RAGHA @ RUGNATH MAHADEV v. RAMJI BAVA — 1972 DIGILAW 149 (GUJ)

D. P. DESAI, J. ( 1 ) THIS revisional application raises an interesting point as regards the interpretation of the provisions of sec. 54 and Order 20 Rule 18 of the Code of Civil Procedure 1908 (hereafter referred to as the Code ). Not only that but if as a result of the correct interpretation of those provisions this Court is likely to come to a particular conclusion with regard to Courts power in respect of decrees for partition generally of properties including agricultural lands the decision possibly is also likely to affect to an extent the common practice hitherto followed in the Courts in this State of sending all preliminary decrees for partition of agricultural Lands to the Collector under the aforesaid provisions. The question as aforesaid has arisen in the following circumstances:-OPPOSITE party Ramji Bava had filed Civil Suit No. 103 of 1964 against the petitioners (of whom petitioner No. 1 died during the pendency of this revisional application and whose heirs have been brought on record) for partition of joint Hindu family properties. I am told at the bar that the properties comprised in this suit were six fields of agricultural lands three houses household articles implements of agriculture and bullocks and cart. In that suit a preliminary decree for partition was passed on January 20 1966 declaring that the plaintiff had 1/3rd share in the properties mentioned above. A lawyer of the Court was appointed as a Commissioner for division of the properties mentioned above and he was ordered to submit his report in three months time for the purpose of passing of a final decree. It is not in dispute that this preliminary decree was not appealed against by the present petitioners. On August 22 1966 an application was given by the present petitioners requesting the Court to direct partition of revenne paying lands by the Collector as contemplated by sec. 54 of the Code in lieu of the appointment of a Commissioner under the preliminary decree for doing the work of partition. The opposite party plaintiff objected to this application. On August 22 1966 an application was given by the present petitioners requesting the Court to direct partition of revenne paying lands by the Collector as contemplated by sec. 54 of the Code in lieu of the appointment of a Commissioner under the preliminary decree for doing the work of partition. The opposite party plaintiff objected to this application. The matter was argued before the trial Court; and one of the arguments was that in case of decrees for partition of land assessed to revenue the Court had no jurisdiction to direct partition of such land by a Commissioner appointed by the Court and that it is bound to send the papers to the Collector after passing a decree as provided under subrule (1) of Rule 18 of Order 20 of the Code. This contention was negatived by the learned trial Judge following some decisions of Calcutta Nagpur and Rangoon High Courts which according to him laid down that the aforesaid provisions of the Civil Procedure Code do not apply to a suit for partition of agricultural lands assessed to land revenue in which separate allotment of revenue is not asked for. In that view of the. matter the learned trial Judge rejected the application with costs and directed the Commissioner to proceed with the work of partition. It is against this order that the petitioners have come in revision to this Court. ( 2 ) SEC. In that view of the. matter the learned trial Judge rejected the application with costs and directed the Commissioner to proceed with the work of partition. It is against this order that the petitioners have come in revision to this Court. ( 2 ) SEC. 54 and Rule 18 of Order 20 read 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 rule 18 of Order XX18 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 sec 54; (2) if and in so far as such decree relates to any other immovable property or to movable property the Court may if the partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be requiredin the present case admittedly appointment of a Commissioner is made not only for the purpose of submitting his report as regards partition of houses and other movables but also as regards partition of agricultural lands i. e. six fields in question. According to Mr. According to Mr. Hathi the learned advocate for the petitioners (defendant) the learned Civil Judge who passed the preliminary decree had no jurisdiction to direct partition of agricultural lands assessed to payment of land revenue by the commissioner and that the only course open to him was to follow the provisions of Rule 18 (1) of Order 20 of the Code. He submitted that the appointment of a commissioner in so far as it related to partition of agricultural lands was contrary to the aforesaid provisions of law and was without jurisdiction. In his submission therefore even though the present petitioners had not appealed against the preliminary decree containing that direction the trial Court could have modified that direction suitably after passing of the preliminary decree. The first question to be considered is whether the trial Court had no jurisdiction to pass a preliminary decree of the type passed in the present case i. e. a preliminary decree directing partition generally of all the properties in the suit and appointment of a commissioner for that purpose ? I have advisedly used the word generally in under to distinguish this case from a case in which the Court may direct partition of plaintiffs undivided share from a particular field which is the subject matter of the suit and which is assessed to payment of revenue as a whole as an undivided estate. In the latter type of decree provisions of sec. 54 and Rule 18 (1) of Order 20 would in terms apply. The question is whether they apply to a decree of the former type? This question has not been answered for over years so far as this High Court and the Bombay High Court are concerned. At any rate no decision of either of the Courts deciding this question has been brought to my notice. The question has arisen in the context of the type of the decree which has been passed in the present case viz. a decree containing a general direction of partitioning all the properties involved in the suit both agricultural and non-agricultural without specifying that from a particular field or fields out of the six fields each of which is assessed to payment of land revenue plaintiffs 1/3rd share is to be separated. a decree containing a general direction of partitioning all the properties involved in the suit both agricultural and non-agricultural without specifying that from a particular field or fields out of the six fields each of which is assessed to payment of land revenue plaintiffs 1/3rd share is to be separated. We may first go by the language of the aforesaid provisions of the Code and try to find out what is carved out by the Legislature by way of an exception from the admitted jurisdiction of a Civil Court to pass decrees for partition of movable and immovable properties. As the exception on the arguments advanced impinges upon the jurisdiction of a Civil Court the settled principle is that the jurisdiction of the Court to deal with the suit of a civil nature must be taken away either expressly or by necessary implication. The Courts should not readily infer exclusion of jurisdiction. We may therefore examine the terms of the aforesaid provisions in the first instant apart from decided cases on which the trial Court has relied. ( 3 ) THE words estate assessed to the payment of revenue to the Government occurring in both the provisions i. e. Sec. 54 and Rule 18 (1) of Order 20 of the Code would in my opinion mean a revenue survey number which is assessed to the payment of revenue to the Government as a whole. Thus each revenue survey number which is so assessed would be an estate for the purposes of the aforesaid provisions. If this view is correct and I see no reason to take a contrary view each of the six fields in the present suit would be an estate assessed to the payment of revenue to the Government. In that case in order that a decree for partition may fall within the provisions of sec. 54 and Rule 18 (1) of Order 20 of the Code the decree must be for a partition and separate possession of plaintiffs share from each of these fields. If that is the decree which the Court has passed and not a general decree for partitioning all the properties comprised in the suit the Court would be obliged to leave the matter to the Collector for partitioning of each field as per its decree. The provisions of sec. If that is the decree which the Court has passed and not a general decree for partitioning all the properties comprised in the suit the Court would be obliged to leave the matter to the Collector for partitioning of each field as per its decree. The provisions of sec. 54 and Rule 18 (1) of Order 20 of the Code would apply to such decrees because both the provisions posit a decree for partition. Therefore before the matter is left to the Collector the decree must direct partition of each individual field according to the respective shares of the parties or one of the parties adjudicated upon by the Court. Even if the decree does not order partition of each of the fields but directs partition of one or more of those fields so as to give the plaintiff his 1/3rd share from each of them then also the matter has to be left to the Collector. The point to be emphasized is that the matter which is required to be left to the Collector is partition of each agricultural land i. e. each revenue survey number under a decree directing its partition in accordance with the shares determined by the Court. In the present case we are concerned with six fields each assessed to payment of revenue to the Government. By no stretch of imagination it can be said that these six fields combined make up an undivided estate assessed to payment of revenue to the Government. The undivided estate must as well be assessed to payment of revenue to the Government as an unit in order to bring the provisions of sec. 54 and Rule 18 (1) of Order 20 into operation. If we consider each of the six fields to be an undivided estate then each field will answer the description of an undivided estate assessed to payment of revenue to the Government as a whole. But in that case to repeat the earlier reasoning the decree must direct partition of each one or more of these fields according to the shares determined. But in that case to repeat the earlier reasoning the decree must direct partition of each one or more of these fields according to the shares determined. ( 4 ) IN a given case the Court might feel looking to the shares of each of the parties to the litigation before it and looking to the extent of agricultural lands separately assessed to payment of revenue that it may not be necessary to divide each field according to the shares determined by the Court and that it may be practicable to allot one or more of the fields to the share of one of the parties and other fields to the shares of others. In such a case it is not understood what purpose would be served by sending the matter to the Collector because in that case the occasion of appointment of liability to payment of land revenue does not arise. The party to whose share certain field or fields go would become liable under the law to pay full amount of assessment for those fields. Similarly it may not become necessary in the course of execution of the decree for partition to give separate sub-number or pot number to the agricultural fields so far as revenue records are concerned. The fields which are allotted to the share of one of the parties would be mutated to its name under the same revenue survey numbers. In such a case no purpose would be served by sending the matter to the Collector for partition. ( 5 ) THERE are frequent occasions in cases of partition decrees to assess the value of the properties to be partitioned not only for the purpose of allotment of a particular property to the share of a particular party but also for the purpose of equalization of the shares by payment of cash amount by the party getting more valuable property to the party which gets less valuable property. It is common knowledge that Courts of law are generally more concerned with the valuation of properties rather than revenue officers. In case of municipal legislation we frequently find provisions of appeal to Civil Courts in matters of taxation based upon valuation of properties. In cases of land or immovable properties acquired by the State Government also the work of assessing the value of the acquired property is left to the Courts. In case of municipal legislation we frequently find provisions of appeal to Civil Courts in matters of taxation based upon valuation of properties. In cases of land or immovable properties acquired by the State Government also the work of assessing the value of the acquired property is left to the Courts. To my mind therefore the Courts would be in a better position to effect partition of properties including agricultural lands fairly and equitably taking into consideration the value of the properties. If this approach is correct then the partition which is intended to be left to the Collector under the aforesaid provisions would be one which has some impact upon the revenue and revenue records of the State. This will be in cases where a decree for partition of a specified share from each of one or more estates paying revenue to the Government is passed by the Court. In case of such partition as observed earlier separate sub-numbers or pot numbers may have to be given by the revenue department to each of one or more survey numbers partitioned accordingly and the land revenue also may have to be partitioned between two or more parts of each survey number. This precisely is the purpose contemplated by the provisions of sec. 54 and Rule 18 (1) of Order 20 of the Code. Both the aforesaid provisions posit that as a condition precedent to the sending of the matter to the Collector there must be a decree and that decree must be for partition and the partition ordered under the decree must be of an undivided estate assessed to payment of revenue to the Government or for separate possession of a share of such an estate. The decree will only direct that from a particular survey number or a particular undivided estate assessed to payment of revenue as a whole plaintiffs particular share may be partitioned. The Collector will then decide whether it is practicable to partition plaintiffs share accordingly keeping in view inter alia the provisions preventing fragments of lands and other matters. The Collector will again decide where the decree is for partition of plaintiffs share from a particular land or lands which portion of that land should go to the plaintiffs share. It may be pointed out that in a case governed by the provisions of sec. The Collector will again decide where the decree is for partition of plaintiffs share from a particular land or lands which portion of that land should go to the plaintiffs share. It may be pointed out that in a case governed by the provisions of sec. 54 of the Code the Collector exercising his powers under that provision is only carrying out the directions given in a decree for partition passed by the Court. Thus his power is limitted to decrees for partition of the type mentioned above. If a share is not to be separated from each of one or more of survey numbers there is no reason why the work of allotment of the entire survey number assessed to payment of revenue to Government to a particular party should be left to the Collector. ( 6 ) IN view of this interpretation of the aforesaid provisions it can be said that the preliminary decree passed by the trial Court in the present case is with jurisdiction inasmuch as the decree does not direct that plaintiffs 1/3rd share shall be separated from each of these fields in the suit. But then it may be asked what would happen if the Commissioner appointed by the Court comes to the conclusion that it is practicable to separate the 1/3rd share of the plaintiff from each of the six fields. The answer to this query is clear In that case the Court will pass a final decree directing partition of 1/3rd share of the plaintiff from each of these fields if it accepts the report of the Commissioner; and the matter will then go to the Collector because in that case we have a decree for partition as contemplated by the aforesaid provisions. In this connection it may be noted that the Legislature has not used the words;preliminary decree either in sec. 54 or in Rule 18 (1) of Order 20 of the Code. Therefore there is nothing to debar the Court from sending such a final decree for partition to the Collector. ( 7 ) MR. Hathis contention was that the words undivided estate assessed to the payment of revenue to the Government include fields separately assessed to payment of revenue to the Government. This submission would indicate that the words undivided estate refer to the totality of several fields each separately assessed to payment of land revenue. ( 7 ) MR. Hathis contention was that the words undivided estate assessed to the payment of revenue to the Government include fields separately assessed to payment of revenue to the Government. This submission would indicate that the words undivided estate refer to the totality of several fields each separately assessed to payment of land revenue. In that case other requirement that the undivided estate itself must be assessed to payment of revenue to the Government is not satisfied because the total estate so made up is not assessed to payment of revenue to the Government as a whole. ( 8 ) THE view taken by me gets support from Tikaram v. Hansraj A. I. R. 1954 Nagpur 241. That case arose upon a decree made on award which award as noted in paragraph 5 of the judgment did not divide a single item of revenue paying property itself. A decree was passed on this award and that decree came to be questioned inter alia on the basis of the provisions of sec. 54 and Order 20 Rule 18 of the Code. The relevant observations of Hidayatulla J. (as he then was) speaking for the Division Bench made in connection with this contention are to be found in paragraphs 22 23 and 24 and they bear repetition:- (22) On the second point we are of opinion that merely_because the claim includes revenue paying estate the Court or the arbitrators are not precluded from dealing with the case. In the present case if a decree can be passed in terms of the award that decree would not be one for 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 as would attract sec. 54 Civil P. C. read with sub-rule (1) of (23) There is a dictum of Maclean C. J. in Jogodishury Debea v. Kailash Chandra 24 Cal 725 (FB) (1) that sec. 54 is not intended to make; it compulsory that the COllector should make the partition save in cases where as the result of the partition the revenue would or might be affected. Sec. 54 read with Order 20 Rule 18 Civil P C. does not preclude ga civil Court from making a partition of land of a revenue paying estate where no separate allotment of the revenue is asked for. Sec. 54 read with Order 20 Rule 18 Civil P C. does not preclude ga civil Court from making a partition of land of a revenue paying estate where no separate allotment of the revenue is asked for. See Priyanath Roy v. Sreedhar Chandra Roy A. I. R. 1945 Cal. 28; (J) and Radha Kishan v Bhola Chaudhri A. I. R 1934 Pat. 365 (K ). (24) In the present case the award did not even divide any of the revenue paying properties but only allotted different items intact to the different parties. The learned Judge said that merely because the claim included revenue paying estate the Court or the arbitrators were not precluded from dealing with the case. It was also pointed out looking to the nature of the decree and the award that the decree would not be one for partition of an undivided estate assessed to payment of revenue to the Government or for the separate possession of a share of such an estate as would attract the aforesaid provisions. The learned Judges also followed the dictum laid down in a full Bench decision the Calcutta High Court reported as Jogodishury Debea v. Kailash Chandra. I. L. R. 24 Calcutta 725. The Calcutta High Court had to deal with sec. 265 of the Civil Procedure Code 1882 which has been reproduced at page 741. For the purpose of our discussion this provision can be said to be analogous to sec. 54 of the Code of 1908. We find at page 741 some observations relating to the phrase the partition of an undivided estate paying revenue to Government. These observations may be reproduced:-THE section evidently contemplates two classes of cases namely one for the partition of an undivided estate paying revenue to Government and the other for the separate possession of a share of such an estate; and the question is what is meant by the partition of an undivided estate paying revenue to Government and what by the separate possession of a share of such an estate ? As I understand these expressions which are not explained in the Code the former means the division of an undivided estate paying revenue to Government into a number of smaller estates corresponding to the shares or interests of the several joint proprietors each being liable only for a portion of the revenue assessed on the original or parent estate: -. . . . . . . . . . . . The words partition and separate possession of a share in the absence of any conflicting context must imply complete partition and complete separation and the presence of the phrase paying revenue to Government in the context as quali fying the term undivided estate evidently suggests that the partition or separation must involve not only a division or separation of the land of the estate but also a division or separation of the revenue payable to Government in respect thereof. (Emphasis supplied ). ( 9 ) MR. Hathi for the petitioners drew my attention to a decision of a Single Judge of Hyderabad High Court reported as Phoolchand v. Vamanrao A. T. R. 1951 Hyderabad page 86. In my opinion that decision does not conflict with the view that I have taken of sec. 54 of the Code. The corresponding section of Hyderabad Civil Procedure Code which came up for consideration before the learned Judge was sec. 267. In that case a decree for 5 annas 4 pies share in a revenue paying land came to be passed. The decree did not specify the exact piece of land which was to be given in the possession of the decree holder. In the context of this decree it was observed that sec. 267 of the Hyderabad Civil Procedure Code applied and therefore the execution of this decree should have been made according to the provisions of that section. This is quite true because the decree was for separation of 5 annas 4 pies share from the agricultural land which was assessed to payment of revenue to the Government. ( 10 ) IN the course of his submissions Mr. Hathi had made a reference to a decision of a Division Bench of this Court reported as Amersing v. Samatsingh 9 Gujarat Law Reporter page 220. Following observations in paragraph 3 were pointed out from that decision:-NOW there is no doubt whatsoever that Mr. Vyas is right in contending that sec. Hathi had made a reference to a decision of a Division Bench of this Court reported as Amersing v. Samatsingh 9 Gujarat Law Reporter page 220. Following observations in paragraph 3 were pointed out from that decision:-NOW there is no doubt whatsoever that Mr. Vyas is right in contending that sec. 54 of the Civil Procedure Code directs that the Civil Court when passing a decree for partition of lands assessed to revenue should order that the partition of such properties shall be made by the Collector or any of his Gazetted subordinates deputed by him in accordance with law for the time being in force relating to the partition or separate possession of shares of such properties. Order 20 Rule 18 sub-rule (1) Civil Procedure Code makes a further provision in this regard. It states that where a decree in a partition suit in regard to an estate assessed to payment of revenue is to be passed the decree shall declare the rights of the several parties interested in the properties but shall direct partition or separation to be made by the Collector or any of his Gazetted subordinates in accordance with such declaration and the provisions contained in sec. 54 Civil Procedure Code. Therefore there is no doubt that when a civil Court deals with the claim for partition in regard to an undivided share in estate assessed to the payment of land revenue to the Government or separate possession of a share of such an estate the only power which the Civil Court has got in that regard is to make a declaration regarding the share of the parties to the suit in such estate. It itself has no power of dividing such an estate by metes and bounds or of appointing a Commissioner for the purpose. Order 20 Rule 18 in terms lays down that the Court shall direct that that function shall be discharged by the Collector or his deputy. But all these contentions can only mean that at the time when the preliminary decree was passed that is at the time when the shares of the parties were found to be admitted the civil Court should have in regard to such lands given a direction that the lands should be partitioned by the Collector or his deputy. Thus the objection raised by Mr. Vyas is an objection against the decree dated 24th July 1951. Thus the objection raised by Mr. Vyas is an objection against the decree dated 24th July 1951. It is quite clear that the provisions contained in that decree cannot be the subject matter of an appeal now. It is an admitted fact that no appeal was filed against that decree by plaintiffs. In that case the preliminary decree was with respect to Giras land shown in the list Exhs. 6 to 10 with constructions thereon. Plaintiffs half share was ordered to be separated from the remaining half share of the defendant; and a Commissioner or a Surveyor was ordered to be appointed provided an application was presented together with partition expenses. No appeal was preferred against that preliminary decree which contained direction about appointment of a Commissioner. However that direction was challenged in an appeal from the final decree; and the aforesaid observations were made in respect of that challenge. The challenge did not succeed because of the failure of the appellant to appeal against the preliminary decree; and that is clear from the following observations at page 227:-UNDER the circumstances in our judgment the question as to who was to partition the properties was concluded by the aforesaid decree and no appeal having been preferred by plaintiffs against the aforesaid part of the decree which prima facie was opposed to the provisions contained in sec. 54 Civil Procedure Code cannot now be challenged after the period of limitation for preferring an appeal against the decree dated 24th July 1951 had expired. Therefore the contention raised by Mr. Vyas against the decree finally passed by the learned Judge must be rejected and First Appeal No. 716 of 1960 must be dismissed with coststhus it will be seen that there was no occasion for the Division Bench to decide what classes of decrees for partition are required to be sent to the Collector under sec. 54 and Order 20 Rule 18 (1) of the Code. The contention could be disposed of on the ground that the challenge to the directions not having been made by preferring an appeal against the preliminary decree was not open to the appellant in appeal against a final decree. In this context the aforesaid observations were obiter. 54 and Order 20 Rule 18 (1) of the Code. The contention could be disposed of on the ground that the challenge to the directions not having been made by preferring an appeal against the preliminary decree was not open to the appellant in appeal against a final decree. In this context the aforesaid observations were obiter. Besides from the relevant portion of the preliminary decree as reproduced in that judgment it does not appear that the decree was for partition and separate possession of more than one fields each assessed to land revenue. The question therefore is not concluded by this decision. ( 11 ) ON the contrary the aforesaid decision of the Division Bench can be applied to the present on another ground viz. failure of the present petitioners to challenge the directions contained in the preliminary decree by an appeal against that decree. On that ground also looking to the aforesaid decision of the Division Bench the order passed by the trial Court must stand. ( 12 ) IN the result the application fails and is dismissed. Looking to the question of interpretation of the provisions of the Code of Civil Procedure it is directed that each party will bear its own costs. Rule will stand discharged. Interim relief will stand vacated. .