KANKANALA RAJU BAI Vs. KANKANALA PESHIREDDY

JUDGEMENT

(1.) The short but important point that arises in this revision is whether the provisions enacted in Section 54 C. P. C., and Order 20 Rule 18 (1) C. P. C., are to be restricted in their operation to the estates paying revenue to the Government or should be allowed to cover ryotwari lands as well.

(2.) The facts in brief are: - The plaintiff is the petitioner who got the decree in a suit for partition of agricultural lands mentioned in the schedules therein and after the preliminary decree being passed, an application was made for the appointment of a Commissioner to divide the properties by metes and bounds. The 1st respondent herein has raised the objection that it is not competent for the Court to appoint a Commissioner as the schedule mentioned lands are estate within the meaning of Sec. 54 and O. 20 R. 18 (1) C. P. C., and therefore the preliminary decree has to be referred to the Collector only for making a final decree. The 1st respondent therefore contended that the appointment of the Commissioner is erroneous. The objection raised by the 1st respondent was sustained and aggrieved by the same the petitioner decree-holder filed this revision petition.

(3.) The contention of Sri G. Haridatha Reddy, the learned counsel for the petitioner, is that Sec. 54 is applicable only to estates assessed to the payment of revenue to the Government but not to the agricultural lands of ryotwari nature and therefore the order under revision is erroneous. I find sufficient substance in this submission. In support of his contention he relied upon a Full Bench decision of the madras High Court in Muttu Chidambara V. Karuppa (1884) ILR 7 Mad 382 wherein 5 Judges of the Madras High Court held, while construing the provisions of Section 265 of the Code of Civil Procedure which is almost in pari materia with Sec. 54 as it stood amended in 1908, that the provisions of Sec. 265 C. P. C., requiring a preliminary decree for the partition of an estate paying revenue to Government to be sent to the Collector of the district for final decree proceedings are not applicable to ryotwari holdings. It further held. "This section corresponds with Section 225 C. P. C., of 1859. It was held by the Sadr Court that ryotwari holdings were not estates paying revenue to Government and this construction has always been acted upon in this Presidency. It would unsettle a large number of titles to adopt a different construction now, and whatever we might have thought if the matter had come before us as res integra, we are not prepared to disturb a practice so long established."