Lakhanlal Sahu vs Bhushan Sahu and Another

Nawal kishore Agarwal, J.—Appellant/defendant No. 1 has preferred this appeal challenging the judgment and decree passed in Civil Suit No. 32-A/2009 by the 1st Additional District Judge, Rajnandgaon. Facts of the case in brief are as under:--

(i) Suit land bearing Khasra No. 57 area 5.87 acre, Khasra No. 112/3 area 1.20 acre, Khasra No. 215/2 area 0.02 acre, Khasra No. 233 area 2.63 acre, Khasra No. 321 area 0.59 acre, Khasra No. 344 area 0.60 acre, Khasra No. 362 area 0.84 acre, total area 11.55 acre situated at Village Khera Patwari Halka No. 34, was of the ownership of Smt. Kalawati, widow of Chainram Sahu, i.e., maternal grand mother of the plaintiff and the defendant No. 1. Nathiyabai, i.e., mother of the plaintiff and the defendant No. 1 was the only issue of Smt. Kalawati. Said Smt. Kalawati got mutated the suit land in favour of the plaintiff and the defendant with the consent of Nathiyabai vide Mutation Panji No. 177, dated 10-4-83. Since then the land stood transferred in the name of plaintiff and the defendant No. 1 jointly in the revenue record. Till now no other person has objected to it nor claimed any right or title.

(ii) Plaintiff filed an application before Tehsildar Rajnandgaon u/s 178 of the M.P./C.G. Land Revenue Code for partition of the above land. The Tehsildar registered the case as Case No. 17-B/27 year 2001-02. As the question of title was raised by the defendant, the Tehsildar directed the parties to resolve their title dispute in the Civil Court. Thereafter, the instant suit has been filed in essence for partition; separate possession and damages at the rate of 11,550/- per year till handing over of possession.

(iii) The defendant No. 1 by filing his written statement denied the claim of the plaintiff. It has been pleaded in the written statement that the suit is not properly valued, proper Court fee is not paid, sister''s children though necessary party, were not arrayed as parties; mutual partition took place between the parties and in pursuance thereof, he is in settled possession of entire suit land.

After framing issues and recording evidence of the parties, learned Trial Court passed preliminary decree in favour o the plaintiff holding him entitled to half share, i.e., 5.77 acre of the land in the suit property and also Rs. 34,650/- as damages for three years and further Rs. 11,550/- per year till delivery of possession.

Shri Anoop Majumdar, learned Counsel for the appellant has assailed the above judgment and decree inter alia on the following grounds:--

(i) Their sister''s children though necessary party in the suit for partition, were not arrayed as co-defendants.

(ii) The plaintiff has failed to prove his title over the suit land as no title could be acquired based on revenue entries.

(iii) Learned Trial Court has failed to appreciate the fact that mutual partition took place between the parties and in pursuance thereof the defendant is in settled possession of the suit land.

(iv) Mesne profit and damages awarded to the plaintiff is illegal and unjustified.

On the other hand, Shri Jha, learned Counsel appearing for the respondent No. 1 supported the impugned judgment and decree and would submit that the appeal on its face deserves to be dismissed.

We have heard learned Counsel for the parties. Perused the impugned judgment and decree and the record of the Trial Court.

Indisputably the suit land is not ancestral property of the parties to litigation, the suit land stands mutated in favour of the plaintiff and the defendant with the consent of the only legal representative of deceased Smt. Kalawati. The parties have acted upon above transaction inasmuch as, admittedly the defendant has sold a piece of land out of the suit land to Daduram showing in the sale deed the plaintiff as co-owner (Para 26 of the deposition of the defendant No. 1). It is also not in dispute that so far as joint title of the plaintiff and the defendant No. I is concerned, it was never challenged by the defendant or any other legal representative of deceased Nathiabai, i.e., the only legal representative of original owner. The defendant No. 1 has raised a specific plea in the written statement regarding mutual partition between the parties and in pursuance thereof, acquisition of right and title over the suit land. He is estopped from denying the right and title of the plaintiff over the suit property. The said mutation was effected by deceased Smt. Kalawati in the year 1983 and since then parties are enjoying their rights over the suit property. Law must respect the wishes of original owner according to which, the property has been mutated in favour of the plaintiff and the defendant No. 1, that too with the consent of her legal representative. The Supreme Court in the case of Karam Kapahi and Others Vs. Lal Chand Public Charitable Trust and Another, in Paras 51 to 54 has held as under:--

In the instant case while filing its suit and questioning the title of the Trust, the Club seeks to reject the lease deed. At the same time while seeking the equitable remedy u/s 114 of the Transfer of Property Act, the Club is relying on the same instrument of lease. Legally this is not permissible. [See the observation of Scruttom, LJ., in Verschures Creameries Ltd. Vs. Hull and Netherlands Streamship Co. Ltd., (1921) 2 KB 608, which has been approved by a Constitution Bench of this Court in Bhau Ram Vs. B. Baijnath Singh and Others,

The principle of election has been very felicitously expressed in the treatise Equity - A Course of Lectures by F.W. Maitland, Cambridge University, 1947. The learned author has explained the principle thus :--

The doctrine of election may be thus stated : That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it....

In the old equity case of Streatfield Vs. Streatfield (Wh & TLC, 9th Edn., Vol. I, 1928) this principle has been discussed in words which are so apt and the elegant that I better quote them :--

Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both [Story, 3rd Edn., p. 452; Dillon Vs. Parker, (1818) 1 Swans 359 : 36 ER 422; Thellusson woodford, (1806) 13 Ves 209 : 33 ER 273]. The principle is stated thus in Jarman on Wills (6th Edn. p. 532 and Farwell on Power, 3rd Edn. P, 429) : That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it [See : Walpole Vs. Conway (Lord), 1740 Barn C 153]. The principle of the doctrine of election is now well settled.

This principle has also been explained by this Court in Nagubai Ammal and Others Vs. B. Shama Rao and Others, Speaking for a three-Judge Bench of this Court, Venkatarama Ayyar, J., stated in the report: ( AIR p. 602, 23)

23... The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.

It is clear from the above observations that the maxim that a person cannot ''approbate and reprobate'' is only one application of the doctrine of election....

In view of the above legal position, we see no reason to interfere in the finding of learned Trial Court regarding joint ownership of the plaintiff and the defendant over the suit property.

Now coming to the question whether or not the defendant has succeeded in proving mutual partition between the parties and his acquiring exclusive right and title over the suit property, as per Para 7 of defendant''s written statement, after the death of Smt. Kalawati, mutual partition between the plaintiff and the defendant took place and the suit property came in his share whereas he has sold a partly of suit property to one Daduram in the year 2000 showing the plaintiff as co-owner although incorrectly showing him as minor. Further document dated 27-5-2006 is also a relevant document inasmuch as by the above document, the defendant had agreed to give half share in the suit land to the plaintiff, i.e., during Pendency of the suit.

In view of above, in our considered opinion, the suit property was never mutually partitioned between the parties and learned Trial Court has rightly declared that the plaintiff is entitled for half share in the suit property, i.e., 5.77 acres.

Further Order 20 Rule 18 and Section 54 of the Code of Civil Procedure, deals with actual partition of property and its separate possession where the Court passes a decree for partition. Above provisions reads thus:--

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 the 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;

(2) if an 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.

Where the decree is for partition of an undivided 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.

The provisions of Section 54 read with Order 20 Rule 18 of CPC do not contemplate passing of a final decree. All that is required of a Civil Court in a case of partition of revenue paying lands and separate possession of a share is to pass a preliminary decree and declare the rights of the parties and nothing more and give a direction for such partition or separation to be made by the Collector or his subordinate in accordance with the declaration and the provisions of Section 54. Thereafter the Civil Court becomes functus officio and it would have no jurisdiction to act in any manner so as to pass a final decree or deliver possession to a party in accordance with such decree. The partition contemplated by Section 54 is not confined to mere division of lands but includes delivery of possession also of the respective shares allotted. Thus, it is the Collector or his subordinate who would be completely caring out partition and execution has to be effected by him and not by Civil Court.

The above provisions came up for consideration of the Division Bench of Madhya Pradesh High Court in case of Bhagwan Singh Vs. Babu Shiv Prasad and Another, and the Division Bench has held as under:--

A perusal of the aforesaid two provisions made it clear that the rule does not contemplate passing of a final decree. All that is required of a Civil Court in a case of 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 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 of 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 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 subordinate would be completely carrying out the partition. The Civil Court after passing of the preliminary decree for partition of any undivided estate assessed to the payment of land revenue becomes functus officio and it would have no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in accordance with the said decree.

We are also in respectful agreement with the above interpretation placed by the Division Bench of High Court of Madhya Pradesh.

Looking to the above legal position, in our considered opinion, the Civil Court is only required to pass a preliminary decree declaring respective shares of the parties in the suit land, i.e., revenue paying estate and further actual partition and delivery of possession would be carried out by Collector or his subordinate in accordance with Order 20 Rule 18 and Section 54 of CPC and thus the plaintiff in fact was required only to file civil suit for declaration of his share in the suit property. Admittedly so far as the relief of declaration is concerned, the suit has been properly valued and proper Court fee has been paid and, therefore, ground regarding Court fee and valuation raised by the appellant also being sans substances deserves to be rejected.

Looking to the nature of the land and looking to the fact that the defendant alone is reaping the fruits of the suit land, in our considered opinion, learned Trial Court has rightly assessed and decreed the amount on account of damages/mesne profit and no fault can be found in it and the above contention also needs rejection.

However, learned Trial Court has erred in not directing the Collector or his subordinate for actual partition or separate possession of the suit property which is necessary in the light of the discussion as referred hereinabove. Therefore, we deem it fit to direct that the judgment and decree shall be sent to the Collector concerned for actual partition and separate possession of the suit land in accordance with Section 54 of the CPC.

With the above direction, the appeal stands dismissed. No order as to costs.