Madras High Court
K.Jaya @ Jayalakshmi vs Padma @ Padmavathi on 30 April, 2021
Author: P. Rajamanickam
Bench: M. Sathyanarayanan, P. Rajamanickam
CRP(NPD). Nos.1633 and 2035 of 2020 and
CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.04.2021
PRONOUNCED ON : 30.04.2021
CORAM
THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P. RAJAMANICKAM
CRP.Nos.1633 and 2035 of 2020
and
CMP.No.9997 of 2020 in CRP. No.1633 of 2020
In CRP.No.1633 of 2020
K.Jaya @ Jayalakshmi ... Petitioner
Vs.
Padma @ Padmavathi ...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the fair and decretal dated 15.06.2020
made in I.A.No.3 of 2019 in O.S.No.25 of 2009 on the file of the learned
Principal District Court, Namakkal.
In CRP.No. 2035 of 2020:
Padma @ Padmavathi ... Petitioner
Vs.
K.Jaya @ Jayalakshmi ...Respondent
1/30
http://www.judis.nic.in
CRP(NPD). Nos.1633 and 2035 of 2020 and
CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the order passed in I.A.No.3 of 2019 in
OS.No.25 of 2009 dated 15.06.2020 in so far as it is against the petitioner
herein on the file of the Principal District Judge, Namakkal.
For Petitioner .... Mr.N. Manoharan
in CRP.No.1633 of 2020
and respondent in
CRP. No.2035 of 2020
For Respondent ... Mr.V.K. Vijayaraghavan
in CRP.No.1633 of 2020
and petitioner in
CRP.No.2035 of 2020
COMMON ORDER
(Heard through Video Conferencing) P. RAJAMANICKAM.,J.
CRP.No.1633 of 2020 has been filed by the respondent/defendant against the order passed by the Principal District Judge, Namakkal, in I.A.No.3 of 2019 in O.S.No.25 of 2009 dated 15.06.2020.
CRP.No.2035 of 2020 has been filed by the petitioner/plaintiff against the order passed by the Principal District Judge, Namakkal, in I.A.No.3 of 2019 in O.S.No.25 of 2009 dated 15.06.2020. 2/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
2. The respondent in CRP.No.1633 of 2020 and the petitioner in CRP.No.2035 of 2020 had filed a suit in O.S.No.25 of 2009 on the file of the Principal District Judge, Namakkal, for partition of the suit properties into two equal shares and allot one such share to her and other reliefs. The learned Principal District Judge, by the judgment dated 20.03.2019 had passed a preliminary decree declaring that the petitioner/plaintiff is entitled to ½ share in the suit properties and also granted permanent injunction restraining the respondent/defendant from proceeding with the registration of settlement deed dated 10.10.2008.
3. After passing of the said preliminary decree, the plaintiff had filed an application in I.A.No.3 of 2019 in O.S.No.25 of 2009 on the file of the Principal District Judge, Namakkal, to appoint an Advocate Commissioner to divide the suit properties as per the preliminary decree and pass a final decree. The defendant had filed a counter opposing the said application on the ground that as per Section 54 of CPC and also under Order 20 Rule18 of CPC, only the Collector has to divide the property in respect of the agricultural lands and hence the said application is not maintainable before the civil court .
3/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
4. The learned Principal District Judge, Namakkal, by the order dated 15.06.2020 had rejected the contention of the defendant and appointed an Advocate Commissioner to divide the suit properties as per the preliminary decree passed in the said suit. Feeling aggrieved, the defendant has filed CRP.No.1633 of 2020. The plaintiff has filed CRP.No.2035 of 2020 as the learned Principal District Judge, Namakkal, ought to have passed an order to ascertain the profits from suit 'A' and 'C' schedule properties and to divide the same between the parties.
5. When both these CRPs came up for hearing before the Hon'ble Mr.Justice RMT. Teekaraman, the learned counsel for the defendant relying upon the decision in Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Others (2009) 9 SCC 689 contended that as per Section 54 of Civil Procedure Code ('CPC' for short) in respect of the agricultural lands, the civil court, after passing of the decree declaring the rights of the parties, should have sent the decree to the District Collector to divide the properties. On the other hand, the learned counsel for the respondent in CRP.No.1633 of 2020/plaintiff relying on the decision of this 4/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 court in Kaliannan Vs. Sangeeta, 2020 (5) CTC 69 contended that Section 54 of CPC would not apply to Ryotwari Tenure and hence the decree need not be sent to the District Collector to divide the properties. The Hon'ble Mr.Justice RMT.Teekaraman has not agreed with the views taken by the Hon'ble Mr.Justice R.Subramanian in Kaliannan Vs. Sangeeta (cited supra) and hence he directed 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 Rule 18 of CPC in the matters of partition suit. Accordingly, the matter was placed before My Lord The Hon'ble The Chief Justice. My Lord The Hon'ble The Chief Justice has passed an order to post this matter before this Bench for answering the reference.
6. Heard Mr.N.Manokaran, learned counsel for the petitioner in CRP.No.1633 of 2020/respondent in CRP.No.2035 of 2020 and Mr.V.K.Vijayaraghavan, learned counsel for the respondent in CRP.No.1633 of 2020/petitioner in CRP.No.2035 of 2020.
7. For the sake of convenience, the parties are referred to as 5/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 described in CRP.No.1633 of 2020.
8. Mr.N.Manokaran, learned counsel for the petitioner/defendant relying upon the decisons in Bikoba Deora Gaikwad and Others Vs. Hirabai Marutirao Ghorgare and Others, AIR 2009 SC (Supp) 454 and Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Others (2009) 9 SCC 689 submitted that in regard to the agricultural lands assessed to the payment of revenue to the Government, the court is required to pass only one decree declaring the rights of the 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 the parties and deliver the respective portions to them, in accordance with Section 54 of CPC and also Order 20 Rule 18 (1) of CPC. He further submitted that in Karnataka State, an amendment has been made in Section 54 of CPC to enable the court itself to divide the agricultural lands also by appointing a Commissioner in that behalf but no such similar amendment has been made in the State of Tamil Nadu and under the said circumstances, in view of Section 54 of CPC and Order 20 Rule 18 (1) of CPC, the Civil Court has 6/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 no jurisdiction to divide the agricultural lands. He further submitted that the Court has to send the decree to the District Collector to divide the said agricultural lands as per the decree passed by the court.
9. Per contra, Mr.V.K.Vijayaragahavan, learned counsel for the respondent/plaintiff has submitted that Section 54 of CPC will apply only for the estates assessed to the payment of revenue to the Government and the said provision will not apply to the Ryotwari lands and hence the provisions of Section 54 under Order 20 Rule 18 (1) of CPC will not apply and only the Civil Courts have to pass final decrees by invoking the provisions of Order 20 Rule 18 (2) of CPC in respect of immovable properties including agricultural lands.
10. Mr.V.K.Vijayaragahavan, the learned counsel for the respondent has further submitted that in the decisions cited by the learned counsel for the petitioner / defendant, the question as to whether the expressions estate paying revenue to the Government' as employed in Section 54 of CPC would denote only the 'estates' as defined under the Estate Laws or it would cover the Ryotwari lands also. He further submitted that in those cases, the 7/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 question as to whether the application filed by the plaintiff to pass a final decree is barred by limitation alone came up for consideration. While dealing the said question, some passing remarks were made by the Hon'ble Supreme Court as the decree in respect of the agricultural lands has to be sent to the Collector for partition and it cannot be said that the said observation is a law declared by the Hon'ble Supreme Court under Article 141 of the Constitution of India and it will have a binding effect.
11. Mr.V.K.Vijayaragahavan, learned counsel for the respondent has further submitted that in our State, the question as to whether Section 54 of CPC would apply to Ryotwari Tenures came up for consideration as early as in the year 1882 before a Division Bench of this court in Muthu Iyengar Vs. Kudal Azhagayanagar (manu/TN/0130/1882 : (1883) Mad 6
97) and it was held that the said provision will not apply to property held in ryotwari tenure and it will apply only to permanently settled Estates. He further submitted that the same issue was again came up for consideration in the year 1884 before a Full Bench of this court in Muttuchidambara Vs. Karuppa (Manu/TN/0022/1884 : (1883) ILR 7 Mad 382) and the 8/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 Hon'ble Full Bench had upheld the earlier view of the Division Bench. He further submitted that relying upon the aforesaid Full Bench decision, the High Court of Andhra Pradesh in Kankanala Raju Bai Vs. Kankanala Peshireddy and others, AIR 1982 AP 62, held that the said provision will not apply to the ryotwari lands. He further submitted that following the aforesaid decisons and also taking into consideration that after the introduction of the various Estate Abolition Laws, the concept of permanent Estate itself was abolished and Ryotwari tenures have been introduced in our state the Hon'ble Mr.Justice R. Subramanian has held in Kaliyannan Vs. Sangeetha (cited supra) that the applicability of Section 54 to Ryotwari tenures is excluded and hence the said view has to be upheld.
12. Order 20 Rule 18 of CPC deals with decree in suits for partition of property or separate possession of a share therein which is extracted below:-
''18. Decree in Suit for partition of property or separate possession of a share therein.- Where the court passes a decree for the partition of property or for the separate possession of a share therein, then,— 9/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.''
13. This provision was there even in the older Civil Procedure Codes as Section 225 in Act 8 of 1859 and Sectin 265 in the Code of 1882. Now it is as Section 54 in the present Code (Act 5 of 1908).
14. In Muttuvayyangar Vs. Kudalalagayyangar (cited supra), the question as to whether Section 265 of the Code of Civil Procedure, 1882 10/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 will apply to Ryotwari Tenure, came up for consideration before a Division Bench of this Court. The Division Bench held as follows:-
“ We are of opinion that Section 265, Civil Procedure Code, does not apply to property held on raiyatwari tenure, but to permanently settled estates”.
15. The same question arose again before a Full Bench of this court in Muttuchidambara Vs. Karuppa, (1883) ILR (7) Mad 382 wherein 5 Judges of this court held as follows:-
“ The question for decision is whether the provisions of Section 265 of the Code of Civil Procedure, requiring that a decree for the partition of an estate paying revenue to Government be executed through the Collector of the District, are applicable to raiyatwari holdings. This section corresponds with Section 225 of the Code of 1859. It was held by the Sadr Court that raiyatwari 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.'' 11/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
16. From the aforesaid decision, it is clear that the Hon'ble Full Bench was of the view that Ryotwari Holdings were not estates paying revenue to the Government and the said construction had always been acted upon in this Presidency. It further expressed a view that it would unsettle a large number of titles to adopt a different construction now and that the Hon'ble Judges were not prepared to disturb the practice so long established.
17. The aforesaid Full Bench decision was followed by the High Court of Andhra Pradesh in Kankanala Raja Bai Vs. Kankanala Peshireddy and others, AIR 1982 AP 62 and held as follows :-
“I am inclined to hold that the words, 'estate assessed to the payment of revenue to the Government' are only referable to an 'estate' which pays a lump sum revenue to the Government, and do not include the rayotwari land, as held by the High Court of Madras in the decision cited above. Hence the ryotwari lands included in the preliminary decree herein are not covered by Sec. 54, Civil Procedure Code, but by Order 20 Rule 18 (2), and therefore, (decree?) cannot be sent to the Collector.”
18. In Ranjith Kumar Chakraborty Vs. Jiban Chandra 12/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 Chakraborty, AIR 2001 Gau 73, the same question came up for consideration before the High Court of Gauhati wherein it was held in paragraph Nos.2, 3 and 4 as follows:-
''2. "We, all are kings in our kingdom" - is the inner concept of modern Democratic Governments ruled by people through the system of adult franchise. During Monarchism the Kings/Rulers are the sovereign in all respects and the rest are the subjects (Prajas). In order to manage the vast area under the kingdom the Rulers started settling the land/immovable properties with individual on receipt of one time Nazrana (premium) and subject of payment of lump sum annual non-ratebly assessed or agreed revenue (Khazna) and the land/immovable property so settled was called 'Estate' belonging to the Estate holder commonly recognised as Zaminder/Jaigirdars and the likes, having been authorised under the arrangement to resettle the Estate property partwise by inducting individual riyots (prajas) on receipt of one time salami (price) and subject to payment of periodically ratebly assessed revenue by way of cash payment, or share of crops or rendering manual labours and this way the riyots acquired possessery occupancy right heritable but not transferable without the approval of the Estate holders. The provision of Section 54 of the CPC contemplates to deal with the matter relating to partition of 13/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 such Estate and not the individual property belonging to riyots.
3. After adoption of India's Constitution on 26.01.1950 almost all the Provincial Government stated enactment of Land Reforms Legislations of which the U.P. Zamindery Absolution Act was probably the pioneer. The status of the Estate holder are legally termed as "Intermederies" in the several Land Reforms Act and their status of being Estate holders ceased to be operative and the Estate holder's right stood vested in the Government by operation of related provisions of the Land Reforms Act which have been brought under the 9th Schedule of the Constitution of India and all land holders irrespective of status/strature, Zaminders or Prajas became the land owners/land holders with equal status having absolute right of ownership heritable of course subject to lawfully enforced restriction the right of transfer also.
4. The provision of Section 54 of the CPC has no way applicable to such land or property belonging to the aforesaid land holders. In modern set up of ours a new concept of Estate develops. The State Government having identified some considerable large area declares it to be Industrial Estate, Agri-farmery Estate, Plantation Estate, Fishery Estate and the likes. The State Governments through its administrative machinery use to give allotment of land piecewise to the individual or corporate body for promoting and developing Industry, Agri-farming (including Horticulture, Seri-culture, Pisciculture) Forestry 14/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 and sometime for housing scheme, treating the right of occupation, enjoyment of usufruct, sometime heritable but having no absolute transferable right. In fact the absolute ownership remains with the Government and the aforesaid class of Estate is not subject to partition but may be distributable being governed by the related Rules and Regulations and thus Section 54 of the CPC is not applicable to such Estate.''
19. From the aforesaid decision, it is clear that during Monarchism, the kings / Rules are the sovereign in all respects and in order to manage the vast area, the Rulers started settling the properties with individuals on receipt of one time premium and subject to payment of lumpsum annual revenue. The land / immovable property so settled was called 'Estate' belonging to the estate holder commonly recognized as Zamindars/Jagirdars and the like having been authorized under the arrangement to resettle the Estate property by inducting individual ryots. It is also clear that after the adoption of Indian Constitution, almost all the Provincial Governments enacted land Reforms Legislations and the status of Estate Holders ceased to be operative and the Estate holder's right stood vested in the Government and all land holders, irrespective of status, became the land owners. 15/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
20. In Bikoba Deora Gaikwad and Others Vs. Hirabai Marutirao Ghorgare and Others, (cited supra), a suit for partition was filed claiming 1/3rd share in the joint family property. In the said suit, a decree was passed on 27.06.1975 declaring that the plaintiff, defendants 1 and 2 therein each will have 1/3rd share in the suit property. Thereafter on 19.12.2002, the plaintiff had filed an application to send the said decree to the District Collector, as per Section 54 of CPC, to divide the property as per the decree. The defendants also filed an application for dismissal of the said application, inter alia, on the premise that the same was barred by limitation. The said objections were rejected. A Writ was filed before the Bombay High Court and the same was also dismissed. As against the same, the defendants had filed an appeal before the Hon'ble Supreme Court by filing SLP. In that case, the Hon'ble Supreme Court has dismissed the said appeals by holding that no limitation is provided for sending the said decree to the Collector. So, it is clear that in that case, the question as to whether the term “Estate” mentioned under Section 54 and Order 20 Rule 18 (1) of CPC denotes only the “Estates” as defined under the Estate Laws or it would include Ryotwari Tenure also was not raised and answered. 16/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
21. In Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Others (cited supra), a suit was filed for partition and separate possession. The said suit was in respect of 3 non-agricultural plots and some movables. After contest, the said suit was decreed on 25.02.1964 directing a preliminary decree for partition to be drawn in regard to 1/3rd share of the plaintiffs in the said plots and a final decree to be drawn through appointment of a Commissioner for actual division of the plots by metes and bounds. Feeling aggrieved, the defendants therein had filed an appeal before the Patna High Court which was dismissed on 29.03.1974. Thereafter, the plaintiff therein had filed an application on 01.05.1987 for drawing up a final decree. The defendant had filed an application on 15.04.1991 to drop the final decree proceedings as it was barred by limitation. The said application was dismissed by the trial court and the same was confirmed by the High Court in revision. The defendant therein had filed an appeal before the Hon'ble Supreme Court with Special Leave Petition. The Hon'ble Supreme Court held that the application filed by the plantiff for drawing up a final decree, was not subject to any period of limitation. However, the Hon'ble Supreme Court while dealing with the question as to whether the said final decree application is barred by 17/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 limitation, incidentally referred to the provisions of Section 54 and Order 20 Rule 18 and Order 26 Rule 13 of CPC.
22. During the aforesaid process, the Hon'ble Supreme Court had observed in paragraph No.18 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 Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of 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 18/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.
18.2. In regard to immovable properties (other than agricultural lands paying land revenue), that is buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is 19/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.'' 20/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020
23. In the aforesaid case also, as already pointed out that the question as to the expression 'Estate' mentioned in Section 54 of CPC will apply to only to the Estates defined in the Estate Laws or it will apply to the agricultural lands also not at all raised and answered. The question came up for consideration in the said case was as to whether the application filed for passing final decree is barred by limitation. While answering the said question, the Hon'ble Supreme Court has held that there is no limitation for filing the application for passing final decree. Therefore, the aforesaid observations cannot be taken as the law declared by the Hon'ble Supreme Court with regard to whether Section 54 of CPC will apply to the Ryotwari Tenures also.
24. It is also to be pointed out that in Bikoba Deora Gaikwad and Others Vs. Hirabai Marutirao Ghorgare and Others, (cited supra), in paragraph No.9, the Hon'ble Supreme Court had observed as follows:-
''Section 54 of the Code in effect and substance confers a duty upon the Court. The said provision must be read in the context of the Order XXVI Rule 13 of the Code and/or Section 51, Order XXI Rule 11 thereof. It is not in 21/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 dispute that in the State of Maharashtra the practice to get the properties partitioned by a District Collector still continues. ''
25. The aforesaid decision shows that in the State of Maharashtra, practice to get the properties by a District Collector still continues but in our State as held by the Hon'ble Full Bench of this Court in Muttuchidambara Vs. Karuppa (cited supra), all along it was only the court had divided the ryotwari holdings and not by the Collector. The said practice had been established so long and if the said procedure is disturbed, that would cause much inconvenience to the ryotwari land holders. If a decree is sent to a Collector for effecting partition in respect of Ryotwari lands also, the proceedings will stand still. Because, already the Collectors are overburdened due to other administrative works. The litigants may not get speedy remedy.
26. It is true that in Karnataka an amendment was made in Section 54 of CPC conferring powers on the courts to divide the undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate. Merely because, in Karnataka such an amendment was made, it cannot be said that unless a similar amendment 22/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 is made in our State, the Courts in our State cannot divide the Ryatwari lands.
27. As already pointed out that in view of the Full Bench decision of this court in Muttuchidambara Vs. Karuppa (cited supra), the provisions of Section 54 of CPC would not apply to Ryotwari Land Tenures. In Kaliyannan Vs. Sangeetha (cited supra), the Hon'ble Mr.Justice R. Subramanian after taking into consideration the aforesaid decision of the Full Bench, other decisions of this court and the decisions of other High Courts and also the decision of the Hon'ble Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Others, 2009 (9) SCC 689 in paragraph Nos.10 and 11 has held as follows:-
''10. We should not also lose sight of the fact that after the introduction of the various Estate Abolition Laws, the concept of permanent estate itself was abolished and Ryotwari tenures have been introduced in this part of the Country. The judgment of the Hon’ble Supreme Court relied upon by the learned Subordinate Judge is not from this region as it arises out of an order from the High Court of Patna and the Hon’ble Supreme Court did not lay down as of law that in all cases were a land paying revenue to the Government is to be partitioned, the partition is to be effected by the District Collector or 23/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 any Gazetted Officer authorized by the District Collector.
11. In view of the law declared, it can be stated without fear of contradiction that this Court has been consistent in excluding the applicability of Section 54 to division of Ryotwari estates. I therefore, conclude that the learned Subordinate Judge was not right in forwarding the Application for passing a Final Decree to the District Collector.''
28. We fully agree with the views of the Hon'ble Mr.Justice R. Subramanian.
29. At this juncture, it may be useful to refer to the provisions of Section 7 of the Tamil Nadu Court Fee and Suit Valuation Act, 1955, as it stood before the amendment made by the Act 6 of 2017 which reads thus:-
“7. Determination of market value:- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall 24/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under sections 25(a), 25(b), 27(a), 29, 30, 37 (1), 37 (3), 38,45 or 48 shall be deemed to be --
(a) where the land is ryotwari land, thirty times the survey assessment on the land: Provided that, where the land forms part of a survey field and is not separately assessed to revenue, the value of such part shall be deemed to be thirty times such proportion of the survey assessment as the part bears to the entire survey field. Explanation.-- Lands in the areas in which the Malabar Tenancy Act, 1929 (1 [Tamil Nadu] Act XIV of 1930), is in force shall be regarded as ryotwari lands.
(b) where the land is situated in an estate as defined in sub-section (2) of section 3 of the [Tamil Nadu] Estates Land Act, 1908 (Tamil Nadu Act I of 1908), not being a land of the description mentioned in sub-clause (g) and such estate has been taken over by the Government under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Tamil Nadu Act XXVI of 1948), thirty times the land revenue payable on the land under section 23 of that Act; but if a ryotwari settlement has since been effected in pursuance of section 22 of that Act, in respect of such land, thirty times the assessment as so fixed;
(c) where the land is situated in an estate which became an estate under the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of1936), thirty times the rent payable for the land fixed under the Tamil Nadu 25/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 Estates Land (Reduction of Rent) Act, 1947 (Tamil Nadu Act XXX of 1947);
(d) where the land is an 'estate' as defined in the Tamil Nadu Estates Land Act, 1908 (TamilNadu Act I of 1908) --
(i) where separate peishkush is recorded in the Collector's register as payable for the estate, thirty times such peishkush;
(ii) in any other case, thirty times the annual melvaram realizable from the estate;
(e) where the land is a minor inam held under inam title deed, thirty times the assessment as noted in the village 'B' Register;
(f) where the land is in an inam village which, is not an 'estate' as defined in sub-section (2) of section 3 of the Tamil Nadu Estates Land Act, 1908 (Tamil Nadu Act I of 1908), thirty times the rent payable in respect of it;
(g) where the land is a house-site whether assessed to full revenue or not, poramboke land, or is land not falling within the foregoing description its market value.''
30. A bare reading of the aforesaid provision of law would show that even at the time of filing of the suit itself, the plaintiff has to identify the nature of the property i.e., whether it is an estate as defined in sub-section 26/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 (2) of Section 3 of the Tamil Nadu Estates land Act, 1908 and such Estate has been taken over by the Government under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 or it is an estate as defined in any other Laws which are mentioned in the said provision. Therefore if a suit is filed in respect of the Estate as defined in the Tamil Nadu Estate land Act, 1908, or as defined in any other Estate Laws which are mentioned in the said provision, the provisions of Section 54 of CPC will apply and the civil court after passing decree declaring the rights of the parties interested in the property shall send the said decree to the concerned District Collector to effect partition in accordance with such declaration. If the properties are the ryotwari lands, the provisions of Section 54 of CPC under Order 20 Rule 18 (1) of CPC will not apply. In such cases, it was only Order 20 Rule 18 (2) of CPC will apply and that the court alone will have the jurisdiction to pass final decree and divide the suit property.
31. In the result, the reference is answered as follows:-
If a suit is filed for partition in respect of Estate as defined in the Tamil Nadu Estate land Act, 1908 or under any other Estate Laws which are mentioned under Section 7 of the Tamil Nadu Court Fee and Valuation 27/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 Act as stood before the amendment by Act of 2017, the civil court after passing the decree declaring the rights of the parties interested in the property shall send the said decree to the Collector as per Order 20 Rule 18 (1) of CPC to divide the property by following the provisions of Sections 54 of CPC. Where a suit is filed in respect of ryotwari land and other immovable properties or movable properties, the court by following the procedures prescribed under Order 20 Rule 18 (2) has to pass preliminary decree and thereafter pass final decree.
32. The Registry is directed to post these CRPs with connected miscellaneous petition before the Roster Bench for disposal on merits.
(M.S.N.J.,) (P.R.M.J.,)
30.04.2021
Index : Yes
Internet : Yes
gv
To
The Principal District Court,
28/30
http://www.judis.nic.in
CRP(NPD). Nos.1633 and 2035 of 2020 and
CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 Namakkal.
M. SATHYANARAYANAN, J., and P. RAJAMANICKAM, J., gv Pre-delivery Order made in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 29/30 http://www.judis.nic.in CRP(NPD). Nos.1633 and 2035 of 2020 and CMP.No.9997 of 2020 in CRP(NPD). No.1633 of 2020 30.04.2021 30/30 http://www.judis.nic.in