- (1.) APPEALS Nos. 2 & 3 of year 1955 arise out of a single partition case and will be disposed of by this judgment.
(2.) PUT briefly the facts of the case are that on 14-5-1936, the Private Secretary to the Maharana Udaipur of the former Mewar State wrote a latter to the Mahakma Khas requiring Ranawat Man Singhji to be detailed to examine the request of Jagat Singh for a partition of the estate Singhar on the spot. Shri Man Singh submitted his report on 23-3-36 and on 10-7-36, the Maharana passed an order that the partition of village Chokhla be carried out half and half and that of Bansi according to the custom prevailing amongst Chhut Bhaiyas. Till the formation of Rajasthan no final decision in the matter could be taken. The only progress that was made in the case was that one Naib Hakim suggested a mode of partition to which objections were raised by the other party and the then Revenue Minister remanded the case back with the direction the all the objections should be enquired into thoroughly and every point of controversy be dealt with separately before carrying out the partition of the estate. On 23-6-53, the Collector. Udaipur, forwarded the case to the S.D.O. Vallabhnagar with the direction that a partition be carried out to ensure equal division of rents between the parties. The S. D. O. summoned the parties on more than half a dozen dates. The last date fixed for inspection of the site was 3-1-54 Jagat Singh was duly informed of this date and on 30-12-53 he applied for a change of the date but that request of his was rejected. On 3-1-54 Madan Singh appeared before the S. D. O. but Jagat Singh was absent. No order dated 3-1-54 is to be found on the order sheet. The S.D.O. however, passed an order on 6-3-54 in which he mentioned that he had inspected the site on 3-1-54 and that on that date Jagat Singh had not turned up inspite of service. By this order a detailed division of the estate was directed giving the khasra numbers which were to fall to the lot of each party. Information about this decision was conveyed to Jagat Singh on 1-4-54, but he refused to accept the same. He however, filed an appeal before the Additional Commissioner on 22-7-54 which was rejected as being barred by limitation. Hence Jagat Singh has come up in appeal before us against this order. In the meanwhile Shri Madan Singh applied for being put in possession in accordance with the mode of partition decided by the S. D. O and this request being granted, possession was actually handed over to him by an order of the S.D.O. dated 9-6-54. Jagat Singh went up in appeal against this order as well, before the Additional Commissioner but met with no success. Jagat Singh has therefore, appealed against this order also. We have heard the learned counsel appearing for the parties and have examined the record of the case. As far as the decision of the learned Additional Commissioner dated 28-9-54 is concerned, much need not be said about it. The appellant's counsel has not been able to show us any reason as to why the appeal filed by him before the lower appellate court be not treated as time barred. It stands clearly proved that the appellant was informed of the decision dated 6-3 54 and hence limitation shall run from the latter date. Computed from this date the appeal was clearly beyond limitation. Looking to the circumstances of the case we consider it necessary that we should exercise the powers of superintendence and control vested in the Board by virtue of sec. 12 of the Rajasthan Board of Revenue Ordinance, 1949. The learned S. D. O. while passing his order dated 6-3-54 completely disregarded the procedure laid down in the Rules framed under sec. 8 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951. As laid down in sec. 6 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, all suits and proceedings pending before a revenue court on the coming into force of this Act shall be deemed to have commenced under this Act and shall be tried, heard and determined in the manner prescribed by or under this Act. Chapter III of these Rules prescribes the Procedure for the partition of estates. As laid down in Rule 72 "except as provided in these rules the court shall, in the trial of suits for partition follow the procedure laid down in the trial of other suits." Rule 82 gives the method of trial and Rule 84 directs that after completion of the enquiry prescribed by Rules 82 and 83, a preliminary decree for partition should be passed. The procedure for partition after the preliminary decree is to be found in Rules 87 and onwards. In the present case these provisions were followed in breach rather than in observance. The learned S.D.O. neither framed any issued nor required the parties to adduce any evidence. No consideration was paid to the mandatory provisions of Rules 82 and 83 and the order passed by him on 6-3-54 was not a preliminary decree but a decision directing actual partition of the estate with reference to specific khasra numbers being carried out through court. This procedure, to say the least, finds no justification in the rules. We may observe for the guidance of the lower courts that the object of the preliminary decree is simply to declare the nature and extent of the share of each claimant specifying the number of portions into which the estate is to be divided and the extent of each portion along with the decision of all disputes which may arise in connection with such division and detailing the mode in which partition is to be made. After the preliminary decree has been drawn up, the court is bound to issue a notice under Rule 87 calling upon the parties to make the partition themselves or to appoint arbitrators for the purpose. In case the parties cannot come to an agreement upon the appointment of arbitrators or their award has been set aside the court shall decide to make the partition itself but not before that. Hence the order of the lower court dated 6-3-54 whereby it directed physical partition on the spot through the court specifying khasra numbers to be allotted to each sharer was without jurisdiction and clearly against the spirit of the Rules. This is a matter which should be first left to the parties themselves or if they so choose to the arbitrators. The court should not in the first instance impose any of its own decisions in the matter upon the parties unless it becomes indispensable for failure of the parties to come to an agreement or to appoint arbitrators. The orders passed by the S.D.O, on 6-3-54 and subsequently on 9-6-54 are clearly illegal and are hereby set aside. The record of the case be returned to the S.D.O. for being proceeded with further in the light of the observations, made above.;