DHANSUKHBHAI FAKIRBHAI PATEL Vs. FAKIRBHAI DAYABHAI PATEL

JUDGEMENT

(1.) Rule. Rule made returnable in both the appeals by consent.

(2.) Both these appeals arise out of common Judgment passed by the District court, Dadra and Nagar Haveli at Silvasa and therefore, both the appeals are taken up for hearing and are being heard and disposed of by this common Judgment. The District Judge, Silvasa by his common order passed in Misc. Civil Appeal no. 1 of 2001 and Misc. Civil Appeal No. 2 of 2001 allowed the appeals and set aside the judgment and order passed by the Civil Court in Execution Proceeding (Misc. Application n. o. 4 of 1993) and remanded the matter to the trial Court for making necessary enquiry under order 20, Rule 18 of the Civil Procedure Code, as regards the quantum of mesne profits. The impugned Order regarding remand of the decree to the Mamlatdar was set aside.

(3.) The facts involved in the dispute, in nut shell, are thus - the original Defendant no. 1 Fakirbhai has three sons, namely, plaintiff Dhansukhbhai, defendant no. 2 Ashokbhai and defendant no. 3 nileshbhai. The eldest son-plaintiff dhansukhbhai filed Suit being R. C. S. No. 10 of 1984 in respect of properties shown at schedule "a" and Schedule "b". He claimed injunction as regards the properties shown in schedule "a" alleging his lawful possession over the same. He claimed partition as regards properties shown in Schedule "b", they are lands situated at Village Athola, consisting of six small fragments. The suit came to be decreed on 13.12.1988. The Civil Court declared that the plaintiff-Dhansukhbhai had 1/ 4th share in the properties shown in Schedule "b" and he is entitled to receive separate share by way of partition. The decree was sent for effecting partition under Section 54 of Civil Procedure code. The Mamlatdar proposed partition and made separation of Sharers. The learned Civil judge appointed PW-Parmar as Court commissioner to carry out inquiry regarding mesne profits. The learned Trial Court came to the conclusion that the Mamlatdar did not properly set out shares of the parties. However, the Civil Judge accepted the report of the Court commissioner and held that the Decree Holder was entitled to recover amount of Rs. 40,275/- towards mesne profits along with future mesne profits from the year 1995 onwards till he was inducted into the possession. The Trial Court further directed that the decree shall again be sent to the Mamlatdar for effecting the partition as per his direction. The Order passed by the Civil Judge directing remand of the proceeding to mamlatdar for effecting fresh partition and regarding quantum of the mesne profits was subject of the challenge in the appeal before the lower appellate court. After hearing both the sides the learned District Judge came to the conclusion that once a decree was transferred to the Collector under Section 54 of the Civil Procedure Code, the Civil Court will not have any jurisdiction to decide as to whether the shares are properly demarcated by revenue Authority. The decree for mesne profits could be executed by making inquiry , as regards to its quantum. The provisions of section 54 and Order 20, Rule 18 of C. P. C. , according to the learned District Judge, would be read together. The District Judge sought to put reliance on the ruling of this Court in the case of Kisan Bhikaji Dalvi through LRs. Mohan Kisan Dalvi and Ors. Vs. Krishnabhai Maruti Dalvi reported in 2000 (4) mh. L. J. 485 : [2000 (2) ALL MR 508] holding that the job of the civil court comes to an end by declaration of the shares in the partition. When there is a declaration of share in the partition suit with respect to lands, assessable to land revenue, the job of the Civil Court comes to an end by making such a declaration and all further proceedings regarding effecting partition, may be by first preparing a final decree and then by executing the same, is to be carried out by the Collector, as per the provisions of Section 54 of C. P. C. In other words, it was held that after the decree was passed, the Civil Court had become functus officio with regard to the said proceeding and with this observation recorded the findings that the appeal deserved to be allowed and order passed by trial court to send the proceeding for fresh partition to Mamlatdar was set aside on the ground that the Civil Court had no jurisdiction to look into the matter once the decree came to be passed. Present appeals are against the said order.