IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4758 OF 2016
Latabai Subhashrao Dahake,
Jayant Punjaji Takarkhede,
CORAM: R. K. DESHPANDE, J.
DATE : 17th OCTOBER 2016
Citation: 2017(3) ALLMR 49
1] Rule made returnable forthwith. Heard the matter finally by consent of the learned counsels appearing for the parties.
2] The challenge in this petition is to the order dated 15.06.2016 passed below Exh.18 by the trial Court appointing Court Commissioner in the final decree proceedings for partition of the property. The order further directs the Court Commissioner to deliver the possession of the suit property to the judgment debtor and the decree holder respectively.
2] On 22.08.2016, this Court had passed an order as under;
“The reliance is placed upon the decision of the Apex
Court in the case of Shub Karan Bubna @ Shub Karan
Prasad Bub vrs. Sita Saran Bubna and ors, reported in
AIR 2009 SC (Supp) 2863, to urge that the Commissioner,
in case of house property has to be appointed to effect the
partition by metes and bounds. Upon submission of the
report by the Commissioner, the Court has to carry further
the proceedings and hearing the parties upon the report of
the Commissioner. In the present case, the Court has
directly passed an order handing over the possession of
the properties alongwith the order of appointment of Court
Issue notice for final disposal of the matter,
returnable on 17.10.2016.
Service by R.P.A.D in addition to regular mode of
In the meantime, the possession of the petitioner
over the property in dispute shall not be disturbed.”
3] In response to the aforesaid order, the learned counsel Shri A.D.Patil has appeared for the respondent in the matter and raised a preliminary objection that there is a remedy of filing Civil Revision Application under Section 115 of Civil Procedure Code. He further submits that in terms of the decision referred to in the order passed by this Court, it is for the Court Commissioner to carry out the further proceedings by effecting the partition by metes and bounds and by delivering the possession to the respective parties.
4] In so far as the objection regarding maintainability of this writ petition is concerned, obviously the remedy under Section 115 of C.P.C is not available for the reason that if the petition is allowed, the proceedings before the trial Court shall proceed further and it shall not come to an end, as contemplated by proviso below Section 115 of C.P.C. Hence, the preliminary objection is rejected.
5] So far as the merits of the matter are concerned, the decision of the Apex Court cited supra has laid down the guidelines in paragraph 9.2 in regard to the immovable property and the partition. The said portion is reproduced below.
“9.2) In regard to immovable properties (other than
agricultural lands paying land revenue), that is
buildings, plots etc. or movable properties:
(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.
(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.
The function of making a partition or separation
according to the rights declared by the preliminary
decree, (in regard to nonagricultural 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.”
6] Without following the aforesaid guidelines, the trial Court has passed an order directing the Court Commissioner to deliver the possession of the property to the parties concerned upon preparing the report. This is not the method which is contemplated by the aforesaid guidelines laid down by the Apex Court. After submission of the report by the Court Commissioner, the parties are to be given an opportunity to raise objection and thereafter the final decree proceedings can be concluded after hearing the parties. In view of above, the order impugned to the extent it directs the Court Commissioner to deliver the possession to the parties concern cannot be sustained and the same will have to be set aside.
7] In the result, the writ petition is allowed. The order passed by the executing Court below Exh. 18 on 15.06.2016 to the extent directing the Court Commissioner to hand over the possession to the parties concerned is hereby quashed and set aside. The trial Court to keep in mind the procedure prescribed under Order XXVI, Rules 13 and 14 of C.P.C read with the guidelines referred by the Apex Court which are reproduced above.
Rule made absolute in above terms. No order
as to cost.