Mahadevappa vs Marithayamma and Others

This revision petition is directed against the order of the learned Munsiff, Kollegal made in F.D.P. No. 7 of 1978 pursuant to the preliminary decree in O.S. No. 309 of 1974. The actual order is passed on I.A. No. 14 which was made by the defendants praying for issue of an order restraining the plaintiff, her henchmen and P.S.I. of Kollegal from disturbing the peaceful possession and enjoyment of the schedule properties by them. The application made by the defendants was in the original suit.

The suit was one for partition claimed by the plaintiff and for putting him in separate possession of his share of the properties. A preliminary decree had been passed and to that extent the plaintiff had succeeded. Under S. 54 C.P.C., a warrant for execution was sent to the Deputy Commissioner, Mysore, who in turn authorised the Assistant Superintendent of Land Records, as the Tahsildar of Kollegal returned the, warrant when it was sent to him, drawing the attention of the Deputy Commissioner to some Government circular. The complaint of the defendants-applicants in I.A. 14 was that the Deputy Commissioner had no power to so delegate his authority having regard to the language of S. 54 and that step itself being illegal, the Survey Supervisor deputed by the Assistant Superintendent of Land Records or the PSI could not disturb the peaceful possession of the properties held by the defendants.

The learned Munsiff has rejected I.A. 14 pointing out that the law is already settled by the High Court in the case of Muppanna Halappa v. Channappa Halappa, AIR 1964 Mys. 169, to the effect that Civil Courts could not interfere with the action taken by the Deputy Commissioner under S. 54 of the CPC in executing the warrant issued by the Civil Courts.

Aggrieved by the same, the present revision is preferred.

Sri M. Shivappa, learned counsel for the petitioner, strenuously urged that he is not questioning the action of the Deputy Commissioner, but the action of the Survey Supervisor who is demanding the petitioners-defendants to hand over possession of the properties for purpose of effecting partition by metes and bounds. The argument overlooks the fact that the Survey Supervisor is only an agent of the Deputy Commissioner and any action taken by him must be held to be the action of the Deputy Commissioner. If he cannot question the action of the Deputy Commissioner in a Civil Court, then he cannot question the action of his agent as well. This does not require elaborate discussion. The view expressed in the aforementioned decision is affirmed in the case of Ganapatrao Roajirao v. Balavant Krishnaji, (1965) 2 Mys. L.J. 768, FB. In the latter decision a Full Bench of this Court has held as follows:

"A party aggrieved by partition effected by the Collector cannot approach the Civil Court even by an application under S. 47 CPC, since the Court which passed the decree cannot be called a Court executing the decree so far as it relates to partition under S. 54".

Similarly, it has been further held:

"Inherent power of the Civil Court cannot be invoked to exercise jurisdiction over the Collector, since the Collector is not a Court constituted under the CPC, nor is a Civil Court superior to the Collector. In functioning under S. 54 the Collector acts as an independent Tribunal".

Thus the remedy, if any, available to the petitioner is either by way of representation to the Collector or to his higher authorities under the Karnataka Land Revenue Act.

For the reasons stated above, the view expressed by the Munsiff is correct and the revision petition is rejected. There will be no order as to costs. This order is passed at the stage of admission and after notice to the respondents.