Heard Sri Sunendra Kumar, learned counsel for the petitioner.
The petition is allowed.
The order dated 21.01.2021 passed by the Additional Commissioner (Judicial), Lucknow, is set aside.
Detailed reasons to follow.
Learned counsel for the petitioner and learned standing counsel may give written submission and case laws with regard to the arguments made today.
Order Date :- 10.2.2021 Rahul A.F.R.
Case :- MISC. SINGLE No. - 3140 of 2021 Petitioner :- Amarjeet Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Lko. & Another Counsel for Petitioner :- Sunendra Kumar Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
1. By means of the present writ petition the petitioner seeks a writ in the nature of Certiorari quashing the order dated 21.01.2021 passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow in Appeal No. 01741 of 2020 Amrik Singh and others vs Amarjeet Singh and others. The petitioner is a tenure holder of Gata no. 48/2, ad-measuring 1.207 ha situated at village Bahadur Nagar, Pargana Aurangabad, Tehsil Mithauli, District Lakhimpur Kheri and on 19.11.2020, the petitioner had filed an application for division of holdings under Section 116 of the U.P. Revenue Code 2006 before the Sub-Divisional Magistrate Mithauli Kheri, which was registered as Case No.04112 of 2002: Amarjeet and others versus Subash Chander and others. On 23.12.2020, the Sub-Divisional Magistrate Mithauli, Kheri, had passed a preliminary decree about the shares of the tenure holders relying upon the revenue records.
2. The preliminary decree dated 23.12.2020 was challenged by Amrik Singh and others by filing a First Appeal under Section 207 of the U.P. Revenue Code 2006 (hereinafter referred to as "the Code of 2006") which was registered as Appeal No.01741 of 2020. The petitioner had already filed a caveat application and when the Appeal was listed on 04.01.2015 for admission, the counsel for the petitioner raised a preliminary objection in writing with regard to the maintainability of the Appeal. The petitioner specifically mentioned before the Additional Commissioner that the Appeal is not maintainable because it has been filed only against a preliminary decree, which is an order of an interim nature, because the remaining proceedings are still to be concluded before the Sub-Divisional Magistrate and Section 207 of the Code of 2006 states that an Appeal would lie only against a final order or decree. It was also argued that the impugned order is of an ''interim nature' and further proceedings under Rule 109 still remain to be completed, and the Sub Divisional Magistrate has called for objections to be filed by the parties. It was also argued that the First Appeal was barred under Section 209 sub clause (f) of the Code of 2006, because the said Section specifically states that no Appeal shall lie against any order or decree, where such order and "decree is of an interim nature", yet the Additional Commissioner admitted the Appeal of the contesting respondents by a non-speaking order.
3. The learned counsel for the petitioner has referred to Section 207 of the Code of 2006 to state that under the said Section, a provision has been made for filing First Appeal and any party aggreived by a final order or decree passed in any suit, application or proceeding specified in column 2 of the Third Schedule, may prefer a First Appeal to the Court or Officer specified against it in column 4, where such order or decree was passed by a court or officer specified against it. The emphasis has been laid upon the word "final order" or "decree". It has been argued that the preliminary decree is not a final decree against which a first Appeal would lie under the Revenue Code.
4. The learned counsel for the petitioner has argued on the basis of Blacks' Law Dictionary, defining a preliminary decree as follows:- "decrees in equity are either final or interlocutory. Final decree is one which fully and finally disposes of the whole litigation, determining all questions raised by the case and leaving nothing that requires further judicial action. An interlocutory decree is a provisional or a preliminary decree, which is not final and does not determine the suit, but directs some further proceedings preparatory to the final decree. It is a decree pronounced for the purpose of ascertaining matter of law or fact preparatory to a final decree."
5. It has been submitted on the basis of Websters' Legal Dictionary that the word ''interim'' means "in the meantime", or "temporary" and a preliminary decree is only a temporary decree, as further proceedings under Section 116, Rule 109, are still to be concluded before the Sub-Divisional Magistrate.
6. The learned counsel for the petitioner has also referred to the Hindi translation of Section 207 of the Revenue Code wherein the word used are "Antim Adesh Ya Decree", to argue that First Appeal is maintainable only against a final Adjudication and not at the interim stage when a preliminary decree is passed by the Court concerned in a partition suit.
7. The learned counsel for the petitioner has also referred to Section 209 sub-clause (f), which starts with a non-obstante clause, and says that "notwithstanding anything contained in sections 207 and 208, no Appeal shall lie against any order or decree.......... where such order or decree is of an interim nature." It has been submitted that Section 209 creates a bar against filing Appeals against orders or decrees which have been mentioned in the sub-clauses thereof. The Revenue Court being a special Statute and enacted later in point of time than the Civil Procedure Code, shall override any provision in Sections 96 or 97 of the C.P.C. which permit the filing of an Appeal against a preliminary decree also. It has been argued that the legislature is supposed to know all the law existing on the Statute Book before it enacts a special legislation. If the legislature has barred any Appeal then the Civil Procedure Code which is only procedural law cannot provide that which is specifically barred into substantial provisions of a Special Statute. Procedural law can supplement the Statute but it cannot be enforced contrary to the original Statute. If Section 209 (f) specifically says that against an interim decree no Appeal lies, then such Appeals cannot be entertained contrary to the specific substantive provisions.
8. Learned counsel for the petitioner has referred to judgement rendered by the honourable Supreme Court in the case of Kiran Singh and others versus Chaman Paswan and others, AIR 1954 Supreme Court 340, to say that a "decree passed by a Court without jurisdiction is a nullity and it's invalidity could be set up whenever and wherever it is sought to be enforced and relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
The learned counsel for the petitioner placed reliance upon another Supreme Court decision rendered in National Institute of Technology and others versus Niraj Kumar Singh (2007) 2 SCC 481, wherein observations to the same effect have been made in paragraph 22 of the Report.
9. The learned counsel for the petitioner has further argued that if this court is pleased to hold that the Appeal is maintainable before the Additional Commissioner, even then the order of the Additional Commissioner would still be vitiated as the Supreme Court in several cases has already held that a statutory authority is bound to pass a reasoned order. The order passed by the Additional Commissioner impugned in this writ petition being a non-reasoned order cannot be sustained. To give reasons is the Rule of natural justice and not recording of reasons, non consideration of evidence, or consideration of inadmissible evidence, renders the order to be unsustainable and further, failure to disclose reasons in an order renders it indefensible/unsustainable.
10. The learned counsel for the petitioner has placed reliance upon Coordinate Bench decisions rendered by this Court in Buddharaj vs. State of U.P. and others, (2017) 3 ADJ 465, and Hariom vs. State of U.P. and others, (2013) 6 ADJ 345; wherein this Court had placed reliance upon judgement of the Supreme Court rendered in the case of the Secretary and Curator Victoria Memorial vs Howrah Gantantrik Nagrik Samiti and others JT 2010 (2) Supreme Court 566; paragraph 31 to 33 whereof are being quoted here in below :-
"31. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order in exercise of judicial power in a judicial forum is to disclose its reasons by it self, and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial, and, judicious disposal of matters before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. (vide State of Orissa versus Dhani Ram Luhar JT 2004 (2) Supreme Court 172 , and State of Rajasthan versus Sohan Lal and others (2004) 5 SCC 573)".
The Supreme Court went on to observe :-"
32. "Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. (Raj Kishore Jha versus State of Bihar and others AIR 2003 Supreme Court 4664; Vishnu Deo Sharma versus State of Uttar Pradesh and others (2008) 3 SCC 172; Steel Authority of India Limited versus Sales Tax Officer Rourkela 1, Circle, and others (2008) 9 SCC 407; State of Uttaranchal and another versus Sunil Kumar Singh Negi AIR 2008 Supreme Court 2026; U.P.S.R.T.C. versus Jagdish Prasad Gupta, AIR 2009 Supreme Court 2328; Ram Pal versus State of Haryana and others (2009) 3 SCC 258; Mohammad Yousuf versus Faiz Mohammad and others (2009) 3 SCC 513; State of Himachal Pradesh versus Sada Ram and another (2009) 4 SCC 422)"
33. "Thus it is evident that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know as to why his application has been rejected."
11. Sri Hemant Kumar Pandey, learned Standing Counsel, argued that under Section 207 of the Revenue Code, 2006 appeal would lie against "Final order or Decree". The expression does not say that "Final order or final Decree" or "Final order and Decree". The use of word "or" between "Final order" and "decree" clearly indicates that both the expressions "Final order" and "decree" are separate to each other. The word 'or' is disjunctive, not conjunctive. Thus the provision is clear and unambiguous, and the word 'or' cannot be read as 'and', therefore, the word "decree" is separate from expression "Final order".
12. It has been argued by learned Standing Counsel that the use of the word 'or' and 'and' whether conjunctive and disjunctive in form has been discussed in Chapter-V Syn.7 by the author Justice G.P. Singh in his book "Principles of Statutory Interpretation", (9th Edition, 2004) at page 404, which read as follows:-
"The word 'or' is normally disjunctive and 'and' is normally conjunctive at times but they are read as vice-versa, to give effect to the manifest intention of the Legislature as disclosed from the context. One can read 'or' as 'and' in a statute. But it cannot be done unless one is obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. According to Lord Halsbury the reading of 'or' as 'and' is not to be resorted to, "unless some other part of the same statute or the clear intention which requires that to be done". But if the literal reading of the words produces an unintelligible or absurd result 'and' may be read as 'or even though the result of so modifying the words is less favourable to the subject, provided that the intention of the legislature is otherwise quite clear. Speaking generally, a distinction may be made between positive and negative conditions prescribed by statute for acquiring a right or benefit. Positive conditions separated by 'or' are read in the alternative but negative conditions connected by 'or' are construed as cumulative and 'or' is read as 'nor' or 'and' (Ref. G.P. Singh on Principles of Statutory Interpretation).
13. The second argument raised by learned Standing Counsel is that Rule 109 (1) of the Revenue Rules, 2016 provides that if the plaint referred to in Rule 107 or Rule 108 is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. The suit shall then be decided according to the provisions of the Code of Civil Procedure, 1908. Therefore, after institution of the suit for partition under section 116 of the Revenue Code, only the provisions of the Code of Civil Procedure, 1908 would apply. Thus the only remedy available against the Preliminary decree is to file an appeal under section 207 of the Revenue Code, 2006 read with Third Schedule (for sections 206, 207 and 208) of the Revenue Code, 2006, and if the petitioner fails to file an appeal against a preliminary decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
14. Learned Standing Counsel has submitted that under Section 97 of the C.P.C., it has been provided that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not Appeal from such decree, he shall be precluded from disputing its correctness in any Appeal which may be preferred from the final decree. It has been argued by the counsel for the State Respondents Sri Hemant Kumar Pandey that unless the litigant challenges the preliminary decree in a First Appeal, he cannot challenge the correctness of such Decree in any Appeal which he may prefer later on from the final decree.
15. The failure to appeal against a preliminary decree is a bar to raising any objection to it in the appeal against a final decree. The Hon'ble Supreme Court in the case of Chitturi Subbanna vs Kudapa Subbanna 1965 SCR (2) 661 provides that, the object of the section is that questions which have been urged by the parties and decided by the Court at the stage of the preliminary decree will not be open for re-agitation at the stage of preparation of the final decree. It would be considered as finally decided if no appeal is preferred against it.
16. It has been argued further by Sri Hemant Kumar Pandey that in the case of Venkata Reddy v. Pethi Reddy AIR 1963 SC 992, the Supreme Court laid down the following principle on this aspect of the matter:--
"A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees -- a preliminary decree and a final decree--the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages, and though the suits in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it. Section 97, Code of Civil Procedure clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree."
17. It has been pointed out by Sri Hemant Pandey that the Supreme Court in Mool Chandra and others versus Deputy Director of Consolidation and others (1995) 5 SCC 631 was considering the effect of a notification under section 4 of the U.P. Consolidation of Holdings act as provided under section 5(2) of the said Act, on a Preliminary decree and whether it would also be abated even if it was not put under challenge in Appeal in the suit which stood abated under section 5(2). It was contended by the Respondents that a suit for partition or for that matter any other suit, for example, a suit for redemption or foreclosure, based on the mortgage, in which two decrees, viz, a preliminary decree and a final decree are passed, has to be distinguished from an ordinary suit in which only one decree is passed, and said that in the case before it if a preliminary decree for partition had already been passed, the notification under Section 4 read with Section 52 of the Act would have the effect of abating the proceedings for preparation of final decree which were at the relevant time pending in the Court but the preliminary decree would not be abated as it had attained finality. It was contended that since the rights of the parties had already been determined by a preliminary decree for partition, the consolidation authorities as well as the High Court was justified in relying upon that decree and in granting a share to the respondents in the plots in question. The Supreme Court considered Sections 4 and section 5 (2) of the Consolidation of Holdings Act and the definition of decree given in Section 2 (2) of Code of Civil Procedure and the Explanation appended to it. It further observed while referring to Order 20 Rule 18, and Order 26 Rules 13 and 14, in paragraphs 12 to 18, that under Order 20 Rule 18 which provides for a decree in a suit for partition of property or separate possession of a share therein, the decree shall declare the rights of several parties interested in the property and shall direct the partition or separation of the said shares to be made by the officer deputed in this behalf, and if such a decree relates to movable property whose the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property, and give such further directions as may be required. Sub rule (2) of Rule 18 would indicate that the Court has to pass a preliminary decree where it cannot immediately partition the property in respect of which the suit was filed. Under Order 26 Rules 13 and 14, it is provided that where a preliminary decree for partition has been passed the Court may issue a commission to such person as it thinks fit, to make partition or separation according to the rights as declared in such decree. The commissioner shall after such enquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties and may award sums to be paid for the purpose of equalising the value of the shares. The commissioner shall then prepare a signed report or the Commissioner may prepare even separate reports, appointing the share of each party and distinguishing each share by metes and bounds. The Court after hearing any objections which the parties may make to the report or reports, shall confirm vary or set aside the same. Whether the Court confirms or varies the report or reports, it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports, it shall either issue a new commission or make such order as it thinks fit. The court observed in paragraphs 15, 16 and 17 thus:-
15. "the definition of decree contained in section 2(2) read with provisions contained in Order 20 Rule 18 (2) as also Order 26 Rule 14 of the Code indicates that a preliminary decree has first to be passed in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when The preliminary decree is passed under which the rights of parties in the property in question are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the Court and the suit is stated to have come to an end for all practical purposes.
(emphasis supplied)
16. "Unless otherwise expressly provided, suits filed in revenue court under U.P.Z.A. & L.R. Act are regulated by provisions of the Code of Civil Procedure as provided by Section 341 of that Act."
17. "A suit for partition of a holding is filed under Section 176 of the U.P. Z.A. & L.R. Act; and Section 178 provides for the modes of division and Sections 179, 180, 181 and 182 (B) are other relevant sections. Under Rule 157, before making a decision the Court shall determine separately the shares of the plaintiff and each of the other co-tenure holders, and record which, if any, of the co-tenure holders wish to remain joint, then make a valuation of the holding or holdings in accordance with the rent rate applicable to each plot in the holding and, determine separately the value of the share of the plaintiff and each of the co-tenure holder."
The Supreme Court observed in paragraph 19 as follows:
19. "From a perusal of the above provisions it would appear that in a suit for partition, the revenue court also, like the civil court, has first to pass a preliminary decree determining and declaring the rights of the parties and their shares, if any, in the holding. Thereafter, proceedings for preparation of the final decree are initiated under Rules 158 to 164, which lay down the various modes in which a decree for partition can be implemented and the respective shares of the tenure holders separated, in accordance with the rights and shares already determined under the preliminary decree."
18. It has been argued by Sri Hemant Kumar Pandey that in Mool Chandra (supra), the question therefore was, "whether a notification under Section 4 of the Consolidation of Holdings Act would abate the entire suit or will it not affect the proceedings up to the stage of and including, preliminary decree, if the notification was issued after the passing of the preliminary decree?"
18A.The Supreme Court observed in Mool Chandra Yadav (supra) paragraph 29 thus:-
29. "there is, thus, a distinction between a case in which an Appeal is filed against a preliminary decree and a case in which a preliminary decree is not Appealed against and its correctness is not assailed. If, therefore, a notification under Section 4 of the Act is issued in a case where an Appeal against the preliminary decree was not pending, the latter, viz., the preliminary decree, will remain unaffected and will not abate but if the preliminary decree has been assailed in Appeal, and the Appeal is pending on the date of notification, it will have the effect of abating the entire suit/proceedings including preliminary decree passed therein. On the contrary, if an Appeal is filed against the final decree without there being any Appeal against the preliminary decree, and the preliminary decree becomes unassailable on account of section 97 of the C.P.C., the notification under section 4 would abate the proceedings relating to the final decree, without in any way touching, impairing or affecting the preliminary decree. The reason, to repeat, is obvious. Once a preliminary decree is passed, the proceedings so far as the declaration of rights or interest in the land are concerned, come to an end. Those rights are to be worked out by the final decree. In a case, therefore where a preliminary decree has already been passed and only the proceedings relating to preparation of final decree are pending in any court, either at the original stage or at the appellate or revisional stage, it cannot be said that the proceedings relating to ''declaration or determination of rights in the land'' within the meaning of Section 5(2) of the Act are pending."
19. The Supreme Court observed that a preliminary decree is an Appealable decree and under Section 97 of the Code, if an Appeal is not filed against a preliminary decree, its correctness it is not challenged, it becomes final and the party aggrieved there by will not be permitted to challenge its correctness in an Appeal against the final decree.
20. The Supreme Court relied upon the observations made in Venkat Reddy versus Pethi Reddy, AIR 1963 Supreme Court 992; where it was held that the impact of section 97 is that the preliminary decree, so far as the matter is covered by it are concerned, is regarded as embodied in the final decision of the Court passing the decree. It was observed in the said case of Venkat Reddy thus: - "A preliminary decree passed, whether it is in the mortgage Suit or a partition suit, is not a tentative degree but must, in so far as the matters dealt with by it are concerned, be recorded as imparting - - - the final decision of the court passing that decree.
21. The Supreme Court relied upon observations made in Gyarsi Bai versus Dhansukh Lal, AIR 1965 Supreme Court 1055 wherein it was observed :- "it is true that a preliminary decree is final in respect of the matters to be decided before it is made........ It is undisputable that in a mortgage suit there will be two decrees namely, preliminary decree and final decree, and that ordinarily the preliminary decree settles the rights of the parties and the final decree works out those rights."
22. Recently in the case of Bhivchandra Shankar More vs. Balu Gangaram More and Ors, (2019) 6 SCC 387, the Hon'ble Supreme Court observed that where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the Court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the Respondents-plaintiffs being a suit for partition, the Appellant would be deprived of the opportunity in challenging the decree on merits.
23. With regard to the arguments raised by the learned counsel for the petitioner that the respondent had remedy of filing a Revision before this court or the Board of Revenue under Section 210 of the Code of 2006, learned counsel for the State Respondents has submitted that the jurisdiction in Revision is very limited. The Supreme Court in Hari Shankar vs Rao Girdhari Lal Chowdhury, 1963 AIR SC 698, emphasized the basic distinction between an Appeal and a Revision:
"The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under section 115 of the Code of Civil Procedure the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit."
24. The same principle was enunciated in a subsequent decision in Shiv Shakti Cooperative Housing Society vs. M/s Swaraj Developers and Others, reported at 2003 (6) SCC 659 where it was held as follows:
"An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power."
25. It has also been argued by the learned counsel appearing for the State Respondents that under Rule 109 of the Rules framed under the Revenue Code, it has been provided that a Suit under Section 116 of the U.P. Revenue Code shall be registered as a regular suit and it shall proceed in accordance with the provisions of the Civil Procedure Code. It has hence been argued that it is settled law that once the word "shall" is used, it is mandatory in nature and therefore all the provisions of the C.P.C. relevant for deciding the partition suit would apply in matters filed under the Revenue Code under section 116.
26. Having heard the learned counsel for the parties, this Court shall consider the statutory provisions first. Under the U.P. Revenue Code 2006 Section 4 sub-section 26 of the Definitions clause says, "decree" shall have the same meaning as assigned to it in the Code of Civil Procedure, 1908.
Under the Code of Civil Procedure, 1908 Definitions clause, under sub-section 2 states, that "decree" ''means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and maybe either preliminary or final.' It shall be deemed to include the rejection of plaint, and the determination of any question within section 144, but shall not include: a) any adjudication from which an Appeal lies as an Appeal from an order, or any order of dismissal for default. In the Explanation attached to sub-section 2, it has been mentioned that "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."
27. Section 96 of the C.P.C. refers to an Appeal from an original degree. It provides thus:- "1) Save as otherwise expressly provided in the body of this Code or, by any other law for the time being in force, an Appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear Appeals from the decisions of such Court; 2) an Appeal may lie from an original decree passed ex parte; 3) no Appeal shall lie from the decree passed by the court with the consent of the parties; 4) no Appeal shall lie except on a question of law from a decree in any suit of the nature cognizable by the Courts of Small Causes, when the amount of value of the subject matter of the original suit does not exceed Rs.10,000.
28. It is apparent from a bare perusal of the language of Section 96 that it provides for an Appeal against any decree unless it is otherwise provided for under the C.P.C., or under any other law for the time being in force. This Court shall also consider as to whether the Revenue Code 2006 can be considered to be special law governing the right to prefer an Appeal?
29. Section 97 of the CPC provides:-
"Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."
30. The relevant provisions of the U.P. Revenue Code are now being considered. The relevant extract of Section 116 and 117 of the Code of 2006 is being quoted hereinbelow:-
"Section 116. Suit for division of holding - (1) A Bhumidhar may apply for the division of the holding of which he is a co-sharer.
(2) in every such suit, the court may also divide the trees, wells and other improvements existing on such holding, but where such a division is not possible, the trees, wells and other improvements aforesaid, and valuation thereof, shall be divided and adjusted in the manner prescribed.
4) to every suit under this section, the gram Panchayat concerned shall be made a party.
Section 117 Duty of the court in suits for division of holdings - (1) in every suit for division of holding under section 116, the court of assistant collector shall -
(a) follow such procedure as may be prescribed;
(b) apportion the land revenue payable in respect of each such division.
(c) a division of holding referred to in section 116 shall not affect the joint liability of the tenure holders thereof in respect of the land revenue payable before the date of the final decree."
31. The supplemental procedural provisions to Section 116 of the Code are given under Rule 109 of the Rules. Rule 109 is a part of a group of rules relating to division of holdings starting from rule 107 on words and ending with rule 109. The relevant rules are being quoted here in below: -
"107. Suit for division of holding (section 116 )- Every plaint in a suit for division of holding (including trees, wells and other improvements) shall contain the following particulars - (1) name, parentage and address of the plaintiff. (2) name parentage and address of other co-sharers of the holding. (3) share claimed by the plaintiff. (4)Share of other co tenure holders ;(5)Detailed particulars of the holding including plot numbers, area and land revenue.; (6)whether the plaintiff is a recorded or unrecorded tenure holder./ The plaint shall be accompanied by a certified copy of the Khatauni and other documents relied upon by the plaintiff.
"108. Suit for division of several holdings (section 116 ) - where the suit relates to the division of more than one holding, the particulars as specified in Rule 107 shall be mentioned in the plaint in respect of all such holdings.
109. Preliminary and final decrees (section 117 ) (1) if the plaint referred to in Rule 107 or Rule 108 is in order, it shall be registered as a suit and the defendants shall be called upon to file the written statements. The suit shall then be Decided according to the provisions of the Code of Civil Procedure 1908.(2) before making a decision the court shall -
A) determine separately the shares of the plaintiff and each of the other co-tenure holders;
B) record which, if any of the co tenure holders wish to remain joint; and C) make valuation of the holding or holdings in accordance with the circle rate fixed by the collector applicable to eachLot in the holding.
(3) if the suit is to be decreed, the court shall pass a preliminary decree declaring the share of the plaintiff.
(4) after the preparation of the preliminary decree the Sub Divisional Officer shall get the Kurra prepared through the Lekhpaal.
(5) the Lekhpaal shall submit the Kurra report within a period of one month from the date of receiving the order in this regard and at the time of preparation of Kurra he shall observe the following principles
(a) the plot or plots shall be allotted to each party is proportionate to his share in the holding;
(b) the portion allotted to each party shall be as compact as possible;
(c) as far as possible no party shall be given all the inferior or all the superior classes of land. ;
(d)As far as possible existing fields shall not be split up;
(e) plots which are in the separate possession of a tenure holder shall, as far as possible, be allotted to such tenure holder, if they are not in excess of his share;
(f) if the plot or any part thereof is of commercial value or is adjacent to the road, Abaadi or any other land of commercial value, the same shall be allotted to each tenure holder proportionately and in the case of second condition, the same shall be allotted proportionately adjacent to the road, Abadi or other land of commercial value; and
(g) if the co-tenure holders are in separate possession on the basis of mutual consent or family settlement, the Kurra shall, as far as possible, be fixed accordingly.
(6) when the report regarding Kurra is submitted by Lekhpaal the objection shall be invited thereon and thereafter an appropriate order shall be passed by the Sub Divisional Officer after affording, opportunity of hearing to the parties and considering the objection, if any, filed against the report submitted by the Lekhpaal.
(7) if the report and Kurra is confirmed by the Sub Divisional officer, the final decree shall follow it.
(8) It is at the stage of final decree, the court shall -
(a) separate the share of the plaintiff from that of the defendants by Metes and bounds.
(b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant.
(c) apportion the land revenue payable by the parties.
(d) direct the record of rights and Map to be corrected accordingly.
(9) if, for adjusting the equities between the parties, payment of compensation regarding trees, wells or other improvements becomes necessary, the revenue court concerned may also pass necessary orders at the stage of final decree.
(10) the Sub Divisional Officer shall make an endeavour to decide the suit within a period of six months and if the suit is not decided within such period, the reason shall be recorded."
32. Section 207 of the Code of 2006 provides for a first appeal by any party aggrieved by a final order or decree passed in any suit, application or proceeding and such first appeal can also be against an order of the nature specified in Section 47 of the Code of Civil Procedure 1908 relating to execution proceedings, or, in Section 104 of the said Code or in Order 43 Rule 1, of the First Schedule to the said Code.
33. Section 209 specifies the orders which are not appealable under sections 207 and 208 of the Revenue Code.
34. The Second Schedule relatable to section 206 subsection (2) enumerates the matters excluded from the jurisdiction of the civil court and in entry 15 and 16 mention is made of any claim regarding possession over any land and any claim to establish the rights of a co tenure holder in respect of any land, taking such claims out of the jurisdiction Of the civil court.
35. The Third Schedule relatable to Sections 206, 207 and 208 mentions under Column 1 section 116, and corresponding entries to the said section mention the court of the Sub Divisional Officer as having original jurisdiction, and the First Appeal lying with the Commissioner, and Second Appeal lying with the Board of revenue.
36. It has been submitted by the learned counsel for the petitioner that the Revenue Code is a special enactment and has a non-obstante clause and the Civil Procedure Code does not contain such a non obstante clause. The primacy of the statute would have to be determined on the basis of the intention of the legislature. While the normal principle is that a later enactment will prevail in cases where the latter enactment has a non obstante clause, that is, giving it an overriding effect and secondly, if it is also held to be a special enactment with regard to the matter in issue.
37. A Constitution Bench of the Supreme Court in Pankajakshi (dead through legal representatives) and others versus Chandrika and others, (2016) 6 SCC 157, was considering the reference to a Larger Bench made by 2 three Judges Benches on the question whether section 23 of the Travancore-Cochin High Court Act would remain to be in the nature of a special provision while section 98 (2)of the C.P.C. would be in the nature of a general law? Whether as between the two, the former would apply in preference to the latter?
38. The Supreme Court considered firstly section 4 of the Code of Civil Procedure which is the ''savings clause' and which says that "in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force, or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force."
39. The Court also considered Section 96 (1) of the C.P.C. which provide that "Save as otherwise expressly provided in the body of this Code, or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. "The Court also considered the provisions of the Travancore- Cochin High Court Act 1125, and the Kerala High Court Act 1958, and Section 9 thereof by which the provisions of the Travancore-Cochin High Court Act were repealed in so far as the said Act related to matters provided in the Kerala High Court Act.
40. The court observed that in the judgement rendered by it in Custodian of Evacuee Property, Bangalore versus Khan Saheb Abdul Shukoor 1961 (3) SCR 855, it was held that where two Acts dealt with Evacuee property, the fact that the scheme under the second Act was different from the first, would make no difference as the subject matter that was dealt with was in substance the same. Applying the said law the Court observed that firstly the subject matter of the two Statutes must essentially be the same and/or that the main object and purpose of the Statutes should be substantially similar for the later law to be referred to as the "corresponding" statute.
41. The Supreme Court observed that the main object and purpose of the Travancore-Cochin Act is to lay down the jurisdiction and powers of the High Court that was established in the said State. On the other hand, the subject matter of the Code of Civil Procedure is to lay down procedure in all civil matters and no others. Also the said Code would apply to all courts which deal with civil matters, subject to exceptions contained therein, and not only the High Courts. The High Court exercises not only civil jurisdiction but decided criminal and other matters as well. It was therefore difficult to say that the Code of Civil Procedure corresponds to the Travancore-Cochin High Court Act.
42. The Supreme Court observed that the scheme of section 4(1) of the C.P.C., as its marginal note provides, is to save any special or local Law from the applicability of the Civil Procedure Code. The said section, therefore states that whenever there is a special, local or other law which deals with any matter specified in the Code, those laws will continue to have full force and effect notwithstanding that they deal with the same matter as is contained in the Code of Civil Procedure. From this, however an exception is carved out, and that exception is that there should not be any "specific provision" to the contrary contained in the Code itself.
43. The Court then proceeded to make an enquiry as to the meaning of the expression "specific provision" to the contrary. In Maru Ram versus Union of India 1981(1) SCC 107, a Constitution Bench dealt with pari materia provision to section 41 of the Code of Civil Procedure, contained in section 5 of the Code of Criminal Procedure. The Supreme Court relied upon decisions of the Lahore High Court and the Allahabad High Court to explain as to what is meant by "specific provision". It was observed that the dictionary meaning of specific is ''precise', ''Definite', ''explicit' or ''exactly named' or ''indicated in particular'. A specific provision would require something which is plain, certain and intelligible, and not merely a matter of inference or implication to be drawn from the statute generally.
44. The Constitution Bench in Maru Ram (supra) had observed in Para 38 as follows:-"....Sometimes what is specific may be special but yet they are distinct in semantics, it was held that the Criminal Procedure Code is a general code and the remission rules are special laws but Section 433 A is a specific, explicit, definite provision, dealing with a particular situation or narrow class of cases, as distinguished from the general class of cases covered by Section 432 Cr.P.C. Section 433 A takes out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particular type of treatment. It follows that section 433 A applies in preference to any special or local law because Section 5 expressly declared that specific provision, if any to the contrary will prevail over any special or local law. We have said enough to make the point that "specific "....is specific enough and even though special to specific is near, a light and thin partition do their bounds divide, the two are different. Section 433 A enacted an exclusion of section 5..."
45. The Constitution Bench in Pankajakshi (supra) observed in paragraph 19 ..."this specific provision must mean that the particular provision in the Code of Civil Procedure must clearly indicate in itself and not merely by implication, that the special law in question is to be affected... It is important to know that one of the meanings of the word specific is that it is distinct from something that is general. In Maru Ram (supra) Section 433 A of the Code of Criminal procedure 1973 was challenged as being against various provisions of the Constitution. That challenge was repelled by this Court. Section 433 A begins with a non obstante clause specifically dealing with a particular situation, that is, where a sentence of imprisonment for life is imposed in certain circumstances, then notwithstanding the power of remission contained in section 433, such person is not to be released from prison unless he has served at least fourteen years of imprisonment."
46. In applying Section 5 of the Code of Criminal Procedure 1973 to section 433A, great emphasis was placed on the ''non obstante clause' contained in section 433A, it was ultimately held that section 433A takes out of a mass of imprisonment cases a specific type of case, namely, life imprisonment cases and subjects such cases explicitly to a particularized treatment.
47. The Supreme Court then observed that the expression specific provision as used in Section 4(1) of the Code of Civil Procedure calls out an exception to the special, local or other laws which deal with the same subject matter as the Code of Civil Procedure but get overridden by the Code of Civil Procedure. The court observed that it had to discover whether the various provisions of the Code of Civil Procedure can be said to be specific provisions to the contrary, for the purpose of Section 4(1) of the Code of Civil Procedure. The court also considered the language of Section 97 of the Code of Civil Procedure (Amendment Act) 1976, and observed that section 97 (1) of the Amendment Act only provides that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliament enactment contained in 1976 amendment to the Code of Civil Procedure.
48. The Supreme Court Considered the decision rendered by it in L.I.C. versus DJ Bahadur and others, 1981 (1) SCC 315, where the working test was laid down by the court to determine which statute is general and which special in paragraph 52 thus:-
"In determining whether a statute is a special or a general one, focus must be on the principle subject matter plus the particular perspective. For certain purposes, an act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law we have a Cosmos of relativity, not absolutes - so too in life. The Industrial Disputes Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides only for the nature of Industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of, and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From Alpha to Omega the Industrial Disputes Act has one special mission - the resolution of industrial disputes through specialized agencies according to specialized procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, Industrial Disputes Act is a special statute and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation of management when private businesses are nationalized and a plurality of problems which, incidentally, included transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the ambit of and have no specific or special place in the scheme of the L.I.C. Act. And whenever there was a dispute between workmen and management, the Industrial Disputes Act mechanism was resorted to."
49. The Supreme Court further observed that there is no specific provision in the C.P.C. whereas a special procedure is prescribed in the Travancore-Cochin High Court Act therefore, the Section 23 of the Travancore-High Court Act would remain unaffected by any provision to the contrary contained in section 98 sub-clause (2) of the Civil Procedure Code.
50. Now, we shall consider whether the Code of 2006 would be considered as a special act with a specific provision therein in the context of Procedure for a Partition Suit. If we consider the Long Title of UP Revenue Code 2006 which says that it is an act to consolidate and amend the law relating to land tenures and land revenue in the State of U.P., and to provide for matters connected therewith and incidental thereto, it is evident that the Act is a special law covering all land tenures and dealing with land revenue and matters connected therewith and incidental thereto.
51. The Statement of Objects and Reasons of the UP Revenue Code 2006, says that there were as many as 39 Acts relating to revenue law in force in the State of Uttar Pradesh. Out of these Acts the most important were the U.P.Z.A. & L.R. Act 1950 and the U.P. Land Revenue Act 1901. Some of the enactments of the British period had become obsolete. Some of the enactments were inconsistent with each other. On account of different provisions in different enactments relating to revenue law, the revenue litigations had considerably increased. Consequently revenue cases were pending for disposal for a very long period. Under these circumstances, it had become necessary to consolidate with modifications, all the relevant provisions of all these enactments into a single enactment. "It had therefore been decided to provide for consolidating and amending the laws relating to land tenures and land revenue in the State and for matters connected therewith and incidental thereto."
52. The Civil Procedure Code 1908 on the other hand had been enacted to provide the procedural provisions for dealing with claims, for declaration of rights, for execution of decrees of Courts deciding all kinds of disputes of civil nature. Thus the Code of Civil Procedure 1908 may be considered to be an earlier general law relating to procedural aspects not giving any substantive rights as such to any party except the one that in all claims of civil nature to be decided by Civil courts the procedure prescribed therein shall be followed.
53. The Supreme Court in M/s Atmaram properties Private Limited versus Oriental insurance Company Private Limited 2018 (2) SCC 27, was considering whether the amendment to The NDMC Act of 1994 which is a later enactment would prevail over the Delhi Rent Control Act 1958 in so far as property tax has been made recoverable as part of rent from the tenant under the NDMC Act. The Court considered the question whether non-payment of property tax recoverable from the tenant as rent can be a ground for eviction from the premises it held that although the NDMC Act is a later Act, it is still a general Act in so far as the relationship between the landlord and the tenant is concerned. The Delhi Rent Control Act 1958 although an earlier Act in point of time gives a protection to the tenant from eviction which could not be said to have been overridden by the landlords entitlement to recover under Section 121 of the NDMC Act the enhanced amount of house tax from the tenant notwithstanding the contract of tenancy and the provisions of subsection (2) of Section 7 and Section 4 of the Delhi Rent Control Act 1958.
54. The Supreme Court considered the observations made by it in the case of Gobind Sugar Mills Ltd versus state of Bihar (1999) 7 SCC 76 where in paragraph 10 it was observed that "while determining the question whether a statute is a general or special one, focus must be on the principle subject matter coupled with a particular perspective with reference to the intendment of the Act". The court also considered judgement rendered in Commercial Tax Officer versus Binani Cements Ltd (2014) 8 SCC 319, where it was held that when a general law and a special law dealing with the same aspect dealt with by the general law are in question, the general law to the extent dealt with by the special law is impliedly repealed. The Supreme Court held that the object of the Rent Act is to provide protection to tenants who under common law, including the Transfer of Property Act, would be evicted from the premises let out to them at any time by the landlord on the termination of the tenancy. It restricts The right of the landlord to evict the tenant at their will. It is a special law in relation to Landlord and tenant issue. Therefore, the Rent Act has to prevail in so far as the landlord and tenant issue is concerned. The NDMC Act is not a special enactment in so far as the landlord tenant issue is concerned and it contains Section 411 which provides that other laws are not to be disregarded.
55. Now this Court would deal with the argument raised by learned counsel for the petitioner regarding Section 209(f) of the Code of 2006, starting with a non-obstante clause. A non-obstante clause is generally appended to a section with a view to give the connecting part of the section, in case of conflict, an overriding effect over the other provisions in the same or any other Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provisions of the Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provision enumerated in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs.
56. The Supreme Court in State of Bihar and others versus Bihar Raj M.S.E.S.K.K. Maha Sangh and others (2005) 9 SCC 129 relied upon the observations of Justice GP Singh in Principles of Statutory Interpretation (ninth edition, Chapter 5 synopsis 4) in paragraph 45, 46 and 47 of the judgement. In paragraph 47 the Supreme Court observed normally the use of the phrase by the legislature in a statutory provision like "notwithstanding anything to the contrary contained in this Act" is equivalent to saying that the other provisions in the Act shall be no impediment to the enforcement of the Section. The use of ''non obstante clause' is another way of saying that the provision in which the non-obstante clause occurs usually would prevail over other provisions in the Act.
57. In ordinary course the non-obstante clause in a statute gives overriding effect to the provisions covered by the non-obstante clause over the other provisions in theStatute to which it applies. A non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or in some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
58. Justice G.P. Singh in his Principles of Statutory Interpretation (in Chapter 5 synopsis 4) has discussed the effect of a non-obstante clause. A clause beginning with "notwithstanding" anything contained in this Act "or in some Particular provision in the Act, or in some particular Act or in any law for the time being in force, is sometimes appended to a section in the beginning, with a view to give the following part of the section, in case of a conflict, an overriding effect over the provision or Act mentioned in the non obstante clause. The phrase "notwithstanding anything" is used in contra distinction to the phrase "subject to", the latter conveying the idea of a provision being subservient to another provision or other provisions to which it is made subject to. If the non-obstante clause refers to any particular provision which it intends to override then it would take effect no matter, the provision to which it refers enacted something to the contrary.
59. The Supreme Court has held in Union of India and others versus Ajit Singh (2013) 4 SCC 186, that the non-obstante clause contained in various provisions of the Juvenile Justice (Care and Protection of Children) Act 2000, particularly Sections 6, 15, 16, 18, 19 and 20, among others unambiguously render the Legislative intent behind the Act, which is that the same, being a special law, would have overriding effect on any other statute for the time being in force.
60. The Supreme Court went on to observe in the case of Iridium India Telecom Ltd versus Motorola Inc. (2005) 2 SCC 145, that the non-obstante clause in that section was indicative of Parliament's intention to prevent the application of the C.P.C. in respect of civil proceedings on the original side of the High Courts, which are to be governed by the Rules made by the High Court. These rules which the High Court makes will prevail over the rules contained in the C.P.C.
61. The Supreme Court while interpreting Sub-sections (1) and (2) of Section 59 of the Delhi Excise Act 2009, in the case of State (NCT Delhi) vs. Narender (2014) 13 SCC 100, had observed that section 58 of the Excise Act provides that "notwithstanding anything contained in any other law", where anything liable for confiscation under Section 58 is seized or detained, the officer seizing and detaining such thing shall produce the same before the Deputy Commissioner who, if satisfied that the offence under the Act has been committed, may order confiscation of such property. Section 61 of the Act further provides that no court shall, "notwithstanding anything to the contrary contained in any other law for the time being in force, will have jurisdiction to make any order with regard to such property seized or detained under the Act." The Supreme Court held that the legislature has used a non-obstante clause in Section 59 and 61 of the Act as a legislative device to give effect to the enacting part of the sections in case of conflict. Therefore, neither the magistrate nor the High Court have the power under section 451, 452 and 457 of the Cr.P.C. to pass an order dealing with the interim custody of a vehicle, which has been seized in connection with an offence under the Excise Act or on payment of security, order its release.
62. Justice G.P. Singh in Principles of Statutory Interpretation has further observed that sometimes one finds two or more enactments operating in the same field and each containing a non-obstante clause stating that its provisions will have effect "notwithstanding anything" inconsistent having been contained in any other law for the time being in force. The conflict in such cases is resolved on the consideration of purpose and policy underlying the enactment and the language used in them. Another test that is applied is that the latter enactment normally prevails over the earlier one.
63. It is also relevant to consider as to whether any of the two enactments can be described as a special one? In that case the special one may prevail over the more general one, notwithstanding that the general one is later in time. We have found from a discussion of the subject matter of the Code of 2006 that it is both a later law and a special law in so far as it deals with revenue bearing lands.
64. We will now consider whether a preliminary decree under Rule 109 of the Rules of 2016 can be considered to be a decree of an interim nature?
65. A preliminary decree under Rule 109(3) declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held, and pursuant to the result of further inquiry a final decree shall be passed.
66. In a suit for partition of property or separate possession of a share therein, Order XX Rule 18 of the CPC comtemplates a decree to be passed in the terms of Sub Rule 2. The relevant extract of which is quoted as under :-
"Order XX Rule 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, ........
(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 partition suit is decided at two stages i.e. at first stage preliminary decree is passed and at second stage, a final decree. Passing of the preliminary decree does not decide the suit finally. Preparation of final decree is continuation of the same suit.
67. In Shankar Balwant Lokhande versus Chandrakant Shankar Lokhande, (1995) 3 SCC 413; while considering the provisions of Order 20 Rule 18, Code of Civil Procedure, and also the period prescribed for execution of a decree under the Limitation Act, it was observed as under: -
4. "Thus it could be seen that where the decree relates to any immovable property and the partition or separation cannot be conveniently made without further enquiry, then the court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The court is also empowered to give such further directions as may be required in this behalf. Preliminary decree in a partition action, is a step in the suit which continues until the final decree is passed. In a suit for partition by coparcener or co-sharer, the court should not give a decree only for the plaintiffs share, it should consider shares of all the heirs after making them parties and then to pass a preliminary decree. The words "declaring the rights of several parties interested in the property" in Sub Rule 2 would indicate that the shares of the parties, other than the plaintiff(s), have to be taken into account while passing a preliminary decree. Therefore, preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or coparcenary property, which is the subject matter of the suit. The final decree should specify the division by metes and bounds and it needs to be endorsed on stamped paper."
(emphasis supplied)
68. A preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined, a decree incorporating such determination needs to be drawn up which is the final decree.
69. A preliminary decree first determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation.
70. In Phoolchand versus Gopal Lal, AIR 1967 Supreme Court 1470; the Supreme Court observed as follows:-
"We are of the opinion that there is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree, if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree, some parties died and the shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Courts can do so even after preliminary decree is passed. It would in our opinion be convenient to the Court and advantageous to the parties, Specially in partition suits, to have the disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done there is a clear determination of the rights of the parties to the suit on the questions in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; If so, there is no reason why a second preliminary decree correcting the shares in the partition suit can be passed by the Court. So far as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding the dispute and making the variation in shares specified in the preliminary decree already passed, is a decree in itself , which would be liable to Appeal..... There is no prohibition in the Civil Procedure Code against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Civil Procedure Code does not contemplate such a possibility. In any case, if two views are possible - and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by those High Courts which held that a second preliminary decree can be passed, particularly in partition suits where the parties have died after preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is a dispute, it should not be decided by the Court which passed the preliminary decree. For it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes which may arise after preliminary decree particularly in a partition suit due to deaths of some of the parties...... We therefore hold that in the circumstances of this case It was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed."
(emphasis supplied)
71. The word a "preliminary decree" has been considered in several judgements of this Court and of the Supreme Court. "Preliminary Decree" is one which declares the rights and liabilities of the parties, leaving the actual result to be worked out in further proceedings. Then, as a result of the further enquiry that is conducted pursuant to the preliminary decree, the rights of parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. "Final decree" may be said to become final: a) when the time for Appeal has expired without any Appeal being filed against the preliminary decree or the matter has been decided by the highest court, b) when as regards the Court passing the decree, the same stands completely disposed of. It is in the latter sense that the word decree is used in section 2(2) of the C.P.C. (Shankar Balwant Lokhande versus Chandrakant Shankar Lokhande; 1995 3 SCC 413).
72. The Supreme Court in the case of Bikoba Deora Gaikwad versus Hirabai Maruthi Rao Ghorghare (2008) 8 SCC 198, has observed thus:- "A decree may denote final adjudication between the parties and against which an Appeal lies, but only when a suit is completely disposed of, thereby a final decree would come into being. A decree may be partly preliminary and partly final....... A decree whether preliminary or final is binding on the parties but the same does not mean that all decrees would be final decrees. Section 2 sub-clause 2, clearly shows as to the nature of the decrees that a court may pass. For the purposes of considering the nature of the decree, one has to look to the terms thereof rather than speculate upon the court''s intentions."
(emphasis supplied)
73. In S. Satnam Singh versus Surinder Kaur (2009) 2 SCC 562, the Supreme Court laid down certain tests to determine the question as to whether an order passed by a Court is a decree or not. To be considered a decree, the order must satisfy the following tests:- 1) there must be an adjudication, 2) such adjudication must have been given in a suit; 3) it must have determined the rights of the parties with regard to all or any of the matters in dispute, 4) such determination must be of a conclusive nature, 5) There must be a formal expression of such decree.
74. Section 209 of the U.P. Revenue Code provides that appeals may not be filed against merely procedural or interlocutory orders which are steps taken towards the final adjudication and for assisting the parties in prosecution of the case in the pending proceedings. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. No doubt the U.P. Revenue Code does refer in the language of Rule 109 that whenever a partition suit shall be filed and the plaint is found in order it shall be registered as a regular suit and further proceedings shall be taken in accordance with the procedure prescribed under the Civil Procedure Code, but would such a provision make the consideration of a partition suit by a revenue court not feasible but that it would have to be considered by the civil court?
75. Truly speaking, under Rule 109 a partition suit would continue to remain a suit to be decided by a revenue court as under Section 206 of the Revenue Code it has been clearly provided that ''notwithstanding anything contained in any law for the time being in force, but subject to the provisions of the Revenue Code', no civil court shall entertain any suit, application or proceeding to obtain a decision or order on any matter in which the State Government, the Board, or any revenue court or revenue officer is, by or under this Code, empowered to determine, decide or dispose of.' It also provides that no civil court shall exercise jurisdiction over any of the matters specified in the Second Schedule and no court other than the revenue court or the revenue officers specified in column 3 of the Third Schedule shall entertain any suit, application or proceeding specified in column 2 there of. Section 206 sub clause 2(b) refers to the matters specified in the Third Schedule to the Revenue Code and provides that only that Court or Officer which is specified in column 3 there of shall entertain any suit, application or proceeding mentioned in column 2. The relevant entry in Schedule III talks of a partition suit being cognizable by the Sub Divisional Officer and the appeal against his order would lie to the Commissioner and thereafter to the Board.
76. Hence, a partition suit under section 116 of the U.P. Revenue Code would remain to be a partition suit under the Code and shall not become a partition suit under the C.P.C. merely because the procedure that has to be followed by the revenue court in deciding the partition suit would be the same as is followed by the civil court under the C.P.C. An appeal against the decree by the revenue court would also lie under the U.P. Land Revenue Code and Rules made thereunder. No doubt Rule 109 of the Rules made under the U.P. Revenue Code do employ the words "It shall be registered as a suit and the defendant shall be called upon to file the written statement. That suit shall then be decided according to the provisions of the Code of Civil Procedure 1908," but that would not make a partition suit for division of a holding filed under section 116 of the U.P. Revenue Code, a suit for division of properties under the Civil Procedure Code.
77. In view of the fact that an issue of division of holding between parties to the agricultural land can only be decided by the revenue court, it cannot be said that an appeal shall lie under Section 97 of the C.P.C. to the first Appellate court mentioned in the C.P.C. In case of properties other than lands liable to payment of land revenue, the civil court normally passes a preliminary decree which is followed by a final decree, the proceedings between preliminary decree and final decree are analogous to the proceedings before the Collector for the partition of lands amenable to payment of land revenue. It cannot be disputed that the final decree of a court which allocates specific properties to different shareholders involves the rendering of decision and the passing of a decretal order. But in the Revenue Code it is the Collector alone who has the jurisdiction with regard to questions involved in the partition of revenue paying lands.
78. It must be remembered that the powers of revision under Section 210 of the U.P. Revenue Code are wide enough to examine the legality, propriety and regularity of any order passed in a suit or proceeding by any Subordinate Revenue Court in which no appeal lies. There are no fetters like those provided in Section 115 of the Code of Civil Procedure. We must remember that when the Revenue Code was framed the legislature had before it the provisions of Section 96 and 97 and 100 of the Code of Civil Procedure. Had the Legislature intended that even a preliminary decree in a partition suit may be challenged in a regular first appeal, then it would have provided so either in the main section i.e. Section 207, or at least not created a specific bar under Section 209 to entertaining certain appeals including an appeal against a decree which is of an interim nature.
79. For the reasons as aforesaid, this Court finds that the Appeal was wrongly admitted by the Additional Commissioner, and also because the Additional Commissioners' order does not give any reason for entertaining the Appeal, the order impugned dated 21.01.2021 is set aside.
80. The writ petition stands allowed.
Order Date :- 10.2.2021 Rahul [Justice Sangeeta Chandra]