Monday, September 21, 2009

Shub Karan Bubna @ Shub Karan Prasad Bubna versus Sita Saran Bubna and others

Partition suit — Order 20 Rule 18(2) — preliminary decree in suit for partition of property or separate possession of a share — preliminary decree for partition drawn to the 1/3rd share of the plaintiffs in the plots — respondent-1 filed an application for drawing up a final decree — petitioner filed an application to drop the final decree proceedings as barred by limitation — application of petitioner dismissed by the High Court — held that the initiation of final decree proceedings does not depend upon the application for final decree for initiation — it is the duty and function of the Court — when a preliminary decree passed in a partition suit, proceedings continue by fixing of dates for further proceedings till a final decree passed — drawing up of a final decree rightly held to be not subject to any period of limitation — appeal dismissed.

Judgement
 IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

         SPECIAL LEAVE PETITION [C] NO.17932 OF 2009



Shub Karan Bubna @ Shub Karan
Prasad Bubna                                               ... Petitioner

Vs.

Sita Saran Bubna & Ors.                             ... Respondents


                                ORDER

R. V. RAVEENDRAN, J.


      The first respondent and his mother filed a suit for partition against

petitioner and two others in the year 1960 in the court of the First

Additional Judge, Muzaffarnagar, for partition and separate possession of

their one-third share in the plaint schedule properties and for rendition of

accounts. The suit was in respect of three non-agricultural plots and some

movables. After contest the suit was decreed on 25.2.1964 directing a

preliminary decree for partition be drawn in regard to the one-third share

of the plaintiffs in the said plots and a final decree be drawn up through

appointment of a Commissioner for actual division of the plots by metes

and bounds.
                                       2


2.       Feeling aggrieved the petitioner (and others) filed an appeal before

the Patna High Court which was dismissed on 29.3.1974. The first

respondent filed an application on 1.5.1987 for drawing up a final decree.

The petitioner filed an application on 15.4.1991 to drop the final decree

proceedings as it was barred by limitation. The said application was

dismissed by the trial court holding that once the rights/shares of the

plaintiff had been finally determined by a preliminary decree, there is no

limitation for an application for affecting the actual partition/division in

accordance with the preliminary decree, as it should be considered to be

an application made in a pending suit. The said order was challenged by

the petitioner in a revision petition which was dismissed by the High

Court order dated 15.1.2009. The petitioner has filed this special leave

petition seeking leave to appeal against the said decision of the High

Court.


3.       The appellant contends that when a preliminary decree is passed in

a partition suit, a right enures to the plaintiff to apply for a final decree for

division of the suit property by metes and bounds; that whenever an

application is made to enforce a right or seeking any relief, such

application is governed by the law of limitation; that an application for
                                     3


drawing up a final decree would be governed by the residuary Article 137

of Limitation Act, 1963 (`Act' for short) which provides a period of

limitation of three years; that as such right to apply accrues on the date of

the preliminary decree, any application filed beyond three years from the

date of preliminary decree (that is 12.3.1964) or at all events beyond three

years from the date when the High Court dismissed the defendant's appeal

(that is 29.3.1974) would be barred by limitation. Reliance was placed by

the petitioner on the decision of this Court in Sital Parshad v. Kishori Lal

[AIR 1967 SC 1236], the decision of the Privy Council in Saiyid Jowad

Hussain v. Gendan Singh [AIR 1926 PC 93] and a decision of the Patna

High Court in Thakur Pandey v. Bundi Ojha [AIR 1981 Patna 27] in

support of his contention.


The issue:


4.    `Partition' is a re-distribution or adjustment of pre-existing rights,

among co-owners/coparceners, resulting in a division of lands or other

properties jointly held by them, into different lots or portions and delivery

thereof to the respective allottees. The effect of such division is that the

joint ownership is terminated and the respective shares vest in them in

severalty. A partition of a property can be only among those having a
                                       4


share or interest in it. A person who does not have a share in such

property cannot obviously be a party to a partition. `Separation of share'

is a species of 'partition'. When all co-owners get separated, it is a

partition. Separation of share/s refers to a division where only one or only

a few among several co-owners/coparceners get separated, and others

continue to be joint or continue to hold the remaining property jointly

without division by metes and bounds. For example, where four brothers

owning a property divide it among themselves by metes and bounds, it is

a partition. But if only one brother wants to get his share separated and

other three brothers continue to remain joint, there is only a separation of

the share of one brother. In a suit for partition or separation of a share,

the prayer is not only for declaration of plaintiff's share in the suit

properties, but also division of his share by metes and bounds. This

involves three issues: (i) whether the person seeking division has a share

or interest in the suit property/properties; (ii) whether he is entitled to the

relief of division and separate possession; and (iii) how and in what

manner, the property/properties should be divided by metes and bounds?



5.    In a suit is 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
                                          5


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. 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 subject matter of the final decree under Rule 18(2).

The question is whether the provisions of Limitation Act are inapplicable

to an application for drawing up a final decree.



6.    Rule 18 of Order 20 of the Code of Civil Procedure (`Code' for

short) deals with decrees in suits for partition or separate possession of a

share therein which is extracted below:

        "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, --

        (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
                                          6


        behalf, in accordance with such declaration and with the provisions
        of section 54;

        (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."


The terms 'preliminary decree' and 'final decree' used in the said rule are

defined in Explanation to section 2(2) of the Code and reads thus :

        "A decree is preliminary when further proceedings have to be taken
        before the suit can be completely disposed of. It is final when such
        adjudication completely disposes of the suit. It may be partly
        preliminary and partly final."


Section 54 of the Code dealing with partition of estate or separation of

share, relevant for purposes of Rule 18(1) reads thus:

       "Where the decree is for the partition of an undivided estate assessed
       to the payment of revenue of 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 sub-ordinate 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."


Rule 13 of Order 26 of the Code dealing with Commissions to make

partition of immovable property, relevant for purposes of Rule 18(2)

reads thus :
                                        7


        "Where a preliminary decree for partition has been passed, the Court
        may, in any case not provided for by section 54, issue a commission
        to such person as it thinks fit to make the partition or separation
        according to the rights as declared in such decree."


7.    We may now turn to the provisions of the Limitation Act, 1963.

Section 3 of the Act provides that subject to sections 4 to 24, every suit

instituted, appeal preferred and application made after the prescribed

period shall be dismissed. The term 'period of limitation' is defined as the

period of limitation prescribed for any suit, appeal or application by the

Schedule to the Act (vide clause (j) of section 2 of the Act). The term

"prescribed period" is defined as the period of limitation computed in

accordance with the provisions of the said Act. The Third Division of the

Schedule to the said Act prescribes the periods of limitation for

Applications. The Schedule does not contain any Article prescribing the

limitation for an application for drawing up of a final decree. Article 136

prescribes the limitation for execution of any decree or order of civil

court as 12 years when the decree or order becomes enforceable. Article

137 provides that for any other application for which no period of

limitation is provided elsewhere in that division, the period of limitation

is three years which would begin to run from the time when the right to

apply accrues. It is thus clear that every application which seeks to
                                    8


enforce a right or seeks a remedy or relief on the basis of any cause of

action in a civil court, unless otherwise provided, will be subject to the

law of limitation. But where an application does not invoke the

jurisdiction of the court to grant any fresh relief based on a new cause of

action, but merely reminds or requests the court to do its duty by

completing the remaining part of the pending suit, there is no question of

any limitation. Such an application in a suit which is already pending,

which contains no fresh or new prayer for relief is not one to which

Limitation Act, 1963 would apply. These principles are evident from the

provisions of the Code and the Limitation Act and also settled by a series

of judgments of different High Court over the decades (See : for example,

Lalta Prasad vs. Brahma Din [AIR 1929 Oudh 456], Ramabai Govind v.

Anant Daji [AIR 1945 Bom. 338], Abdul Kareem Sab vs. Gowlivada S.

Silar Saheb [AIR 1957 AP 40], A. Manjundappa v. Sonnappa & Ors.

[AIR 1965 Kar. 73], Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors.

[AIR 1983 Orissa 121], Laxmi v. A.Sankappa Alwa [AIR 1989 Ker. 289].

We may also draw support from the judgments of this Court in

Phoolchand vs. Gopal Lal [AIR 1967 SC 1470], Hasham Abbas Sayyad

v. Usman Abbas Sayyad & Ors. [2007 (2) SCC 355] and Bikoba Deora

Gaikwad v. Hirabai Marutirao Ghorgare [2008 (8) SCC 198].
                                      9


8.    Once a court passes a preliminary decree, it is the duty of the court

to ensure that the matter is referred to the Collector or a Commissioner

for division unless the parties themselves agree as to the manner of

division. This duty in the normal course has to be performed by the court

itself as a continuation of the preliminary decree. Sometimes either on

account of the pendency of an appeal or other circumstances, the court

passes the decree under Rule 18(1) or a preliminary decree under

Rule 18(2) and the matter goes into storage to be revived only when an

application is made by any of the parties, drawing its attention to the

pending issue and the need for referring the matter either to the Collector

or a Commissioner for actual division of the property. Be that as it may.



9.    The following principles emerge from the above discussion

regarding partition suits :


9.1) 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
                                     10


court in regard to the shares of various parties and deliver the respective

portions to them, in accordance with section 54 of Code. Such

entrustment to the Collector under law was for two reasons. First is that

Revenue Authorities are more conversant with matters relating to

agricultural lands. Second is to safeguard the interests of 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.



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
                                     11


      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 non-agricultural

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.



9.3) 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 disposing of
                                       12


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

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.


10.   The three decisions relied on by the petitioner (referred to in para 3

above) are not relevant for deciding the issue arising in this case. They all

relate to suits for mortgage and not partition. There is a fundamental

difference between mortgage suits and partition suits. In a preliminary

decree in a mortgage suit (whether a decree for foreclosure under Rule 2

or a decree for sale under Rule 4 of Order 34 of the Code), the amount

due is determined and declared and the time within which the amount has

to be paid is also fixed and the consequence of non payment within the

time stipulated is also specified. A preliminary decree in a mortgage suit

decides all the issues and what is left out is only the action to be taken in
                                     13


the event of non payment of the amount. When the amount is not paid

the plaintiff gets a right to seek a final decree for foreclosure or for sale.

On the other hand, in a partition suit the preliminary decrees only decide

a part of the suit and therefore an application for passing a final decree is

only an application in a pending suit, seeking further progress. In

partition suits, there can be a preliminary decree followed by a final

decree, or there can be a decree which is a combination of preliminary

decree and final decree or there can be merely a single decree with certain

further steps to be taken by the court. In fact several applications for final

decree are permissible in a partition suit. A decree in a partition suit

enures to the benefit of all the co-owners and therefore, it is sometimes

said that there is really no judgment-debtor in a partition decree. A

preliminary decree for partition only identifies the properties to be

subjected to partition, defines and declares the shares/rights of the parties.

That part of the prayer relating to actual division by metes and bounds

and allotment is left for being completed under the final decree

proceedings. Thus the application for final decree as and when made is

considered to be an application in a pending suit for granting the relief of

division by metes and bounds. Therefore, the concept of final decree in a

partition suit is different from the concept of final decree in a mortgage
                                      14


suit. Consequently an application for a final decree in a mortgage suit is

different from an application for final decree in partition suits.


A suggestion for debate and legislative action

11.   The century old civil procedure contemplates judgments, decrees,

preliminary decrees and final decrees and execution of decrees. They

provide for a `pause' between a decree and execution. A 'pause' has also

developed by practice between a preliminary decree and a final decree.

The `pause' is to enable the defendant to voluntarily comply with the

decree or declaration contained in the preliminary decree. The ground

reality is that defendants normally do not comply with decrees without

the pursuance of an execution. In very few cases, the defendants in a

partition suit, voluntarily divide the property on the passing of a

preliminary decree. In very few cases, defendants in money suits, pay the

decretal amount as per the decrees. Consequently, it is necessary to go to

the second stage that is levy of execution, or applications for final decree

followed by levy of execution in almost all cases.


12.     A litigant coming to court seeking relief is not interested in

receiving a paper decree, when he succeeds in establishing his case. What

he wants is relief. If it is a suit for money, he wants the money. If it is a
                                    15


suit for property, he wants the property. He naturally wonders why when

he files a suit for recovery of money, he should first engage a lawyer and

obtain a decree and then again engage a lawyer and execute the decree.

Similarly, when he files a suit for partition, he wonders why he has to

first secure a preliminary decree, then file an application and obtain a

final decree and then file an execution to get the actual relief. The

common-sensical query is: why not a continuous process? The litigant is

perplexed as to why when a money decree is passed, the court does not

fix the date for payment and if it is not paid, proceed with the execution;

when a preliminary decree is passed in a partition suit, why the court does

not forthwith fix a date for appointment of a Commissioner for division

and make a final decree and deliver actual possession of his separated

share. Why is it necessary for him to remind the court and approach the

court at different stages?


13.   Because of the artificial division of suits into preliminary decree

proceedings, final decree proceedings and execution proceedings, many

Trial judges tend to believe that adjudication of the right being the

judicial function, they should concentrate on that part. Consequently,

adequate importance is not given to the final decree proceedings and
                                    16


execution proceedings which are considered to be ministerial functions.

The focus is on disposing of cases, rather than ensuring that the litigant

gets the relief. But the focus should not only be on early disposal of

cases, but also on early and easy securement of relief for which the party

approaches the court. Even among lawyers, importance is given only to

securing of a decree, not securing of relief. Many lawyers handle suits

only till preliminary decree is made, then hand it over to their juniors to

conduct the final decree proceedings and then give it to their clerks for

conducting the execution proceedings. Many a time, a party exhausts his

finances and energy by the time he secures the preliminary decree and has

neither the capacity nor the energy to pursue the matter to get the final

relief. As a consequence, we have found cases where a suit is decreed or a

preliminary decree is granted within a year or two, the final decree

proceeding and execution takes decades for completion. This is an area

which contributes to considerable delay and consequential loss of

credibility of the civil justice system. Courts and Lawyers should give as

much importance to final decree proceedings and executions, as they give

to the main suits.
                                     17


14.   In the present system, when preliminary decree for partition is

passed, there is no guarantee that the plaintiff will see the fruits of the

decree. The proverbial observation by the Privy Council is that the

difficulties of a litigant begin when he obtains a decree. It is necessary to

remember that success in a suit means nothing to a party unless he gets

the relief. Therefore to be really meaningful and efficient, the scheme of

the Code should enable a party not only to get a decree quickly, but also

to get the relief quickly. This requires a conceptual change regarding civil

litigation, so that the emphasis is not only on disposal of suits, but also on

securing relief to the litigant. We hope that the Law Commission and

Parliament will bestow their attention on this issue and make appropriate

recommendations/amendments so that the suit will be a continuous

process from the stage of its initiation to the stage of securing actual

relief. The present system involving a proceeding for declaration of the

right, a separate proceeding for quantification or ascertainment of relief,

and another separate proceeding for enforcement of the decree to secure

the relief, is outmoded and unsuited for present requirements. If there is a

practice of assigning separate numbers for final decree proceedings that

should be avoided. Issuing fresh notices to the defendants at each stage

should also be avoided. The Code of Civil Procedure should provide for a
                                      18


continuous and seamless process from the stage of filing of suit to the

stage of getting relief. In money suits and other suits requiring a single

decree, the process of suit should be a continuous process consisting of

the first stage relating to determination of liability and then the second

stage of execution and recovery, without any pause or stop or need for the

plaintiff to initiate a separate proceedings for execution. In suits for

partition and other suits involving declaration of the right and

ascertainment/quantification of the relief, the process of the suit should be

continuous, consisting of the first stage of determination and declaration

of the right, second stage of ascertainment/division/quantification, and the

third stage of execution to give actual relief.


Conclusion


15.   In so far final decree proceedings are concerned, we see no reason

for even legislative intervention. As the provisions of the Code stand at

present, initiation of final decree proceedings does not depend upon an

application for final decree for initiation (unless the local amendments

require the same). As noticed above, the Code does not contemplate filing

an application for final decree. Therefore, when a preliminary decree is

passed in a partition suit, the proceedings should be continued by fixing
                                      19


dates for further proceedings till a final decree is passed. It is the duty and

function of the court. Performance of such function does not require a

reminder or nudge from the litigant. The mindset should be to expedite

the process of dispute resolution.



16.   In view of the foregoing, we are of the view that the application

filed by the plaintiff in this case for drawing up of a final decree, was

rightly held to be not subject to any period of limitation. We therefore

dismiss this special leave petition as having no merit, with a request to

expedite the final decree proceedings.




                                                    .............................J.
                                                          (R. V. Raveendran)



                                                    ............................J.
                                                       (B. Sudershan Reddy)
New Delhi;
August 21, 2009.

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