BHIMANGAUDA KONAPGAUDA PATIL Vs. HANMANT RANGAPPA PATIL

JUDGEMENT

(1.) The facts of this case are in my opinion substantially the same as those in the case of Dev Gopal Savant v. Vasudev Vithal Savant (1887) I.L.R. 12 Bom. 371 and absolutely identical with those in the case of Shrinivas Hanmant v. Gurunath Shrinivas (1890) I.L.R. 15 Bom. 527. That being so, I should have thought it unnecessary to add a word, the case being covered by such high authority, but for the use made of other cases in argument by Dewan Bahadur Rao, for the appellant, one of these being a recent decision of this Court in the case of Ramchandra Dinkar v. Krishnaji Sakharam (1915) I.L.R. 40 Bom. 118 : 17 Bom. L.R. 967. Such cases, whether in this Court or as in the case of Chinna Seetayya v. Krishnavanamma (1896) I.L.R. 19 Mad. 435 in other High Courts, when reduced to the bare decision they give, appear to me to amount simply to saying that in every case there is an appeal from the Collector acting under Section 54 to the Court under whose decree he has been making that partition. I think that that view is in direct conflict with the view taken in the cases I have first mentioned, but I am also sure that a very little examination of those in our High Court would show that the learned Judges responsible for them found grounds of distinction in the facts before them; else they would certainly have followed the earlier decisions of this Court, This was undoubtedly so in the latest case where the decision of the Court went upon the findings of the Courts below that the terms of the decree had been contravened. As I understand Section 54, its policy is plain. For all purposes of effecting partition of lands within its contemplation, the Legislature thought that the Collector would be better qualified than the Court to carry out such partitions. In other words that so far from being an inferior agency the work was now entrusted to a better qualified and superior agency. If that were really so, the policy of the section would at once be defeated by allowing an appeal back from a superior to an inferior tribunal. On this ground I myself should have gravely doubted the line of reasoning followed in several of the cases to which we have been referred and the use of the terminology which overlooks what I believe to be the plain and clear policy of Section 54. However that may be and however the facts in cases in which the decisions wont the other way are distinguishable, it is plain that the facts in the case before us cannot be distinguished in the minutest particular from the facts which were before the Court in Shrinivas Hanmant v. Gurunath Shrinivas (1890) I.L.R. 15 Bom 527. I am content to decide the case upon that authority.

(2.) I would, therefore, dismiss this appeal with all costs. Heaton, J.

(3.) I concur.