C.R.P.NPD.Nos.1633 and 2035 of 2020 RMT.TEEKAA RAMAN, J. The defendant in the suit in O.S.No.25 of 2009 is the revision petitioner in C.R.P.No.1633 of 2020 and the plaintiff in the suit is the revision petitioner in C.R.P.No.2035 of 2020. I am not in agreement with the reasoning given by the learned Brother Justice Mr.R.Subramanian in the above cited decision as I find that the same is not inconsonance with the ratio laid down by the Hon’ble Supreme Court in the decision reported in (2009) 9 Supreme Court Cases 689 [cited supra], hence, taking note of the fact that important procedure that has to be followed as to whether in a partition suit, before passing of the final decree where an Advocate Commissioner has to be appointed to note down the physical features and to make assessment so as to enable the Court to pass the final decree or the matter has to be referred before the District Collector as per the wordings mentioned in Section 54 of CPC has to be considered by a Division Bench of this Court to settle the law as to the procedure to be followed in the partition suit by the subordinate Courts in this State.

ΦC.R.P.NPD.Nos.1633 and 2035 of 2020

RMT.TEEKAA RAMAN, J.

 

[ORDERS RESERVED ON : 01.12.2020] [ORDERS PRONOUNCED ON : 08.02.2021]

The defendant in the suit in O.S.No.25 of 2009 is the revision petitioner in C.R.P.No.1633 of 2020 and the plaintiff in the suit is the revision petitioner in C.R.P.No.2035 of 2020.

2. Parties are referred to as per the ranking in C.R.P.No.1633 of

2020.

 

3. The respondent/plaintiff has filed the above said suit in O.S.No.25 of 2009 before the learned Principal District Judge, Namakkal, against the revision petitioner/defendant (a) for partition;
(b) for appointment of a Commissioner; (c) passing of a final decree in terms of the commissioner’s report; (d) for permanent injunction;

(e) rendition of accounts and also (f) to declare that the plaintiff and the defendant are the owners of the ‘D’ schedule property jointly consequently declaring both the plaintiff and the defendant are jointly entitled to perform pooja and Annadhana Kattalai attached to A/m. Palapattarai Mariamman Temple situated at Namakkal founded by late K.P.Ramasamy Chettiar performed during temple festival in the month of Vaigasi (May) every year with the direction to manage the kattalai by the plaintiff and the defendant one year each in rotation from the income of property dedicated for the said purpose by the founder.

4. The suit was decreed on 20.03.2019 and the defendant has filed an appeal suit in A.S.No.469 of 2019 wherein, passing of final decree alone was stayed and the appeal is pending before this Court. The plaintiff in the suit has filed an interlocutory application in I.A.No.3 of 2019 for appointment of Advocate Commissioner for passing of the final decree. In the said I.A., the revision petitioner in C.R.P.No.1633 of 2020/defendant has raised two grounds namely, the interlocutory application does not contain the schedule of the property and the Collector alone is competent to divide the suit property as per Section 54

of CPC. After enquiry, the learned Principal District Judge, Namakkal, has allowed the said interlocutory application and appointed an Advocate Commissioner to carry out formalities for passing of the final decree. However, with regard to the mesne profit enquiry, the relief was rejected and hence, the defendant has preferred the C.R.P.No.1633 of 2020 in respect of appointment of Advocate Commissioner while the plaintiff has filed the C.R.P.No.2035 of 2020 regarding rejection of the mesne profit enquiry.

5. Heard Mr.N.Manoharan, learned counsel for the revision petitioner in C.R.P.No.1633 of 2020/defendant and Mr.V.K.Vijayaragavan, learned counsel for the respondent in C.R.P.No.1633 of 2020/plaintiff.

6. The contention of the learned counsel for the petitioner is that the interpretation given to Section 54 of C.P.C. in Para No.16 of the order impugned is against law. Mere reading of the said Section would ipso facto indicate that ‘the Collector or any gazetted subordinate of the Collector deputed by him in this behalf’ alone is competent to divide the

suit property. Hence, the Court below cannot go against the Code of Civil Procedure.

7. Mr.N.Manoharan, learned counsel for the revision petitioner in C.R.P.No.1633 of 2020/defendant has relied upon a catina of judgments to show that the Collector alone is competent to divide the property under Section 54 of CPC as held in the following decisions:-

[i] AIR 1985 Karnataka 82 [Ramagouda Rudregowda Patil & others Vs. Lagmavva & others];

[ii] AIR 1989 Karnataka 30 [DB] [Ramakrishnacharya & others Vs. Sreenivasacharya & others];

[iii] AIR 1995 Bombay 445 [Smt. Ramrathibai & others Vs. Surajpal & others];

[iv] AIR 1998 Karnataka 87 [Sanna Palaiah @ Palaiah Vs. Soncha Boraiah & another];

[v] 2000 AIHC 3690 (Bombay High Court) [Kisan Bhikaji Dalvi (Deceased) by LRs., Vs. Krishnabai Maruti Dalvi];

[vi] AIR 2003 Bombay 41 [Prakash Nathyaba Bhosale Vs. Laxman Ganaba Bhosale];

[vii] 2011 (3) Civil LJ 712 (DB) [ Lakhanlal Sahu Vs. Bhushan Sahu & another].

8. Mr.V.K.Vijayaragavan, learned counsel appearing for the respondent in C.R.P.No.1633 of 2020/Plaintiff has relied upon a decision of this Court reported in 2020 (5) L.W.1 [Ramasamy Vs. Vetrivelan & others].

9. After going through the judgment passed by the Hon’ble Apex Court reported in AIR 1986 Supreme Court 414 [Sanjay Dinkar Asarkar Vs. State of Maharashtra & another] and the decisions of the Hon’ble Supreme Court in (i) SLP (Civil) No.14398 of 1986 [H.T.Chandrasekharappa Vs. Dr.H.R.Raja]; (ii) 1991 (1) SCC 76 [Chintaman Vs. Shankar and others]; (iii) AIR 2009 SC (Supp) 454

[Bikoba Deora Gaikwad and othes] and (iv) (2009) 9 Supreme Court Cases 689 [Shub Karan Bubna Alias Shub Karan Vs. Sita Saran Bubna and others], wherein, at paragraph No.18.1, the Hon’be Supreme Court has held as follows:-
“18. The following principles emerge from the above discussion regarding partition suits :
“18.1.) In regard to estates assessed to payment of revenue to the Government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is that the Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of the Government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible). Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.”

10. It is also brought to my notice that pursuant to the above said Supreme Court Judgments, the State of Karnataka has effected an amendment to Section 54 of CPC in the year 1995 whereby, Civil Courts have been empowered to appoint the Advocate Commissioner to get the lands divided. The position in the State of Tamil Nadu is not known.

11. In the decision reported in 2020 (5) CTC 689 [Kaliyannan Vs. Sangeetha and others], learned Brother Justice Mr.R.Subramanian has held about the interpretation of Statutes in respect of Section 54 of CPC and also held that in respect of partition suit, Advocate Commissioner can be appointed by the Civil Court and it is not necessary to refer the matter to the District Collector.

12. After perusing the judgments, I find that none of the judgments of the Hon’ble Supreme Court, extracted supra, was not considered by the learned Brother Justice Mr.R.Subramanian. Taking into consideration the ratio laid down by the Hon’ble Supreme Court in the above cited decisions, especially, the judgment of the Hon’ble Supreme Court reported in (2009) 9 Supreme Court Cases 689 [Shub

Karan Bubna Alias Shub Karan Vs. Sita Saran Bubna and others], I find that the correctness of the decision rendered by learned Brother Justice Mr.R.Subramanian in the above said decision has to be considered by Division Bench since I am not in agreement with the reasoning given by the learned Brother Justice Mr.R.Subramanian in the above cited decision as I find that the same is not inconsonance with the ratio laid down by the Hon’ble Supreme Court in the decision reported in (2009) 9 Supreme Court Cases 689 [cited supra], hence, taking note of the fact that important procedure that has to be followed as to whether in a partition suit, before passing of the final decree where an Advocate Commissioner has to be appointed to note down the physical features and to make assessment so as to enable the Court to pass the final decree or the matter has to be referred before the District Collector as per the wordings mentioned in Section 54 of CPC has to be considered by a Division Bench of this Court to settle the law as to the procedure to be followed in the partition suit by the subordinate Courts in this State.

13. Hence, with the above observations, I hereby direct the Registry to place the matter before My Lord, The Hon’ble The Chief

Justice for placing the matter before a Division Bench to determine, the procedure that has to be followed in respect of Section 54 of CPC and Order 20(b) 18 of CPC in the matters of partition suit.
14. Since many applications seems to have pending before the Lower Court, the Registry is hereby required to place a note at the earliest for placing the matter before a Division Bench of this Court.
15. Both the civil revision petitions are arising out of the order passed in the interlocutory application in I.A.No.3 of 2019. Though the contention raised by Mr.V.K.Vijayaragavan, learned counsel appearing for the respondent in C.R.P.No.1633 of 2020/plaintiff has been duly covered by the decision of this Court reported in 2020 (5) L.W.1 [Ramasamy Vs. Vetrivelan & others], since the Civil Revision Petition No.1633 of 2020 is placed before My Lord, The Hon’ble The Chief Justice for placing the matter to a Division Bench, the other connected Civil Revision Petition No.2035 of 2020 is also required to be tagged along with the same.

 

16. The interim stay already granted by this Court on 21.09.2020 in C.M.P.No.9997 of 2020 is extended until further orders.

08.02.2021

Index :Yes / No Internet :Yes
Jrl

RMT.TEEKAA RAMAN, J.

Jrl

 

 

 

 

Pre-Delivery Order made in C.R.P.NPD.Nos.1633 & 2035/2020

 

 

 

 

 

 

 

 

08.02.2021

You may also like...