MUPPANNA HALAPPA Vs. CHANNAPPA HALAPPA AND

JUDGEMENT

(1.) The question presented for determination in this appeal is, whether the action of the Collector, in partitioning an estate tinder Section 54 of the Code of Civil Procedure, (hereinafter called the Code) pursuant to a decree passed by the court under Order 20 Rule 18(1) is open to review and correction by the court which passed the decree. That question arises in this way: In Special Civil Suit No. 76/1937 on the file of the Court of the Civil Judge, Senior Division Dharwar, instituted by respondent 1 against the appellant and respondent-2 who were defendants 2 and 3 respectively, for partition of joint family properties, a decree for partition of an estate assessed to the payment of revenue to the Government was passed in accordance with Sub-rule (1) of Rule 18 of Order XX of the Code. The decree, inter alia, declared the rights of the plaintiff and defendants 2 and 3 who were interested in the suit property, 2nd directed partition of the estate and separation of the shares to be made by the Collector, or by Gazetted subordinate to the Collector deputed by him, in accordance with the declaration of the rights and with the provisions of Section 54 of the Code. In First Appeal No. 70/1946 on the file of the High Court of Bombay, the decree of the trial 'Court was modified and the plaintiff and defendants 2 and 3 were each declared to be entitled to a 1/3 share in all the suit properties except in Survey No. 4 of Somalapur and survey No. 216/9 and 216/10 of Aremallapur in respect of which each party was declared to be entitled to a 1/3rd share in all the suit properties except in Survey No. 4 of Somalapur and survey No. 216/9 and 216/10 of Aremallapur in respect of which each party was declared to be entitled to a 1/4th share. That decree was sent to the Collector for effecting partition in the manner provided under Section 54 of the Code. The Collector effected the partition on 19-8-1957 and fixed the 14th day of December, 1957 for delivery of the share allotted to the plaintiff. On 10-12-1957, defendant-2 filed an application purporting to be one under Section 47 of the Code, to the Court of the Civil Judge, Senior Division, Hubli, to call for the records of the case from the Collectorate, on the allegation that the partition made by the Collector is unequal and contrary to the mandate of the decree. The plaintiff opposed the application on three grounds, viz. (a) the Civil Court has no jurisdiction to enquire into the application, (b) the application is not maintainable under Section 47, and (c) the partition made by the Collector was fair and equal. The learned Civil Judge made an order on 13-12-1957 rejecting the application on the ground that the Pranth Officer, Haveri Division, who effected the division "had applied his mind for partitioning the lands equitably and by metes and bounds". The learned Civil Judge rested his conclusion on the circumstances that the Pranth Officer has made provision for payment of Rs. 83-5-8 by each of the defendants 2 and 3 to the plaintiff for equalisation of shares, which according to the learned Civil Judge suggests that the quality of the lands allotted to the plaintiff must be inferior to those allotted to defendants 2 and 3, despite the fact that 92 acres and 6 guntas out of the total extent of 196 acres had been allotted to the share of the plaintiff. The objections of the plaintiff that the Civil Court has no jurisdiction to enquire into the application and . that the application is not maintainable under Section 47, were overruled by the learned Civil Judge. Against the said decision, defendant-2, the applicant before the court below has preferred the above appeal.

(2.) The complaint of the appellant is that while under the decree he is entitled to an equal share with the plaintiff, the Collector, while partitioning the estate has divided the estate into equal shares and allotted 92 acres and 6 guntas, out of a total extent of 196 acres, to the plaintiff which is very much in excess of his legitimate share, and that the unequal division made by the Collector contravenes the mandate of the decree. Pefendant-2 filed an application before the court below on 10-12-1957, and the plaintiff his objections on 13-12-1957, and on the same date, the order under appeal was made. The only material before the learned Civil Judge to base his decision was a certified copy of the order of the Pranth Officer giving the description of the entire estate and of the share allotted to the plaintiff. We have perused the order of the Pranth Officer which does not disclose the reasons for allotting a larger extent of the land to the share of the plaintiff, when the parties are entitled to equal shares. In our opinion, the reasons given by the learned Civil Judge for his conclusion that the Pranth Officer must have applied bis mind correctly, cannot be supported. The circumstance that the defendants 2 and 3 were directed to make cash payments to the plaintiff for equalisation of shares does not lead to the necessary inference, as the learned Civil Judge seems to think, that the Pranth Officer must have applied his mind correctly. If the court below is right in its opinion that the Civil Court has the jurisdiction to correct the errors of the Collector, we would have had no hesitation in setting aside the order under appeal and directing the Court below to call for the records of the proceedings of the Collector and to examine the same for the purpose of satisfying itself that the shares were not unequal as alleged.

(3.) Sri V.S. Malimath, learned counsel for res-pondent-1 contended that the court below had no jurisdiction to entertain the application made by the appellant complaining against the action of tbe Collector, while Sri V. Tarakaram, learned Counsel for the appellant urged, that the action of the Collector is subject to the control and correction by the court which passed the decree and sent it to him for execution. No decision of this court directly dealing with the question now before us, has been brought to our notice. On an analysis of the decisions of other High Courts, relied on, by the learned counsel on both sides in support of their respective contentions, we are able to find support in them for the following three conflicting views: