When the owner of a property dies, disputes often arise among the heirs regarding their respective shares—particularly over which portion of land belongs to whom. To resolve such issues, a partition suit is filed. In cases involving immovable property (other than agricultural land), a preliminary decree is passed, and after the commissioner's report, a final decree is drawn accordingly. However, the process differs in the partition of revenue-paying land (agricultural land). In most cases, people approach the revenue court for partition, but if one party raises a question of title, the revenue courts usually postpone the matter and direct the parties to approach the civil court for adjudication of their title dispute. In some parts of the country, civil courts typically declare the title and the share of the parties, then close the file. Does this mark the end of the dispute from the civil court's perspective? In such cases, should a preliminary decree be drawn, or can this be deemed a final decree by the civil court? Who is responsible for partitioning revenue-paying land? Can the court that passed the preliminary decree also draw the final decree in these cases? Is there a possibility of execution proceedings in such instances? This article discusses the practical problems faced by litigants seeking partition relief for revenue-paying land (agricultural land) and addresses the aforementioned ambiguities and questions.

Partition disputes are very common among family members, especially after the death of the property owner. Although parties may know their shares, there is often ambiguity regarding which specific portion of soil belongs to whom. In cases involving revenue-paying land (agricultural land), common people generally approach the revenue court for partition. However, if one party raises a question of title, the revenue court typically postpones the matter and directs the parties to approach the civil court for adjudication of their title and share. In some parts of the country, civil courts usually declare the title dispute and share of the parties, then close the file accordingly. After passing the preliminary decree in a suit for partition of agricultural land, civil courts acts as functus officio (no longer have jurisdiction). Thereafter, revenue courts proceed with partition according to the rights and shares declared by the civil courts. However, the position remains unclear regarding the remedy available to a plaintiff in the event of any dispute, which cannot be adjudicated by the revenue courts.

Preliminary Decree In Partition Suit 

Section2(2) of the Civil Procedure Code, 1908, states that a preliminary decree determines the rights of the parties involved in a suit but does not fully dispose of the case. Order 20 Rule 18 of the Civil Procedure Code, 1908, empowers civil courts to determine the rights of parties in a partition suit involving agricultural land and to issue a preliminary decree. In a suit for partition or separation of a share, the court initially decides whether the plaintiff holds a share in the property and is entitled to division and separate possession. This determination is a judicial function, resulting in a first-stage decision referred to as a 'decree' under Order 20 Rule 18(1) and a 'preliminary decree' under Order 20 Rule 18(2) of the Code. The subsequent division by metes and bounds—an administrative or ministerial act involving physical inspection, measurements, calculations, and consideration of various alternatives—is referred to the Collector under Rule 18(1) and forms the subject matter of the final decree under Rule 18(2).¹

 Requirement Of Final Decree

The standard practice in most part of the country is that once a preliminary decree in a partition suit is passed by the civil court, the collector causes the partition by metes and bound and puts the parties in possession of their respective shares. However, in some cases, the unsatisfied party continues to interfere with the other party's possession, and the dispute continues even after the collector caused partition of the property by metes and bound. In such cases, the aggrieved party wants the relief of an injunction against the wrongdoer. For this, a final decree by the civil court after partition is needed. Therefore, the role of a civil court does not end with the mere passing of a preliminary decree; there may be situations in which the court will have to draw a final decree on the basis of the preliminary decree. The problem can be depicted through the following illustration:

Z has two sons, X and Y. Z owns 6 bighas of agricultural land, and his name is also recorded in the revenue records for the same land. After the death of Z, a dispute arises between X and Y regarding the agricultural land of 6 bighas (disputed property P). Y has a criminal background, and he claimed that the disputed portion of the roadside belongs to him and that he is also in possession of it. At the same time, Y interferes in the remaining share of X. Then, X approached the revenue court for partition. Y denies the title of X, and the revenue court closes the case because it involves an adjudication of rights, which is the task of a civil court. Thereafter, X brings a suit for a declaration, partition, possession, and injunction in the civil court. Here, X particularly seeks the relief of injunction because he knows that, even after partition, Y will interfere with his possession. Court C, in its judgment, declares the half share of 3-3 bighas to each X and Y in the property P and closes the case. Civil court denies the relief of possession and an injunction because possession can be obtained only after partition, which is not certain, and at this stage, the court cannot determine that the defendant is interfering with the 'specific' share of the plaintiff. X then approaches the revenue court for partition, and the same is done on the basis of rights decided by the civil court. However, even after the partition, Y continues to interfere with X's share and takes illegal possession of it whenever he wants to take advantage of the land. In such circumstances, the aggrieved party, here X, becomes helpless. Despite a long civil battle, he doesn't get the final relief. In such a case, the remedy may be an injunction against Y. But there is no final decree to claim the relief of injunction in execution proceedings. Here lies the problem: X has to approach the civil court again to obtain a decree of injunction against Y. Again, X has to face one more civil battle to seek relief, and it is also not unknown that such a suit can take years to decide.

Suppose in the aforesaid illustration, if the civil court draws the preliminary decree declaring the rights and share, and reserves the final decree after partition. After partition, the civil court can draw a final decree on the application of the plaintiff, wherein the court can grant the relief of an injunction for a specific share of the plaintiff, so that the executing court can take action against the wrongdoer as per Order 21 Rule 32 of the Civil Procedure Code, 1908. Consequently, the plaintiff will not be subjected to a fresh civil suit again and can directly file execution proceedings against the defendant. In such cases, a final decree is required after the preliminary decree, which completely determines the parties' rights and disposes of the suit in the true sense.

What Plaint Must Contain In Partition Suits?

If the aggrieved party (plaintiff) seeks a comprehensive resolution of a partition dispute involving agricultural land, the plaint must be drafted with utmost precision. The plaintiff should anticipate and address all potential future disputes when seeking relief. This strategy ensures that the entire conflict is resolved in a single proceeding, sparing the plaintiff from repeated court appearances. For instance, the plaintiff may request a declaration of rights and shares in the preliminary decree and, in the final decree, seek injunctive relief following partition and possession as it is done in Court of West Bengal.² The partition process clarifies which party will possess each share, allowing the plaintiff to seek an injunction specifically for their allotted portion against interference by the other party. By adopting this approach, the parties secure a full and final resolution of their dispute in one suit; otherwise, multiple suits may become necessary, undermining the plaintiff's earlier efforts. Additionally, the plaint should specify what equitable relief can be sought from the civil court if, for any reason, the revenue court is unable to carry out the partition.

Final Decree Is A Continuation Of The Preliminary Decree

Once a court passes a preliminary decree, it is the court's duty to ensure that the matter is referred to the Collector or a Commissioner for division, unless the parties themselves agree on the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not dispose of the suit. The suit remains pending until partition, that is, division by metes and bounds, takes place by passing a final decree. A preliminary decree for partition identifies the properties to be partitioned and defines and declares the parties' shares/rights. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree  proceedings. Thus, the application for final decree, as and when made, is considered to be an application in a pending suit for granting the relief of division by metes and bounds.³

There can be many other situations and problems, where Collector or revenue courts cannot adjudicate the dispute completely. For instance, in the case of Abdul Rajak Leskar v. Mafizur Rehman & Ors.⁴, the Hon'ble SC observed that:

“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. 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 of Civil Procedure Court, 1908.”

Hon'ble Supreme Court in Kattukandi Edathil Krishanan & Anr. v. Kattukandi Edathil Valsan & Ors.⁵ held that they are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die.

Civil courts must draw a preliminary decree in all partition suits. The same approach should apply to cases involving agricultural land, similar to partitions conducted by a commissioner, with the final decree tailored to the specifics of each case. According to the averments and relief sought in the plaint, courts must suo moto ensure the further steps to drawn a final decree, which can then fully adjudicate the matter. With the help of final decree, plaintiff can file execution proceedings against the wrongdoer, allowing the plaintiff to realize the true benefits of the decree passed in their favor.

1. Shub Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna. & Ors, 2009 AIR SCW 6541

2. Shri Samir Pramanik & Ors. v. Smt. Soma Roy & Ors.Partition Suit No. 314 of 2009 dated 30-7-2012 Court of Civil Judge Senior Division, Malda

3.Shub Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna. & Ors, 2009 AIR SCW 6541

4. Civil Appeal No.14805 of 2024

5. 2022 LiveLaw (SC) 549