SANGAR GAGU DHULA Vs. SANGAR ABHARAM VELA

JUDGEMENT

(1.) The petitioner is the first defendant opponents Nos. 3 and 4 are defendants Nos. 2 and 3 and opponents Nos. I and 2 are plaintiffs in Civil Suit No. 37 of 1960 on the file of the Court of the Civil Judge Junior Division Mandvi. The suit is for partition and separate possession of the one-third share of the plaintiffs in the suit properties which included certain agricultural lands assessed to payment of land revenue. A preliminary decree (Ex. 43) was passed in this suit on September 15 1962 inter alia ordering and declaring that the plaintiffs on the one hand and defendants Nos. 1 and 2 on the other had one-half share each in certain suit properties and that the same set of litigants had one-third share each in certain suit agricultural lands assessed to payment of land revenue. The preliminary decree inter alia directed that the case papers be sent to the Collector for partition of the aforesaid agricultural lands in view of sec. 54 of the Code of Civil Procedure. It appears that there was a first appeal and then a second appeal against the aforesaid preliminary decree and the said appeals failed. Ultimately a final decree (Ex. 56) came to be passed on April 29 1968 and by the said final decree it was again directed that so far as the aforesaid agricultural lands were concerned a copy each of the preliminary decree and final decree together with a copy of the judgment of the Court be sent to the collector for partition by metes and bounds of the said lands and if such Partition was not possible for adjustment of the shares of the parties in accordance with certain directions given in the judgment.

(2.) On June 11 1968 the case papers were sent to the Collector for partition of the aforesaid agricultural lands in accordance with the aforesaid directions. On October 8 1969 the Collector made a reported (Ex. 58) to the trial Court stating that it was not possible to partition the agricultural lands in question and to award separate possession of portions thereof to the parties entitled to the same in view of the fact that one of the agricultural lands was in actual po session of a third party who had become entitled to purchase the same on payment of six times the assessment upon the enactment of the Personal Inams Abolition Act and in the case of other lands if the same were partitioned it would result in fragments in contravention of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. The report appears to have been placed before the trial Court which passed an order (Ex. 68) on February 8 1971 referring to the directions given in its judgment delivered at the stage of the passing of the final decree and directing that the case papers be sent back to the Collector with a suggestion that the lands in question might be partitioned by adjustment of shares as par the said directions. It might be stated here that at that stage it was submitted on behalf of the plaintiffs before the trial Court that instead of sending the case papers back to the Collector appropriate orders might be passed in respect of the properties in question under the Partition Act. The trial Court was however of the view that the question of initiating proceedings under the said Act did not arise at that juncture and the case papers were required to be sent back to the Collector drawing his attention to the alternative course of action suggested in the judgment given at the time of passing the final decree. Pursuant to the aforesaid order the papers were sent back to the Collector on February 17 1971 On September 18 1973 the Collector again made a report (Ex. 69) to the trial Court stating that for the reasons already indicated in his previous communication it was not possible to partition the suit agricultural lands by metes and bounds.

(3.) Consequent upon the receipt of the report (Ex. 69) the plaintiffs and the third defendant made a joint application (Ex. 71) on December 31 1973 requesting that in view of the report of the Collector the agricultural lands in question might be sold in accordance with the provisions of the Partition Act to the highest bidder amongst the parties to the suit. The petitioner in his reply (Ex. 91) objected to the sale of properties in question substantially on the ground that a final decree having been passed it was not competent to the plaintiffs to approach the Court for sale of the suit agricultural lands except by way of execution application and that only in such proceeding action might be initiated for partition in accordance with law. The trial Court however rejected the objection of the petitioner on the ground that at the stage when the matter was referred to the Collector for partition the petitioner was present and he was heard and that he had not contended then that the Court would have no jurisdiction to deal with a situation of the type which has arisen in the present case on account of the Collectors inability to partition the lands. At such a late stage therefore such an objection on behalf of the petitioner could not be entertained. It is this order which is impugned in the present petition.