Abdul Rejak Laskar vs Mafizur Rahman 2024 INSC 1023 - Section 9 CPC - Order XX Rule 18 CPC - Partition Suits - Assam Land and Revenue Regulation

Assam Land and Revenue Regulation 1886- Section 97, 154(1)(e) - To maintain a suit for imperfect partition under Section 97, the appellant has to fulfill two conditions stipulated therein. a. First, the person seeking partition should be in actual possession of the property in respect of which he seeks partition, and; b. Secondly, the co-sharers may not be ready and willing to give their consent and if the person seeking partition is not in actual possession then no other remedy is available to him except to go before the civil court and seek partition on the basis of his own title as a co-owner. (Para 52)

Code of Civil Procedure , 1908- Order XX Rule 18 - Order XX Rule 18 CPC deals with decree in a suit for partition of property or separate possession of a share therein. There are two decrees in a suit for partition; a preliminary decree and a final decree. A preliminary decree determines and declares the rights of parties and shares of all eligible claimants, final decree carries out and effects partition by metes and bounds of the property on the basis of preliminary decree. (Para 43) Decree passed under sub rule (1) of Rule 18 is not described as preliminary and the decree under sub-rule (2) is declared as preliminary, there is no real difference between the two inasmuch as under both the provisions, the court determines and declares the rights of parties and under both the sub rules, partition, separation or division by metes and bounds has to be effected thereafter. Whereas, under sub rule (1), Collector effects partition, under sub rule (2), it is Commissioner appointed by the court who undertakes the said exercise.(Para 46) Difference between Final and Preliminary Decree -A final decree is one which completely disposes of the suit and finally settles all the questions in controversy between the parties and nothing further remains to be decided thereafter. A preliminary decree in a partition suit merely determines and declares the rights of the parties in the properties and the extent to which they are entitled. It is the final decree which ultimately divides the properties by metes and bounds and awards separate possession of the properties to the claimants. The function of the final decree is to restate and apply what the preliminary decree has ordered. A final decree is thus based upon and controlled by preliminary decree. It is settled legal position that final decree proceedings are in continuation of preliminary decree proceedings and there is no executable decree unless the final decree is passed. The final decree does not originate itself, but flows from preliminary decree already passed in a suit determining and declaring the rights and interests of the parties in the suit. The final decree is not a decree in execution of preliminary decree but decree in a suit. It is the final decree which is to be enforced. (Para 49)

Code of Civil Procedure , 1908 - Section 4, 9 - Whenever a question arises before the civil court whether its jurisdiction is excluded expressly or by necessary implication, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by any special statute is sufficient or adequate. In cases where exclusion of the civil court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or sufficiency of the remedy provided for by it may be relevant but cannot be decisive. Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and in conceivable circumstances might become even decisive. (Para 29) when anything in the CPC is in conflict with anything in the special or local law or with any special jurisdiction or power conferred or in the special form of procedure prescribed by or under any other law, the Code will not (in the absence of any specific provision to the contrary) prevail so as to override such inconsistent provisions. When there is no conflict between the special or local law and the Code, the Code will apply. (Para 34)

Code of Civil Procedure , 1908 - Section 54- Section 54 deals with a case in which a civil court can pass a decree but cannot itself execute it. The execution has to be effected by the Collector. Civil courts have under this Section, jurisdiction to try and decide suits for partition or separate possession of share of estates assessed to payment of revenue to Government but have no power to execute decree passed in such suits. The decree that may be passed by the civil court would declare the rights of the several parties interested in the property, but the decree should direct the actual partition to be made by the Collector or any officer subordinate to him authorized on that behalf.