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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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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