1. The appellant-plaintiff has preferred this appeal against an order dated 10th May, 1972 passed by the Second Additional District Judge, Sagar, in Misc. Civil Appeal No. 21 of 1969.
2. Brief facts of this appeal are that the appellant Bhagwansingh along with two others had filed Civil Suit No. 23-A of 1951 against the present two respondents with nine others for partition of certain agricultural lands which were held by them jointly. After the trial of the suit, the trial Court vide its order dated 24-1-1955 passed a preliminary decree for partition with the direction that the decree shall be transferred to the Collector under Section 54, read with Order XX, Rule 18 (1) of the Code of Civil Procedure for effecting the partition. It is an admitted fact that after the Collector partitioned the property, a final decree for partition was passed by the CivilCourt on 25-1-1960 in accordance with its decision. As it appears from the record that khasra No. 520/1 was allotted to the respondents in lieu of their 1 anna 8 pies share. After the final decree was passed, the respondent-defendants filed an application for execution of the decree claiming possession of the said khasra No. 520/1. This application was dismissed by the executing Court on the ground that the said Court was not competent to make any order for delivery of possession in execution proceedings. The said order was challenged before the lower appellate Court. It allowed the appeal, holding that the executing Court was competent to deliver possession and accordingly directed the said Court to issue a warrant of possession. The present appellant has now come up in appeal against that order,
3. This appeal first came up for hearing before the learned Single Judge and it was contended on behalf of the appellant that if a party to a partition suit is not in possession of the share allotted to him by the Collector, it is open for him to file a civil suit for the purpose, but he cannot claim this relief in execution proceedings as the civil Court had become functus officio after passing the preliminary decree for partition under Order XX, Rule 18 of the Code. The learned Single Judge thought that the question involved in the present case is of importance which requires full consideration by a larger Bench, particularly because there is no decision of a Division Bench of this Court. Accordingly he referred the entire case for consideration by a larger Bench. In these circumstances, this appeal has now come up before us for decision.
4. The only point which has been urged before us by the learned counsel for the appellant is that where a decree for partition is sent to the Collector lor effecting partition in accordance with the provisions of Section 54 and Order XX, Rule 18 of the Code, the civil Court becomes functus officio and cannot thereafter take any step to enforce the final decree in the execution proceeding. On the other hand, learned counsel for the respondents contended that the civil Court would always have jurisdiction in such cases to pass a final decree which in the present case was passed on 25-1-1960. He further contended that the civil Court does not become functus officio even after the partition is effected by the Collector of the property under Section 54 of the Code. According to him, the jurisdiction of the Civil Court is not, in any manner, ousted in passing the final decree thereafter and also in delivering possession in accordance with the said decree.
5. Having heard learned counsel for both the parties, we are of the opinion that the contention advanced by the learned counsel for the appellant has substance and as such must be accepted. We shall first like to refer to the relevant provisions of the Code of Civil Procedure before dealing with the point involved in the present case. Rule 18 (1) of Order XX of the Code reads as under:
'Rule 18. 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.'
Section 54 of the Code reads as under:
'54. 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.'
A perusal of the aforesaid two provisions make it clear that the rule does not contemplate passing of a final decree. All that is required of a civil Court in a case for partition of an undivided estate assessed to the payment of land revenue to the Government, or for the separate possession of a share of such an estate, is to only pass a preliminary decree and declare the rights of the several parties who are interested in the property and nothing more and give direction for such partition or separation to be made by the Collector or any gazetted officer subordinate to the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of Section 54 of the Code. Thereafter, the execution has to be effected by the Collector. The reason is that the revenue authorities are more conversant and better qualified to deal with such matters than the Civil Court and interest of the Government with regard to the revenue assessed on the assets would be better safeguarded by the Collector executing the decree than by the Court. The partition contemplated by Section 54 is not confined to mere di-vision of lands but includes also the delivery of the shares of the respective allottees. Thus, the Collector or his subordinate would be completely carrying out the partition. The civil Court after passing of the preliminary decree for partition of an undivided estate assessed to the pyament of land revenue becomes functus officio and it would have no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in accordance with the said decree.
6. We are supported in our view by a series of decisions of this Court as well as of other High Courts also. In Munawarali v. Taiyabali, AIR 1920 Nag 204, it has been held that under Section 54 of the Code the Collector has not only to make allotment of shares but to complete the partition by delivery of possession. In Mohamad Abdul Rahim v. Pa-rashram, AIR 1927 Nag 300 it has been held that the Collector when partitioning the estate in accordance with Section 54 of the Code has power to give the shares to the respective allottees. Parbhudas Lakhmidas v. Shankarbhai, (1887) ILR 11 Bom 662, has been relied upon. In Lachhirarn Jasram v. Nanba Dhanaii. AIR 1946 Nag 353 it was held as under:
'......Sec. 54, read with Order 20, Rule 18,authorises the civil Court only to declare the rights of the several parties interested in the property and places the execution of the decree entirely in the hands of the Collector. How the partition is to be made lies wholly within the authority of the Collector. The Civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with the property. In fact the suit terminates so far as the civil Court is concerned on the passing of the preliminary decree affecting any estate assessed to the payment of revenue to the Crown as has been held in numerous cases, such as Shri-nivas Hanmant v. Gurunath Shrinivas. (1891) ILR 15 Bom 527; Bhimanguada v. Hanmant Rungappa, AIR 1918 Bom 206; Jacinto v. Fernandes, AIR 1939 Bom 454; Ramabai Govind v. Anant Daji, AIR 1945 Bom 338 and Sher Bahadur Singh v. Ram Narain Singh, AIR 1945 Oudh 1.'
In Dharam Singh Satawansingh v. Deosingh Sitaram, AIR 1950 Nag 102 it has been held as under:
'Partition of land revenue paying estate has to be made by a Collector under Section 54, Civil P. C., or by a revenue officer under Chap. 11, C. P. Land Revenue Act, 1917. A Civil Court has no jurisdiction or power to effect a partition of land revenue paying estate or to reopen a partition already made by a Collector or revenue officer. The duty of a Civil Court is to give effect to the partition made by a Collector or a revenue officer in exercise of the powers vested in him. The power to deliver possession in accordance with the partition made is quite distinct from the power to effect a partition. A Collector or a revenue officer effecting a partition has the power to deliver possession in pursuance of the partition. The existence of the power is necessary to complete the partition.
... ... ... 'These provisions have been the subject of numerous decisions. A reference may be made to some of the decided rases. In (1891) ILR 15 Bom 527 and ILR 42 Bom 689 = (AIR 1918 Bom 206) it was held that a civil Court has no jurisdiction to re-open a partition made by the Collector and has no power to examine his work or to direct him to make a fresh partition. In AIR 1939 Bom 454 = (186 Ind Cas 119) it was held that when an order is made for partition of lands assessed to Government revenue, the Court makes an order decreeing partition and directing the parties to be put in possession and referring it to the Collector to carry out the partition. It was further held that when an order in that form is made, the Court's duties are finished, and it is for the Collector to partition the property and put the parties into possession. To the same effect are the decisions in Chandumal v. Hafiz, AIR 1943 Sind 7, AIR 1945 Oudh 1 = (1944 OWN 416) and AIR 1946 Nag 353 = (224 Ind Cas 353). In AIR 1943 Sind 7 = (ILR (1942) Kar 162), it was held that the Court is bound by the terms of the Civil P, C., and has no power so to fetter the discretion of the Collector as to overrule the powers that are conferred upon him under Section 54 and Order 20, Rule 18 of the Code. In AIR 1945 Oudh 1 = (1944 OWN 416), it was held that where a civil Court passes a decree for partition, it should be presumed that the procedure prescribed in Order 20, Rule 18, has been adopted and that in the case of immovable property assessed to land revenue, the civil Court has no further jurisdiction in the matter. In Lachhiram Jasram v. Nanba Dhanaji, AIR 1946 Nag 353 = (224 Ind Cas 353) it was held that Section 54, read with Order 20, Rule 18, authorises the civil Court only to declare the rights of the several parties interested in the property and places the execution of the decree entirely in the hands of the Collector; how the partition is to be made lies wholly within the authority of the Collector; and the civil Court is functus offi-cio after it declares the shares of the parties and beyond that it is not concerned with the property. In a recent case, Ven-kataraghava Rao v. Venkata Hanumantha Rao, ILR (1946) Mad 10 = (AIR 1945 Mad 336) (FB), it was held that a Court whichhas passed a decree for partition to which Section 54, Civil P. C., applies and has sent it to the Collector for the purposes 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; the Collector when acting under Section 54 has a statutory duty to perform and, in performing it, he is not under the control of the Court; he is not even required to report to the Court what he has done; when he has made the partition no order of the Court is necessary; and once the Court has sent the decree to the Collector for action under Section 54, the matter passes entirely out of its hands.'
In Mst. Hironda v. Mst. Anti, Civil Revn. No. 820 of 1969, D/- 8-7-1970 = 1970 MPLJ (SN) 91 it has been held that the Civil Court, when disposing of a suit for partition relating to revenue paying lands, has only to declare the shares of the parties and has no other power in the matter. That power having been exercised and the papers having been sent to the Collector for effecting actual partition, the Court becomes functus officio. The Court thereafter could not entertain any application in relation to that matter either for ascertainment of mesne profits or for delivery of possession etc. In AIR 1945 Bom 338. it has been held as under:
'.........When making partition theCollector does not purport to make a final decree. He proceeds from division by metes and bounds to delivery of possession as in one proceeding, and not as if he was conducting two distinct proceedings, one equivalent to a proceeding in suit, and the other to a proceeding in execution. See: (1887) ILR 11 Bom 662. In my opinion, therefore, the decree made in the form of Order 20. Rule 18 (1), technically must be classified as a final decree.'
In Ningappa Balappa v. Abashkhan Goushkhan, AIR 1956 Bom 354 relying upon AIR 1945 Bom 338 (FB), it has been held that after a decree for partition of lands assessed to revenue has been passed, the Court has nothing further to do with the decree. The decree is to be executed and the partition is to be effected by the Collector. There cannot, therefore, be any execution proceedings before the Court in the case of such a decree. The present applications, which are said to have been made under Section 47, Civil Procedure Code, were, therefore, not maintainable. In Muppanna v. Channappa, AIR 1964 Mys 169, it has been held that the powers and functions of the Collector under Section 54 are analogous to the powers and functions of the civil Court in the final decree proceedings for partition of properties other than an estate. Thus,it is clear that in the present case the Civil Court had no jurisdiction to pass a final decree after the partition was effected by the Collector and to execute the decree so far as the revenue paying lands are concerned.
7. The learned counsel for the respondent on the other hand relied upon Tikaram Khupchand v. Hansraj Hazarimal, AIR 1954 Nag 241 for his contention that the jurisdiction of the civil Court is not ousted. But the decision in that case cannot be made applicable to the facts of the present case and as such the said authority is not relevant at all. In that case, the matter was referred to arbitration regarding the partition of revenue paying lands and it was open to the arbitrators to divide the estate in such a way that the payment of revenue is not divided, i.e., by allotting the entire items of land to one party or the other. In those circumstances, all that the Court had to do in such cases is to hear the objections to the award and either to set it aside or to pass a judgment of the award. The arbitrators are not governed by Section 54 of the Code of Civil Procedure which is a section binding on the Court. In passing judgment on award, the Court does not pass a decree of partition of an undivided estate. That has been achieved by the award itself and all that the Court does is that the Court passes judgment in terms thereof. The other case relied upon by the learned counsel for the respondent is Kanhaiya v. Mst. Lilabai, 1970 MPLJ 76. In that case, the Court was required to consider whether under Section 178 of the M. P. Land Revenue Code, 1959 the jurisdiction of the civil Court is ousted and it was held that under Section 178 of the M. P. Land Revenue Code, the Tahsildar can divide the holding physically and partition the land but he has no right to allot the holding to one party and direct payment of compensation to other. That function is that of the Civil Court. From this point of view also, the proper interpretation is that it is an enabling provision and has not the effect of ousting the iurisdiction of the civil Court. Thus, the above citation is not at all relevant as interpretation of Order XX, Rule 18, read with Section 54 of the Code of Civil Procedure was not involved at all in that case.
8. From the aforesaid discussion we come to the conclusion that although in the instant case a final decree was actually passed and even though it was not challenged by the appellant, that would pot in any way preclude the appellant from raising the present objection that the civil Court had no jurisdiction to pass the final decree and execute the same after the matter was referred to the Col-lector under Order XX, Rule 18 read with Section 54 of the Code. The civil Court had become functus officio and it was not competent to pass a final decree which it did in terms of the Dartition effected by the Collector.
9. Learned counsel for the respondent made another submission also that in the present case there was no question of partition or revenue apportionment and, therefore, the civil Court should not have referred the case to the revenue Court for effecting partition under Order XX, Rule 18, read with Section 54 of the Code. It will suffice to say in answer that if that was so, the respondent ought to have challenged the preliminary decree of the civil Court and not having done so, it is now not open for him to raise this point and as such even this contention has no substance.
10. For the reasons stated above, we allow this appeal with costs set aside the order passed by the Second Additional District Judge, Sagar, in Misc. Civil Appeal No. 21 of 1969, and maintain that of the trial Court dated 2-8-1969. Counsel's fee according to schedule or certificate whichever is less.