Dismissed

Kunj Bihari Prasad Gupta v. Kanhaiya Prasad

Chhattisgarh HC17 Oct 2024WP227/941/2017

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed a writ petition challenging an order directing the Nazul Officer to deliver peaceful possession of land. The court held that under Order 20 Rule 18 and Section 54 CPC, delivery of possession is part of the partition process entrusted to the Collector, not an unauthorized act by the executing court.

What did the court decide?

Writ petition dismissed with no costs awarded.

Kunj Bihari Prasad Gupta Vs Kanhaiya Prasad — Execution and Attachment | Chhattisgarh HC (2024)

¶1

¶2

(WP227 No. 941 of 2017)

¶3

2024:CGHC:41253

¶4

NAFR

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 941 of 2017

¶6

1 - Kunj Bihari Prasad Gupta Son Of Jagan Ram Gupta, Aged About 49 Years R/o Sadar Road, Jaistambh Chowk, Ambikapur, District Surguja, Chhattisgarh

¶7

---- Petitioner

¶8

versus

¶9

1 - Kanhaiya Prasad S/o Jaganram Aged About 25 Years R/o Mahamaya Road, Ring Road Chowk, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh

¶10

2 – Jaganram died

¶11

2 (a) - Mohan Prasad Gupta, S/o Jagan Ram Gupta, R/o Bauripara, Ambikapur, District Surguja, Chhattisgarh Died Legal representative of respondent no. 2(a)- Mohan Prasad Gupta S/o Jagan Ram Gupta:-

¶12

a) Smt. Meena Devi W/o late Mohan Gupta, aged about 68 years,

¶13

b) Rajesh Gupta S/o late Mohan Gupta, aged about 48 years, c) Dinesh Gupta S/o late Mohan Gupta, aged about 46 years, d) Mukesh Gupta S/o Late Mohan Gupta, aged about 43 years, e) Shobha Gupta D/o late Mohan Gupta, aged about 40 years, All are resident of Bauripara, Ambikapur, District – Surguja.

¶14

2 (b) - Brij Bihari Gupta Son Of Jagan Ram Gupta Aged About 46 Years Resident Of Near Mayapur, Police Station Ambikapur, District Surguja, Chhattisgarh.

¶15

2 (c) - Smt. Gangotri Devi, W/o Umashankar Gupta, Aged About 52 Years R/o Pussouli Fakrabad, District Kaimoorganj, Bhambhunwa, Bihar. Died

¶16

Legal representative of respondent No. 2(c)- Smt. Gangotri Gupta wife of late Umashankar Gupta

¶17

a) Smt. Suman Gupta D/o Late Umashankar Gupta, aged about 48 years,

¶18

¶19

(WP227 No. 941 of 2017)

¶20

b) Smt. Sandhya Gupta D/o late Umashankar Gupta, aged about 46 years, c) Smt. Snehalata Gupta D/o late Umashankar Gupta, aged about 44 years, d) Anuradha Gupta D/o late Umashankar Gupta, aged about 40 years,

¶21

e) Jitendra Gupta S/o Late Umashankar Gupta, aged about 42 years,

¶22

f) Vijendra Gupta S/o Late Umashankar Gupta, aged about 35 years,

¶23

All are residence of Fakrabadh, Kasoli Station, District - Kaimur, Bihar.

¶24

3 - Nand Kishore Prasad died

¶25

3 (a) - Smt. Ambika Prasad @ Jagdish Prasad, aged about 42 years, Son of Nandkishore Prasad, Resident Of Jaistambh Chowk, Ambikapur, District Surguja, Chhattisgarh.

¶26

3 (b) - Rajendra Prasad, Son Of Nandkishore Prasad, Aged About 39 Years R/o Jaistambh Chok, Ambikapur, District Surguja,

¶27

3 (c) - Smt. Tara Devi, Wife Of Dilip Prasad Gupta, Aged About 35 Years Daughter Of Nandkishore Prasad, R/o House Near Ram Mandir, Ambikapur, District Surguja, Chhattisgarh.

¶28

4 (a) - Smt. Sahodari died

¶29

4 (b) – Smt. Keshari died

¶30

4 (b) (i) - Jagarnath Gupta Son Of Late Bhola Prasad Gupta, Aged About 48 Years R/o Deviganj Road, Ambikapur, District Surguja, Chhattisgarh.

¶31

4 (b) (ii) - Baijnath Gupta, Son Of Late Bhola Prasad Gupta, Aged About 45 Years R/o Deviganj Road, Ambikapur, District Surguja, Chhattisgarh. Died

¶32

Legal representative of respondent No. 4(b)(ii)

¶33

(a) Smt. Karuna Devi W/o Late Baijnath Gupta, aged about 60 years,

¶34

(b) Khushbu Gupta D/o Late Baijnath Gupta, aged about 35 years,

¶35

Both are residence of Deviganj Road, Ambikapur, District Surguja (C.G.)

¶36

4 (b) (iii) - Murari Prasad Gupta, Son Of Late Bhola Prasad Gupta, Aged About 43 Years R/o Deviganj Road, Ambikapur, District Surguja, Chhattisgarh.

¶37

4 (b) (iv) - Smt. Kranti Devi, W/o Late Ramnath Gupta, Aged About 63 Years R/o Deviganj Road, Ambikapur, District Surguja, Chhattisgarh.

¶38

Legal representative of respondent No.4(b)(iv)

¶39

¶40

(WP227 No. 941 of 2017)

¶41

a) Late Pradeep Gupta S/o Late Ramnath Gupta, Mother of Kranti

¶42

i. Smt. Sushma Gupta W/o Late Pradeep Gupta, aged about 58 years,

¶43

ii. Smt. Deepali @ Goli Gupta D/o Late Pradeep Gupta, aged about 35 years,

¶44

iii. Smt. Sonali @ Rinky Gupta D/o late Pradeep Gupta, aged about 33 years

¶45

iv. Choti Gupta D/o late Pradeep Gupta, aged about 29 years, v. Shiv Prakash @ Sunny Gupta S/o late Pradeep Gupta, aged about 27 years,

¶46

All are residence of Brahmaroad, Sangam Chowk, Ambikapur, District - Surguja (C.G.)

¶47

4 (c) – Smt. Godari died

¶48

(i) Vijay Gupta S/o Late Kesar Prasad Gupta, Aged About 46 Years R/o Namnakala Ring Road, Ambikapur, District Surguja, Chhattisgarh.

¶49

(ii) Ishwar Gupta Son Of Late Keshar Prasad Gupta, Aged About 44 Years R/o Namnakala Ring Road, Ambikapur, District Surguja, Chhattisgarh.

¶50

(iii) Gyan Chand Gupta, Son Of Kesar Prasad Gupta, Aged About 37 Years R/o Namnakala Ring Road, Ambikapur, District Surguja, Chhattisgarh.

¶51

(iv) Marni, D/o Late Kesar Prasad Gupta, Aged About 42 Years R/o Namnakala Ring Road, Ambikapur, District Surguja, Chhattisgarh.

¶52

5 - Amrit Prasad Gupta, Son Of Late Bhagwat, Aged About 40 Years R/o Bramhapara, Ward Jaistambh, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh

¶53

Legal representative of respondent no. 5 -Amrit Prasad Gupta S/o late Bhagwat:-

¶54

(a) Murari Prasad Gupta S/o Late Amrit Prasad Gupta, aged about 61 years, R/o Sattipara, near Joda Talab, Ambikapur, Tehsil Ambikapur, Distt.-Surguja (C.G.)

¶55

(b) Mira @ Tuni D/o late Amrit Prasad Gupta W/o Suresh Kesharwani, aged about 55 years, R/o Jaistambh Chowk, near Gokul Market, Dharmshala Gali, Sarangarh, Distt.- Raigarh (C.G.)

¶56

(c) Renu Gupta D/o Late Amrit Prasad Gupta, W/o Late Gullu Gupta, aged about 46 years, R/o Devan Talab, near Hospital, Brahmaroad, Panchsheel Ambikapur, Tehsil Ambikapur, Distt. - Surguja (C.G.)

¶57

(d) Anita @Jupti Gupta D/o Late Amrit Prasad Gupta W/o Shri Murli Keshri, aged about 41 years, R/o Keshri Glass Center, Sarangarh, Distt.-Raigarh (C.G.)

¶58

¶59

(WP227 No. 941 of 2017)

¶60

6 - State Of Madhya Pradesh Now Chhattisgarh, Through The Collector, Ambikapur, District Surguja, Chhattisgarh.

¶61

---- Respondents

¶62

(Cause-title taken from the Case Information System)

¶63

For Petitioner :- Mr. Rahul Mishra, Advocate For State :- Mr. Rahul Tamaskar, Govt. Advocate For Respondent No.1 :- Mr. Dev Ashish Biswas, Advocate For Respondent No.3 :- Mr. Leekesh Kumar, Advocate on behalf of Ms. Renu Kochar, Advocate For Respondent Nos.4(b)(i)&(iii) :- Ms. Varsha Sharma, Advocate For Respondent Nos.5(a) to 5(d) :- Mr. Amrito Das, Advocate

¶64

SB - Hon'ble Shri Justice Sanjay K. Agrawal Order On Board

¶65

18.10.2024

¶66

1. This writ petition under Article 227 of the Constitution of India has been filed by the petitioner herein feeling aggrieved and dissatisfied by the impugned order dated 05.12.2017 (Annexure P/1), passed by the Executing Court/Court of I Civil Judge Class-I, Ambikapur in Execution Case No. 4/79, whereby, it has been directed to deliver peaceful possession of the disputed land to the decree holders.

¶67

2. The aforesaid challenge has been made on the following factual backgrounds :-

¶68

¶69

(WP227 No. 941 of 2017)

¶70

2.1. One Tulsisao had three sons namely, Bhagwat Sao, Mathura Sao and Chatur Sao. In the year 1930, Tulsisao died and the land owned by him was inherited by his aforesaid three sons. Later on, all three of his sons namely, Bhagwat Sao, Mathura Sao and Chatur Sao got separated from each other and partitioned their land. The following genealogical tree would demonstrate relationship among the parties :-

¶71

Tulsisao (died 1930) Bhagwatsao Mathurasao Chatursao (Defendant No.1)(dead)

¶72

Jaganram Nand Kishore Amrit Prasad (Defendant No.2) (Plaintiff) (Defendant No.3) Kanhaiya Mohan Kunj Munj (Defendant No.4)

¶73

2.2 Subsequently, Bhagwatsao executed a sale deed dated 10.05.1972, in favour of Kanhaiya Prasad son of Jaganram, against which Nandkishore Prasad, son of Bhagwat Sao filed a civil suit on 05.07.1972, before the jurisdictional Civil Court for partition of the suit land, which was ultimately dismissed in the second round by the trial Court on 25.04.1979. Thereafter, Nandkishore filed a civil Appeal bearing No.2A/1989, before the District Judge, Ambikapur/first appellate Court and the same was

¶74

¶75

(WP227 No. 941 of 2017)

¶76

allowed vide order dated 19.03.1991 (Annexure P/2) by passing the following judgment and decree :

¶77

“ (a) that the sale of Kh. Nos. 165 and 186 (2.80 acres) executed by Bhagwat Sao in favour of Respondant No. 4 (dated 10-05-72) is not binding on Appellant.

¶78

(b) Kh.Nos. 15/1, 19/1, 165 and 186 (all measuring 3.85 acres) situated at Shrigarh be partitioned in to three shares; and one-one share be allotted to Appellant, (Nand Kishor), Respondant No. 2 (Jaganram) and Respondant No. 3 (Amrit Prasad), This partition shall be done by Collector Surguja through his subordinate, officer.

¶79

(c) House of Jaistambh, presently possessed by Appellant, Respondant 2 and his sons and Respondant No. 3 (having 5 rooms and a court yard) be partitioned into three shares. Each one of the three i.e. Appellant, Respondant No. 2 and 3 shall get one share.

¶80

(d) Respondant No. 4 and his brothers will take their share from the share of their father i.e. Respondant No. 2.

¶81

(e) The appellant shall get the cost of both the courts from the Respondents 2 to 4. Advocates fee as per schedule if certified be added. ”

¶82

2.3 Questioning the aforesaid judgment and decree passed by the first appellate Court, Jaganram (now dead) and his son Kanhaiya Prasad preferred a second appeal No.255/1991 before this Court, which was also dismissed

¶83

¶84

(WP227 No. 941 of 2017)

¶85

by this Court vide order dated 19.10.2011, affirming the judgment and decree of the first appellate Court. In the meanwhile, the decree was sent to the Collector for execution in accordance with Order 20 Rule 18 read with Section 54 of the Code of Civil Procedure and accordingly, status report for partition was submitted by the Nazul Officer and names of all the parties were duly recorded in the revenue records and vide the impugned order dated 05.12.2017 (Annexure P/1), the Executing Court directed the Nazul Officer to deliver possession in accordance with the partition so made as per decree dated 19.03.1991, which is sought to be challenged by way of this writ petition.

¶86

3. Mr. Rahul Mishra, learned counsel for the petitioner/judgment debtor would submit that on 19.03.1991, only decree for partition was passed by the first Appellate Court, whereas the learned Executing Court has passed the order for delivery of possession in compliance with decree dated 19.03.1991. As such, the Executing Court has gone beyond the terms of the decree, which is absolutely without jurisdiction and authority of law. In this regard, he has relied upon the decision of the

¶87

¶88

(WP227 No. 941 of 2017)

¶89

Supreme Court in the matter of Deepa Bhargava & Anr. v. Mahesh Bhargava & Ors.1 to buttress his submission.

¶90

4. Mr. Leekesh Kumar, learned counsel appearing for decree holder/respondent No.3 would submit that the preliminary decree has been passed by the first Appellate Court vide order dated 19.03.1991, which was to be executed in accordance with Order 20 Rule 18 read with Section 54 of the CPC and the same has been done by sending the case to the Nazul Officer. Thereafter, the revenue records have been corrected in accordance with the partition made by the Nazul Officer, therefore, the Executing Court has rightly directed for delivery of possession of subject land as per partition so made by the Nazul Officer, which is strictly in accordance with law. In this regard, they have relied upon the decision of the Supreme Court in the matter of Shub Karan Bubna Alias

¶91

¶92

Shub Karan Prasad Bubna v. Sita Saran Bubna & Ors .

¶93

5. Mr. Amrito Das, Advocate appearing for respondent Nos.5(a) to 5(d) would support the decree holder.

¶94

6. Mr. Dev Ashish Biswas, learned counsel appearing for respondent No.1/judgment debtor would support the petitioner.

¶95

1 (2009) 2 SCC 294

¶96

2 (2009) 9 SCC 689

¶97

¶98

(WP227 No. 941 of 2017)

¶99

7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the materials available on record with utmost circumspection.

¶100

8. In order to consider the dispute so raised in the instant writ petition, it would be appropriate to notice Rule 18 of Order XX the Code of Civil Procedure, which reads as under :-

¶101

18. Decree in suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-

¶102

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

¶103

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required.”

¶104

Section 54 of the Code reads as under :-

¶105

“ 54. Partition of estate or separation of share. — Where the decree is for the partition of an undivided

¶106

¶107

(WP227 No. 941 of 2017)

¶108

estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates. ”

¶109

9. A careful perusal of the aforesaid provisions make it clear that the rule does not contemplate passing of a final decree. All that is required of a civil Court in a case for partition of an undivided estate assessed to the payment of land revenue to the Government, or for the separate possession of a share of such an estate, is to only pass a preliminary decree and declare the rights of the several parties who are interested in the property and nothing more and give direction for such partition or separation to be made by the Collector or any gazetted officer subordinate to the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of Section 54 of the Code. Thereafter, the execution has to be effected by the Collector. The reason is that the revenue authorities are more conversant and better qualified to deal with such matters than the Civil Court and interest of the Government with regard to the revenue assessed on the assets would be better safeguarded by the Collector

¶110

¶111

(WP227 No. 941 of 2017)

¶112

executing the decree than by the Court. The partition contemplated by Section 54 is not confined to mere division of lands but includes also the delivery of the shares of the respective allottees. Thus, the Collector or his sub-ordinate would be completely carrying out the partition.

¶113

10. The question involved in this writ petition also came up for consideration before the Supreme Court in the matter of Shub Karan Bubna (supra), in which their Lordships of Supreme Court have defined the term ‘partition’ in para 5 & 6 and further held in para 7 as under :-

¶114

“7. In a suit for partition or separation of a share, the prayer is not only for declaration of the plaintiff’s share in the suit properties, but also division of his share by metes and bounds. This involves three issues :

¶115

(i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relied of division and separate possession; and

¶116

(iii) how and in what manner, the property/properties should be divided by metes and bounds?

¶117

In a suit for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as "decree" under Order 20 Rule 18(1) and termed as "preliminary decree" under Order 20 Rule 18(2) of the Code.

¶118

¶119

(WP227 No. 941 of 2017)

¶120

The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations /alternatives of division is referred to the Collector under Rule 18(1) and is the subjectmatter of the final decree under Rule 18(2).”

¶121

Thereafter, on considering Rule 18 of Order 20 read with Section 54 of the CPC, their Lordships have further held principles regarding partition in para 18 as under:-

¶122

“18. The following principles emerge from the above discussion regarding partition suits:

¶123

18.1. In regard to estates assessed to payment of revenue to the Government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of the Code. Such entrustment to the Collector under law was for two reasons. First is that the Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of the Government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible.) Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.

¶124

18.2. In regard to immovable properties (other than agricultural lands paying land revenue),

¶125

¶126

(WP227 No. 941 of 2017)

¶127

that is, buildings, plots, etc. or movable properties:

¶128

(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.

¶129

(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an engineer, draughtsman, architect, or lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.

¶130

The function of making a partition or separation according to the rights declared by the preliminary decree (in regard to nonagricultural and immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.

¶131

18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of

¶132

¶133

(WP227 No. 941 of 2017)

¶134

disposing of the suit. The suit continues to be pending until partition , that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion. ”

¶135

11. As such, the argument that the decree for partition does not include the order for delivery of possession of partitioned land cannot be accepted and is thus rejected. The judgments cited by learned counsel for the petitioner in this regard are clearly distinguishable under the facts and circumstances of the present case and, as such, this writ petition filed under Article 227 of the Constitution of India is liable to be and is hereby dismissed. No cost(s).

¶136

Sd/- (Sanjay K. Agrawal) Judge

¶137

@d!t!

Kunj Bihari Prasad Gupta v. Kanhaiya Prasad

Case brief

What is this about?

What did the court decide?

Kunj Bihari Prasad Gupta v. Kanhaiya Prasad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

D. R. Yadav Vs State Of Chhattisgarh

Smt. Hemlata Chandrakar Vs State Of Chhattisgarh

Dr. Binda Sharma Vs State Of Chhattisgarh

Ashok Kumar Verma Vs State Of Chhattisgarh

Khileshwar Netam Vs Ashok Kumar Sharma

Ku. Madhvi Sahu Vs State of Chhattisgarh