1. The short but important point that arises in this revision is whether the provisions enacted in Section 54 C. P. C., and Order 20 Rule 18 (1) C. P. C., are to be restricted in their operation to the estates paying revenue to the Government or should be allowed to cover ryotwari lands as well.
2. The facts in brief are: - The plaintiff is the petitioner who got the decree in a suit for partition of agricultural lands mentioned in the schedules therein and after the preliminary decree being passed, an application was made for the appointment of a Commissioner to divide the properties by metes and bounds. The 1st respondent herein has raised the objection that it is not competent for the Court to appoint a Commissioner as the schedule mentioned lands are 'estate' within the meaning of Sec. 54 and O. 20 R. 18 (1) C. P. C., and therefore the preliminary decree has to be referred to the Collector only for making a final decree. The 1st respondent therefore contended that the appointment of the Commissioner is erroneous. The objection raised by the 1st respondent was sustained and aggrieved by the same the petitioner decree-holder filed this revision petition.
3. The contention of Sri G. Haridatha Reddy, the learned counsel for the petitioner, is that Sec. 54 is applicable only to estates assessed to the payment of revenue to the Government but not to the agricultural lands of ryotwari nature and therefore the order under revision is erroneous. I find sufficient substance in this submission. In support of his contention he relied upon a Full Bench decision of the madras High Court in Muttu Chidambara V. Karuppa (1884) ILR 7 Mad 382 wherein 5 Judges of the Madras High Court held, while construing the provisions of Section 265 of the Code of Civil Procedure which is almost in pari materia with Sec. 54 as it stood amended in 1908, that the provisions of Sec. 265 C. P. C., requiring a preliminary decree for the partition of an estate paying revenue to Government to be sent to the Collector of the district for final decree proceedings are not applicable to ryotwari holdings. It further held.
'This section corresponds with Section 225 C. P. C., of 1859. It was held by the Sadr Court that ryotwari holdings were not 'estates' paying revenue to Government and this construction has always been acted upon in this Presidency. It would unsettle a large number of titles to adopt a different construction now, and whatever we might have thought if the matter had come before us as res integra, we are not prepared to disturb a practice so long established.'
4. No decision thereafter which has taken a view at variance with this has been placed before me so as to take a different view.
5. Sri Mahesh Narayan, the learned counsel for the respondents argued, relying on certain decisions of the erstwhile Hyderabad High Court, Mysore High Court and Bombay High Court, that the said provisions enacted in Section 54 have been construed to mean that they include agricultural lands of ryotwari nature as well. I apprehend I cannot accede to this submission. In Phoolchand v. Vamanrao AIR 1951 Hyd 86 the facts were that an application for restitution of possession of a part of revenue paying agricultural land which his come in the possession of the appellant in execution of a decree was made. The appellant held a decree against the respondent for five annas our pies share in a revenue paying land which decree did not specify the exact piece of land which has to be given in possession of the appellant. However final decree proceedings were made by the Court. The contention there was that under Sec. 54 C. P. C., it was not within authority of the officer to decide upon the portion of the land to the extent of 5 annas 4 pies which the decree- holder is entitled to possession; it is for the Revenue Collector to apportion the land and carry out the decree. The executing carry out the decree . The executing Court dismissed the application and the appellate Court allowed it on the ground that the proceedings taken by the officer was beyond his powers in view of the provisions of Sec. 54. In the second appeal it was held (at P. 87).
'Section 267, Hyderabad Civil P. C. (Sec 54 Indian Civil P. C.) requires that decree should be for the partition of such property or for a separate portion thereof as is described in this section. I think that when the section applies to the present case the execution of this decree should have been made according to the provisions of that section. As regards the other contention that the mode of ascertaining the portion and of putting a decree-holder in possession either by the Taluqdar or by any other officer of Court is merely an immaterial irregularity of procedure. I am not prepared to accept that contention. Infect the Court executing the decree would not have placed the decree-holder in possession of that part which was to be accomplished by an independent officer, the Collector.'
6. The case decided in Narasu v. Narayan AIR 1959 Mys 233 is only with regard to the aspect whether a decree being passed under r. 18 (1) of O. 20 C. P. C., directing partition by the Collector was a preliminary decree or a final decree. It is in that context the Court held that it was a preliminary decree and the final decree could only be passed by the Collector. So the construction of 'estate paying revenue to the Government' as employed in Sec. 54 did not fall directly for consideration of the Court.
7. The next case relied on by the respondent's counsel is Venkataraghava v. Venkata Hanumantha. AIR 1945 Mad 336 (FB) wherein a Full Bench held -
'The Court which has passed a decree for partition to which Sec. 54 applies and has sent it to the Collector for the purpose of effecting the partition has no power to hear objections to the partition made by the Collector or his subordinate or to modify the partition.'
This again is a case which determines only the scope and the authority of the Collector to be exercised on the referred decree. So this is of no assistance to the case of the respondents. As stated earlier, I am inclined to hold that the words, 'estate assessed to the payment of revenue to the Government' are only referable to an 'estate' which pays a lump sum revenue to the Government , and do not include the rayotwari land, as held by the High Court of Madras in the decision cited above. Hence the ryotwari lands included in the preliminary decree herein are not covered by Sec. 54, Civil Procedure Code, but by Order 20 Rule 18 (2), and therefore, (decree?) cannot be sent to the Collector.
8. In view of the above discussion, the order under revision which is erroneous is set aside and the lower court is directed to appoint a Commissioner for due execution of the decree.
9. The revision petition is allowed. No costs.
10. Revision allowed.