Holding

Section 154(1)(e) bars civil court jurisdiction only when an imperfect partition suit is otherwise maintainable under Section 97, and because the appellant did not meet the conditions of Section 97, the bar does not apply.

Summary

The appellant, Abdul Rejak Laskar, purchased a share of land in 1977 but later faced forcible dispossession by the respondents. After a series of title suits and appeals, the appellant sought an imperfect partition of the land under the Assam Land and Revenue Regulation, 1886, which was denied by the Additional Deputy Commissioner on the ground that he was not in actual possession. The appellant then filed a civil suit for partition, which the trial court dismissed, holding the suit barred by s.154(1)(e) of the Regulation. The High Court affirmed this view, but the Supreme Court examined whether s.154(1)(e) excludes civil court jurisdiction only when an imperfect partition claim is otherwise maintainable under s.97. Since the appellant failed to satisfy the possession and consent requirements of s.97, the bar of s.154(1)(e) did not apply, and the civil court retained jurisdiction to determine his rights. Consequently, the Supreme Court set aside the High Court’s decision, restored the lower court’s decree granting partition, and allowed the appeal.

Issues considered

Whether the plaintiff is entitled to seek partition of the land under Section 97 of the Assam Land and Revenue Regulation, 1886.
Whether the suit is barred by Section 154(1)(e) of the Assam Land and Revenue Regulation, 1886.

Legislation cited

Assam Land and Revenue Regulation, 1886s. 100, s. 154(1)(e), s. 97
Code of Civil Procedure, 1908s. 4, s. 54, s. 9, s. Order XX Rule 18

Headnote

Issue for Consideration The High Court held that the s.154(1)(e) of the the Assam Land and Revenue Regulation, 1886 bars the civil court from exercising its jurisdiction; whether the High Court committed any error in taking view that the suit filed by the appellant herein was barred u/s.154(1)(e) Assam Land and Revenue Regulation, 1886 – s.154(1)(e) and s.97 – Code of Civil Procedure, 1908 – Or.XX, r.18 – The Appellate Court vide order dated 20.04.1993 passed in Title Appeal No. 59/1990 held that the appellant herein was entitled to a decree for

Subjects

SuitPartitionCivil CourtDeclaration of right, title and interestTypes of decreesPreliminary decreeComposite decreeFinal decreeJurisdiction of civil courtPerfect partitionImperfect partitionSection 154(1)(e) of the Assam Land and Revenue Regulation, 1886Section 97 of the Assam Land and Revenue Regulation, 1886

Judgment

[2024] 12 S.C.R. 1911 : 2024 INSC 1023

Abdul Rejak Laskar
v.
Mafizur Rahman & Ors.
(Civil Appeal No. 14805 of 2024)
20 December 2024
[J.B. Pardiwala* and R. Mahadevan, JJ.]

Issue for Consideration
The High Court held that the s.154(1)(e) of the the Assam Land
and Revenue Regulation, 1886 bars the civil court from exercising
its jurisdiction; whether the High Court committed any error in
taking view that the suit filed by the appellant herein was barred
u/s.154(1)(e) of the Regulation, 1886.

Headnotes†
Assam Land and Revenue Regulation, 1886 – s.154(1)(e)
and s.97 – Code of Civil Procedure, 1908 – Or.XX, r.18 – The
Appellate Court vide order dated 20.04.1993 passed in Title
Appeal No. 59/1990 held that the appellant herein was entitled
to a decree for declaration of right, title and interest and also
joint possession of suit land along with other co-pattadars –
The decree passed by the First Appellate Court attained
finality – The Plaintiff instituted the Partition Case No. 45/99-
2000 before the Additional Deputy Commissioner seeking
imperfect partition of the suit land under the the Regulation,
1886 – The Additional Deputy Commissioner declined to
partition the suit land on the ground that the plaintiff was not
in actual possession of the land and there was no consent
from the other co-sharer of the land – Thereafter, the plaintiff
instituted a civil suit, however, the same was dismissed on
the ground that the plaintiff was not entitled to seek imperfect
partition in view of the bar encoded in s.154(1)(e) of the
Regulation, 1886 – The High Court held that the s.154(1)(e)
of the the Assam Land and Revenue Regulation, 1886 bars
the civil court from exercising its jurisdiction – Correctness:

*Author
1912 [2024] 12 S.C.R.

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Held: The jurisdiction of the civil court u/s.154(1)(e) would be barred
only if an imperfect partition suit is otherwise maintainable u/s.97 –
To maintain a suit for imperfect partition u/s.97, the appellant has to
fulfill two conditions stipulated therein – a) First, the person seeking
partition should be in actual possession of the property in respect
of which he seeks partition, and; b) Secondly, the co-sharers may
not be ready and willing to give their consent and if the person
seeking partition is not in actual possession then no other remedy
is available to him except to go before the civil court and seek
partition on the basis of his own title as a co-owner – A reference
in this connection may be made to a decision of the Calcutta High
Court in Musstt. Rukeya Banu & Ors. v. Musstt. Nazira Banu &
Ors. where it was pointed out that a partition, whether perfect
or imperfect, of revenue-paying properties must be made by the
Revenue authorities – This follows from a conjoint reading of
Sections 96 and 154(1)(e) of the Regulation, 1886 respectively –
However, the jurisdiction of the civil court to determine the right of
the parties to the property in dispute as well as shares to which
they are entitled has not been taken away by the Regulation in
question, and it is for the civil court to decide whether the property
is or is not liable to partition – The same view applies to other
clauses of Section 154 – The parties to a suit are entitled to obtain
a declaration from the civil court that they have got the right to
obtain from the revenue authorities a separation and allotment of
their shares in the estate according to their proportionate rights – It
is the civil court which will decide whether the plaintiff is entitled
to seek partition and to what extent – If it is found by the court
that revenue paying properties have to be partitioned among the
parties, the court may declare the share of each of the parties
and leave them to go to the revenue authorities for making the
necessary performance – Further in various decisions of Gauhati
High Court, it is clarified that the bar created by s.154(1) does not
preclude suits based on title to the property from being within the
jurisdiction of civil courts – The impugned judgment of the High
Court is accordingly set aside for not being sustainable in law.
[Paras 52, 53-57]

Partition – Perfect or imperfect:
Held: Partition is either perfect or imperfect – Perfect partition
means division of a revenue paying estate into two or more such
[2024] 12 S.C.R. 1913

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

estates each separately liable for revenue assessed thereon –
Imperfect partition means the division of a revenue paying estate
into two or more portions jointly liable for the revenue assessed
thereon entire estate. [Para 23]

Assam Land and Revenue Regulation, 1886 – Chapter VI,
s.100 – Perfect partition and imperfect partition:
Held: Chapter VI of the Regulation, 1886 deals with the procedure
for carrying out “perfect partition” and “imperfect partition” of a
revenue paying estate on the basis of an application made before
the Deputy Commissioner – Section 100 of the Regulation, 1886,
however, provides that when there is objection as regards the
question of title, the Deputy Commissioner will stay his hand in
the matter and such objection would be determined by a civil court
of competent jurisdiction. [Para 24]

Code of Civil Procedure, 1908 – s.4 – When CPC is in conflict
with Special or Local law:
Held: The plain reading of the said provision would indicate that
when anything in the CPC is in conflict with anything in the special
or local law or with any special jurisdiction or power conferred or in
the special form of procedure prescribed by or under any other law,
the Code will not (in the absence of any specific provision to the
contrary) prevail so as to override such inconsistent provisions –
When there is no conflict between the special or local law and the
Code, the Code will apply. [Para 34]

Code of Civil Procedure, 1908 – s.9 – Jurisdiction of Civil Court:
Held: Section 9 of the Civil Procedure Code, 1908 provides that
whenever a question arises before the civil court whether its
jurisdiction is excluded expressly or by necessary implication,
the Court naturally feels inclined to consider whether the remedy
afforded by an alternative provision prescribed by any special
statute is sufficient or adequate – In cases where exclusion of the
civil court's jurisdiction is expressly provided for, the consideration
as to the scheme of the statute in question and the adequacy or
sufficiency of the remedy provided for by it may be relevant but
cannot be decisive – Where exclusion is pleaded as a matter of
necessary implication such consideration would be very important
1914 [2024] 12 S.C.R.

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and in conceivable circumstances might become even decisive.
[Para 29]

Code of Civil Procedure, 1908 – s.54 – Partition of estate or
separation of share:
Held: The plain reading of the s.54 would indicate that the same
deals with a case in which a civil court can pass a decree but
cannot itself execute it – The execution has to be effected by the
Collector – Civil courts have under this Section, jurisdiction to try
and decide suits for partition or separate possession of share of
estates assessed to payment of revenue to Government but have
no power to execute decree passed in such suits – The decree
that may be passed by the civil court would declare the rights
of the several parties interested in the property, but the decree
should direct the actual partition to be made by the Collector or
any officer subordinate to him authorized on that behalf. [Para 35]

Code of Civil Procedure, 1908 – Or.XX, Rule 18 – Decree in suit
for partition of property or separate possession of a share:
Held: The said rule allows the court to determine the rights of parties
with respect to land in the civil court and to pass a preliminary
decree, decree in the rights of several parties interested in the
property – When actual partition is to be effected, in pursuance of
the declaration of the rights of the parties in land, the civil court has
to refer the matter to the Collector or any officer subordinate to him
authorized to act on behalf of the Collector – Sub-rule (1) refers
to partition decrees relating to a “estate assessed to Government
revenue” referred to in Section 54 of the Code, while sub-rule
(2) deals with partition decrees relating to any other immovable
property or movable property. [Paras 38, 39]

Suit – Partition – Types of decrees issued by the Court:
Held: In a suit for partition, the court may issue three types of
decrees to put the issue to rest: preliminary decree, composite
decree (partly preliminary & partly final), and final decree – The
purpose of a suit for partition or separation of a share is two-fold:
a) First, declaration of plaintiff's share in the suit properties under
the preliminary decree, and; b) Secondly, division of his share by
metes and bounds which would take place under the final decree.
[Para 40]
[2024] 12 S.C.R. 1915

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

Case Law Cited
Muthangi Ayyana v. Muthangi Jaggarao & Ors (1977) 1 SCC
241; Dhulabhai & Ors. v. State of M.P. & Anr. [1968] 3 SCR 662;
Shankar Balwant Lokhande (Dead) by LRs. v. Chandrakant Shankar
Lokhande & Anr. (1995) 2 SCR 776 : AIR 1995 SC 1211; Venkata
Reddy & Ors. v. Pethi Reddy [1963] Supp. SCR 616 : AIR 1963
SC 992 – referred to.
Ramagouda Rudregouda Patil v. Lagmavva, 1984 SCC Online
Kar 192; Thanda Bala Choudhury and Anr. v. Birendra Kumar
Choudhury, 2002 SCC OnLine Gau 26; Daulatram Lakhani v.
State of Assam and Ors., 1989 (1) G.L.J. 37; Gauri Shankar
Agarwalla v. Madanlal Agarwalla and Ors., 2010 SCC OnLine Gau
465; Moimunnessa v. Faizur Rahman & Ors. (1987) 2 GLR 28;
Secretary of State, Represented by the Collector of South Arcot
v. Mask & Company AIR 1940 Privy Council 105; Guran Ditta
L. v. T.R. Ditta AIR 1935 PC 12; Musstt. Rukeya Banu & Ors. v.
Musstt. Nazira Banu & Ors. AIR 1928 Cal 130; Ka Trily Tariang v.
U. Resdrikson Lyngdoh and Ors. (1984) 2 G.L.R. 8 – referred to.

List of Acts
Assam Land and Revenue Regulation, 1886; Code of Civil
Procedure, 1908.

List of Keywords
Suit; Partition; Civil Court; Declaration of right, title and interest;
Types of decrees; Preliminary decree; Composite decree; Final
decree; Jurisdiction of civil court; Perfect partition; Imperfect
partition; Section 154(1)(e) of the Assam Land and Revenue
Regulation, 1886; Section 97 of Assam Land and Revenue
Regulation, 1886.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14805 of 2024
From the Judgment and Order dated 22.08.2022 of the Gauhati
High Court in RSA No. 243 of 2014

Appearances for Parties
Parthiv K. Goswami, Sr. Adv., Kaushik Choudhury, Saksham Garg,
Jyotirmoy Chatterjee, Advs. for the Appellant.
Ms. Mohna, Adv. for the Respondents.
1916 [2024] 12 S.C.R.

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Judgment / Order of the Supreme Court
Judgment

J.B. Pardiwala, J.

For the convenience of exposition, the present judgment is divided
into the following parts:

INDEX*

A. FACTUAL MATRIX .................................................................. 2
B. SUBMISSIONS ON BEHALF OF THE APPELLANT / 10
PLAINTIFF ..............................................................................
C. SUBMISSIONS ON BEHALF OF THE RESPONDENTS / 11
DEFENDANTS........................................................................
D. ANALYSIS ................................................................................ 15
i. What is Partition?............................................................... 16
ii. Order XX Rule 18 of the CPC........................................... 22
iii. When does Section 154(1)(e) bar the jurisdiction of civil 33
courts?................................................................................
E. CONCLUSION ........................................................................ 41

1. Leave granted.
2. This appeal arises from the judgment and order passed by the
Gauhati High Court in Regular Second Appeal No. 243/2014 dated
22.08.2022, by which the second appeal filed by the respondents
herein (original defendants) came to be allowed thereby setting
aside the Judgment and order passed by the First Appellate Court
and restoring the Judgment and decree passed by the Trial Court.
3. For the sake of convenience, the appellant – herein shall be referred
to as the original plaintiff and the respondents – herein shall be
referred to as the original defendants.

* Ed. Note: Pagination as per the original Judgment.
[2024] 12 S.C.R. 1917

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

A. FACTUAL MATRIX
4. The facts giving rise to this appeal may be summarized as under.
a. It is the case of the appellant herein (original plaintiff) that
sometime in 1973, the respondents herein (original defendants
nos. 1 and 2 respectively) acquired ownership of 02 katha and 10
lechas of land of one Javed Ali by inheritance. Pursuant thereto,
the respondent nos. 1 and 2 respectively as joint owners took
over possession of their respective shares each admeasuring
01 katha and 05 lechas.
b. The respondent no. 1 herein vide two separate registered sale
deeds dated 18.05.1977 and 25.07.1977 respectively sold his
entire 01 katha and 05 lechas of the land in Dag No. 787 of
PP No. 127 situated in Nagaon to the appellant herein in the
following manner:
i. Registered sale deed no. 3198/77 for 01 katha of land.
ii. Registered sale deed no. 6292/1977 for 05 lechas of land.
c. Possession over the said portion of the land was handed over
to the plaintiff. However, soon thereafter, defendant nos. 1 and
2 tried to forcibly dispossess the plaintiff from the suit property.
d. Aggrieved by the forcible dispossession, the appellant herein
instituted Title Suit No. 67/1979 for confirmation of his right, title
and interest and declaration of possession over the suit land
admeasuring 01 katha 05 lechas covered by Dag. No. 787.
e. The Title Suit No. 67/79 instituted by the plaintiff came to be
decreed in favour of the plaintiff vide judgement and order dated
29.06.1981. Aggrieved by the same, the defendants preferred
an appeal against the judgment. The appeal came to be allowed
and the matter was remanded back to the Trial Court for fresh
consideration in light of the non-joinder of necessary parties.
f. Upon fresh trial subsequent to the aforesaid judgment, Title Suit
No. 67/79 instituted by the plaintiff came to be dismissed by
the court of Munsif vide judgement dated 17.09.1990 holding
that although the appellant had acquired right, title and interest
over the suit property yet no effective decree could be passed
due to non-joinder of necessary parties.
1918 [2024] 12 S.C.R.

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g. In view of the aforesaid, the plaintiff herein preferred Title Appeal
No. 59/1990 before the Assistant District Judge, Nagaon, Assam
seeking to challenge the judgment and order passed by the
court of Munsif referred to above.
h. The Appellate Court vide order dated 20.04.1993 passed in
Title Appeal No. 59/1990 held that the appellant herein was
entitled to a decree for declaration of right, title and interest and
also joint possession of suit land along with other co-pattadars.
However, the Appellate Court held that as the appellant could not
be delivered possession of the suit land, he would be at liberty
to seek appropriate remedy, seeking partition of the suit land.
i. The defendants herein preferred Second Appeal No. 77 of 1993
before the Gauhati High Court which came to be dismissed vide
judgment and order dated 22.10.1998. As a result, the decree
passed by the first appellate court attained finality.
j. As the plaintiff was granted only joint possession of the
suit property vide order dated 20.04.1993, he instituted the
Partition Case No. 45/99-2000 before the Additional Deputy
Commissioner, Nagaon, seeking imperfect partition of the suit
land under the Assam Land and Revenue Regulation, 1886 for
short, “the Regulation, 1886”.
k. The Additional Deputy Commissioner vide his order dated
12.07.2004 declined to partition the suit land on the ground that
the plaintiff was not in actual possession of the land and there
was no consent from the other co-sharer of the land.
l. The plaintiff, in such circumstances referred to above, instituted
Title Suit No. 83 of 2004 before the Civil Judge Nagaon, praying
for delivery of a Khas possession of land measuring 01 kathas
05 lechas to the appellant herein after partition of the land and
also prayed for appointment of a commissioner for effecting the
partition. The reliefs prayed for in the suit are as under:
“It is, therefore, prayed that
(ka) order may be passed for delivery of khas of
land measuring 1 katha 5 lechas described in the
schedule (ka) of the plaint to the plaintiff after partition
of the land;
[2024] 12 S.C.R. 1919

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

(kha) A commissioner may be appointed at the time
of partition for effecting partition;
(ga) Issue precept to the revenue authorities for
correcting the records and issue of separate patta
in favour of plaintiff;
(gha) full cost of the suit may be decreed in favour
of the plaintiff;
(unga) any other relief/reliefs which are entitled by
the plaintiff under law and equity.”
m. The defendants filed their written statements inter alia taking
the stance that the civil court had no jurisdiction, and it is only
the revenue authority which has the jurisdiction to partition
the land.
n. The Trial Court having regard to the pleadings of the parties
framed the following issues for its consideration:
“1) Whether there is any cause of action for the suit?
2) Whether the suit is maintainable in its present
form?
3) Whether the suit is bad for non-joinder of
necessary parties?
4) Whether the plaintiff is entitled for partition of
suit land as per provisions of ALRR 1886?
5) Whether the TS 67/79 was decreed in favour
of the plaintiff?
6) Whether the plaintiff is entitled to a decree as
prayed for?
7) To what other relief/reliefs the parties are
entitled?”
o. The Civil Judge (Jr. Div.) No. 1 Nagaon, Assam vide its judgment
and order dated 16.07.2011 dismissed the Title Suit No. 83/2004
instituted by the plaintiff on the ground that the plaintiff was not
entitled to seek imperfect partition in view of the bar encoded
in Section 154(1)(e) of the Regulation, 1886.
1920 [2024] 12 S.C.R.

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p. The Trial Court while answering the issues nos. 5, 6 and 7
respectively observed as under:
“Issue No 5:
26.This issue was framed to decide whether TS
67/79 was decreed in favour of the plaintiff. This is
a matter of records and there is nothing to prove or
disprove this fact. The Ld. Counsel of the parties have
not made any submissions in this regard. It appears
from the record that initially TS 67/79 was decreed in
favour of the plaintiff. Then it went to the first appellate
court. The case was again remanded back by the
appellate court. In the subsequent occasion the suit
was dismissed on the ground that the suit is bad for
non-joinder of parties and that no proper identification
of the land could be established by the plaintiff and
hence no effective decree could be passed.
This issue is decided negatively.
Issue No 6 & 7:
27. This suit is basically for partition of the suit land
and for issuance of precept. From the discussions
made in issue No 4 it transpires that the plaintiff has
failed to prove his entitlement for partition. As such
these two issues are decided against the plaintiff.”
q. In such circumstances referred to above, the plaintiff preferred
Title Appeal No. 30 of 2011 before the Civil Judge, Nagaon which
came to be allowed vide judgment and order dated 16.05.2014,
holding that as in the first round of litigation declaration of
joint possession had already been issued (vide order dated
20.04.1993 referred to above), plaintiff was entitled to recovery
of exclusive Khas possession of his share of 01 kathas and 05
lechas by partition thereof. Furthermore, a direction was issued
to the Trial Court to issue precept to the revenue authority to
effect the partition. The operative part of the order passed by
the First Appellate Court reads thus:-
“Appeal is allowed on contest. No cost. Judgment
and decree passed by the learned Munsif No.2,
[2024] 12 S.C.R. 1921

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

Nagaon in TS 83/04 dated 16-07-2011 is set aside.
Suit of the plaintiff is decreed. Plaintiff is entitled for
partition of his share of 1 Katha 5 lechas of land in
suit patta and recovery of possession of his share
of purchased 1 katha 5 lechas of land and precept
is to be issued to the revenue authority (collector) to
cause the partition. Trial Court shall issue precept.
Prepare decree accordingly.”
r. The defendants being dissatisfied with the above filed Regular
Second Appeal No. 243 of 2014 before the High Court seeking
to challenge the judgment and order dated 16.05.2014 passed
in TA No.30 of 2011 referred to above.
s. The High Court formulated two substantial questions of law for
its consideration:
“A. Whether the plaintiff/respondent is entitled to get
partition of the land being under Section 97 of Assam
Land Revenue Regulation?
B. Whether the suit is barred under Section 154 of
the Assam Land Revenue Regulation?”
t. The High Court allowed the Second Appeal filed by the
defendants and thereby quashed and set aside the Judgment
and Decree passed by the First Appellate Court. The High Court
held that the Section 154(1)(e) of the Regulation, 1886 bars
the civil court from exercising its jurisdiction and further that
the revenue court had rightly rejected the prayer of partition
under Section 97 as whoever seeks partition of the land must
be in possession of the land. The High Court while allowing
the Second Appeal observed in Paras 12, 13, 14, 15 and 16
respectively as under:-
“12. There is no doubt that a civil court is empowered
to decide the right of a person in respect of a property
but section 154(1)(e) of the Regulation of 1886 states
that no civil court shall exercise jurisdiction in case
of claims of persons to imperfect partition, except in
cases in which a perfect partition could not be claimed
from, and being refused by the revenue authorities
on the ground that the result of such partition would
1922 [2024] 12 S.C.R.

Supreme Court Reports

be to form a separate estate liable for an annual
amount of revenue less than 5 rupees.
13. It is an admitted fact that the revenue authorities
refused the prayer of partition made by Abdul Rejak
Laskar. It was rejected on the ground that he did not
have possession over the said 1.5 kathas of land.
Under Section 97 of Regulation of 1886, whoever
seeks partition of a land, he must be in possession
of that land. It is also an admitted fact that Abdul
Rejak Laskar is not in possession of that land and,
therefore, the revenue authorities rightly rejected his
prayer for partition.
14. Under the aforesaid premised reasons, the
substantial questions of law are answered accordingly.
15. Now, this court is of the opinion that the learned
civil judge erroneously reversed the judgment of the
Civil Judge (Jr. Division No. 1), Nagaon. Therefore,
judgment and decree dated 16.05.2014 passed by
the Civil Judge, Nagaon, in Title Appeal No.30/2011
arising out of the judgment and decree dated
16.07.2011 passed by the Munsif No. 2, Nagaon
in Title Suit No. 83/2004 is set aside and quashed.
16. Further, the judgment and decree dated 16.07.2011
passed by the Munsif No.2, Nagaon in Title Suit
No.83/2004 is affirmed.”
5. Being dissatisfied with the Judgment and order passed by the High
Court, referred to above, the plaintiff is here before this Court with
the present appeal.

B. SUBMISSIONS ON BEHALF OF THE APPELLANT /
PLAINTIFF
6. The learned counsel appearing for the appellant would submit that
Section 97 of the Regulation, 1886 provides that a suit for imperfect
partition would be maintainable, inter alia, on two conditions stipulated
therein being satisfied:
a. The person seeking partition is in actual possession of the
property in respect of which he seeks partition, and;
[2024] 12 S.C.R. 1923

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

b. Consent of the recorded co-sharers of land, holding in aggregate
more than one-half of the estate.
7. He submitted that since both these conditions were absent in the case
of the appellant herein, the Additional Deputy Commissioner, Nagaon
held that the imperfect partition suit was not maintainable before the
Revenue Authority. That being the position, the civil court would have
jurisdiction to entertain the appellant’s partition suit. He submitted that
the jurisdiction of the civil court under Section 154(1)(e) will be barred
only if an imperfect partition suit is otherwise maintainable under
Section 97. In the facts of the present case, where the ingredients
for invoking the remedy of imperfect partition under Section 97 are
admittedly absent, the bar contained in Section 154(1)(e) would not
apply. He submitted that any other interpretation of the said Regulation
would render the appellant remediless in seeking partition, even after
having a decree of right, title and possession in his favour.
8. The learned counsel further submitted that the Revenue Authorities
are competent to carry out perfect/imperfect partition of an estate only
if all the co-sharers give their consent for such amicable partition.
However, if there is any dispute with regard to the title or possession
raised by any of the co-sharers, the matter will be decided by the
competent civil court having jurisdiction over the matter.

C. SUBMISSIONS ON BEHALF OF THE RESPONDENTS /
DEFENDANTS
9. On the other hand, learned counsel appearing for the respondents
submitted that no error not to speak of any error of law could be said
to have been committed by the High Court in passing the impugned
judgment and order. He submitted that the claim of the appellant
herein for imperfect partition is barred under Section 154(1)(e) of
the Regulation, 1886 which categorically prohibits the civil courts
from entertaining the claims for imperfect partition of revenue paying
estates except in those cases where a perfect partition is refused
by the revenue authorities under specific conditions.
10. He further submitted that the civil court have been conferred
jurisdiction only on the fulfilment of the following conditions, namely:
a. Where a perfect partition could not be claimed from the revenue
authorities;
1924 [2024] 12 S.C.R.

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b. The claim for perfect partition has been refused by the revenue
authorities;
c. The bar to the claim or the refusal of the revenue authorities is
on the ground that the result of the partition would be to form
a separate estate liable for an annual amount of revenue less
than five rupees.
11. In the instant case, the claim for imperfect partition by the plaintiff
was refused by the revenue authorities on 12.07.2004 on the ground
of non-possession. Neither the claim was for perfect partition, nor
the grounds for refusal were as mentioned in Sections 154(1) and
154(2) respectively of the Regulation, 1886.
12. In support of his aforesaid submissions, he relied on the judgment
rendered by the Single Judge of the High Court in Moimunnessa v.
Faizur Rahman & Ors. reported in (1987) 2 GLR 28 paras 4, 5 and 6
which unequivocally held that the partition of revenue-paying estates
must be conducted by the Revenue Authorities under Section 54 of
the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”).
13. The learned counsel also placed reliance on Section 4 of the CPC
which provides 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 law for the time being in force.
14. He submitted that Section 54 of the CPC mandates that the partition
of an undivided estate assessed to revenue shall be conducted by
the Collector or a designated revenue officer. The appellant in the
present case had bypassed the established procedures by directly
approaching the civil court instead of appealing the Additional District
Commissioner’s Order before the proper forum, i.e., the Assam Board
of Revenue. This procedural violation is in direct conflict with the law
already established in Moimunnessa (supra).
15. He submitted that instead of appealing to the Assam Board of
Revenue or the Revenue Tribunal, the appellant filed yet another
title suit knowing fully well that no effective decree of partition could
have been passed because no proper identification of the land could
be established by the appellant.
[2024] 12 S.C.R. 1925

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16. He submitted that the proper authority which can demarcate any
land is the Revenue Authorities and not the civil court.
17. According to the learned counsel the judgment and decree dated
16.07.2011 passed by the Munsif No.2, Nagaon in Title Suit No.
83/2004 had rightly returned a finding upon examination of evidence
that actual possession is a precondition to succeed in a claim for
a partition and that the refusal by the revenue authority was for
imperfect partition on the ground of non-possession and not for a
claim of perfect partition or for the grounds mentioned in Section
154(1)(e) of the Regulation, 1886. Hence, there was no question of
lifting the bar on the jurisdiction of civil courts.
18. He also submitted that the suit land is an estate within the meaning of
Section 54 of CPC and the procedure prescribed therein is applicable
in the present case.
19. As per Section 97 of the Regulation, 1886, certain pre-conditions
are required to be fulfilled for a person claiming partition. From the
lower Court records as recorded in the order dated 16.07.2011 in TS
83/2004 as well as the Final Judgment and Order dated 22.08.2022
in RSA No. 243 of 2014, it is evident the appellant did not meet these
requirements, thereby rendering the claim for partition untenable.

D. ANALYSIS
20. The short point that falls for our consideration is whether the High
Court committed any error in taking view that the suit filed by the
appellant herein was barred under Section 154(1)(e) of the Regulation,
1886 referred to above.
21. Section 97 of the Regulation, 1886 reads thus:
“97. Persons entitled to partition.-(1) Every recorded of a
permanently settled estate and every recorded landholder
of a temporarily-settled estate may, if he is in actual
possession of the interest, in respect of which he desires
partition, claim perfect or imperfect partition of the estate :
Provided that-
(a) no person shall be entitled to apply for perfect partition
if the result of such partition would be to form a separate
estate, liable for an annual amount of revenue less than
five rupees;
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(b) no person shall be entitled to apply for imperfect
partition of an estate unless with the consent of recorded
co-sharers holding in the aggregate more than one half
of the estate;
(c) a person may claim partition only in so far as the
partition can be effected in accordance with the provisions
of this chapter.
(2) When two or more proprietors land-holders would be
entitled under sub-Section (1) to partition in respect of their
respective interests in the estate, they may jointly claim
partition in respect of the aggregate of their interests.”
22. Section 154(1)(e) of the Regulation, 1886 reads thus:
“154. Matters exempted from cognizance of Civil Court.-(1)
Except when otherwise expressly provided in this
Regulation, or in rules issued under this Regulation, no
Civil Court shall exercise jurisdiction in any of the following-
xxx xxx xxx
(e) claims of persons to imperfect partition, except in
cases in which a perfect partition could not be claimed
from, and been refused by, the revenue authorities on the
ground that the result of such partition would be to form
a separate estate liable for an annual amount of revenue
less than five rupees.”

i. What is Partition?
23. Partition is either perfect or imperfect. Perfect partition means division
of a revenue paying estate into two or more such estates each
separately liable for revenue assessed thereon. Imperfect partition
means the division of a revenue paying estate into two or more
portions jointly liable for the revenue assessed thereon entire estate.
24. Chapter VI of the Regulation, 1886 deals with the procedure for
carrying out “perfect partition” and “imperfect partition” of a revenue
paying estate on the basis of an application made before the Deputy
Commissioner. Section 100 of the Regulation, 1886, however, provides
that when there is objection as regards the question of title, the Deputy
Commissioner will stay his hand in the matter and such objection
would be determined by a civil court of competent jurisdiction.
[2024] 12 S.C.R. 1927

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25. Section 100 of the Regulation, 1886 is quoted hereinbelow:
“100. Objection on question of title.— (1) If an objection,
preferred as required under section 99 raises any question
of title which has not been already determined by a Court
of competent jurisdiction, the Deputy Commissioner shall
stay his proceedings for such time as, in his opinion, is
sufficient to admit of a suit being instituted in the civil court
to try the objection.
(2) A Deputy Commissioner staying his proceedings under
this section shall make on order requiring the objector, or, if
for any reasons he deems it more equitable, the applicant,
to institute such a suit within the time fixed, and, in the
event of such a suit not being instituted within that time,
may in his discretion, disallow the objection, or dismiss
the application, as the case maybe.
(3) On a suit being instituted to try any objection under
this section, the Deputy Commissioner shall with reference
to the objection, be guided by the orders passed by the
Civil Court in the suit.”
26. Further, instruction No. 29 of the Part-III of the Executive Instructions
framed under the provisions of Assam Land Revenue Reassessment
Act, 1936 clearly indicates that the partition of ejmali patta can be
carried out by the revenue authorities provided all the shareholders
agree and give their consent in writing by putting their signatures in
the chitha or otherwise. The said provision is quoted hereinbelow:
“29. If the shareholders of an ejmali patta wish to partition
amicably their land according to possession and point out
the new boundaries, the recorder will survey the boundaries
as pointed out, provided all of them agree and give their
consent in writing by putting their signatures in the chitha
or otherwise. If any co-sharer objects, or if there be dispute
about possession, the recorder will not effect the partition.”
27. A bare reading of the provisions contained in Chapter VI of the
Regulation, 1886 read with the Rules framed and the Executive
Instructions issued under the Assam Land Revenue Re-assessment
Act, 1936, leaves no manner of doubt that the Revenue authorities
would be competent to carry out perfect/imperfect partition of a
revenue paying estate if and only if all the co-sharers give their
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consent for such amicable partition, i.e., when the application for
such partition is made on mutual consent of the parties. However, if
there is any dispute as regards the title or possession raised by any
of the co-sharers, the Deputy Commissioner has to stay his hands
on such process of partition and leave the matter to be decided by
a competent civil court having jurisdiction over the matter. The said
position also becomes amply evident from the language employed
in Order XX Rule 18 read with Section 54 of the CPC.
28. When a suit for partition is instituted seeking declaration of share
and separate possession by a co-sharer based on contesting claim
of title, the Revenue authorities cannot proceed to decide such a
question as per the scheme of the Regulation, 1886. However, the
High Court under a serious misconception of law appears to have
taken a contrary view in the matter by holding that it is the civil court
which would have no jurisdiction to try the suit once an application
for partition is entertained by the revenue authorities concerning the
subject-matter of the suit.
29. Section 9 of the Civil Procedure Code, 1908 provides that whenever a
question arises before the civil court whether its jurisdiction is excluded
expressly or by necessary implication, the Court naturally feels
inclined to consider whether the remedy afforded by an alternative
provision prescribed by any special statute is sufficient or adequate.
In cases where exclusion of the civil court’s jurisdiction is expressly
provided for, the consideration as to the scheme of the statute in
question and the adequacy or sufficiency of the remedy provided
for by it may be relevant but cannot be decisive. Where exclusion
is pleaded as a matter of necessary implication such consideration
would be very important and in conceivable circumstances might
become even decisive.
30. In Dhulabhai & Ors. v. State of M.P. & Anr. reported in (1968)
3 SCR 662, a Constitution Bench reviewed the entire case law
on the question of maintainability of civil suit and laid down seven
propositions. Propositions 1 and 2 are relevant, which read thus:
“(1) Where the statute gives a finality to the orders of the
special tribunals the Civil Court’s jurisdiction must be held
to be excluded if there is adequate remedy to do what the
Civil Courts normally do in a suit. Such provision, however,
does not exclude those cases where the provisions of the
particular Act have not been complied with or the statutory
[2024] 12 S.C.R. 1929

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tribunal has not acted in conformity with the fundamental
principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the
Court, an examination of the scheme of the particular Act
to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain
the jurisdiction of the civil court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular act to find out
the intendment becomes necessary and the result of the
inquiry may be decisive. In the latter case it is necessary
to see if the statute creates a special right or a liability and
provides for the determination of the right or liability and
further lays down that all questions about the said right and
liability shall be determined by the tribunals so constituted,
and whether remedies normally associated with actions
in Civil Courts are prescribed by the said statute or not.”
31. In Secretary of State, Represented by the Collector of South
Arcot v. Mask & Company, reported in AIR 1940 Privy Council
105, their Lordships of the Privy Council with regard to the jurisdiction
of the civil courts to entertain a suit observed as under:
“It is settled law that the exclusion of the jurisdiction of
the Civil Courts is not to be readily inferred, but that such
exclusion must either be explicitly expressed or clearly
implied. It is also well settled that even if jurisdiction is
so excluded, the Civil Courts have jurisdiction to examine
into cases where the provisions of the Act have not been
complied with, or the statutory tribunal has not acted
in conformity with the fundamental principles of judicial
proceeding.”
32. The learned counsel appearing for the respondents invited our
attention to three provisions of the CPC. First, Section 4, secondly,
Section 54 and thirdly, Order XX Rule 18 of the CPC.
33. Section 4 of the CPC reads thus:
“Section 4. Savings.-
(1) In the absence of any specific provision to the Contrary,
nothing in this Code shall be deemed to limit or otherwise
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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.
(2) In particular and without prejudice to the generality of
the proposition contained in sub-section (1), nothing in
this Code shall be deemed to limit or otherwise affect any
remedy which a landholder or landlord may have under
any law for the time being in force for the recovery of rent
of agricultural land from the produce of such land.”
34. The plain reading of the provision referred to above would indicate
that when anything in the CPC is in conflict with anything in the
special or local law or with any special jurisdiction or power conferred
or in the special form of procedure prescribed by or under any other
law, the Code will not (in the absence of any specific provision to
the contrary) prevail so as to override such inconsistent provisions.
When there is no conflict between the special or local law and the
Code, the Code will apply.
35. Section 54 of the CPC reads thus:
“Section 54. Partition of estate or separation of share.-
Where the decree is for the partition of an undivided estate
assessed to the payment of revenue to the Government,
or for the separate possession of a share of such an
estate, the partition of the estate or the separation of the
share shall be made by the Collector or any gazetted
subordinate of the Collector deputed by him in this behalf,
in accordance with the law (if any) for the time being in
force relating to the partition, or the separate possession
of shares, of such estates.”
36. The plain reading of the above referred provision would indicate
that the same deals with a case in which a civil court can pass a
decree but cannot itself execute it. The execution has to be effected
by the Collector. Civil courts have under this Section, jurisdiction to
try and decide suits for partition or separate possession of share of
estates assessed to payment of revenue to Government but have no
power to execute decree passed in such suits. The decree that may
be passed by the civil court would declare the rights of the several
parties interested in the property, but the decree should direct the
[2024] 12 S.C.R. 1931

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

actual partition to be made by the Collector or any officer subordinate
to him authorized on that behalf.

ii. Order XX Rule 18 of the CPC
37. Order XX Rule 18 of the CPC reads thus:
“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,-
(1) if and in so far as the decree relates to an estate
assessed to the payment of revenue to the Government,
the decree shall declare the rights of the several parties
interested in the property, but shall direct such partition or
separation to be made by the Collector, or any gazetted
subordinate of the Collector deputed by him in this behalf,
in accordance with such declaration and with the provisions
of section 54;
(2) if 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 right of the several parties interested in the property
and giving such further directions as may be required.”
38. The aforesaid rule allows the court to determine the rights of parties
with respect to land in the civil court and to pass a preliminary decree,
decree in the rights of several parties interested in the property. When
actual partition is to be effected, in pursuance of the declaration of
the rights of the parties in land, the civil court has to refer the matter
to the Collector or any officer subordinate to him authorized to act
on behalf of the Collector.
39. Sub-rule (1) refers to partition decrees relating to a “estate assessed
to Government revenue” referred to in Section 54 of the Code,
while sub-rule (2) deals with partition decrees relating to any other
immovable property or movable property.
40. In a suit for partition, the court may issue three types of decrees to
put the issue to rest: preliminary decree, composite decree (partly
preliminary & partly final), and final decree. The purpose of a suit
for partition or separation of a share is twofold:
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a. First, declaration of plaintiff’s share in the suit properties under
the preliminary decree, and;
b. Secondly, division of his share by metes and bounds which
would take place under the final decree.
41. In a given case, the property may be put to sale and the proceeds
would be shared among the shareholders which can be termed a final
decree. In a partition suit, if the court is unable to make a division of
property by metes and bounds forthright without further inquiry, the
court will initially pass a preliminary decree. A preliminary decree for
partition identifies the properties to be subjected to partition, defines
and declares the shares/rights of the parties. The prayer relating to
actual division by metes and bounds and allotment is left for being
completed under the final decree proceedings.
42. In regard to immovable properties (other than agricultural lands paying
land revenue) - such as buildings, plots etc. or movable properties -
where the court can conveniently and without further enquiry make
the division without the assistance of any Commissioner, or where
parties agree upon the manner of division, the court will pass a
composite decree comprising the preliminary decree declaring the
rights of several parties and also a final decree dividing the suit
properties by metes and bounds, in one judgment. The composite
decree is partly preliminary and partly final. The decree declares the
proportion of shares and divides the property, thereby settling the
partition to rest in one go.
43. Order XX Rule 18 CPC deals with decree in a suit for partition
of property or separate possession of a share therein. There are
two decrees in a suit for partition; a preliminary decree and a final
decree. A preliminary decree determines and declares the rights of
parties and shares of all eligible claimants, final decree carries out
and effects partition by metes and bounds of the property on the
basis of preliminary decree. If an estate is assessed to payment
of revenue to the Government, Collector or his nominee will effect
partition. In other cases, however, Commissioner will effect such
partition.
44. This Court in Shankar Balwant Lokhande (Dead) by LRs. v.
Chandrakant Shankar Lokhande & Anr. reported in AIR 1995 SC
1211, held that where a decree relates to any immovable property
and the partition or separation cannot conveniently be effected
[2024] 12 S.C.R. 1933

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

without further inquiry, then the court should pass a preliminary
decree declaring the rights of parties having interest in the property.
The court is also empowered to give such directions as may be
required. A preliminary decree in a partition suit is a step in the suit
which continues until the final decree is passed.
45. This Court in Venkata Reddy & Ors. v. Pethi Reddy reported in
AIR 1963 SC 992 held thus:
“… 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 suit 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. …”
46. The character of decree passed under sub rules (1) and (2) of Order
XX Rule 18 of the CPC is the same. It is true that the decree passed
under sub rule (1) of Rule 18 is not described as preliminary and the
decree under sub-rule (2) is declared as preliminary, there is no real
difference between the two inasmuch as under both the provisions,
the court determines and declares the rights of parties and under
both the sub rules, partition, separation or division by metes and
bounds has to be effected thereafter. Whereas, under sub rule (1),
Collector effects partition, under sub rule (2), it is Commissioner
appointed by the court who undertakes the said exercise.
47. In regard to estates assessed to payment of revenue to the
government (agricultural land), the court is required to pass only
one decree declaring the rights of several parties interested in the
suit property with a direction to the Collector (or his subordinate) to
effect actual partition or separation in accordance with the declaration
made by the court in regard to the shares of various parties and
deliver the respective portions to them, in accordance with Section
54 of CPC. If the Collector takes action in the decree appropriately,
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the matter will not come back to the court and the court will not
have to interfere in the partition, except attending any complaint of
an affected third party. While making the partition the Collector is
bound by declaration of the rights of the parties in the preliminary
decree. But the Court has no power to fetter the discretion of the
Collector conferred under the law. However, in regard to any issue
on which the Collector is not competent to decide, the civil court
will have the power to dispose of. If the Collector disregards the
terms of the decree, the Court is entitled to refer the case back to
the Collector to re-partition the property. The Collector must actually
divide the estate in the manner he thinks best keeping in mind the
nature of the land as revenue paying entity and the stipulations of
the decree. The object of this provision is two-fold:
a. First, the revenue authorities are more conversant and better
equipped to deal with such matters than a civil court, and;
b. Secondly, the interest of the government in regard to the revenue
paying estate would be better safeguarded by the Collector
than by the civil court.
48. A preliminary decree is a stage where the rights of the parties are
worked out which are then to be finally adjudicated by passing of
a final decree. This Court in Venkata Reddy (supra) explained
the concept of “preliminary decree” and “final decree” in detail and
observed thus:
“… 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 a 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
[2024] 12 S.C.R. 1935

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

wisdom has thought that suits of certain types should be
decided in stages and though the suit 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. It would
be relevant to refer to Section 97 of the Code of Civil
Procedure which provides that where a party aggrieved by a
preliminary decree does not appeal from it, he is precluded
from disputing its correctness in any appeal which may be
preferred from the final decree. This provision thus 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.”
(Emphasis supplied)

49. A final decree is one which completely disposes of the suit and
finally settles all the questions in controversy between the parties
and nothing further remains to be decided thereafter. A preliminary
decree in a partition suit merely determines and declares the rights of
the parties in the properties and the extent to which they are entitled.
It is the final decree which ultimately divides the properties by metes
and bounds and awards separate possession of the properties to
the claimants. The function of the final decree is to restate and apply
what the preliminary decree has ordered. A final decree is thus based
upon and controlled by preliminary decree. It is settled legal position
that final decree proceedings are in continuation of preliminary
decree proceedings and there is no executable decree unless the
final decree is passed. The final decree does not originate itself, but
flows from preliminary decree already passed in a suit determining
and declaring the rights and interests of the parties in the suit. The
final decree is not a decree in execution of preliminary decree but
decree in a suit. It is the final decree which is to be enforced.
50. The Privy Council in Guran Ditta L. v. T.R. Ditta reported in AIR 1935
PC 12 observed that a final decree neither relates to any substantive
rights of the parties nor decides or declares title to the property or
shares of the parties to the partition suit and till the final decree
is passed, there is no executable decree as envisaged by Order
XX Rule 18 of CPC. This Court in Muthangi Ayyana v. Muthangi
Jaggarao & Ors. reported in (1977) 1 SCC 241 held that a final
decree cannot go behind, amend or alter the preliminary decree.
1936 [2024] 12 S.C.R.

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51. In the aforesaid context, we looked into one very lucid decision of the
High Court of Karnataka in the case of Ramagouda Rudregouda
Patil v. Lagmavva reported in 1984 SCC Online Kar 192 explaining
the true purport and scope of Section 54 of the CPC read with Order
XX Rule 18 of the CPC. We may quote the relevant observations:
“7. It is now a well settled principle of law that in the case
of the execution of the decrees pertaining to partition and
separate possession of agricultural lands assessed to
Revenue, the Civil Court only declares the shares of the
parties and the authority concerned has to effect partition
or division by metes and bounds, as envisaged by Section
54 of C.P.C. Collector is the authority concerned to effect
partition. Once the papers were sent to the collector, the
Civil Court has no control over the proceedings taken by
the Collector. The Civil Court cannot direct the Collector
to effect partition in a particular manner after the papers
were sent to him. Therefore, Section 54 C.P.C. makes it
absolutely clear that the execution is not at all contemplated
in the case of decrees for partition and division of
agricultural lands. What the Civil Court has to do is to
transmit the papers to the Collector for actual partition and
possession. Therefore, all Execution Petitions are to be
filed in the Civil Courts requesting the Court to transmit
the papers to the Collector for partition and possession of
agricultural lands. They are not, in any sense of the term,
execution petitions. They are only in the form of a request
to the Court to do its duty as enjoined on it by Section 54
C.P.C. Therefore, the lower Appellate Court rightly held
that the execution petitions filed in such cases are only
requests or reminders to the Court to send the papers to
the Collector to effect the partition.
xxx xxx xxx
10. Under Section 54 and Order 20 Rule 18 C.P.C. the
only duty of the Collector, now called as the Deputy
Commissioner, is to effect partition or division by metes and
bounds in accordance with law if any for the time being in
force, relating to partition or separate possession of shares
of such estate. The word ‘partition’ used in Section 54 or
Order 20 Rule 18, in my opinion, means that the partition
is not confined to mere division of the lands concerned
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into the requisite parts, but also includes the delivery of
shares to the respective allottees. To elaborate further,
the word ‘partition’ means actual division or partition by
metes and bounds and handing over possession of the
shares to the parties.
11. As an instance of law relating to partition one will have
to refer to the provisions of the Prevention of Fragmentation
and Consolidation of Holdings Act and the Land Revenue
Act and the Rules. If the Collector thinks that actual
division by metes and bounds is not possible on account
of the provisions of the Prevention of Fragmentation and
Consolidation of Holdings Act, he will have to follow the
procedure laid down by the Act in such cases. In fact the
Prevention of Fragmentation and Consolidation of Holdings
Act, lays down procedure in such cases. Therefore, this is
the law within the meaning of Section 54 C.P.C. relating
to partition or separate possession of shares. The law
relating to partition in Section 54 or Order 20 Rule 18
C.P.C. does not refer to the nature of the property to
be divided. Therefore, Section 54 C.P.C., in my opinion,
does not enable the Deputy Commissioner, to decide the
question as to whether the agricultural land in question
is impartible or partible. That is the duty of the Civil Court
and not of the Deputy Commissioner.
12. This Court, in the decision in Ramachandra Srinivasa
Kulkarni v. Ramakrishna Krishna Kulkarni [1967 (1) Mys.
L.J. 97.] has clearly stated:
“But the order made by the Collector in the case
before us concerned itself with an objection to the
partition which was directed by the Civil Court. That
objection has been raised before the Executing Court
and had been over-ruled. An appeal from that order
had also been dismissed. All that the Collector had,
therefore, to do was to proceed to make a partition
and, it was entirely beyond his competence when
making a partition under Section 57 of the Code
of Civil Procedure, to listen to an objection which
had been repelled by the Civil Court which had the
competence to adjudicate upon it.”
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Hence, it is clear that it is not within the jurisdiction of
the Deputy Commissioner to consider the question as to
whether the lands are partible or impartible. That is the sole
and exclusive jurisdiction of the Civil Courts. The nature
of the property viz. whether it is partible or impartible,
is not covered by the phrase ‘the law for the time being
in force, relating to partition’ as occurring in Section 54
C.P.C. Therefore, the order passed by the Collector in
the previous execution that the lands being sanadi lands
could not be partitioned, is also without jurisdiction. It is
a nullity in the eye of law. There is no necessity to go in
revision or appeal against such an order. That is also the
view taken by this Court in Ramachandra’s case [1967
(1) Mys. L.J. 97.]. Therefore, the argument of Learned
Counsel Sri Ujjannavar that the order of the Collector in
the previous execution having not been challenged, barred
the present execution petition, cannot be accepted at all.
xxx xxx xxx
15. Sri Ujjannavar then urged that a decree passed in a
partition suit was not a preliminary decree and it amounts
to saying that the decree has become final. It is no doubt
true that it has been held by this Court in the decision
in Ganapatrao Raojirao Desai v. Balvant Krishnaji Desai
[1965 (2) Mys. L.J. 768.] that:
“A decree passed under R. 18(1) of Or. XX directing
partition by the Collector cannot be said to be a
preliminary decree. So far as the Civil Courts are
concerned it is final for all purposes, though the
partition of the property may remain to be effected
by the Collector. Sub-rule (1) of Rule 18 does not
contemplate any application to be filed by the parties
for sending the papers to the Collector.”
The purport of the said expression used by this Court is
that though it cannot be said to be a preliminary decree,
it became final for all purposes so far as the Civil Courts
are concerned. Once a decree declaring the shares of
the parties is passed by the Civil Court, it has nothing
more to do. It means that the case has come to an end
in the Civil Court and it does not amount a final decree.
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Therefore, it cannot be considered to be a final decree
as understood in the Civil Procedure Code Therefore, the
argument of Learned Counsel Sri Ujjannavar that in the
case of a final decree the limitation would begin to run,
holds no substance and it is rejected.”
(Emphasis supplied)

iii. When does Section 154(1)(e) bar the jurisdiction of civil
courts?
52. The learned counsel appearing for the appellant is right in his
submission that the jurisdiction of the civil court under Section 154(1)
(e) would be barred only if an imperfect partition suit is otherwise
maintainable under Section 97. He is right in his submission that to
maintain a suit for imperfect partition under Section 97, the appellant
has to fulfill two conditions stipulated therein.
a. First, the person seeking partition should be in actual possession
of the property in respect of which he seeks partition, and;
b. Secondly, the co-sharers may not be ready and willing to give
their consent and if the person seeking partition is not in actual
possession then no other remedy is available to him except to
go before the civil court and seek partition on the basis of his
own title as a co-owner.
53. A reference in this connection may be made to a decision of the
Calcutta High Court in Musstt. Rukeya Banu & Ors. v. Musstt.
Nazira Banu & Ors. reported in AIR 1928 Cal 130, where it was
pointed out that a partition, whether perfect or imperfect, of revenue-
paying properties must be made by the Revenue authorities. This
follows from a conjoint reading of Sections 96 and 154(1)(e) of the
Regulation, 1886 respectively. However, the jurisdiction of the civil
court to determine the right of the parties to the property in dispute
as well as shares to which they are entitled has not been taken away
by the Regulation in question, and it is for the civil court to decide
whether the property is or is not liable to partition. The same view
applies to other clauses of Section 154. The parties to a suit are
entitled to obtain a declaration from the civil court that they have
got the right to obtain from the revenue authorities a separation and
allotment of their shares in the estate according to their proportionate
rights. It is the civil court which will decide whether the plaintiff is
1940 [2024] 12 S.C.R.

Supreme Court Reports

entitled to seek partition and to what extent. If it is found by the court
that revenue paying properties have to be partitioned among the
parties, the court may declare the share of each of the parties and
leave them to go to the revenue authorities for making the necessary
performance. The relevant observations from the said decision are
reproduced hereinbelow:
“Lastly, the question of jurisdiction under the Assam Land
Revenue Regulation may be dealt with. It is quite true
that under sec. 154(1)(e) read with sec. 96 of the Act,
partition, whether perfect or imperfect, of revenue-paying
properties must be made by the revenue authorities. But
the jurisdiction of the Civil Court to determine the rights of
the parties to the property in dispute as well as the shares
to which they are entitled have not been taken away by
the regulation in question and the Civil Court must also
decide whether the property is liable to partition or not; as
in this case, whether there is a valid wakf which prevents
the parties from seeking a partition of the property. The
Plaintiff as well as the appealing Defendants are entitled
to obtain a declaration from the Civil Court that they
have got the right to obtain from the revenue authorities
a separation and allotment of their shares in the estate
according to their proportionate rights. It is further pointed
out by the Appellants that all the properties in suit are not
revenue-paying properties. These must be partitioned by
the Civil Court. It is also alleged that the parties are in
possession of separate parcels of lands being only shares
in certain revenue-paying estates. These do not fall within
the provisions of the Assam Regulation. The moveable
properties should also be partitioned and the Court should
also give an opportunity to the Plaintiff for finding out whether
there are any other properties which are capable of being
partitioned. The actual partition of revenue-paying estates
must necessarily be made according to the provisions of
the Assam Land Revenue Regulation.”
(Emphasis supplied)

54. The position of law on the issue has been explained by the High
Court of Gauhati itself in the case of Thanda Bala Choudhury and
Anr. v. Birendra Kumar Choudhury reported in 2002 SCC OnLine
[2024] 12 S.C.R. 1941

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

Gau 26 wherein the issue was regarding the jurisdiction of civil courts
for declaration of right, title and interest over the suit property when
the case for perfect partition had already been disposed of by the
Deputy Commissioner. The Court therein while elaborating on of the
Regulation, 1886, held the following:
a. First, in cases where the distribution of land has been decided
by way of partition, civil courts have the jurisdiction to adjudicate
upon the title to the land. This is in consonance with various
rulings that conclude that Section 154 cannot deprive a man
of his title to the land. The Court held that mere partition of
property in dispute by the Revenue authorities does not confer
any title on them and it is open to civil courts to determine the
right of the parties to the property.
b. Secondly, civil courts cannot exercise jurisdiction over matters
of perfect partition; only revenue courts are vested with the
power to decide on the same. The legal position pursuant to
Section 154 as well as Section 62 is that no bar exists over civil
courts to declare the rights over a suit property. Additionally,
Section 62 specifically vests a right upon parties to approach
civil courts for declaration of right, title and interest over the
suit property. The relevant paragraphs from the said decision
are reproduced hereinbelow:
“7. A catena of judicial decisions has been referred
by Mr. Katakey to drive home his submission.
In Dandiram Nath and v. Mihiram Nath Chamua
decided on 13.11.1953 reported in 1 Unreported
cases (Assam) 255 this Court speaking through
Justice Sarjoo Prasad, C.J, categorically ruled that
Section 154 cannot deprive a man of his title to
the land. The mere fact that the lands have been
distributed or revenue allotted will not confer any title
on them and it would be always to the Civil Court to
adjudicate upon the question of title irrespective of
the provisions of Section 154. Dealing with a case
where the Plaintiffs instituted suit for declaration of title
and confirmation of possession or in the alternative
recovery of possession, the Court in paragraph-3 of
the said ruling observed as follows:-
1942 [2024] 12 S.C.R.

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“3. On behalf of the appellants, however, it has
been argued that Section 154(1)(f) of the
Assam Land and Revenue Regulation is a
bar to the institution of the suit. Section 154
says that except where otherwise expressly
provided in this Regulation or in Rules framed
thereunder, no Civil Court shall exercise
jurisdiction in any of the matters enumerated
in the various clauses of the section, one of
them being Clause (f) which relates to the
distribution of land or the allotment of the
revenue on partition. The distribution of land
or the allotment of the revenue may very well
stand, but I do not see how Section 154 can
deprive a man of his title to the land. If the
defendants had no title thereto, then the mere
fact that the lands have been distributed or
revenue allotted, will not confer any title on
them, and it would be always open to the
Civil Court to adjudicate upon the question of
title irrespective of the provisions of Section
154. A reference in this connection may be
made to a decision of the Calcutta High Court
in “Mt. Rukeya Banu and Ors. v. Mt. Nazira
Banu and Ors. (1928 Cal. 130) where it was
pointed out that a partition, whether perfect
or imperfect, of revenue-paying properties
must be made by the Revenue authorities.
This follows from a perusal of Section 96 with
Section 154(1)(e) of the Assam Land and
Revenue Regulation. But the jurisdiction of
the Civil Court to determine the right of the
parties to the property in dispute as well as
shares to which they are entitled has not been
taken away by the Regulation in question,
and it is for the Civil Court to decide whether
the property is or is not liable to partition.
The same view applies to other clauses of
Section 154. In the circumstances, I find no
substance in the point urged by the learned
[2024] 12 S.C.R. 1943

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

counsel for the appellant. In my opinion, the
appeal is without any merit and must be
dismissed with costs and the decision of the
Court of Appeal below should be maintained.”
8. In the case of “The State of Assam v. Sifat Ali
and Ors.” reported in AIR 1967 Assam & Nagaland
Page-3, a Division Bench of this Court also held that
Section 154(1)(a) of the Regulation does not debar
the civil court from entertaining the suit based on
title to property.
xxx xxx xxx
19. Keeping in view the above cited authorities relating
to the jurisdiction of Civil Court under Section 154 of
the Regulation and also on ordinary reading of the
provisions of Section 154 as well as Section 62 which
is also a saving clause as noted above, it can be safely
said that the legal position is well settled that Civil
Court has the jurisdiction to agitate upon the matter
relating to title over the property. It is correct that if
any claim is made as regards perfect partition, no
Civil Court shall exercise its jurisdiction as envisaged
under Section 154(1)(d) of the Regulation. Section
154 of the Regulation provides that except where
otherwise expressly provided in this Regulation or in
Rule framed thereunder, no civil court shall exercise
the jurisdiction in any matter mentioned in the various
clauses under the Section including Clause (d) which
relates to claim of person to perfect partition. Revenue
Court has been vested with the power to effect the
partition whether perfect or imperfect, of the revenue
paying properties. But at the same time, jurisdiction
of the Civil Court to determine the right of the parties
to the properties in dispute as well as the shares
of which they are entitled to has not been taken
away by the Regulation. In the instant case though
the matter was earlier agitated before the Revenue
Court for effecting perfect partition, the Petitioners,
having failed to get adequate relief, approached the
Civil Court by filing suit in question for declaration
1944 [2024] 12 S.C.R.

Supreme Court Reports

of right, title and interest over the suit land. In such
premises I do not find any reason how this Section
154 can debar the Petitioners claiming to the title of
the land in question from approaching the Civil Court.
Section 62 also clearly vests a right upon the person
to prefer a suit to the Civil Court for declaration of
his right to any property. Therefore, I find sufficient
force in the submission of the learned counsel for
the Petitioner and accordingly, I am disinclined to
approve the views expressed by the learned Civil
Judge in the Impugned orders, I am of the considered
view that the Civil Court is the absolute authority to
adjudicate a dispute relating to the title and interest
over the immovable property.”
(Emphasis supplied)

55. The position of law with respect to the jurisdiction of civil courts to
try suits based on title to property has also been explained by the
Gauhati High Court in the decision rendered in the case of Ka Trily
Tariang v. U. Resdrikson Lyngdoh and Ors. reported in (1984)
2 G.L.R. 8. The High Court inter alia observed that the jurisdiction
conferred upon Revenue authority does not prevent the civil court
from adjudicating upon the right to an asset when entitlement is
claimed. The relevant observations are reproduced hereinbelow:
“[...] In that case as well, the Commissioner acting under
Rule 26 of the Settlement Rules had pass an order but
the Plaintiffs sued the State of Assam claiming his title
to the property. The plea of bar under Section 154(1)(a)
was taken. Their Lordships held that the provision did not
preclude the civil court to entertain suits based on title to
the property. Declaration of title to immovable property is
out of bound for the Revenue court.
It can determine many controversies including those
covered by clauses (a) to (m) of Section 154(1) of the
Regulation but the civil court is the court competent to
decide right, title and interest to immovable property. A
civil court cannot only declare title to the property but it
can also adjudicate that the Revenue Officer or the courts
acted beyond their jurisdiction resulting in a failure of
[2024] 12 S.C.R. 1945

Abdul Rejak Laskar v. Mafizur Rahman & Ors.

justice. In Dinesh Chandra Sarkar v. Harendra Biswas AIR
1972 Gau. 81, this Court has held that suit for declaration
of right, title and interest is not barred by Section 154(1)
of the Regulation. Dealing with the provisions of Section
154 of the Assam Land and Revenue Regulation it was
held that the matters within the jurisdiction of the Revenue
authorities or courts could be decided by them but no such
decision of a revenue court could take away the jurisdiction
of a civil courts, when a person having a right to an asset
claimed entitlement to it and sought declaration of his right
in the civil court notwithstanding the provisions contained
in Section 154(1)(a) of the Regulation.”
(Emphasis supplied)

56. Further, in the decisions rendered in the Daulatram Lakhani v.
State of Assam and Ors. reported in 1989 (1) G.L.J. 37 and Gauri
Shankar Agarwalla v. Madanlal Agarwalla and Ors. reported in
2010 SCC OnLine Gau 465, the High Court of Gauhati itself has
clarified that the bar created by Section 154(1) does not preclude
suits based on title to the property from being within the jurisdiction
of civil courts.

E. CONCLUSION
57. In view of the aforesaid, the appeal succeeds and is hereby allowed.
The impugned judgment of the High Court is accordingly set aside
for not being sustainable in law.
58. As a result, the order dated 16.05.2014 passed by the Civil Judge,
Nagaon is hereby restored.
59. Pending application(s), if any, stand disposed of.

Result of the Case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan