RANA AMERSING GOVINDSING Vs. RANA SAMATSINGH HATHUBHA
LAWS(GJH)-1966-9-7
HIGH COURT OF GUJARAT
Decided on September 03,1966

RANA AMERSING GOVINDSING Appellant
VERSUS
RANA SAMATSINGH HATHUBHA Respondents

JUDGEMENT

A.S.SARELA, N.M.MIABHOY - (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:- The Giras land shown in the lists Exs. 6 to 10 with constructions being joint of both the parties plaintiffs 1/2 share is to be separated from the 1/2 share of defendant. After partition in equal shares the possession of 1/2 share to plaintiffs and possession of 1/2 share to defendants will be handed over....The costs of this suit of plaintiffs upto this stage is on defendant. The expenses of the partition is to be borne by the parties according to their shares. A Commissioner or a Surveyor will be appointed if an application is presented together with partition expenses. Defendant then made an application which was numbered 133 of 1954 purporting to be an application for execution of the preliminary decree for partition and possession of the suit properties. On 22nd June 1955 defendant made an application for appointment of a Commissioner as directed in the preliminary decree. The Court passed an order below that application appointing a Commissioner. On 21st January 1958 the Commissioner submitted a report making his recommendations for partition of the suit properties. Some of the plaintiffs filed their objections against the recommendations made by the Commissioner. On 16th January 1959 defendant made an application praying that he should be awarded future mesne profits from the date of the suit till the date of delivery of possession of his share in the suit properties. On the contentions of the parties the learned Judge drew up four issues for decision. The learned Judge rejected the contentions of plaintiffs against the recommendations made by the Commissioner for allotment of properties. He also rejected the prayer of defendant for future mesne profits. Both the sides felt aggrieved by the decisions recorded by the learned Civil Judge. Defendant preferred an appeal to the High Court of Judicature of Bombay at Rajkot which was numbered as Appeal No. 62 of 1959. On the reorganization taking place that appeal was transferred to this Court and numbered as First Appeal No. 667 of 1960. Plaintiffs preferred an appeal to this Court and as already stated it bears First Appeal No. 716 of 1960. The appeal of defendant is directed against the order of the learned Judge rejecting defendants claim for future mesne profits. Plaintiffs contest that claim mainly on two grounds:- (1) that there is no prayer for award of future mesne profits in the written statement; and (2) that no direction is given in the preliminary decree for ascertainment of future mesne profits and for awarding the same to defendant. The learned Civil Judge rejected defendants claim for mesne profits on the ground that no relief was claimed therefore in the written statement that there was no issue framed on the subject and that no direction for the purpose was given in the order appointing the Commissioner on 22ad June 1955. Therefore though the learned Judge was convinced that defendant had a good case for being awarded the relief of mesne profits he decided that defendant should be left to his ordinary remedy of seeking a relief by filing a separate suit. Plaintiffs challenge the recommendations of the Commissioner on the ground that the properties being Gharkhed lands and they being in actual and physical possession of the same after the passing of the Land Reforms Act all the Gharkhed lands should be allotted to them exclusively as they had made improvements in the same. The learned Judge rejected this contention. The total area of the lands was 91 acres and 5 gunthas. As the parties were joint and Girasdars of B class they were entitled to have 100 acres of land for home cultivation. But as the parties were in possession of 91 acres and 6 gunthas only they were given in joint possession the field belonging to the farmer Bhavji admeasuring 5 acres and 38 gunthas and the field of the successor of one Dhana Bhagwan admeasuring 3 acres. The Commissioner divided the lands into two parts:- the first part A consisting of 50 acres and 4 gunthas and the other part B consisting of 49 acres and 39 gunthas. He recommended that lot A should be allotted to plaintiffs and lot B should be allotted to defendant. Plaintiffs also challenged the above partition on the ground that the division was unjust and inequitable. The learned Judge rejected both the aforesaid contentions. In Appeal No. 667 of 1960 defendant contends that having regard to the circumstances of this case and the admitted position that he was a co-sharer of the suit properties he must be awarded his share of the future profits realized by plaintiffs in order to do complete justice between him and plaintiffs. On the other hand plaintiffs resist the aforesaid claim on the above two grounds upheld by the learned Civil Judge. Plaintiffs do not challenge the partition decree on the first ground. Mr. Vyas learned counsel for plaintiffs fairly concedes that the mere fact that the lands were Gharkhed lands was no ground for allotting these lands exclusively to plaintiffs awarding defendant only the owlet of partition. Mr. Vyas however challenges the decree on the second ground that the partition was unjust and inequitable. However. Mr. Vyas is unable to show any good or substantial ground for holding that the aforesaid two divisions were unequal unjust or inequitable. However the main ground on which Mr. Vyas challenges in his appeal the final partition decree is a totally new ground. Such a ground was not urged by plaintiffs in the lower Court at any stage:- nor is that ground to be found in the memo of appeal in First Appeal No. 716 of 1960. The suit properties consist of agricultural lands and non-agricultural properties. Mr. Vyas contends that the Court has no jurisdiction to partition agricultural lands or to order them to be so partitioned. He contends that the jurisdiction for the purpose is vested under sec. 54 Civil Procedure Code in the Collector or any Gazetted Officer deputed by him only and that therefore the final decree dividing the agricultural properties is of no avail and requires to be ignored and that defendant must be directed to approach the revenue authorities for getting his share in the common properties allotted to him. We permitted Mr. Vyas to raise this point in his appeal because the point was purely one of law as it prima facie related to the power of the civil Court to pass a partition decree.
(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.;


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