Kalyan Rai Surana, J.
1. The challenge made in this writ appeal is essentially a challenge to the judgment dated 12.08.2002 passed by the learned Assam Board of Revenue in Case No. 9RA(J)/ 2002, upholding the order dated 12.11.2007 passed by the learned Additional Deputy Commissioner, Jorhat (ADC, Jorhat for short) in Rev. Misc. Case No.l 1/1998.
2. The said order dated 12.08.2002, passed by the Board of Revenue was assailed before this Court by filing W.P.(C)No. 8486/2013, which was dismissed by the judgment dated 14.08.2013, pursuant to which this present intra-court writ appeal has been filed.
3. The appellant before us is the defendant No. 1 in Title Suit No. 68/1997, which was filed by the respondent No. 3 herein (Smt. Piyari Kaur) and others.
4. In a brief nutshell, the grievance of the appellant is summarized as follows:
Title Suit No.68/1997, was a partition suit, which was decreed on contest by the judgment and order dated 20.01.1989 passed by the learned Assistant District Judge, Jorhat, directing that the suit land measuring about 18 bighas and odd, left by Late Sardar Sujan Singh be divided between the appellant and the respondent No.3 in equal shares. However, the Collector/ADC, Jorhat, who was entrusted for making partition in terms of the decree, gave only about 2 katha-16 lechas of land to the appellant and the remaining land was handed over, allocated and mutated in the name of the respondent No.3 by ordering cancellation of his mutatioa This was done by the ADC, Jorhat, by his order dated 12.11.2001, purportedly by adjusting a non-decreetal claim made by the respondent No.3 by adjusting the same against the share of land to which the appellant was entitled to as per the decree passed by the trial court in the said partition suit. Thereafter, on the ground that the ADC, Jorhat had gone beyond the decree, the appellant herein had unsuccessfully challenged the said order dated 12.11.2001 passed by the Additional Deputy Commissioner, Jorhat before the Assam Board of Revenue.
5. Heard Mr. D. Mozumdar, learned Senior Counsel assisted by Ms. Juri Kakati, learned counsel for the appellant and also heard Mr. GN Sahewalla, learned senior counsel assisted by Ms. D. Saini, learned Counsel appearing for the respondent No.3. None appears for the State Respondents.
6. The arguments made by Mr. Mozumdar, learned senior counsel for the appellant is summarized as follows:
i) The Additional Deputy Commissioner, Jorhat, to whom the matter was sent for partition is required to act in conformity with the jurisdiction conferred upon him under section 54 read with Order 20, Rule 18 of CPC;
ii) There being no decree for Rs. 23,73,233.50 plus penalties, the adjustment made by the ADC, Jorhat is vitiated by perversity and total non application of judicial mind; and
iii) That the impugned orders passed by the learned ADC, Jorhat is appealable under section 147 of the Assam Land and Revenue Regulation, as such, the appellant had approached the said authority and therefore the writ petition and writ appeal was maintainable.
7. In order to canvass the aforesaid arguments, the learned senior counsel, Mr. Mozumdar has meticulously taken us through the plaint, judgment dated 20.01.1989 passed by the trial court in T.S. No. 68/1977, order dated 08.12.1998 passed by the executing court in Misc. (J) Case No. 22/97 (arising in T. Ex. No. 3/89), order dated 12.11.2001 passed by the ADC, Jorhat in Case No. Rev. Misc. Case No.l 1/98, judgement dated 12.8.2003 passed by the Assam Board of Revenue in Case No. 9RA(J)/2002 and judgement and the order dated 14.08.2013 passed by the learned Single Judge of this Court in W.P.(C) No.8486/2003.
8. At this stage, we deem it unnecessary to extract the excerpts of the above referred pleadings and orders herein in order to maintain the brevity.
9. Per contra, Mr. G.N. Sahewalla, learned Senior Counsel appearing for the contesting Respondent No.3, while rebutting the arguments made on behalf of the appellants, submit that not only the present appeal is without any merit, but at every stage, the appellant had successfully been able to cause undue and inordinate delay so as to defeat the decree passed against him. Sri Sahewalla submits that after the judgment and decree dated 20.01.89 was passed in her favour by the Court of Assistant District Judge, Jorhat (as it was named then), the appellant herein had filed F.A. No. 37/99 before this Hon'ble Court, wherein by an interim order passed in M.C. No. 54/1989, a conditional stay was initially granted, but was subsequently vacated by this Court by order dated 28.03.1990, and liberty was granted to the respondent No.3 to proceed with the execution. Thereafter, also in the proceeding of the execution case, the appellant filed various petitions and/or objections, causing delay in disposal of the said execution case and in the meanwhile, by an order dated 28.01.1991, the respondent No.3 was appointed as the Receiver of the suit property on furnishing a bond of Rs. 2,00,000/-. The relevant papers were ordered to be sent to the Collector, Jorhat for partition. The said order dated 28.01.1991 was challenged by filing M.A.(F) No. 119/ 91 before this Court against the order for appointment of Receiver. However, this court, by judgment dated 03.01.1994, dismissed both F.A. No. 37/99 and M.A.(F) No. 119/91. However, it was only by virtue of order dated 21.08.1995 passed by the learned Assistant District Judge, Jorhat, that the respondent No.3 was allowed to proceed with the execution case. Once again, the appellant filed a petition before the executing court for staying the order dated 21.08.1995, which was rejected, against which the appellant preferred Civil Revision No. 370/95 before this court, which was also dismissed by order dated 14.09.1995 passed by this court. Thereafter, the appellant preferred another petition before the executing court for staying the proceeding and on rejection of such repeated prayers, the appellant filed yet another revision, being Civil Revision No. 265/95 before this Court, which was also rejected by order dated 10.10.1996. In the meantime, in order to scuttle and/or dislodge the process of execution, the appellant also filed T.S. No. 60/1995 for declaration that the decree dated 20.01.1989 was obtained by fraud, but the said suit was dismissed with cost by order dated 10.09.1996. Mr. Sahewalla, learned Senior Counsel for the respondent No.3 strenuously argues that there was no infirmity in the orders dated 08.12.1998 by the learned Civil Judge, Jorhat and submits that the legality and validity of the said order has been tried and tested, when the appellant herein had filed Civil Revision No. 102/99 before this Court against the said order dated 08.12.1998 because the said revision was dismissed on withdrawal and submits that all those issues, which has attained finality cannot be reopened in this writ appellate proceeding. He further argues that the appellant did not make payment of the share of income due to the respondent No.3 and, as such, the ADC. Jorhat, being the Commissioner lawfully appointed by the civil court had full power and authority to realize the same in terms of his order dated 12.01.2001, which was a fully speaking order and was upheld by the Assam Board of Revenue by its judgment dated 12.08.2003, which was again a fully speaking order. Mr. Sahewalla defends the order passed by the ADC, Jorhat as well as the judgment dated 12.08.2003 passed by the Assam Board of Revenue and prays for dismissal of the present appeal.
10. On perusal of the record and after appreciating the arguments advanced by the learned Senior Counsel for both the contesting parties, we deem it proper to formulate the following points for determination:-
i) Whether the trial court had passed a decree for realization of amount of Rs. 23,73,233.50?
ii) Whether in the absence of any specific order of decree by the trial court, the learned ADC, Jorhat could have travelled beyond the decree so as to adjust the sum of Rs. 23,73,233.50 plus penalties by adjustment against the share of land decreed in favour of the appellant?
iii) Whether on facts, following judgments and orders viz., (a) the order dated 12.11.2001 passed by the ADC, Jorhat, (b) judgment dated 12.08.2003 passed by the Assam Board of Revenue; and (c) judgment and order dated 14.8.13 passed by this Court in W.P.(C) No.8486/2013 are liable to be interfered with?
11. As all the aforesaid three points of determination are interlinked, the matters are taken up together.
12. In order to appreciate the rival contentions and submission of the learned senior counsels for the parties, it would now be relevant to extract the order contained in the judgment dated 20.01.1989 passed by the trial court in T.S. No. 68/77.
"Suit is decreed on contest with cost against the defendants. It is directed to make partition of the suit properties left by late Sardar Sujan Singh after his death equally in between the plaintiffs on the one hand and defendant No.l on the other hand taking into account of the landed properties sold by both the parties as alleged and defendant No. 1 is directed to ender a true and proper accounts of the joint family properties of the parties including the Jyoti Cinema Hall since 28.11.69, date of death of Sardar Mohan Singh, and to make payment of the amount due to the plaintiffs after proper accounting. It is also directed to appoint a Receiver of the joint family properties till the parties and till possession of respective share is delivered to the parties. Thus, the suit is disposed on contest with costs."
13. For a better understanding of the above quoted order dated 20.01.1989, we are bifurcating the same into 3 parts, viz., (i) the direction to make partition of the suit property left by Late Sardar Sujan Singh equally between the Respondent No.3 and the Appellant in the ratio of 50:50, by taking into account the landed properties sold by both the parties; (ii) Appellant was to render true and proper accounts of the joint family properties of the parties including the Jyoti Cinema Hall since 28.11.1969 upto to the death of Mohan Singh; and (iii) the Appellant was required to make payment of the amount due to the Respondent No.3 after proper accounting.
14. As per Schedule-B appended to the plaint, the entire property, which was left behind by the predecessor-in-interest of the contesting parties, consisted of land ad-measuring 18 Bigha- 2 Katha- 2 Lechas, situated at Jorhat. which includes a cinema hall known as Jyoti Cinema Hall, together with the appurtenants enjoined thereto. The suit property was also inclusive of land ad-measuring 19 lechas in Jorhat, which is described in Schedule-C appended to the plaint.
15. 'Hie record reveals that the judgment and order passed by the learned trial court was put to execution, which was registered as T. Ex. Case No.3/89. By an order dated 28.01.1991, the learned executing court appointed the respondent No.3 as the Receiver of 'Jyoti Cinema Half by removing the appellant from its possession. It transpires from the record that the entire suit land, roughly measuring about 18 bighas and odd was handed over to the respondent No.3. By the same order dated 28.01.1991, the preliminary decree was sent by the learned executing to the Collector for partition. The partition case was assigned to ADC, Jorhat and a case being Rev. Misc. Case No. 11/98 was registered.
16. Record reveals that by his order dated 12.11.2001, the learned ADC, Jorhat, inter-alia, assumed and held that he was not only required to apportion the family properties of both the parties in the ratio of 50:50, but he was also granted the liberty of adjusting the properties to the extent of the decreetal amount of Rs.23,73,233.50 and other penalties imposed on the appellant and to compensate the respondent No.3 by adjusting the same against the property falling in the share of respondent No.3 after partition. Accordingly, by the same order, the learned ADC, Jorhat valued the properties and by curtailing the share of the appellant from the value so determined in respect of the share of the appellant's property, ordered that the appellant was only entitled to 2 katha-16 lechas of land of Patta No.231 of Chaowdong Gaon after adjustment and held that all other land tails into the share of the respondent No.3.
17. It is seen that as the learned ADC, Jorhat did not mention any specific Dag or identified any specified area of the Dag in respect of the 2 katha- 16 lechas land allotted to the appellant. There is also nothing on record to show that the appellant has even enjoyed the said 2 katha-16 lechas of land because as per the above referred order dated 12.11.2001, the learned ADC, Jorhat had made the respondent No.3 as the "Receiver" of all the properties, as before.
18. Mr. Mozumdar, learned senior counsel for the appellant had argued that when the civil court issues a direction to the Collector to make partition the suit land, if the land is a government revenue paying estate, the said order is deemed to have been passed under the provisions of Order 20, Rule 18 (i) CPC read with section 54 CPC. Thus, the Collector can exercise the power only to cause partition of the government revenue paying estate. He submits that the civil court can only appoint a Commission under the provisions of Order 26, Rule 13 CPC for partitioning other lands, not covered by section 54 CPC or Order 20, Rule 18 (i) CPC. The power for rendition of accounts or for making calculation of the amount recoverable under the decree can only be done under the provisions of Order 20, Rule 18 (ii) CPC and for exercise of such power, recourse can be taken under the procedure prescribed in Order 26, Rule 14 CPC. We are in agreement with the said submissions.
19. As mentioned hereinbefore, in the judgment dated 20.01.1989, passed by the Assistant District Judge, Jorhat, it is crystal clear there was no decree for Rs. 23,73,233.50 and there was also no decree for recovery of any penalties against the appellant. Consequently, we lind that the learned ADC, Jorhat committed grave illegality by realizing/recovering by way of adjustment a sum of Rs.23,73,233.50 by adjusting the amount against the value of the land which had fallen in the share of the appellant after partition. The said act of the learned ADC, Jorhat is without any basis and, as such, his order and subsequent actions suffer from the vice of illegality amounting to perversity. In accordance with law, the learned ADC, Jorhat was merely required to cause partition of the land in metes and bounds between the appellant and the respondent No.3 in th erato of 50:50 in terms of the trial court's judgment and order dated 20.01.1989, by taking into account the landed properties already sold by both the parties as on the date of the said judgment. Thereafter, is expected of him to submit his report and thereupon the civil court would normally draw-up a final decree.
20. We also find from the record that the respondent No.3 had been appointed as the 'Receiver' of the properties for a long period of time by virtue of order dated 28.01.1991 passed by the learned Executing Court. Therefore, if the appellant did not render any accounts, the respondent No.3 could have made an estimate or assessment of the accounts during the period when the appellant was looking after and/or managing the properties. Moreover, having been appointed as the 'Receiver', there are some duties enjoined under the provisions of Order 40, Rule 3 and the respondent No.3 was required to comply with the same as per the order dated 08.12.1998, passed by the Executing Court in Misc.(J) Case No. 22/97.
21. Considering the legal and factual position as discussed above, we hold that the exercise of determination of the amount due to the appellant after proper accounting could not have been done by the ADC, Jorhat and the realization and/or recovery of money is within the realm of the Executing Court alone. It will be open for the Executing Court to appoint a Commission for determination of the amount due as referred to hereinbefore. Consequently, we are compelled to hold that grave injustice has been done to the appellant as a result of the order dated 12.11.2001 passed by the learned ADC, Jorhat in Rev. Misc. Case No. 11 /98, which we have already held to be illegal and perverse as there was no decree for recovery of Rs.23,73,233.50 from the appellant. Consequently, we set aside the said order and as a consequential corollary, we also set aside the judgement dated 12.8.2003 passed by the learned Assam Board of Revenue in Case No. 9RA(J
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)/2002 and the judgment and order dated 14.8.2013, passed by this the learned Single Judge in W.P.(C)No. 8486/2013. 22. We, therefore, direct the parties to appear before the Executing Court i.e. court of Civil Judge, Jorhat, on 20.12.2016 in connection with T. Ex. Case No. 3/1989 and file appropriate application for effecting the partition of Govt, revenue paying estate left behind by Late Sardar Sujan Singh, including 'Jyoti Cinema Hall', etc., and thereafter the learned Executing Court shall pass necessary orders for causing effectual partition of the said properties strictly in accordance with directions and order contained in the judgment dated 20.01.1989 in T.S. No. 68/1977, if required by re-sending the matter afresh to the Collector for making partition in terms of the provisions of Order 20, Rule 18 (i) read with section 54 CPC. We further direct that the learned Executing Court that while deciding the sum due from the appellant herein, will take into account the accounts rendered by the parties including respondent No.3, who was under a legal obligation to comply with the provisions of Order 40, Rule 3 CPC as per the order dated 08.12.1998 passed by the Executing Court in Misc. (J) Case No. 22/1997 (arising in T.Ex. Case No. 3/1989). 23. As the suit relates to the year 1977, we direct the Executing Court to take up the execution case i.e. T. Ex. Case No. 3/1989 on priority basis to dispose of the matter within a period of 12 (twelve) months from the re-commencement of the execution proceedings. It is made clear that in the event, if any party makes any attempt to cause unnecessary delay in the execution process, the learned Executing Court may proceed on the basis of records available before it. 24. With the above directions and observations, the appeal is allowed, with no order as to costs.