Lagama Beerasidda Pujeri v. Khanappa Malakari Kotre
2015-11-27
R.S.CHAUHAN
body2015
DigiLaw.ai
ORDER : Raghvendra S. Chauhan, J. The petitioner is aggrieved by the Order dated 6.2.2015 passed by the Prl. Civil Judge & JMFC, Raibag, where by the Learned Judge has appointed the Taluka Surveyor as the Court Commissioner to effect partition of landed properties mentioned in the schedule to the petition from Sl. Nos. 1 to 5, and has directed the Court Commissioner to submit his report before the Court. 2. Briefly the facts of the case arc that on 8.2.1978’ one Bheemappa and Siddappa filed a suit for partition and separate possession in respect of suit properties against the father of respondent Nos. 1 and 2 - Malakari Dhareppa Kotre. The said suit as decreed by judgment and decree dated 22.6.1985 in favour of the plaintiffs. Since Malakari Kotre was aggrieved by the judgment Dated 22.6.1985, he filed a Regular First Appeal. The present respondent Nos. 1 and 2 (before this Court) were brought on record as legal representatives of Bheemappa who had died issue less. During the pendency of the appeal, the other plaintiff, namely, Siddappa also died and respondent Nos. 3 to 8 (presently before this Court) were brought on record as Siddappa’s legal representatives. By judgment dated 7.11.1989, the appeal was dismissed by the Learned Civil Judge, Gokak. Therefore, the respondent Nos. 1 and 2, as legal representatives of Bheemappa, initiated final decree proceedings (FDP) against the petitioner and against respondent Nos. 3 to 8. During the pendency of the final decree proceedings, respondent Nos. 1 and 2 filed an application for appointment of Court Commissioner in respect of land registered as R-S. No. 107/4. The petitioner filed his objections. Respondent Nos. 3 to 8 also filed their objections. However, by order dated 6.2.2015, the Learned Judge appointed the Taluka Surveyor as Court Commissioner with regard to partition of the land registered as RS. No. 107/4, and appointed one Mr. GS. Pawar, Advocate, as the Court Commissioner with respect to the house property bearing IPC. No. 183. Hence, this petition before this Court. 3. Ms. Rekha Patil, the Learned Counsel for the petitioner, emphasised on the Karnataka Amendment carried out in Section 54 of CPC. She has pleaded that, according to the amendment, the Court can call for a report of a Revenue Officer not below the rank of Tahsildar.
No. 183. Hence, this petition before this Court. 3. Ms. Rekha Patil, the Learned Counsel for the petitioner, emphasised on the Karnataka Amendment carried out in Section 54 of CPC. She has pleaded that, according to the amendment, the Court can call for a report of a Revenue Officer not below the rank of Tahsildar. Since the Taluka Surveyor is below the rank of Tahasildar a report could not have been called from the Taluka Surveyor. In order to buttress this contention, the Learned Counsel has relied upon two judgments of this Court, namely, Smt. Parvatevva And Another v. Siddappa Puttappa Halemani And others, R.F.A. No. 4199/2013, Decided on 21-02-2014 and on the case of Benubi W/o. Imamasab Momin And Others v. Aslam S/o. Allabaksha Momin, W.P. No. 105892/2014 decided on 15-09-2014 to buttress her plea that the report could not have been called from Taluka Surveyor. Secondly, even the words “or such other person as the Court may-appoint as a Commissioner” would necessarily take their colour from the words “report of a Revenue Officer not below the rank of a Tahasildar". According to her, the rule of ejusdem generis should be applied for the amended Section 54 CPC. Therefore, even these words “such other person" would necessarily entail that the person has to be above the rank of Tahsildar and not a person below the rank of Tahasildar. In order to buttress this plea, the Learned Counsel has relied on the case of Pancham Dass Chela Mahant Santram v. SGPC, Amritsar, AIR 1991 SC 511 . 4. On the other hand, the Learned Counsel for the respondents have pleaded that no word in a provision is superfluous. Each word would have to be interpreted and given a meaningful content by the Court. Secondly, the words “or such other person” cannot be objected to the rule of genera, as the words employed in the provision do not have a single colour. And the words “or such other person" would have to be given its plain and grammatical meaning. Lastly the Learned Judge has merely appointed a Taluka Surveyor as the Court Commissioner, and asked for his report.
And the words “or such other person" would have to be given its plain and grammatical meaning. Lastly the Learned Judge has merely appointed a Taluka Surveyor as the Court Commissioner, and asked for his report. A Taluka Surveyor would fall within the scope of the word “such other person as the Court may appoint as a Commissioner." Therefore, according to the Learned Counsel for the respondents, a discretionary power has been bestowed upon the Civil Court to either call for a report of a Revenue Officer if necessary, or to appoint “such other person as a Court Commissioner as the Court deems proper and necessary". In order to support this plea, the Learned Counsel has relied upon the case of A. Ramakrishnappa And Another v. K. V. Sudharshan And Another, R.F.A. No. 664/2012, decided on 16-01-2013. Hence, the Learned Counsel for the respondents have supported the impugned order. 5. Heard the Learned Counsel for the parties and perused the impugned order. 6. Section 54 of CPC as amended by the State of Karnataka is as under: 54. Partition of estate or separation of share - 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 of such an estate shall he made by the court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares and if necessary, on the report of the Revenue Officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf.” 7. A bare perusal of the provision clearly reveals that, where the decree is for the partition or for separate possession of a share, then the partition of the estate, or the separation of the share shall be made by the Court in accordance with law. If necessary, the Court may seek the report of a Revenue Officer not below the rank of Tahasildar. Thus, a discretionary power has been bestowed upon the Civil Court to call for a report of a Revenue Officer, if it deems it necessary to do so, in order to execute the decree for partition, and separation of share.
If necessary, the Court may seek the report of a Revenue Officer not below the rank of Tahasildar. Thus, a discretionary power has been bestowed upon the Civil Court to call for a report of a Revenue Officer, if it deems it necessary to do so, in order to execute the decree for partition, and separation of share. Since it is a discretionary power, it need not be exercised in each and every case. 8. In case the Civil Court decides not to call for the report of a Revenue Officer, then a second option has been given to the Court to appoint a Court Commissioner, and such a person to be appointed, can be any other person as the Court may appoint as the Commissioner. Thus, it is not necessary that “such other person" has to be either of the rank of Tahasildar, or above the said rank. In fact, it is not even necessary that such other person needs to have any connection with the revenue office. The words “such other person" would have to be interpreted in wide amplitude, for the simple reason, the Court is appointing “such other person" as the Court Commissioner. Therefore, the Court should be given the power to appoint a person in whom it has faith as its Commissioner and to call for his/her report. 9. Interpreting the provision in its plain and grammatical meaning, the rule of ejusdem generis need not be applied. In the case of Assistant Collector of Central Excise, Gunter v. Ram Dev Tobacco Company, AIR 1991 SC 506 the Supreme Court has dealt with the application of the rule ejusdem generis as under: The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previous enumerated unless the language of the statute spells out an intention to that effect.
General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previous enumerated unless the language of the statute spells out an intention to that effect. Courts have also limited the scope of the general words in cases where a larger meaning is likely to lead to absurd and unforeseen results. To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line which the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. However, in Section 54 CPC, a string of words specifically does not proceed the general word at the end. Therefore, the said rule is clearly inapplicable to the interpretation of the said Section as amended by the State of Karnataka. Moreover, the provision gives an alternative choices to the Court: either to call for a report from a Revenue Officer, not below the rank of Tahsildar, or from such other person whom the Court appoints as a Court Commissioner. In case of alternatives, the rule of ejusdem generis is inapplicable, Furthermore, there is no genus which can be apprehended from the preceding words. Therefore, the rule of ejusdem generis cannot be applied to Section 54 of CPC. 10.
In case of alternatives, the rule of ejusdem generis is inapplicable, Furthermore, there is no genus which can be apprehended from the preceding words. Therefore, the rule of ejusdem generis cannot be applied to Section 54 of CPC. 10. The question before this Court in the case of Parvatevva (supra), was “whether the report submitted by foe Taluka Surveyor-Commissioner appointed by the FDP Court, is a valid report within the purview of Section 54 of CPC as amended by Act 36 of 1998, or not?” However, while answering the said issue, in para-5 of the judgment, the Learned Judge has not dealt with words “or such other person as the Court may appoint as a Commissioner". The Learned Judge has merely noticed the works "if necessary on the report of Revenue Officer not below rank of Tahasildar”. Therefore, by ignoring the latter part of provision, the Learned Judge has concluded that “admittedly Taluka Surveyor appointed by the FDP Court is below the rank of Tahsildar One cannot travel beyond the mandatory provision of Section 54 of CPC.” Therefore, obviously the decision is based on partial reading of the provision, and not on a complete reading of the provision Hence, the said decision is not binding on this Court. 11. Similarly, in the case of BENUBI (supra), the Learned Judge has not taken note of the words "or such other person”. In para-6 of the said judgment, the Learned Judge has accordingly opined that a Revenue Officer below the rank of Tahsildar cannot be appointed as the Court Commissioner. But to hold so, one clearly ignores the use of the words "or such other person as the Court may appoint as Commissioner in that behalf." As stated above, the words used by the Legislature, in its wisdom, can neither be ignored, nor reduced to superficiality. Each word is used by the Legislature after due deliberation. Therefore, each word of the provision would have to be given effect to. [Ref. to Smt. Pramila v. State of Karnataka And Others, W.P. No. 37111-37115/2015 C/w etc. decided on 27.11.2015]. To ignore the words of the provision would be to violate the plain and grammatical meaning of the provision. A Court cannot ignore the ambit and scope of a provision of law. If it does so, it does so at its own peril.
to Smt. Pramila v. State of Karnataka And Others, W.P. No. 37111-37115/2015 C/w etc. decided on 27.11.2015]. To ignore the words of the provision would be to violate the plain and grammatical meaning of the provision. A Court cannot ignore the ambit and scope of a provision of law. If it does so, it does so at its own peril. Therefore, in both the cases, namely, Parvatewa And Benubi (supra), this Court has not dealt with the amended provision in accordance with the Golden Rule of Interpretation. 12. However, in the case of A. Ramakrishnappa And other (supra), this Court has clearly held that the use of the word “or such other person"' would entitle the Civil Court to accept the report of such other person as the Court may appoint as a Commissioner. Therefore, even if the person appointed as a Court Commissioner were below the rank of Tahasildar, even then, the report of such a person would be acceptable. 13. In the present case, in order to know the reality in respect of land bearing RS. No. 107/4, the Learned Civil Judge has appointed the Taluka Surveyor as a Court Commissioner and directed him to submit his report before the Court. Thus, obviously the Taluka Surveyor would be covered by the words “or such other person appointed by the Court as a Commissioner". The Learned Civil Judge, in his wisdom, did not think it necessary to appoint a Revenue Officer. Therefore, he has not opted for the first option given to him, but has Merely exercised the second option given to him by the amended Section 54 of CPC. 14. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of merit, is hereby dismissed. No order as to cost. Writ Petition is Dismissed.