NINGAPPA BALAPPA Vs. ABASHKHAN GOUSKHAN

JUDGEMENT

(1.) THE facts giving rise to these two appeals are briefly these: In Suit No. 336 of 1947 the respondent-plaintiff obtained a decree for partition and separate possession of his share in several agricultural lands. This decree was passed in 1949. It was confirmed in appeal by the High Court, on 22-1-1952. On 5-11-1952, the papers were sent to the Collector under Section 54, Civil P. C. for effecting Partition of the lands. On 11-1-1965, appellants 1 to 11 in First Appeal No. 292 of 1955 made an application (Ex. 88) to the Court. They stated in that application that they were tenants of the suit lands since before the institution of the suit and that they could not, therefore, be evicted from the lands in view of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. They, therefore, prayed that the papers should be called for from the Collector and that an order should be made directing the Collector to deliver only symbolical possession of the lands to the respondent-plaintiff, without disturbing the actual possession of these appellants. On the same day, 11-1-1955, another application Ex. 89 was made by the 14 appellants in Letters Patent Appeal No. 33 of 1955, in which they alleged that some of the suit lands had been leased to them after the date of the suit. They made a similar prayer as was made in Ex. 88 for an order to the Collector to deliver only symbolical possession of the lands to the respondent-plaintiff. Both these applications were rejected. Against the orders passed on these applications F. A. No. 292 of 1955 was filed by all the 25 persons who claimed to be tenants. This appeal came up for admission before Bavdekar J. He admitted the appeal of appellants 1 to 11 and dismissed the appeal of the other tenants. Against his order dismissing the appeal of the other tenants, Letters Patent Appeal No. 33 of 1955 has been filed.

(2.) AS I have stated, the decree passed in the suit was a partition decree directing partition of the suit lands. Section 54, Civil P. C. , provides that where the decree is for partition of lands assessed to the payment of revenue, the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law for the time being in force relating to partition. Order 20 Rule 18 provides that where the Court passes a decree for the partition of property, then if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54. It has been held by this Court in 'jacinto v. Fernandez', AIR 1939 Bom 454 (A) that where a Court has passed a decree for partition of lands assessed to Govt. revenue the Court's duties are finished as soon as the decree is passed and that it is for the Collector to carry out the partition and put the parties into possession. It was also observed in that case that in forwarding the papers to the Collector to carry out the partition directed by the decree, the Court performs only a ministerial Act. This decision has been approved by a Full Bench of this Court in 'ramabai Govind v. Anant Daji', AIR 1945 Bom 338 at page 341 (B), Lokur, J. observed:

(3.) WESTON J. also agreed with this view and at pp. 343, 344 he observed that though the Collector was bound by the decision of the Court, he could not be said to be a ministerial officer of the Court.