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Ramachandra Shamarao Kulkarni Vs. Pralhad Krishnaji Kulkarni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 384 of 1959
Judge
Reported inAIR1964Kant31; AIR1964Mys31
ActsCode of Civil Procedure (CPC), 1908 - Sections 54 - Order 20, Rule 18 and 18(1); Bombay Land Revenue Code - Sections 203
AppellantRamachandra Shamarao Kulkarni
RespondentPralhad Krishnaji Kulkarni and ors.
Appellant AdvocateB.V. Krishnaswamy Rao, Adv.
Respondent AdvocateG.D. Shirgurkar, ;P.H. Gunjal and ;K.A. Malvekar, Advs.
Excerpt:
.....land as a tenant prior to and as on 1.3.1974. - although at some later stage a somewhat contrary view appears to have been taken by that court, it is now according to that court a well settled principle that in all cases in which a partition is entrusted to a collector under section 54 of the code of civil procedure, such partition is not outside the orbit of superintendence by the civil court in cases in which either there has been a contravention of the decretal command or the partition made by the collector is ultra vires or there has been a transgression of the jaw or refusal to carry out the decree......is, i think, manifest that the entrustment of thepartition of an estate assessed to the payment of landrevenue to the government, to the collector who is chargedwith the administration of such land revenue rests on the legislative intent that the collector who has an interest in the collection of the land revenue payable bythe estate under the provisions of the relevant landrevenue code is the authority who can make a satisfactory partition which does not create difficulties in the recovery of land. revenue. that, in my opinion, is the reason why that part of the family property in respectof which there is a decree for partition which consists of an estate assessed to the payment of land revenue to the government is required to be partitioned by thecollector, that partition by other.....
Judgment:

Somnath Iyer, J.

1. The question involved in this case is whether a partition made bwy a Collector under Section 54 of the code of Civil Procedure of lands assessed to land revenue-situate in that part of the new State of Mysore in which the Bombay Land Revenue Code is operating, amounts to an appealable decision or order falling within Section 203 of that Code.

2. This is how the question arises.

3. In a partition suit brought in the Court of the Civil Judge, Senior Division, Belgaum, in the year 1946, a preliminary decree was made under which the respondents were declared to be entitled to a three-fourths share in the family property. By an order made under Rule 18 of Order XX of the Code of Civil Procedure, me Collector was directed by the Court to make a partition of those family lands which were assessed to the payment of land revenue to the Government. After that partition was made, an appeal was preferred by the petitioner to the Collector under the supposition that such an appeal was competent in view of the petitioners allegation that the partition was made only by a Prant Officer and not by the Collector himself. That appeal was dismissed by the Collector whereupon the petitioner presented a further appeal to the Divisional Commissioner who made a slight modification to the partition. Against that decision of the Divisional Commissioner, the petitioner presented a revision petition to the Revenue Appellate Tribunal, which took the view that the appeal to the Collector and the further appeal to the Divisional Commissioner were all incompetent and that the revision petition which was also a similarly incompetent revision petition was liable to be dismissed.

4. In this civil petition that view taken by that Tribunal is challenged on the ground that since the partition made under Section 54 amounted to a decision or order of the Prant Officer under the provisions of the Bombay Land Revenue Code, an appeal lay under section 203 of that Code not only to the Collector but also to the Divisional Commissioner, and that, similarly, a revision petition to the Tribunal was equally competent. It Is the correctness of this assertion made on behalf of the Petitioner that requires investigation.

5. Rule 18 of Order XX of the Code of Civil Procedure under which a Civil Court may direct the Collector to make partition of an estate assessed to the payment of revenue to the Government reads:

'18. Where the Court passes a decree for the partition of property or for the separate possession of a snare therein, then,-- Decree in suit for (1) if and in so far as thepartition of property or decree relates to an estate as-separate possession of a sessed to the payment of re-share therein. venue to the Government, thedecree shall declare the rights ofthe several parties interested inthe property, but shall directsuch partition or separation tobe made by the collector, or anygazetted subordinate of the Col-lector, deputed by him in thisbehalf, in accordance with suchdeclaration and with the provisions of section 54;* * * *

6. Section 54 of the Code of Civil Procedure in accordance with the provisions of which a partition has to be made by a Collector where he is directed to do so is,

'54, Partition of estate or separation of share: Where the decree is foe 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.'

7. Heading these two provisions together, it will be seen that the partition made under Section 54 of an undivided estate assessed to the payment of revenue to me Government, is really one made under the provisions or the Code of Civil Procedure although such partition has to be made in accordance with the law for the time being in force governing the estate to be partitioned, which, in this case was the Bombay Land Revenue Code. It is clear from Section 54 that what it directs is not that the partition should be made under the provisions of the law by which the undivided estate is governed but 'inaccordance with' that law. What that section therefore directs is that when a partition is made under the provisions of that section, which is really the statutory provision under which the partition is made by the Collector, the partition to be so made should be in accordance with the law by which the estate is governed.

It is, I think, manifest that the entrustment of thepartition of an estate assessed to the payment of landrevenue to the Government, to the Collector who is chargedwith the administration of such land revenue rests on the legislative intent that the Collector who has an interest in the collection of the Land Revenue payable bythe estate under the provisions of the relevant LandRevenue Code is the authority who can make a satisfactory partition which does not create difficulties in the recovery of Land. Revenue. That, in my opinion, is the reason why that part of the family property in respectof which there is a decree for partition which consists of an estate assessed to the payment of land revenue to the Government is required to be partitioned by theCollector, that partition by other processes not being permissible. But, to say that, Is not the same thing assaying that that partition required to be made by the Collector is a partition made under the Land Revenue Code.

8. In my opinion, every partition made in pursuance of a preliminary decree for partition, is, a partition made under the provisions of the Code of Civil Procedure although in the case of a land assessed to the payment of land revenue to the Government, the Collector is me designated instrument through whom the partition by metes and bounds has to be made. The submission that a partition directed by Rule 18 of Order XX of the Code of Civil Procedure and which has to be made by the Collector under Section 54 of the Code of Civil Procedure, is a partition made under the provisions of the Lana Revenue Code so as to fall within the provisions of section 203 of that Code does not to my mind appears to rest on a correct interpretation of the provisions or section 54 of the Code of Civil Procedure. Nor am I disposed to agree with the submission made by Mr. Srinivasa lyer that in the course of a partition made by a Collector under Section 54 of the Code of Civil Procedure, he makes some decision or order which can be the subject matter of an appeal under Section 203 of the Bombay Land Revenue Code. It is true that if a Collector is directed to make a partition under Section 54 of the Code or Civil Procedure, he can make that partition in a manner which appears to him to be equitable and proceed to deliver possession to the parties of their shares in such property without being even under a duty to make any report to Court about it and without being obliged to seek the approval of the Court to the partition made by him, although in almost all cases, it is clear that the partition so made by the Collector is generally reported to the Court which directed him to make that partition. But such partition to be made by him does not, to my mind, involve the rendering of any decision or the making of any order by the Collector.

The decision on all questions in dispute between the parties would have all been by then settled by me preliminary decree made by the Civil Court and what is entrusted to the Collector under Rule 18(1) of Order XX of the Code of Civil procedure is the bringing into effect the terms of the preliminary decree and the distribution of the property between the parties to the litigation in accordance with the declaration made by the preliminary decree. It may be that for that purpose, there should be an application of the mind of the Collector as to the most appropriate and reasonable method by which such distribution can be made. But, it is I think going too far to suggest that by reason of any such application or the mind by him any decision or order comes into being such as would fall within Section 203 of the Bombay Land Revenue Code. All that the Collector does is to give effect to the provisions of the preliminary decree and for thai purpose he is no more than a person statutory entrusted with that duty by Section 54 of the Code of Civil Procedure. In my opinion-,- a partition made by We Collector being no proceeding under the Land Revenue Code and not being a decision or order within the meaning of those expressions occurring in Section 203 of the Bombay Land Revenue Code, cannot be made the subject matter of an appeal to any of the revenue authorities under that section.

9. Mr. Shirgurkar has pointed out to us that thisview which I am disposed to take in this case was alsothat taken by the Government of Bombay as long agoas in the year 1915 as can be seen from a resolutionof that Government G.R. 2172 of 1915 extracted in Gupte's Bombay Land Revenue Code, 1934 edition, at page 745, which reads:

'Collector dealing with Civil Court Darkhast.-- In dealing with Civil Court Darkhasts, the Collector is not subject to appeals to, or revision by the Commissioner but only by the Court. The Collector cannot set aside a darkhast sale, but can confirm or refuse to confirm it.'

This view was no doubt, it seems to me, influenced by the view which was taken by the High Court of Bombay which at that time was to the effect that every partition proceeding entrusted to a Collector under section 54 of the Code of Civil Procedure was subject to the superintendence of the Court. Although at some later stage a somewhat contrary view appears to have been taken by that Court, it is now according to that court a well settled principle that in all cases in which a partition is entrusted to a Collector under Section 54 of the Code of Civil Procedure, such partition is not outside the orbit of superintendence by the Civil Court in cases in which either there has been a contravention of the decretal command or the partition made by the Collector is ultra vires or there has been a transgression of the Jaw or refusal to carry out the decree. In Ramabai Govind v. Anant Daji, 47 Bom LR 447: (AIR 1945 Bom 338) (FB), Lokur J., who was a member of the Full Bench whichdecided that case observed at page 454 (of Bom LR): (at p. 341 of AIR)

'The Collector cannot pass a final or indeed any other decree In a civil suit for partition, and yet the Civil Court is not required by the Code to pass any further decree or to make its decree final at any stage. Upon this footing the first and only decree to be passed by the Court would be a final decree. As pointed out by Beaumont C.J., In D. M. Jacinto v. D. B. Fernandez, 41 Bom LR 921: (AIR 1939 Bom 454) when an order in the form prescribed in Order XX Rule 18(1), is made, the court's duties are finished, though as held in Dev Gopul v. vasudev Vithal, ILR 12 Bom 371, the Court is not deprived or its judicial control of its decree. But that control isvery limited. It is only if the Collector contravenes tne decretal order, or transgresses the law or otherwise acts ultra vires, or refuses to carry out the decree, that 'his action is liable to be controlled and corrected by the Court which passed the decree. Apart from this limitedcontrol the Collector can give effect to the partition made by him, without waiting for confirmation by the Court, and deliver possession of the shares to the respective snarers. Thus the Court having nothing further to do with the decree passed by it under 0. XX R. 18(1), Beaumont C.J., in 41 Bom LR 921 at p. 922: (AIR 1939 Bom 454 at p. 454) described the order directing the partition of the land assessed to Government revenue to be effected by the Collector as a final decree.'

10. That view taken by the Full Bench of the High Court of Bombay was followed in 3 later decision of that 'Court in Ningappa Balappa v. Abbashkhan Gouskhan : AIR1956Bom345 .

11. Although it is not necessary for us, in my opinion, to formulate in this case the exact frontiers of tie superintendence which may be exercised by a civil court over the Collector's partition under Section 54 of the Code of Civil Procedure, it is clear and in contestant that the only superintendence which can be exercised over me proceedings of a Collector when he makes a partition under Section 54 of the Code of Civil Procedure is that which can be exercised by a Civil Court and by no other. The appeals which are envisaged by Section 203 of the Bombay Land Revenue Code being appeals which may be preferred from a decision or order passed by a revenue office under the Bombay Revenue Code or under any other law for the time being in force, those appeals would be unavailable in respect of proceedings in which no decision or order is made by that revenue officer. Since in the view that I have taken, no decision or order emerges from a partition made under Section 54 of the Code of Civil Procedure, no such appeal can be preferred by a party who is dissatisfied with a partition made by a Collector. What he can do is to invoke the jurisdiction of the Civil Court such as is exercisable by it. That proposition, in my opinion, is what emerges from 47 Bom LR 447: (AIR 1945 Bom 338) (FB) and : AIR1956Bom345 .

12. Mr. Srinivasa lyer however pressed on us Full Bench decision of the High Court of Madras which was of an entirely contrary view in Venkataraghava Rao v. Venkata Hanumantha Rao AIR 1945 Mad 336. The view propounded in that decision was that a Civil court lost all its control over the partition of an estate assessed to the payment of land revenue to the Government the moment that partition was entrusted to a collector under Section 54 of the Code of Civil Procedure. After making an analysis of the decisions of the High Court of Bombay on that question the conclusion reached by the High court of Madras was that the only method by which a person dissatisfied with a partition made by a Collector coma obtain redress in the Province of Madras was by asking the Madras Board of Revenue to revise the collector's proceedings. With great respect, I do not find it possible to subscribe to the view taken by the High Court of Madras that the partition proceedings of a Collector under Section 54 are immune from the scrutiny and superintendence of the Civil Court which entrusted the Collector with such partition.

About the view expressed by that High Court that the Collector's partition proceedings are revisable only by the higher revenue authority, all that is necessary for me to state is that that view rested upon the provisions of Section 5 of the Madras Board of Revenue Regulation -under which the Board of Revenue had, it was pointed our, authority to superintend and control all persons employed in the executive administration of the public revenue. The Collector being a person employed in the executive administration of the public revenue, it was thought that he was subject to the superintendence of the Madras Board of Revenue. On the correctness of that View taken by their Lordships of the High Court of Madras, it is not necessary for us to express any opinion in this case since what concerns us is the interpretation of Section 203 of the Bombay Land Revenue Code which, in my opinion, does not authorise the presentation of appeals to anyone under its provisions from any partition made by a Collector under Section 54 of the Code of Civil Procedure.

13. Any other view would lead to what I consider to be many inconvenient results. Unless the jurisdiction or the Civil Court to supervise the proceedings of a Collector under Section 54 is altogether negatived -- and Mr. Srinivasa lyer is not willing to go that length and had to admit that in cases where the decretal command is transgressed or there Is a refusal to execute the decree, the Civil Court can intervene and issue appropriate Directions to the Collector -- the recognition of a right or appeal under Section 203 of the Bombay Land Revenue Code would lead to inevitable clash of jurisdiction. If the Civil Court has the power to issue directions and directa re-partition in cases in which the decretal command is transgressed or there is a refusal to make a partition in accordance with the provisions of the preliminary decree and the same complaint can also be made the subject matter of an appeal to the appellate authority under we Land Revenue Code, it is plain that both the Civil Court and that appellate authority would have jurisdiction to deal with the matter, thus resulting in a situation in which a conflict of decisions cannot altogether be eliminated. In my opinion, a view which leads to such difficult situations should not command itself to us.

14. We should, in my opinion, dismiss this Civil Petition with costs and it is ordered accordingly. Advocate's fee Rs. 100/-.

Kalagate, J.

15. I agree.

16. Petition dismissed.


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