P.D. Desai, J.
1. The petitioner is the first defendant, opponents Nos. 3 and 4 are defendants Nos. 2 and 3 and opponents Nos. 1 and 2 are plaintiffs in Civil Suit No. 37 of 1960 on the file of the Court of the Civil Judge, Junior Division, Mandvi. The suit is for partition and separate possession of the one-third share of the plaintiffs in the suit properties which included certain agricultural lands assessed to payment of land revenue. A preliminary decree (Ex. 43) was passed in this suit on September, 15, 1962 inter alia ordering and declaring that the plaintiffs on the one hand and defendants Nos. 1 and 2 on the other had one-half share each in certain suit properties and that the same set of litigants had one-third share each in certain suit agricultural lands assessed to payment of land revenue. The preliminary decree inter alia directed that the case papers be sent to the Collector for partition of the aforesaid agricultural lands in view of Section 54 of the Code of Civil Procedure. It appears that there was a first appeal and then a second appeal against the aforesaid preliminary decree and the said appeals failed. Ultimately a final decree (Ex. 56) came to be passed on April 29, 1968 and by the said final decree it was again directed that so far as the aforesaid agricultural lands were concerned, a copy each of the preliminary decree and final decree together with a copy of the judgment of the Court be sent to the collector for partition by metes and bounds of the said lands and if such partition was not possible, for adjustment of the shares of the parties in accordance with certain directions given, in the judgment
2. On June 11, 1968 the case papers were sent to the Collector for partition of the aforesaid agricultural lands in accordance with the aforesaid directions. On October 8, 1969, the Collector made a report (Ex. 58) to the trial Court stating that it was not possible to partition the agricultural lands in question and to award separate possession of portions thereof to the parties entitled to the same in view of the fact that one of the agricultural lands was in actual possession of a third party who had become entitled to purchase the same on payment of six times the assessment upon the enactment of the Personal Inams Abolition Act and, in the case of other lands, if the same were partitioned, it would result in fragments in contravention of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. The report appears to have been placed before the trial Court which passed an order (Ex. 68) on February 8, 1971 referring to the directions given in its judgment delivered at the stage of the passing of the final decree and directing that the case papers be sent back to the Collector with a suggestion that the lands in question might be partitioned by adjustment of shares as par the said directions. It might be stated here that at that stage it was submitted on behalf of the plaintiffs before the trial Court that instead of sending the case papers back to the Collector, appropriate orders might be passed in respect of the properties in question under the Partition Act. The trial Court was, however, of the view that the question of initiating proceedings under the said Act did not arise at that juncture and the case papers were required to be sent back to the Collector drawing his attention to the alternative course of action suggested in the judgment given at the time of passing the final decree. Pursuant to the aforesaid order, the papers were sent back to the Collector on February 17, 1971. On September 18, 1973, the Collector again made a report (Ex. 69) to the trial Court stating that for the reasons already indicated in his previous communication it was not possible to partition the suit agricultural lands by metes and bounds.
3. Consequent upon the receipt of the report (Ex. 69) the plaintiffs and the third defendant made a joint application (Ex. 71) on December 31, 1973 requesting that in view of the report of the Collector, the agricultural lands in question might be sold in accordance with the provisions of the Partition Act to the highest bidder amongst the parties to the suit. The petitioner in his reply (Ex. 91) objected to the sale of properties in question substantially on the ground that a final decree having been passed, it was not competent to the plaintiffs to approach the Court for sale of the suit agricultural lands except by way of execu tion application and that only in such proceeding action might be initiated for partition in accordance with law. The trial Court, however, rejected the objection of the petitioner on the ground that at the stage when the matter was referred to the Collector for partition, the petitioner was present and he was heard and that he had not contended then that the Court would have no jurisdiction to deal with a situation of the type which has arisen in the present case on account of the Collector's inabi lity to partition the lands. At such a late stage, therefore, such an objection on behalf of the petitioner could not be entertained. It is this order which is impugned in the present petition.
4. It would appear that in substance the contention of the petitioner before the trial Court was that in the present suit a final decree having been passed, the trial Court had become functus officio and that it could not, therefore, order sale of the suit agricultural lands even if there were circumstances justifying the taking of such an action. The only proceeding in which such an order could be made, according to the petitioner, was an execution proceeding and since no execution application was filed by the plaintiffs and an application for sale of the properties was made in the suit itself, the trial Court was not competent to order sale. This very contention was also reiterated at the hearing of this revision application on behalf of the petitioner.
5. The contention urged on behalf of the petitioner raises a point on which there appears to be no direct authority. None at least has been pointed out to me by the learned Advocate appearing on behalf of the petitioner although I must say that he has fairly rendered me valuable assistance. I have, therefore, to decide the matter on first principles and in the light of certain, rulings which furnish the backdrop for the decision of the point involved.
6. Section 54 of the Code of Civil Procedure provides that 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 that 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. Order XX, Rule 18 of the Code of Civil Procedure which deals with decrees in suits for par tition of property or separate possession of a share therein, inter alia provides that where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, 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 that behalf in accordance with such declaration and the provisions of Section 54. It would appear on a perusal of the afore said statutory provisions that where a decree has been passed for partition and separate possession of a share of an undivided estate assessed to pay ment of revenue, the proper authority to effect partition and to deliver possession of the share is the Collector. The Civil Court has no power to do so. The only power which the civil court has got in regard to a claim for partition in respect of such an estate is to make a declaration regarding the shares of the parties to the suit therein and it has itself no power of dividing such an estate by metes and bounds or of appointing a commissioner for the purpose. (See Amersing v. Samatsing IX G.L.R. 220). When an order in that form is made, the Civil Court's duties are finished and it is for the Collector to partition the property and put the parties into possession. The order made by the civil Court declaring the shares of the parties in such an estate and ordering that the partition of such properties be made by the Collector is a final decree so far as such estate is concerned. (See Jacinto v. Farnandez A.I.R. 1939 Bombay 454). There is no provision in the Civil Procedure Code that after making a partition the Collector should report to the Court in order that it may pass a final decree. In fact no other final decree is ever passed after a decree is once passed under Order XX, Rule 18(1). A preliminary decree cannot for ever remain a preliminary decree but contemplates a final decree upon which the decree-holder may take out execution, a term which in decrees for partition of property must include delivery of possession. 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 in respect of an estate assessed to payment of land revenue to the Government. It must be stated, however, that a final decree, which merely declares what are the shares of the parties in the suit lands of that nature and by whom the partition is to be effected, would be merely a declaratory decree which, though final, would by its very nature be incapable of execution. The sending of the decree to the Collector is only a ministerial act and not execution of the decree. The effecting of partition by the Collector by carrying out an order passed by the Court is not execution of the decree. The Collector merely proceeds to make division by metes and bounds in accordance with shares declared by the civil Court and to deliver possession and in so doing he acts as an executive officer with a wide range of discretion not subject at any rate ordinarily to the control by the Court. This is not to say that the Court is deprived of its judicial control of the decree passed by it. It does retain a limited control and if the Collector contravenes the decretal order or transgresses the law or otherwise acts ultra vires or refuses to carry out the decree, or acts mala fide or if it is shown that the partition was obtained from him by fraud or surprise, then his action is liable to be controlled and corrected by the civil Court which passed the decree. Apart from this limited control, 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 sharers (See Ramabai Govind v. Anant Daji A.I.R. 1945 Bombay 338 (F.B.).
7. As a result of this view consistently taken by the Bombay High Court and by this Court, which is binding on me, it is apparent that the decree dated September 15, 1962 (Ex. 43) as confirmed in appeal will have to be treated as a final decree of a declaratory nature. It is also further clear that such a decree by itself is not capable of execution and that even the Collector, if he had been successful in dividing the suit agricultural lands by metes and bounds, could not be said to have effected a partition in execution of such a decree. It is also apparent that the trial Court's duties were really finished when it made the final decree at Ex. 43 and that nothing further was required to be done in the present suit by virtue of the authority derived by it under the relevant provisions of the Code of Civil Procedure. The conclusion which logically follows from these propositions is that so far as the provisions of the Civil Procedure Code are concerned, no further order could be made either in the suit or in the execution proceedings with regard to the suit agricultural lands.
8. The question which then arises is as to what happens in a case like the present where the Collector makes a report to the Court that it is not possible to divide an estate assessed to the payment of land revenue in accordance with the declaratory decree made by the Court. Is it to be assumed that the Court is entirely powerless in such a situation to give relief to the plaintiff who not only claimed a declaration of his right in suit properties but also prayed that his share might be separated and that he might be placed in possession of such of the properties which are assigned to his share? It cannot be overlooked that in a suit for partition, though the primary thing is to obtain a share by partition declared by the decree of the Court, the plaintiff would not have a complete relief unless his share is carved out and properties are assigned and allotted to him according to such share. If the Court finds that it is impracticable or inexpedient or detrimental to the interest of any party to the suit that partition by metes and bounds be made in respect of the suit properties or any portion of them, the Court cannot sit with folded hands and ask the plaintiff to rest satisfied merely with a declaratory decree in his favour. If a statemate of such a nature arises, the Court must find some way and our laws do make some provision in that behalf. The relevant law is the Partition Act, 1893 to the provisions of which I will immediately advert.
9. The Partition Act was enacted to amend the law relating to parti tion. Sections 2 and 3 are as follows:
2. Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3. (I) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other share-holder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such share-holder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2) If two or more share-holders severally apply for leave to buy as provided in Sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such share-holder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
The statement of objects and reasons for the enactment of the Partition Act state that the statutory law on the subject of partition, apart from various local laws dealing with the partition of land paying revenue to Government, was contained in Sections 265 and 396 of the Code of Civil Procedure (equivalent to Section 54 and Order XXVI Rules-13-14 of the present Code). Under the law as it stood, the Court must give a share to each of the parties and it had no power to direct a sale and division of the proceeds in any case whatever. Instances, however, occasionally occur where there are insuperable practical difficulties in the way of making an equal division and in such cases the Court was either powerless to give effect to its decree, or was driven to all kinds of shifts and expedients in order to do so. Such difficulties were by no means of very rare occurrence, although in many cases where the parties were properly advised they generally agreed to some mutual arrangement and thus relieved the Court from embarrassment. The Partition Act was, therefore, enacted to give a discretionary authority under proper safeguard to direct a sale where a partition could not reasonably be made and a sale would, in the opinion of the Court, be more beneficial for the parties. It would thus appear that the Partition Act was enacted with a view to meeting situations such as those which are found in the present case and the Act, under the sections cited above, confers an independent authority on the Court to meet with such difficult situations.
10. The provisions of Sections 2 and 3 of the Partition Act fell for con struction before the Supreme Court in R. Ramamurthi v. Rajeshwarrao : 1SCR904 . Analysing those two sections it was pointed out that the various stages under Sections 2 and 3 would be as follows:
1. In a suit for partition if, it appears to the Court that for the reasons stated in Section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale. This can be done, however, only on the request of the share-holders interested individually, or collectively to the extent of one moiety or upwards.
2. When a request is made under Section 2 to the Court to direct a sale any other share-holder can apply under Section 3 for leave to buy at a valuation the share of the other party asking for a sale.
3. The Court has to order valuation of the share of the party asking for sale.
4. After the valuation has been made the Court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under Section 3.
5. If two or more shareholders severally apply for leave to buy the Court is bound to order a sale of the share or shares to the share-holder who offers to pay the highest price above the valuation made by the court.
6. If no share-holder is willing to buy such share or shares at the price so ascertained the application under Section 3 shall be dismissed, the applicant being liable to pay all the costs.
It would thus appear that in a suit for partition when it appears to the Court that for the reasons set out in Section 2 a division of the property cannot be reasonably and conveniently made and the sale of the property would be more beneficial, it can direct sale at the request of the shareholders interested individually or collectively to the extent of one moiety or upwards. The proceedings thereunder might be regarded as a sequel to or continuation of the partition suit and in order to give complete relief to the parties the Court would undoubtedly be authorised to make an order for sale.
11. Having regard to the foregoing discussion, it would clearly follow that in the present case the trial Court had complete authority in the partition suit itself by virtue of the power vested in it under the Partition, Act to order sale of the suit agricultural lands in respect of which the Collector reported that it was not .practicable and feasible to make a partition by metes and bounds. Although on the decided cases it must be held that the Court had passed a final decree and it had become functus officio, that situation would be with reference to the provisions of Section 54 and Order XX, Rule 18(1) only. The power which the Court derives under Section 2 of the Partition Act would be an independent and distinct power to do complete justice between the parties and to give effect to its own final decree. There is no question whatsoever of an order for sale being made in execution proceedings.
12. There was nothing to execute in the strict sense of the term for what was passed was merely a declaratory decree as pointed out earlier. The proceedings under Section 2 have to be treated as a sequel or continuation of the partition suit. In these circumstances, in my opinion, the trial Court was justified in making the order for sale in the suit itself. I must make it clear that no contention was raised before me that provisions of Section 2 were not attracted and rightly so because having regard to the report of the Collector, it was not possible to divide the suit agricultural lands and in the circumstances of the case sale of the property and distribution of the proceeds was the only way in which the relief could have been effectively granted.
13. In the result, the revision application fails and is dismissed. Rule dis-charged with no order as to costs.