Prabhakar Sahebrao Nagare vs Ankush

Sunil P. Deshmukh, J.(Oral)—Rule. Rule made returnable forthwith and heard finally with consent of the parties.

This civil revision application has been preferred at the instance of defendants against order dated 22nd July, 2013, passed by learned IIIrd Joint Civil Judge, Junior Division, Georai on application Exhibit-80 in Regular Civil Suit No.251 of 2006. Respondent No.1 is plaintiff and applicant No.1 is defendant No.3

Application Exhibit-80 had been filed by present applicants - original defendants in the suit, purporting the same to be pursuant to Order VII, Rule 11 of the Civil Procedure Code, as according to the applicants, sub section (3) of section 6 of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 (Herein after for the sake of brevity will be referred to as "said Act") which reads -

"Section 6 - Occupancy rights in respect of occupied land to which section 5 does not apply :-

(3) The occupancy granted under sub-section (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such sum to the State Government as the State Government may, by general or special order, determine."

creates a bar for institution of suit for the reliefs claimed in the same, which are-

"A) His suit may kindly be decreed and it may be declared that the plaintiff is entitled to one fifth (⅕th) share in the suit property.

B) The suit property may kindly be partitioned and decree for partition may be sent to Collector, Dist-Beed for partition U/Sec.54 of C.P.C., 1908.

C) An enquiry into future mesne profits under Order XX Rule 12 of the Code of Civil Procedure, 1908.

D) Costs of the suit may be awarded to the plaintiff.

E) Any other appropriate and proper relief may be awarded to the plaintiff."

Succinct background of the matter would be relevant for consideration of present matter - Ancestor of parties namely Jaywantrao had been cultivating suit property bearing land Gut No.40 admeasuring 12 Hectare, 35 Are situated at village Agar Nandur, Taluka-Georai, Dist-Beed and had been Kabiz-e-kadim / permanent tenant. Said property is service inam (Madad-i-Mash) land held by the then Inamdar, which came to be abolished on enforcement of said Act. He died in 1969 and after him his eldest son Sahebrao father of defendant No.3-present applicant continued to cultivate suit land until his death. Respondent No.1 - original plaintiff and respondents No.2 and 3 moved an application for grant of occupancy rights, pursuant to said Act. In said proceedings, it appears that under an order dated 17th May, 2001, the Deputy Collector conferred occupancy rights on applicant No. 1, in the capacity of Karta (Manager) of the family and since then he is occupying and cultivating said land.

It appears that proceedings had been initiated at the instance of original Inamdar before Wakf Tribunal, which have culminated into remand under an order of the High Court. Said remand order appears to be a matter of challenge and stated to be pending before the Apex Court, wherein operation of the remand order passed by the High Court has been stayed.

According to the plaintiff, since defendant No.3 denied share to the members of the family, he was compelled to institute the suit for declaration of share and partition of the property. After hearing the parties on application Exhibit-80, learned Judge of the trial court has rejected the application and as such instant revision has been filed.

Learned counsel Mr.S.K.Kulkarni, appearing for the applicants, makes a very strong effort to impress upon that unless and until decision is rendered in the proceedings instituted by original Inamdar, the suit instituted by the plaintiff would be inefficacious as unless the basic rights are determined between the Inamdar and occupancy right holders, the decision in the suit would be redundant. In addition to same, by laying emphasis on Section 6 of said Act, he makes an effort to submit that unless there is previous sanction of the Collector, the suit for partition would not be tenable. In order to support his aforesaid contention, he places reliance on a decision rendered by Delhi High Court reported in LAWS (DLH) 2006-3-30 "Unmukta Bhatnagar v. Manoj Bhatnagar", which is a case relating to a contingent will and Court held that no right accrued to the plaintiff since the contingency had not occurred. Learned counsel for the applicants tries to persuade by contending that the present case shall also be governed by said ratio until decision between Inamdar and occupancy right holders attains finality and to hold that, no suit for partition is tenable. The learned counsel for the applicants submits that dispute in the suit is in respect of occupancy rights is an admitted position, yet until decision in contest with Inamdars with regard to the land is reached, there is no point in going ahead with the suit.

On the other hand, Mr.R.R.Imale, learned counsel appearing for respondents No.1 to 3, 8 and 9 submits that section 6 of said Act, cannot be read to forbid the right of the parties to institute a suit, for, according to him, it does not prohibit institution of suit. He submits that at the most, after the decision has been rendered in the suit, for actual partition by metes and bounds, permission may be required. However adjudication of rights between occupancy holders cannot be detained. He further submits that as on the date, occupancy rights granted to the plaintiff''s family have not been disturbed and as such there is little substance in the contention of applicants that decision between Inamdar and occupancy right holders shall be awaited and that before that there cannot be adjudication of rights interse among members of the family of occupancy right holders.

Trial court, while deciding application Exhibit-80, has referred to the relevant provisions under said Act and has found that taking into account the factual position of the matter it cannot be said that said provision creates an absolute bar for institution of suits of the nature as has been filed by the plaintiff and has also observed that partition can be effected with previous sanction of the Collector after the decree is passed and section 6 of said Act is not a condition precedent to institute the suit.

Taking into account aforesaid and the factual as well as legal position that while considering application purporting to be under Order VII, Rule 11 of the Civil Procedure Code read with that provisions of section 6 of said Act it can hardly be said that those would bar the suit for the reliefs claimed by the plaintiff. The position is clear that the present dispute under the suit is interse among the family members for shares in the occupancy rights and do not require to be detained until adjudication of rights between the Inamdar and the occupancy right holders are determined. Thus, this is not a case wherein revisional powers of the Court shall be invoked in favour of the applicants. Revision application, as such, stands dismissed. Rule stands discharged.