NARENDRA PRASAD Vs. SUKHRANI

JUDGEMENT

(1.) IN a suit filed by Bhagwan Singh, a minor, Smt. Gulabrani and Smt. Dulari, the Civil Court passed a preliminary decree directing that three fields in question, that is, Khasra No. 520, 530 and 569/1 are liable to be partitioned. The Court found that the plaintiffs have 7 Ana 8 Pai share; the defendant No. 1 to 3 have 6 Ana 8 Pai share; and the defendant No. 10 and 11 have 1 Ana 8 Pal Share in the fields. If was held that defendants No. 4 and 5, that is, Nathu and Mulchand were tenants of defendant No.1 to 3 (Pandit Chhotelal, Bhagwandas @ Chunnilal and Babulal), in Khasra No. 520/1 and 530/1 (total area 5.38 acress) which was forming part of Khasra number 520 and 530. The said order was confirmed in appeal. It appears that in accordance with the provisions of Rule 18 of Order 20 read with section 54 of CPC, the Civil Court referred the matter to the Revenue Court. The Collector took up the proceedings and passed an order of partition and thereafter sent back the papers to the Civil Court. After the Collector partitioned the property, a final decree for partition was passed by the Civil Court on 25.1.60. In accordance with its decision, Khasra No. 520/1 was allotted to Shivprasad and Kashiprasad in lieu of their 1 Ana 8 Pai share. Afte the final decree was passed, the plaintiff Shivprasad, since deceased and represented by his legal representatives, moved an application for execution of the decree. The said application was dismissed by the Executing Court on the ground that the said Court was not competent to make any order for delivery of possession in execution proceedings. The lower appellate Court allowed the appeal holding that the Executing Court was competent to deliver possession and accordingly directed the said Court to issue a warrant of possession. The matter came up before this Court in Misc. Second Appeal No. 109/1972. The matter was heard and decided by a Division Bench of this Court (reported in 1973 JLJ 1008). This Court held that although a final decree was actually passed and even though it was not challenged by Bhagwansingh, etc., that would not in any way preclude the said appellant from raising the present objection that the Civil Court had no jurisdiction to pass the final decree and execute the same after the matter was referred to the Collector under Order 20 Rule 18 read with section 54 of the Code.

(2.) IT appears that after hearing the parties and after conducting number of the enquiries, the Collector by his impugned order dated 12.3.90 rejected the application and the matter referred by the Civil Court for effecting partition, holding that the parties can make an application under section 178 of M.P. Land Revenue Code for partition.

(3.) SUBMISSION of learned counsel for petitioners is that the Revenue Court was required to act in accordance with the provisions of Rule 18 of Order 20 read with section 54 and it could not direct the parties to move an application under section 178 of M.P. Land Revenue Code. It was also submitted that the observations made by the Civil Court in its judgment dated 24.1.55 were binding upon the revenue Courts. According to learned counsel, the rejection of the petition is patently illegal.