KHEMCHAND SHANKAR CHOUDHARI Vs. VISHNU HARI PATIL

JUDGEMENT

(1.) The short question involved in these appeals by special leave is whether the transferees during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to the Government which is the subject matter of the suit have locus standi to appear before the Revenue authorities in proceedings under Section 54 of the Civil P. C. and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit in the Civil Court

(2.) Natu had filed a suit in the year 1940 against his nephew Laxman for partition of their joint family property and for separate possession of his half share in it and had obtained a decree for it. Natu and his four sons Shravan Nago, Digambar and Vithal assigned on Aug. 22, 1945 3/8th share in the decree obtained by them in favour of Prem Chand Patil. Prem Chand Patil filed Special Civil Suit No. 67 of 1950 on the file of the Civil Judge, Senior Division, Jalgaon for partition of his 3/8th share in the decree. In that suit, a decree was passed on compromise. The said decree provided that if the sons of Natu paid Rs. 30,000/- on or before Mar. 1, 1958 then the decree-holder would not be entitled to claim any partition and in default he should get possession of the share claimed by him. The sons of Natu failed to pay the amount of Rs. 30,000/- as per decree and the result was that Prem. Chand Patil became entitled to partition and separate possession of his share. Prem. Chand Patil, however, assigned his rights under the decree in favour of Vishnu Hari Patil, respondent No. 1 herein who started execution proceedings. Though the said proceedings were styled as execution proceedings, they were strictly final decree proceedings under Section 54 of the Civil P. C. under which the lands in respect of which assessment was payable to the Government had to be divided by the Collector and the parties had to be put in possession of their respective shares. The total area of the lands to be divided was in the order of 108 acres in which Vishnu Hari Patil had 3/8th share and the remaining land had to be allotted to the share of the sons of Natu.

(3.) It should be stated here that five fields out of the lands which were to be divided by the Collector had been sold to the appellants during the pendency of the partition suit. Four of the said fields bad been sold under private sales and one field in a Court auction and they were in possession of the respective purchasers during the partition proceedings under Section 54 of the Civil P. C. The appellants had acquired title to the said fields from the sons of Natu who were parties to the suit. The said fields were allotted by the Collector in favour of Vishnu Hari Patil as part of 'his 3/8th share without giving any consideration to the claims of the appellants for an equitable partition. The remaining 5/8th share was allotted in favour of the sons of Natu who bad no objection to the partition effected by the Collector. The appellants challenged the validity of the partition proceedings in appeal before the Commissioner, Bombay Division, Bombay. The appeals were dismissed on the ground that the appellants had no locus standi to ask for an equitable allotment under Sec. 54 of the Civil P. C. as their names did not figure in the decree. The appeals filed by the appellants before the State Government against the order of the Commissioner were also dismissed. The appellants, thereafter filed petitions before the High Court of Bombay under Article 226 of the Constitution questioning the correctness of the partition. Those petitions were also dismissed. These appeals are filed against the judgment of the High Court.