RAGHA ALIAS RUGNATH MAHADEV Vs. RAMJI BAVA

JUDGEMENT

(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:-

(2.) Sec. 54 and Rule 18 of Order 20 read as under:-

(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. 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.