RANA AMERSING GOVINDSING Vs. RANA SAMATSINGH HATHUBHA

JUDGEMENT

(1.) These two first appeals are directed against the decree dated 23rd March 1959 passed by the learned Civil Judge (Senior Division) Surendranagar in Civil Suit No. 2 of 1.51 by which the learned Judge ordered partition of suit properties in terms of a Commissioners report and rejected the claim made by defendant for future mesne profits in regard to common properties. First Appeal No. 667 of 1960 is by defendant and First Appeal No. 716 of 1960 is by plaintiffs. It is common ground that plaintiffs and defendant were co-owners of suit properties that defendant had 1/2 share therein and that the other 1/2 share belonged to plaintiffs jointly. One Govindsingh was the original owner of the suit properties. He died leaving behind him surviving two sons Chhatrasingh and Amarsingh; the latter is defendant. Chhatrasingh died leaving behind him three sons Hathubha Dalpatsingh and Ganpatsingh; the latter two are plaintiffs Nos. 5 and 6. Plaintiffs Nos. 1 2 3 and 4 are the sons of Hathubha who died before the institution of the above suit. Plaintiffs were in actual and physical possession of the suit properties. They filet the aforesaid suit for partition on the allegation that defendant though called upon on many occasions to agree to divide the suit properties had either refused or neglected to do so. On 24th July 1951 the learned Judge passed a preliminary decree. Some of the terms thereof material for the purposes of the present appeals were as follows:-

(2.) In view of the aforesaid contentions it will be convenient to take up First Appeal No. 716 of 1960 first for discussion for it is quite clear that if the point raised in that appeal is upheld then the claim for future mesne profits would not be of any importance because of the view which is binding on this High Court taken by the Bombay High Court that a partition decree under sec 54 is final. According to that view when a decree is passed under sec. 54 Civil Procedure Code the civil Court is functus officio thereafter. In that view of the matter the lis in regard to agricultural lands would become concluded by the decree dated 24th July 1951 and no further decree for future mesne profits can be passed in regard to the agricultural lands. It appears from the record that the claim for mesne profits in regard to non-agricultural properties is insignificant. If Mr. Vyas point regarding jurisdiction is upheld then the claim for mesne profits in regard to non-agricultural properties is not likely to be seriously pressed.

(3.) 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. 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. It is true that if that decree is silent as to who has to partition the agricultural land then having regard to the provisions contained in sec. 54 and Order 20 Rule 18 sub-rule (1) Civil Procedure Code a Court will construe such a decree to mean that the partition is to be effected by the Collector or his deputy or in the case of an omission as to who was to partition the property as held in some of the cases the Court may still have the power of making an order directing that the partition may be effected by the above revenue authorities. The contention of Mr. D. U. Shah the learned counsel for the defendant is that rightly or wrongly in the present case the learned Judge passing the decree on 24 July 1951 has directed that partition even in regard to agricultural properties is to be made by a Commissioner or a Surveyor to be appointed by the civil Court. Mr. Shah contends that it may be that this direction contravenes the provisions of sec. 54 and Order 20 Rule 18 sub-rule (1) Civil Procedure Code but he says that a Court which has initially the jurisdiction to entertain a suit has the power to decide the matters involved therein both rightly and wrongly and that if a matter is decided even wrongly the matter is concluded unless it is rectified by the appellate Court. Mr. Vyas does not dispute the correctness of these propositions. However he contends that if the decree dated 24th July 1951 Is properly construed it does not mean that the partition was directed to be effected by any person other than a Collector or his deputy. He contends that at the best the proper construction of the decree is that it is silent on the subject or that it does not contain a clear direction in it; but he says that in either case a presumption must be raised that the Court intends to direct a partition in accordance with law. Therefore in the ultimate analysis in order to decide First Appeal No. 716 of 1960 the question boils down to the construction of the relevant part of the decree. We have already reproduced that relevant part in a previous portion of this judgment. The part which is material for the purpose and which requires to be construed is the part which says that a Commissioner or a Surveyor will be appointed on an application presented together with the expenses of partition. Now Mr. Vyas contention is that this portion must be read to mean that a Commissioner was to be appointed in regard to the non-agricultural properties and that a Surveyor was to be appointed for the agricultural properties and that by the use of the term surveyor the Court means really the Collector as provided in sec. 54. We are unable to construe the decree in the aforesaid manner In the first instance there is no doubt whatsoever that the only proper construction of the aforesaid part of the decree is that the Court will appoint either a Commissioner or a Surveyor to effect partition of all the properties involved in the suit. The choice will be between a person who will have the qualification of a Surveyor. There is nothing in the aforesaid part or any other part of the decree to which our attention has been drawn to indicate that the Commissioner is to be appointed only in regard to nonagricultural properties and that Surveyor is to be appointed only in regard to the agricultural properties. In fact the conjunction or suggests that the person appointed whether a Commissioner or a Surveyor will effect partition of all the properties in suit. The second and most serious objection to the construction contended for by Mr. Vyas arises from the fact that there is no doubt whatsoever that a Surveyor is to be appointed on a fresh application to be presented by the parties. If sec. 54 and Order 20 rule 18(1) Civil Procedure Code are read properly there is no doubt whatsoever that the Legislature does not contemplate the appointment of a Collector or his deputy by the Court. The Legislature has mentioned the Collector as the person who has to partition the properties covered by these provisions and that fact has only to be mentioned in the decree. The Collector is not an appointee of the civil Court but he Is a functionary who has been designated for effecting partition of such properties. Therefore probably the Court mentions a surveyor thereby indicating that if the name of a person having the qualifications of a surveyor is to be appointed the Court will do so. Such a provision appears to have been made probably because a majority of the suit properties is agricultural lands in nature. There is no doubt whatsoever that at no stage did plaintiffs suggest that a Collector was intended to be appointed by the use of the term surveyor. The person who was actually appointed as the Commissioner to divide the properties was not the Collector. The appointment of such a person was not objected to on the ground that he was not the Collector but his deputy. It may be noticed that even a surveyor working under the Collector cannot directly be appointed by the civil Court. The right of selecting any other revenue officer vests under sec. 54 with the Collector. If the Collector himself does not want to partition the agricultural properties then it is he alone who can select his deputy the only limitation to his power being that he definitely must be a Gazetted officer subordinate to him. From this point of view also the absence of any reference to the Collector and the positive mention of the surveyor as the appointee of the Court indicates that what the decree dated 24th July 1951 has intended and directed to do is that either a Commissioner or a surveyor will be appointed to partition the agricultural properties if and when an application for the purpose happens to be made. 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 costs.