section 40(1)(b) which falls for

consideration in these appeals is: “or, if he thinks

fit, an amount not exceeding ten times the amount of

the proper duty or deficient portion thereof.”{Para 16 }

17. The amount of penalty thus can be an amount not

exceeding ten times. The expression “an amount not

exceeding ten times” is preceded by expression “if he

thinks fit”. The statutory scheme, thus, vest the

discretion to the Collector to impose the penalty

amount not exceeding ten times. Whenever statute

transfers discretion to an authority the discretion is

to be exercised in furtherance of objects of the

enactment. The discretion is to be exercised not on

whims or fancies rather the discretion is to be

exercised on rational basis in a fair manner. The

amount of penalty not exceeding ten times is not an

amount to be imposed as a matter of force. Neither

imposition of penalty of ten times under Section 40(1)

(b) is automatic nor can be mechanically imposed. 

21. The purpose of penalty generally is a deterrence

and not retribution. When a discretion is given to a

public authority, such public authority should exercise

such discretion reasonably and not in oppressive

manner. The responsibility to exercise the discretion

in reasonable manner lies more in cases where

discretion vested by the statute is unfettered.

Imposition of the extreme penalty i.e. ten times of the

duty or deficient portion thereof cannot be based on

the mere factum of evasion of duty. The reason such as

fraud or deceit in order to deprive the Revenue or

undue enrichment are relevant factors to arrive at a

decision as to what should be the extent of penalty

under Section 40(1)(b).

“6………The Collector has the power to

require the person concerned to pay the proper

duty together with a penalty amount which the

Collector has to fix in consideration of all

aspects involved. The restriction imposed on

the Collector in imposing the penalty amount is

that under no circumstances the penalty amount

shall go beyond ten times the duty or the

deficient portion thereof. That is the farthest

limit which meant only in very extreme

situations the penalty need be imposed up to

that limit. It is unnecessary for us to say

that the Collector is not required by law to

impose the maximum rate of penalty as a matter

of course whenever an impounded document is

sent to him. He has to take into account

various aspects including the financial

position of the person concerned.”

23. This Court in the above case categorically held

that it is only in the very extreme situation that

penalty needs to be imposed to the extent of ten times.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3195-319 6 OF 2020

TRUSTEES OF H.C. DHANDA TRUST Vs  STATE OF MADHYA PRADESH 

Author: ASHOK BHUSHAN,J.

Dated: SEPTEMBER 17, 2020.

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Whether application for sending precept to the collector for the partition of agricultural land is maintainable after 45 years of the passing of decree?

The present decree for partition of agricultural lands paying revenue to the Government, though was passed on 9-1-1947 and the said decree was affirmed in appeal on 2-1-1948 and it was directed in the said decree that the precept will be issued to the Collector on an application by the plaintiff and such application having been made on 15-2-1992 i.e. almost after 45 years of the passing of the decree, such an application for issuance of the precept to the Collector for partition of the lands, is neither barred by any period of limitation nor prohibited under any law. There being no law prohibiting the partition of the property assessed to payment of land revenue after a fixed period of limitation, the applicant could not have been deprived of his rights in having the partition decree dated 9-1-1947 effected through the Collector. Merely because the application for issuance of the precept has been made almost after 45 years of the passing of the decree for partition of the agricultural lands assessed to the payment of land revenue, such an application could not have been dismissed by Court below by applying the principle that law always helps those persons' who are vigilant about their rights and not those who have slept over their rights. No such principle of equity can be made applicable when law of Limitation does not bar making of such an application beyond any period. The Law of Limitation has to be read, as provided in the statute, and it does not spring from the common law of the country or principle of equity. As already observed above, the application filed by the applicant for issuance of precept to the Collector for effecting partition of the decree passed on 9-1-1947 relating to agricultural lands assessed to land revenue, being not an application for execution of a decree, was neither covered under Section 48 of the C.P.C. as was existing prior to 1-1-1964 nor Art. 182 of the Limitation Act, 1908 or any other article of the Limitation Act, 1908, or any of the provisions contained in the Limitation Act, 1963 and, therefore, the Court below committed serious error of law and jurisdiction in dismissing the application filed by the applicant on 15-2-1992 for issuance of the precept to the concerned Collector for effecting partition of the agricultural lands assessed to land revenue, mentioned in Schedule 'A' of the said decree.

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Civil Revn. Appln. No. 1214 of 1992

Decided On: 17.04.1995

Ramrathibai Vs. Surajpal and Ors.

Hon'ble Judges/Coram:

R.M. Lodha, J.

Citations: AIR 1995 Bom 445, 1995 (4) BomCR 665, 1996 (2) MhLj 40

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How to prove that collector has granted deemed permission for non agricultural use of land?

Whosoever is desirous of getting conversion of agricultural land to use it for non-agricultural purpose, has to apply to the Collector for permission in accordance with the form prescribed. In terms of clause (a) of sub-section (2) of Section 44 of the Code, the Collector on receipt of such application has to give an acknowledgment within a period of seven days. In terms of sub-section (3), if the Collector fails to inform the applicant to his decision within ninety days from the date of acknowledgment of the application, the permission applied for is deemed to be have been granted subject to any condition prescribed in the rules made by the State Government in respect of such use.

7. We find that the production of acknowledgment granted in terms of clause (a) of sub-section (2) of Section 44 of the Code about receipt of application, is very crucial. The deeming fiction is conditional and it would not operate unless the acknowledgment evidencing the date of receipt of the application tendered, is produced or otherwise such date is proved. The burden is upon the person who wanted to claim benefit of it, to prove that the condition is satisfied. In the absence of such acknowledgment being produced on record to the satisfaction of the Court, it is not possible to record the finding that the application was not decided within a period of ninety days from the date of it's receipt. The petitioner has failed to discharge burden of establishing that the application was given on 01/03/2006. The condition is not satisfied and, therefore, it cannot be held that either the permission is deemed to have been granted or that the rejection of the application was not within a period of ninety days.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1422 of 2007

Decided On: 29.03.2019

 Rajendra  Vs.State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande and S.M. Modak, JJ.

Citation : 2019 (5)MhLJ 348

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Whether collector can partition any property if there is dispute as to title to property?

Once a dispute was raised to the title, the Deputy Collector had to lay off his hands to the partition and could not order the partition on the specious premise that the area purchased by the respondent No. 1 from the larger property stood identified on the basis of the plans annexed to the Deed. 

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 303 of 2016

Decided On: 11.01.2018

Ramkrishna Janardan Bhat Vs.  Gold Resorts and Hotels Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: (2018) 3 MHLJ 706

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Whether court should grant injunction if proceeding is pending before collector for partition?

 Before this Court, learned counsel for the appellants submits that even as per the findings of the learned lower appellate Court, the appellants, i.e. defendants in the suit, were found to have constructed a house on the land which was partitioned in the 1980s. However, the suit of the plaintiffs (respondents herein) has been decreed only on the ground that the partition proceedings were still in issue before the appellate authority, i.e. the Collector (SDM) and as such, further construction upon the suit property may create a hindrance in such partition. Learned counsel further submits that the suit could not have been decreed in favour of the respondents-plaintiffs, in view of the fact that they are admittedly co-sharers. A perusal of the judgment of the learned lower appellate Court (learned District Judge, Narnaul), shows that he has not upset the findings of the learned Civil Judge, to the effect that construction is existent on the spot and in fact, he has specifically recorded that even as per the plaintiffs' own admission, construction has been made by the defendantsappellants, as already noticed. All that has been eventually held by that Court, while setting aside the decree of the learned Civil Judge, is that further construction be not made by the appellantsdefendants, till the pendency of the partition proceedings. Such proceedings, as already noticed, are stated to be pending (in appeal) before the Collector, and on specific query, learned counsel for the appellants submits that there is no stay on the order of the Assistant Collector, by which the mode of partition has been determined. In view of the above, even the contention of learned counsel that an injunction cannot lie against a co-sharer, does not hold good, as partition proceedings at least at the first stage, have been finalized as submitted before this Court. Such partition has not been stayed by the appellate revenue authority, as already noticed. Consequently, if in terms of the partition, specific portions of land have been given to respective co-sharers and any of the parties is aggrieved of such mode of partition, obviously their remedy lies before the competent authority, in such partition proceeding. As regards the reasoning given for the injunction granted by the learned lower appellate Court, restraining the appellant from making further construction, during the pendency of partition proceedings, I see no error in that reasoning, it being based on the judgments cited by that Court, in an attempt to try and avoid multiplicity of litigation. 

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 

 RSA No. 6280 of 2015 (O&M) 

 Date of Decision: 26.04.2016

 Ramanand and others  Vs. Dharampal 

CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH 

Citation:AIR 2017(NOC)449 P&H

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Whether mutation entries can be taken without permission of collector?

The request of the petitioner is to register the
mutation and, therefore, he applied to the Deputy Superintendent
of the Land Records, Gondia. The said authority has directed the
petitioner to approach the Collector, Gondia and produce the No
Objection Certificate (NOC) from the said Collector.
The request of the petitioner is simplicitor to mutate
his name in the land records. At this stage, it is difficult to
understand as to how the authorities under the Land Revenue Code
are concerned with the rights of the parties like the petitioner. The
matter of title to the properties stands apart and can be dealt with
and decided by the Competent Courts. In these circumstances, it is
difficult to sustain the directions of the Dy. Superintendent of Land

Records, Gondia. Let this Deputy Superintendent of Land Records,
Gondia consider the request of the petitioner for effecting mutation
in the revenue records in accordance with rules and without
insisting on production of a No Objection Certificate from Collector,
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 1023 of 2012
Indrakumar Harivallabh Mundra
Vs.
The State of Maharashtra and others

CORAM : S.C. DHARMADHIKARI
 & A. P. BHANGALE, JJ.
 DATED : 12TH JUNE, 2012.

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Whether it is necessary to obtain no objection from collector for mutation of transfer of land?

Prayer of petitioner is to set aside the
communication   dated   7th  June,   2011,   sent   by
Taluka Inspector Land Records (TILR), Murtijapur,
Akola, rejecting his request for mutation on the
ground that it is not accompanied by No Objection
Certificate (NOC) of the Collector, Akola.  
3. Shri.   G.   K.   Mundhada,   the   learned
Counsel for the petitioner, relies upon provisions of
Section   149   of   the   Maharashtra   Land   Revenue

Code,   1966,   to   urge   that   the   petitioner   had
purchased a residential Nazul plot bearing No. 1, 2
and   3­6,   Sheet   No.   26(B),   admeasuring   119.7
sq.mtrs. with construction of 74.34 sq.mtrs., vide
registered   Sale   Deed   dated   8th  April,   2004   for
valuable consideration. The document is registered
at   serial   No.   875/2004   and   in   view   of   said
production,   it   was   obligatory   upon   Revenue
authorities   to   take   note   thereof   and   correct
revenue records.   He further relies upon order of
this   Court   dated   12th  June,   2012   to   urge   that
calling   upon   petitioner   to   produce   NOC   from
Collector is already found irrelevant and arbitrary
by this Court.  
 The   petitioner   admittedly     has
purchased the  land by registered document and
hence   his   rights   need   to   be   taken   note   of   in
Revenue Records.   Mere entry in the land record
does   not   confer   any   title   and   cannot   prejudice
contentions   of   any   private   party   in   the   matter.
Demand of NOC by impugned order, therefore, is
unjustified in present facts.  This Court has, while
deciding writ petition No. 1023 of 2012 on 12th
June, 2012, has already found refusal to consider
such application for mutation unjustified.  In view
of   this   position,   we   set   aside   the   impugned
communication   dated   7th  June,   2011.     The
respondent No. 3 shall look into the request made
by petitioner in accordance with law and without
insisting for such NOC within  a period of eight
weeks from today.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No. 375 of 2013
Abdul Vahabkhan Abdul Sattarkhan
Vs.
State of Maharashtra, 
CORAM :  B.P.DHARMADHIKARI &
P.B. VARALE, JJ.
DATED  :  JUNE 27, 2013.

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Whether court can decide that legal heirs of deceased pauper applicant is also pauper without issuing notice to other side or collector?

Adverting to the next point, it is true, as rightly pointed out by the learned counsel for the revision petitioner, that the order does not say that notice was issued in deciding the status of the legal representative in the proceeding, commenced under order 33, to the other side though there is a mention, that the Government did not file any objections. Hence, it is obvious that the procedure followed by the learned Civil Judge is illegal in not issuing notice to the other side who has also a right to contest the proceeding. Hence, the revision petition is partly allowed. The order passed by the learned Civil Judge holding that the legal representative is not a papuer within the meaning of Order 33 C.P.C. is set aside. The learned Civil Judge is now directed to issue notice on the application given by the legal representative for getting the immunity contemplated under Order 33 CPC to the respondents in the appeal as also to the Government and give adequate opportunity to the parties to adduce additional evidence if they so desire. He shall thereafter proceed to dispose of the application given under Order 33 CPC and then proceed to dispose of the appeal in accordance with law.

Karnataka High Court

Saraswatewwa And Anr. vs Shivarudrappa Channappa Kinnala ... on 20 August, 1980

Equivalent citations: AIR 1981 Kant 8, ILR 1981 KAR 225, 1980 (2) KarLJ 373

Bench: G Sabhahit

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Whether collector should always impose maximum penalty in every case on deficit stamp duty?

The last issue which we must take notice of is the levy of penalty. While it is true that sub section (4) of section 47-A empowers the Collector to impose penalty not exceeding four time the proper stamp duty, the same stands attracted in a case where it is found that the market value of the property was not truly set forth. There must therefore necessarily be an intention to evade payment of duty, which entails the levy of penalty. Secondly the words "not exceeding..." confer on the Collector a discretion to levy penalty dependent upon the facts of each individual case. The mere prescription of a maximum does not necessarily mean that in each case a penalty equivalent to four times the proper duty is liable to be paid. In any view of the matter, the imposition of penalty has serious civil consequences and therefore must be preceded by due application of mind and a consideration of all relevant factors including whether there was an intention to evade payment of duty. We find that the Collector has failed to advert to this aspect also while passing the impugned orders. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
The Chief Justice's Court
Case :- SPECIAL APPEAL DEFECTIVE No. - 598 of 2015
 Smt. Vijaya Jain V State Of U.P. And 2 Others

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J. 
Citation:AIR 2016 (NOC)449 ALL
Order Date :- 1.9.2015 

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Whether collector can drop proceeding initiated under Maharashtra restoration of lands to Schedule Tribe Act on the ground that ST person is not interest to take back said land?

The High Court has rested its finding on vesting of the land in Government under Section 5A of the Act mainly on the ground that the Commissioner could not have entertained the revision beyond three years. However, even according to the High Court, the non-tribal transferee is to be divested of his possession and ownership though the land was not liable to be restored to the original tribal transferor. On a proceeding duly initiated under Section 4 of the Act, even if a tribal transferor is not interested to get back his land by refunding the purchase price or for other reasons indicated under Section 5A of the Act, the Collector cannot drop the proceedings, as has been done in the instant case. The Collector has to proceed further and divest the non-tribal transferee of the tribal land and pass a further order vesting the land in the State Government for being distributed to the other deserving tribals. But in the instant case, once it is held that the revision was within time, the High Court has necessarily to see whether land could have been restored to the tribal transferor as held by the revisional authority.

Supreme Court of India

Sandu (D) By Lrs vs Gulab (D) By Lrs. & Ors on 4 September, 2015

Bench: M.Y. Eqbal, Kurian Joseph

        Citation;(2015) 9 SCC 405

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Whether Civil Court can direct Collector to grant temporary leases or permanent leases to lessee of govt land?

As to the second Substantial Question of
Law, I find that grant of temporary or permanent

lease is clearly regulated by the provisions of the
Maharashtra Land Revenue Code and the Maharashtra
Land Revenue (Disposal of Govt. Lands) Rules, 1971.
These provisions are self-contained code by
themselves. Merely because the Revenue Officer did
not decide the applications filed by the
respondent-plaintiff for grant of temporary or
permanent leases, as the case may be, the
respondent-Plaintiff could not have approached the
Civil Court to ask for a direction, since he could
have easily approached the authorities provided
under the provisions of the Maharashtra Land Revenue
Code, or the High Court having extraordinary writ
jurisdiction. The jurisdictions of the Civil Court
cannot be widened to enable it to issue directions
to the Govt. to grant temporary or permanent
leases. That is purely a governmental function
governed by the provisions of the Maharashtra Land
Revenue Code and the Rules thereunder. Civil Court

could not have directed that the Collector should
grant temporary leases or permanent leases to the
respondent-plaintiff even on the ground that others
were granted. Therefore, in my opinion, the Civil
Court could not have issued a direction to grant
permanent or temporary leases, which had already
expired by efflux of time and the period of leases
did not exist at the time when the judgment was
delivered by the Civil Court. That being so,
second Substantial Question of Law will have to be
answered in negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
Second Appeal No. 344 of 1997
With
Second Appeal No. 345 of 1997
With
Second Appeal No. 346 of 1997
[A] Second Appeal No. 344 of 1997 

State of Maharashtra, Vs Bhikulal Mahadeo Agrawal,

CORAM : A.B.CHAUDHARI, J.
Date : 13th March, 2014.
Citation;2015(2) ALLMR282

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Collector is duty bound to act upon precept of partition issued by court

In view of the limited grievance of the petitioner, I am inclined to allow the petition. The respondent No. 1-Collector, Beed, is directed to take necessary steps in furtherance of the precept received by him to effect partition as per the decree passed in Regular Civil Suit No. 44/1992 on 30-6-1995. The respondent No. 1-Collector, Beed, is further directed to take immediate steps as per the precept and hand over the possession of the property to the petitioner to which she is entitled, within a period of six months from today.

BOMBAY HIGH COURT

Sindhu W/o Machindra Jagtap Vs. Collector and Anr.

Court : Mumbai

Reported in : 2007(3)BomCR133; 2007(4)MhLj180

Judge : B.R. Gavai, J.

Decided On : Mar-14-2007

Acts : Code of Civil Procedure (CPC) , 1908 - Sections 54

Citation;2007(4)MHLJ 216 Bom

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Whether it is mandatory for court to send Decree for partition of agricultural land be sent to collector for partition?

GENERAL DIRECTIONS TO ALL THE CIVIL COURTS

By way of general directions, all the civil Courts are directed to remit, to the Collector, within four months from the date of signing the decree under Section 54 of CPC, all the relevant papers for partition of property or a separate possession of undivided estate assessed to the payment of revenue to the Government, without there being any application or request or prayer for the same; so as to follow the mandate of Section 54 of CPC.

Any application seeking direction to send necessary papers to the Collector, should be disposed of within 30 days from the receipt thereof, treating it as an application filed in the disposed of suit, without opening any independent proceeding in this behalf. Such application should be treated as a request to a Judge or Court to send necessary papers to the Collector for effecting partition under Section 54 of CPC. Such application is really nothing but a request to the Judge or Court to discharge his ministerial duty. In view of this, even no notice to any of the parties to the application is necessary as it is not a petition seeking any adjudication of any of the rights of the parties.

Bombay High Court

Annasaheb Rajaram Nagane And Anr. vs Rajaram Maruti Nagane And Ors. on 21 February, 2001

Equivalent citations: AIR 2001 Bom 303, 2001 (3) MhLj 53

V.C. Daga, J.

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Execution of partition decree by collector-when civil court has jurisdiction to control action taken by collector?

 Having heard the learned Counsel for the petitioner, I find that the learned District Judge could not have dismissed the appeal on the ground that the Civil Court becomes functus officio after it sends the decree for partition and cannot in any circumstances consider whether the Collector has effected partition in accordance with the decretal mandate. The reliance by the learned District Judge on the decision in the case of Lachhiram Jasram (supra) is misplaced. In the case before the Nagpur High Court the Applicant had applied under section 54 and Order XX, Rule 18 of the Code of Civil Procedure to the Court for issuing direction to the Collector to the effect that the partition should be effected in a certain manner, in particular, so as to allot as far as possible entire holdings to the share of the plaintiff. This application has been dismissed. On this fact the High Court took the view that the discretion as to the manner in which the partition is to be held lies wholly with the Collector and the Civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with that. The Court observed that in fact the suit terminates so far as the Civil Court is concerned on the passing of the preliminary decree affecting any estate assessed to the payment of revenue to the Crown. These observations were made obviously where anticipatory directions to the Collector were sought to require him to effect partition in a particular manner. This case is not an authority for the proposition that if the Collector has effected partition contrary to the decretal mandate his action is immune from the challenge before a Civil Court. On this question a Division Bench of this Court in Ningappa Balappa and Ors. v. Abashkhan Gouskhan, : AIR1956Bom345 , observed as follows :--

'5. It is true that it has been held in several cases that the Court is not entirely deprived of controlling the action taken by the Collector. But this control is very limited. It is to be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition or refused to execute the decree. See the cases cited at p. 228 of Sir Dinshaw Mulla 's Code of Civil Procedure, 12th Edition.

BOMBAY HIGH COURT

Reported in : AIR2003Bom314; 2003(1)ALLMR1158; 2003(3)BomCR15; 2003(2)MhLj216

Judge : S.A. Bobde, J.

Decided On : Jan-17-2003

Acts : Code of Civil Procedure (CPC) , 1908 - Sections 54

Case Number : Writ Petition No. 3438 of 1987

 Mahadu alias Mahadeo Baji Bhosale Vs Appaji Gunbarao @ Ganpatrao Bhosale since deceased by his heirs Gangabai Appaji Bhosale and Ors.

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Execution of partition decree by collector-when appeal will lay before revenue authority?

Yet in another case in case of " Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others" this Court has reiterated the view taken in the case of " Kishan Bhikaji Dalvi (Since deceased through L.Rs. Mohan Kisan Dalvi and others V/s. Krishnabai Maruti Dalvi ", cited supra. This Court in case of " Madhu Naryan Pawar deceased through 

his Lrs. Balwant Mahadu Pawar & others" cited supra has also taken a view that partition of agricultural lands in execution of decree for partition, order passed under Section 54 partitioning the properties, appeal against such order maintainable before the Additional Commissioner (Revenue).

13. In the facts of this case, it is true that the respondent No. 1 may have grievance that the Collector has not followed the provisions of Section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. However, the proper remedy is to file the appeal. It is rightly contended by the counsel for the petitioner that the revenue authority is more competent authority to decide any grievance about non observance and not following the section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

It is true that the Civil Court can see that, Whether the Collector has followed the decretal mandate or not and to that extent the Civil Court is certainly empowered to do so. However, in the present 

case, the respondent No. 1 did not participate in the proceeding before the Collector, and also did not raised any objection whatsoever and final decree was drawn. Thereafter, the respondent No. 1 filed another Dharkhast No. 50 of 2003. In the facts of this case, the respondent No. 1 should have filed appeal before the competent authority under Section 247 of the Maharashtra Land Revenue Code, if he was aggrieved by the action of the Collector in not properly distributing the shares. Therefore, in my opinion, in the lights of the Judgment in the case of " Paygonda Survgonda Patil & others V/s. Jingonda Surgonda Patil & others " and in case of " Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others " cited supra, it is appropriate for the respondent No. 1 to file appeal and second Dharkhast No. 50 of 2003 was not maintainable, in the given set of facts. Therefore, impugned Judgment and order dated 16th April, 2004 passed by the learned Civil Judge, Senior Division, Sangamner, Dist. Ahmednagar in Special Dharkhast No. 50 of 2003 is quashed and set aside1

Bombay High Court

2] Adarsha Sahakari Doodh Utpadak vs 6] Tarabai W/O Bharat Gopale on 19 October, 2010

Bench: S. S. Shinde

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What is Duty of collector regarding Execution of partition decree?

 The narration of facts extracted hereinabove unequivocally demonstrate that the decree in question was preliminary with respect to the lands assessable to revenue, all further proceedings were required to be taken before the Collector or any Gazetted officer subordinate to him, to whom the powers were delegated by the Collector as per Section 54 read with Order 20, Rule 18 of C. P. C. When matter goes before the Collector, he has to pass final decree by coming to the conclusion, how the land should be partitioned between the parties and then he has to execute the decree actually by putting the parties in possession of the respective portion allotted to them. The civil Court has no say in the matter as to how the land is to be partitioned between the parties, so as to say, for preparing final decree.

Bombay High Court

Annasaheb Rajaram Nagane And Anr. vs Rajaram Maruti Nagane And Ors. on 21 February, 2001

Equivalent citations: AIR 2001 Bom 303, 2001 (3) MhLj 53

Bench: V Daga

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Whether sending partition decree to collector for partition of property is ministerial act not a judicial function?

 The question whether a decree passed under O. 20, R. 18( 1), CPC directing partition by the Collector can be said to be a preliminary decree and whether such an order can be termed as an application in an execution petition and any order under the said provision is barred by time.-- came up for consideration before the Division Bench of this Court for the first time in Narasu v. Narayan Krishnaji, AIR 1959 Mys, 233. Though the main contention in that case was the maintainability of the appeal as it is a ministerial order, the Division Bench had an occasion to thrash out all the controversies including the one which is now canvassed in this revision. That was also a case where after the High Court decree, the decree holders filed some application to the trial Court to take steps to partition the properties in question. The objection raised by the contesting respondents was whether the application in execution was tenable etc. Incidentally it was contended in that case that the application filed amounts to execution petition which is filed after limitation. It is in this context it is held by the Division Bench that the application cannot be considered in law as an execution petition - a decree passed under Rule 18(1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. Sofar as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of R. 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "shall direct such partition or separation to be made by the Collector or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of S. 54." It is further held that "any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under sub-rule (1) of R. 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial function; nor is it required to pass any judicial order. Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application. The Court which passed the decree must be deemed to have become functus officio after passing the decree."

IN THE HIGH COURT OF KARNATAKA

Civil Revision No. 4010/1996

Decided On: 05.02.1997

Appellants: Sanna Palaiah alias Palaiah 
Vs.
Respondent: Soncha Boraiah and another

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Whether objection to partition of joint family property by collector should be taken by independent suit?

The fall out of above discussion is that in cases of contravention of provisions of law or transgression of law or non-enforce-ability of the decree for partition on account of events occurring subsequent to the passing of such decrees or in relation to the similar such grievances, the limited control which can be exercised by the Civil Courts can be only by way of an independent suit. Indeed the Civil Court would be entitled to entertain such grievances only by way of an independent suit. The bar for suit under Section 47 of C.P.C. could be applicable only in cases where the question can be determined by the Court executing the decree. Once it is clear that the Civil Court, is not the Court executing the decree for partition of the estate which is subject to the assessment for payment of revenue to the Government, the bar provided under Section 47 of C.P.C. for an independent suit by the parties to the decree cannot come in the way of the party approaching the Court with such suit regarding the grievance in relation to the execution of the partition decree. Undoubtedly, the scope of such suit will be subject to the other laws which may bar the jurisdiction of the Civil Court to entertain the suit. For example, in cases of the questions to be determined under the said Act, certainly the Civil Courts will have no jurisdiction to entertain any suit in that regard. It will be exclusively for the competent authority under the said Act to decide those issues in view of the provisions of Sections 36-A and 36-B of the said Act read with the decision of the Apex Court in Shavantabai Maruti Kalhatkar (supra).

40. Reverting to the facts of the case in hand, the contention regarding Watap-takta being contrary to the decree and fact of acquisition of the property subsequent to the issuance of decree, having not been considered by the Tahsildar, and the said issues being directly relating to the execution of the decree passed in the suit, certainly can be raised by the aggrieved party by filing a suit and not by way of an application under Section 47 of Code of Civil Procedure. It cannot be disputed that if subsequent to the declaration of the shares in the properties which were subject-matter of the suit for partition, some of properties were acquired by the Government and ignoring the said fact of acquisition of properties, the revenue authorities proceeded to partition the properties, certainly such a partition will be contrary to the decree, inasmuch as that some of the parties may not get the properties according to the declaration of their shares. Such a grievance can certainly be looked into by the Civil Court if brought to the notice by filing a proper suit in that regard. Similar is the case as regards the ground of the violation of the provisions of the said Act.

Bombay High Court

Prakash Nathyaba Bhosale vs Laxman Ganaba Bhosale on 8 August, 2002

Equivalent citations: AIR 2003 Bom 41, 2003 (1) BomCR 218

Bench: R Khandeparkar

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Direction to civil court to sent partition decree to collector for partition of property

By way of general directions, all the civil Courts are directed to remit, to the Collector, within four months from the date of signing the decree under Section 54 of CPC, all the relevant papers for partition of property or a separate possession of undivided estate assessed to the payment of revenue to the Government, without there being any application or request or prayer for the same; so as to follow the mandate of Section 54 of CPC.

Bombay High Court

Annasaheb Rajaram Nagane And Anr. vs Rajaram Maruti 

Nagane And Ors. on 21 February, 2001

Equivalent citations: AIR 2001 Bom 303, 2001 (3) MhLj 53

V.C. Daga, J.

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