Ramachandra Srinivas Kulkarni and Others vs Ramakrishna Krishna Kulkarni and Others

Somnath Iyer, J.

(1) The material facts as supplied to us by Mr. K. R. D. Karanth appearing for the plaintiff-decree-holder are these:

(2) A decree for partition was made in favour of respondent 1 by the Court of the first instance as long ago as on July 22, 1940, but that decree was set aside in appeal. The Privy Council in the further appeal set aside the appellate decree and remitted the matter on November 14, 1949. On October 8, 1951, the High Court of Bombay dismissed the appeal before it with the result that the decree of the Court of first instance for partition was confirmed.

(3) An execution application was presented on April 17, 1952, when the petitioners who were the defendants raised an objection of impartibility in respect of some of the lands of which a partition was sought. On March 18, 1955, the executing court overruled the objections and directed execution to proceed. We are informed by Mr. Karanth that Order was taken up in appeal but that appeal was dismissed.

(4) When the papers were transmitted to the Collector u/s 54 of the CPC for partition, the judgment-debtors raised an objection about impartiality once again. By an Order made by the Collector, those objections were overruled on August 29, 1957. There was a similar objections presented to the Assistant Collector on October 18, 1957, and, by an Order made by the Assistant collector on December 17, 1957, those objections were again overruled.

(5) In this situation the judgment-debtors again objected to the partition before the Collector on June 9, 1957, on the identical ground of impartibility. On September 11, 1962, the Collector overruled the objections and directed the partition to proceed. From this Order, the judgment-debtors appealed to the divisional Commissioner who dismissed it on the ground that an appeal did not lie. The revision petition to the Revenue appellate Tribunal was dismissed on the ground that there were two divergent decisions of this Court as to the maintainability of the appeal and that the Revenue Appellate Court would not, therefore, exercise its revisional jurisdiction.

(6) Mr. Javali appearing for the petitioners contends that a Full Bench of this Court has now decided in Ganpatrao Roajirao v. Balwant Krishnaji Desai 1965 2 Mys LJ 768, that a decision of the Collector u/s 54 of the CPC is appealable to the hierarchy of authorities enumerated in the Bombay Land Revenue Code, and that the Divisional Commissioner was, therefore, in error in declining jurisdiction. He also contends that for the same reason, we should set aside the Order made by the Revenue Appellate Tribunal.

(7) But the Order made by the Collector in the case before us concerned itself with an objection to the partition which was directed by the Civil Court. That objection had been raised before the executing court and had been overruled. An appeal from that Order had also been dismissed All That the Collector had, therefore, to do was to proceed to make a partition, and, it was entirely beyond his competence when making a partition u/s 54 of the Code of Civil Procedure, to listen to an objection which had been repelled by the Civil Court which had the competence to adjudicate upon it.

(8) The appeal which, according to the Full Bench decision of this Court can lie, is an appeal from an Order made by the Collector effecting the partition in accordance with the partition scheme prepared by him. What can be questioned in an appeal which may lie in that way is the manner of partition made by the Collector who would not have the competence to decide, in disobedience to the Order made by the Civil Court, that a property of which he is directed to make a partition, is impartible. That being clearly beyond his competence, an Order by which the Collector declines to do what is beyond his competence, is not an Order u/s 54 from which an appeal can lie to the Divisional Commissioner.

(9) In that view of the matter, the Divisional Commissioner was in our opinion, right in deciding against the maintainability of the appeal. That is so especially since the Order of the Civil Court had become final and the Collector was bound by it.

(10) The Order made by the Revenue Appellate Tribunal cannot therefore the disturbed. We dismiss this Writ Petition. No costs.

(11) Petition dismissed.