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2004 DIGILAW 494 (AP)

R. Ramakrishna Reddy v. M. Kamala Devi

2004-04-19

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) THIS revision is preferred against the order dated 7-11-2001 in IA No. 188of 2001 in O. S. No. 4 of 1990 on the file of Court of Senior Civil Judge, Nagarkurnool, appointing a Commissioner to make a notional partition of the properties prescribed in the Schedules A to C of the plaint into 18 shares and make a notional allotment in terms of preliminary decree. ( 2 ) THE contention of the learned counsel for the revision petitioner is that since an appeal in A. S. No. 1154 of 2001 against the preliminary decree in the suit O. S. 4 of 1990 is pending in this Court, and since in C. M. P. No. 7353 of 2001, an order of stay of passing of the final decree is passed, the order under revision appointing a Commissioner is violative of the order of this Court in C. M. P. No. 7353 of 2001 in A. S. No. 1154 of 2001, and so the same is liable to be set aside. His next contention is that since the properties covered by the suit are agricultural land, section 54 C. P. C. would apply and so the collector or the Gazetted subordinate to the collector, deputed by him in this behalf only, but not a Commissioner appointed by the court who can make a partition of the agricultural lands. ( 3 ) THE contention of the learned counsel for the respondents is that, since the order in c. M. P. No. 7353 of 2001 stayed the actual passing of the final decree, and not all further proceedings to be taken in pursuance of the reliminary decree, the Court below did not commit any error in appointing a commissioner to make a notional partition of the plaint schedule properties. ( 4 ) AS per Section 54 C. P. C. , partition of an undivided estate assessed to payment of revenue to Government, Collector or a gazetted subordinate of his, deputed by him, has to make the partition in accordance with the law, if any, for the time being in force relating to partition. ( 4 ) AS per Section 54 C. P. C. , partition of an undivided estate assessed to payment of revenue to Government, Collector or a gazetted subordinate of his, deputed by him, has to make the partition in accordance with the law, if any, for the time being in force relating to partition. As held in Kanakala Raju bai v. Kanakala Peshi Reddy1 "estate assessed to payment of revenue to government" used in Section 54 CPC is referable to an estate which pays a lump sum revenue to government, but does not include ryotwari lands, and if a preliminary decree in a suit for partition includes ryotwari lands, such decree cannot be sent to the collector for partition. Since the property covered by this suit is not an estate or estate assessed to payment of revenue to government , Section 54 CPC does not apply. The preliminary decree in this case is governed by Rule 18 of Order 20 CPC only. ( 5 ) STAY granted in CMP No. 7353 of 2001 in A. S. No. 1154 of 2001, is against passing of a final decree only, and so, as rightly observed by the Court below, it is not precluded from taking steps which are to be taken before the passing of a final decree. The Commissioner is appointed by the Court below only to propose a scheme of partition in terms of the preliminary decree. In suits of partition, a Commissioner appointed by court only proposes a scheme of partition. On the proposal made by the Commissioner, the Court would either draw lots or would itself allot the shares to the parties. So merely because the Court below ordered that the Commissioner shall make a notional partition of Schedules A to C and make notional allotment in terms of Preliminary decree, it does not mean that the proposal made by the Commissioner would be binding on the parties. In fact that direction should be taken to mean that the commissioner was asked to propose a scheme of partition of plaint schedules A to c into 18 snares, and propose which share can be allotted to which of the parties. In fact that direction should be taken to mean that the commissioner was asked to propose a scheme of partition of plaint schedules A to c into 18 snares, and propose which share can be allotted to which of the parties. ( 6 ) SINCE the order under Revision only directs the Commissioner to propose a scheme for partition of the properties covered by the preliminary decree, no prejudice can be said to have been caused to the revision petitioner by that order and so i find no grounds to interfere with the order impugned. ( 7 ) HENCE, the C. R. P. is dismissed. No costs.